State v. Vansant, 170 So. 3d 1059

Defendant Rory Dean Vansant, stepfather of ten-year-old D.D., was indicted for aggravated incest (now aggravated crime against nature) based on alleged repeated digital and manual sexual contact while the child slept at a trailer where defendant lived.
D.D. reported the abuse to her grandfather (Clarence); D.D. later gave a recorded interview at a Child Advocacy Center and testified at trial. The State did not call Clarence at trial.
Defense argued in closing that the State’s failure to call Clarence (the “first reporter”) undermined corroboration of D.D.’s account.
In rebuttal the prosecutor responded that the defense could have subpoenaed Clarence and pointed out the defense’s subpoena power; defense objected that this improperly shifted the burden of proof.
The trial court overruled the objection, denied a subsequent motion for mistrial, instructed the jury on presumption of innocence and that arguments are not evidence, and the jury convicted; the defendant appealed solely on the improper-closing-argument/mistrial issue.

Issue	State's Argument	Defendant's Argument	Held
Whether prosecutor’s rebuttal improperly shifted burden by noting defense could subpoena omitted witness	Prosecutor: comment was responsive to defense closing attack and highlighted that either side could call/ subpoena witnesses; no burden shift	Vansant: remark implied defense had obligation to present witnesses, creating prejudice and warranting mistrial	Court: Remarks were a permissible response to defense argument; no abuse of discretion and no reversible error

State v. Smith, 418 So.2d 515 (La. 1982) (trial judge has broad discretion in controlling prejudicial conduct and mistrial decisions)
State v. Draughn, 950 So.2d 583 (La. 2007) (prosecutors have wide latitude in closing argument tactics; reversal requires showing comments influenced verdict)
State v. Kyles, 513 So.2d 265 (La. 1987) (contextual review of prosecutorial comments in closing)
State v. Williams, 151 So.3d 79 (La. App. 5th Cir. 2014) (prosecutor may respond to defense suggestion that the State failed to call a witness by noting defense’s subpoena power)
State v. Uloho, 875 So.2d 918 (La. App. 5th Cir. 2004) (similar holding that defense invited argument about missing witnesses and prosecutor’s reply was permissible)
State v. Mitchell, 674 So.2d 250 (La. 1996) (jurors are presumed able to follow curative jury instructions that arguments are not evidence)