State v. Williams, 151 So. 3d 79

Defendants Everett Williams and co-defendant Jamar Owens were tried for an armed robbery, attempted armed robbery, aggravated battery, and three counts of possession of a firearm by a convicted felon; a jury convicted Williams on all counts.
Incident: January 18, 2012 home invasion; victims identified Williams as the shooter and as holding a gun to a victim’s head; Owens identified by victims as another participant.
Police recovered two semi-automatic pistols from Williams’s residence; DNA testing could not exclude Williams as a contributor to DNA on the guns.
At trial defense argued the State failed to call a witness (Vincent Bailey, who had supplied nicknames to police) and suggested the State’s identifications were coached; defense implied Bailey’s testimony would undermine the State.
During rebuttal the prosecutor said defense “had Mr. Bailey under subpoena,” prompting an objection and a motion for mistrial alleging impermissible comment on defendant’s failure to testify and shifting the burden of proof; the trial court denied the mistrial, admonished the jury, and later gave standard jury charges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor’s rebuttal remark that defense had a witness under subpoena warranted mistrial	State: remark responded to defense closing argument that the State failed to call Bailey and was not intended to shift burden or comment on right not to testify	Williams: remark implied failure to call witnesses and indirectly referenced his failure to testify, shifting burden to defense	Court: remark was responsive rebuttal to defense argument; not a direct/indirect comment on right to remain silent; trial court did not abuse discretion in denying mistrial
Whether prosecutor’s remark violated scope of permissible argument (La. C.Cr.P. art. 774)	State: rebuttal confined to answering defense argument about missing witness and subpoena power	Williams: remark exceeded permissible argument and appealed to prejudice	Held: within permissible rebuttal scope; even if borderline, admonitions and final jury charge cured any prejudice
Whether trial admonition was sufficient to cure any prejudice from prosecutor’s remark	State: trial judge’s immediate admonition and later jury instructions clarified burden and that arguments are not evidence	Williams: admonition insufficient to overcome prejudice	Held: admonition and final charges were adequate; no reversible error
Error patent review regarding commitment order	N/A	N/A	Court found incorrect offense dates on uniform commitment order and remanded for correction

State v. Greenup, 123 So.3d 768 (La. App. 5 Cir. 2013) (scope of closing argument and reversible error standard)
State v. Uloho, 875 So.2d 918 (La. App. 5 Cir. 2004) (prosecutor’s comment on defendant’s subpoena power permissible rebuttal to defense argument)
State v. Bolden, 680 So.2d 6 (La. App. 3 Cir. 1996) (rebuttal reference to subpoena power not indirect comment on defendant’s failure to testify)
State v. Banks, 627 So.2d 756 (La. App. 2 Cir. 1993) (failure to call witness comment addressed defense theory, not right to remain silent)
State v. Oliveaux, 312 So.2d 837 (La. 1975) (error patent review authority)
State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990) (error patent review authority)
State v. Lyons, 134 So.3d 36 (La. App. 5 Cir. 2014) (remand to correct uniform commitment order)
State ex rel. Roland v. State, 937 So.2d 846 (La. 2006) (procedures for correcting commitment records)

Outcome: Convictions and sentences affirmed; remanded solely to correct the uniform commitment order to reflect the proper offense date.