STATE v. HOOPER (2026)

Defendant, Newton Marshell Hooper, was charged by bill of information with one count of attempted armed robbery and one count of attempted second degree murder. The State announced that it intended to try Defendant on the attempted armed robbery count only. A unanimous jury found Defendant guilty of one count of attempted armed robbery. Thereafter, Defendant was sentenced to forty-five years at hard labor, to be served without benefit of parole, probation, or suspension of sentence. The court also designated the crime as a crime of violence. Defendant now appeals, urging that the trial court abused its discretion in allowing the State to give improper closing argument, resulting in reversible error. For the following reasons, we affirm Defendant's sentence and conviction and remand for disposition of the attempted murder charge.

FACTS

In March 2021, the victim, Chad Duhon, was eating lunch at his automotive shop when someone approached him from behind and held a knife to his neck. The victim managed to get the attacker on the ground. Randy and Rebecca Perego had arrived at the automotive shop to pick up a vehicle Duhon repaired and upon seeing the scuffle, Rebecca ran across the street to a Circle K and enlisted the help of two police officers while Randy assisted Duhon in subduing the attacker.¹ Officers Garrett Gilchrist and Ty Luneau arrived at the scene and Officer Gilchrist handcuffed Defendant at the scene. The victim identified Defendant as his attacker. Defendant identified a bag at the scene as belonging to him and it had multiple forms of identification in it including his driver's license, Social Security card, and insurance cards. It further contained detailed notes on the execution of the robbery. Additional notes were found scattered about the automotive shop following the scuffle. While en route to the hospital, Defendant confessed to Officer Gilchrist that he stabbed the victim and that his intent was to rob the victim.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We find there is one error patent.

The State proceeded to trial on the attempted armed robbery count only. Louisiana Code of Criminal Procedure Article 819 requires the jury to return a verdict as to each count of an indictment. Thus, we must remand for a disposition of attempted second degree murder.

Recently, in State v. Singleton, 24-547 (La. 2/26/25), 404 So.3d 1090, 1092–93, writ denied, 25-344 (La. 4/29/25), 407 So.3d 622, this court addressed this issue:

Additionally, in State v. Hypolite, 04-1658 (La.App. 3 Cir. 6/1/05), 903 So.2d 1275, writ denied, 06-618 (La. 9/22/06), 937 So.2d 381, a different panel of this court addressed the same error patent. There, the court explained:

Seven of the counts charged in the bill of information have not been properly disposed of․ At trial, the clerk read only count one, armed robbery, and the jury returned a verdict as to that count only. This court submitted an information request asking for “[a]ny motion, minute entry, order or amended bill concerning the disposition of Counts 2–8 charged in the Bill of Information․” In response, the Deputy Clerk of Court for Iberia Parish submitted an affidavit stating that she had examined the record and had not found an amended bill of information. Therefore, the record before this court contains no evidence that counts two through eight have been disposed of.

Id. at 1277. The court then remanded the case for a proper disposition of counts two through eight.

Based on the above, we will remand this matter for a proper disposition of the remaining charge of domestic abuse aggravated battery.

Likewise, we remand to the trial court for disposition of the remaining charge of attempted second degree murder.

ASSIGNMENT OF ERROR

Defendant contends the trial court abused its discretion in allowing the State to give improper closing arguments, resulting in reversible error. Defendant summarizes the alleged improper arguments as follows:

Reversible error occurred when the trial court allowed the State during closing argument to improperly argue 1) that the state's evidence, and specifically the statements of defendant, was undisputed, where the defendant did not testify or put on evidence at trial; 2) that the defendant's election to proceed to trial and be adjudged by a jury of his peers was “unintelligent” and a “waste of the jury's time, [his] time, and the government's resources;” 3) that if the jury was “not at 100% certainty of the defendant's guilt, there is something wrong with how they are looking at [the evidence];” 4) that the jury should return a verdict in less than five minutes; and when it allowed the prosecutor 5) to ask the jury to put themselves in the shoes of the victim.

“Despite the evidence of the state,” Defendant argues, “it is hard to believe that the cumulation of the prosecutor's improper and impermissible statements at the close of the trial did not influence the jury deliberation and verdict, thus requiring reversal of defendant's conviction and sentence.”

The State responds that the jury was instructed that the opening and closing arguments were not evidence and could not be considered as such. Additionally, the State responds:

The trial judge instructed the jury on several occasions specifically intended to provide them with information that a defendant was innocent until proven guilty and they should only make a decision based upon the evidence that they heard in court, not by prejudice[,] sympathy, passion, or public opinion.

Moreover, the State contends the evidence of Defendant's guilt was “substantial and conclusive,” and the statements by the prosecutor in closing argument did not contribute to the verdict.

This court recently analyzed an issue regarding an allegation of improper closing argument:

Louisiana Code of Criminal Procedure Article 774 provides the following regarding the scope of the State's closing argument:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.

The argument shall not appeal to prejudice.

The state's rebuttal shall be confined to answering the argument of the defendant.

Moreover, La.Code Crim.P. art. 771 provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:

(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or

(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.

In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

In State v. Prince, 16-260 (La.App. 3 Cir. 2/1/17), 211 So.3d 481, writ denied, 17-410 (La. 11/28/17), 230 So.3d 222, writ denied, 17-667 (La. 2/23/18), 237 So.3d 1190, cert. denied, 586 U.S. 839, 139 S.Ct. 102, 202 L.Ed.2d 65 (2018), this court ruled on a similar issue regarding a comment made by the State. During its opening statement, the State said “[a]s humans evil is among us every day in a different shape[.]” Id. at 495. Shortly thereafter, the defense objected to the comment, arguing that it was improper argument. The trial court subsequently overruled the objection. On appeal, the defendant claimed the trial court erred by overruling its objection, as the comments made by the State were not within the scope of La.Code Crim.P. arts. 766 and 774. Affirming, this court stated the following:

The supreme court has explained:

Prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. State v. Eaton, 524 So.2d 1194, 1208 (1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989); State v. Barrow, 410 So.2d 1070, 1075 (La.), cert. denied, 459 U.S. 852, 103 S.Ct. 115, 74 L.Ed.2d 101 (1982); State v. Prestridge, 399 So.2d 564 (La.1981). However, before this court will reverse on the basis of improper argument it must be thoroughly convinced the jury was influenced by the remarks and such contributed to the verdict. Eaton, supra. “In making this determination, the court gives credit to the good sense and fairmindedness of the jury.” Eaton, 524 So.2d at 1208. See also [State v. Taylor, 93-2201at p. 21 (La. 2/28/96), 669 So.2d 364, 375. State v. Williams, 96-1023, p. 15 (La. 1/21/98), 708 So.2d 703, opinion corrected (La. 1/28/98), 708 So.2d 703, 716, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998).

Defendant appears to acknowledge that the remarks at issue are subject to a harmless error analysis.

․

While Defendant objected to the remarks at issue, he did not request a mistrial. As mentioned earlier, Defendant renewed his objection after the opening. The trial court stated that it would advise the jury not to be moved by emotion and ultimately gave such an instruction. Thus, we find the dictates of La.Code Crim.P. art. 771 were satisfied.

We also find there is little likelihood the remarks influenced the jury and contributed to the verdict. Pursuant to Williams, we find that the possible influence of the remarks does not rise to the level of thoroughly convincing this court that they improperly influenced the verdict. As discussed in the previous assignment of error, the core of the case was the credibility of Michael Hayes, whose testimony was corroborated by other evidence at trial and obviously believed by the jury. The State's appeal to the general idea of evil did not clearly have a bearing on the credibility issue. Also, a true contemplation of general evil might just as easily have led the jury to doubt Hayes. It is clear he is not a “model citizen,” and the district court allowed Defendant to explore the issue of whether Hayes was merely trying to save his own neck at Defendant's expense.

For the reasons discussed, this assignment lacks merit.

Id. at 497–99.

We note, as in Prince, Defendant objected to the comments made by the State but failed to request a mistrial. It is noted the trial court informed the jury that the statements made by counsel were not evidence and instructed the jury to disregard any information that was not presented in evidence. Considering jurisprudence and a thorough review of the record, we find that the State's comments had no influence on the jury, as the State presented sufficient evidence to prove that Defendant was guilty beyond a reasonable doubt of first degree murder.

State v. Person, 23-793, pp. 38-41 (La.App. 3 Cir. 9/25/24), 394 So.3d 346, 363–65 (alterations in original), writ denied, 24-1305 (La. 2/19/25), 400 So.3d 926.

Reference to Defendant's Failure to Testify

Defendant claims the State made several indirect references to his failure to testify. Although Defendant claims there were several references, Defendant specifies only one comment in particular:

Not to mention you heard from Officer Gilchrist, who told you what the defendant told him, and what he told him was that the bag belonged to me, the flare gun belonged to me, and then while he's transporting him to Cabrini Hospital, he confesses to the attempted robbery and says that I had handwritten notes. That's what he told Officer Gilchrist, and Officer Gilchrist's testimony was undisputed.

Louisiana Code of Criminal Procedure Article 770 provides, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

․

(3) The failure of the defendant to testify in his own defense;

․

An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

Defendant did not object to the above comment or move for a mistrial. In State v. Robinson, 37,043, pp. 12-13 (La.App. 2 Cir. 5/14/03), 848 So.2d 642, 649, the second circuit found the failure to move for a mistrial was fatal to a claim of improper reference to the defendant's failure to testify:

While the language of article 770 provides for a mistrial in the event the prosecution refers directly or indirectly to the failure of the defendant to testify on his behalf, Defendant's failure to move for mistrial or object to the prosecution's statements is fatal to his claim of error on appeal. State v. Pearson, 336 So.2d 833 (La.1976); State v. Gatch, 27,701 (La.App.2d Cir.2/28/96), 669 So.2d 676, writ denied, 96-0810 (La. 9/20/96), 679 So.2d 429. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La.C.Cr.P. art. 841(A). The absence of a timely motion for mistrial on article 770 grounds constitutes a waiver of the defect. State v. Gatch, supra, citing State v. Shepherd, 566 So.2d 1127 (La.App. 2d Cir.1990), and State v. Hookfin, 476 So.2d 481 (La.App. 1st Cir.1985).

See also State v. Williams, 05-673, pp. 10-13 (La.App. 5 Cir. 3/14/06), 926 So.2d 665, 672–73, writ denied, 06-870 (La. 10/13/06), 939 So.2d 360; State v. Holiday, 598 So.2d 524, 528 (La.App. 1 Cir.), writ denied, 600 So.2d 659 (La.1992); State v. Wilson, 524 So.2d 1251, 1252 (La.App. 3 Cir. 1988).

In State v. Bentley, 15-597 (La.App. 3 Cir. 1/6/16), 182 So.3d 1269, writ denied, 16-210 (La. 3/24/17), 216 So.3d 812, this court addressed whether the defendant's failure to object to comments made during the state's closing argument should be considered despite the lack of a contemporaneous objection. Bentley argued that comments made by the state insinuated that defense counsel was hiding certain facts and that the state's argument should be likened to an indirect comment on Bentley's failure to testify. After citing La.Code Crim.P. art. 841, the court in Bentley stated:

In State v. Lee, 346 So.2d 682, 684–85 (La.1977), the supreme court addressed La.Code Crim.P. art. 841 in detail:

[Louisiana Code of Criminal Procedure] Article 841 is not an inflexible rule imposed on criminal litigants without rationale or justification. It is necessary adjunct to our role as an appellate court which is intended to promote judicial efficiency and to insure fair play. See State v. Smith, 339 So.2d 829 (La.1976); State v. Ervin, 340 So.2d 1379 (La.1976); State v. Marcell, 320 So.2d 195 (La.1975). For example, its operation prevents a defendant from gambling for a favorable verdict and then, upon conviction, resorting on appeal to errors that could have been corrected at trial, had he but [sic] brought the errors to the judge's attention. State v. Smith, supra; State v. Knight, 323 So.2d 765 (La.1975); State v. Marcell, supra.

․

What our rules require is that counsel bring an error to the attention of the trial judge within a reasonable time after the error occurs so that he can cure the error or declare a mistrial. C.Cr.P. arts. 770, 771, 841. Generally, a contemporaneous objection must be made immediately. In certain instances, however, objections which come shortly thereafter will be considered timely, see State v. Foss, 310 So.2d 573 (La.1975), and there are even instances in which no objections are required because they would be a vain and useless act, see State v. Ervin, supra. Particularly may there be such exceptions to the general rule during closing argument for reasons expressed in the following law review comment:

“one must recognize that the closing argument of the prosecutor may be so permeated with improprieties that constant objections may alienate the jurors or underscore the remark rather than erase it from their minds. Therefore, an objection at the end of the summation should be considered timely, and in some cases should be allowed outside the presence of the jury.” (citations omitted) 34 L.L.Rev. 746, 759 (1974).

Moreover, we recognize that a prosecutor's prejudicial comments in closing argument may be considered by a federal court to violate federal due process guarantees even in the absence of a defense challenge or objection at trial. United States v. Briggs, [457 F.2d 908 (2d Cir. 1972)]; United States v. Grunberger, 431 F.2d 1062 (2d Cir.1970); United States v. Sawyer, 347 F.2d 372 (4th Cir.1965).

An objection in this case would not have been a “vain and useless act” such as in State v. Ervin, 340 So.2d 1379, 1381 (La.1976), in which objectionable testimony was allowed despite “defense counsel [having] made every reasonable effort to prevent the introduction of the statement complained of in advance of its utterance.” Nor can it be said that defense counsel sought to avoid repeated objection before the jury, as not even a single objection was raised on the record during closing. It is arguable that defense counsel declined to object to avoid highlighting what he perceived to be a comment on Defendant's failure to testify. However, per Lee, defense counsel could have lodged the objection on the record after rebuttal and outside the presence of the jury so as to “cure the error” at the appropriate time.

We find that raising these claims for the first time—and in an incomplete fashion—in a motion for new trial does not constitute “contemporaneous objection.” State v. Hamilton, 03-1385, p. 21 (La.App. 3 Cir. 3/3/04), 867 So.2d 151, 165, writ denied, 04-1227 (La. 4/22/05), 899 So.2d 567; see also State v. Sykes, 03-397, p. 23 (La.App. 3 Cir. 10/8/03), 857 So.2d 638, 653, writ denied, 03-3429 (La. 4/2/04), 869 So.2d 875. Nevertheless, “Louisiana courts have recognized certain rights are so basic and ‘due process’ requirements mandate that they may be asserted for the first time on appeal or noticed as an error patent by mere inspection of the pleadings and proceedings.” State v. Pyke, 93-1506, p. 3 (La.App. 3 Cir. 5/4/94), 640 So.2d 460, 462.

In State v. Day, 14-708, p. 11 (La.App. 3 Cir. 12/23/14), 158 So.3d 120, 129, this court reiterated its adherence to the general rule requiring contemporaneous objection:

However, “[a] new basis for objection cannot be raised for the first time on appeal.” State v. Fowlkes, 352 So.2d 208, 211 (La.1977) (citing La.Code Crim.P. art. 841); See also State v. Johnson, 438 So.2d 1221, 1225 (La.App. 3 Cir.1983). Thus, Defendant cannot now attempt to avail herself of the alleged error. See also State v. Klein, 351 So.2d 1158 (La.1977). The alleged error does not affect the “entire framework of the trial from beginning to end, without reference to any other trial consideration.” [State v.] Langley, [2006–1041, (La.5/22/07)], 958 So.2d [1160,] 1168. As previously mentioned, Defendant did not move for a new trial. For the same reasons articulated in our analysis of her first assignment of error, she cannot now request one.

In light of this jurisprudence, the court must determine if any of the aforementioned exceptions to the requirement of contemporaneous objection apply, and, if not, whether there exists sufficient evidence in the record to evaluate and decide the merits of Defendant's alternative claim of ineffective assistance of counsel.

Id. at 1273–75 (fourth alteration added).

In Bentley, this court first found that none of the exceptions to the contemporaneous objection rule set forth in State v. Lee, 346 So.2d 682 (La.1977), were applicable. Likewise, none of these exceptions apply to the present case. Although defense counsel in the present case objected to comments made during the State's rebuttal closing argument, he made no objections to the State's alleged indirect references to Defendant's failure to testify, all of which were made during the State's initial closing argument. Thus, the record does not support a finding that defense counsel had repeatedly attempted to prevent similar comments, rendering any objection a “vain and useless act.” Furthermore, as not even a single objection had been made prior to the comment at issue, the record does not support a finding that defense counsel sought to avoid repeated objections before the jury. Thus, as this court did in Bentley, we must decide whether the State's comment affected the “entire framework of the trial,” or “infringed on a right ‘so basic’ that due process requirements mandate recognition even though the claim is raised for the first time on appeal.” Id.

In making these determinations, this court in Bentley evaluated the state's comments and the state's reasons for making them, ultimately finding the state's comments did not rise to the level of structural error and did not infringe on Bentley's presumption of innocence.

The supreme court has stated the following regarding a similar statement about a defendant's failure to testify:

The defendant did not testify on his own behalf during the guilt or penalty phase of the trial. During his closing rebuttal argument in the guilt phase, the prosecutor referred to the fact that the defendant had made statements to several people implicating himself in the deaths of the two women. He then stated that:

I will submit to you that there can be no better evidence in a criminal proceeding but that evidence from the defendant's own mouth, not contradicted by anybody. Nobody came here and contradicted anything that was attributed to him, not one single person. Nobody took the stand.

Defense counsel timely objected to these remarks by the prosecutor, and moved for a mistrial on the ground that the prosecutor had improperly directed the jury's attention to the fact that the defendant did not testify on his own behalf. The trial court denied the motion without reasons.

La.C.Cr.P. art. 770(3) provides that the trial court “shall” declare a mistrial when the prosecutor “refers directly or indirectly to ․ [t]he failure of the defendant to testify in his own defense ․” Art. 770(3)’s prohibition against such prosecutorial comment safeguards the defendant from unfavorable inferences which might otherwise be drawn from his silence. State v. Fullilove, 389 So.2d 1282 (La.1980). The rule helps implement the defendant's Fifth Amendment right against self-incrimination, and is constitutionally required. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

Art. 770(3) prohibits both “direct” and “indirect” references to the defendant's failure to take the stand. When the prosecutor makes a direct reference to the defendant's failure to take the stand, a mistrial should be declared, and “it is irrelevant whether the prosecutor intended for the jury to draw unfavorable inferences from defendant's silence.” Fullilove, 389 So.2d at 1284. Nor, in the case of a direct reference, will this Court attempt to determine the effect that the remark had on the jury. Id.

Where the reference to the defendant's failure to take the stand is not direct, this Court will inquire into the remark's “intended effect on the jury” in order to distinguish indirect references to the defendant's failure to testify (which are impermissible) from general statements that the prosecution's case is unrebutted (which are permissible). Id.; see also State v. Jackson, 454 So.2d 116 (La.1984).

When our cases speak of the need to ascertain the “intention” of a prosecutor's reference to the unrebutted nature of the state's case, we of course do not envision the impossible task of reading what was actually in the prosecutor's mind at the time the statement was made. Instead, the test we have employed for determining the “intent” of such a statement is as follows.

In cases where the prosecutor 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, we have held that the prosecutor's argument did not constitute an indirect reference to the defendant's failure to take the stand. See, e.g., State v. Jackson, 454 So.2d 116, 118 (La.1984); State v. Smith, 433 So.2d 688 (La.1983); State v. Latin, 412 So.2d 1357 (La.1982).

On the other hand, where the defendant is the only witness who could have rebutted the state's evidence, “a reference to the testimony as uncontroverted focuses the jury's attention on the defendant's failure to testify” and mandates a mistrial. State v. Perkins, 374 So.2d 1234, 1237 (La.1979). See also State v. Fullilove, 389 So.2d 1282 (La.1980); State v. Harvill, 403 So.2d 706 (La.1981).

In Harvill, for example, the sole evidence which the state presented against defendant was his taped confession. In closing argument, the prosecutor told the jury: “Did you hear one word up there today that said it wasn't true? One word? You didn't.” Agreeing with the defendant's argument that the prosecutor's remarks warranted a mistrial, we reasoned that:

The prosecutor's reference to the unrebutted character of the State's evidence was clearly a comment upon the failure of the defendant to testify in his own defense, as only the defendant could recant the taped confession which formed the entirety of the prosecution's case against him. 403 So.2d at 711.

In this case, the challenged statements of the prosecutor focused on the absence of testimony in rebuttal to the testimony of those state witnesses who said that the defendant told them that he committed the crimes. Those witnesses were Dorothy Johnson (defendant's sister-in-law), and two inmates, John Williams and Henry Foster. Johnson testified that defendant told her in a conversation at her home that he committed the murders. There were no other persons assertedly present at time of this conversation. Nor were there any other persons assertedly present on the separate occasions when defendant admitted to Williams and Foster that he committed the crimes.

It is obvious, then, that the only person who could have contradicted the testimony of these witnesses about what the defendant told them was the defendant himself. By emphasizing that the testimony of these witnesses was unrebutted (“Nobody came here and contradicted anything that was attributed to him [defendant], not one single person. Nobody took the stand.”), the prosecutor indirectly referred to the defendant's failure to take the stand in violation of Art. 770(3).

Art. 770(3) provides that a mistrial “shall” be declared when the prosecutor indirectly refers to the defendant's failure to testify on his own behalf. Because there was such a reference here, the trial court's failure to declare a mistrial constitutes reversible error. See State v. Fullilove, 389 So.2d 1282 (La.1980); State v. Perkins, 374 So.2d 1234 (La.1979).

State v. Johnson, 541 So.2d 818, 822–23 (La.1989) (alterations in original).

Although Johnson is distinguishable from the present case in that Johnson did file a motion for mistrial, Johnson gives guidance as to whether the comment made by the State in the present case was an indirect reference to Defendant's failure to testify. In the present case, Defendant argues the State's reference to Deputy Gilchrist's testimony as “undisputed” was a reference to his failure to testify since he was the only one who could have rebutted the deputy's testimony. Deputy Gilchrist testified that while driving to the hospital, Defendant told him that he went to the victim's shop to rob the victim. Defendant also said he was using notes. On cross, Deputy Gilchrist agreed that Defendant's statements were not recorded by any type of audio. It appears that Defendant's admission that he intended to rob the victim and that he was using notes was made to Deputy Gilchrist alone and, thus, could be disputed by Defendant only. Thus, the State's comment, regarding Defendant's confession to Deputy Gilchrist was, according to the analysis in Johnson, an indirect reference to Defendant's failure to testify.

Because the comment at issue infringed upon Defendant's basic constitutional right not to testify, we will address the comment despite the fact that no objection was made or mistrial requested. The court in Johnson discussed the applicability of the harmless error analysis:

Certain language in the majority opinion in State v. Jackson, 454 So.2d 116 (La.1984) indicates that a violation of Art. 770(3) can be considered harmless error in a case where the evidence of the defendant's guilt is “overwhelming.” Id. at 118. However, we question whether such a harmless error inquiry is ever appropriate, for Art. 770(3) mandates a mistrial, at that point in the trial when the motion is urged, in any case in which the prosecutor makes a direct or indirect reference to the defendant's failure to testify. When such an improper reference is made, the trial judge does not have discretion to deny the motion based on his perception that the error may prove to be harmless, a speculative judgment at best. Nor does the Code of Criminal Procedure allow the trial judge to attempt to minimize the effect of the error by simply admonishing the jury to disregard the prosecutor's remarks.

Even if the harmless error doctrine is applicable to this issue in some cases, we cannot say that the prosecutor's improper reference to this defendant's failure to take the stand was harmless. The evidence against defendant consisted primarily of the testimony of certain witnesses regarding what the defendant had told them about the crimes, as well as certain other evidence, all circumstantial or peripheral. We can hardly conclude that the prosecutor's improper reference to the defendant's failure to take the stand and contradict the testimony of those who claimed that he had confessed the crime to them, was “harmless beyond a reasonable doubt.” State v. Lee, 524 So.2d 1176, 1191 (La.1987); State v. Gibson, 391 So.2d 421 (La.1980).

Id. at 823.

In a later case, the supreme court endorsed the harmless error analysis:

We do not subscribe to the state's view that the grounds for reversing defendant's conviction and sentence for attempted aggravated burglary, that the prosecutor commented indirectly on defendant's failure to take the stand, see State v. Thomas, 99-1500 (La.App. 1st Cir.6/23/00), — So.2d — (unpub'd) constituted a structural defect in the proceedings which nullified the jury's verdict and permitted it to reindict defendant for the charged offense of aggravated burglary. Comment on the defendant's failure to take the stand at trial is a trial error, not a structural defect in the proceedings, that has been subject to harmless-error analysis at the federal level since Chapman v. California, 388 U.S. 263 [386 U.S. 18] 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Moreover, we have clarified that as a matter of Louisiana law, the mandatory mistrial provisions of La.C.Cr.P. art. 770, which encompass a prosecutor's direct or indirect comment on the defendant's failure to testify, are directives to the trial judge and do not preclude an appellate court from conducting harmless-error analysis. State v. Johnson, 94-1379 (La. 11/27/95, 664 So.2d 94).

State v. Thomas, 05-2373, pp. 1-2 (La. 4/17/06), 926 So.2d 490, 491 (per curiam).

In State v. Shannon, 10-580, pp. 27-29 (La.App. 5 Cir. 2/15/11), 61 So.3d 706, 724–25 (last alteration in original), writ denied, 11-559 (La. 9/30/11), 71 So.3d 283, the court stated the following regarding the harmless error analysis:

Nevertheless, even if the assistant district attorney's remark was an impermissible indirect reference, which focused the jury's attention on the defendant's failure to testify, the error appears to be harmless. Harmless error occurs when the guilty verdict actually rendered in the trial was surely unattributable to the error. [State v.] Jones, 08–20 at p. 16 [(La.App. 5 Cir. 4/15/09)], 985 So.2d [234,] at 245 (citing State v. Norman, 99-600, p. 9 (La.App. 5 Cir. 2/16/00), 756 So.2d 525, 530, writ denied, 00-971 (La. 3/23/01), 787 So.2d 1007). “Comment on the defendant's failure to take the stand at trial is a trial error, not a structural defect in the proceedings, that has been subject to harmless-error analysis at the federal level since Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).” Jones, 08–20 at p. 16, 985 So.2d at 245 (quoting State v. Thomas, 05-2373, p. 1 (La. 4/17/06), 926 So.2d 490, 491 (per curiam)). Thus, unless an appellate court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict, it should not reverse a conviction due to improper remarks during a closing argument. Jones, 08–20 at p. 16, 985 So.2d at 245 (citing State v. Jackson, 04-293, pp. 5-6 (La.App. 5 Cir. 7/27/04), 880 So.2d 69, 73, writ denied, 05-0232 (La. 5/6/05), 901 So.2d 1094). In making its determination, the appellate court should give credit to the good sense and fairmindedness of the jury that has seen the evidence and heard the argument, and has been instructed that the arguments of counsel are not evidence. Jones, 08–20 at p. 16, 985 So.2d at 245–46 (citing Jackson, 04–293 at 6, 880 So.2d at 73; [State v.] Lai, 04–1053 at 13 [(La.App. 5 Cir. 4/26/05)], 902 So.2d [550] at 559, [writ denied, 05-1681 (La. 2/3/06), 922 So.2d 1175]).

In the present case, there is ample evidence in the record to support a guilty verdict, including testimony by Trooper Onstad that defendant appeared very unsteady on his feet, smelled of alcohol and that his eyes were bloodshot. Trooper Onstad also testified that defendant was uncooperative and would not comply with his instructions or speak. Finally, Trooper Onstad testified that defendant “kept fooling with his belt as if he was going to take his pants off,” and that “[h]e was just doing all kinds of abnormal things.” Based on his training and experience, Trooper Onstad recognized these characteristics as signs of alcohol, medication or drug impairment. Trooper Onstad further testified that, based on the smell alone, he knew that defendant had been drinking alcohol. Trooper Onstad also observed numerous beer bottle caps and a six-pack of beer on the floorboard of the vehicle defendant was driving. In addition to Trooper Onstad's testimony, the State also presented the corroborating video of the stop and arrest.

Based on the testimony and evidence presented in this case, we find that the guilty verdict is not attributable to any error, but is rather based upon evidence that defendant was guilty of the charged offense.

Harmless Error Analysis

There was other evidence, besides Defendant's confession to Deputy Gilchrist, to show Defendant intended to commit a robbery. The handwritten notes mentioned by Defendant to Deputy Gilchrist showed an intent to commit a robbery and were linked to Defendant by means other than Defendant's confession to the deputy. While at the scene, Deputy Gilchrist saw a bag on the ground near Defendant, which Defendant claimed belonged to him. Sergeant William Smith identified the bag's contents as a long cord, gloves, several rounds of ammunition, and “some kind of wallet.” Detective Cody Griffith testified that the bag contained identifying information—Defendant's driver's license, insurance card, and Social Security card—which indicated that the bag belonged to Defendant. According to Detective Griffith, the bag also contained “additional pages that match[ed] these other letters ․ found on the floor of the shop.”

The detective further testified:

There were five pages in total. I don't recall how many were found at the shop by Mr. Duhon's son, but when I collected the bag and brought it back to my office, as we were processing the evidence and going through the bag to see what the contents were, we found the additional pages, and due to the handwriting and the marker and the paper, it all looked like it was the same document. It had just been scattered. So, we collected all five pages, and I logged them all together as one piece of evidence.

Sergeant Smith was not sure which notes were found in the bag and which notes were found in the office. Sergeant Smith identified State's Exhibit Number 20 as a note that read, “Don't do anything stupid. If you do, I will cut your fucking dick off, bitch. Open your safe and register now. Understand?” The sergeant identified State's Exhibit Number 21 as a note that read, “Don't reach in it. If you do, I will cut your throat wide ass open mother fucker. Understand me. Say yes or no.” State's Exhibit Number 22, Sergeant Smith testified, read as follows: “Who do you bank with? Give me your DL, driver license? What is your ATM card PIN number with a line.” Finally, Sergeant Smith testified State's Exhibit Number 23 read, “Gag his mouth. Leave him in shop. Take his truck. Get his DL and ATM card PIN. Where do you bank? Lock and glue the doors. Get his phone and truck keys. Tie him up good.”

There was substantial evidence presented to the jury other than Defendant's confession to Deputy Gilchrist that showed the notes found at the scene belonged to Defendant. Thus, there was evidence besides Defendant's confession to Deputy Gilchrist that showed Defendant intended to rob the victim. Accordingly, the error was harmless.

Defendant's Election to Proceed to Trial was Unintelligent and Wasteful

Defendant sets forth several instances wherein he claims the State improperly demeaned his right to a trial. First, Defendant cites the following comment made during the State's closing:

And we all have a, a, a right to go to trial when we're facing charges, and Hooper has exercised his right to bring this case before you. Right? But that doesn't mean that that was a very intelligent exercise of his rights. Right? And this lack of intelligence and this frank waste of your time, of my time, of our government resources, just because he wants to exercise his right ․ It's your time's been wasted[.]

Defense counsel interrupted the State's argument with the following objection: “Your Honor, I'll object again. This is their decision to bring a case, not Mr. Hooper's. For them to say it's a waste of time, that, that's their - - that's their fault too.” The trial court overruled Defendant's objection.

Defendant further cites the following excerpt from the State's closing argument:

And now you can see, by the level of the cases that get brought in here, why we have such a hard time moving our cases through here. Right? And so, what I'm saying is be swift. Be certain. If you're not back there less than five minutes, that's ․ constitutionally sound.

Defense counsel again interrupted the State's argument with the following objection: “[T]hey should not be rushing to judgment. They should be able to give their time to whatever they need.” The trial court again overruled defense counsel's objection, stating that the prosecutor was “in closing.”

Finally, Defendant cites to the conclusion of the State's rebuttal argument: “[T]his is an extraordinary waste of time, and please give swift justice to Mr. Duhon and his wife.” No objection was made by defense counsel to this statement. In a footnote, Defendant claims that the trial court's repeated overruling of his objections due to the State being “in closing” rendered any further objection “futile.”

Analysis

Since Defendant lodged an objection to two of the above comments and those objections were overruled, Defendant was not required to request a mistrial.

Once a trial judge overrules a defendant's objection, there is no requirement to then request a mistrial, because to do so would have been useless. See State v. Boutte, 93–1249 (La.App. 3rd Cir.4/6/94), 635 So.2d 617, 619. Once the objection has been made and overruled, clearly the court would additionally refuse any request for admonition or mistrial. See State v. Williams, 373 So.2d 1278, 1280 (La.1979).

State v. Gorman, 14-1108, p. 21 (La.App. 1 Cir. 3/6/15), 166 So.3d 356, 371, writ denied, 15-680 (La. 2/19/16), 186 So.3d 1173. See also State v. Dupre, 408 So.2d 1229, 1233 n.8 (La.1982).

In Dupre, the case cited by Defendant, the supreme court stated the following:

Finally, the prosecutor quoted an editorial writer's comments about the repugnance of the crime of rape. The trial court also overruled defense counsel's objection to these comments as an attempt to inflame the jury.

The prosecutor's comments constituted arguments outside the record. Arguments which allude to facts outside of the record are not permitted by C.Cr.P. Art. 774. Similarly, while counsel may argue “the law applicable to the case”, he should not endeavor to influence the jury's verdict by making the legislative scheme appear ridiculous or overly protective of a defendant's rights (as opposed to society's rights). Although this court has admonished prosecutors not to argue outside of the record and not to demean the law in closing argument, we have also repeatedly adhered to the theory that a conviction will not be reversed because of improper closing argument unless this court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict.

Id. at 1233–34 (footnotes omitted).

Even if the State's remarks were improper, Defendant fails to prove these comments influenced the jury's verdict. As stated in the previous discussion, Defendant fails to show the jury's verdict was attributable to these comments rather than to the overwhelming evidence submitted and we are not thoroughly convinced that the comments contributed to the verdict. Accordingly, any error was harmless.

Prosecutor's Personal Belief in Defendant's Guilt

Arguing that the prosecutor expressed his personal belief in Defendant's guilt, Defendant cites the following comment made by the prosecutor in closing rebuttal: “If you are not at a hundred percent certainty [of Defendant's guilt], there is something wrong with how you're looking at it.” To put the prosecutor's statement in context, the following is an excerpt from the State's closing argument:

Uh, I think we feel the obligation, as jurors, to go back there to give due consideration to everything that we've seen. And we really want to parse through it, and think about folks that are very analytical of mind and feeling like there must be this process. I've got to check these boxes. Right. No, you don't. You have seen the evidence. If you are not at a hundred percent certainty, there is something wrong with how you're looking at it.

Defendant did not object to this comment and did not move for a mistrial or an admonition. Thus, Defendant failed to preserve the issue for appeal. Nevertheless, we find no merit to Defendant's claim. The supreme court has stated the following about a prosecutor's expression of his personal belief of a defendant's guilt:

Partly based upon this statutory prohibition (but also for reasons of fairness which extend beyond it), a prosecutor in Louisiana (as well as in almost all other American jurisdictions) is prohibited from expressing his personal opinion of the defendant's guilt in his argument to the jury. State v. Curry, 262 La. 280, 263 So.2d 36 (1972); State v. Landry, 262 La. 32, 262 So.2d 360 (1972); State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964); 2 Marr's Criminal Jurisprudence of Louisiana, Section 664 (1923); 5 Wharton's Criminal Law and Procedure, Section 2083 (Anderson ed., 1967); Annotation,50 A.L.R.2d 766 (1968). Nevertheless, as these sources indicate, the expression of such an opinion by the prosecutor is often held to be nonreversible, if it is apparent to the jury that it is expressly or impliedly only based on the evidence presented to the jury rather than on personal knowledge of facts outside the record.

․

The argument of the present prosecutor goes beyond permissible bounds. He emphasized to the jury that he would not be prosecuting if he did not feel he had a case, “otherwise I wouldn't be here, because it's within my power to be here or not to be here”. This type of argument is an attack on the presumption of innocence afforded all accused before our courts. It emphasizes the function of the prosecutor as an officer of government and tends to exploit it. Such an argument by the prosecutor is almost universally held to be objectionable.

State v. Kaufman, 304 So.2d 300, 307–08 (La.1974).

The comment made by the prosecutor in the present case is distinguishable from the comment in Kaufman. The prosecutor in the present case referred to the evidence presented rather than his own personal belief in the guilt of Defendant. Furthermore, even if the comment was an improper reference to the prosecutor's personal beliefs, Defendant failed to prove the jury's verdict was influenced by the comment rather than the overwhelming evidence presented at trial and any error was harmless.

Placing Jurors in the Victim's Shoes

Contending that the prosecutor impermissibly asked the jurors to place themselves in the victim's shoes, Defendant cites the following comment made by the State in its closing rebuttal:

These people had been waiting for near about four years, not quite, but near about. Can you imagine having somebody come in your shop and stab you, and cut you all up like that? And you had to wait that long when we had this kind of evidence. Right? I don't know. It should get your blood up a little bit.

Defendant argues:

Louisiana law is clear that argument of counsel “shall not appeal to prejudice” or emotion. State v. Turner, 52,510 (La.App. 2 Cir. 4/10/19), 267 So.3d 1202, 1215, writ denied, 19-873 (La. 9/24/19), 279 So.3d 386; State v. Eaton, 524 So.2d 1194 (La.1988), cert. denied 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989). “An argument which attempts to have the jurors think of themselves as crime victims is prejudicial.” State v. Bradley, 516 So.2d 1337, 1339 (La.App. 4th Cir. 1987); citing State v. McClinton, 399 So.2d 178 (La.1981). Further, prosecutors should not turn closing argument into a plebiscite on crime by making overt references to community sentiment. State v. Turner, 52,510 (La.App. 2 Cir. 4/10/19), 267 So.3d 1202, 1215, writ denied, 19-973 [873] (La. 9/24/19) [279 So.3d 386]; State v. Baker, 28,152 (La.App. 2 Cir. 5/8/96), 674 So.2d 1108, 1115; writ denied, 96-1909 (La. 12/6/96), 684 So.2d 925; citing State v. Deboue, 552 So.2d 355 (La.1989); State v. Sugar, 408 So.2d 1329 (La.1982). Here, the prosecutor again went beyond the evidence asking the jury to consider their own emotion in reaching a verdict.

Again, Defendant did not object or request a mistrial because of this remark, and, therefore, failed to preserve the issue for appeal. Moreover, the argument is meritless.

In a case where the “thrust of the state's argument asked the jurors to place themselves in the shoes of the victim,” the supreme court stated the following:

It is not beyond the scope of normal human behavior and experience to imagine one's self in the shoes of a crime victim, and it is not inconceivable that many, if not all, of the jurors in this case, in viewing the evidence adduced at trial, took into account the emotions experienced by the victim prior to his death in rendering their verdict and penalty recommendation. We cannot view the prosecutor's argument in any vein other than as an appeal to the jury to apply their general knowledge and experience to the evidence adduced at trial before rendering their recommendation, and we are hereby unwilling to establish a rule which would per se prohibit the state from asking jurors to place themselves in the shoes of the victim. While it is the function of this court to ensure that criminal defendants do not fall prey to a “lynch mob” mentality, we cannot expect jurors to be cold machines devoid of human emotion. We are of the opinion that the prosecutor's request was sufficiently confined to the evidence and any permissible inferences which could have been fairly drawn therefrom within the meaning of La.C.Cr.P. art. 774. We are likewise of the view that the request did not inject into the penalty proceeding any undue passion, prejudice or other arbitrary factor which unfairly influenced the jury's recommendation that the defendant be sentenced to death.

State v. Moore, 432 So.2d 209, 221-22 (La.), cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983).

The fourth circuit addressed a similar comment as follows:

The prosecutor continued, “Go [sic] forbid if one of your family members died—.” The objection was overruled, and the prosecutor continued “—and the lead detective on the case—.” The defense lodged a second objection that was also overruled. That was the final objection.

It was harmless error for the prosecutor to put the jurors in the shoes of the victim by making a marginal appeal to the jury as victims of a crime. This improper statement was limited so it doesn't show significant impact on the outcome of the case. Further, it can't be said that hearing the statement would have caused the jury to convict defendant where it had been disposed to acquit defendant. We are not “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. Therefore, the argument is without merit.

State v. Huckabay, 00-1082, p. 31 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1110, writ denied, 02-703 (La. 11/1/02), 828 So.2d 564. Similarly, the prosecutor's statement was harmless for all of the reasons already mentioned.

There is no indication in the present case that the jury was influenced by the remarks made by the State in closing. Before closing arguments, the trial court instructed the jury that what the lawyers say is not evidence. The core of the case was that Defendant was apprehended at the scene, identified by the victim and witness, had a bag full of identifying documents that included details and instructions for carrying out the robbery, and confessed to the robbery and the reason for it. Considering the evidence against Defendant that included everything a prosecutor could hope for short of a calling card, the State's overzealousness was totally unnecessary. While we do not condone the various remarks made by the State, none of them outweigh the overwhelming evidence of Defendant's guilt. Defendant fails to show the jury's verdict was attributable to the comments and not the evidence presented and we are not thoroughly convinced that any or all of the comments combined had any bearing on the jury's verdict. Moreover, we must give good sense and fair credit to the jury in its determination, and we do so with ease under the facts of this case. Accordingly, we find the State's comments had no effect on the jury in light of the overwhelming evidence presented of Defendant's guilt, did not affect the entire framework of the trial, and the State's comments, while inappropriate, resulted in harmless error.

Although Defendant asserts that the cumulation of the State's comments attributed to the jury's verdict, the supreme court has “consistently found that harmless errors, however numerous, do not aggregate to reach the level of reversible error.” State v. Brown, 18-1999, p. 117 (La. 9/30/21), 330 So.3d 199, 284, cert. denied, ––– U.S. ––––, 142 S.Ct. 1702, 212 L.Ed.2d 596 (2022). Accordingly, Defendant's assignment of error lacks merit.

DECREE

Defendant's conviction and sentence for attempted armed robbery is affirmed. This case is remanded to the trial court, however, for disposition of the attempted second degree murder charge.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

FOOTNOTES

1.   Rebecca Perego testified at the trial; Randy Perego died before the trial.

GREMILLION, Judge.