State of Louisiana v. Gerald Ladmirault

STATE OF LOUISIANA * NO. 2023-K-0069

VERSUS *
COURT OF APPEAL
GERALD LADMIRAULT *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 519-334, “SECTION E”
Judge Rhonda Goode-Douglas,
******
Judge Roland L. Belsome
******
ON REMAND FROM LOUISIANA SUPREME COURT

(Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge
Paula A. Brown)

Gerard Ladmirault #358205
Elayn Hunt Correctional Center
P.O. Box 174
St. Gabriel, Louisiana 70776

DEFENDANT/APPELLANT PRO SE

Jason Rogers Williams
District Attorney
Parish of Orleans
Brad Scott
Chief of Appeals
District Attorney’s Office
Parish of Orleans
619 South White Street
New Orleans, LA 70119

COUNSEL FOR STATE OF LOUISIANA/APPELLEE

WRIT GRANTED; RELIEF DENIED
JUNE 20, 2024

RLB
TFL
PAB

After this Court remanded defendant/relator’s pro se writ application to the

district court to “further explore at an evidentiary hearing with appointed counsel

relator’s claim that trial counsel was ineffective for failing to file a motion to

quash,” State v. Ladmirault, 2023-0069 (La.App. 4 Cir 2/16/23), the state sought

review in the Supreme Court, which granted the writ, reversing this Court’s

remand order, and directing us to “rul[e] on the merits of the claims asserted in

respondent’s applications for review, with or without additional briefing . . . .”

State v. Ladmirault, 2023-00291 (La. 5/21/24), ___ So.3d ___. For the reasons set

forth below, we grant the writ but deny relief.

Our opinion on appeal reveals that the state filed a bill of information on

February 24, 2014, charging relator with aggravated oral sexual battery based on

an incident that occurred in 1991. Following two mistrials, relator was found

guilty as charged by the jury on October 17, 2018. Later that year, the court

sentenced relator to fifteen years imprisonment at hard labor. In our appellate

opinion, this Court described the evidence presented as follows:

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

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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.

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.

State v. Ladmirault, 2019-0512, pp. 2-3 (La.App. 4 Cir. 12/18/19), 286 So.3d

1206, 1209-10 (footnote removed).

This Court affirmed the conviction and sentence, rejecting relator’s claims

that a mistrial was warranted as a result of: (1) the state’s improper reference to his

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failure to testify; (2) the state’s inflammatory and prejudicial closing argument; and

(3) the state’s indirect reference to the two earlier cases which resulted in mistrials.

We also rejected relator’s claim that the district court should have granted his

motion to quash based on the delay between the mistrial ordered (after his second

trial) and the commencement of his third trial. The Supreme Court denied writs.

State v. Ladmirault, 2020-0512 (La. 5/14/20), 296 So.3d 616. Notably, relator

apparently did not file a motion to quash in the district court based on prescription

and did not raise on appeal any argument that the charge had prescribed based on

the state’s failure to charge him within ten years of the victim’s seventeenth

birthday – the law in effect at the time.

Relator subsequently filed a pro se application for post-conviction relief and

the court conducted an evidentiary hearing on its merits on September 12, 2022.

At the hearing, at which relator represented himself with standby counsel present,

he claimed that his trial attorney rendered ineffective assistance by failing to move

to quash the bill of information when the time limitations within which to institute

prosecution had expired prior to his February 24, 2014 indictment. See La. C.Cr.P.

art. 571 et seq.1

The state responded that relator had “presented no testimony from that trial

attorney.” The district attorney further maintained that the facts of the case

supported an aggravated kidnapping charge, a crime which carries a mandatory

1 In 1991, La. C.Cr.P. art. 572 provided that the no person shall be prosecuted for an offense not

punishable by death or life imprisonment unless the prosecution is instituted within six years for
a felony (such as aggravated oral sexual battery) necessarily punishable by imprisonment at hard
labor. However art. 573(4) provided that the time limitations shall not commence to run when
the offense is aggravated oral sexual battery and the victim is under the age of seventeen. When
the victim turned seventeen in 1994, art. 571.1 had been enacted, which provided that the time
limitations within which to institute prosecution for aggravated oral sexual battery was ten years.
The state was thus required to charge relator no later than 2004.

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parole-ineligible life sentence and for which “[t]here is no time limitation upon the

institution of prosecution . . . .”

The district court judge adopted the state’s argument, distinguishing relator’s

case from State v. Taylor, 2016-1252 (La.App. 4 Cir. 4/6/17), 313 So.3d 278, writ

denied, State v. Taylor, 2017-0684 (La. 6/16/17), 221 So.3d 845, in which this

Court granted the defendant’s ineffective assistance of counsel claim based on his

attorney’s failure to file a motion to quash because “Mr. Lamdirault [sic] could

have been facing the crime of aggravated kidnapping, wherein, there was a life

sentence.” The district court judge also noted that relator’s trial attorney “did file a

motion to quash based upon other grounds . . . .” On that basis, the court declared

that it was “not going to find that [counsel] was ineffective” and accordingly

denied the application for post conviction relief.

DISCUSSION

As a general matter, a trial court's determinations of fact are reviewed for

abuse of great discretion, and legal decisions are reviewed de novo. State v.

Candebat, 2013-0780, pp. 6-7 (La.App. 4 Cir. 1/30/14), 133 So.3d 304-306 (citing

State v. Wells, 2008-2262 (La. 7/6/10), 45 So.3d 577).

To support a claim for ineffective assistance of counsel, a defendant must

meet the two prong test set forth in Strickland v. Washington, which provides that

(1) a defendant must show that counsel's representation was deficient and (2) the

deficiency prejudiced the defendant. 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80

L.Ed.2d 674 (1984). A defendant must “show that counsel made errors so serious

that he was not operating as the type of counsel guaranteed by the Sixth

Amendment to the United States Constitution.” State v. Boyd, 2014-0408, p. 7

(La.App. 4 Cir. 7/25/18), 318 So.3d 397, 402 (citation omitted).

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The Strickland test of ineffective assistance affords a "highly deferential"

standard of review to the actions of counsel to eliminate, as far as possible, "the

distorting effects of hindsight, to reconstruct the circumstances of counsel's

conduct, and to evaluate the conduct from counsel's perspective at the time."

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. An appellate court therefore "does

not sit to second-guess strategic and tactical choices made by trial counsel." State

v. Myles, 389 So.2d 12, 39 (La. 1980); see also State v. Leonard, 2018-0142, p. 21

(La.App. 4 Cir. 12/26/18), 262 So.3d 378, 391.

Finally, “[t]he petitioner in an application for post conviction relief shall

have the burden of proving that relief should be granted.” La. C.Cr.P. art. 930.2.

In Taylor, supra, this Court granted the defendant’s post-conviction

application in which he argued that his counsel rendered ineffective assistance

based on his attorney’s failure to move to quash a forcible rape charge that had

prescribed. Id., 2016-1252, p. 9, 313 So.3d 278, 294 ("Had counsel for Taylor

filed a motion to quash the forcible rape charge, there is a reasonable probability

that Taylor ultimately would have . . . [had] his conviction and sentence vacated.

Thus, we conclude that Taylor has satisfied both prongs of the Strickland test.”) In

response to this Court’s opinion vacating Taylor’s conviction and sentence, the

state obtained a superseding grand jury indictment charging him with aggravated

(first degree) rape and aggravated kidnapping, charges which may be instituted at

any time and which carry mandatory, parole-ineligible life sentences. State v.

Taylor, 2018-0192, p. 2 (La.App. 4 Cir. 5/23/18) 247 So.3d 1192, 1194.

As recognized by the district court at the evidentiary hearing at which it

considered relator’s application, the state’s evidence would appear to have

supported a charge of aggravated kidnapping and nothing would have prevented

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the state from charging him with that offense had counsel successfully moved to

quash the aggravated oral sexual battery charge on prescription grounds. In this set

of circumstances, counsel’s failure to file a motion to quash the charge on that

basis likely constituted sound trial strategy. In any event, relator certainly did not

satisfy his post-conviction burden of proof when he failed to subpoena his trial

counsel to testify at the post-conviction hearing. Therefore, we find that the trial

court did not err when denying relator’s application for post-conviction relief.

DECREE

For the reasons set forth above, the application for supervisory review filed

by relator is granted, but relief is denied.

WRIT GRANTED; RELIEF DENIED

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