279 So.3d 431
La. Ct. App.2019Background
- Defendant (C.T.) was indicted for aggravated rape of his son, a child who was under age 13 during the alleged offenses; jury convicted 11–1 and sentenced defendant to life at hard labor without parole/probation/suspension.
- Victim (D.A.) testified to multiple incidents of anal penetration by his father when he was about 8–10; he disclosed after telling his sister and mother; a recorded forensic (CAC) interview and medical exams (showing no acute injury) were admitted.
- Multiple witnesses corroborated the timeline and the victim’s disclosures (mother, family friend, CAC interviewer, pediatric specialists). Defense witnesses disputed the allegations and emphasized the child’s behavioral problems and racial identity comments.
- Defendant moved for mistrial after a rebuttal remark by the prosecutor that the defendant “never shook his head no,” arguing it impermissibly referenced his failure to testify. The trial court denied the mistrial and admonished the jury that argument is not evidence.
- Defendant challenged (1) sufficiency of the evidence, (2) denial of mistrial for alleged comment on failure to testify, and (3) constitutionality of a non-unanimous jury verdict (11–1) for pre-2019 offenses. Court also noted an error patent: failure to provide written sex-offender registration notice post-conviction.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support aggravated rape of a child under 13 | Victim’s testimony and CAC interview suffice to prove penetration; corroborating testimony supports conviction | Evidence insufficient (no developed argument on appeal) | Affirmed — viewing evidence in light most favorable to prosecution, a rational juror could find guilt beyond reasonable doubt (victim testimony alone can suffice) |
| Prosecutor’s rebuttal remark referencing defendant not shaking his head during CAC video (alleged reference to failure to testify) | Comment rebutted defense theme (lack of remorse/demeanor); not intended to highlight defendant’s silence | Remark was a direct/indirect comment on failure to testify and required mistrial under La. C.Cr.P. art. 770(3) | Denied — remark construed as comment on lack of remorse/credibility, not an impermissible direct or indirect reference to defendant’s failure to testify; mistrial not required |
| Non-unanimous jury verdict (11–1) constitutionality for offenses committed before Jan 1, 2019 | State: pre-2019 statute permitting 10–2 verdicts was valid; precedent upholds non-unanimous verdicts | 11–1 verdict violates Sixth Amendment and recent state constitutional change ending non-unanimous verdicts | Denied — offense occurred pre-2019; prevailing state and U.S. precedent (Apodaca and Louisiana decisions) permitted non-unanimous verdicts at the time; article 782 challenge rejected |
| Failure to provide written sex-offender registration notice (error patent) | N/A (statute mandates trial court provide written notice using statutory form) | N/A | Remanded — trial court must provide the statutorily required written notification using La. R.S. 15:543.1 form within 10 days |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for appellate sufficiency review)
- Apodaca v. Oregon, 406 U.S. 404 (plurality) (state courts not constitutionally required to have unanimous jury verdicts at that time)
- State v. Bertrand, 6 So.3d 738 (La. 2009) (upholding Louisiana’s non-unanimous verdict statute against constitutional attack)
- State v. Mitchell, 779 So.2d 698 (La. 2001) (discussing direct v. indirect references to defendant’s failure to testify under La. C.Cr.P. art. 770)
- State v. Raymo, 419 So.2d 858 (La. 1982) (appellate sufficiency review principle cited)