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State v. Ladmirault

Court of Appeals of Louisiana, Fourth Circuit

December 18, 2019

STATE OF LOUISIANA
v.
GERARD LADMIRAULT

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 519-334, SECTION "E" HONORABLE KEVA M. LANDRUM-JOHNSON, JUDGE.

          LEON CANNIZZARO DISTRICT ATTORNEY, ORLEANS PARISH SCOTT G. VINCENT DONNA ANDRIEU ASSISTANT DISTRICT ATTORNEYS COUNSEL FOR APPELLEE

          MARTIN EDWARD REGAN, JR. DONNA ORJUELA REGAN LAW, PLC COUNSEL FOR APPELLANT

          (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown)

          Paula A. Brown Judge.

          This is a criminal appeal. Defendant, Gerard Ladmirault, was charged by bill of information, on February 24, 2014, with aggravated oral sexual battery of L.G.[1] (La. R.S. 14:43.4(A)(3)(1991).[2] Defendant's first and second trials resulted in mistrials. Prior to commencement of the third trial, Defendant filed, on March 20, 2018, a motion to quash the bill of information for failure of the State to timely commence trial. A hearing on the motion was held, and the district court denied the motion.

         Following, on October 16, 2018, a jury trial commenced. At the conclusion of closing arguments, Defendant moved for a mistrial and the district court denied the motion. Following, Defendant was found guilty as charged by the jury on October 17, 2018. On December 11, 2018, a sentencing hearing was held. Prior to imposition of sentence, the district court denied Defendant's motion for new trial. Defendant waived sentencing delays, and he was sentenced to fifteen years at hard labor.[3]

         Defendant timely appeals and asserts that the district court erred in denying his motion for mistrial and his motion to quash the bill of information. For the reasons set forth below, we affirm Defendant's conviction and sentence.

         STATEMENT OF FACTS

         The testimony at trial revealed Defendant forced fourteen-year old L.G. to perform oral sex on him, and he threatened to kill her, while brandishing a knife, if she refused.

         L.G. testified she was fourteen years old in 1991. L.G. stated that her mom was a drug addict and was not often around. As a result, L.G. lived with a family friend, Cynthia Carriere, who L.G. referred to as "Miss Cynthia." L.G. explained she knew Defendant as a friend of Miss Cynthia's, and he would often come to Ms. Cynthia's house to visit. L.G. stated that she believed Defendant was in his mid-thirties in 1991.

         On October 16, 1991, Defendant told L.G. he would take her to purchase school uniforms; instead, Defendant transported L.G. to his house. Once in the house, Defendant pushed L.G. down, held a knife to her neck, and forced her to perform oral sex on him. Defendant threatened to kill L.G. if she did not comply. L.G. recalled Defendant ejaculated in her face, on her chest, and all over her shirt. Defendant grabbed a white towel and wiped the semen off of L.G. Afterwards, Defendant drove L.G. to Miss Cynthia's home. During the drive, Defendant brandished a firearm and warned L.G. that he would kill her if she told anyone what had happened.[4]

         Upon arrival to Miss Cynthia's home, L.G. recounted what happened to Miss Cynthia and L.G.'s cousin, who was visiting. Immediately, L.G. reported the incident to police and the police responded. The next day, L.G. met with a detective and gave a formal statement. The case, however, never went to trial. L.G. explained that her mother came to her with an affidavit that she signed, and at the time, she did not understand that the affidavit allowed the charges against Defendant to be dropped.

         At trial, Miss Cynthia corroborated L.G.'s testimony: L.G. told her what occurred when L.G. returned home from her encounter with Defendant; L.G. reported the incident to the police; and L.G.'s mother attempted to have L.G. drop the charges against Defendant. Ms. Cynthia stated she believed L.G.'s' allegation against Defendant the night of the incident because she observed seminal fluid on L.G.'s face. Miss Cynthia stated that she terminated her friendship with Defendant soon after the incident.

         L.G. testified that she saw Defendant, decades later, drop off a little girl at the same school her son attended. L.G. became upset and drove to the District Attorney's office to inquire about her old case, and learned that "the case had been thrown out, or something to that effect." The prosecutor informed L.G. that the case had not yet prescribed, and L.G. advised the prosecutor that she wished to pursue the charges against Defendant.

         ERRORS PATENT

         In accordance with La.C.Cr.P. art. 920, all appeals are routinely reviewed for errors patent on the face of the record. In the case sub judice, there are no errors patent.

         DISCUSSION

         On appeal, Defendant assigns two errors: (1) the district court erred in denying his motion for mistrial; and (2) the district court erred in denying his motion to quash the bill of information.

         Motion for mistrial (assignment of error no. 1)

         Defendant asserts that the district court erred by failing to declare a mistrial on three grounds which occurred during the State's rebuttal to closing arguments: (1) the State indirectly referenced Defendant's failure to testify at trial; (2) the State improperly commented that the jurors were the only people remaining with the power to stand up for the victim; and (3) the State improperly referenced the two previous mistrials in violation of the district court's order.

         There are three ways for a defendant to properly preserve for review an alleged error of improper comments by the State: object to the alleged error, request the trial court to admonish the jury, and/or move for a mistrial. La. C.Cr.P. arts. 771, [5] 775, and 841.[6] A mistrial may be ordered, and in a jury case, the jury dismissed, when "[t]here is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law." La. C.Cr.P. art.

          775(3). The standard for review of a trial court's ruling denying a request for a mistrial is abuse of discretion. First, Defendant contends that the State, in its rebuttal to closing arguments, indirectly referred to his failure to testify:

Do you[r] kids know where you ejaculate? Are children going to be able to tell me where pieces of clothing are in the house with semen on it? Well, no. That would greatly concern me if that could happen. She did it at fourteen. You know what explanation you've been provided with for that? Nothing. There had been nothing to refute that. No one has taken the stand and explained in any way how a fourteen-year-old girl, right after saying she was raped, was able to tell the detective, "go to that house; go in the bathroom. There is a white towel with his semen on it."

         Defendant argues the State's reference to his failure to testify violated his constitutional right against self-incrimination and is grounds for a mandatory mistrial.

Louisiana Code of Criminal Procedure Article 770 pertinently 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 ...

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