State Of Louisiana v. Nelson Joel Torres

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 KA 0445

STATE OF LOUISIANA

VERSUS

NELSON JOEL TORRES

DATE OF JUDGMENT: NOV 0 9 2023

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

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

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

Disposition: CONVICTION AND SENTENCE AFFIRMED.

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

Z
In June of 2019, when A.F. 1 was twelve years old, 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

In order to protect the identity of the victim, we reference the victim and their family members
by their initials. See La. R.S. 46: 1844( W).

2 A.F.' s date of birth is April 4, 2007.

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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.

1111196), 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

3 The defendant' s date of birth is September 21, 1983.

3

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, 2020-

609 ( La. App. 3d Cir. 10120121), 329 So. 3d 885, 896; State v. Broome, 49, 004 ( La.

App. 2d Cir. 419114), 136 So. 3d 979, 989, writ denied, 2014- 0990 ( La. 1116115),

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. 10129110), 2010 WL 4272897,

at * 3 ( unpublished); see State v. Glynn, 94- 0332 ( La. App. 1st Cir. 417195), 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

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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

continents 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

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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 mind of the jury:

1) When the remark or comment is made by the judge,
the district attorney, or a court official, and the remark
is not within the scope of Article 770; or

2) When the remark or comment is made by a witness or
person other than the judge, district attorney, or a
court official, regardless of whether the remark or
comment is within the scope of Article 770.

Cal

In such cases, on motion of the defendant, the court may grant a
mistrial if it is satisfied that an admonition is not sufficient to assure
the defendant a fair trial.

Because the statements at issue are governed by La. C. Cr.P. art. 771, further

discussion of La. C.Cr.P. art. 770 is pretermitted.4 See also State v Dardar, 2021-

0860 ( La. App. 1 st Cir. 2/ 25/ 22), 340 So.3d 1110, 1119, writ denied, 2022- 00533

La. 5/ 24/ 22), 338 So. 3d 1192.

The proper remedy for inappropriate remarks under La. C. Cr.P, art. 771 is an

admonishment directing the jury to disregard the remark. State v. Flowers, 2016-

0130 ( La. App. 1st Cir. 9119/ 16), 204 So. 3d 271, 284, writ denied, 2016- 1871 ( La.

9/ 6/ 17), 224 So. 3d 983. However, the court may grant a mistrial where an

admonition is insufficient and the prejudicial remark makes it impossible for the

defendant to obtain a fair trial, See La. C. Cr.P. art. 771; State v McIntosh, 2018-

0768 ( La. App. 1st Cir. 2/ 28119), 275 So. 3d 1, 4- 5, writ denied, 2019- 00734 ( La.

10121/ 19), 280 So. 3d 1175. A mistrial is a drastic remedy, which is warranted only

if a comment or remark results in substantial prejudice to the accused. State v.

Mullen, 2018- 0643 ( La. App. 1 st Cir. 12/ 21/ 18), 269 So. 3d 772, 787, writ denied,

2020- 00408 ( La. 10/ 6/ 20), 302 So. 3d 529. The determination of whether a mistrial

should be granted is within the sound discretion of the trial court, and the denial of

4 When a judge, district attorney, or court official makes an improper comment which falls under
the provisions enumerated in La. C. Cr.P. art. 770, a mistrial is mandatory. La. C. Cr.P. art. 770
provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or
comment, made within the hearing of the jury by the judge, district attorney, or a
court official, during the trial or in argument, refers directly or indirectly to:
1) Race, religion, color or national origin, if the remark or comment is not
material and relevant and might create prejudice against the defendant in
the mind of the jury;
2) Another crime committed or alleged to have been committed by the
defendant as to which evidence is not admissible;
3) The failure of the defendant to testify in his own defense; or
4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be
sufficient to prevent a mistrial. If the defendant, however, requests that only an
admonition be given, the court shall admonish the jury to disregard the remark or
comment but shall not declare a mistrial.

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a motion for mistrial will not be disturbed on appeal absent an abuse of discretion.

See Dardar, 340 So. 3d at 1119.

In the instant case, Ashley Myers, an investigator with the Department of

Children and Family Services (" DCFS"), testified regarding her involvement in the

case. On the day of the incident, Myers went to A.F. S.' s home to interview

everyone who was present, including A.F.S., A.F., A.F. S.' s cousin, and A.F. S.' s

two children. She then met with the defendant, law enforcement, and medical

professionals involved in the case. The State later followed up on this statement,

and the following exchange occurred:

THE STATE]: ... I think you said you interviewed the defendant,
Mr. Torres?
MYERS]: Yes.
THE STATE] : And he was not present at the home when you did
that interview?
MYERS]: No, he was not. I believe already incarcerated at
the time. But when I interviewed him, he was
incarcerated.

Defense counsel immediately moved for a mistrial on the basis that the State

was not allowed to present any evidence as to the defendant' s incarceration. The

State argued there was no overwhelming prejudice to the defendant, as the jury

would eventually learn that an arrest warrant was issued for the defendant. The

trial court denied the motion for mistrial, stating:

I' m going to deny the request for a mistrial. Simply because obviously
the jury knows that he was arrested, or else we wouldn' t be sitting
here in trial. And because there' s no information as to any current
status as an incarcerated individual or the duration of that

incarceration or anything else, that would seem to prejudice Mr.
Torres in the eyes of the jury.

Defense counsel asked the trial court to admonish Myers for mentioning the

defendant being incarcerated. Rather than giving an admonition which would

draw attention to the defendant' s incarceration, the trial court suggested that the

prosecutor " preface the question" in a way that would not elicit a response as to the

defendant' s incarceration status. At that point, the bench discussion concluded,

and the State resumed direct examination of Myers without further reference to the

defendant' s incarceration.

During the direct examination of the next State witness, A.F. S., the

following colloquy occurred between A.F. S. and the State:

THE STATE]: Okay. Before this attack happened, did you have
any anger or hate towards Nelson?
A.F. S.] : No.
THE STATE]: Did you think that, before this attack, you and

Nelson were in a happy relationship?
A.F. S.] : Yes.
THE STATE] : Have you profited or made money in any way
from Nelson going to jail, for —I' m sorry. There' s
no evidence of that. I misspoke. From the
allegation. Let me rephrase.

Defense counsel moved for a second mistrial, arguing that the prejudicial

effect of the second statement was cumulative. The State reiterated that the jury

would learn of the arrest warrant issued for the defendant, there was no evidence of

the defendant being arrested, and thus there was no prejudice to the defendant.

The trial court again denied the motion for mistrial, stating that " common sense

would indicate that on any [ charge of this type], these jurors are going to know that

he was arrested. And whether he bonded out or anything else, he certainly would

have been in jail at some point." The trial court admonished the jury and told them

to disregard the previous question asked by the State.

In State v Johnson, 343 So.2d 155, 161 ( La. 1977), the defendant argued he

was entitled to a mistrial when the trial court, during voir dire, referred to the fact

that the defendant had been incarcerated. Similar to the defendant' s argument

herein, the defendant in Johnson argued that the same principles which dictate that

an accused not be tried in prison uniform also prohibit reference to his

imprisonment. The trial court denied the motion for mistrial and admonished the

X

jury. In holding that a mistrial was not warranted under those circumstances, the

Louisiana Supreme Court stated:

An accused has the right to dress in civilian clothing at trial because
prison attire might unduly connote guilt. The remarks complained of
in the instant case merely drew attention to a prominent fact of the
trial --- that defendant had been formally accused of the crime for
which he was being tried. Although the fact of accusation may be
suggestive of guilt to some jurors, as the State argues in brief, it is an
incident of trial from which the jurors simply cannot be insulated.

Id.

Likewise, in State v. Robinson, 2008- 25 ( La. App. 5th Cir. 5127108), 986

So. 2d 716, 721, writ denied, 2008- 1527 ( La. 314109), 3 So. 3d 470, the State

questioned the defendant about being incarcerated since his arrest. The defendant

moved for a mistrial, and the trial judge denied the motion. Id., 986 So. 2d at 722.

The court of appeal found no abuse of discretion in the trial court' s denial of the

motion for mistrial, noting that the prosecutor' s remarks merely drew attention to

the fact that the defendant had been formally accused of the crime for which he

was being tried. Id., 986 So. 2d at 723.

We find no abuse of discretion in the trial court' s denial of the defendant' s

motions for mistrial. The remarks at issue fell under the discretionary mistrial

provisions of La. C. Cr.P. art. 771, rather than the mandatory mistrial provisions of

La. C. Cr.P. art. 770. Thus, the defendant was not entitled to relief beyond an

admonition unless the trial court found he was prejudiced by the remarks. See

State a Jackson, 396 So. 2d 1291, 1294 ( La. 1981). The defendant has failed to

demonstrate that the references to his pre- trial incarceration were prejudicial to the

extent that they deprived him of a fair trial. While the testimony elicited from

Myers referred to the defendant' s incarceration status, the statement was not a

connotation of guilt but rather " an incident of trial from which the jurors simply

cannot be insulated." See Johnson, 343 So. 2d at 161. Likewise, the prosecutor' s

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question was not unduly prejudicial to the defendant. See Robinson, 986 So. 2d at

722. The trial court' s admonition to the jury to disregard the prosecutor' s question

referencing the defendant' s incarceration cured prejudice, if any, to the defendant.

See Flowers, 204 So. 3d at 284- 85; Johnson, 343 So. 2d at 161.

As to Myers' comments, although defendant initially sought that the trial

court admonish the jury, when it did not, defendant did not object. The State

presented extensive evidence of the defendant' s guilt via medical and forensic

evidence, the testimony of the victim, A.F., text messages between the defendant

and A.F., and the testimony of Detective Jeremy Bertucci, who prepared the arrest

warrant for the defendant. Thus, any error in the failure of the trial court to

admonish the jury as to Myers' comments was harmless. See State v Howard,

2017- 0779 ( La. App. 1 st Cir. 12121117), 2017 WL 6524547, * 5 ( unpublished), writ

denied, 2018- 0165 ( La. 11120118), 256 So. 3d 998 ("[ T] he failure of a trial court to

admonish the jury is considered harmless error when there is substantial evidence

of the defendant' s guilt."),

Accordingly, we are convinced that any passing references to the

defendant' s incarceration was highly unlikely to have affected his substantial

rights. See State v. Caminita, 2016- 0121 ( La. App. 1st Cir. 9116116), 203 So. 3d

1100, 1106, writ denied, 2016- 2045 ( La. 916117), 224 So.3d 988.

As stated by the Louisiana Supreme Court in Johnson, remarks referring to

the defendant' s incarceration merely draw attention to the obvious fact that cannot

be avoided by the jury — that the defendant was formally accused of the crime for

which he is being tried. Johnson, 343 So. 2d at 161. Therefore, the defendant was

not deprived of his right to a fair trial, and the trial court did not abuse its

discretion in denying the defendant' s motions for mistrial. Accordingly, this

assignment of error is without merit.

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DECREE

For these reasons, we affirm the conviction and sentence of defendant,

Nelson Joel Torres.

CONVICTION AND SENTENCE AFFIRMED.

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