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State v. Vallo

Court of Appeals of Louisiana, Second Circuit

January 11, 2017


         Appealed from the Twenty-Sixth Judicial District Court for the Parish of Webster, Louisiana Trial Court No. 82, 181 Honorable Parker Self, Judge

          THE FISER LAW FIRM, LLC By: Michael A. Fiser Counsel for Appellant

          J. SCHUYLER MARVIN District Attorney Counsel for Appellee

          JOHN M. LAWRENCE Assistant District Attorney

          Before WILLIAMS, PITMAN & STONE, JJ.

          PITMAN, J.

         Defendant Joshua Vallo seeks supervisory review of the denial of his application for post-conviction relief ("PCR"). For the following reasons, the writ is granted in part and the matter is remanded to the trial court for further proceedings.


         Defendant was charged with the aggravated incest of his eight-year-old stepdaughter, M.M., between the dates of April 1 and June 3, 2010. A jury trial was held on April 23-25, 2012. Defendant was convicted of aggravated incest and was sentenced to serve 50 years at hard labor, with the first 25 years to be served without the benefit of parole, probation or suspension of sentence. He appealed his conviction and sentence. On appeal, this court reversed his conviction and sentence after determining that his Sixth Amendment right to confrontation was violated during his trial when the state introduced a video of a forensic interview of M.M. ("the Gingerbread video") and then M.M. refused to answer questions during cross-examination, thereby bypassing the strict requirements for the introduction of videotaped statements found in La. R.S. 15:440.4. The state appealed and the supreme court, in a per curiam opinion, reversed this court's ruling, finding that the defense did not object to the admission of the Gingerbread video or when the victim refused to respond on four occasions during cross-examination. It found that La.C.Cr.P. art. 841 generally provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. State v. Vallo, 47, 995 (La.App. 2d Cir. 5/29/13), 117 So.3d 268, writ granted, judgment rev'd, 13-1369 (La. 1/10/14), 131 So.3d 835 ("Vallo I").

          On remand, this court affirmed Defendant's conviction and sentence. State v. Vallo, 47, 995 (La.App. 2d Cir. 2/13/14), 134 So.3d 1201 ("Vallo II"). Preceding its opinion addressing the excessive sentence issue, this court stated:

Before addressing the defendant's assignment of error regarding his sentence and notwithstanding the supreme court's reversal of our original ruling, we note that the defendant may still raise the issues concerning the Confrontation Clause violation, such as ineffective assistance of counsel in failing to object, in post-conviction proceedings.

         On May 11, 2015, Defendant, through counsel, filed an application for PCR, alleging that his constitutional rights under La. Const. Art. 1, § 16, and the Confrontation Clause of the Sixth Amendment to the U.S. Constitution had been violated when the state was permitted to present the Gingerbread video, which was the linchpin of its case against him, without his being able to effectively cross-examine M.M. He also asserted that his trial attorney was ineffective for failing to object to the admission of the Gingerbread video and to M.M.'s refusal to answer questions on cross-examination. He argued, citing Vallo I, that, had his attorney lodged such an objection, his conviction would have been reversed by this court. As such, he argued, but for his trial attorney's failure to object, the result of his trial would have been different.

         On October 19, 2015, the state filed an answer to Defendant's PCR application. It denied his allegations and argued that the Confrontation Clause issue had been fully litigated on appeal. It contended that Defendant failed to prove that his attorney was ineffective under the prejudice prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because he testified at trial and the jury was able to assess his testimony. It also argued that the Gingerbread video would have been admissible for impeachment purposes after Defendant had testified.

         A hearing was held on Defendant's PCR application on March 14, 2016, wherein defense counsel noted that he had not received notice of the hearing until the Wednesday before and suggested that he would have liked to "make the record of whether her (the trial attorney's) non-objection to the Confrontation Clause issue would've been a strategy decision." He later asked the court, "And I don't know if it would-if it would test the Court's patience or if it would be to please the Court, may we hold this hearing open ...

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