STATE of Louisiana v. David J. GUIDROZ
No. 86-KA-114
Court of Appeal of Louisiana, Fifth Circuit
November 10, 1986
498 So. 2d 108
Before KLIEBERT and WICKER, JJ., and NACCARI, J. Pro Tem.
Milton P. Masinter, New Orleans, for defendant-appellant.
KLIEBERT, Judge.
David J. Guidroz, defendant, was charged by bill of information with molestation of a juvеnile in that he, being over the age of seventeen, and having a position of supervision and control over a minor, did commit a lewd and lascivious act upon her person, in violation of
During the summer of 1985, the twelve-year old victim, her mother, a ten-year old friend, and a friend‘s mother watched a television program entitled “Good Touches, Bad Touches“. During the program the victim became visibly agitated, and after it ended she informed first her friend‘s mother and then her own mоther that the defendant had in the past rubbed her breasts and “between her legs.” The defendant was a former husband of the victim‘s mother, and the victim and her stepbrother on infrequent occasions stayed overnight at the defendant‘s residence.1 The incidents allegedly took place three to four times a year over a four year period.
The victim‘s mother confronted the defendant, who at first did not respond to the accusations and thereafter denied that the incidents had occurred. During the course of the subsequent police investigation, Deputy Maggie Pernia recorded video and audio tapes of a statement, given by thе victim, wherein she reiterated the accusations against the defendant. The videotape was introduced into evidence by the State and was viewed by the jury. The tape was recorded pursuant to
Defendant‘s first assignment of error relates to the videotape. He states that upon attempting to review the tape in prepаration for appeal he discovered it is blank and requests that a new trial be granted based upon the lack of a complete record from which to perfect the appeal. However, thе court has reviewed the videotape and found that the victim‘s pre-trial statement is present thereon. Consequently, this assignment is meritless.
In his second assignment defendant contends highly prejudicial and inadmissible evidencе of other crimes allegedly committed by the defendant was introduced by the State. Immediately prior to trial, the State filed a Notice of Intention to Use Evidence of Other Crimes and therein stated the evidence concerned a lewd and lascivious act defendant allegedly committed upon the person of a friend of the victim. The stated purpose of the evidence was to
During trial, the State called as a witness a fourteen-year old friend of the victim. She testified that while an ovеrnight guest at the defendant‘s residence, the defendant approached her, rubbed her back and attempted to rub her breasts. Defense counsel lodged no objections to the testimony in the trial court. He rаises the objection for the first time on appeal.
Defendant had ample opportunity both prior to and during trial to object to the evidence presented by the State. As he failed to do so, the error alleged herein has not been properly рreserved for review by this court.
This assignment of error is meritless.
In his next assignment defendant contends the trial court erred in allowing the jury to view the videotape and allowing the State to introduce the audio and video tapes into evidence, over defense counsel‘s objection. The basis for the objection was that the probative value of the exhibits was outweighed by its prejudicial effect. Defendant asserts other grounds for the objection on appeal. As a general rule, a defendant is limited to the grounds for objections articulated at trial; a new basis for objection, albeit meritorious, cannot be raised for the first time on appeal.
Defendant first contends that, as the tapes were not recorded pursuant to a motion by the court, the district attorney, a parish welfare unit or agency, or the Department of Health and Human Resources, they are unauthorized and hence inadmissible. While
Defendant next contends the State failed to show that Deputy Pernia “proceeded along the specific regulations or received the mandated training and certification” required by
Finally, defendant contends that introduction of the videotape violated his Sixth Amendment right to confront his аccusers.
The record reflects that defense counsel viewed the videotape prior to trial. After the tapе was viewed by the jury, the victim was called to the stand and testified on direct. On cross-examination defense counsel inquired into all relevant details and further pointed out minor inconsistencies between the videotaped statement and the victim‘s testimony. Under these circumstances, we find the defendant‘s constitutional right of confrontation was not violated. See State v. Feazell, 486 So.2d 327 (3rd Cir.1986).
In his final assignment of error, defendant contends the trial court errеd in sustaining the State‘s objection when defense counsel attempted to impeach the testimony of the victim‘s mother. On cross-examination, the victim‘s mother indicated she had never discussed the subject of child abuse with the defendant. Defense counsel called the defendant as a witness and sought to elicit testimony to the effect that the victim‘s mother informed him, prior to their marriage, that she had been an abused child, that her father was incarcerated in Angola State Prison for abusing her, and that she felt the defendant had the capability of abusing the victim. His testimony was proffered by defense counsel out of the presence of the jury.
The State objected to the proffered testimony on grounds of hearsay and relevancy. Defense counsel contended the testimony showed the witness’ bias and that she had made prior inconsistent statements. The trial judge held the proffered testimony involved collateral issues not relevant to the guilt or innocence of the accused and sustained the State‘s objection to the line of questioning. On appeal, dеfendant contends he was denied the right of impeachment.
Both the State and the defense have the right to impeach the testimony and credibility of every witness sworn on behalf of the other side.
“Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order thаt the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.”
The rationale for requiring strict cоmpliance with the foundation requirements is to obviate surprise and to let the witness either deny or explain the inconsistency; the witness can do neither unless he is informed which statement he is dealing with. See State v. West, 437 So.2d 256 (La.1983); State v. Heard, 408 So.2d 1247 (La.1982). In the instant case, defense counsel, during cross-examination of the victim‘s mother, did not ask her whether she had made any statement inconsistent with her testimony, nor did he attempt to call her attention to the time, place or сircumstances under which the alleged statement was made. As defense counsel did not lay the required foundation, evidence of prior inconsistent statements made by the witness was inadmissible. State v. West, supra; State v. Heard, supra.
This assignment of error is meritless.
For the foregoing reasons, the conviction and sentence are affirmed.
AFFIRMED.
KLIEBERT
JUDGE