The opinion
STATE OF LOUISIANA * NO. 2020-K-0617
VERSUS *
COURT OF APPEAL
JARVIS BALLARD *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******
APPLICATION FOR WRITS DIRECTED TO
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 208-545, DIVISION “B”
Honorable Jeanne Nunez Juneau, Judge
******
Judge Edwin A. Lombard
******
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge
Tiffany G. Chase)
Perry M. Nicosia
District Attorney
Megan T. Suffern
Assistant District Attorney
Ashton J. Licciardi
Assistant District Attorney
St. Bernard Parish District Attorney’s Office
1101 West St. Bernard Highway
Chalmette, Louisiana 70043
COUNSEL FOR STATE OF LOUISIANA
Charell Arnold
Richard Davis
Innocence Project New Orleans
4051 Ulloa Street
New Orleans, LA 70119
COUNSEL FOR DEFENDANT
WRIT AFFIRMED IN PART;
REVERSED IN PART; VACATED
IN PART; AND REMANDED
JULY 21, 2021
EAL
On application for supervisory writ, the defendant/relator Jarvis Ballard
RLB
seeks review of the district court judgment sustaining the State’s procedural
TGC
objections and dismissing his application for post-conviction relief. After review
of the record in light of the arguments of the parties and applicable law, we grant
the relator’s writ application, affirm the district court judgment in part, vacate the
district court judgment in part, reverse the district court judgment in part, and
remand the matter to the district court for an evidentiary hearing on the merits of
the relator’s claims for post-conviction relief.
Relevant Facts and Procedural History
In the early morning hours of January 10, 1998, N.D. called 911 to report a
sexual assault and robbery in her home. The police arrived shortly thereafter and
the sixty-year-old victim related that she opened her door at 2 a.m. on the
assumption that the knock on her door was her son arriving to pick up his young
son. However, when she opened the door “two black males, one dressed in a red
pullover shirt with a hood, the other wearing a dark colored parka style jacket with
a hood” shoved their way into the house, raped her (one vaginally, the other both
anally and vaginally with his fingers), threatened her, and then left with several
1
electronic items and a ring from her finger. The victim’s grandson (who witnessed
the assault) told the police he saw only two men. Likewise, the victim’s neighbors
reported seeing only two men carrying items between the victim’s house and a car
parked in front of the house.
The victim underwent a sexual assault examination at the hospital to obtain
evidence for a rape kit, i.e., DNA analysis. She then gave a second statement at the
police station, reiterating that two perpetrators were involved and that one of them
placed his fingers in her vagina. When asked if she recalled any other participants
in her home, she answered “No.”
Subsequently, the relator was one of three men indicted1 for sexual assault
on the victim, despite the lack of any DNA evidence linking him to the crime2 and
the exculpatory evidence contained in the State’s file. Upon conviction for
aggravated rape, he received a sentence of life without the possibility of parole. In
July 2001, this court affirmed his conviction and sentence. State v. Ballard, 99-
3156 (La. App. 4 Cir. 7/25/01), 792 So. 2d 899, writ denied, 2001-2409 (La.
9/13/02), 824 So. 2d 1189.
Without financial resources or investigative assistance, the relator filed a
timely, but unsuccessful, pro se application for post-conviction relief in August
2003.3 State v. Ballard, 2004-0619, (La. App. 4 Cir. 5/28/04); State ex. rel.
1
The three defendants (the relator, Ulysses Pierre, and Sidney Williams) were indicted in St.
Bernard Parish for aggravated rape, a violation of La. Rev. Stat. 14:42. Mr. Williams’ case was
severed from his co-defendants and he was found guilty as charged. The relator and Mr. Pierre
were tried together and found guilty as charged on July 21, 1999. The relator was sentenced to
serve life in prison without the benefit of parole on July 30, 1999.
2
The DNA evidence in this case establishes that both of the relator’s co-defendants assaulted the
victim.
3
An application for post-conviction relief “allows for the presentation of claims that could not
be addressed on direct review, including ineffective assistance of counsel, suppression
of Brady evidence, juror misconduct, or any other cognizable ground that relies on evidence
2
Ballard v. State, 2004-1742 (La. 5/6/05), 901 So. 2d 1082. In 2013, he filed a
second pro se application for post-conviction relief (again without financial
resources or investigative assistance), including a claim that his counsel was
ineffective on appeal for failing to raise the erroneous denial of his motion to
suppress the photographic line-up. Again, the relator’s pro se application was
denied. State v. Ballard, 2013-1381 (La. App. 4 Cir. 10/15/13); State ex. rel.
Ballard v. State, 2013-2675 (La. 7/31/14), 146 So. 3d 544.
In March 2017, the Innocence Project New Orleans (IPNO) accepted the
relator as a client and filed the instant application on his behalf on March 17, 2017,
with supplements filed in April 2018 and, again, in November 2018. In this
counsel-filed application based on extensive investigation, the relator’s claims are
layered: (1) first, the State withheld exculpatory evidence in violation of Brady4
but, in the alternative: (2) if the court finds that the evidence was not withheld, the
court must consider whether defense trial counsel’s failure to find and use the
material constitutes ineffective assistance of counsel; if these constitutional claims
fail, then the court must consider whether (3) the relator is entitled to relief based
on his actual innocence and/or (4) in the interest of justice.
The relator’s application is supported by substantial evidence and
documentation, including supplemental police reports and other evidence known to
the State but withheld from the relator, new accounts from witnesses, DNA results,
expert reports, and numerous related affidavits. This includes the following
pertinent documents:
outside the trial record.” State v. Harris, 2018-1012, p. 8 (La. 7/9/20), __ So. 3d ___, 2020 WL
3867207.
4
Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), prosecutors maintain a continuing duty to
disclose materially exculpatory evidence, i.e., evidence favorable to the accused.
3
By sworn affidavit, the relator’s trial attorney, Kerry Cuccia, states in
relevant part:
1. He is a member of the Louisiana Bar in good standing with a
practice in criminal and civil law.
2. In 1999, the relator’s mother hired him to represent her son in
this criminal matter. This was his first and, possibly, only trial
in St. Bernard Parish.
3. He replaced the relator’s appointed attorney, William Egan, a
lawyer with St. Bernard Parish Indigent Defender Board and, as
counsel of record, received the relator’s file from Mr. Egan.
4. The relator’s file contained only the initial report from the St.
Bernard Parish Sheriff’s Office, a return on a search warrant, an
application for an arrest warrant, rights of the arrestee forms, the
statements of the relator and his co-defendants, the crime scene
technician’s report, and a report from the Louisiana State Police
lab.
5. Mr. Cuccia related, “[b]ecause the above items were in the file
and a discovery motion had been filed on Mr. Ballard’s behalf
by a previous attorney, I thought discovery had already been
turned over by the State.” (emphasis added)
6. Upon being informed in 2017 by IPNO lawyers that many
attorneys who practiced in St. Bernard Parish told them that DA
Jack Rowley practiced open file discovery, Mr. Cuccia stated
that, if true, he had never been aware of this policy.
7. Mr. Cuccia did not recall ever going himself or sending someone
to the St. Bernard District Attorney’s office to view or copy their
files.
8. While representing the relator, Mr. Cuccia did not employ an
investigator and did not hire one for this case; he did not consult
with experts on eyewitness identifications, memory, or false
confessions; he did not interview the relator’s co-defendants;
and he did not know that Ulysses Pierre recanted part of his
confession implicating the relator or that Mr. Pierre refused to
testify against the relator.
9. Mr. Cuccia did not know why the entire rape kit was not tested
but conceded he did not seek out additional DNA testing or
consult with an expert on DNA or forensic DNA testing.
10. When shown a number of documents in 2017 by IPNO
attorneys, including statements by witnesses (Louis Caesar,
Yolanda Caesar, and `Quandreka Ballard), the victim’s first and
second written statements, Criminal Investigation Bureau reports
regarding witness interviews, the Final Supplemental Report, or
the application for the search warrant for 2402 Licciardi Lane,
Mr. Cuccia observed that, had he been aware of this information,
he would have used the relevant exculpatory material for
impeachment purposes. Further, Mr. Cuccia enumerates specific
4
portions of the witness statements that could have been used for
impeachment purposes.
11. Mr. Cuccia stated that he had never talked to the relator’s aunt,
Dale Pierre, and neither knew or had ever talked to Sabrika
Lewis or Tyrus Duplessis about the relator’s case.
By sworn affidavit, William Egan (the attorney appointed initially to
represent the relator) corroborates Mr. Cuccia’s statement. He states that he turned
over to Mr. Cuccia all the discovery material provided by the State pertaining to
the relator prior to trial. As a matter of routine, because the D.A.’s office offered
open file discovery, Mr. Egan or his assistant regularly went to the prosecutor’s
office to make copies of his clients’ files. He recalls personally copying and
delivering all of the documents he obtained from the relator’s file to Mr. Cuccia
when Mr. Cuccia enrolled as counsel.
In addition, the application includes copies of both the initial police report
that the relator’s pre-trial counsel (Mr. Egan) obtained from State in response to his
discovery request and transferred to the relator’s trial counsel (Mr. Cuccia) in the
relator’s file, as well as the supplemental police report that was later discovered to
be in the State’s possession but never proffered to trial counsel.
The Initial Police Report
The narrative in the initial report that Mr. Cuccia received reveals scant
information beyond the victim’s complaint that two men entered her house and
raped her. Specifically, the narrative relates:
Upon opening the door, she observed two black males, one dressed in
a red pullover shirt with a hood, the other wearing a dark colored
parker style jacket with a hood.” One of the men spoke, but the victim
could not understand him so she told them they had the wrong house
and started to close the door. One of the perpetrators pushed the door
open and shoved her backward; then she began to flee toward the
bedroom where her grandson was sleeping. The perpetrators followed
her and then one of them grabbed her by the neck and forced her onto
5
the bed. While one of the men ransacked the residence, the other tied
her hands, unsnapped the crotch of her pants, and raped her vaginally.
The second assailant approached her with a pillow and threatened to
smother her if she did not tell him where she kept her valuables. The
second assailant then turned the victim over and raped her anally
while simultaneously placing his fingers inside her vagina. The two
men repeatedly questioned her about the location of a safe. When the
victim explained that the ring on her finger was her only valuable
possession, one of the men removed it, lacerating her finger in the
process. The assailants placed a pillowcase over the victim’s head
and threatened to kill her unless she revealed the location of the safe.
The men eventually left the residence taking several electronic items
with them. The victim told police that she had never seen the
perpetrators before the attack.
Notably, there is no reference to the statements of the victim’s grandson or
neighbors, statements consistent with the victim’s initial statement that there were
only two perpetrators.
The Supplemental Police Report
In contrast to the limited narrative of the police report found in trial
counsel’s file, the supplemental police report in the State’s file (discovered by
IPNO more than a decade later through a public records request) includes
statements and “gists” of interviews given by witnesses, both co-defendants, and
the victim.5 Included in the supplemental report, authored by Detective Ray
Whitfield, is the “Narrative Sheet” describing the investigation wherein Detective
5
The relator explains in his application and supplement to this court that, in response to his
request for assistance, the IPNO obtained what purported to be the State’s file of defendant in
2015 (prior to enrolling as defense counsel) through a public records request to the St. Bernard
Sheriff’s Office. Included in that file was the complete supplemental police report. The
Innocence Project also obtained the contents of the relator’s trial file that was in the possession
of his trial attorney, Mr. Cuccia, who had, in turn, received the file from the relator’s pre-trial
counsel, Mr. Egan. The relator reiterates that the file obtained from Mr. Cuccia did not contain
the supplemental police report, the search warrant documents, or any of the interviews or
statements set forth above. The relator also states that the file obtained from the St. Bernard
Sheriff’s Office via the public records request appears to be a “recreation” of the district
attorney’s file because it does not include any pre-trial pleadings and is marked with a “Record
Room Only” stamp rather than the “D.A. Copy” stamp that appeared on the documents received
directly from the relator’s trial attorneys. Based on this, the relator submits that the State did not
provide his trial attorneys with all the exculpatory material in its possession.
6
Whitfield reports that the victim’s neighbor, Yolanda Caesar, made the first call to
911 to report the burglary of her neighbor and, shortly thereafter, the victim called
the police and reported the attack. It also includes the fact that the police took a
statement from the victim’s grandson who reported seeing only two men.
Detective Whitfield’s narrative also includes the following information:
Deputy Kenneth Letort arrived at the scene carrying a red hooded sweatshirt that
he had taken nearby from a black male who fled from an attempted interview.6
After the victim identified the red sweatshirt as the one worn by one of the
perpetrators, she was taken to the hospital for a sexual assault (a/k/a “rape kit”)
examination. Upon release from the hospital, the victim went to the police station
and gave another (and corroborating) statement. Again, she reported only two
perpetrators, specifically stating that the man who anally penetrated her
simultaneously placed his fingers inside her vagina.7 When asked if she recalled
any other participants inside her residence, she replied, “No.”
The supplemental report narrative also includes a gist of Louis Caesar’s
initial statement to police describing two intruders breaking into the victim’s home.
Mr. Caesar recognized Mr. Pierre as the individual taking items from the victim’s
residence and placing them into the vehicle, but could not identify the second
perpetrator.
In addition, the supplemental report indicates that Mr. Pierre was arrested at
10:00 am on January 10, 1998, and that the search warrant for Licciardi Lane was
6
Elsewhere in the narrative sheet is a “gist” of an interview conducted with Deputy Letort, in
which he stated that the man who fled had identified himself as Damian Green, although Deputy
Letort later learned the suspect was named Ulysses Pierre after identifying him in a photograph.
7
At trial, the victim attributed these two acts to two different perpetrators. Accordingly, this is
exculpatory material that could have been used for impeachment purposes.
7
prepared based on information provided by Mr. Pierre. Notably, neither the
warrant nor affidavit contains any reference to the relator.
In addition, the supplemental report contains the statement Ms. Quandreka
Ballard gave to Sergeant McNab on January 10, 1998 at 2:15 pm:
Sidney Williams made me sit in the car and knocked on
the neighbor’s door. Then they went to the lady’s house
but I couldn’t see them anymore. Ulysses kept coming to
the car with property. Sidney had on gloves but Ulysses
didn’t have any gloves on. I was crying because I knew
they were stealing the stuff and I told Sidney to bring me
home but he wouldn’t. Then Ulysses told me he raped the
lady and Sidney also told me Ulysses raped her. Sidney
told me he didn’t rape her but Ulysses told me he tied her
up and raped her. Then we went by Tracy Richards’
house and Ulysses brought everything in the shed. Sidney
gave me a ring and when I went home I threw it outside
in the grass and when the police came over I gave it to
them.
In response to further questioning, Ms. Ballard stated that Mr. Williams drove a
vehicle belonging to Farrel Anderson, though she did not think Mr. Anderson was
aware of the incident. Ms. Ballard asserted that she entered the vehicle at the
Webbers Hotel on Chef Menteur Hwy and they picked up Mr. Pierre on Licciardi
Lane before driving to the victim’s residence. The whole incident lasted between
thirty minutes to an hour and she returned home at 3:15 am. She further stated that
Mr. Pierre was her cousin and Mr. Williams was her boyfriend.
The supplemental report includes the “gist” of an interview of Sidney
Williams, taken at 11:45 pm on January 10, 1998.8 Mr. Williams made the
following statement:
8
The relator does not claim that the State withheld Mr. Williams’s statement, but it is included in
the supplemental report. Notably, at trial, the relator called Mr. Williams to testify on his behalf
and Mr. Williams declined, invoking his Fifth Amendment right to remain silent. Both the
prosecutor and Mr. Williams’s attorney suggested to the court that in exchange for a favorable
plea deal, Mr. Williams would be willing to testify that defendant was present and participated in
the attack, although no final plea agreement existed at that time.
8
We heard that there was supposed to be a safe in the
house, we went there just to go burglarize it. We knocked
on the door and a lady answered it. Noon pushed the door
open and grabbed the lady. I went into the house, I told
the lady no one is going to hurt you, just tell us where the
safe is. Noon brought her to the room the safe was
supposed to be in the closet. And um, he got her in the
room, I started digging in the closet and I didn’t find it.
So, I went into the next room and told Noon to stay in the
room and not to let her use the phone. I started searching
the rest of the house, I didn’t find the safe, and I started
taking the TV, radio, and jewelry. The whole while Noon
was in the room with the lady. I went in there and seen
him fucking her from behind. I asked him don’t hurt that
lady, I said, “Man, I’m leaving.” I put the TV in the car
and started the engine. I pulled the car up a little in the
driveway and hit the horn. I hit it twice, he came to the
front door and said, “Hold up, hold up.” I got out and
closed the back door. Noon came running out the house
about a minute later.
After that, I went up to Highland and told him to take
everything out of the car. So we had it parked for about
ten or fifteen minutes. Noon took everything out of the
car, then I went to Garden Street and Benton, or
something like that. And I knew Farrel was mad at me
cause I didn’t make it back when I was supposed to. I
didn’t have any money to come back down in the parish
with the car so I stayed up there and caught a ride back
here. When I got home everyone was telling me that the
police were looking for me for rape. I got in touch with
my momma cause they had me wrong; I didn’t touch the
lady. So I turned myself in to the jail with my momma.
When questioned, Mr. Williams identified Mr. Pierre as the other
perpetrator. He related further that Ms. Ballard was waiting in the car, although
she was not aware of the plan until she observed the men putting the victim’s
property in the vehicle. When asked what role the relator played in the attack, Mr.
Williams replied, “He wasn’t even there.” At the conclusion of the interview
(when asked if he wanted to include any other information), Mr. Williams
declared, “Only that Jarvis wasn’t there and that Noon was the only one to rape
that lady.”
9
The supplemental police report also contains a subsequent statement by the
victim taken on January 28, 1998, at 7:38 pm, wherein she told the police that the
perpetrators placed her in the closet, but when she heard her grandson cry out, she
ran to comfort him. She stated that she had also recently learned that she had
contracted an STD.9 When asked whether “she believed it to be possible that three
subjects were inside her residence that night at the time of the assault,” the victim
responded, “Yes, it’s entirely possible, I was face down on the bed during most of
the sexual assault, and one of them kept leaving the room and coming back into the
room.” The full interview, contained elsewhere in the supplemental report, reveals
that the question specifically asked of the victim was, “We have arrested three
subjects in connection with the rape and burglary, you were able to identify two of
the subjects; do you feel that there could have been three assailants inside your
residence at the time of the attack?”
Exculpatory Evidence Discovered by IPNO Investigation
In addition to the evidence found in the State’s file, the relator submits
substantial documentation of relevant evidence gathered by IPNO investigators and
attorneys that supports the relator’s application for post-conviction relief, including
the following pertinent documents:
(1) In an affidavit executed by his co-defendant, Ulysses Pierre, on
November 6, 2017, Mr. Pierre admits that his statement to police that the
relator was involved was, in fact, false. Mr. Pierre explained that the
9
The State bases its claim that the relator’s attorney was “absolutely” provided with the
supplemental report and had full disclosure of the State’s file based on a motion filed on the
relator’s behalf referencing the victim’s STD. According to the State, there is no other way
defense counsel could have discovered this information, discounting the possibilities of this
knowledge being related by another person with knowledge of the file and, in essence, accusing
Mr. Cuccia, a member of the Louisiana Bar in good standing, of lying in his sworn statement
when he says he did not have access to or knowledge of the supplemental report or other
documents in the State’s file until he was provided with copies by IPNO in 2017.
10
relator’s sister, Quandreka Ballard, lived with his family on and off
growing up, so he felt protective of her. At the time of the incident,
Quandreka Ballard was a teenager, but she was dating Sidney Williams,
nicknamed “Bird,” who was older than Mr. Pierre. He admitted that he
abused drugs and alcohol and was “not in a good place mentally” in his
youth. Mr. Pierre recounted the events on the night of the attack as
follows:
On the night of the crime, I was high and hanging
out on the corner in my neighborhood. As I was on the
corner, Bird drove up in a car and pulled over.
Quandreka was in the passenger seat of the car. When
they pulled up, I could see that Bird was loaded. I was
worried about Quandreka, so I got in the car. Once I got
in the car, Bird told me about a hustle we could pull. In
other words, Bird told me about a burglary that he
wanted me to help him commit. I agreed. Bird pulled up
in front of a house. Bird and I went to the door of a
house. An older white lady answered the door. Bird and I
pushed into the woman’s house. When Bird and I went
into the lady’s house, Quandreka stayed in the car. We
went to the lady’s bedroom. Bird told me to hold her so I
grabbed her. Bird was going through the lady’s stuff.
At some point when we were in the bedroom, Bird
told me, “Just fuck her.” I can’t forgive myself for what I
did next. She was face down on the bed, I tried to rape
her from behind, but it wasn’t working, so I turned her
face up and raped her. At some point when we were in
her bedroom, Bird told me to tie the lady up. I used a
cord to tie her hands together. I grabbed a stereo or
television and put it in the trunk of the car. Later, Bird
left the house and got back in the car. Bird got in the
driver’s seat. Quandreka was still in the car.
After we drove away from the lady’s house, Bird
stopped and we put the stuff we took from the house in a
shed behind Tracey’s house. I didn’t really know Tracey,
I just knew her as someone from the neighborhood. Later
on I was riding a bike in the neighborhood and the police
stopped me. I know someone named Damion Green I
may have told the police that was my name. I ran away
before I could be arrested. Later that morning, I was
arrested.
11
When the police questioned me about the crime, I
was ready to just take my charge and get on with it. I felt
terrible about what had happened and I was willing to do
my time for what I did. I told the officers I committed the
crime, but I lied and told them it was me alone. They hit
me and threatened me, so I lied and told the police Jarvis
Ballard was there even though he wasn’t involved. When
the police were questioning me, I just panicked. I thought
if Jarvis was picked up, they couldn’t do anything to him
because he wasn’t guilty. After that, I never again told
anyone that Jarvis was there. I never told my attorney
that Jarvis was there. I never told him I would testify that
he was involved. My mom asked me if I would testify
and say that Jarvis was there. I told her no.
I heard later that Jarvis signed a statement. I am
still confused about how he was able to tell the police
anything about the crime since he wasn’t there. I don’t
understand why he told the police he was there when he
wasn’t. I didn’t tell the police that Quandreka Ballard
was in the car—she never went in the house, I felt like
she wasn’t really involved.
Before we went to trial, Jarvis, Bird and I were
offered a plea deal—it was a package deal, we all had to
agree to take it. Bird and I wanted to take the deal and get
it over with. Jarvis refused to take the deal which meant
we couldn’t take it either. I’m still mad that Jarvis didn’t
take the deal, he ruined that for us. Until Charell Arnold
from Innocence Project New Orleans came and visited
me at Angola in April 2017, no attorney or any other
representative for Jarvis Ballard ever met with me or
tried to meet with me.
(2) By affidavit provided to an IPNO attorney, Ms. Dale Pierre, Ulysses
Pierre’s mother and the relator’s aunt, states that the prosecutor had
offered the three co-defendants a plea bargain whereby all three would
have to plead guilty.10 According to Ms. Pierre, the relator was the only
10
The relator also claims that the State withheld earlier oral statement made by co-defendant,
Ulysses Pierre, in the presence of Mr. Pierre’s mother and the prosecutor, in which Mr. Pierre
recanted his initial statement to police, and stated that defendant, Jarvis Ballard, was not present
the night of the attack and was, in fact, innocent. The relator asserts that these statements were
material as they indicated that only two men participated in the attack, and those men were
Ulysses Pierre and Sidney Williams, while Quandreka Ballard waited in the vehicle outside the
victim’s residence.
12
one who would not agree, as he maintained his innocence, so the
prosecutor asked Ms. Pierre to convince defendant to take the plea.11
(3) The relator also submits the affidavit of Sabrika Lewis, who states that
she saw the relator at a high school party several hours before the attack
occurred. Tyrus Duplesses also provided an affidavit stating that he saw
the relator in jail after his arrest, relating that the relator was doubled over
in pain and claiming that the police had beat him and forced him to sign a
statement that was untrue. According to Mr. Duplesses, the relator told
him that he did not understand why Ulysses Pierre had given his name to
the police as he was not involved.
The State’s Response to the Relator’s Application for Post-Conviction Relief
In response to the relator’s application, the State argues that the relator’s
claims are procedurally barred from consideration because none of the exceptions
provided in La. Code Crim. Proc. art. 930.8(A) are applicable. In other words, the
State insists that, regardless of merit or the interests of justice, the relator’s claims
may not be considered.
Actions of the District Court
Despite the substantial documentation gathered as a result of IPNO’s
investigation and submitted in support of the relator’s application for post-
conviction relief, the district court did not hold an evidentiary hearing in this
matter. Rather, after only a status hearing, the district court summarily denied the
relator’s application. Moreover, in its Reasons for Judgment, the district court
addressed only the claims acknowledged by the State in its written opposition. The
11
Ms. Pierre also explained in her affidavit that the defendant was younger than Ulysses Pierre;
thus, it was unlikely that the defendant would have issued orders to Mr. Pierre (as the victim
alleged at trial) to rape the victim.
13
district court ordered an evidentiary hearing on the relator’s claim that an alternate
juror participated in jury deliberations but, as to the relator’s other claims, ignored
those not addressed by the State and adopted the State’s conclusory language to
summarily dismiss the claims addressed by the State. Specifically, the district
court stated:
The state identifies nine “Newly Discovered Evidence”
claims made by [defendant] in his Application for Post-
Conviction Relief; (1) Supplemental Police Report and
Voluntary Statements, (2) New DNA Results, (3)
Exculpatory Conversation Between Co-defendant and
ADA, (4) Co-defendant’s Statement, (5) Witness to
Petitioner’s Injuries, (6) Secretary Conflict, (7) Witness
on Night of Crime, (8) Juror Deliberations, and (9) Open
File Discovery.
The Court finds that Mr. Ballard’s claim that the
supplemental police report and voluntary statements were
withheld by the State is without merit. After an extensive
review of the record, the Court finds that these items
were readily available to Mr. Ballard and/or his previous
counsel and are not newly discovered evidence under
Louisiana law that would entitle him to an exception to
the time limitation in La. C.Cr.P. Art. 930.8.
The Court finds that Mr. Ballard’s claim that new DNA
testing of previously untested items excludes his
participation in the crime is without merit. After an
extensive review of the record, there is no allegation that
Mr. Ballard’s DNA was found in the relation to this
crime. This is not newly discovered evidence under
Louisiana law that would entitle him to an exception to
the time limitation in La. C.Cr.P. Art. 930.8.
The Court finds that Mr. Ballard's claim in regards to a
conversation between Co-Defendant, Ulysses Pierre, and
an Assistant District Attorney that was overheard by his
Co-Defendant’s mother, Dale Pierre, wherein Ulysses
Pierre allegedly stated that Mr. Ballard was not involved
in the crime is without merit. This issue was addressed at
trial. This is not consistent with the testimony at trial and
is not newly discovered evidence under Louisiana law
that would entitle him to an exception to the time
limitation in La. C.Cr.P. Art. 930.8.
14
The Court finds that Mr. Ballard’s claim that Co-
Defendant, Ulysses Pierre, now states that Mr. Ballard
was not involved in the crime is without merit. This issue
was addressed at trial. This is not consistent with the
testimony at trial and is not newly discovered evidence
under Louisiana law that would entitle him to an
exception to the time limitation in La. C.Cr.P. Art. 930.8.
The Court finds that Mr. Ballard’s claim regarding a
witness who saw Mr. Ballard injured after his
interrogation is without merit. This issue was addressed
at trial. This is not newly discovered evidence under
Louisiana law that would entitle him to an exception to
the time limitation in La. C.Cr.P. Art. 930.8.
The Court finds that Mr. Ballard’s claim regarding the
alleged conflict of interest with Secretary, Jennifer
Ingargiolia, is without merit.12 The record is clear that
there is no conflict of interest. This is not newly
discovered evidence under Louisiana law that would
entitle him to an exception to the time limitation in La.
C.Cr.P. Art. 930.8.
The Court finds that Mr. Ballard’s claim regarding
witnesses to his where-abouts on the night of the crime is
without merit. This issue was addressed at trial. This is
not consistent with the testimony at trial and is not newly
discovered evidence under Louisiana law that would
entitle him to an exception to the time limitation in La.
C.Cr.P. Art. 930.8.
The Court finds that Mr. Ballard’s claim regarding
jurors’ misunderstanding that they could issue separate
verdicts for Mr. Ballard and his Co-Defendant is without
merit. After an extensive review of the record, the Court
finds that the jury was properly informed of their ability
to issue separate verdicts for the Defendants. See State’s
Opposition Exhibit 36, Trial Transcript - Page 60. This is
not newly discovered evidence under Louisiana law that
would entitle him to an exception to the time limitation in
La. C.Cr.P. Art. 930.8.
After an extensive review of the record, the Court finds
that it is unclear whether Mr. Ballard’s Application for
12
This finding relates to the relator’s claim that his pre-trial Indigent Defender Board (IDB)
attorney employed a legal secretary who simultaneously worked as the legal secretary in the
D.A’s Office. In his Reply to the State’s Opposition, the relator expressly withdrew this claim.
15
Post-Conviction Relief and supporting documentation
sufficiently demonstrate that the facts upon which his
claim that an alternate juror participated in jury
deliberations is predicated were not known to Mr. Ballard
or his attorney such that the exception to the time
limitation in La. C.Cr.P. Art. 930.8 would apply.
Therefore, the Court orders an evidentiary hearing to
determine the merits of this claim.
The Court finds that Mr. Ballard’s claim that the jury
never heard important documents because the District
Attorney’s Office practiced open file discovery is without
merit.13 After an extensive review of the record, the
Court finds that these items were readily available to Mr.
Ballard and/or his previous counsel and are not newly
discovered evidence under Louisiana law that would
entitle him to an exception to the time limitation in La.
C.Cr.P. Art. 930.8.
The final procedural objection made by the State of
Louisiana is that Mr. Ballard has filed repetitive and
successive applications for post-conviction relief. The
State avers that Mr. Ballard inexcusably omitted the
allegations regarding the supplemental police report,
along with other documents. Additionally, the State
contends that Mr. Ballard has raised an ineffective
assistance of counsel claim in his direct appeal of the
conviction and his Second Application for Post-
Conviction Relief.
After an extensive review of the record and in applying
La. C.Cr.P.Art. 930.4, the Court finds that Mr. Ballard’s
Application for Post-Conviction Relief contains
successive and repetitive allegations. The record is clear
that Mr. Ballard has alleged a claim for ineffective
assistance of counsel twice previously. Additionally, the
record shows that the supplemental police report and
other documents were available to Mr. Ballard and/or his
prior counsel. This allegation, though new, was
inexcusably omitted from his previous applications. For
these reasons and pursuant to La. C.Cr.P. Art. 930.4,
these allegations in Mr. Ballard’s Application for Post-
Conviction Relief are dismissed.
The relator timely filed this application for supervisory review.
13
The relator never argued that open file discovery was a newly discovered fact that would
qualify as an exception to the time limitation; rather, he argues correctly that open file discovery
did not discharge the state’s affirmative Brady obligation.
16
Discussion
The issue before the district court was whether the relator’s claims for post-
conviction relief are procedurally barred from consideration. The relator concedes
that the instant application was not filed within two years of the date that his
conviction and sentence became final, asserting instead that the exceptions
provided for in Article 930.8 are applicable.
La. Code Crim. Proc. art. 930.8(A) provides in pertinent part:
A. No application for post-conviction relief, including
applications which seek an out-of-time appeal, shall be
considered if it is filed more than two years after the
judgment of conviction and sentence has become final
under the provisions of Article 914 or 922, unless any of
the following apply:
(1) The application alleges, and the petitioner
proves or the state admits, that the facts upon
which the claim is predicated were not known
to the petitioner or his prior attorneys. Further,
the petitioner shall prove that he exercised
diligence in attempting to discover any post-
conviction claims that may exist. “Diligence”
for the purposes of this Article is a subjective
inquiry that must take into account the
circumstances of the petitioner. Those
circumstances shall include but are not limited
to the educational background of the petitioner,
the petitioner's access to formally trained
inmate counsel, the financial resources of the
petitioner, the age of the petitioner, the mental
abilities of the petitioner, or whether the
interests of justice will be served by the
consideration of new evidence. New facts
discovered pursuant to this exception shall be
submitted to the court within two years of
discovery. (emphasis added)
Analysis
The relator’s primary claim is that the State withheld exculpatory evidence
in violation of Brady. Specifically, the relator points out that despite filing the
17
customary pre-trial discovery motion and the State’s ongoing Brady obligation, the
relator’s trial counsel only received the initial police report and remained unaware
of statements and other evidence in the State’s file highly indicative of the fact
there were only two perpetrators (Williams and Pierre) involved in this crime. In
the alternative, the relator argues that if there was no Brady violation (and the
relator’s attorneys knew or should have known of the exculpatory evidence), then
the court must determine if the failure to use the exculpatory evidence for
impeachment and other purposes constitutes ineffective assistance of counsel.14
The relator also points out that “new” DNA evidence excluding him as a
contributor of genetic material in the victim’s rape, as well as a polygraph
examination and witness statements firmly indicate his actual innocence.15 Finally,
the relator asserts that if consideration of his claims are barred for other reasons,
the court should consider (as Article 930.8 provides) his claims in the interest of
justice.
In the first paragraph of its Reasons for Judgment, the district court clearly
indicates that it only considered those claims acknowledged and addressed by the
State in its written opposition and, moreover, only as the claims were characterized
by the State, not as they were raised by the relator. This was clear error. A district
court must independently consider all of the relator’s claims for post-conviction
14
In other words, where the relator asserts that State withheld exculpatory evidence in violation
of Brady and the district court finds that the exculpatory evidence was, in fact, available to the
relator’s attorneys, then the alternative claim must be considered: does the failure to use the
exculpatory evidence for impeachment or other purposes constitute ineffective assistance of
counsel?
15
The grounds for post-conviction relief include state or federal constitutional violations
underlying the petitioner’s conviction, as well as clear and convincing proof from DNA testing
that the petitioner is factually innocent of the crime for which he has been convicted. La. Code
Crim. Proc. art. 930.3 (1) & (7).
18
relief, not just those the State chooses to discuss or in the terms defined by the
State.
In addition, the State’s opposition to the relator’s application was based on
the ground that it was procedurally barred. Therefore, the defined issue before the
district court at this stage of the proceeding was whether the relator was entitled to
his proverbial day in court, not whether he will ultimately win or lose on the
merits. See State v. Toca, 2010-1451, pp. 3-4 (La. App. 4 Cir. 4/12/11) (unpub’d)
(when the State asserts, in response to an application for PCR, only that the
relator’s claims are procedurally barred, the substance of those claims are not at
issue). Nonetheless, throughout the remaining paragraphs of its Reasons for
Judgment, the district court repeatedly intertwines findings on the merits of the
relator’s specific claims with its conclusions that the Article 930.8 exceptions were
not applicable (and therefore the claims were procedurally barred), all without
discussion of the evidence supporting the claim or the facts upon which the
conclusions were based. Thus, to avoid confusion upon remand, the district court’s
reasoning in each of the paragraphs of its Reasons for Judgment is addressed with
particular specificity.
In the second paragraph of its Reasons for Judgment, the district court
concluded in generic terms that the relator’s Brady claim (a serious constitutional
violation) was without merit and, also, that the facts underlying the claim were not
newly discovered pursuant to Article 930.8. Neither conclusion is supported by
the record before us. Specifically, the sworn affidavits of Mr. Cuccia and Mr.
Egan attest to the absence of the supplemental police report and voluntary
statements in the discovery material conveyed by the State. In response, the State
19
submits no contrary evidence, offering only convoluted argument16 and
conjecture.17 The State’s contention that relator’s trial attorneys possessed the
supplemental report because it was contained in the LSU Law Library’s file only
proves that the LSU Law Library possessed the supplemental police report at the
time it was turned over to the Innocence Project.18 The LSU Law Library file cover
sheet, attached as exhibit M, indicates that the file it turned over to the Innocence
Project was not actually the relator’s trial records, but instead, the records from the
appeal of all three co-defendants, including Mr. Williams, who was tried
separately. Thus, the records included in the LSU Law Library file may include
documents or evidence introduced in Mr. Williams’s trial that were not included in
defendant’s trial records.
With regard to the State’s assertion that Mr. Cuccia “absolutely” had access
to the supplemental police report because in his cross-examination of the victim at
trial Mr. Cuccia asked the victim if she had made an earlier statement that only two
16
The State asserts that there is no other way defense counsel could have discovered this
information, discounting the possibilities of this knowledge being related by another person with
knowledge of the file and, in essence, accusing Mr. Cuccia (a member of the Louisiana Bar in
good standing) of lying in his sworn statement that he did not have access to or knowledge of the
supplemental report or other documents in the State’s file until he was provided with copies by
IPNO in 2017 and, similarly, impugning the honesty of Mr. Egan.
17
With regard to the State’s insistence that the pre-trial motion for DNA testing filed by Mr.
Egan referenced “information taken from the reporting officer’s narrative indicates that the
victim contracted gonorrhea as a result of the rape” proves that Mr. Egan was in possession of
the supplemental report, the relator submits a second affidavit executed by Mr. Egan wherein
which he states that he did not recall the source of his knowledge of the victim’s STD
contraction and that he may have heard the information from the prosecutor, an investigating
police officer, one of the co-defendant’s attorneys, or the supervisor of the Indigent Defender
Board. He also relates that his regular practice was to attach any supporting documents to his
motions and, therefore, the absence of the supplemental report as supporting his claim to his
motion filed at the time, suggesting that he was not, in fact, in possession of the supplemental
report.
18
The relator submits also an affidavit executed by Jack Largess, an investigator for the
Innocence Project, stating that the only material he was able to obtain relating to the relator’s
trial was the appellate record in possession of the LSU Law Library. He explained that he
attempted to procure the file from this court, but was told that the 1999 record would have been
returned to the LSU Law Library. He stated that he also reviewed the Supreme Court’s file,
including writ applications, and none of the other files he reviewed contained the supplemental
report discussed above.
20
men had raped her, the State presents no evidence to support its hyperbolic
certainty. As noted by Mr. Cuccia in his affidavit, he possessed the initial police
report that included the brief statement that “two B/M’s (one wearing a red
pullover shirt with a hood and the other subject wearing a dark colored parker style
jacket with a hood) forced their way into the residence.” The initial police report
also included the victim’s statement that one subject raped her anally while the
other ransacked the residence, then they “changed up” and the other subject began
raping the victim. Based on this statement, Mr. Cuccia attempted to impeach the
victim at trial. The State objected, admitting that the initial police report was
incomplete. The colloquy occurred as follows:
DEFENSE: Now, Ms. [D], have you ever given a
statement contrary to what you said today, specifically
that it was only two men that came into your house?
VICTIM: My original written testimony says I identified
two men.
DEFENSE: Well, the two men, they are the two men
that came into your house?
VICTIM: Well, what I said was I saw two. I saw two at
a time. I didn’t see three at a time.
DEFENSE: You remember telling the officers that the
man in the—there was a man in a red pullover shirt with
a hood and another subject wearing a dark colored parker
with a hood?
VICTIM: Yes.
DEFENSE: And you told the officers that it was the man
in the red shirt with the hood who forced you into the
bedroom and told you to lie on your back and then began
to tie your hands behind your back?
VICTIM: I don’t think I said what he was wearing.
DEFENSE: I am sorry?
21
VICTIM: I can’t remember if I said he was wearing a
red pullover shirt. I said there was some red in the jacket.
DEFENSE: It was the man with the red on the jacket
that you remember telling you, forced you into the
bedroom?
VICTIM: I didn’t say forced me into the bedroom. I said
I went in with one in front of me and one behind me. And
the one had the red on his jacket raped me first.
DEFENSE: I am going to show you what I have marked
as Defendant Exhibit 1 and ask you to review the portion
down here. Review the whole thing. But I direct your
attention to the portion down here which appears to be a
narrative.
THE STATE: Excuse me. This purports to be the police
report from the St. Bernard Parish Sherriff’s Office, not
written by [the victim] or signed by [the victim]. I don’t
know how that could form the basis for impeachment.
THE COURT: Let her look at it. Go ahead and look at
it.
VICTIM: I was not aware that they were taking my
statement and writing this down. This was right after the
incident and they were taking my blood pressure. I was
about to leave for the hospital. It is not my written
statement that I gave to the police.
DEFENSE: I understand it is not the same as the written
statement you later gave to the police, but it is an
accurate depiction of what you told the officers at the
scene?
VICTIM: It is a very abbreviated version.
DEFENSE: That’s the first time you reported it to
anyone, when you were telling the officers there at the
scene?
VICTIM: Yes.
DEFENSE: I want to go over it with you, or let me ask
you, you have not had a chance to review it?
VICTIM: No.
22
DEFENSE: Would you take as long as you need and let
me know when you are ready?
VICTIM: Well the details are pretty much—it says here
sometime during the rape one of the subjects put a
pillowcase over my head, which is not the case.
DEFENSE: Let me ask you, have you had a chance to
review it?
VICTIM: Yes.
DEFENSE: Let me ask you a few questions.
THE STATE: Excuse me. He was attempting to cross-
examine on a report she did not make, did not write, and
it is not the complete report.
DEFENSE: First of all, it is the entire incident report
that was produced to us by the district attorney’s office.
So it is complete in and of itself. I made a request for the
arrest report and I was told I can’t have it. Now, to
complain I don’t have the entirety, it is ludicrous. But be
that as it may—
THE STATE: You said you don’t have it, then you
produce it.
DEFENSE: You say this is not the whole thing. This is
what I have.
If anything, this colloquoy supports Mr. Cuccia’s declaration that he only
had access to the initial police report at the time of trial. While it is axiomatic that
it is within the discretion of the district court, faced with contradictory testimony,
to make a credibility determination and that such a ruling will not be disturbed
absent clearly contrary evidence, there has been no evidentiary hearing or live
testimony in this matter upon which the district court may base a credibility
determination. The State submits no colorable evidence contrary to the sworn
statements of Mr. Egan and Mr. Cuccia, and its arguments in response to the
23
attorney statements are neither evidence nor persuasive.19 Under these
circumstances, it is unclear why the district court determined the “newly
discovered evidence” exception did not apply to the relator’s Brady claim. There
is no evidence in the record before us that the relator or his attorneys had actual
knowledge of the facts contained in the supplemental report or in the recently-
executed affidavits submitted in support of the relator’s application. See State ex.
rel. Winn v. State, 95-0898 (La. 10/2/96), 685 So.2d 104 (the relator’s Brady claim
rested “on facts not known to him or his attorneys and which did not become
known to him until he obtained documents pursuant to the Public Records Act”
and therefore fell under the exception to the time limitation provided under La.
Code Crim. Proc. art. 903.8(A)(1) for filing a post-conviction relief application).
In the third paragraph of its Reasons for Judgment, the district court
summarily dismissed the relator’s claims based on newly tested DNA evidence as
procedurally barred and, again, gratuitously found the claims to be without merit.
However, according to the relator’s supplement to his post-conviction relief
application filed on April 27, 2018, the State and the relator “agreed to DNA
testing, and on June 27, 2017, testing was ordered by this court.” Pursuant to La.
19
The State also asserts that the relator’s appellate counsel was in possession of the supplemental
report prior to 2015 because Sidney Williams entered it into evidence in his separate trial and the
relator collectively appealed with his co-defendant and Mr. Williams. This argument fails to
acknowledge that the relator’s trial attorneys were not in possession of the supplemental report,
which appellate counsel would have had no reason to know, nor would she have necessarily
conducted any investigation outside of the appellate record when preparing her brief.
Importantly, the relator’s Brady claim does not solely rest on the alleged withheld evidence, but
it also includes evidence in the form of affidavits that neither of the relator’s trial attorneys were
aware of the information contained in the supplemental report. It was not until the Innocence
Project received the file from the St. Bernard Parish Sheriff’s Office and compared it to the file
Mr. Cuccia possessed during trial, that evidence of the instant Brady claim became “known.” The
State also asserts that the Innocence Project New York (IPNY) submitted a Public Records
request for defendant’s trial record in 2010, but never came to copy or inspect the file. However,
IPNY never enrolled as the relator’s counsel and, as discussed above, IPNO did not enroll as
counsel for the relator until 2017,
24
Code Crim. Proc. art. 926.1,20 the State could have raised any objection prior to
agreeing to new DNA testing, and the district court could have denied the
additional testing if it found the application untimely, or unnecessary. Because the
State failed to raise any objection to the relator’s application for new DNA testing,
and the district court found no reason to deny the application at the time it was
filed, the relator should not now be barred from the introduction of the DNA
testing to demonstrate his innocence claim based on a new objection by the State.21
20
La. Code Crim. Proc. art. 926.1 provides in pertinent part:
B. An application filed under the provisions of this Article shall comply
with the provisions of Article 926 and shall allege all of the following:
(1) A factual explanation of why there is an articulable doubt,
based on competent evidence whether or not introduced at trial, as
to the guilt of the petitioner in that DNA testing will resolve the
doubt and establish the innocence of the petitioner.
(2) The factual circumstances establishing the timeliness of the
application.
(3) The identification of the particular evidence for which DNA
testing is sought.
(4) That the applicant is factually innocent of the crime for which
he was convicted, in the form of an affidavit signed by the
petitioner under penalty of perjury.
C. In addition to any other reason established by legislation or
jurisprudence, and whether based on the petition and answer or after
contradictory hearing, the court shall dismiss any application filed
pursuant to this Article unless it finds all of the following:
(1) There is an articulable doubt based on competent evidence,
whether or not introduced at trial, as to the guilt of the petitioner
and there is a reasonable likelihood that the requested DNA testing
will resolve the doubt and establish the innocence of the petitioner.
In making this finding the court shall evaluate and consider the
evidentiary importance of the DNA sample to be tested.
(2) The application has been timely filed.
(3) The evidence to be tested is available and in a condition that
would permit DNA testing.
D. Relief under this Article shall not be granted when the court finds
that there is a substantial question as to the integrity of the evidence to
be tested.
E. Relief under this Article shall not be granted solely because there is
evidence currently available for DNA testing but the testing was not
available or was not done at the time of the conviction.
21
“[T]he DNA testing article is not another form of motion for new trial, based on new evidence
(the DNA) which will serve to call the state's case into question, and perhaps warrant a re-trial.”
State v. Edwards, 43,802, p. 2 (La. App. 2 Cir. 8/7/08), 988 So.2d 850, 852. Accordingly, “the
standard applied to the threshold question of DNA testing itself is whether the test results will
establish the innocence of the petitioner by clear and convincing evidence.” Id. Clearly, the time
25
In light of the State’s acknowledgement at trial that the relator’s DNA was not
discovered on the items it chose to have tested (inexplicably failing to include all
the swabs taken from the rape kit), it was error for the district court to find that the
new DNA test results are now procedurally barred from consideration in relation to
the relator’s claims of actual innocence.
Further, we observe that the State presented no procedural objection to the
polygraph examination administered on October 16, 2018, and the district court did
not reject that evidence on procedural grounds. The polygraph results indicate that
defendant was truthful when he denied that he was physically present during the
attack, when he denied participating in the attack, and when he denied that he had
ever been inside the victim’s residence. Although polygraph examinations are
inadmissible in criminal trials, the reasons for excluding polygraph evidence in
criminal trials are not necessarily compelling in post-trial proceedings, and,
therefore, subject to certain guidelines, the decision to consider polygraph evidence
in post-trial proceedings is within judicial discretion. See State v. Catanese, 368
So. 2d 975, 982–83 (La. 1979); see also State v. Rault, 445 So. 2d 1203, 1218 (La.
1984).
In the fourth and fifth paragraphs of its Reasons for Judgment, the district
court addressed post-trial evidence, finding that none of the exhibits submitted by
the relator qualified as “newly discovered evidence” under La. Code Crim. Proc.
art. 930.8. Specifically, the district court dismissed the affidavits of Ms. Dale
Pierre (which included the fact that her son, Mr. Pierre, had recanted his allegation
for objection by the State or a finding by the district court that the relator could not meet the
threshold burden in his application for DNA testing was at the time his application for new
testing was filed and considered. In this case, however, the State did not object to, and the trial
court granted, the defendant’s application for new DNA testing.
26
that relator was involved) and Mr. Pierre (recanting his statement to police that the
relator was involved in the crime), stating that each affidavit “was addressed at
trial” and was “inconsistent with the testimony at trial” and, therefore, did not
qualify as “newly discovered evidence” under the exception to the time limitation
on Article 930.8. As the relator correctly points out, the issue of his co-defendant’s
recantation of the portion of his statement inculpating the relator in the crime was
made subsequent to his conviction and not addressed at trial. Further, the district
court’s statement that this evidence was “not consistent with the testimony at trial”
supports the relator’s assertion that the evidence was previously unknown.
Moreover, in State v. Hurst, 2015-455 (La. 9/18/15), 209 So. 3d 701, the
Louisiana Supreme Court held that where an eyewitness later recanted inculpatory
statements that were introduced at a defendant’s trial and alleged police and
prosecutorial misconduct, and “stated that he had not previously revealed the
information to any investigator or attorney representing relator,” the defendant
sufficiently demonstrated that the facts upon which the claim was predicated were
not known to defendant or his prior attorneys and “therefore the exception to the
post-conviction limitations period” was applicable. Similarly, in this case, the
relator and his attorneys heard for the first time that Mr. Pierre’s false statements
introduced at trial were the result of police misconduct and that he subsequently
recanted his inculpatory statements regarding the relator’s involvement in the
crime. Notably, the affidavit executed by Ms. Dale Pierre (Mr. Pierre’s mother)
corroborates Mr. Pierre’s recantation and, in addition, indicates the prosecutor’s
knowledge of said recantation and, arguably, that the prosecutor purposely
withheld or disregarded that evidence in an attempt to persuade (or ask Ms. Pierre
to persuade) the relator to accept the “package” plea deal. Under these
27
circumstances, the relator sufficiently demonstrated that his co-defendant’s
recantation22 of his statements to police, as well as Ms. Pierre’s corroborating
affidavit, were unknown to him and his attorneys. Therefore, these statements
constitute newly discovered evidence (or facts not known to petitioner or his
attorneys) that would fall under the exception to the time limitation in Article
930.8(A)(1). The district court erred in finding the claims based upon this
evidence to be procedurally barred from consideration.
In the sixth and eighth paragraphs of its Reasons for Judgment, the district
court refers to claims based on “a witness who saw Mr. Ballard injured after his
interrogation” and “witnesses to his where-abouts on the night of the crime,”
finding them to be without merit and procedurally barred. The witness who saw
him injured apparently refers to the affidavit of Tyrus Duplesses who asserted that
he saw the relator after his arrest and observed the relator’s swollen and injured
groin area (and stated that the relator told him that he was beaten and forced to sign
a false statement). The witness to his whereabouts on the night of the crime
apparently refers to the affidavit of Sabrika Lewis who claims that she saw the
relator at a high school party several hours before the crime.
As the State correctly observes, the relator would have had knowledge of
anyone he saw or spoke on the night of the crime or prior to or directly following
his arrest, and thus the evidence would not have been unknown to him.
Accordingly, the district court did not err in finding claims based upon the
affidavits of Mr. Duplesses and Ms. Lewis to be procedurally barred. We do note,
however, that in its opposition to the relator’s application, the State characterizes
22
It is axiomatic, of course, that “courts must view recantations with utmost suspicion.” State v.
Chester, 2015-2304, p. 14 (La. 12/16/16), 208 So.3d 338, 348 (citations and internal quotation
marks omitted).
28
the statement of Farrel Anderson (the person who loaned his vehicle to Sidney
Williams) as an attempted alibi witness along with Sabrika Lewis. Thus, although
the district court is not incorrect as to the affidavits of Mr. Duplesses and Ms.
Lewis, it must be reiterated that Mr. Anderson’s statement (which is included in
the supplemental police report that underlies the relator’s Brady claim) is not
procedurally barred from consideration.
In the seventh paragraph of its Reasons for Judgment, the district court refers
to the relator’s claim that Mr. Egan (the attorney initially appointed to represent
him) employed a legal secretary who simultaneously worked as the legal secretary
of the District Attorney’s office. In his Reply to the State’s Opposition, the relator
expressly withdrew this claim. Accordingly, the district court’s ruling on this issue
is moot.
In the ninth paragraph of its Reasons for Judgment, the district court held
that the relator’s claim regarding the jurors’ misunderstanding of whether they
could issue separate verdicts for the relator and his co-defendant23 to be without
merit. Notably, the State did not assert a procedural objection to this claim,
although it styled its answer as such. Rather, the State cited the voir dire transcript
to argue that each party adequately instructed the jurors during voir dire that they
had a duty to issue separate verdicts. The State also asserted that the jurors’
credibility is suspect due to the passage of time. The district court apparently
agreed with the State, finding that, “the jury was properly informed of their [sic]
23
The relator attaches the affidavits from several jurors and an alternate juror in which they
assert (1) that they would have reconsidered their guilty verdict had they been presented with the
evidence contained in the supplemental police report; and (2) that they were under the mistaken
presumption that they were required to render the same verdict for both co-defendant’s rather
than separate verdicts for each. The relator claims that the trial court failed to issue jury
instructions sufficient to inform the jury that it was required to issue separate jury verdicts for
each co-defendant.
29
ability to issue separate verdicts for the Defendants,” and ruled that the jurors’
statements were not newly discovered evidence. While it is not at all clear that
counsel’s statements to prospective jurors during voir dire carries the same
authority of the court’s jury charge, it is undisputed that a district court may not
inquire into the jury’s deliberative process to determine how they came to issue
their verdicts, nor may affidavits be introduced for that purpose, except to
determine whether extraneous influence corrupted the proceeding. Specifically,
La. Code Evid. art. 606(B) provides:
Upon an inquiry into the validity of a verdict or indictment, a juror
may not testify as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything upon his
or any other juror’s mind or emotions as influencing him to assent to
or dissent from the verdict or indictment or concerning his mental
processes in connection therewith, except that a juror may testify on
the question whether any outside influence was improperly brought to
bear upon any juror, and, in criminal cases only, whether extraneous
prejudicial information was improperly brought to the jury's attention.
Nor may his affidavit or evidence of any statement by him concerning
a matter about which he would be precluded from testifying be
received for these purposes.
In any event, any claim based on misleading or unclear jury instructions
themselves has long since prescribed. See La. Code. Crim Proc. art. 930.8; La.
Code Crim. Proc. art. 930.4(E); La. Code Crim. Proc. art. 841; see also State v.
Blank, 2016-0213, p. 4 (La. 5/13/16), 192 So.3d 93, 97.
In the tenth paragraph of its Reasons for Judgment, the district court
correctly ordered an evidentiary hearing to determine the merits of the relator’s
claim that an alternate juror participated in deliberations.
In the eleventh paragraph of its Reasons for Judgment, the district court
characterizes the relator’s Brady claim as an argument that the District Attorney’s
open file discovery policy was a newly discovered fact that would qualify as an
30
exception to the time limitation. The district court misapprehends the relator’s
claim. Rather, the relator argues quite correctly that open file discovery did not
discharge the State’s affirmative Brady obligation.
In the final two paragraphs of its Reasons for Judgment, the district court
alludes to the relator’s prior allegations of ineffective assistance of counsel in his
direct appeal and second application for post-conviction relief.24 Notably, the
State’s only basis for its procedural objection under this article was that defendant
“has raised an ineffective assistance of counsel claim in both his direct appeal of
the conviction and second application for post-conviction relief,” and “inexcusably
omitted the allegations regarding the supplemental report.” The district court
agreed with the State, dismissing this claim as procedurally barred because “[t]he
record is clear that the relator had alleged a claim for ineffective assistance of
counsel twice previously.” It also found that because the evidence on which these
24
In the State’s opposition, it asserted the procedural objection that the relator’s ineffective
assistance of counsel claims should be dismissed as successive and repetitive under Article
930.4. La. Code Crim. Proc. art. 930.4 provides:
A. Unless required in the interest of justice, any claim for relief which was
fully litigated in an appeal from the proceedings leading to the judgment
of conviction and sentence shall not be considered.
B. If the application alleges a claim of which the petitioner had knowledge
and inexcusably failed to raise in the proceedings leading to conviction,
the court shall deny relief.
C. If the application alleges a claim which the petitioner raised in the trial
court and inexcusably failed to pursue on appeal, the court shall deny
relief.
D. A successive application shall be dismissed if it fails to raise a new or
different claim.
E. A successive application shall be dismissed if it raises a new or
different claim that was inexcusably omitted from a prior application.
F. If the court considers dismissing an application for failure of the
petitioner to raise the claim in the proceedings leading to conviction,
failure to urge the claim on appeal, or failure to include the claim in a prior
application, the court shall order the petitioner to state reasons for his
failure. If the court finds that the failure was excusable, it shall consider
the merits of the claim.
31
claims were based was “available” to defendant and/or his prior counsel, “this
allegation, though new, was inexcusably omitted from his previous applications.”
We must observe that the district court finding that the relator’s ineffective
assistance of counsel claims in the instant post-conviction relief application are
successive and repetitive, while also acknowledging that they are “new,” is
inexplicable. Moreover, the issue is not whether a generic claim of ineffective
assistance (based on other facts) has been previously raised; rather, the district
court must look at the specific claim and the specific evidence submitted in support
of that claim to determine if the evidence is “newly discovered” within the
parameters of Article 930.8(A)(1). First, the relator did not raise an ineffective
assistance of counsel claim on direct appeal, as the State suggested in its
opposition. See generally State v. Pierre, 99-3156, p. 14 (La. App. 4 Cir. 7/25/01);
792 So.2d 899, 907. Rather, the record in this case indicates that the relator raised
one previous ineffective assistance of counsel claim in his second pro se
application for post-conviction relief, alleging that his appellate counsel was
ineffective for failing to raise on appeal the erroneous denial of his motion to
suppress the photographic line-up. Clearly, because the claim of ineffective
assistance of counsel in the instant application is predicated on a new substantive
claim, it was error for the district court to dismiss it as impermissibly repetitive.
See State ex rel. Cormier v. State, 98-2111 (La. 12/18/98); 731 So. 2d 274,
enforcement denied as moot, 98-2111 (La. 6/18/99); 745 So. 2d 614. (“We also
note that the discovery of new evidence excepting a claim from the prescriptive
period of La. Code Crim. Proc. art. 930.8 would necessarily except a claim from
the repetitiveness bars of La. Code Crim. Proc. art. 930.4 and the district court thus
abused its discretion in defaulting another of relator's claims as repetitive.”).
32
Because any discussion of the relator’s other claims is premature until the
district court makes a determination on the merits of the relator’s Brady claim, we
pretermit further discussion of those claims.
Conclusion
The district court judgment is affirmed in part, reversed in part, vacated in
part, and remanded to the district court for an evidentiary hearing on the relator’s
claims for post-conviction relief. As discussed above, the district court did not err
in finding that the affidavits of Sabrika Lewis and Tyrus Duplesses are
procedurally barred from consideration; nor was it error for the district court to
reject the relator’s claim with regard to the jury’s understandings of the law or to
order an evidentiary hearing on the relator’s claim that an alternate juror
participated in jury deliberations. However, with respect to its remaining
conclusions, we reverse the district court judgment to the extent that it dismisses
the relator’s claims as procedurally barred and vacate the district court judgment to
the extent that it dismisses the relator’s claims on the merits.
On remand, the district court shall first consider the relator’s Brady claims in
light of the applicable law. Pursuant to Brady,in accordance with the Due Process
clause of the Fourteenth Amendment, the State must disclose to the defense
evidence that is favorable to the defense and is material to guilt or punishment. In
other words, suppression by the State of evidence favorable
to the accused (after receiving a request for it) is a constitutional due process
violation where the evidence is material either to guilt or punishment, regardless of
the good or bad intent of the prosecution. Brady, 373 U.S. at 87. Favorable
evidence includes that which impeaches the testimony of a witness when the
reliability or credibility of that witness may determine guilt or innocence. United
33
States v. Bagley, 473 U.S. 667, 676, (1985); Giglio v. United States, 405 U.S. 150,
154 (1972). The duty to disclose evidence favorable to an accused is applicable
even when there has been no request by the accused, U.S. v. Agurs, 427 U.S. 97
(1976), and encompasses impeachment evidence as well as exculpatory evidence.25
Bagley, 473 U.S. 676. Therefore, the Brady rule includes evidence known only to
police investigators and an “individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government’s behalf in this
case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). In other
words, prosecutors are “not just team members winning at all costs on behalf of the
government” but, rather, they “play[] a special role” in the “search for truth in
criminal trials.” Strickler, 514 U.S. at 281. As such, a prosecutor’s duty to disclose
does not end with a jury’s verdict but, instead, the prosecutor remains bound by the
ethics of his office even after a conviction “to inform the appropriate authority of
after acquired or other information26 that casts doubt upon the correctness of the
conviction.” State v. Pierre, 2013-0873, p. 11 (La. 10/15/2013), 125 So.3d 403,
410 (citation omitted).
If the district court determines that the relator fails to establish that the State
committed a Brady violation by withholding material, it must then consider
whether counsel knew or should have known of the exculpatory material and
whether counsel’s failure to use it constitutes ineffective assistance of counsel, as
well as the relator’s remaining actual innocence and interest of justice claims. See
25
“Such evidence is material if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Strickler v.
Greene, 527 U.S. 263, 280 (1999) (citations and internal quotation marks omitted).
26
The standard of review on a claimed Brady violation is not whether the verdict would more
likely than not have been different had the evidence been admitted, but whether in its absence
defendant received a fair trial, resulting in a verdict worthy of confidence. Kyles v. Whitley, 514
U.S. at 434.
34
La. Code Crim. Proc. art. 930.8(A)(1); see also State v. Paul, 2015-2278 (La.
11/2/16) 202 So.3d 995 (granting writs and remanding the case to the district court:
“The district court’s ruling dismissing relator’s actual innocence claim is reversed
and the claim is remanded for consideration after an evidentiary hearing.”).
WRIT AFFIRMED IN PART,
REVERSED IN PART, VACATED
IN PART AND REMANDED.
35