State v. Howe

LETTS, Chief Judge.

The defendant’s trial resulted in a mistrial because of a comment by the state attorney in closing argument. The State filed an amended information, and the defendant responded with a motion to dismiss based on double jeopardy, which the trial court granted. We reverse.

Referring to the defense counsel’s comment that the State did not call certain witnesses, the state attorney responded, “Ladies and Gentlemen, I submit to you that both the State and Mr. McGee have the same subpoena powers.”

The defendant argued that this was a comment on his right not to put on any evidence,…