Cory Wayne Darby v. Jordan St. Julien Martinez

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-311

CORY WAYNE DARBY

VERSUS

JORDAN ST. JULIEN MARTINEZ

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20211736
HONORABLE ROYALE L. COLBERT, DISTRICT JUDGE

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WILBUR L. STILES
JUDGE

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Court composed of Elizabeth A. Pickett, Guy E. Bradberry, and Wilbur L. Stiles,
Judges.

AFFIRMED.

Chris Villemarette
Attorney at Law
3404 Moss Street
Lafayette, LA 70507
(337) 232-3100
COUNSEL FOR APPELLANT:
Cory Wayne Darby

Jordan St. Julien Martinez
In Proper Person
712 Rue Des Etoiles
Carencro, LA 70520
(337) 522-7474
COUNSEL FOR APPELLEE:
Jordan St. Julien Martinez

Christopher Blyane Martinez
In Proper Person
712 Rue Des Etoiles
Carencro, LA 70520
(337) 207-2174
COUNSEL FOR APPELLEE:
Christopher Blyane Martinez

STILES, Judge.

Appellant Cory Darby questions the trial court’s issuance of a “mutual stay

away order,” requiring him and the appellees to refrain from a variety of harassing

and threatening behaviors. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The record in this case indicates that the parties, who are neighbors in

Carencro, have repeatedly sought the court’s assistance due to ongoing friction

between members of the two families. Both Mr. Darby and Jordan Martinez filed

Petitions for Protection from Stalking in April 2021 following an incident that

involved some shouting back and forth as well as some physical altercation. At one

point, Mr. Darby’s girlfriend, Rhonda Laborde, allegedly fired a firearm into the air.

After police responded to the incident, Mrs. Martinez and her husband, Christopher

Martinez, were charged with criminal trespassing, and Mrs. Martinez was charged

with battery. Ms. Laborde was charged with illegal discharge of a firearm. 1

Temporary Restraining Orders were issued against the parties, ordering that they not

harass or go within fifty yards of one another. Before a hearing could be held,

however, Mrs. Martinez filed a rule for contempt against Mr. Darby alleging that he

violated the protective order by focusing bright security lights into the Martinezes

windows.

At a June 24, 2021 hearing, Judge David Smith dismissed the parties’ cross

motions for petitions for protective orders and issued a Mutual Stay Away Order,

effective for one year.

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The record indicates that the charge was dismissed against Ms. Laborde. The record does
not reflect a dismissal of charges against Mr. and Mrs. Martinez.

On August 2, 2021, however, Mrs. Martinez again filed a rule for contempt,

complaining that Mr. Darby’s son sprayed her house with a water hose and that

someone had tried to push over a tree on the Martinez property. Mrs. Martinez

maintained that Mr. Darby was doing these things to harass her in revenge for her

having animal control remove his dogs. Judge Smith denied the rule for contempt

on September 13, 2021.

Friction between the parties continued, with Mrs. Martinez filing another rule

for contempt in November 2021, claiming that Mr. Darby’s son threw rocks at her

house in the middle of the night. Following a hearing, Judge Royale Colbert 2

rendered a January 24, 2022 judgment, which included a determination that the

evidence presented established that Mr. Darby’s son “threw an object at the

Martinez’s home on October 29, 2021.” Judge Colbert denied the rule for contempt

however, noting that the earlier mutual stay away order pertained only to Mr. Darby,

not his sons. Judge Colbert extended the existing mutual stay away order to include

Mr. Darby, his two sons, and both Mr. and Mrs. Martinez. The order prohibited a

variety of harassing behaviors and any physical or electronic contact between the

parties.

Central to this appeal, Mrs. Martinez filed a new Petition for Protection from

Stalking on October 26, 2023. She again relayed past events and claimed that Mr.

Darby, his family, and visitors to his property continued to hurl racial slurs at her,

her family, and their guests. Mrs. Martinez also complained of other threatening and

harassing behavior such as playing loud, racially offensive music. Due to purported

death threats directed to her and her husband, Mrs. Martinez contacted the FBI, the

2
Judge Colbert was allotted the matter after Judge Smith recused himself on his own
motion on November 10, 2021.

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Lafayette Parish Sheriff’ Office, the United States Attorney, and the NAACP

regarding the ongoing issues. Mrs. Martinez also filed a complaint against Mr.

Darby’s attorney with the Office of Disciplinary Counsel, suggesting that, among

other things, he filed a frivolous suit against her on Mr. Darby’s behalf. The trial

court granted Mrs. Martinez a TRO pending a hearing.

Judge Colbert heard the matter on October 30, 2023 where, as she has done

throughout these proceedings, Mrs. Martinez represented herself. Mrs. Martinez, Mr.

Martinez, and Sara Adams, Mrs. Martinez’s mother, made statements to the court.

Mrs. Martinez recited the neighbors’ lengthy history and apprized Judge Colbert of

the more recent allegations. Mrs. Martinez explained that, not only had she recently

heard racial comments and death threats coming from the Darbys’ back yard, but

she also referenced a recent incident in which Mr. Darby noisily ran the generator of

his RV near the property line over the course of a day and night. Mrs. Martinez

suggested that Mr. Darby did so to annoy and harass the family for the entire night.

Mr. Martinez offered a brief statement, explaining to Judge Colbert that,

although he wanted “comfort,” he could not even work in his yard due to “slurs”

coming from a “group” behind a fence on the Darby property. Mr. Martinez stated

that “it’s never just one of them. It’s always a group of them.” Ms. Adams explained

to Judge Colbert that she could not visit the Martinez home and find “peace.” Rather,

she again alleged that Mr. Darby’s girlfriend, Rhonda Laborde, had fired a weapon

and hurled racial insults earlier. Ms. Adams also maintained that Mr. Darby “pushed

her” and suggested that Mr. Darby had attempted to bait Mrs. Martinez onto his

property in order to “charge her with trespassing.” She maintained that Mr. Darby

“deliberately did a lot of ugly things, sicing his dog on the property, knowing that

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we cannot enjoy ourselves outside. It’s like he would wait for us to go in the house

or leave.” She stated that he had acted similarly toward her other children.

In his own testimony to the court, Mr. Darby denied allegations about the use

of “racial slurs across the fence” or from his yard. He explained that he had “[n]ot

as of yet” seen “any video, or anything” to suggest that he or anyone on his property

had “used a racial slur” to his neighbors. As for the incident involving the RV, Mr.

Darby explained that he had only “tried to plug it up” in order to charge its batteries.

He stated that although it is a diesel generator, “it is not loud.” Mr. Darby confirmed

that he had a pending civil suit against Mr. and Mrs. Martinez arising from their

allegations of racial animus.

At the close of the hearing, Judge Colbert reported that “[c]learly, something

is going on.” While Judge Colbert rejected Mrs. Martinez’s racial allegations, he

observed that “y’all just don’t like each other, but unless y’all want to sell y’all

property and they want to sell their property, ya’ll have to live together.” Judge

Colbert expressed particular concern regarding an earlier video showing “some

young man throwing rocks over the fence at Mrs. Martinez and their guests” and the

fact that one of the incidents involved a gun. Judge Colbert recognized that although

the resulting charge against Ms. Laborde was dismissed, the incident nonetheless

gave him “pause.” He informed the parties that it was not his job to determine where

the problems started, but that it was his job to “figure out how we stop it.” Judge

Colbert took the matter under advisement to “fashion something” to address the

parties’ needs.

The trial court thereafter entered an October 30, 2023 judgment, dismissing

Mrs. Martinez’s October 26, 2023 petition for the judge’s “further orders.” A

resulting October 31, 2023 judgment incorporated Judge Colbert’s factual findings,

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including a determination that “both parties in this matter are credible; if somewhat

hypersensitive to any perceived action of the other neighbor[.]” The trial court

ordered the following:

IT IS ORDERED that a mutual stay away order is placed into
effect between the parties with all of the restrictions and penalties of a
protective order, including but not limited to:

• abusing, harassing, assaulting, stalking, following, tracking,
monitoring, or threatening each other in any manner whatsoever;

• contacting each other personally or through third parties or via
public posting by any means including verbal, written,
telephonic, or electronic (text, email, messaging, or social media
communication);

• coming within 25 feet of the residence of the other person, their
family, members or guests.

Cory Darby is to only run his generator on his RV during daylight
hours from 8:00 a.m. to 5:00 p.m.

Cory Darby is further ordered [to] keep his dogs within the
confines of his physical property at all times. When the pets are not
within the confines of his property, he is ordered to have them on a
leash as required by the law.

The Court further orders that this matter is not to be reported in
the Louisiana Protective Order Registry.

The trial court assessed costs equally between the parties. The trial court rendered

an Amended Judgment on November 8, 2023, changing the listing of those present

in court.

Mr. Darby appeals, asserting that: 1) the trial court committed reversible error

by failing to require Mrs. Martinez and her witnesses to testify under oath; and that

2) the trial court committed reversible error by failing to allow Mr. Darby to cross-

examine Mrs. Martinez or her witnesses.

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DISCUSSION

Burden of Proof and Standard of Review

The trial court considered this matter on Mrs. Martinez’s Petition for

Protection from Stalking pursuant to La.R.S. 46:2171.3 The legislature has explained

that the civil remedy of the protective order affords a victim of stalking immediate

and easily accessible protection by summary proceeding. Id. At a hearing on a

protective order, the petitioner must prove the allegations of his or her petition by a

preponderance of the evidence. 4 Selcer v. Boudreaux, 20-623 (La.App. 3 Cir.

5/26/21), 318 So.3d 393. Proof is sufficient to satisfy this burden when the entirety

of the evidence, both direct and circumstantial, shows that the fact sought to be

proved is more probable than not. Id. (quoting Patterson v. Charles, 19-333, p. 10

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Louisiana Revised Statutes 46:2171 provides that:

The legislature hereby finds and declares that there is a present and growing
need to develop innovative strategies and services which will reduce and treat the
trauma of stranger and acquaintance stalking. The nature of stalking allegations are
sometimes not easily substantiated to meet the prosecution’s burden of proving the
case beyond a reasonable doubt, and victims of stalking are left without protection.
Orders of protection are a proven deterrent that can protect victims of stalking from
further victimization; however, many victims are forced to pursue civil orders of
protection through ordinary process, often unrepresented, rather than through a
shortened summary proceeding. Additionally, victims of stalking are not always
aware of the vast resource available to assist them in recovering from the trauma
associated with being a victim of stalking. It is the intent of the legislature to provide
a civil remedy for victims of stalking that will afford the victim immediate and
easily accessible protection.
4
Pursuant to La.R.S. 46:2172, “‘stalking’” means any act that would constitute the crime
of stalking under R.S. 14:40.2 or cyberstalking under R.S. 14:40.3.” In turn, La.R.S. 14:40.2(A)
provides that:

Stalking is the intentional and repeated following or harassing of another person
that would cause a reasonable person to feel alarmed or to suffer emotion distress.
Stalking shall include but not be limited to the intentional and repeated uninvited
presence of the perpetrator at another person’s home, workplace, school, or any
place which would cause a reasonable person to be alarmed, or to suffer emotional
distress as a result of verbal, written, or behaviorally implied threats of death, bodily
injury, sexual assault, kidnapping, or any other statutory criminal act to himself or
any member of his family or any person with whom he is acquainted.

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(La.App. 4 Cir. 9/11/19), 282 So.3d 1075, 1083). A trial court has wide discretion

in granting a protective order, which an appellate court will reverse only upon a

showing of an abuse of discretion. Id.

Witness Testimony

Both of Mr. Darby’s assignments of error stem from the fact that the trial court

conducted the hearing on Mrs. Martinez’s request for a protective order in an

unstructured, conversational style. For instance, the transcript indicates that the trial

court opened the hearing simply with “Okay, Ms. Martinez, it’s your motion. What’s

going on now?” Mrs. Martinez, representing herself, responded to the trial court’s

inquiry by relating the parties’ history and then moving on to allegations surrounding

the more recent occurrences. Mr. Martinez and Ms. Adams related their observations

and complaints to the trial court as well. The record does not indicate that Mrs.

Martinez, Mr. Martinez, or Ms. Adams were placed under oath before providing

their statements.

When the trial court turned the podium over to Mr. Darby’s counsel, Mr.

Villemarette, he more formally stated that he “would like to call Mr. Darby as a

witness, since we are going to do this right way, sir.” The trial court responded

“Please do.” Thereafter, Mr. Villemarette called Mr. Darby and Ms. Laborde to the

stand. Both were sworn under oath before answering Mr. Villemarette’s questions.

When prompted by the trial court, Mrs. Martinez declined to ask either Mr. Darby

or Ms. Laborde further questions.

After some additional back and forth between the witnesses and Mr.

Villemarette as well as interjections from the trial court, the trial court expressed

concern over the state of affairs between the parties before taking the matter under

advisement.

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In his first assignment, Mr. Darby notes that Mrs. Martinez, Mr. Martinez, and

Ms. Adams testified without being sworn and suggests that their statements cannot

therefore be verified. He contends that Mrs. Martinez presented no other evidence

in support of her claims of harassment. Mr. Darby points out that, in contrast, he and

Ms. Laborde denied Mrs. Martinez’s allegations “under oath and subject to cross

examination.”

As Mr. Darby notes, both La.Code Civ.P. art. 1633(A) and La.Code Evid. art.

603 provide that “[b]efore testifying, every witness shall be required to declare that

he will testify truthfully, by oath or affirmation administered in a form calculated to

awaken his conscience and impress his mind with his duty to do so.” Mr. Darby thus

argues that the trial court should not have considered Mrs. Martinez’s unsworn

testimony or that of her witnesses. Citing Searles v. Searles, 08-1098, pp. 3-4

(La.App. 1 Cir. 3/27/09), 9 So.3d 997, 999 (“The statements made by the parties

were not evidence on which the trial court could rely to render judgment in this

matter because the statements were not sworn to nor were the parties subject to cross-

examination regarding the statements made.”). He maintains that the trial court’s

order was therefore without an evidentiary basis and argues that it must be vacated.

Mr. Darby’s suggestion does not account for a number of factors, however.

First, the trial court’s observations at the hearing as well as the factual findings

reflected in the judgment indicate that the trial court took judicial notice of the parties’

history.5 Louisiana Code of Evidence Article 201(C) specifically permits a trial court

5
The judgment reflects that:

The Court makes note that since April 4, 2021 the parties have filed several
protective orders against each other alleging threats of physical violence. The Court
further notes that the parties are next door neighbors and that there has been at least
one incident involving the dogs of [] Cory Darby biting Jordan Martinez resulting

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to take notice of adjudicative facts, whether requested or not. “A judicially noticed

fact must be one not subject to reasonable dispute in that it is either: (1) Generally

known within the territorial jurisdiction of the trial court; or (2) Capable of accurate

and ready determination by resort to sources whose accuracy cannot reasonably be

questioned.” La.Code Evid. art. 201(B).

The appellate record in this case, which includes pleadings dating to 2021,

substantiates the trial court’s findings regarding the hostilities between the parties.

The record includes repeated pleas for protection due to allegations of both verbal

and physical threats. Law enforcement officials have been called to the property on

numerous occasions and, on at least one occasion, a report was made of threats

involving firearms. See Aguillard v. Aguillard, 20-64 (La.App. 3 Cir. 11/4/20), 305

So.3d 955 (wherein this court reviewed the trial court’s issuance of a permanent

protective order and concluded that La.Code Evid. art. 201 permitted the trial court

to take judicial notice of evidence previously presented and made part of the public

record). See also Milam v. Hughes, 22-407, p. 9 (La.App. 1 Cir. 12/29/22), 360 So.3d

852, 859 (wherein a panel of the first circuit maintained a protective order when the

in a civil lawsuit where Mr. Darby paid Mrs. Martinez a settlement. Mr. Martinez
stated that Cory Darby uses his dog as a means of threats and intimidation.

The Court further noted that in the prior restraining order it was
affirmatively proved that a visitor to the home of Cory Darby did throw rocks at
the Martinez[es] over the fence. This was proved by a video wherein it was believed
that the assailant was the son of Cory Darby and another visitor. The video was
hazy and therefore Mr. Darby’s son could not be positively identified; however the
rock thrower was clearly on the property of Mr. Darby.

....

The Court also takes note that several police reports have been filed by both
parties against each other throughout the years each alleging breaches of the peace.
The Court further notes that Cory Darby has been cited no less than four times for
leash law violations involving his dogs.

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trial court not only weighed evidence presented and assessed the credibility of

witnesses, but further “took judicial notice of the many incidents of abuse, as well

as prior judicial proceedings[.]”). Further, Judge Colbert was personally familiar

with the history of the case as he has presided over this matter since the November

2021 recusal of Judge Smith.

Moreover, while Mr. Darby complains that Mrs. Martinez and her witnesses

provided statements to the trial court without having been sworn, it is important to

note that the “trial judge has great discretion in the manner in which the proceedings

are conducted before the court, and it is only upon a showing of a gross abuse of

discretion that appellate courts have intervened.” D.M.S. v. I.D.S., 14-364, p. 17

(La.App. 4 Cir. 3/4/15), 225 So.3d 1127, 1138, writ denied, 15-897 (La. 6/19/15),

172 So.3d 654. In this instance, the trial court conducted the hearing as a summary

proceeding designed to afford a victim immediate and easily accessible protection

through a shortened, summary proceeding. See La.R.S. 46:2171. The conversational

style in which the trial court conducted the hearing reflects that posture as well as

the fact that Mrs. Martinez was unrepresented. Significantly, Mr. Darby’s counsel

did not object to the manner which the trial court proceeded nor did counsel object

to Mrs. Martinez, Mr. Martinez, or Ms. Adams addressing the court without having

been sworn.

In Patterson v. Charles, 19-333, pp. 32-33 (La.App. 4 Cir. 9/11/19), 282 So.3d

1075, 1096, the fourth circuit reviewed a defendant’s complaint that she was denied

procedural due process when the trial court proceeded to a hearing for a protective

order without “opportunity to urge pre-trial motions, to seek counsel, to prepare a

defense, or to cross-examine the opposing party.” Pointing out that a trial court has

discretion in determining how proceedings are conducted, the panel found no abuse

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of discretion in the matter before it when the appellant “appeared, testified, and was

addressed by the trial court and thus had the chance to raise any issues in the

proceedings, including, any pre-trial concerns, her lack of representation, her ability

to cross-examine Patterson, etc., but failed to do so.” Id. The appellant in Patterson

“did not lodge any objections at the trial on the protective order.” Id. Given those

considerations, the fourth circuit concluded that the appellant was “given a

meaningful opportunity to be heard[,]” undermining the appellant’s contention that

she was not afforded procedural due process.

Likewise, despite being represented by counsel, Mr. Darby did not complain

of the method by which the trial court conducted the hearing and, specifically, did

not object to the fact that the trial court spoke with Mrs. Martinez and her witnesses

without being placed under oath. See State ex rel. J.F., 07-1496, p. 6 (La.App. 3 Cir.

5/14/08) (unpublished opinion) (2008 WL 2042813) (finding no merit in the

assertion that the trial court violated La.Code Evid. art. 603 in allowing the unsworn

testimony of a caseworker and noting, in part, that the appellant lodged “no

contemporaneous objection” to the alleged error).

Finally, we also point out that Mrs. Martinez instituted this matter by Petition

for Protection from Stalking, advancing her allegations under oath.6 Mrs. Martinez

6
Mrs. Martinez verified her allegations as follows:

I am the petitioner in this Petition for Protection from Stalking or Sexual
Abuse. I have read the allegations contained therein and declared them to be true
and correct to the best of my knowledge[,] information, and belief. Further I believe
that the defendant poses a threat to my safety and/or to the child(ren) or to others
for whom I have requested relief[.]

I am aware that any false statement made under oath contained in the
foregoing petition and this affirmation may constitute perjury pursuant to R.S.
14:123[.]

I have made this affirmation before the witness who signed below on
10/26/23.

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and her witnesses’ statements to the trial court were largely duplicative of the

allegations and grievance previously presented to the court.

In light of these circumstances, we find no merit in Mr. Darby’s contention

that the trial court’s judgment lacked an evidentiary basis.

Cross Examination of Witnesses

Neither do we find merit in Mr. Darby’s further contention that the trial court

did not afford him an opportunity to cross-examine Mrs. Martinez, Mr. Martinez, or

Ms. Adams. After Mrs. Martinez concluded her presentation to the court, the trial

court turned the matter over to Mr. Darby’s counsel with the open-ended question

of, “Mr. Villemarette?” Mr. Villemarette did not, in turn, seek to question Mrs.

Martinez or her witnesses. Instead, Mr. Villemarette called Mr. Darby and Ms.

Laborde as witnesses. Following their testimony, Mr. Villemarette stated: “That’s

all. Thank you, Judge.” When the trial court inquired, “Anything else?[,]” he

responded “No, sir.”

Despite the fact that the trial court solicited further participation, counsel did

not seek to question Mrs. Martinez or her witnesses or suggest to the trial court that

the informal proceedings deprived him of any opportunity to challenge Mrs.

Martinez in any regard. Thus, we find no merit in Mr. Darby’s contention that “the

trial court did not afford the opportunity to cross-examine Mrs. Martinez or her

witnesses.” Rather, the record indicates that he did not take advantage of the

opportunity to do so. See Patterson, 282 So.3d 1075; State ex rel. J.F., 07-1496.

This assignment of error lacks merit.

The verification bears the signature of both Mrs. Martinez and of a witness.

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DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of

this proceeding are assessed equally to Appellant Cory Darby and Appellee Jordan

Martinez.

AFFIRMED.

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