State of Louisiana v. Darrill Henry

STATE OF LOUISIANA * NO. 2020-K-0233

VERSUS *
COURT OF APPEAL
DARRILL HENRY *
FOURTH CIRCUIT
*
STATE OF LOUISIANA

*******

APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 451-696, SECTION “G”
Honorable Dennis J. Waldron, Judge
******
Judge Joy Cossich Lobrano
******

(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge
Sandra Cabrina Jenkins)

Jenkins. J., Dissents and Assigns Reasons

Leon A. Cannizzaro, Jr.
District Attorney
Kyle Daly
Assistant District Attorney
Parish of Orleans
619 South White Street
New Orleans, LA 70119

COUNSEL FOR RELATOR

Letty S. Di Giulio
Law Office of Letty S. Di Giulio
1055 St. Charles Avenue,
Suite 208
New Orleans, LA 70130

Vanessa Potkin
Innocence Project, Inc.
40 Worth Street, Suite 701
New York, NY 10013

Aaron Delaney
Johan E. Tatoy
Ariane Rockoff-Kirk
Daniel R. Friel
Paul, Weiss, Rifkind, Wharton,
& Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064

COUNSEL FOR RESPONDENT

WRIT GRANTED; VACATED; REMANDED.

JULY 22, 2020

JCL, TFL The State has filed the instant writ application seeking review of the

district court’s ruling of March 11, 2020, which granted the application for post-

conviction relief filed by defendant, Darrill Henry (“Defendant”), and ordered a

new trial based on newly discovered DNA evidence. For the reasons that follow,

we grant the State’s writ, vacate the ruling of the district court, and remand the

matter for further proceedings.

On September 2, 2004, the State indicted Defendant on two counts of first-

degree murder in violation of La. R.S. 14:30. On August 31, 2011, the jury

unanimously found Defendant guilty as charged. During the penalty phase, the jury

recommended life sentences and on May 24, 2012, the district judge sentenced

Defendant to life imprisonment without benefit of parole, probation, or suspension

of sentence on both counts. This court affirmed Defendant’s convictions and

sentences on August 6, 2014, and the Louisiana Supreme Court denied review.1

1
See State v. Henry, 13-0059 (La.App. 4 Cir. 8/6/14), 147 So.3d 1143, writ denied, 14-1869 (La.
4/10/15), 164 So.3d 831. The United States Supreme Court denied Defendant’s petition for writ
of certiorari on November 2, 2015. See Henry v. Louisiana, 136 S. Ct. 402, 193 L. Ed. 2d 339
(2015).

1

On October 26, 2016, Defendant filed a timely application for post-

conviction relief, which included a request to conduct DNA testing on one of the

victim’s wallet and fingernail scrapings collected during her autopsy pursuant to

La. C.Cr.P. art. 926.1.2 The State did not object to the testing and the request was

granted.

On November 29, 2018, Defendant filed an amended application arguing,

among other things, that the results of the DNA testing established that Defendant

is factually innocent of the crime under La. C.Cr.P. art. 930.3(7).3 In support,

Defendant submitted two reports by Forensic Analytical Crime Lab (“FACL”),

which allegedly showed that the testing of the victim’s wallet and her right hand

fingernail scrapings exonerated Defendant.

The evidentiary hearing on the DNA innocence claim came before the

district court on September 9-10, 2019. Alan Keel of FACL, an expert in forensic

serology and DNA analysis, testified for the defense and Anne Montgomery, an

expert in DNA analysis, was called by the State. Keel testified that Defendant was

2
La. C.Cr.P. art. 926.1(A)(1) states in pertinent part:

Prior to August 31, 2024, a person convicted of a felony may file an
application under the provisions of this Article for post-conviction relief
requesting DNA testing.
3
La. C.Cr.P. art 930.3 states in pertinent part:

If the petitioner in custody after sentence for conviction of an offense,
relief shall be granted only on the following grounds:
* * *
(7) The results of DNA testing performed pursuant to an application
granted under Article 926.1 proves by clear and convincing evidence
that the petitioner is factually innocent of the crime for which he was
convicted.

2

“absolutely excluded as the source of that DNA,” obtained from the victim, while

Montgomery testified that the results of FACL’s DNA testing neither exonerated

nor inculpated Defendant as the assailant.

After the hearing, both Defendant and the State filed post-hearing

memoranda. The district court heard arguments from counsel on March 5, 2020

and took the matter under advisement.

On March 11, 2020, the district court issued a ruling that vacated

Defendant’s conviction based on the DNA evidence and ordered a new trial.4 The

State timely filed its writ application.

Post-conviction relief is governed by La. C.Cr.P. arts. 924 et seq. As a

general matter, the petitioner has the burden of proving that relief should be

granted. La. C.Cr.P. art. 930.2.

La. C.Cr.P. art. 930.3 sets forth the grounds for granting post-conviction

relief where the petitioner is in custody after sentencing and conviction. La.

C.Cr.P. art. 930.3(7) provides specifically that post-conviction relief shall be

granted when the “results of DNA testing performed pursuant to an application

granted under Article 926.1 proves by clear and convincing evidence that the

petitioner is factually innocent of the crime for which he was convicted.”

(Emphasis added).

When the district court bases its ruling on an erroneous view of the law,

appellate courts apply a de novo standard of review. State in Interest of K.C.C., 15-

4
The district court set bail for Defendant and Defendant was released from prison.

3

1429, p. 4 (La. 1/27/16), 188 So.3d 144, 146; State in the Interest of G.S., 19-0605,

p. 5 (La.App. 4 Cir. 12/4/10), 287 So.3d 752, 756.

In its written reasons, the district court stated that before it was “defendant’s

Motion for New Trial, based on newly discovered DNA evidence.” It noted that

under La. C.Cr.P. art. 851(B)(3), a new trial shall granted based on new and

material evidence “if the evidence had been introduced at the trial it would

probably have changed the verdict or judgment of guilty.” The district court noted

that the jury relied on the testimony of three eyewitnesses to convict Defendant.

However, “[a]rmed with that newly discovered evidence, a reasonable juror could

conclude the defendant was not the killer” and the DNA evidence could “counter

eyewitness testimony to such a degree, so as to create a reasonable double as to the

defendant’s guilt.” The court held that the newly discovered DNA evidence was

“indeed fit for a new jury’s judgment; that a new jury may very well reach a

difference conclusion; that the newly discovered evidence may, at a minimum lead

to a hopelessly deadlocked jury; and that ultimately a new trial is mandated.” The

district court was convinced that the “interest[s] of justice and the concept of

fundamental fairness” required that a new trial be granted because it was “highly

probable that the newly discovered evidence would have produced a difference

result” at trial.

At no point did Defendant file a motion for new trial under La. C.Cr.P. art.

851(B)(3).5 Despite this, however, the district court applied the standard set forth

in La. C.Cr.P. art. 851(B)(3), not a post-conviction claim of innocence pursuant to

5
In fact, a motion for new trial based on newly discovered evidence at this stage in the
proceedings would have been untimely. See La. C.Cr.P. art. 853(B) (stating a motion for new
trial under La. C.Cr.P. art. 851(B)(3) should be filed within one year after the verdict).

4

La. C.Cr.P. art. 930.3(7). As argued by Defendant, we do not find that the district

court’s use of the words, “highly probable,” satisfy La. C.Cr.P. art. 930.3(7).

The “clear and convincing standard” under La. C.Cr.P. art. 930.3(7),

requires proof by more than a preponderance but less than beyond a reasonable

doubt. State v. Cox, 15-0124, p. 13 (La.App. 4 Cir. 7/15/15), 174 So.3d 131, 138.

The clear and convincing standard is a higher burden of proof than the one for

granting a motion for new trial.6

Because the district court applied the wrong standard to Defendant’s

application for post-conviction relief, it erred by granting the application, and

ordering a new trial. Accordingly, we grant the State’s writ application, vacate the

ruling by the district court, and remand the matter to the district court to address

whether the results of the DNA tests meet the more stringent standard required by

La. C.Cr.P. art. 930.3(7).7

WRIT GRANTED; VACATED;
REMANDED.
6
See State v. Robertson, 42,247, pp. 2-3 (La.App. 2 Cir. 6/25/07), 958 So.2d 787, 788-89 (while
a favorable DNA test “might have been persuasive to a jury to establish a reasonable doubt of
guilt, it does not now provide ‘clear and convincing evidence’ of the applicant’s factual
innocence of the crime, and would not provide grounds for the granting of post-conviction relief
under La. C.Cr.P. art. 930.3(7)”).

Little case law in Louisiana addresses DNA evidence pursuant to La. C.Cr.P. art.
930.3(7). However, in State v. Johnson, 07-0475 (La.App. 1 Cir. 10/10/07), 971 So.2d 1124
(subsequent history omitted), the defendant filed post-conviction relief based on DNA test results
and claimed that he should be granted a new trial based on the State’s failure to disclose
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963). The district court granted post-conviction relief, set aside the verdict and ordered a
new trial based on the DNA test results and the Brady claim. The First Circuit reversed the
district court’s granting of the defendant’s post-conviction relief, finding that the results of the
DNA testing did not prove by clear and convincing evidence that the defendant was factually
innocent of the crime.
7
Defendant also argues that this court can determine if the results of the DNA tests meet the
more stringent standard required by La. C.Cr.P. art. 930.3(7). Because the district court
conducted the evidentiary hearing, we find it more appropriate to remand this to the court below
for its own analysis pursuant to La. C.Cr.P. art. 930.3(7).

5