Opinion
2021-CA-0368
08-10-2021
VELVA MCKINSEY v. ERNEST CASTLE
Nicholas J. Hite THE HITE LAW GROUP, LLC COUNSEL FOR PLAINTIFF/APPELLEE Taetrece Harrison ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLANT
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-00320, DIVISION “I-14” Honorable Lori Jupiter, Judge
Nicholas J. Hite
THE HITE LAW GROUP, LLC
COUNSEL FOR PLAINTIFF/APPELLEE
Taetrece Harrison
ATTORNEY AT LAW
COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown)
PAULA A. BROWN, JUDGE
This case arises out of alleged domestic abuse. Plaintiff/Appellee, V.A.M. ("Plaintiff") filed a petition for protection from abuse (the "Petition") against, Defendant/Appellant, E.J.C. ("Defendant") for herself and on behalf of her two minor children, E.M. and E.C. Following a hearing, the district court granted an eighteen (18) month order of protection in favor of Plaintiff and against Defendant. From this judgment, Defendant seeks appellate review. For the reasons set forth below, we vacate the district court's judgment and remand this matter to the district court for further proceedings consistent with this opinion.
We use the initials of the parents and minor children to maintain the minors' identity and confidentiality. See uniform Rules - Courts of Appeal, Rule 5-2.
FACTUAL AND PROCEDURAL HISTORY
On March 29, 2021, Plaintiff filed, in the district court, a petition for protection from abuse, pursuant to La. R.S. 46:2131 et seq., against Defendant on behalf of herself, and her two minor children. Plaintiff alleged that she and Defendant formerly dated and cohabitated, and they shared a child in common, E.C. Plaintiff further alleged Defendant threatened her with body injury, threatened her life, and inflicted verbal, emotional and mental abuse upon her. Plaintiff averred the most recent incidents of abuse, which caused her to file the Petition, were Defendant's threatening text messages. Plaintiff further alleged that Defendant cursed her all the time, threw things, and that he once threw a plant that struck her.
E.M. is not Defendant's child.
Specifically, Plaintiff alleged Defendant sent the following text:
• 3/29/21 "[Defendant] threaten to call my job and tell them to pull my hair because I would have weed in my system from eating edibles."
• 3/26/21 "Text - [W]atch and see what it get[s] you. I bet I go to jail on my child life[.] [M]ake a mistake. Ask Lori if I'm scared of going to jail."
• 3/26/21 "I won't curse you anymore. I don't want to keep making him [E.C.] feel bad so I [will] stop calling you names in front of him."
• 3/26/21 "[If] I can't come to Ethan's events or there will be problems."
• 3/24/21 "Text - [Defendant] called me a stupid b**** and a f****ing thief."
• 3/24/21 "[N]o good b****[.] [I] told you I can't come get my son until Friday. [I] told you [you] was (sic) a dumb b****. I f***ing hate you."
• 3/22/21 "[Defendant] called me a b****[.]"
• 3/22 "[D]umb b*****, f****ing loser . . . f*** you b*****. . . . if it wasn't for [E.C] I would blast the f*** out of you on live."
• 3/19 "You and your family ain't s**t b****[.] . . . b****[, ] kill yourself please. .
• 3/17/21 "I will never treat my son bad[.] [T]hat was anger towards you taken out on me because he was around me."
Plaintiff prayed for an order of protection to prohibit Defendant from abusing, harassing, assaulting and threatening her and her minor children; to prohibit Defendant from contacting her by any means, including text messages; to prohibit Defendant from going within 100 yards of her home, work or the children's schools; and to award Plaintiff temporary custody of E.C. Plaintiff also requested that the district court order Defendant to attend professional counseling or a court-approved domestic abuse intervention program.
On March 29, 2021, the district court, finding that the allegations presented in Plaintiff's petition for protection from abuse constituted an immediate and present danger to Plaintiff's physical safety, granted a temporary restraining order ("TRO") against Defendant. The district court, however, denied the TRO as to the minor children, and Plaintiff's request for temporary custody of E.C. The TRO prohibited Defendant from contacting or going within 100 yards of Plaintiff except as it related to E.C. and/or any custodial exchanges of E.C, and ordered Defendant to appear for trial on the Petition on April 13, 2021.
On April 13, 2021, Plaintiff and Defendant appeared for trial-Plaintiff was represented by counsel, and Defendant appeared pro se. Before trial commenced, Defendant was afforded an opportunity to continue the matter; however, he chose to proceed in proper person. Plaintiff and Defendant were the only ones to testify at the hearing. After the hearing, the district court granted Plaintiff's order of protection against Defendant for a period of eighteen (18) months. Defendant was ordered to surrender all firearms and was prohibited from possessing any firearms during the duration of the order. Defendant was also ordered not to go within 100 yards of Plaintiff, E.M. and E.C. Plaintiff was granted temporary custody of E.C., and Defendant was ordered to stay away from Plaintiff's residence, place of employment, and the minor children's schools. The district court also ordered Defendant to submit to and complete an anger management treatment program, an age-appropriate parenting education and skills course and a batterer's intervention program, before any visitation would be allowed. This order was then transmitted to the Louisiana Protective Order Registry.
On April 16, 2021, Defendant, through counsel, filed a motion for new trial, which the district court denied on April 19, 2021. Defendant filed a motion and order for appeal on April 21, 2021, which the district court granted the same day. On April 26, 2021, Defendant filed a motion and order to stay all proceedings, pending the appeal; the order was granted by the district court.
On June 16, 2021, this Court ordered the district court to issue a per curiam, clarifying the April 26, 2021 order that granted a stay of all proceedings. The district court issued its' per curiam on June 18, 2021, wherein it explained the order of protection was to continue, during the pendency of the appeal.
This timely filed appeal followed.
DISCUSSION
On appeal, Defendant asserts several assigned errors, which we summarize as follows:
1. The district court erred in granting an order of protection against Defendant because the acts alleged by Plaintiff only establish defamation or harassment, which is not within the ambit of La. R.S. 46:2131 et seq.;
2. The district court erred in admitting, as exhibits, photocopies of text messages between Plaintiff and Defendant into evidence without proper authentication and in not inquiring whether Defendant had any objections to the introduction of exhibits;
3. The district court erred by not allowing Defendant to establish a defense; and
4. The district court erred by allowing Plaintiff's testimony to expand the filed petition for protection from abuse.
ORDERS OF PROTECTION
In domestic violence cases, orders of protection are issued pursuant to La. R.S. 46:2131 et seq, the Domestic Abuse Assistance Act. The purpose of the statute is "provide relief to victims of domestic violence which will afford the victim immediate and easily accessible protection." Alfonso v. Cooper, 14-0145, p. 13 (La.App. 4 Cir. 7/16/14), 146 So.3d 796, 805 (citing Vallius v. Vallius, 10- 0870, p. 5 (La.App. 4 Cir. 12/8/10), 53 So.3d 655, 658, quoting Branstetter v. Purohit, 06-1435, p. 4 (La.App. 4 Cir. 5/2/07), 958 So.2d 740, 743). In accordance with La. R.S. 46:2135 and 46:2136, the issuance of a protective order requires that there be "good cause shown." D.M.S. v. I.D.S., 14-0364, p. 15, 225 So.3d 1127, 1137 (La.App. 4 Cir. 3/4/15). Good cause shown, as defined in La. R.S. 46:2135, is a showing of immediate and present danger of abuse. Id. "'Domestic abuse' includes but is not limited to physical or sexual abuse and any offense against the person, physical or non-physical, as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family member, household member, or dating partner against another." La. R.S. 46:2132(3). "General harassment and family arguments, if they do not rise to the threshold of physical or sexual abuse in violation of the criminal code, or an offense against the person, are not within the ambit of the Domestic Abuse Assistance Act." D.M.S., 14-0364, p. 15, 225 So.3d at 1137 (citing Harper v. Harper, 537 So.2d 282 (La.App. 4th Cir. 1988); Lee v. Smith, 08-455, p. 9 (La.App. 5 Cir. 12/16/08), 4 So.3d 100, 106; Rouyea v. Rouyea, 00-2613 (La.App. 1 Cir. 3/28/01), 808 So.2d 558).
La. R.S. 46:2132(3) was amended by 2015 La. Act 85, to also include any "non-physical" offense against a person.
STANDARD OF REVIEW
"An appellate court reviews domestic orders for an abuse of discretion." Patterson v. Charles, 19-0333, p. 9 (La.App. 4 Cir. 9/11/19), 282 So.3d 1075, 1082 (citation omitted). "The trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, and its credibility determinations will not be disturbed on appeal absent manifest error." Id. (citation omitted). In addition, as to evidentiary issues, "[a] trial court is granted broad discretion in its rulings on evidentiary issues which will not be disturbed on appeal absent a clear abuse of that discretion." Cipolla v. Cox Commc'ns La., LLC, 19-0509, p. 2 (La.App. 4 Cir. 8/5/20), 305 So.3d 911, 914 (quoting Freeman v. Phillips 66 Co., 16-0247, p. 4 (La.App. 4 Cir. 12/21/16), 208 So.3d 437, 441). The Court is also "required to examine the record . . . for legal error." St. Germain v. St. Germain, 20-0146, p. 9 (La.App. 4 Cir. 3/17/21), 315 So.3d 443, 450 (citing City of New Orleans v. Badine Land Ltd., 07-1066, p. 3 (La.App. 4 Cir. 5/21/08), 985 So.2d 832, 834). "[L]egal errors are reviewed under the de novo standard of review." Id. (quoting 1026 Conti Condominiums, LLC v. 1025 Bienville, LLC, 15-0301, p. 5 (La.App. 4 Cir. 12/23/2015), 183 So.3d 724, 727).
"A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial." Id. (citation omitted). "Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights." Id. (quoting Evans v. Lungrin, 97-0541, p. 7 (La. 2/6/98), 708 So.2d 731, 735). "Where an error of law taints the record, we are not bound to affirm the judgment of the lower court." Id. (quoting City of New Orleans, 07-1066, p. 3, 985 So.2d at 834-35). However, "[a]s long as the trier of fact's findings are reasonable in light of the record as a whole, the appellate court will affirm." Shaw v. Young, 15-0974, p. 4 (La.App. 4 Cir. 8/17/16), 199 So.3d 1180, 1184 (citation omitted).
With the applicable law and standards of review in mind, we turn to Defendant's assigned errors. Because Defendant has raised, as assigned errors, evidentiary and procedural due process issues, we will first address those errors.
Authentication of and objection to the text messages
Defendant argues that the district court improperly admitted Plaintiff's exhibits (photocopies of screen shots of the text messages between her and Defendant) into evidence on the two grounds: 1) Plaintiff failed to authenticate the photocopies of the text message; and 2) Defendant was not afforded an opportunity to object to the exhibits before the district court admitted them.
Louisiana Code of Evidence article 901(A) provides, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." "[I]t is a fundamental law of evidence that an article or substance which is introduced as demonstrative evidence, or to which a witness is asked to testify, must be sufficiently identified as the one involved in the occurrence in question." State v. Lee, 01-2082, p. 9 (La.App. 4 Cir. 8/21/02), 826 So.2d 616, 624, (quoting State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045). Authentication of evidence can be accomplished by identifying the date, time, method in which the evidence was obtained, and what the evidence depicted. Roberts v. Boxer, 19-1038, pp. 8-9 (La.App. 4 Cir. 11/18/20), 311 So.3d 513, 520 (citing Markerson v. Composite Architectural Design Sys., LLC, 17-1252, pp. 13-14 (La.App. 1 Cir. 7/10/18), 255 So.3d 1065, 1075).
This Court has long held while pro se litigants should generally be given wide latitude, as they are at a disadvantage having no formal training in the law and rules of procedure, a pro se litigant, likewise, assume responsibility for his own lack of knowledge of the law, and must carry his burden of proof to be entitled to relief. See Patterson v. Charles, 19-0333, p. 34 (La.App. 4 Cir. 9/11/19) 282 So.3d 1075, 1096 (citing Succession of Gilbert, 16-0609, 2017 WL 5167819, at *1 (La.App. 4 Cir. 11/8/17). "While there is no affirmative duty to assist an unrepresented party, in a non-jury case, the court does have an affirmative duty to protect the trial record." Borgos v. Buras, 611 So.2d 764, 769 (La. 4th Cir. 12/15/92). The Borgos Court continued:
A trial judge must adjudicate cases based on evidence in conformity with the Louisiana Code of Evidence and the applicable jurisprudence. An unrepresented party is generally unfamiliar with the rules of evidence and the requirement of a contemporaneous objection. It is therefore the obligation and responsibility of the trial judge to regulate the evidence at trial. Evidence that is patently inadmissible should be automatically excluded by the court without objection. The trial court has the inherent power and legal knowledge to control the admission or exclusion of evidence. However, a complete trial record must be developed and maintained when this type of incident occurs during trial. This principle is consistent with our community standard of justice. It provides a reasonable balance between the parties in an adversary system and allows the court to maintain control of the litigation. These principles apply only when a party is unrepresented and the other party is represented by counsel.Id.
Review of the record reflects that during direct examination, Counsel asked Plaintiff, as someone with personal knowledge of the substance of the text messages, to identify the photocopies of the text messages through the following pertinent exchange:
[COUNSEL FOR PLAINTIFF]: Do you recognize those documents?
[PLAINTIFF]: Yes.
[COUNSEL FOR PLAINTIFF]: What do you recognize them as being?
[PLAINTIFF]: Text messages between me and [Defendant].
[COUNSEL FOR PLAINTIFF]: May I approach the witness?
THE COURT:
You may.
[COUNSEL FOR PLAINTIFF]: So from this stack of documents[, ] I left you with the bottom packet on the stack, what is contained in that packet?
[PLAINTIFF]: Messages between me and him.
[COUNSEL FOR PLAINTIFF]: When you say "him" who are you referring to?
[COUNSEL FOR PLAINTIFF]: [Defendant].
[COUNSEL FOR PLAINTIFF]: Are you able to identify the date or time that these messages were sent?
[PLAINTIFF]: Yes, it says March 29 [the] 26 through the 29.
[COUNSEL FOR PLAINTIFF]: Are you able to identify from these printouts who is sending the message?
[PLAINTIFF]: Yes.
[COUNSEL FOR PLAINTIFF]: And so, the message in this particular packet, can you read the message starting from March 26, 2021, 9:01 p.m.
[PLAINTIFF]: Okay. "You knew I wasn't going, why did you come get him."
[COUNSEL FOR PLAINTIFF]: I apologize I know I just asked you to read them and I'm already interrupting you. For clarity those thought, you a [sic] able to determine if this is a message that you are sending to [Defendant] or that you are receiving from [Defendant]?
[PLAINTIFF]: This is received.
Plaintiff was then asked to read the text messages from the packet into the record and was subsequently questioned regarding the content of the messages. Afterwards, Counsel for Plaintiff, without objection from Defendant, offered filed and introduced into evidence photocopies of text messages dated March 26, 2021 through March 29, 2021, as Exhibit "A." We conclude Counsel for Plaintiff laid the proper foundation, and Plaintiff properly authenticated the photocopies of the text messages offered as Exhibit "A."
During his next line of questioning, Counsel for Plaintiff presented Plaintiff with a second packet of documents from the original stack of documents, which he asked her to identify. Plaintiff identified the packet as photocopies of the text messages between her and Defendant dated March 26, 2021, beginning at 10:47 a.m. Following Plaintiff's testimony regarding the second packet of documents, Counsel for Plaintiff, without objection, offered filed and introduced into evidence photocopies of text messages dated March 26, 2021, as Exhibit "B." We conclude Counsel for Plaintiff laid the proper foundation, and Plaintiff properly authenticated the photocopies of the text messages offered as Exhibit "B."
Turning to the third packet of documents presented to Plaintiff by her counsel, Plaintiff identified the packet as text messages between her and Defendant. Plaintiff was unable to identify the exact date the messages were sent or received, but testified that she received them a day or two before March 26, 2021. Plaintiff then proceeded to read the text messages into the record. Afterwards, the court engaged in the following colloquy with Counsel for Plaintiff:
THE COURT: [Counsel] I'm going to stop right now, I understand, is it necessary? I think you made your point with the text messages that you are attempting to make and looks like you have plenty more[.] I mean, I don't want, [Plaintiff] has read these, she's witnessed them, she's lived them[.] I don't (sic) necessary, the Court accepts what it is you're offering as testimony and I don't know if I am inclined to make her read them.
[COUNSEL FOR PLAINTIFF]: I certainly understand and we appreciate on behalf of my client, as Your Honor indicates you do understand the purpose which to be clear as to outline and demonstrating the habitual behavior of [Defendant] over a significant period of time and significant number of messages. Short of having [Plaintiff] read all of the messages I supposed I would ask that they be admitted into evidence [in globo] as exhibit [C] at this point.
THE COURT: I think the Court can accept that. I think that's fair.
[COUNSEL FOR PLAINTIFF]: I want to make sure that the Court is aware that the exhibits admitted in globo to align with the allegations in the petition.
THE COURT: The allegations in the petition, yes, I have found that she has been reading them because they are very specific.
[COUNSEL FOR PLAINTIFF] And in that case, Your Honor, I would offer, introduce into evidence and file into the record the totality of the text messages that have been identified by [Plaintiff] at the beginning of her testimony as being messages sent and received between herself and [Defendant]. The first page of messengers (sic) is the date and time stamp February 28, 2021, 9:32 p.m.
THE COURT: Okay.
[COUNSEL FOR PLAINTIFF] And they extend up until inclusive of what has been filed Exhibit A [and] B, which goes to March 26, 2021, but again some of those messages have already been admitted separately.
THE COURT: Okay, so the Court is going to accept those text messages that have been printed out as described by counsel.
Exhibit C, in globo, contained in the court record consists of one hundred eleven (111) pages.
Defendant argues the district erred in admitting into evidence, Exhibit C, in globo. We agree.
The district court-rather than allowing Plaintiff to testify to the specific documents which corresponded with Plaintiff's allegations raised in the Petition- allowed Counsel for Plaintiff to introduce into evidence multiple documents, identified as Exhibit C, in globo, which Plaintiff had not identified. In addition, Plaintiff offered no testimony as to the date and time these text messages were received. Thus, we conclude the text messages were not properly authenticated, and the district court erred, as a matter of law, in admitting Exhibit C, in globo, into evidence. This assignment of error has merit.
Next, Defendant contends the district court violated his procedural due process rights by failing to allow him to put forth a defense. Defendant submits the district court "barely" allowed him to present his case, and the district court reached its decision in this matter before the submission of all the evidence.
In response, Plaintiff, relying on this Court's decision in Patterson v. Charles, 19-0333 (La.App. 4 Cir. 9/11/19), 282 So.3d 1075, argues the district court amply provided Defendant the opportunity to address the court, cross-examine Plaintiff and testify on his own behalf. In Patterson, this Court affirmed the trial court's judgment, granting an order of protection from abuse against the defendant in favor of the plaintiff's minor child. On appeal, the defendant claimed due process violation because of the trial court's failure to allow her the opportunity to cross-examine the witness. This Court reaffirmed that "[p]rocedural due process safeguards a person's constitutional rights and requires that a person be given a meaningful opportunity to be heard." Id., 19-0333, p. 33, 282 So.3d at 1096 (citation omitted).
The Patterson Court further explained:
A trial judge has vast discretion in conducting a trial. A judge is required to conduct a trial in an orderly, expeditious manner and to control the proceedings so that justice is done. La. C.C.P. art. 1631. The judge's discretion includes the presentation of witnesses, La. C.C.P. art. 1632, as well as the admissibility of a witness's testimony. La. C.C.P. art. 1631. 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.Id. (citing Cooper v. Lacorte, 99-1726, p. 3 (La.App. 4 Cir. 5/17/00), 775 So.2d 4, 7)(internal quotation omitted). This Court found that "[the defendant] appeared, testified, and was addressed by the trial court and thus had the chance to raise any issues in the proceedings . . . but failed to do so. She also did not lodge any objections at the trial on the protective order. [The defendant] therefore was given a meaningful opportunity to be heard." The Court further noted that "both [the plaintiff] and [the defendant] were unrepresented by counsel and thus neither party had more of an advantage at trial." Id.
We find the case sub judice is distinguishable from Patterson. As noted supra, Plaintiff was represented by counsel and Defendant was not. During Plaintiff's direct examination, when shown Exhibits A, B, and C from her attorney, she was asked to read a part of the text message exchanges onto the record. Defendant was allowed only limited questioning by the district court regarding these exchanges. In addition, during Defendant's questioning of Plaintiff, the district court, in many instances, responded on behalf of Plaintiff. During Defendant's testimony, the district court limited Defendant's testimony and his responses to direct questions asked by the district court. Thus, based on our de novo review, we conclude Defendant was deprived of a meaningful opportunity to be heard and to defend the allegations.
However, our inquiry does not end here. Finding the district court erred in admitting unauthenticated evidence and depriving Defendant of a meaningful opportunity to present a defense, we must now evaluate whether these errors, cumulatively, are prejudicial to the extent they constitute reversible error. In Lovecchio v. Romain, 19-0779, 2020 WL 1465943, at *4 (La.App. 4 Cir. 3/25/20), writ denied, 20-00458 (La. 9/8/20), 301 So.3d 30 (Fromenthal [ v. Delta Wells Surveyors, Inc, ] 98-1525, p. 3, [La. App. 4 Cir. 10/4/00)] 776 So.2d [1] at 4), this Court opined that:
Cumulatively, "errors in evidentiary rulings, coupled with other improper circumstances occurring at trial, may be so prejudicial as to deprive the parties of a fair trial, and thus may constitute reversible error, even if none of the errors considered alone would be sufficient to rise to the level of reversible error."This Court continued, explaining:
"The test to be applied is whether the error was likely to have affected the final outcome of the trial so that it is reversible error instead of mere harmless error." Levy v. Lewis, 2016-0551, p. 19 (La.App. 4 Cir. 5/17/17), 219 So.3d 1150, 1162 (citation omitted). "An error is harmless when the verdict is surely unattributable to the error." Id. (citation omitted). "In conducting a harmless error review, we look at the totality of the record." Id.Lovecchio, 19-0779 2020 WL 1465943, at *5.
Based on our de novo review, we conclude that the district court's cumulative legal errors deprived Defendant of a fair trial. Accordingly, the judgment of the district court is vacated.
As a result, we pretermit discussion of the remaining assignments of error.
CONCLUSION
Based on the foregoing, we hereby vacate the district court's judgment and remand to the district court for further proceeding consistent with this opinion.
VACATED AND REMANDED
PAB
JCL
SCJ