State v. Torres

• Docket Number: 2023 KA 0445
• Decision Date: 09 November 2023
• Parties: STATE OF LOUISIANA v. NELSON JOEL TORRES
• Court: Court of Appeal of Louisiana — District of US

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STATE OF LOUISIANA v. NELSON JOEL TORRES

No. 2023 KA 0445

Court of Appeals of Louisiana, First Circuit

November 9, 2023

APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT PARISH OF ST TAMMANY, STATE OF LOUISIANA NUMBER 11682020, DIVISION H HONORABLE WILLIAM BURRIS, JUDGE

Warren LeDoux Montgomery District Attorney Mathew Caplan J. Bryant Clark Covington, Louisiana Counsel for Appellee State of Louisiana

Jane Louise Beebe Addis, Louisiana Counsel for Defendant -Appellant Nelson Joel Torres

BEFORE: GUIDRY, C.J., CHUTZ, AND LANIER, JJ.

CHUTZ J.

The defendant, Nelson Joel Torres, was charged by bill of information with one count of sexual battery of a victim under the age of thirteen years, a violation of La. R.S 14:43.1. He pled not guilty and, following a jury trial, was found guilty as charged. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal, and sentenced him to eighty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating two assignments of error (1) the trial court erred in assisting the prosecution; and (2) the trial court erred in denying the defendant's two motions for mistrial. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

In June of 2019, when A.F.^[1] was twelve years old,^[2] she moved from Guatemala to the United States to live with her aunt, A.F.S., in Slidell, Louisiana. The defendant, who was A.F.S.'s boyfriend at the time, and several of A.F.'s relatives also lived in the home.

On the morning of October 25, 2019, when A.F. exited her bedroom, the defendant picked her up and carried her into his bedroom that he shared with A.F.S. The defendant put A.F. on the bed and took off her clothes. He then got on top of A.F., covered her mouth, and inserted his penis into her vagina. After the defendant was finished, he showered and left to visit his friends. A.F. then went to the bathroom and noticed that she was bleeding.

Upon arriving home from work around 10:30 a.m., A.F.S. found A.F. sitting at the table looking at a tablet. The tablet displayed inappropriate Facebook messages between A.F. and the defendant. Upon noticing blood on the back of A.F.'s shirt, A.F.S. asked her if the defendant hurt her. A.F. began to cry and said the defendant sexually abused her.

With the help of a friend who spoke English, A.F.S. called the police. Detective Jeremy Bertucci with the Slidell Police Department met with A.F.S., A.F., and their friend, who described the incident and translated the Facebook messages between A.F. and the defendant. Detective Bertucci then obtained and executed search warrants for A.F.S.'s home, the defendant's phone records, and the defendant's Facebook records. After A.F. confirmed in her forensic interview that the defendant raped her, Detective Bertucci prepared and applied for an arrest warrant for the defendant.

The defendant was thirty-six years old on October 25, 2019.^[3] He denied sexually assaulting A.F. or sending her inappropriate Facebook messages.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant argues the trial court erred by assisting the prosecution during a bench conference, thereby violating his right to a fair trial. Specifically, the defendant contends that the trial judge improperly aided the prosecution when he stated that: (1) he wanted A.F. to identify the defendant; and (2) if counsel did not ask A.F. to identify the defendant, then he would ask her.

The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted. La. C.Cr.P. art. 772; State v. Strickland, 94-0025 (La. 11/1/96), 683 So.2d 218, 237. A trial judge may ask clarifying questions but must do so "in an impartial manner without impliedly commenting on the facts." State v. Burrell, 561 So.2d 692, 702 (La. 1990), cert, denied, 498 U.S. 1074, 111 S.Ct. 799, 112 L.Ed.2d 861 (1991). See La. C.Cr.P. art. 772. The no-judge-comment rule is designed to safeguard the role of the jury as the sole judge of the facts on the issue of guilt or innocence. If the effect of a question or comment is to permit a reasonable inference that it expresses or implies the judge's opinion as to the defendant's innocence or guilt, this constitutes a violation of the defendant's statutory right to no-comment and thus requires reversal. State v. Williams, 2020609 (La.App. 3d Cir. 10/20/21), 329 So.3d 885, 896; State v. Broome, 49,004 (La.App. 2d Cir. 4/9/14), 136 So.3d 979, 989, writ denied, 2014-0990 (La. 1/16/15), 157 So.3d 1127. To constitute reversible error, however, the effect of the improper comment must be such as to have influenced the jury and contributed to the verdict. State v. Reed, 2010-0571 (La.App. 1st Cir. 10/29/10), 2010 WL 4272897, at *3 (unpublished); see State v. Glynn, 94-0332 (La.App. 1st Cir. 4/7/95), 653 So.2d 1288, 1306, writ denied, 95-1153 (La. 10/6/95), 661 So.2d 464.

Upon the State's completion of A.F.'s direct examination, the trial judge asked all counsel to approach the bench. At that time, the following discussion was held:

[THE COURT]: Either I'm going to ask it or either of you can ask it. I want it to be asked, if you don't feel like you should, that's certainly fine. But I'm going to, if either of you request to ask it, so that I don't ask questions, say as much. I want her to identify Nelson to make sure that we're all talking about the same person. And I understand that's rather sensitive because she's young. I think for my clarification, I would like for it to be. Because nobody has actually, to my recollection -

[THE STATE]: No.

[THE COURT]: - identified him. Would you rather do that or would you want me?

[DEFENSE]: I would prefer the Court not ask a question if we can avoid that. I would also prefer the Court not direct or suggest that to the State to help improve their case.

[THE COURT]: I'm not improving anything. I think I do have an obligation that any questions in my mind, even though I'm not the fact finder as far as guilty or not guilty, I need it straight in my mind. And I feel better, if he is found guilty, I'm doing the right thing as well. I'm not suggesting anything. I'm making sure everybody has a fair shot. And the record is complete for appeal. I will note the objection.

[THE STATE]: She might say he is not.

Thereafter, the State resumed questioning A.F. on the record. The State asked A.F. if she recognized the defendant, who was sitting in the courtroom. A.F. responded affirmatively and identified the defendant by his first name, Nelson. She further confirmed the defendant was the man who hurt her.

On appeal, the defendant argues that the trial court erroneously intervened and assisted the State in proving its case against him, thereby violating his right to a fair trial. The defendant acknowledges that the trial judge did not make the comments in front of the jury, but contends that had the trial judge not intervened, he would have had a valid argument for a directed verdict because the State failed to prove his identity as the perpetrator.

Based on our review of the record, we cannot say that the trial judge's comments influenced the jury. As conceded by the defendant himself, the trial judge's comments were made during a bench conference outside the presence of the jury. There is no evidence in the record, nor does the defendant claim, that the jury overheard the comments or that the comments influenced the jury and contributed to the jury's verdict against the defendant. See State v. Thomason, 353 So.2d 235, 240 (La. 1977).

Prior to the judge's comments, A.F. repeatedly testified that "Nelson" was the person who hurt her, thereby impliedly identifying the defendant. We cannot say the judge made a comment on the facts, and he clearly did not express or imply his opinion as to the defendant's innocence or guilt. Finally, even if the State had failed to ask A.F. to identify the defendant, the trial judge would have been permitted to ask A.F. because it was for the jury's clarification. See State v. Coleman, 2012-1408 (La.App. 4th Cir. 1/8/14), 133 So.3d 9, 22-23 (trial judge's question to witness during direct examination, in the presence of the jury, was not impermissible comment on the evidence, where judge was merely seeking clarification for the jury as to whether victim identified the defendant as the shooter). Therefore, we find that the trial judge's comments during a bench conference outside the presence of the jury do not constitute error.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant argues the trial court erred in denying his two motions for mistrial after the State and a State's witness informed the jury that the defendant was incarcerated, and that these comments were prejudicial and violated his right to a fair trial.

Upon motion of a defendant, a mistrial shall be ordered when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by La. C.Cr.P. arts. 770 or 771. See La. C.Cr.P. art. 775. La. C.Cr.P. art. 771 provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the

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