Fill and Sign the Motion for a New Trial Form

STATE OF LOUISIANA : _______ JUDICIAL DISTRICT COURT VS : PARISH OF _______ , LOUISIANA ________________ : DOCKET NO. _______ MOTION FOR A NEW TRIAL NOW INTO THIS HONORABLE COURT comes the abo ve named D efendant who, through his undersigned counsel, respectfully request this Honorable Court to gra nt him a new trial in the above -entitled and numbered case for the following reasons, to wit: 1. La. C.Cr.P. Article 851(4) mandates that the court shall grant a new trial whenever the Defendant has discovered since the verdict of guilty a prejudicial error or defect in the proceedings that, not withstanding the exercise of reasonable diligence by the D efendant , was not discovered before the verdict. 2. During the State =s closing rebuttal argument, the prosecutor made an improper indirect refe rence to the Defendant =s failure to testify, in that he inquired as to the whereabouts of the weapon used by the Defendant on the instant incident. Trial testimony established that the answer to this inquiry cou ld only be supplied by the D efendant, who did not testify at trial. 3. La. C.Cr.P. Article 770(3) mandates that a mistrial shall be granted when a remark or comment made when the hearing of the jury by the prosecutor refers directly or in directly to the failure of the D efendant to testify in his own defense. Furthermore, an admonition to the jury is not sufficient to prevent a mistrial. Once a determination has been made that an Article 770 violation occurred, the trial court must declare a mistrial. In order for an indirect reference to mandate a mistrial, the State must have intended to draw the jury =s attention to the D efendant =s failure to testify. La.C.Cr.P. Art icle 770; State v. Burkhalter , 428 So.2d 449 (La.1983). 4. Louisiana courts have consistently noted that in cases where the prosecution simply emphasized that the State =s evidence was unrebutted, and there were witnesses other than the Defendant who could have testified on behalf of the defense but did not do so, then the prosecutor =s argument did not constitute an impr oper indirect reference to the D efendant =s failure to testify. On the other hand, the same courts have consistently held that where the Defendant is the only witness who could have rebutted the State =s evidence, a refe rence to the testimony as uncontroverted improperly focuses the jury =s attention on the Defendant =s failure to testify and mandates a mistrial. State v. Johnson , 541 S o.2d 822 -873 (La.1985); State v. Perkins , 374 So.2d 1234, 1237 (La.1979); State v. Watts , 596 So.2d 306, 309 (La.App.36. 1992); State v. Arvie , 97 -990, La.App. 36 2/4/98, 709 So.2d 810. 5. In the instant case, the only witness who could have answered the prosecutor =s question asked during his rebuttal argument was the D efendant who had exercised his constitutional right not to testify. Thus, the prosecutor =s rhetorical argument improperly focused the jury =s attention on the Defendant =s failure to testify. 6. Not withstanding the exercise of reasonable diligence by the defense, the above -described error and defect was not discovered before or during the trial. Undersigned counsel is well aware of the requirement to move for a mistrial contemporane ous with the making of the improper remarks. State v. Cushenberry , 4 07 So.2d 700 (La. 1981). In the instant case, undersigned counsel failed to object or to move for a mistrial regarding the instant improper argument, made by one State. At the time of the making of the improper argument, however, defense counsel did not hear the improper remarks due to his being otherwise occupied in a private discussion at the defense table with the Defendant and the defense in vestigator over a question the D efendant asked regarding a previous portion of the prosecutor =s argument. Defense counsel first learned of the improper remarks during a discussion he had with the court reporter while the jury was deliberating. 7. Further investigation by undersi gned counsel revealed the above -out lined reason why counsel did not hear the prosecutor make the improper remarks and determined the necessity of filing the instant motion. Given the above context surr ounding the lack of a contempora neous objection, undersigned counsel contends he has exer cised reasonable diligence in discovering the above -described error and defect. In the alternative, undersigned counsel humbly submits that he failed to function as counsel guaranteed to the defendant by the United States and Louisiana Constitu tions by no t making a contempora neous objection and motion for mistrial as set for the above to the Defendant =s prejudice. Strickland v. Washington , 466 U.S. 668 (1984); State v. Sullivan , 596 So.2d 177 (La. 1992). WHEREFO RE, the D efendant respectfully requests this Honorable court to grant him a new trial based on La.C.Cr.P. Article 851(4) Respectfully Submitted, ______________________________ ________________ _______ Parish I.D. Board ________________ __________ , LA _______ (___ )_______ ORDER Considering the foregoing motion, it is hereby ordered that the State show cause on the ___ day of _______ 20 ___ , at _______ o’clock ___ .M., why this Motion should not be granted. ________________ , LA, this _____ day of _________________ 20 ___ . ______________________________ DISTRICT JUDGE CERTIFICATE I HEREBY CERTIFY that the above and foregoing has been for warded to all opposing counsel by hand delivering a copy of same. __________________________ ________________