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concluding the legislature intended to create different burdens of proving factual innocence in a claim for criminal post-conviction relief and a claim for compensation under La. R.S. 15:572.8
Summary of this case from Jones v. StateOpinion
NO. 2021 CA 1205
08-24-2022
Wilbert JONES v. STATE of Louisiana
Zachary T. Crawford, Jee Park, New Orleans, LA, Attorneys for Plaintiff-Appellant, Wilbert Jones Jeff Landry, Attorney General, Christopher N. Walters, Grant L. Willis, Assistant Attorneys General, Baton Rouge, LA, Attorneys for Defendant-Appellee, State of Louisiana
Zachary T. Crawford, Jee Park, New Orleans, LA, Attorneys for Plaintiff-Appellant, Wilbert Jones
Jeff Landry, Attorney General, Christopher N. Walters, Grant L. Willis, Assistant Attorneys General, Baton Rouge, LA, Attorneys for Defendant-Appellee, State of Louisiana
BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.
HESTER, J.
In this matter, plaintiff, Mr. Wilbert Jones appeals the trial court judgment denying his petition for compensation for wrongful conviction and imprisonment under La. R.S. 15:572.8. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On October 2, 1971, around 10:45 p.m., A.H., a registered nurse at Baton Rouge General Hospital, was parking at the hospital and about to begin her shift at work. As she was attempting to get out of her vehicle, a man carrying a gun pushed her back into the vehicle, and directed her to drive to an area behind a school where he raped her twice. A.H. immediately reported the rape and described the perpetrator to the detectives as a slender, dark skinned male, about the same height or taller than her husband's 5’7" height, with a space between his front teeth.
In attempting to find the perpetrator, A.H. was shown multiple lineups in October and November, but did not identify anyone. Then, about three and a half months after the rape of A.H., 19-year-old, Wilbert Jones was arrested purportedly based on information received from another individual. After his arrest, Mr. Jones voluntarily consented to be placed in a lineup to be viewed by A.H. The lineup took place in January and during the lineup, A.H. considered the individuals for about ten to fifteen minutes before identifying Mr. Jones as the perpetrator. A.H. said she was "mulling over" her identification in her mind because Mr. Jones's voice seemed a little bit different from the perpetrator's voice and at the time of the rape, the perpetrator seemed a little bit taller than Mr. Jones, but his facial features were the same. After the lineup, A.H. called the detectives to let them know that she was not positive about the identification because Mr. Jones's height and voice seemed different and that she could only be 99% sure that it was Mr. Jones.
On April 3, 1972, Mr. Jones was indicted for the rape of A.H. During the initial trial, Mr. Jones denied that he raped A.H. He testified that he could not remember where he was on the night in question, but he thought maybe he was at a friend's home. Mr. Jones further testified that he never owned a gun and only finished the 8th grade. During the trial, A.H. identified Mr. Jones in the courtroom as the perpetrator, and she testified that she was positive Mr. Jones was the man that raped her. On February 6, 1973, Mr. Jones was found guilty as charged by a jury. Later that year, his conviction was reversed by the Louisiana Supreme Court based on an improper comment regarding race made by the prosecutor during his opening statement. State v. Jones, 283 So.2d 476 (La. 1973). On July 10, 1974, Mr. Jones was tried a second time and found guilty of aggravated rape by a jury and sentenced to life imprisonment. Mr. Jones did not testify during the second trial. A.H. testified again, identifying Mr. Jones as the perpetrator.
At some point much later, the Innocence Project became involved in Mr. Jones's case and in 2011, through the Innocence Project, Mr. Jones filed a petition for post-conviction relief, seeking post-conviction DNA testing. In 2015, Mr. Jones supplemented his petition for post-conviction relief and presented evidence of similarities between A.H.’s description of the man who raped her and Mr. Arnold Ray O'Conner, who committed at least one similar rape in the same vicinity and during roughly the same time frame. Initially, the trial court denied his request; however, on June 16, 2017, the Louisiana Supreme Court remanded the matter to the trial court to conduct a hearing on whether the State withheld material exculpatory evidence under Brady such that Mr. Jones was denied a fair trial. Jones v. Vannoy , 2017-0101 (La. 6/16/17), 221 So.3d 850. On August 31 and September 5, 2017, the trial court, with Judge Richard Anderson presiding, held a hearing on Mr. Jones's petition for post-conviction relief. During the hearing, Mr. Jones introduced several documents showing the similarities between the rape of A.H. and the rape of E.F. by Mr. O'Conner as well as similarities of Mr. O'Conner’s rape of Ms. Andre. Mr. Jones also introduced evidence showing that A.H.’s original description of the perpetrator matched Mr. O'Conner. Mr. O'Conner was subpoenaed to testify at the post-conviction hearing. However, other than verifying his date of birth and his conviction, Mr. O'Conner invoked his Fifth Amendment privilege against self-incrimination. After the hearing, on October 31, 2017, the trial court issued a ruling vacating the conviction of Mr. Jones, finding the State committed a Brady violation by withholding evidence of Mr. O'Conner’s similar crimes. The State sought review of the trial court's decision, and the State's application for supervisory writ was denied by the Louisiana Supreme Court on October 8, 2018. Jones v. Hooper , 2017-2012 (La. 10/8/18), 253 So.3d 795. Immediately thereafter, on October 11, 2018, the State dismissed the indictment of Mr. Jones, and Mr. Jones was released from prison after nearly 46 years.
Mr. O'Conner was connected to the rape of a female with the initials E.F. by a latent print found on her car and was convicted of armed robbery of a female named Kathleen Andre. Mr. Jones submitted an affidavit of Ms. Andre with his petition where she attested that Mr. O'Conner raped her. In her affidavit, she stated that she was unsure why Mr. O'Conner was only charged with armed robbery. Mr. Jones indicated in his brief that Ms. Andre preferred to be identified by her full name.
Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963).
In Jones , Justice Johnson concurred with the per curiam opinion of the court but further noted:
I agree that relator's Brady claim regarding the October 29, 1971 rape requires further evidentiary development and a ruling on the merits from the district court. I am also gravely concerned about the apparently premature destruction of evidence that might have otherwise been tested for DNA and the potential that some evidence remains and could be tested but has been misplaced.
Jones , 221 So.3d at 851.
On October 31, 2019, Mr. Jones filed a "Petition for Compensation for Wrongful Conviction and Imprisonment Pursuant to La. R.S. § 15:572.8" seeking compensation "for the 45 years, 10 months, and three days he spent wrongfully incarcerated for a crime he did not commit." In his petition, he sought $330,000.00, the maximum amount he was entitled to at that time under La. R.S. 15:572.8(H)(2) and (3).
Mr. Jones's petition came before the trial court for a hearing on March 26, 2021. During the compensation hearing, Mr. Jones offered a witness to summarize the evidence, which the trial court determined was not necessary. Mr. Jones also offered Dr. Margaret Kovera as an expert in the field of the psychology of eyewitness identification. The trial court admitted Dr. Kovera as an expert in the psychology of eyewitness identification, but limited her from testifying about the specific facts of this case. Finally, Mr. Jones offered several exhibits including, among other things, the transcripts from Mr. Jones's trials, police reports regarding the rape of A.H. and E.F., the transcript of Mr. Jones's post-conviction relief hearings, Judge Anderson's ruling vacating Mr. Jones's conviction, and a police report involving Mr. O'Conner. Mr. Jones attended the hearing, but he did not testily. The State did not offer any witnesses or evidence and did not cross-examine Dr. Kovera. On May 5, 2021, the trial court issued a "Ruling" ultimately concluding that Mr. Jones did not prove he was factually innocent by clear and convincing evidence and denying his request for compensation. It is from this ruling that Mr. Jones appeals designating one assignment of error contending that the trial court erred in denying Mr. Jones compensation for the nearly 46 years he spent wrongfully imprisoned for a crime committed by another man. Mr. Jones presented the following issues for our review:
The trial court issued an "Amended Ruling" on December 16, 2021.
I. Did the trial court err by misapplying the compensation statute when it held Mr. Jones to a standard of proof not contained in the statute and failed to weigh as a whole the strong evidence of Mr. Jones's innocence
against the weak evidence of guilt?
II. Did the trial court err in ignoring uncontroverted factual findings from prior proceedings?
III. Did the trial court err by rendering its decision based on what evidence was not presented rather than weighing the admitted evidence of Mr. Jones's innocence against the weak evidence of guilt?
LAW AND ANALYSIS
In 2005, the Louisiana Legislature enacted La. R.S. 15:572.8 to create a process for those who were wrongfully convicted and imprisoned to obtain compensation upon proof of factual innocence. Burge v. State, 2010-2229 (La. 2/11/11), 54 So.3d 1110, 1112 (per curiam). Pursuant to La. R.S. 15:572.8, a former inmate who has served in whole or in part a sentence of imprisonment for which he was convicted is entitled to compensation provided that he proves that his conviction has been reversed or vacated and also proves, by clear and convincing scientific or non-scientific evidence, that he is "factually innocent" of the crime for which he was convicted. La. R.S. 15:572.8(A). The statute defines "factual innocence" to mean that "the petitioner did not commit the crime for which he was convicted and incarcerated nor did he commit any crime based upon the same set of facts used in his original conviction." La. R.S. 15:572.8(B).
Additionally, the statute contains a liberal evidentiary provision, allowing the court to "consider any relevant evidence regardless of whether it was admissible in, or excluded from, the criminal trial in which the petitioner was convicted." La. R.S. 15:572.8(D). In re Williams, 2007-1380 (La. App. 1st Cir. 2/20/08), 984 So.2d 789, 792. The statute suggests a legislative intent that little limitation be placed on the introduction of evidence related in any way to the conviction and the proof of factual innocence. In re Williams, 984 So.2d at 793. The statute also specifically provides that this evidence can be scientific or non-scientific, indicative of a legislative intent that compensation be awarded in cases where factual innocence is established clearly and convincingly through scientific evidence, such as DNA, that exonerates a person, or when another person has confessed to and subsequently been convicted of the crime at issue, and in all other cases when factual innocence is otherwise proven by clear and convincing evidence. In re Williams, 984 So.2d at 793-94. Based on the clear statutory language, the entirety of the evidence, whether admitted at the underlying trial or excluded, is properly considered in the determination of factual innocence. State v. Ford, 50,525 (La. App. 2d Cir. 5/18/16), 193 So.3d 1242, 1248-49, writ denied, 2016-01159 (La. 10/10/16), 207 So.3d 405.
Moreover, the petitioner's burden of proof is very clearly provided for by statute. The legislative intent that compensation will not be awarded in every matter in which post-conviction relief is granted is evidenced by the inclusion of the requirement that the petitioner show that he is "factually innocent." La. R.S. 15:572.8(A)(2).
"Clear and convincing" evidence requires more than a "preponderance," but less than "beyond a reasonable doubt." Under the "clear and convincing" standard, the existence of the disputed fact must be highly probable or much more probable than its nonexistence. In re L.M.M., Jr., 2017-1988 (La. 6/27/18), 319 So.3d 231, 244 n.13.
Mr. Jones's Assignment of Error
Mr. Jones contends that the trial court misapplied the compensation statute by imposing an extraordinarily high burden for proving factual innocence that is not found in the text of the statute. Specifically, Mr. Jones argues that the trial court treated Mr. Jones as though he were still a prisoner challenging his conviction rather than as a petitioner seeking compensation from the State for a wrongful conviction. Mr. Jones further contends that the trial court erred in ignoring uncontroverted factual findings from prior proceedings, and in rendering its decision based on what evidence was not presented rather than weighing the admitted evidence of Mr. Jones's innocence against the weak evidence of guilt. Mr. Jones maintains that these legal errors interdicted the fact-finding process such that a de novo review by this court is required.
In its ruling, the trial court cited Burrell v. State, 50,157 (La. App. 2d Cir. 1/13/16), 184 So.3d 246, 252-53, writ denied, 2016-0523 (La. 5/2/16), 206 So.3d 879, which examined the standard of proof required to prove factual innocence under La. R.S. 15:572.8. The court in Burrell considered State v. Conway, 2001-2808 (La. 4/12/02), 816 So.2d 290 and State v. Pierre, 2013-0873 (La. 10/15/13), 125 So.3d 403, two post-conviction relief cases, as a guide on factual innocence. Burrell, 184 So.3d at 253. In Conway, the court stated that a bona fide claim of actual innocence, as a basis for post-conviction relief, must involve new, material, noncumulative, and conclusive evidence, which meets an extraordinarily high standard and undermines the prosecution's entire case. Conway, 816 So.2d at 291. In Pierre, the court determined that a credible claim requires new reliable evidence whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial. Pierre, 125 So.3d at 409. The trial court in this case in considering Mr. Jones's claim under La. R.S. 15:572.8 quoted from Burrell stating that a bona fide claim of actual innocence must involve new, material, noncumulative, and conclusive evidence which meets an extraordinarily high standard and undermines the prosecution's entire case and this other evidence includes trustworthy eyewitness accounts and critical physical evidence that would lead a reasonable person to believe it is highly probable that the petitioner is actually innocent. Burrell v. State, 184 So.3d at 252-53. This court in Jones v. State, 2019-1570 (La. App. 1st Cir. 9/18/20), 313 So.3d 997, 1000, also considered a claim under La. R.S. 15:572.8 and applied the burden of proof previously articulated in Burrell for claims of factual innocence on an application for post-conviction relief. Thus, the burden of proof articulated in Jones and Burrell was the burden applicable to Mr. Jones's claim of factual innocence under La. R.S. 15:572.8 at the time the trial court considered Mr. Jones's petition.
Specifically, the Jones court stated that a bona fide claim of actual innocence must involve new, material, noncumulative, and conclusive evidence, which meets an extraordinarily high standard and undermines the prosecution's entire case. Such evidence includes trustworthy eyewitness accounts and critical physical evidence that would lead a reasonable person to believe it is highly probable that the petitioner is actually innocent. Jones, 313 So.3d at 1000, citing Pierre, 125 So.3d at 409 and Burrell v. State, 184 So.3d at 252-53.
However, since Burrell and Jones were decided and after the trial court considered this matter, the legislature passed 2021 La. Acts No. 104, effective on August 1, 2021, which enacted new Code of Criminal Procedure Art. 926.2, which provides a freestanding post-conviction claim of factual innocence not based on DNA evidence. In Article 926.2 the legislature codified a burden of proof to establish factual innocence on an application for post-conviction relief that is substantially similar to the burden previously articulated by courts of this state. See Pierre, 125 So.3d at 409 and Conway, 816 So.2d at 291. Although courts previously applied the same burden to claims of factual innocence under La. R.S. 15:572.8, the legislature left this provision unchanged when Article 926.2 was enacted. Legislative language will be interpreted on the assumption that the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes. Fontenot v. Reddell Vidrine Water District, 2002-0439 (La. 1/14/03), 836 So.2d 14, 24. Thus, while a post-conviction claim of factual innocence under Article 926.2 now requires that the petitioner present "new, reliable, and noncumulative evidence" that is either scientific, forensic, physical, or nontestimonial documentary evidence or testimonial evidence corroborated by this type of evidence, a claim of factual innocence under La. R.S. 15:572.8 requires only clear and convincing scientific or non-scientific evidence that the petitioner did not commit the crime for which he was convicted and incarcerated nor did he commit any crime based upon the same set of facts used in his original conviction. La. R.S. 15:572.8(A)(2) and (B).
Louisiana Code of Criminal Procedure Art. 926.2(B.) provides,
B. (1)(a) To assert a claim of factual innocence under this Article, a petitioner shall present new, reliable, and noncumulative evidence that would be legally admissible at trial and that was not known or discoverable at or prior to trial and that is either:
(i) Scientific, forensic, physical, or nontestimonial documentary evidence.
(ii) Testimonial evidence that is corroborated by evidence of the type described in Item (i) of this Subsubparagraph.
We find the distinction in the evidence necessary in Article 926.2 and La. R.S. 15:572.8 important since, in a post-conviction matter, the defendant is still under a conviction, whereas, in a compensation matter, the petitioner's conviction has been overturned. In interpreting the laws on the assumption that the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes, we conclude that the legislature intended to create different burdens of proving factual innocence in a claim for post-conviction relief and a claim for compensation under La. R.S. 15:572.8. Accordingly, on appeal Mr. Jones has the burden of proving factual innocence by clear and convincing evidence by introducing any relevant evidence; he is not required to provide new, material, noncumulative, and conclusive evidence, which meets an extraordinarily high standard and undermines the prosecution's entire case. See La. R.S. 15:572.8.
Although Mr. Jones's claim for relief is not based on Article 926.2, we rely on it to find the legislature intended to create different burdens of proving factual innocence in a claim for post-conviction relief and a claim under La. R.S. 15:572.8. Louisiana Code of Criminal Procedure Art. 926.2 did not become effective until August 1, 2021, after the trial court rendered judgment in this matter in May of 2021. Thus, we considered whether Article 926.2 applies retroactively.
Louisiana Code of Criminal Procedure Art. 926.2(A) pertinently states that a petitioner's first claim of factual innocence pursuant to this Article that would otherwise be barred from review on the merits by the time limitation provided in La. Code Crim. P. art. 930.8 or the procedural objections provided in La. Code Crim. P. art. 930.4 shall not be barred if the claim is contained in an application for post-conviction relief filed on or before December 31, 2022, and if the petitioner was convicted after a trial completed to verdict. Article 930.8(A) provides that, unless one of the articulated exceptions applies, no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final. Although Article 926.2 creates a new basis for seeking post-conviction relief and may be deemed substantive in nature, it contains a clear legislative expression that it applies retroactively to permit initial applications for post-conviction relief based on factual innocence, which would otherwise be time barred. See La. Civ. Code art. 6.
As a general rule, an appellate court is bound to adjudge a case before it in accordance with the law existing at the time of its decision. Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a trial court judgment, which was correct under the law in effect at the time it was rendered. American Home Ins. Co. Unified Recovery Grp. L.L.C. v. Morrison, 2013-1448 (La. App. 1st Cir. 4/28/14), 144 So.3d 1073, 1077. Based on these principles, consideration of Article 926.2 is appropriate, as retroactively applied.
As Jones was the controlling jurisprudence in this jurisdiction for a claim under La. R.S. 15:572.8, and Article 926.2 did not become effective until August 1, 2021, after the trial court hearing in this matter, the trial court correctly applied the standard under the law in effect at the time it was rendered. However, since the law changed during the pendency of this suit and retroactive application of Article 926.2 is permissible, we may consider it on appeal, even though reversal of the trial court's judgment, which correctly applied the standard under the law in effect at the time it was rendered, is required. See American Home Ins. Co., 144 So.3d at 1077. For the same reason, Jones, 313 So.3d 997 no longer applies.
Additionally, in its amended ruling the trial court stated "[w]ith regard to Judge Anderson's ruling, [Mr. Jones] argues that it alone constitutes ‘clear and convincing evidence’ of his factual innocence. Petitioner put forward no other evidence." The trial court also stated, "Petitioner's reliance on [Judge Anderson's ruling] which did not determine his innocence, but instead found that the State failed to provide Brady evidence, completely ignores the legislative intent that another burden of proof must be met for a successful compensation claim for wrongful imprisonment." (Bold added.) The trial court correctly pointed out that Mr. Jones's burden in seeking compensation for wrongful imprisonment is different than his burden of proving a Brady violation in a post-conviction case. However, there is no prohibition to Mr. Jones relying on primarily the same evidence in both cases. It is possible that the same evidence can meet both standards. The question is whether the evidence presented is sufficient to prove factual innocence by clear and convincing evidence. Furthermore, Mr. Jones was not relying on the ultimate judgment rendered by Judge Anderson finding a Brady violation, but rather the factual findings made by Judge Anderson that led to his ruling. Accordingly, we find error in the trial court's conclusion that Mr. Jones improperly relied solely on the evidence from the post-conviction matter and Judge Anderson's ruling in his request for compensation.
We note that in addition to the evidence presented at the post-conviction hearing, the testimony of Mr. Jones's expert, Dr. Kovera was introduced.
Finding the legislature intended to create different burdens of proving factual innocence in a claim for post-conviction relief and a claim under La. R.S. 15:572.8 as well as finding legal error in the court's ruling, we review Mr. Jones's claim for compensation de novo to determine if Mr. Jones met the burden set forth in La. R.S. 15:572.8(A) by reviewing all of the evidence he introduced in support of his position. There is no dispute that Mr. Jones satisfies the first requirement of La. R.S. 15:572.8(A)(1), as his conviction was vacated and his indictment was dismissed. Thus, Mr. Jones has the burden of proving factual innocence by clear and convincing evidence. Specifically, Mr. Jones has the burden of proving it is highly probable or much more probable than not that he did not commit the aggravated rape of A.H. La. R.S. 15:572.8(A)(2). Mr. Jones contends that viewing the evidence as a whole so overwhelmingly points to Mr. O'Conner as the perpetrator of the rape of A.H. and weighed against the limited evidence implicating Mr. Jones proves by clear and convincing evidence that Mr. Jones is factually innocent. In support of his claim, Mr. Jones points out the numerous similarities in the modus operandi of the rape of A.H. and Mr. O'Conner’s rape of E.F.; that the only evidence of Mr. Jones's guilt was an equivocal identification by A.H.; that A.H.’s description of the perpetrator more matches Mr. O'Conner than Mr. Jones; and that Mr. Jones in word and deed acted like an innocent person for the last fifty years.
"[W]here legal error interdicts the fact finding process, the manifest error standard no longer applies and, if the record is complete, an appellate court should make its own de novo review of the record." Lam ex rel. Lam v. State Farm Mut. Auto. Ins. Co., 2005-1139 (La. 11/29/06), 946 So.2d 133, 135.
The following is the evidence introduced by Mr. Jones in support of his claim for compensation.
I. Modus Operandi of the rape of A.H. and E.F.
Judge Anderson's well-considered written reasons in the post-conviction matter were introduced into evidence. He thoroughly summarized the similarities between the rape of A.H. and Mr. O'Conner’s rape of E.F. Judge Anderson's factual findings were fully supported by the evidence before us. Judge Anderson stated the following:
This Court finds that the evidence withheld from the defense was favorable based on the strong similarities between A.H.’s alleged rapist and that individual's modus operandi, as compared to the physical characteristics of Arnold Ray O'Conner and the circumstances surrounding the October 29, 1971 rape of E.F., for which Arnold Ray O'Conner was arrested for on October 16, 1973.
The similarities are almost too numerous to list, but the Court will briefly outline some of the most striking. First and foremost, while not a similarity, it must be emphasized that the rape of E.F. occurred only 27 days after the rape of A.H. Each woman was kidnapped at gunpoint in the parking lot of a Baton Rouge hospital. In both circumstances, the kidnapper-rapist ordered the women into their car at gunpoint and commanded them to drive around the surrounding neighborhood, while the kidnapper-rapist sat in the back seat of the vehicle.
Eventually, the kidnapper-rapist in each case ordered the victims to stop their vehicles. For E.F., the kidnapper-rapist ordered her to get out of the vehicle and hold his hand while they crossed Scenic Highway into a secluded area. Similarly, A.H.’s kidnapper-rapist ordered her to get out of the vehicle and to put her arm around his waist while they walked to a secluded area. After the perpetrator in each case finished, he wiped himself clean with the victims’ clothing. The perpetrator in both cases also rummaged through the victims’ purses and removed a small amount of money, fifty cents in A.H.’s case and four dollars in E.F.’s, before leaving behind a pick hair comb at each scene.
Finally, yet equally disturbing to the Court, after the rape of A.H. was complete, the perpetrator drove the victim to 28th Street and Slate Street, where he fled east in the direction of 2905 Slate Street, which was the residence of Arnold
Ray O'Conner in 1971. However, before departing, the perpetrator told A.H., "This is where I leave you." Similarly, before fleeing after the rape, E.F.’s perpetrator told her, "O.K. you can leave now."
As pointed out by Judge Anderson, the evidence presented by Mr. Jones proved a near identical modus operandi of the rape of A.H. and E.F. including unusual distinct details such as ordering them to behave affectionately, taking small amounts of money from their purse, using the victim's clothing to clean up, leaving a hair comb at the scene, and using a similar phrase before fleeing the scene. Furthermore, the rape of A.H. and E.F. were close in proximity of time and location. The rapes took place only twenty-seven days apart, and A.H. and E.F. were ordered to drop their assailant in an area near Mr. O'Conner’s 2905 Slate Street home. After each rape, both Mr. O'Conner and A.H.’s assailant went in the direction of Mr. O'Conner’s home.
We note that the rape of Kathleen Andre for which Mr. O'Conner was arrested was also eerily similar to A.H.’s description of her rape. In both cases, the victim was in her car, told to drive to an isolated location, asked to behave affectionately toward her assailant, her assailant left a hair comb at the scene and her assailant removed a small amount of money from her purse. Additionally, Ms. Andre and A.H. described her assailant as having a "soft" and "smooth" voice.
II. A.H.’s identification of Mr. Jones
Mr. Jones pointed out that there was no forensic or physical evidence linking him to the rape of A.H, and the State's case rested entirely on A.H.’s testimony and identification. Mr. Jones pointed out in the record the times A.H. expressed some concerns about her identification. Specifically, A.H. stated during a preliminary hearing that her assailant's "voice did seem a little bit different" and that at the time of the rape "he seemed a little bit taller." She also testified during the first trial that she "was worried about the voice change" and "[h]e looked a little bit taller the night of the rape." Mr. Jones also pointed out that A.H. called the detective the night of the lineup to make sure that they understood that she was not positive about the identification because Mr. Jones's height and voice seemed different and that she could only be 99% sure that it was Mr. Jones.
Dr. Kovera testified to several factors that can lead to inaccurate identifications. She testified that if a person is under stress they are less likely to encode the face, and if there is a weapon involved, a person's attention is drawn to the weapon rather than the culprit. She also stated that the passage of time between the incident and the identification leads to a decline in the person's ability to make accurate identifications. Finally, she testified that quicker identifications are more accurate and that low confidence identifications are less likely to be accurate.
As pointed out by the trial court at the hearing, expert testimony on eye witness identification was primarily barred in Louisiana specifically to avoid confusing the jury. However, the court recognized that this case is a compensation case not a criminal case and is tried without a jury. Therefore, the trial court admitted Dr. Kovera as an expert in psychology in the specified field of eyewitness identification. She was allowed to provide expert testimony and give guidance to the court in the field of eyewitness identification; however, she was not allowed to give an opinion as to this particular matter and was instructed to stay within the realm of Article 702. We note that the legislature recently amended and reenacted Louisiana Code of Evidence article 702 by La. Acts 2019, No. 115, § 1, adding Subsection B relative to the limitations and admissibility of testimony by experts on the issue of memory and eyewitness identification. See La. C.E. art. 702(B).
Dr. Kovera's expert testimony regarding factors that can lead to inaccurate identifications undermines the only evidence the State offered supporting Mr. Jones's conviction, i.e., A.H's eye witness identification of Mr. Jones. A.H. identified Mr. Jones in a lineup nearly three months after the rape; a gun was involved in the rape; it took her ten to fifteen minutes to make the identification; and she called the detective after her identification to indicate her concerns about the differences in height, as she initially stated the perpetrator was taller than her husband who was 5’ 7" and Mr. Jones who was 5’ 3." Finally, she described Mr. Jones's voice as much rougher than the perpetrator.
III. A.H.’s Description of the Perpetrator
Mr. Jones also pointed out the similarities of A.H.’s initial description of the perpetrator and Mr. O'Conner. Judge Anderson also discussed how A.H.’s initial description of the perpetrator matched Mr. O'Conner more than Mr. Jones. He stated the following:
In addition to the similarities in modus operandi, the physical description provided by A.H. to police officers is an almost identical match for Arnold Ray O'Conner, while failing to match any of the physical characteristics of Jones. A.H. described her rapist as taller than 5’5", about 5’8" tall. O'Conner is 5"8", while Jones is only 5’3". A.H. described her rapist as having a single space in his two front teeth, and O'Conner had such a gap in his front teeth. A.H. stated that her perpetrator's voice was different than Jones’ "rough" voice, while E.F.whose rape O'Conner was arrested for-described their rapist as having a "smooth" voice.
Based on the striking similarities between the rapes of A.H. and E.F., as well as the similarities between the perpetrators of the rapes, the Court finds that the evidence withheld from the defense was highly favorable to Jones’ case.
(Footnotes omitted.)
Both E.F. and A.H. described the perpetrator as having a gap between his front teeth, and Mr. O'Conner had a large gap between his front teeth. Considering the evidence, we agree with Judge Anderson's conclusion that A.H.’s initial description of the perpetrator, particularly his height and voice, which A.H. expressed some concerns about, more precisely match that of Mr. O'Conner than Mr. Jones.
IV. Mr. Jones's Efforts to Prove his Innocence
Finally, Mr. Jones pointed out evidence in the record showing that he in word and deed acted like an innocent person for the last fifty years. Mr. Jones pointed to his testimony in the original trial where, he testified that he did not rape A.H. During trial he testified that he willingly agreed to be in the lineup because "I ain't think I was going to be picked out, because I know I ain't did no rape." Mr. Jones attached to his original petition evidence that he maintained his innocence by writing letters to the Innocence Project and judges and by repeatedly seeking pro se requests for DNA testing during his imprisonment.
During the hearing, the State offered no evidence to rebut the evidence presented by Mr. Jones in support of his claim for compensation for wrongful conviction and imprisonment.
When Mr. Jones met the criteria to file his petition for compensation, it had been more than fifty years since the rape of A.H. At this point, A.H. is deceased, Mr. O'Conner invoked his Fifth Amendment rights, and there is no DNA evidence available, as pointed out by Justice Johnson in her concurrence in Jones v. Vannoy, 221 So.3d at 851, discussing the premature destruction of evidence that might have otherwise been tested for DNA. Thus, Mr. Jones was limited in the type of evidence he could use to prove his factual innocence. We thoroughly considered the well-organized evidence Mr. Jones presented in support of his claim for compensation under La. R.S. 15:572.8 to determine if he met his burden of proving factual innocence by clear and convincing evidence. We considered the numerous striking similarities between Mr. O'Conner and A.H.’s assailant; that the modus operandi for Mr. O'Conner’s rape of E.F. is almost a mirror image of the method used by the perpetrator of A.H.’s rape; and that A.H.’s equivocal identification of Mr. Jones was the only evidence the State used to prove Mr. Jones's guilt. After thorough review of the overwhelming evidence implicating Mr. O'Conner as A.H.’s rapist, we find Mr. Jones proved that it is highly probable that Mr. O'Conner committed the rape of A.H and that Mr. Jones is innocent of the crime for which he was convicted. The evidence of Mr. O'Conner’s guilt, weighed against the fragile evidence of Mr. Jones's guilt, proved by clear and convincing evidence that Mr. Jones is factually innocent of the crime. Accordingly, we reverse the decision of the trial court and remand the matter to the trial court to determine the amount of compensation due in accordance with La. R.S. 15:572.8(H).
Louisiana Revised Statute 15:572.8(H) currently provides:
(1) After a contradictory hearing with the attorney general, the court shall render a decision as soon as practical. If, from its findings of fact, the court determines that the petitioner is entitled to compensation because he is found to be factually innocent of the crime of which he was convicted, it shall determine the amount of compensation due in accordance with the provisions of this Section, and it shall order payment to the petitioner from the Innocence Compensation Fund which shall be created specifically for the administration of awards under this Section.
(2)(a) Compensation for the physical harm and injury suffered by the petitioner shall be calculated at a rate of twenty-five thousand dollars per year incarcerated, not to exceed a maximum total amount of two hundred fifty thousand dollars, to be paid at a rate of twenty-five thousand dollars annually.
(b) After July 1, 2022, compensation for the physical harm and injury suffered by the petitioner shall be calculated at a rate of forty thousand dollars per year incarcerated, not to exceed a maximum total amount of four hundred thousand dollars, to be paid at a rate of forty thousand dollars annually.
(c) Any petitioner who has not previously been awarded compensation pursuant to the provisions of this Section who files a petition seeking compensation on or after July 1, 2022, has the option to receive a lump sum payment in the amount of two hundred fifty thousand dollars in lieu of receiving forty thousand dollars annually.
CONCLUSION
For the foregoing reasons, we reverse the May 5, 2021 judgment of the trial court and remand the matter to the trial court to determine the amount of compensation due in accordance with La. R.S. 15:572.8(H). All costs of this appeal, in the amount of $1,795.00, are assessed to the State of Louisiana.