CHERI HAYDEN v. FREDERICK BOUTTE WARDEN (2023)

The State of Louisiana petitions this Court for a rehearing of our April 26, 2023 decision, which granted Cheri Hayden's writ application, vacated Cheri Hayden's conviction and sentence, and remanded the matter for a new trial. We grant rehearing for the limited purpose of clarifying this Court's writ disposition. In all other respects, the application for rehearing is denied and our original writ disposition remains unchanged.

In its application for rehearing, the State re-urges arguments made in opposition to Cheri Hayden's application for supervisory review and previously reviewed by this Court. We decline to grant rehearing on these issues. However, this Court's original writ disposition contained a typographical error, appearing on page 45 in the first sentence of this Court's conclusion, and which the State complains of on rehearing. This Court's original writ disposition stated:

The record in Cheri Hayden's case is replete with evidence supportive of Cheri Hayden's entitlement to a new trial; and although the inadequate police investigation and the prosecution's withholding of material and favorable evidence in this case merit granting Cheri Hayden a new trial, we find that the real harm to Cheri Hayden's case was the deficient performance of Cheri Hayden's trial counsel.

(Emphasis added). The State's rehearing application asserts that the emphasized language constitutes a judicial finding on issues this Court expressly pretermitted discussion of in its analysis of Cheri Hayden's claims on supervisory review. Therefore, the opinion is amended to delete any suggestion that this Court's finding is based on any claim asserted by Cheri Hayden other than her ineffective assistance of counsel claim. Accordingly, we correct the typographical error in the complained-of language and add the word “may,” to wit:

The record in Cheri Hayden's case is replete with evidence supportive of Cheri Hayden's entitlement to a new trial; and although the inadequate police investigation and the prosecution's withholding of material and favorable evidence in this case may merit granting Cheri Hayden a new trial, we find that the real harm to Cheri Hayden's case was the deficient performance of Cheri Hayden's trial counsel.

(Emphasis added).

For the foregoing reasons, we grant rehearing for the limited purpose of clarifying this Court's writ disposition, as noted supra. In all other respects, the application for rehearing is denied and our original writ disposition remains unchanged.

REHEARING GRANTED FOR CLARIFICATION

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

ROBERT A. CHAISSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

CORNELIUS E. REGAN, PRO TEM

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. WISEMAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 05/23/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CURTIS B. PURSELL CLERK OF COURT

22-KH-244

E-NOTIFIED

24th Judicial District Court (Clerk)

Honorable Stephen D. Enright, Jr. (District Judge)

Charell D. Arnold (Relator)

Anne M. Wallis (Respondent)

Thomas J. Butler (Respondent)

MAILED

Jee Y. Park (Relator)

Attorney at Law

Innocence Project New Orleans

4051 Ulloa Street

New Orleans, LA 70119

Honorable Paul D. Connick, Jr.

(Respondent)

District Attorney

Twenty-Fourth Judicial District

200 Derbigny Street

Gretna, LA 70053

WICKER, J.