State of Louisiana Versus Roberto Lopez

STATE OF LOUISIANA NO. 24-K-406

VERSUS FIFTH CIRCUIT

ROBERTO LOPEZ COURT OF APPEAL

STATE OF LOUISIANA

August 29, 2024

Linda Wiseman
First Deputy Clerk

IN RE ROBERTO LOPEZ

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS,
DIVISION "G", NUMBER 21-5762

Panel composed of Judges Marc E. Johnson,
Scott U. Schlegel, and Timothy S. Marcel

WRIT GRANTED

Relator, Roberto Lopez, seeks review of the trial court’s August 28, 2024

ruling that overruled his objection to the admission of the lay opinion testimony of

Erika Dupepe, the Executive Director of the Jefferson Children’s Advocacy Center

(“CAC”) and a forensic interviewer. Relator contends that Ms. Dupepe should not

be allowed to provide commentary and critique of the Florida CAC interview of the

alleged victim as a lay person. He argues that Ms. Dupepe’s testimony is prejudicial.

He also argues that her testimony violates the purpose of La. C.E. art. 701, since she

did not witness the actual interview, and it violates his right to confront his accusers.

At trial, it was established that the State does not intend to qualify Ms. Dupepe

as an expert witness. The State asserted that a forensic interview was conducted in

this case, and Ms. Dupepe will testify about forensic interviews and how they are

24-K-406

conducted. The State argued that Ms. Dupepe’s testimony is relevant to the case

because she is testifying to her reasonable knowledge based on her occupation.

The testimony of a lay witness, who is not testifying as an expert, in the form

of opinions or inferences, is limited to those opinions or inferences that are rationally

based on the perception of the witness and are helpful to a clear understanding of the

testimony or the determination of fact at issue. La. C.E. art. 701; State v. Keller, 09-

403 (La. App. 5 Cir. 12/29/09), 30 So.3d 919, 930-31, writ denied, 10-267 (La.

9/17/10), 45 So.3d 1041. Generally, a lay witness is permitted to draw reasonable

inferences from his or her personal observations. State v. Casey, 99-23 (La.

1/26/00), 775 So.2d 1022, 1033, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148

L.Ed.2d 62 (2000). However, only experts are allowed to give opinion testimony in

areas of specialized knowledge. State v. Griffin, 14-251 (La. App. 5 Cir. 3/11/15),

169 So.3d 473, 487. The trial court is vested with much discretion in determining

which opinion testimony shall be received into evidence as lay or expert testimony.

State v. Nelson, 14-252 (La. App. 5 Cir. 3/11/15), 169 So.3d 493, 507, writ denied,

15-685 (La. 2/26/16), 187 So.3d 468.

After review, we find the trial court abused its discretion in overruling

Relator’s objection and allowing Ms. Dupepe’s lay opinion testimony. According

to the State, the purpose of Ms. Dupepe’s testimony is to provide information about

forensic interviews and how they are conducted; however, she is not being offered

as an expert witness in forensic interviews. Additionally, the practices and

procedures for forensic interviews may vary from state to state. The State has not

asserted that Ms. Dupepe has knowledge of the practices and procedures for forensic

interviews conducted in Florida. Thus, the State has failed to prove the relevance of

Ms. Dupepe’s lay opinion testimony. If the State seeks to offer the testimony of Ms.

Dupepe regarding forensic interviews in general and how they are conducted, it must

first qualify her as an expert in forensic interviews. Moreover, the risk of prejudice

2

of Ms. Dupepe’s lay opinion testimony in this matter will outweigh its questionable

probative value. Accordingly, the writ application is granted.

Gretna, Louisiana, this 29th day of August, 2024.

MEJ
SUS
TSM

3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 08/29/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-K-406
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable E. Adrian Adams (DISTRICT JUDGE)
Anna L. Friedberg (Relator) Thomas J. Butler (Respondent)
Darren A. Allemand (Respondent)
Mark D. Plaisance (Relator)

MAILED
Remy V. Starns (Relator) Christen DeNicholas (Relator) Marcus J. Plaisance (Relator)
Attorney at Law Attorney at Law Attorney at Law
301 Main Street Jefferson Parish Public Defender Post Office Box 1123
Suite 700 848 Second Street Prairieville, LA 70769
Baton Rouge, LA 70825 Third Floor
Gretna, LA 70053
Honorable Paul D. Connick, Jr.
(Respondent)
District Attorney
Twenty-Fourth Judicial District
200 Derbigny Street
Gretna, LA 70053

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