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State v. Everett

Court of Appeals of Louisiana, Fourth Circuit

January 24, 2017

STATE OF LOUISIANA
v.
HERBERT EVERETT

         ON APPLICATION FOR SUPERVISORY WRIT DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 473-056, SECTION "B" Honorable Tracey Flemings-Davillier, Judge.

         WRIT GRANTED.

          Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly Assistant District Attorney, PARISH OF ORLEANS, COUNSEL FOR STATE OF LOUISIANA/THE RELATOR.

          Paul J. Barker Regan Law, P.L.C. COUNSEL FOR DEFENDANT, HERBERT EVERETT.

          Court composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Regina Bartholomew Woods.

          ROSEMARY LEDET JUDGE.

         The 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 ruling.

         STATEMENT OF THE FACTS AND THE CASE

         On 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.

         On September 14, 2009, a jury trial commenced. On September 18, 2009, the jury found the Defendants guilty as charged.[1] 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."[2] 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 sentence.

         On 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 Defendants appealed.

         On 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.[3] This court found that the State established the Defendants' identities as perpetrators of the shooting[4] and presented sufficient evidence to convict the Defendants of second degree murder. Accordingly, this court affirmed the Defendants' convictions.

         On 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 response.

         On 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.[5] 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.[6]

         On November 4, 2016, following a hearing, the district court denied the State's procedural objections as to the Brady claim.[7] From that ruling, ...


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