286 So.3d 1206
La. Ct. App.2019Background
- Defendant Gerard Ladmirault was charged (1991 offense) with aggravated oral sexual battery of a 14‑year‑old; two earlier trials ended in mistrials and a third jury trial in Oct. 2018 resulted in conviction and a 15‑year hard labor sentence.
- Victim testified Defendant forced her to perform oral sex at knifepoint, ejaculated on her, and threatened to kill her; she reported the incident contemporaneously and later renewed prosecution decades after seeing Defendant.
- Before the third trial Defendant moved to quash the bill of information for violation of the statutory speedy‑trial period (La. C.Cr.P. arts. 578, 582); the trial court denied the motion.
- At the close of the State’s rebuttal argument Defendant objected to several comments and moved for a mistrial alleging (1) implied reference to failure to testify, (2) an improper appeal to jurors’ duty/power, and (3) improper reference to prior mistrials; the court denied mistrial and sustained one objection.
- The appeal raises (A) denial of the mistrial motion and (B) denial of the motion to quash based on alleged failure to timely commence trial; the court affirmed on both grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Whether prosecutor’s rebuttal indirectly referred to Ladmirault’s failure to testify | Prosecutor argued remarks were factual and could be rephrased; not a direct comment on defendant’s silence. | Remarks (e.g., about no one explaining how a 14‑yo could identify semen) implied defendant’s failure to testify and required a mandatory mistrial under La. C.Cr.P. art. 770. | Court sustained the contemporaneous objection, State rephrased; because defense did not move for mistrial on that point after the court sustained the objection, no adverse ruling to review — claim denied. |
| 2) Whether prosecutor improperly appealed to jurors’ emotions/power | State framed argument as urging jurors to protect victims; not so inflammatory as to forfeit contemporaneous‑objection rule. | Closing asked jurors to "stand with" victims and stressed jurors’ exclusive power, which was an improper appeal to prejudice. | Defendant failed to object, request admonition, or move for mistrial; remark not so extremely inflammatory to excuse contemporaneous‑objection rule — claim denied. |
| 3) Whether prosecutor violated court order by referencing prior mistrials | State denied referencing verdicts and noted defense had already referred to prior trials during cross‑examination. | Prosecutor’s comment about victim returning for "round four, five, six" violated the order and prejudiced the jury. | Court found comment did not mention prior verdicts and defense had opened the subject; denial of mistrial was not an abuse of discretion. |
| 4) Whether the statutory speedy‑trial period tolled/interrupted so trial was time‑barred (motion to quash) | State: period was interrupted by a transfer of the Section A file to Section E (cause beyond State’s control); prescription ran anew only after the record arrived in Section E (Feb. 16, 2018), so Oct. 16, 2018 trial was timely. | Ladmirault: State exceeded the one‑year period after the June 24, 2016 mistrial and failed to commence trial within the statutory limit; dismissal required. | Court accepted State’s showing that transfer actions and clerical movement of the record interrupted prescription (starting Oct. 7, 2016) and that running resumed Feb. 16, 2018; the Oct. 16, 2018 trial fell within the restarted period — motion to quash denied. |
Key Cases Cited
- State v. Hayes, 364 So.2d 923 (La. 1978) (contemporaneous‑objection rule applies, except where summation is so inflammatory it affects fairness).
- State v. Crockett, 583 So.2d 593 (La. App. 4th Cir. 1991) (reference to prior trials is not reversible error where verdicts/outcomes are not mentioned and defense opened the topic).
- State v. Rome, 630 So.2d 1284 (La. 1994) (transfer/clerical delays do not automatically excuse prescription unless the state acts to expedite transfer or shows interruption was beyond its control).
- State v. Cotton, 818 So.2d 968 (La. App. 1st Cir. 2002) (delays caused by state appellate processes can interrupt statutory prescription if attributable to causes beyond the state’s control).
- State v. Scott, 913 So.2d 843 (La. App. 4th Cir. 2005) (delay in prosecution that is not deliberate and not intended to hamper defense may not violate speedy‑trial rights).