Opinion
22-K-25
02-25-2022
STATE OF LOUISIANA v. LEE SENTELL HUDSON IN RE LEE SENTELL HUDSON
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B. DARENSBURG, DIVISION "C", NUMBER 19-4039
CONFIDENTIAL LSA-RS 46:1844(W) ATTORNEYS OF RECORD ONLY
Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg
Relator, Lee Sentell Hudson, seeks review of the trial court's granting of the State's notice of intent to use the electronic recording of child abuse victim under La. R.S. 15:440.1. For the following reasons, we find the trial court did not err in ruling that the victim's videotaped statement can be admitted into evidence at trial.
On September 9, 2019, the Jefferson Parish District Attorney filed a bill of information charging defendant with sexual battery upon a known juvenile wherein the child was under the age of thirteen in violation of La. R.S. 14:43.1. The State filed a notice of intent to use electronic recording of child abuse victim pursuant to La. R.S. 15:440.1. In response, defendant sought to exclude the videotape asserting that the tape violated the confrontation clause and that La. R.S. 15:440.1 et seq. does not apply. On November 16, 2021, after a hearing, the trial court granted the State's notice. This writ application follows.
Defendant argues that while the alleged victim was a protected person when the video was made because she was under the age of seventeen, she is no longer a protected person because she is now almost eighteen years old, and therefore, La. R.S. 15:440.5 does not apply. Defendant also argues that La. R.S. 15:440.5 is unconstitutional under United States Supreme Court jurisprudence because he has the right to confront the victim at trial.
At the hearing, the State indicated that the alleged victim would testify. Thus, the trial court rejected defendant's argument that the videotape violated his constitutional right to confront the witness. In response to defendant's argument that La. R.S. 15:440.5 does not apply, the State argued, and the trial court agreed, that the alleged victim was a protected person because she was under the age of seventeen at the time the videotape was made.
La. R.S. 15:440.2 A(1) provides that a court with original criminal jurisdiction may require that a statement of a protected person be recorded on videotape. A "protected person" includes any person who is a victim of a crime or a witness in a criminal proceeding and who is under the age of seventeen years. La. R.S. 15:440.2 C(1). This videotape shall be available for introduction as evidence in a juvenile proceeding or adult criminal proceeding. La. R.S. 15:440.2 A(3). La. R.S. 15:440.3 states that the videotape authorized by this Subpart is admissible in evidence as an exception to the hearsay rule.
Legislation is the solemn expression of legislative will. La. C.C. art. 2; Marino v. Gulf Coast Bank & Tr. Co., 15-307 (La.App. 5 Cir. 12/23/15), 184 So.3d 153, 155-56. The determination of legislative will must start with the language of the statute itself. Id. The words must be interpreted as they are generally understood. La. C.C. art. 11; Marino, supra.
La. R.S. 15:440.1 provides, "It is declared to be in the best interest of the state that protected persons be spared from crimes of violence, and that persons who commit such crimes be prosecuted with a minimum of additional intrusion into the lives of such protected persons." La. R.S. 15:440.2(C)(1) defines protected persons as any person who is a victim of a crime or a witness in a criminal proceeding and who is under the age of seventeen years. Upon review of the wording of the relevant statutes, we find that the relevant time to consider the victim's age is at the time the videotape is recorded not at the time of trial when the videotape will be used.
In State in Interest of E.S., 18-1763 (La. 10/22/19), 285 So.3d 1046, 1058, the Louisiana Supreme Court concluded that the victim in that case was a protected person under the statute because she was under the age of seventeen at the time of the offense and at the time of the CAC interview. In State v. In re A.M., 08-2493 (La. 11/21/08), 994 So.2d 1277, 1278, the Louisiana Supreme Court concluded that the victim and the eyewitness in that case were protected persons under the statute because they were under the age of seventeen at the time the interviews were videotaped.
In the present case, the victim was under the age of seventeen at the time of the offense and at the time the videotape of the interview was made. Because the victim was under the age of seventeen at the time of the offense and at the time that the videotape was made, we find that she is a protected person under La. R.S. 15:440.2, et seq., and therefore, under La. R.S. 15:440.4(A), the videotape can be offered into evidence. Further, the alleged victim is going to testify at trial, and thus, defendant's counsel will have an opportunity to question this witness.
At the hearing, both counsel for defendant and the prosecutor agreed that the victim was under the age of seventeen at the time the videotape was made.
In light of the foregoing, we find no error in the trial court's ruling and deny this writ.
WRIT DENIED
SJW
RAC
HJL
SUSAN M. CHEHARDY CHIEF JUDGE, FREDERICKA H. WICKER, JUDE G. GRAVOIS, MARC E. JOHNSON, ROBERT A. CHAISSON, STEPHEN J. WINDHORST, HANS J. LILJEBERG, JOHN J. MOLAISON, JR. JUDGES
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 02/25/2022 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:
E-NOTIFIED 24th Judicial District Court (Clerk) Honorable June B. Darensburg (DISTRICT JUDGE) Steven Lemoine (Relator), Thomas J. Butler (Respondent)