APPLICATION FOR SUPERVISORY WRIT DIRECTED TO CRIMINAL
DISTRICT COURT ORLEANS PARISH NO. 473-056, SECTION
"B" Honorable Tracey Flemings-Davillier, Judge.
A. Cannizzaro, Jr., District Attorney, Kyle Daly Assistant
District Attorney, PARISH OF ORLEANS, COUNSEL FOR STATE OF
J. Barker Regan Law, P.L.C. COUNSEL FOR DEFENDANT, HERBERT
composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet,
Judge Regina Bartholomew Woods.
ROSEMARY LEDET JUDGE.
State of Louisiana seeks review of the district court's
November 4, 2016 ruling denying the State's procedural
objections to the post-conviction application filed by the
defendant, Herbert Everett. In his application for
post-conviction relief, Mr. Everett contended that the State
violated Brady v. Maryland, 373 U.S. 83, 84, 83
S.Ct. 1194, 1195, 10 L.Ed.2d 215 (1963), by failing to
disclose evidence of a deal it made with Riley Sanders, an
eyewitness that testified for the prosecution during Mr.
Everett's trial. For the reasons that follow, we grant
the State's writ and reverse the district court's
OF THE FACTS AND THE CASE
September 20, 2007, Mr. Everett and his co-defendant, Tyrone
Crump, ("the Defendants") were indicted for the
first degree murder of Arthur Jackson, in violation of La.
R.S. 14:43. On October 3 and October 5, 2007, the Defendants
pled not guilty. On March 31, 2009, the State amended the
charge to second degree murder.
September 14, 2009, a jury trial commenced. On September 18,
2009, the jury found the Defendants guilty as
charged. Thereafter, the Defendants filed motions
for new trial. In conjunction with his motion for new trial,
Mr. Everett filed a request for production of all
correspondence between the New Orleans District
Attorney's Office and the United States Attorney's
Office regarding Mr. Sanders. The State subsequently produced
a letter, dated December 8, 2009 from Assistant District
Attorney, Kevin Guillory, to Assistant United States District
Attorney, Maurice Landrieu. In the letter, Mr. Guillory
explained that "Mr. Sanders' cooperation was
instrumental to the successful prosecution of Tyrone Crump
and Herbert Everett." Mr. Guillory further noted as follows:
Mr. Sanders is truly a hero in the eyes of the District
Attorney's office and the citizens of New Orleans. He put
himself in harm's way and has jeopardized his own safety
to come forward and tell the truth. For that, I am asking
that Riley Sanders be given Rule 35 consideration for his
efforts, and that he receive a reduction in his remaining
September 21, 2010, Mr. Everett filed a motion for
post-verdict judgment of acquittal and attached Mr.
Guillory's letter. Following a hearing, the district
court denied the motions for new trial. On October 5, 2010,
the Defendants were sentenced to life imprisonment without
benefit of probation, parole, or suspension of sentence. The
appeal to this court, Mr. Everett raised several assignments
of error. See Everett, supra. In one of his
assignments of error, he contended that a new trial was
necessary because of the State's violation of Napue
v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217
(1959) (providing that a new trial is warranted if the
statements at issue are shown to be actually false; the
prosecution knew they were false; and the statements were
material). Mr. Everett contended that the State knowingly
suborned perjury from Mr. Sanders. This court found that the
State established the Defendants' identities as
perpetrators of the shooting and presented sufficient evidence
to convict the Defendants of second degree murder.
Accordingly, this court affirmed the Defendants'
April 23, 2014, Mr. Everett filed a pro se
application for post-conviction relief alleging ineffective
assistance of counsel. On August 20, 2015, the district court
ordered the State to file any procedural objections or a
response to the merits within thirty days. On October 23,
2015, after being granted an extension, the State filed its
April 25, 2016, counsel enrolled for Mr. Everett and filed a
supplemental memorandum in support of his application for
post-conviction relief. Mr. Everett contended that the State
failed to disclose exculpatory evidence of a deal the State
entered with Mr. Sanders in violation of
Brady. On October 14, 2016, the State filed
procedural objections to the supplemental post-conviction
application. The State contended that Mr. Everett's
Brady claim regarding Mr. Sanders' deal was
barred by La. C.Cr.P. art. 930.4.
November 4, 2016, following a hearing, the district court
denied the State's procedural objections as to the
Brady claim. From that ruling, ...