Motion for a New Trial

VS

MOTION FOR A NEW TRIAL

NOW INTO THIS HONORABLE COURT comes the above named Defendant who, through his undersigned counsel, respectfully request this Honorable Court to grant 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 Defendant, was not discovered before the verdict.

2.

During the State's closing rebuttal argument, the prosecutor made an improper indirect reference 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 could only be supplied by the Defendant, 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 indirectly to the failure of the Defendant 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 Defendant's failure to testify. La.C.Cr.P. Article 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 improper indirect reference to the Defendant'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 reference 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 So.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 Defendant 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 contemporaneous with the making of the improper remarks. State v. Cushenberry, 407 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 investigator over a question the Defendant 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 undersigned counsel revealed the above-outlined 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 surrounding the lack of a contemporaneous objection, undersigned counsel contends he has exercised 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 Constitutions by not making a contemporaneous 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).

WHEREFORE, the Defendant respectfully requests this Honorable court to grant him a new trial based on La.C.Cr.P. Article 851(4)

Respectfully Submitted,

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

CERTIFICATE

I HEREBY CERTIFY that the above and foregoing has been forwarded to all opposing

counsel by hand delivering a copy of same.