Cheri Hayden Versus Frederick Boutte, Warden

Opinion

CHERI HAYDEN NO. 22-KH-244

VERSUS FIFTH CIRCUIT

FREDERICK BOUTTE, WARDEN COURT OF APPEAL

STATE OF LOUISIANA

May 23, 2023

Linda Wiseman First Deputy Clerk

ON APPLICATION FOR REHEARING

Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois

REHEARING GRANTED FOR CLARIFICATION

FHW SMC JGG WICKER, J.

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

22-KH-244 1 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

22-KH-244 2 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

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:

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) Honorable Paul D. Connick, Jr. Attorney at Law (Respondent) Innocence Project New Orleans District Attorney 4051 Ulloa Street Twenty-Fourth Judicial District New Orleans, LA 70119 200 Derbigny Street Gretna, LA 70053