Opinion
2014 KA 0022
09-19-2014
STATE OF LOUISIANA v. NELSON TED LOPEZ
Walter P. Reed District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana Kathryn W. Landry Special Appeals Counsel Baton Rouge, Louisiana Bruce G. Whittaker New Orleans, Louisiana Counsel for Defendant-Appellant Nelson Ted Lopez
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 494721, DIVISION E, PARISH OF ST.TAMMANY
STATE OF LOUISIANA
HONORABLE WILLIAM J. BURRIS, JUDGE Walter P. Reed
District Attorney
Covington, Louisiana
Counsel for Appellee
State of Louisiana
Kathryn W. Landry
Special Appeals Counsel
Baton Rouge, Louisiana
Bruce G. Whittaker
New Orleans, Louisiana
Counsel for Defendant-Appellant
Nelson Ted Lopez
BEFORE: KUHN, PETTIGREW, AND WELCH, JJ.
Disposition: CONVICTION AND SENTENCE AFFDRMED.
KUHN, J.
Defendant, Nelson Ted Lopez, was charged by grand jury indictment with aggravated rape, a violation of La. R.S. 14:42. (R. p. 64). He pled not guilty and, following a jury trial, was found guilty as charged. (R. p. 2, 57). The trial court imposed the mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. (R. p. 58). Defendant now appeals, alleging two assignments of error. For the following reasons, we affirm defendant's conviction and sentence.
FACTS
Late in the evening of July 5, 2010, J.M. (the victim) was working her shift at a Danny & Clyde's convenience store (a/k/a Mandy's Food and Deli) on La. Hwy. 59 in Mandeville. As part of her nightly duties, J.M. was transporting trash from the waste bins located by the gas pumps to a dumpster located at the rear of the store. When J.M. finished and began walking toward the front of the store, she was accosted by a black male armed with a knife and with a red shirt over his head, obscuring his face. J.M. asked him what he wanted from the store, and he replied that he wanted her. (R. p. 658, 1095, 1097-98, 1101, 1104-05).
In accordance with La. R.S. 46:1844(W), the victim herein is referred to only by her initials or as "the victim."
A struggle ensued, during which the assailant moved into a position behind J.M. and began hitting and choking her. When she fell to the ground, the assailant began to drag J.M. toward the area of the dumpster. J.M. briefly lost consciousness while being choked, but regained it at some point to find the assailant vaginally raping her. At that point, J.M. was also able to see the assailant's face, as the red shirt apparently had been dislodged during the initial struggle. The assailant again choked J.M. to the point that she lost consciousness. Sometime thereafter, J.M. regained consciousness and witnessed the assailant wiping himself off with something. As J.M. attempted to get up, the assailant placed his foot on her neck and began to choke her. J.M. was eventually able to escape when she bit the assailant's finger as he attempted again to choke her by putting her shirt over her face. Naked from the waist down, J.M. ran to a nearby Chevron station, where she was able to call the police. (R. p. 1106-12).
The police eventually developed defendant as a suspect in J.M.'s rape. First, J.M. recalled seeing a white, SUV-type vehicle pull into the Danny & Clyde's fueling area shortly before the incident. The vehicle drove out without getting gas. J.M. never saw the driver of this vehicle, but the store's credit card system registered a card-read error related to the pump at which the vehicle had parked. J.M. saw the vehicle leave the Danny & Clyde's and park across the street in the area of a Shell gas station. Information from the failed transaction allowed the police to trace the credit card to an account owned by defendant with the Barksdale Federal Credit Union. The credit card had not been reported stolen. From this information, St. Tammany Sheriffs Office Detective Steve Chaisson constructed a six-person photographic lineup. When presented with the lineup, J.M. identified defendant as her assailant. (R. p. 780-81, 786, 1102-03, 1113-15).
Additionally, the St. Tammany Parish Coroner's Office tested multiple DNA samples taken from the victim's clothing, her rape kit, and the sheet on which she had been transported to the hospital. Sperm cell fractions of these samples were compared to DNA from a buccal reference sample taken from defendant. In at least five instances (two stains from the victim's tank top, one stain on the victim's t-shirt, and two samples from the victim's rape kit), defendant's DNA was found to be consistent with the DNA samples recovered from the evidence. Further, the DNA analysis revealed that the probability of this DNA profile occurring randomly in a population of unrelated Caucasian, Hispanic, and African-American males was l-in-greater-than-100 billion. Defendant's DNA was also found to be consistent with DNA found on a red t-shirt recovered near the scene. (R. p. 971-72, 973-77, 983-91, 994-1011, 1014-16; Exhibits 31, 83, 84, 85, 87, 128). Following a jury trial, defendant was found guilty as charged of aggravated rape.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, defendant asserts that the trial court erred in denying his motion for mistrial, which was based upon reference made by a state witness to inadmissible other crimes evidence. Specifically, he argues that a mistrial was warranted where, on cross-examination, a state witness referred to defendant's juvenile criminal history.
During cross-examination by defense counsel of Detective Chaisson, the lead investigator in the case, the following exchange occurred:
Defense counsel: And you also know he's never been convicted of a single thing, right, no convictions?(R. p. 829-30). Defense counsel then asked to approach the bench, and he immediately took issue with Detective Chaisson's reference to defendant's juvenile activity. The trial court excused the jury and allowed defendant to argue his motion for mistrial. Thereafter, the trial court denied the motion for a mistrial and instead elected to admonish and direct the jury "to totally disregard entirely any response concerning juvenile activity of the defendant testified to by the witness." The trial court reiterated to the jury, "You are to totally and absolutely disregard [what was] said." (R. p. 831-37).
Detective Chaisson: None that I know of.
Defense counsel: You would know, you investigated him.
So you would tell this jury that this is the kind of guy that's been out raping or robbing and doing that kind of stuff, but there is no convictions of any kind?
Detective Chaisson: He had some juvenile activity, but I wasn't -
Defense counsel: Right.
Detective Chaisson: I did call Miami.
Defense counsel: But no convictions of any kind, I ask you again?
Detective Chaisson: None.
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers either directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. See La. C.Cr.P. art. 770(2). However, as a general rule, a state witness is not a "court official" within the meaning of La. C.Cr.P. art. 770. See State v. Perry, 420 So.2d 139, 146 (La. 1982), cert. denied sub nom. , McCray v. New York, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983). Therefore, La. C.Cr.P. art. 771 is the appropriate article to evaluate defendant's claim.
Upon the request of the defendant or the state, La. C.Cr.P. art. 771(2) provides that the court shall promptly admonish the jury to disregard a remark that 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, when it is made by a witness other than the judge, district attorney, or a court official during the trial, regardless of whether the remark or comment is within the scope of Article 770. 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 of a fair trial. La. C.Cr.P. art. 771.
Mistrial is a drastic remedy that should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. State v. Berry, 95-1610 (La. App. 1st Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603. The determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Lynch, 94-0543 (La. App. 1st Cir. 5/5/95), 655 So.2d 470, 477, writ denied, 95-1441 (La. 11/13/95), 662 So.2d 466.
As stated above, Detective Chaisson's reference to defendant's "juvenile activity" does not fall under the mandatory mistrial provisions of Article 770 because he is not a court official. Further, Detective Chaisson's comment regarding this "juvenile activity" was not deliberately elicited by the prosecutor, but was instead a result of defense counsel's cross-examination. Compare State v. Boudreaux, 503 So.2d 27, 31 (La. App. 1st Cir. 1986) (finding that an impermissible reference to another crime deliberately elicited from a state witness by the prosecutor was imputable to the state and mandated a mistrial).
In the present case, the trial court did not abuse its discretion in denying defendant's motion for a mistrial based on this testimony, and it acted properly in admonishing the jury to disregard Detective Chaisson's testimony regarding defendant's "juvenile activity." The exchange between defense counsel and Detective Chaisson included two instances in which Detective Chaisson stated that defendant had no criminal convictions. While Detective Chaisson, in response to defense counsel's questioning, also briefly and vaguely referred to some "juvenile activity" in the context of defendant's criminal history, defense counsel quickly cut his response short and got him to reiterate that defendant had no prior criminal convictions. Based on these considerations, we cannot say that the trial court abused its discretion in denying defendant's motion for mistrial and determining that his right to a fair trial would be preserved by an admonition to the jury.
This assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, defendant contends that the trial court erred in instructing the jury regarding the reasonable doubt standard. He asserts that the trial court's charge invited the jury to convict based on insufficient proof.
The trial court gave the following instruction to the jury regarding the reasonable doubt standard:
While the state must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt based on reason and common sense and is present when, after you have carefully considered all the evidence, you cannot say you are firmly convinced of the truth of the charge.(R. p. 208, 1389-90). Prior to closing arguments, defense counsel objected to the charge, arguing that the second sentence of the instruction should be amended to read, "Reasonable doubt is doubt based on reason and common sense and is present when, after you carefully consider all the evidence, you cannot say you are firmly convinced . . . beyond a reasonable doubt of the truth of the charge." (Emphasis added). (R. p. 1324). The trial court denied this proposed amendment, noting that it would include the term to be defined - reasonable doubt - in its proposed definition. (R. p. 1325-26).
As defendant admits in brief, the instruction in this case tracks verbatim the proposed charge on reasonable doubt included in the Louisiana Judge's Criminal Bench Book, Vol. I, § 3.03. The Supreme Court has explicitly found that this instruction passes constitutional muster and does not allow a jury to convict without satisfying the reasonable doubt requirement. See State v. Legrand, 02-1462 (La. 12/3/03), 864 So.2d 89 (unpublished appendix), cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005). Defendant's proposed charge, due to its inclusion of the term to be defined in its definition, offered no improvement on the charge used by the trial court, and it created the possibility of confusing the jury. Therefore, the trial court did not err or abuse its discretion in refusing to amend the jury charge on the reasonable doubt standard.
This assignment of error lacks merit.
CONVICTION AND SENTENCE AFFIRMED.