STATE v. LEWIS (2026)

Stay recalled. The trial court declared a mistrial in this second degree murder case based upon La. C.Cr.P. art. 770 ¹ following the state's direct questioning of a witness (the mother of the defendant's children). The disputed question was directed at an uncooperative witness following frustration from the witness repeatedly expressing that she remembered nothing from these events, including failing to recall her own statements to police. Specifically, the state asked:

Q. And when was it that you learned that he was a suspect in the homicide?

A. I don't – I don't remember what day it was. I can't tell you the dates of nothing that happened seven years ago. I could barely remember last week.

Q. All right. Has he been a suspect in a – in lots of homicides? Mr. Register: Objection.

A. How am I supposed to know that?

Writ App'x, pp. 41.

Defendant moved for a mistrial, arguing the district attorney's comment before the jury referred “directly or indirectly” to another “crime committed or alleged to have been committed by the defendant [ ] as to which evidence is not admissible.” The trial court initially stated it believed an admonition not to consider the question would be more appropriate than a mistrial, as it did not appear the defendant had received such prejudice that he could not receive a fair trial. Nevertheless, the trial court granted a mistrial, finding the mandatory provisions of La. C.Cr.P. art. 770 applicable. For the following reasons, we find the trial court committed legal error in doing so, and that error interdicted the court's exercise of its discretion.

In reference to La. C.Cr.P. art. 770, this Court has stated:

A mistrial is warranted under La.Code Crim.P. art. 770 when certain remarks are considered so prejudicial and potentially damaging to a defendant's rights that even jury admonition could not provide a cure. State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94․.The comment must be within earshot of the jury and must be made by a judge, district attorney, or other court official. Id. Comments must be viewed in light of the context in which they are made. State v. Webb, 419 So.2d 436, 440 (La.1982). Moreover, a comment must not “arguably” point to a prior crime; to trigger mandatory mistrial pursuant to Article 770(2), the remark must “unmistakably” point to evidence of another crime. State v. Babin, 336 So.2d 780 (La.1976) (where reference to a “mug shot” was not unmistakable reference to a crime committed by defendant); State v. Harris, 258 La. 720, 247 So.2d 847 (1971) (where no crime was evidenced by a police officer's reference to obtaining defendant's photograph from the Bureau of Investigation). In addition, the imputation must “unambiguously” point to defendant. State v. Edwards, 406 So.2d 1331, 1349 (La.1981), cert. denied sub nom. Edwards v. La., 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982). The defendant has the burden of proving that a mistrial is warranted. See State v. May, 362 So.2d 516 (La.1978).

State v. Edwards, 97-1797, p. 19-20 (La. 7/2/99), 750 So. 2d 893, 906 (emphasis supplied).

Considering the context of the situation in this instance ² and the exact language as set forth above, there is no evidence of an actual “other crime” in this matter. Furthermore, it does not meet the standard of unmistakably pointing to evidence of another crime that unambiguously points to the defendant. Consequently, La. C.Cr.P. art. 770 does not apply in this instance. See e.g. State v. Guidry, 19-1624 (La. App. 1 Cir. 10/21/20), 315 So. 3d 259 (the court finding La. C.Cr.P. art. 770 did not apply because the prosecutor's question about the “five kilos of cocaine the defendant threw out the window” was an ill-advised but sarcastic and hyperbolic remark that did not constitute a serious allegation about additional criminal conduct). That was also the case here; therefore, this issue is properly resolved under La. C.Cr.P. art. 771.³

La. C.Cr.P. art. 771(1) mandates the trial court issue an admonition to disregard a remark or comment made during the trial that is irrelevant, immaterial, or of such a nature that it might create prejudice against the defendant, where that comment is “not within the scope of Article 770.” In sum, because Article 770 does not apply here and the trial court did not consider this matter pursuant to Article 771, we remand this matter to the trial court to determine whether an admonition is sufficient to cure any possible prejudice against the defendant in this case.

After conducting a proper analysis pursuant to La. C.Cr.P. art. 771, the trial court should only grant a mistrial if it determines that an admonition under La. C.Cr.P. art. 771 is not sufficient to assure the defendant a fair trial.

The stay order issued by the appellate court concerning the scheduling of the trial is vacated. This matter is remanded to the trial court for further proceedings consistent with this Opinion. The trial court shall hear and rule on this matter pursuant to La. C.Cr.P. art. 771 no later than Friday, September 25, 2026, so that this trial may continue when the current recess is scheduled to conclude unless the trial court finds an admonition insufficient to cure the harm caused here.

STAY RECALLED. WRIT GRANTED IN PART. REMANDED.

FOOTNOTES

1.   La. C.Cr.P. art. 770 provides: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:(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;(3) The failure of the defendant to testify in his own defense; or(4) The refusal of the judge to direct a verdict.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.

2.   As noted above, the record reflects the prosecutor in this matter was not actually referencing any actual other crime committed or alleged to have been committed by the defendant but was reacting in kind to a hostile witness whose memory had failed her in a seemingly inexplicable manner.

3.   La. C.Cr.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.

PER CURIAM