FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 519-334,
SECTION "E" HONORABLE KEVA M. LANDRUM-JOHNSON,
CANNIZZARO DISTRICT ATTORNEY, ORLEANS PARISH SCOTT G. VINCENT
DONNA ANDRIEU ASSISTANT DISTRICT ATTORNEYS COUNSEL FOR
EDWARD REGAN, JR. DONNA ORJUELA REGAN LAW, PLC COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Daniel L. Dysart,
Judge Paula A. Brown)
A. Brown Judge.
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. (La. R.S.
14:43.4(A)(3)(1991). 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.
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
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.
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.
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.
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.
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.
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.
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.
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
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
for mistrial (assignment of error no. 1)
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
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,  775, and 841. 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
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."
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
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