State v. MitchellState v. Mitchell
On September 17, 1999, the defendant was tried for second degree murder of Alton Francis Jr. and attempted second degree murder of Felton Johnson. He did not deny killing Alton Francis Jr., nor shooting Felton Johnson. However, he claimed that he acted in self-defense and in defense of a friend, one Ervin Mitchell, because they were being attacked by a group of men led by Alton Francis Jr., 6’ 7“, 300 pounds and armed with a baseball bat. The State argued that at the time of the shootings, the defendant was out of harm‘s way, he was in the passenger seat of a car, could have driven away, but instead got out of the car, discharged several rounds from an automatic weapon, with one shot killing Francis while he was more than six to fifteen feet away and another injuring Johnson, a bystander. Therefore, the State claimed that the killing was unjustified. The jury convicted the defendant of the lesser charges of manslaughter in the killing of Francis and aggravated battery in the shooting of Johnson.
The statement made by the prosecutor during rebuttal argument which the defendant belatedly protested in his post verdict motion for a new trial was “Where‘s the weapon? One person knows where the weapon is. One person.” Defense counsel did not object to the prosecutor‘s statement during the trial, presumably because he did not hear the statement when it was made. While the jury was deliberating, the court reporter informed defense counsel of the prosecutor‘s remark. Additionally, the trial judge at some point told counsel that the reason he did not hear the statement was that he was talking to his client, the defendant, when the prosecutor made the statement in rebuttal argument. Despite knowing about the prosecutor‘s statement prior to the jury‘s returning its verdicts, defense counsel did not move for a mistrial or seek any remedial action. It was well after the jury returned its verdict, in fact one day prior to sentencing some thirty-six days after the verdict was rendered, that defendant protested in his motion for new trial.
At the hearing on the defendant‘s motion for new trial, the prosecutor argued that the defendant was procedurally barred from objecting to the statement by way of the belated motion because he failed to make a contemporaneous objection at trial. The prosecutor also argued that his remark was not impermissible because it was not a reference to the defendant‘s not testifying but an argument excusing the State‘s not placing a gun in evidence. In effect, he was saying the witness Jason Papillion testified that defendant told him he had thrown the weapon away after the incident. Where‘s the weapon? The defendant may know where it is, but the State does not. The comment was a reference to this reality. It was not the prosecutor‘s intent to refer to or draw attention to the defendant‘s failure to take the witness stand in his defense.
After argument on the motion for new trial, the trial judge stated:
With regard to the timeliness of the motion ..., if this is a statement which would have required granting of a mistrial, then the objection, the contemporaneousness of the objection is of no moment. Because if the objection would have been made contemporaneously, nothing could have been done to cure it. A mistrial would have been declared. So the fact that the objection was not made timely is of no [e]ffect....
So, the trial judge addressed the motion and concluded that the prosecutor‘s statement was an indirect reference to the defendant‘s not testifying. He therefore granted the defendant‘s motion for new trial.
The State now challenges the trial court‘s ruling, arguing that (1) defense counsel waived his right to protest the error because he failed to lodge a contemporaneous objection and (2) the prosecutor‘s statement was not an indirect reference to the defendant‘s failure to testify. We need not decide whether the trial judge was correct when he held that the defendant was not barred for lack of a contemporaneous objection from asserting prejudicial error in the district attorney‘s comment1 because we prefer to address
The issue is whether the prosecutor during his closing rebuttal argument improperly drew the jury‘s attention to the fact that the defendant did not take the stand and testify when the prosecutor made the statement quoted at the outset of this opinion. For reasons which follow, we hold that the statement was neither a direct reference nor an intended indirect reference to the defendant‘s failure to testify in his defense and the trial judge erred when he granted the mistrial.
“Direct” and “indirect” references to the defendant‘s failure to take the stand are prohibited by
There are indirect references which focus on, or are intended to focus on a defendant‘s failure to testify. One such instance is when the defendant is the only witness who can rebut the state‘s evidence. Such a reference to the testimony as uncontroverted focuses the jury‘s attention on the defendant‘s failure to testify and warrants a mistrial. State v. Perkins, 374 So.2d 1234, 1237 (La.1979); Fullilove, 389 So.2d at 1284; State v. Harvill, 403 So.2d 706, 711 (La.1981). Then, there are and can be indirect references which are not intended to focus on a defendant‘s not testifying. One such frequently seen instance is a prosecutor‘s emphasizing that the State‘s evidence is unrebutted in a situation where there are witnesses other than the defendant who could testify on behalf of the defense, but have not. See, e.g., State v. Jackson, 454 So.2d 116, 118 (La.1984); State v. Smith, 433 So.2d 688, 697 (La.1983); State v. Latin, 412 So.2d 1357, 1363 (La.1982). Also “[s]tatements in argument to the effect that there is no refuting evidence does not constitute an impermissible reference to the defendant‘s failure to testify.” State v. Reed, 284 So.2d 574, 576 (La.1973) (citing State v. Cryer, 262 La. 575, 263 So.2d 895 (1972)).
Another such instance of an indirect reference that does not focus on the defendant‘s not testifying is what happened in this case. During the trial, Jason Papillion testified that the defendant told him that he threw the gun away while traveling from Breaux Bridge to Lafayette. That testimony was the only evidence regarding the whereabouts of the weapon, which of course, was not introduced into evidence. There was testimony that the bullet retrieved from Alton Francis, Jr. was a fired from an automatic weapon (a .380 Larson). Papillion‘s testimony that defendant told him he had thrown the gun away explained why the state was unable to produce the murder weapon.
The prosecutor believed it was important to the State‘s case that the jury understand why the murder weapon was not put in evidence by the State. That belief on his part was not unrealistic. The United States Supreme Court recognized this very problem in Old Chief v. United States, 519 U.S. 172, 188, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), when is stated:
[B]eyond the power of conventional evidence to support allegations and give life to the moral underpinnings of allegations of law‘s claims, there lies the need for evidence in all its particularity to satisfy the juror‘s expectations about what proper proof should be. Some such demands they bring with them to the court house, assuming, for example, that a charge of using a firearm to commit an offense will be proven by introducing a gun in evidence. A prosecutor who fails to produce one, or some good reason for his failure, has something to be concerned about.
Taken in this context, the words “Where‘s the weapon? One person knows where the weapon is. One person.” do not necessarily focus upon the defendant‘s failure to take the stand. Nor do they support the likelihood that the prosecutor intended to do so. The comment comes across as an explanation for the State‘s inability to introduce the murder weapon because the defendant threw the weapon away while he was traveling from Breaux Bridge to Lafayette.
We conclude that the jurors more than likely would not have received the words of the prosecutor as an invitation to draw an admission of guilt from the defendant‘s failure to testify, but rather as a reason for why the jury should not penalize the State for its failure to enter the murder weapon into evidence. See State v. Rash, 444 So.2d 1204, 1206 (La.1984) (State can establish use of the weapon through the admission of the actual weapon or prove its existence by other means).
DECREE
For the forgoing reasons, we vacate the trial court‘s order granting a new trial, reinstate the verdicts of guilty of manslaughter and aggravated battery and remand the case to the district court for a sentencing hearing.
DISTRICT COURT‘S JUDGMENT GRANTING NEW TRIAL REVERSED; REMANDED FOR SENTENCING
KNOLL, J., concurs and assigns reasons.
KNOLL, Justice, Concurring
Defendant filed a motion for a new trial under
The contemporaneous objection rule prevents “a defendant from gambling for a favorable verdict and then, upon conviction, resorting to appeal on errors which either could have been avoided or corrected at the time or should have put an immediate halt to the proceedings.” State v. Taylor, 93-2201 p. 7 (La.2/28/96), 669 So.2d 364, 368-69 (citing State v. Arvie, 505 So.2d 44, 47 (La.1987); State v. Mart, 419 So.2d 1216, 1218 (La.1982); State v. Smith, 339 So.2d 829, 834 (La.1976), cert. denied, 430 U.S. 986, 97 S.Ct. 1685, 52 L.Ed.2d 381 (1977)). The purpose of the contemporaneous objection rule applies not only in appeals, but also in motions for a new trial. Defense counsel cannot refrain from objecting to potential prejudicial errors and then raise the error in a motion for a new trial under
Mitchell‘s counsel discovered the prosecutor‘s statement while the jury was deliberating. Counsel did not object. Had counsel objected when he discovered the statement two things could have happened. First, the judge could have repaired the error by calling the jury into the court room and issuing proper instructions that the jury disregard the statement. Or second, the judge could have declared a mistrial. By waiting until after the verdict to object, defense counsel was allowed to gamble with the jury verdict, i.e., take the chance that the jury return a not guilty verdict or return a verdict of a lesser included offense. When the jury convicts on a lesser included offense, the State is barred from retrying defendant on the original charge; the State may only retry defendant on the lesser included offense. See
This sort of keen trial tactic is not sanctioned by