State of Louisiana Versus Elzey Jeffrey Perilloux

STATE OF LOUISIANA NO. 22-KH-332

VERSUS FIFTH CIRCUIT

ELZEY JEFFREY PERILLOUX COURT OF APPEAL

STATE OF LOUISIANA

August 24, 2022 **CONFIDENTIAL**
LSA-RS 46:1844(W)
Susan Buchholz ATTORNEYS OF RECORD
Chief Deputy Clerk ONLY

IN RE STATE OF LOUISIANA

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT,
PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
FRANZ L. ZIBILICH, DIVISION "C", NUMBER 18,193

Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and June B. Darensburg

WRIT GRANTED

In this writ application, the State seeks supervisory review of the trial court’s
ruling that defendant’s second Motion for New Trial was timely filed. For the
following reasons, this writ application is granted.

Defendant alleged in his second Motion for New Trial that it was based on
La. C.Cr.P. art. 851(B)(4) and (5). However, defendant also alleged in his motion
that it was based on newly discovered evidence, even though he did not
specifically cite La. C.Cr.P. art. 851(B)(3). We find that defendant’s allegation of
jury misconduct is not new evidence that could be admitted at trial under Article
851(B)(3), and that defendant has not demonstrated the existence of any new
evidence which could produce a verdict different from that rendered at trial. See
State v. Bibb, 626 So.2d 913, 927 (La. App. 5 Cir. 1993), writ denied, 93-3127 (La.
9/16/94), 642 So.2d 188. Since defendant’s allegation of jury misconduct does not
fall under Article 851(B)(3), his motion for new trial is untimely because it was not
filed and disposed of before sentence. See La. C.Cr.P. art. 853(A).

Although defendant’s motion for new trial is untimely, he may have an
adequate remedy on appeal. See Bibb, supra.

Accordingly, this writ application is granted.

Gretna, Louisiana, this 24th day of August, 2022.

JBD
SJW
HJL

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

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

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

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 08/24/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

22-KH-332
E-NOTIFIED
40th District Court (Clerk)
Honorable Franz L. Zibilich (DISTRICT JUDGE)
Honorable J. Sterling Snowdy (DISTRICT JUDGE)
Carol Anne Kolinchak (Respondent)
Christopher N. Walters (Relator)
Grant L. Willis (Relator)

MAILED
James E. Boren (Respondent) Honorable Jeffrey M. Landry (Relator)
Attorney at Law Attorney General
830 Main Street Louisiana Department of Justice
Baton Rouge, LA 70802 Post Office Box 94005
Baton Rouge, LA 70804

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1. Article Addr9S88d to:
DNo
Honorable Jeffrey M. Landry
Attorney General
Louisiana Department of Justice
Post Office Box 94005
Baton Rouge, LA 70804
22-l<H-332 08-24-22

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' PS Fonn 3811, July 2015 PSN 7530-02-ooo.eo53

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Attorne ·aw
830 Mai 6 tree t
Baton Rouge't:uA 70802
22-KH-332 08-24-22

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Il l Ill IIII Ill IIII Ill

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