STATE v. HENRY (2020)

Stay denied. Writ application denied.

On Supervisory Writ to the Criminal District Court, Parish of Orleans Criminal

The murders of 89-year-old Durelli Watts and her 67-year-old daughter Ina Gex occurred in 2004 in Ms. Watt's home. Ms. Watts was stabbed 14 times, and her body and home were set on fire. When Ms. Gex arrived to check on her mother, the assailant shot her four times on the porch, rummaged through her purse, then calmly walked away. Three neighbors were eyewitnesses who testified at trial that defendant was the perpetrator.

Defendant was convicted on two counts of first-degree murder under Louisiana Revised Statutes 14:30(A)(1). In 2019, alleging new DNA evidence and factual innocence, defendant filed an amended petition for post-conviction relief. The trial court granted relief under Louisiana Code of Criminal Procedure Article 930.3 (7), which requires “clear and convincing evidence” of factual innocence of the crime for which he was convicted. That decision is currently under appellate review; therefore, there is no final determination that defendant is entitled to post-conviction relief.

I do not believe this defendant is entitled to bail before the judgment granting post-conviction relief is final. Louisiana Code of Criminal Procedure Article 930.5 requires the defendant be held in custody “pending a new trial”, if there are sufficient grounds to reprosecute, but requires bail. Under Louisiana Code of Criminal Procedure Article 930.6, the trial court can stay the judgment granting post-conviction relief while the State seeks supervisory review. The State has sought review of the judgment granting defendant a new trial. Depending on the outcome of appellate review, there may be no new trial.

In the meantime, defendant is given the opportunity for release after being convicted of a double homicide on the strength of eyewitness testimony. While the trial judge has broad discretion in these matters, I believe he abused that discretion by granting bail and denying a stay before the judgment granting post-conviction relief is final. I would stay the trial court's order setting bail until appellate review of the new-trial order is exhausted.

Weimer, J., would grant stay; grant writ. Crain, J., would grant stay; grant writ and assigns reasons.