State of Louisiana Versus Roberto Lopez

STATE OF LOUISIANA NO. 25-K-38

VERSUS FIFTH CIRCUIT

ROBERTO LOPEZ COURT OF APPEAL

STATE OF LOUISIANA

January 30, 2025

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 Susan M. Chehardy,
Fredericka Homberg Wicker, and Scott U. Schlegel

WRIT DENIED, STAY LIFTED

Defendant-relator, Roberto Lopez, seeks emergency supervisory review of

the trial court’s ruling permitting the State to introduce a videotape statement of the

victim taken in Florida, as trial is in progress. We granted a limited stay of the

proceedings and requested a response from the State. For the reasons that follow,

we deny the writ application and lift the stay.

Background

The State charged defendant with sexual battery - child under thirteen, a

violation of La. R.S. 14:43.1; indecent behavior of a juvenile - child under thirteen,

a violation of La. R.S. 14:81; and aggravated rape - child under thirteen, a violation

of La. R.S. 14:42. Defendant pled not guilty.

The State sought to introduce a videotape interview of the victim that was

taken in Florida. Defendant objected, arguing that the State cannot satisfy the

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requirements enumerated in La. R.S. 15:440.5 A, which governs the introduction

of statements into evidence, and provides, in relevant part:

A. The videotape of an oral statement of the protected person
made before the proceeding begins may be admissible into
evidence if:
***
(6) The person conducting or supervising the interview of
the protected person in the recording is present at the
proceeding and available to testify or be cross-examined by
either party[.]

Defendant contends that neither the person conducting the interview nor the person

supervising the interview is available to testify at trial. Defendant argues that this

violates his Sixth Amendment right to confrontation, citing State v. Duong, 13-763

(La. App. 5 Cir. 8/8/14), 148 So.3d 623, writ denied, 14-1883 (La. 4/17/15), 168

So.3d 395. In Duong, this Court stated:

[E]ither the interviewer or the person supervising the interview
be available to testify or to be cross-examined by either party.
La. R.S. 15:440.5(A)(6). This statutory requirement serves the
purpose of having a witness who can authenticate the video
tape, and it serves the purpose of having a witness to testify in
regard to whether the process of recording and conducting the
interview complied with the statutory requirements.

148 So.3d at 639-40 (quoting State v. Roberts, 42,417 (La. App. 2 Cir. 9/19/07),

966 So.2d 111, 123).

In response, the State argued that it seeks to introduce the interview as a

“prior consistent statement” under La. C.E. art. 801(D)(1)(b), rather than under La.

R.S. 15:440.5. La. C.E. art. 801(D)(1)(b) states:

D. Statements which are not hearsay. A Statement is not
hearsay if:

(1) Prior statement by witness. The declarant testifies at the
trial or hearing and is subject to cross-examination
concerning the statement, and the statement is:
***
(b) Consistent with his testimony and is offered to rebut
an express or implied charge against him of recent
fabrication or improper influence or motive[.]

2

The State contends the tape is independently admissible as a prior consistent

statement, and further points out that counsel for the defense “opened the door” in

opening statements by referring to the tape itself and by suggesting that the victim

is being untruthful. See State v. Jones, 02-908 (La. App. 5 Cir. 2/25/03), 841 So.2d

965, 975, writ denied, 03-895 (La. 9/26/03), 854 So.2d 345. Finally, to the extent

defendant argues that his Sixth Amendment rights are violated because he cannot

confront the interviewer in the Florida tape, the State argues that the interviewer is

not his accuser; the victim is.

The trial court permitted the admission of the Florida tape into evidence and

issued a brief stay of trial. We review the trial court’s rulings on admissibility of

evidence for an abuse of discretion. State v. Thomas, 19-582 (La. App. 5 Cir.

7/29/20), 300 So.3d 517, 526, writ denied, 20-1503 (La. 3/2/21), 311 So.3d 1053.

Given the trial court’s great discretion and the fact-intensive nature of this issue,

we find no reason to exercise our supervisory jurisdiction at this time. Relator’s

writ application is denied. The stay that this Court ordered until 12:00 p.m. today is

lifted.

Gretna, Louisiana, this 30th day of January, 2025.

SMC
SUS

3

STATE OF LOUISIANA NO. 25-K-38

VERSUS FIFTH CIRCUIT

ROBERTO LOPEZ COURT OF APPEAL

STATE OF LOUISIANA

WICKER, J., CONCURS WITH REASONS
After review, I agree with the decision to deny defendant’s writ

application. Defendant asserts the trial court erred by denying his motion to

strike admission of the videotape of the victim’s Florida interview, arguing that,

pursuant to La. R.S. 15:440.1, the videotape cannot be admitted without the

testimony of the interviewer or supervisor of the interview. The State

acknowledges that it is unable to satisfy the particular standards of La. R.S.

15:440.1, but contends the Florida videotape is independently admissible as a

prior consistent statement under La. C.E. art. 801(D)(1)(b). The State further

contends that defense counsel “opened the door” by referring to the videotape in

opening statements, cross-examination of Sergeant Wieter regarding the

videotape, and asserting the victim is being untruthful.

La. C.E. art. 804(D)(1)(b) provides that a statement is not hearsay if the

declarant testifies at the trial and is subject to cross-examination concerning the

statement, and the statement is consistent with the victim’s testimony and

“offered to rebut an express or implied charge against him of recent fabrication

or improper influence or motive.” See also State v. Jones, 02-908 (La. App. 5

Cir. 2/25/03), 841 So.2d 965, 975, writ denied, 03-895 (La. 9/26/03), 854 So.2d

345. The State avers that the victim will testify at trial, subject to cross-

examination.

As pointed out by the State, the issue before us is fact-intensive. In the

case’s current posture, mid-trial, there is no transcript of the opening statements

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or the cross-examination of Sergeant Wieter for this Court to consider in

determining whether defense counsel adequately “opened the door” for

consideration of the videotape or whether all of the requirements of La. C.E. art.

804(D)(1)(b) have been met. This Court has only the benefit of the arguments

made by counsel on this issue and, while I am confident that counsel for each

side has been truthful, further analysis and consideration of the trial court

proceedings thus far is required to definitively determine whether or not the

videotape is admissible under La. C.E. 801(D)(1)(b).

At this stage of the proceedings and given the limited information

provided, I cannot say the trial court abused its discretion by denying

defendant’s motion to exclude admission of the Florida videotape. However, I

point out that in the event of a conviction, defendant may seek review of this

ruling on appeal, during which this Court will have the benefit of the entire

record, including all of the transcripts.

FHW

2

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 01/30/2025 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:

25-K-38
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable E. Adrian Adams (DISTRICT JUDGE)
Darren A. Allemand (Respondent) Thomas J. Butler (Respondent)
Mark D. Plaisance (Relator)

MAILED
Remy V. Starns (Relator) Christen E. DeNicholas (Relator) Marcus J. Plaisance (Relator)
Attorney at Law Attorney at Law Attorney at Law
301 Main Street 848 Second Street Post Office Box 1123
Suite 700 3rd Floor Prairieville, LA 70769
Baton Rouge, LA 70825 Gretna, LA 70053

Zachary L. Grate (Respondent)
Honorable Paul D. Connick, Jr.
(Respondent)
District Attorney
Twenty-Fourth Judicial District
200 Derbigny Street
Gretna, LA 70053