Opinion
23-K-40
01-27-2023
STATE OF LOUISIANA v. VIUSQUI PEREZ-ESPINOSA IN RE VIUSQUI PEREZ-ESPINOSA
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE ELLEN SHIRER KOVACH, DIVISION "K", NUMBER 17-415
Panel composed of Judges Fredericka Homberg Wicker, Hans J. Liljeberg, and John J. Molaison, Jr.
In this emergency writ application, relator-defendant, seeks review of the trial court's evidentiary ruling sustaining the state's objection to an investigating officer's testimony during trial. The officer's testimony at issue is a statement made concerning a photograph of the deceased victim's arm taken after the victim's disarticulated body parts were found floating in a body of water.
Defendant asserts that he intends to present a defense of self-defense at trial and show that he punched the victim's arm during the victim's unprovoked attack on him. Defendant contends that the photograph reflects a visible discoloration or bruising to the victim's arm to corroborate his defense. At trial, defense counsel questioned the investigating officer concerning the photograph and elicited the following testimony:
Q. And do you see this area, part of that looks like a cypress branch, partially -
A. It could be.
Q. Can you see what looks like bruising there?
A. Yes, sir. MS.
RISH: Objection, Your Honor...
The trial court sustained the state's objection, finding that the officer was not an expert and could not testify as to the appearance of the marking or discoloration on the victim's arm. In her per curiam opinion, the trial judge indicated that the state had presented expert testimony concerning whether any bruising on the victim's body was apparent. The trial judge found that because the investigating officer is not an expert, he is in "no better position to review the photograph than the jurors" and found that his testimony is "not helpful to the determination of whether, in fact, there was bruising on the arm... ." The trial judge excluded the testimony under La. C.E. art. 701, which provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.
Generally, a lay witness can only testify to the facts within his knowledge and not to impressions or opinions; however, a witness is permitted to draw reasonable inferences from his personal observations. State v. Hubbard, 97-916 (La.App. 5 Cir. 1/27/98), 708 So.2d 1099, 1106, writ denied, 98-0643 (La. 8/28/98), 723 So.2d 415(quotations omitted)(emphasis in original). Where the subject of the testimony is such that any person of experience may make a natural inference from observed facts, a lay witness may testify as to such inferences, provided he also states the observed facts. Id.
In this case, we first point out that the elicited testimony does not question whether in fact the discoloration in the photograph is a bruise. Rather, defense counsel sought an inference or opinion from the investigating officer on the scene as to whether the discoloration or marking "look[ed] like" a bruise. See State v. Guidry, 18-867 (La.App. 3 Cir. 5/8/19), 271 So.3d 275, 301, writ denied, 1901363 (La. 7/24/20), 299 So.3d 66 (in which the Third Circuit found that an investigating officer could testify as to the appearance of a footprint matching a certain shoe); State v. Culverson, 26,874 (La.App. 2 Cir. 4/5/95), 653 So.2d 1261, 1264 (wherein a witness testified that an object "looked like a gun"). Further, testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. La. C.E. art. 704.
See also Dixon v. Warden, Louisiana State Penitentiary, No. CIV.A. 11-2100, 2012 WL 6803686, at *11 (W.D. La. Nov. 30, 2012), report and recommendation adopted, No. CIV.A. 11-2100, 2013 WL 85160 (W.D. La. Jan. 7, 2013).
Under the facts of this case and considering that any testimony elicited surrounding the photograph of the victim's arm directly relates to the defendant's self-defense defense at trial, we find the trial judge abused her discretion in sustaining the state's objection. This writ is granted, and the trial court's ruling reversed.
WRIT GRANTED
FHW HJL
MOLAISON, J., DISSENTS WITH REASONS
I respectfully dissent from the majority opinion, upon finding no abuse of the great discretion afforded to the trial court in evidentiary matters. State v. Griffin, 14-251, (La.App. 5 Cir. 3/11/15), 169 So.3d 473. In the instant case, I would defer to the trial court's ruling that the officer's lay opinion on a forensic issue, that goes to the heart of the defendant's theory of the case, is unreliable. Further, I would point out that the content of the photograph at issue speaks for itself. Accordingly, I would deny the writ application on the showing made.
JJM