State v. Simms 160 So. 3d 963

In re Simms, Sedrick; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 510-680; to the Court of Appeal, Fourth Circuit, No. 2013-KA-0575.

Denied.

CRICHTON, J., additionally concurs with reasons.

CRICHTON, J.,

additionally concurring.

I agree with the majority’s decision to deny this writ. However, I write separately to caution prosecutors from treading too close to statements made in closing arguments that even indirectly reference the defendant’s failure to present evidence or, more importantly, his or her Fifth Amendment right not to testify. As Louisiana law makes abundantly clear, such statements constitute reversible error.

In my opinion, the closing argument in this matter recklessly teeters on grounds for a mistrial and/or reversible material. Although the trial judge in this instance properly denied the mistrial, prosecutors should be aware about this needless — and very dangerous — reference.