State v. Vosloh , 389 So. 2d 1336 ( 1980 )

DENNIS, Justice,

dissenting.

I respectfully dissent.

When argument of a district attorney refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible, a mistrial must be ordered upon motion of defendant. La. C.Cr.P. art. 770. An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. La. C.Cr.P. art. 770. When the argument of a district attorney goes beyond its proper scope, the defendant is entitled to have the trial judge admonish the jury to disregard the argument, if it might create prejudice against the defendant or to have a mistrial ordered if an admonition is not sufficient to assure the defendant of a fair trial. La.C. Cr.P. art. 770; art. 774, comment (c).

Since the district attorney’s remark or comment referred directly to another crime committed or alleged to have been committed by the defendant as to which evidence was not admissible, the defendant was entitled to a mistrial. Even if the remark is considered to have been merely beyond the proper scope of argument, and not a reference to another crime, the defendant was entitled to a mistrial or at least some expression of disapproval of the remark from the trial judge, because the remark clearly “might create prejudice against the defendant.” La.C.Cr.P. art. 771.