Cheri Hayden v. Frederick Boutte, Warden

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #049

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 25th day of October, 2024 are as follows:

PER CURIAM:

2023-KP-00864 CHERI HAYDEN VS. FREDERICK BOUTTE, WARDEN (Parish of
Jefferson)

REVERSED AND REMANDED. SEE PER CURIAM.

SUPREME COURT OF LOUISIANA

No. 2023-KP-00864

CHERI HAYDEN

VS.

FREDERICK BOUTTE, WARDEN

On Supervisory Writ to the Twenty-Fourth Judicial District Court, Parish of
Jefferson

PER CURIAM:*

We granted the State’s application to review the court of appeal’s

determination that defendant was entitled to a new trial on collateral review

because she received ineffective assistance of counsel at trial. After carefully

reviewing the record, we find that the court of appeal erred in failing to give due

deference to the district court’s credibility determinations. For the reasons that

follow, we find that, even assuming counsel error, defendant failed to show

prejudice under the Strickland standard. Accordingly, we reverse the ruling of the

court of appeal, and we remand to the court of appeal with instructions to address

pretermitted claims.

In 2009, a unanimous Jefferson Parish jury found defendant guilty as

charged of second degree murder. The victim died from injuries sustained when

she was run over by a truck in a grocery store parking lot in Marrero during a purse

snatching. The driver of the truck was accompanied by Michael Coe, who grabbed

the victim’s purse from the front seat, and Matthew Vinet, who was the truck’s

owner and was sitting in the back seat. Vinet confessed to his involvement in the

crime and identified defendant as the driver. Defendant, who was 45 years old with

*
Justice Jeannette Theriot Knoll, retired, appointed Justice Pro Tempore, sitting due to the
vacancy in Louisiana Supreme Court District 3.

deep facial lines, denied any involvement in the crime. She claimed that at the time

of the crime, she was at her father’s house taking a bath and preparing food for her

granddaughter’s birthday scheduled later that day. She indicated at trial that she

arrived at the party over an hour after the crime took place.

Two eyewitnesses, Tabitha Chiasson and Connie Dutreil, identified

defendant as the driver from a photo lineup. They each expressed a high degree of

certainty of their identifications throughout the trial and denied that the police

suggested any particular person to select from the lineup. Chiasson claimed that

she attempted to help the victim during the purse snatching in the parking lot. She

told the police that the driver was a “skinny” and “very pale” white woman in her

“mid-thirties,” with “long strawberry blonde hair” and “bluish green eyes.” At a

pretrial hearing, she testified that she thought the driver was “around late 30s or

early 40s.” At trial, she described the driver as “crack-head skinny,” with “pasty-

white” skin and “kind of strawberry-blond hair, long; kind of greenish eyes,

greenish-blue eyes, I think, like you know. Actually [h]azel; everything is [h]azel.”

She also indicated that she got “up close” to the driver and that they looked directly

at each other.

Dutreil, whose vehicle was hit by the truck involved in the purse snatching

shortly after it pulled out of the grocery store parking lot, told the police that the

driver was a “young girl about in her twenty’s . . . [m]aybe her middle – late

twenty’s early thirties,” with “light colored,” “shoulder length” “[b]londe . . .

brown hair,” wearing sunglasses. Dutreil indicated at trial that she was able to get a

good look at the driver. She stated that when the impact occurred, she and the

driver looked at each other, and the driver took off. She testified at trial that the

driver’s hair was “two-toned” “[b]lond and brown[,]” that the driver was wearing

sunglasses, and that the driver appeared “in between her twenties and thirties.”

Warren Pitre, who witnessed the purse snatching in the grocery store parking

2

lot, did not provide an identification of the driver. Pitre told the police that he only

got “kind of a glimpse” of a woman in the front seat and could only describe her as

having blond hair. He testified at a pretrial hearing that he could not see the

driver’s face but observed that she had long blond hair. He testified at the same

hearing that he unsuccessfully tried to grab the victim as she slipped underneath

the truck and had not noticed anyone else trying to help her at the time. Pitre was

not called to testify at trial.

The lead investigator from the Jefferson Parish Sheriff’s Office, Lieutenant

Donald Meunier, testified that Jessica Billiot, who was Vinet’s girlfriend at the

time of the crime, was never considered a suspect. He stated that while Billiot’s

DNA was found on cigarette butts in Vinet’s truck, and defendant’s DNA was not

found in the truck, police did not find this remarkable because it was established

that Billiot was Vinet’s girlfriend and that she used his vehicle. Lieutenant Meunier

described Billiot as a white brunette in her 20s. The State introduced as evidence

three photos of Billiot, all depicting her with dark hair, and when the State asked

Lt. Meunier whether he believed that there was “even the slightest resemblance”

between defendant and Billiot, he replied, “I don’t think so, no.”

Billiot was called as a defense witness at trial. She testified that she had

gotten into a fight with Vinet on the day of the crime and had parted ways with him

before the crime occurred. She denied being in the truck at the time of the crime.

She testified that she went shopping with her roommate’s mother on the day of the

crime. Billiot further denied that she had ever had blond hair. On cross-

examination, the State asked no questions but only had Billiot take her hair down

for the jury.

The jury found defendant guilty as charged of second degree murder. The

trial court sentenced defendant to life imprisonment at hard labor without benefit

of probation, parole, or suspension of sentence. The court of appeal affirmed

3

defendant’s conviction and sentence. State v. Hayden, 09-954 (La. App. 5 Cir.

5/11/10), 41 So.3d 538, writ denied, 2010-1382 (La. 1/14/11), 52 So.3d 899.

In 2018, defendant, represented by the Innocence Project of New Orleans

(IPNO), filed an application for post-conviction relief, in which she claimed that:

(1) she received ineffective assistance of counsel at trial, (2) the State withheld

Brady material, (3) the State presented false testimony in violation of Napue, (4)

the cumulative impact of ineffective assistance of counsel and Brady violations

entitled her to a new trial, and (5) she has shown that she is factually innocent. She

twice supplemented her application for post-conviction relief before the district

court conducted an evidentiary hearing on her claims in 2022, at which several

witnesses testified. We do not summarize the testimony here, other than to note

that defendant essentially claimed that she was misidentified, Chiasson has since

recanted her identification, counsel failed to investigate witnesses who could have

confirmed defendant’s alibi, counsel failed to discover weaknesses in the

identifications, and counsel failed to adequately investigate Billiot as an alternative

suspect.

The district court denied post-conviction relief. The district court issued

written reasons addressing each of defendant’s claims, which we do not summarize

here other than to note that the trial court made several credibility determinations

before finding, inter alia, that defendant failed to establish prejudice under the

standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). 1

1
Under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a reviewing court must reverse a
conviction if the defendant establishes (1) that counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms; and (2) counsel’s inadequate
performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict
suspect. The Strickland test of ineffective assistance affords a “highly deferential” standard of
review to the actions of counsel to eliminate, as far as possible, “the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
4

The court of appeal reversed and granted a new trial. Hayden v. Boutte, 22-

0244 (La. App. 5 Cir. 4/26/23), 369 So.3d 844, as clarified on reh’g (May 23,

2023). The court of appeal found that trial counsel provided ineffective assistance

by failing to adequately investigate defendant’s case. Specifically, the court of

appeal found that counsel erred in failing to interview Chiasson and Dutreil, and

that had he done so, counsel would have discovered discrepancies in their

identifications that could have been used to impeach them at trial and cast doubt on

their identifications. The court of appeal also found that counsel could have

discovered that, as Chiasson testified at the evidentiary hearing, she felt pressured

by investigators to provide an identification and that one of the investigators placed

a thumb near defendant’s photo while showing her the lineup. The court of appeal

also found that counsel erred in failing to interview Pitre, as his pretrial testimony

that he did not notice anyone helping the victim could have been used to cast doubt

on Chiasson’s claim that she helped the victim during the crime. The court of

appeal also determined that had counsel interviewed Pitre, counsel could have

discovered that Pitre, as he alleged at the evidentiary hearing, told the police that

the driver was a “young girl” in her “twenties,” which would have cast doubt on

the identification of the 45-year-defendant as the driver.

The court of appeal also found that counsel erred in failing to adequately

investigate Billiot as an alternative suspect, as she more closely matched the age

description provided by eyewitnesses. The court of appeal found that had counsel

adequately investigated her, he would have discovered inconsistencies in her alibis

to the police that could have been used to impeach her at trial. The court of appeal

also found that counsel would have discovered two witnesses who could have

discredited her alibis. The court of appeal further found that counsel would have

discovered witnesses claiming that Billiot confessed to them that she had been

involved in the crime, as well as witnesses claiming that Billiot had blond hair at

5

the time of the crime, with one of whom testifying at the evidentiary hearing that

she saw Billiot dyeing her hair from blond to brown sometime after the crime.

Finally, the court of appeal found that counsel erred in failing to adequately

investigate defendant’s alibi or to call any witnesses who attended the party on the

day of the crime. The court of appeal found that counsel further erred in failing to

subpoena reluctant witnesses to compel them to testify at trial.

The court of appeal found that the above errors above prejudiced defendant,

as they infected the entire trial and left her with an incomplete defense. The court

of appeal found that counsel’s inadequate investigation led the jury to believe that

the State’s case was stronger than the evidence presented at the evidentiary hearing

now suggests.

Because the court of appeal granted relief on grounds of ineffective

assistance of counsel, it pretermitted discussion of the remainder of defendant’s

claims.

The court of appeal subsequently granted the State’s petition for rehearing

for the limited purpose of clarifying its decision. Specifically, the State complained

of an error in the first sentence of the court’s conclusion paragraph, which stated as

follows:

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.

Id., 22-0244, p. 45, 369 So.3d at 874 (emphasis added). The State argued that the

emphasized portion constituted a judicial finding on claims pretermitted by the

court. The court of appeal therefore amended the ruling as follows to remove the

implication that its finding was based on any claim other than ineffective

assistance of counsel:

6

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
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).

After reviewing the record, the briefs and arguments of the litigants, and the

court of appeal’s opinion, we find that the court of appeal erred in failing to give

due deference to the district court’s credibility determinations. 2 A review of the

evidentiary hearing transcript supports the district court’s finding that certain

witnesses lacked credibility. Several witnesses expressed a degree of difficulty

remembering details from 2008 and/or difficulty with memory in general. The

district court was in the best position to judge the demeanor and tone of the

witnesses, and nothing suggests that the district court’s credibility determinations

were unreasonable in light of the record.

Furthermore, nothing suggests that the district court erred in rejecting

Chiasson’s recantation.3 Chiasson contradicted herself several times during the

2
See Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989) (“When findings are based on
determinations regarding the credibility of witnesses, the manifest error—clearly wrong standard
demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the
variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and
belief in what is said.”). This court further stated in Rosell, 549 So.2d at 844 (citations omitted):

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s
finding of fact in the absence of “manifest error” or unless it is “clearly wrong,”
and where there is conflict in the testimony, reasonable evaluations of credibility
and reasonable inferences of fact should not be disturbed upon review, even
though the appellate court may feel that its own evaluations and inferences are as
reasonable. . . . The appellate review of fact is not completed by reading only so
much of the record as will reveal a reasonable factual basis for the finding in the
trial court, but if the trial court or jury findings are reasonable in light of the
record reviewed in its entirety, the court of appeal may not reverse even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently. Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be manifestly erroneous or clearly
wrong.
3
It is well-settled that courts view recantations “with utmost suspicion.” See State v. Prudholm,
446 So.2d 729 (La. 1984); State v. Clayton, 427 So.2d 827, 833 (La. 1982) (courts must view
recantations with “utmost suspicion” because recanting “is tantamount to an admission of perjury
which would destroy the credibility of the witness at a new trial.”).

7

evidentiary hearing, and she also agreed that she had a degree of difficulty in

remembering details. Chiasson had been consistent and confident in her description

and identification of defendant throughout the police investigation and trial

proceedings. At a pretrial hearing, she stated, “[O]bviously this woman is engraved

into my head for the rest of my life.” She also stated, “I can’t be any more sure.

These people for the rest of my life are stuck in my head.” Notably, Chiasson did

not recant her testimony until IPNO visited her twice at her home and showed her

photographs of Billiot roughly a decade after the crime. Moreover, Chiasson

denied at trial that the police suggested any particular person for her to select from

the lineup, and she specifically denied that any investigators placed a thumb near

defendant’s photo.

Additionally, because defendant admitted that she arrived at the party well

after the crime took place, trial counsel’s decision not to call witnesses who

claimed to have seen defendant at the party was not unreasonable, as they could

not have accounted for defendant’s whereabouts at the time of the crime.

However, the record also contains evidence suggesting that trial counsel’s

performance may have been deficient in some respects. The trial transcript reflects

that counsel was unprepared to question Billiot, as he failed to challenge her when

she provided an alibi at trial inconsistent with her police statements. He also

elicited testimony from Billiot denying that she was in the truck at the time of the

crime and that she ever had blond hair, which also went unchallenged. Counsel’s

decision to call Billiot without adequate preparation therefore likely hurt rather

than helped defendant’s case.

Likewise, trial counsel arguably erred in failing to interview individuals

Billiot claimed to have been with on the day of the crime, both of whom testified at

the evidentiary hearing that she was not with them that day. Prevailing professional

norms would likely require an attorney to investigate any individual who had a

8

close tie to one of the perpetrators and who told the police that she had been with

him prior to the crime, especially, as was the case here, when an anonymous tip

was made regarding her possible involvement in the crime. Counsel’s decision not

to do so was arguably unreasonable, particularly where defendant’s own alibi was

thin and only verifiable by biased witnesses—specifically, her father and

stepmother—who claimed to have been with defendant at their home at the time of

the crime.

Trial counsel’s decision not to interview Pitre was also arguably

unreasonable, as his testimony could have been used to discredit Chiasson’s

version of events. However, counsel did not err insofar as failing to interview or

call Pitre as a witness regarding his identification, or lack thereof, of the driver.

Nothing aside from Pitre’s testimony at the evidentiary hearing suggests that he

ever provided a description of the driver’s age or described her as “young” to

either the police or anyone representing defendant leading up to trial. Rather, the

record suggests the opposite, in that when the police asked Pitre whether he could

describe the driver, he could only offer that she had blond hair. Pitre testified

similarly at the pretrial hearing, stating that he could not see the driver’s face.

Additionally, the record supports the district court’s determination that Pitre, who

was 81 years old at the time of the evidentiary hearing, was incompetent to testify

at the hearing, as the transcript reflects several clear lapses in memory generally

and an inability to accurately recall basic details surrounding the investigation.

Trial counsel’s decision not to interview Chiasson and Dutreil prior to trial

was also arguably unreasonable. In particular, the gap between Dutreil’s initial age

description and the age of defendant, who appeared older than her age of 45 at the

time, was arguably large enough to have prompted counsel to interview them

regarding their identifications.

Nonetheless, even if counsel’s performance was deficient, the district court

9

did not err in determining that defendant failed to show prejudice under Strickland.

To show prejudice, a defendant “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at

2068. Moreover:

In making this determination, a court hearing an ineffectiveness claim
must consider the totality of the evidence before the judge or jury.
Some of the factual findings will have been unaffected by the errors,
and factual findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect on the
inferences to be drawn from the evidence, altering the entire
evidentiary picture, and some will have had an isolated, trivial effect.
Moreover, a verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with
overwhelming record support. Taking the unaffected findings as a
given, and taking due account of the effect of the errors on the
remaining findings, a court making the prejudice inquiry must ask if
the defendant has met the burden of showing that the decision reached
would reasonably likely have been different absent the errors. . . .
[T]he ultimate focus of inquiry must be on the fundamental fairness of
the proceeding whose result is being challenged. In every case the
court should be concerned with whether, despite the strong
presumption of reliability, the result of the particular proceeding is
unreliable because of a breakdown in the adversarial process that our
system counts on to produce just results.

Id., 466 U.S. at 695–96, 104 S.Ct. at 2069.

Here, nothing presented at the evidentiary hearing persuades us that the

jury’s verdict would have been reasonably likely to be different or that the trial

here was fundamentally unfair. The trial transcript reflects that Chiasson and

Dutreil both expressed extreme confidence in their identifications of the driver and

denied that investigators suggested an individual to select from the photo lineup.

Chiasson testified at a pretrial hearing and at trial that it took her longer to identify

the man sitting in the passenger side of the truck than to identify defendant as the

driver, whom she recognized “right away[,]” and Dutreil was unable to identify the

male passenger at all. Given that Chiasson and Dutreil were both willing to admit

10

to some degree of uncertainty regarding the male passenger, both witnesses

presumably would have been comfortable expressing any uncertainty they may

have had in identifying the driver as well.

Additionally, the jury heard Dutreil testify that she estimated the driver to be

“between her twenties and thirties” when she saw her immediately following the

crash, and nonetheless found her identification credible. Moreover, whether

Chiasson or Dutreil would have recanted their identifications prior to trial had

counsel interviewed them or shown them a photograph of Billiot is purely

speculative, especially considering the high degree of certainty they expressed in

their identifications at that time. It is even less likely that Dutreil would have

recanted her identification prior to trial, as she remains confident in her

identification to this day.

Additionally, it is unclear whether trial testimony from Pitre contradicting

Chiasson’s version of events would have had an appreciable effect on the outcome.

Dutreil’s confidence in her identification arguably bolstered Chiasson’s equally

confident identification to the extent that Pitre’s recollection of events may not

have affected the jury’s determination of Chiasson’s credibility. The record also

indicates that another eyewitness told the police that he saw a woman helping the

victim during the crime, which would have served to confirm Chiasson’s account.

Accordingly, we grant the State’s application and reverse the opinion of the

court of appeal, which granted defendant a new trial based on ineffective assistance

of counsel under the Strickland standard. We find that the district court correctly

denied relief under Strickland. However, because the court of appeal did not

address all of defendant’s claims, we remand to the court of appeal to consider the

pretermitted claims.

REVERSED AND REMANDED

11