Opinion
NO. 2019-KA-0709
03-04-2019
STATE of Louisiana v. Julio RUANO
Jeff Landry, ATTORNEY GENERAL, Grant Lloyd Willis, LA DEPARTMENT OF JUSTICE - CRIMINAL DIVISION, P. O. Box 94005, Baton Rouge, LA 70804-9005, COUNSEL FOR STATE OF LOUISIANA/APPELLEE Donna Orjuela, Martin Edward Regan, Jr., REGAN LAW, PLC, 2125 St. Charles Avenue, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
Jeff Landry, ATTORNEY GENERAL, Grant Lloyd Willis, LA DEPARTMENT OF JUSTICE - CRIMINAL DIVISION, P. O. Box 94005, Baton Rouge, LA 70804-9005, COUNSEL FOR STATE OF LOUISIANA/APPELLEE
Donna Orjuela, Martin Edward Regan, Jr., REGAN LAW, PLC, 2125 St. Charles Avenue, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods, Judge Paula A. Brown )
Judge Regina Bartholomew-Woods Appellant, Julio Ruano ("Appellant"), was convicted of simple burglary, second degree battery, and aggravated battery, to which he was sentenced to seven (7) years at hard labor. Thereafter, Appellant sought post-conviction relief that the district court granted and set aside Appellant's conviction. Subsequently, Appellant filed an Application for Compensation for Wrongful Conviction and Imprisonment pursuant to La. R.S. 15:572.8. Following a hearing, the district court denied the application finding that Appellant failed to prove by clear and convincing scientific or other evidence that he was factually innocent of the crime. Appellant appealed. For the reasons that follow, we reverse the district court's ruling and remand the matter for further proceedings.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 8, 2010, Terencio Salinas was traveling eastbound on Interstate 610 when his vehicle experienced a flat tire; therefore, he pulled onto the shoulder of the interstate. Mr. Salinas contacted his girlfriend who, in turn, sent her son, Ruben Suazo, and his friend, Yoni Sanchez-Aguilera, to assist Mr. Salinas. The three (3) men left the vehicle on the shoulder of the interstate and took Mr. Salinas' flat tire to a tire shop to be repaired. Upon returning to Mr. Salinas' disabled vehicle, they discovered an unknown man, whom they believed to be Appellant, removing power tools from Mr. Salinas' vehicle. Aristede Craig, a passerby, stopped to render assistance to Mr. Salinas. A struggle, lasting approximately twenty to twenty-five minutes, ensued between the assailant and Mr. Salinas during which the assailant bit and stabbed Mr. Salinas. As a result, Mr. Salinas suffered a bitten-off ear and broken teeth. After the struggle, The assailant fled the scene. Mr. Salinas was transported to the hospital, where he remained for three (3) days receiving treatment for his injuries.
Mr. Salinas experiences a flat tire somewhere between the Canal Street exit and the St. Bernard exit.
The tire shop was located off the Chef Menteur exit.
While hospitalized, detectives from the New Orleans Police Department obtained Mr. Salinas' statement and photographed his injuries. After his release, Mr. Salinas recognized a man whom he believed to be the assailant at a grocery store, wrote down this man's license plate number, and reported this information to the police. The police generated a six-person photographic line-up from which Mr. Salinas, Mr. Suazo, and Mr. Craig all identified Appellant as the assailant. Subsequently, Appellant was arrested. On September 22, 2010, the State filed a bill of information charging Appellant with one count of aggravated battery, one count of simple burglary, and one count of second degree battery. Following an October 31, 2011 bench trial, the district court found Appellant guilty as charged on each count. Appellant filed a motion for new trial, which the district court denied. On January 9, 2012, the district court sentenced Appellant to seven (7) years as to each count, and ordered the sentences to run concurrently. On appeal, this Court affirmed Appellant's conviction and sentence; the Louisiana Supreme Court denied writs. State v. Ruano , 2012-1517 (La. App. 4 Cir. 7/31/13), 120 So.3d 908. On June 12, 2015, Appellant filed an application for post-conviction relief. On March 28, 2017, the district court granted Appellant's application for post-conviction relief, set aside Appellant's conviction, and ordered a new trial. On June 12, 2017, the State entered a nolle prosequi as to all charges.
On September 14, 2017, Appellant filed an Application for Compensation for Wrongful Conviction and Imprisonment pursuant to La. R.S 15:572.8 ; the district count conducted a contradictory hearing on March 9, 2018. At the hearing, Appellant, inter alia , presented the testimony of Dr. Robert Barsley, a forensic odontologist, who testified that bite-mark evidence was sufficient to exclude Appellant as Mr. Salinas' assailant. Also, at this hearing, Mr. Salinas, Mr. Suazo, and Mr. Craig each identified Appellant as the assailant. On March 29, 2018, at the conclusion of the hearing, the district court denied the application finding that Appellant failed to prove by clear and convincing scientific or other evidence that he is factually innocent of the crime for which he was convicted. Appellant now appeals.
Assignment of Error
Appellant raises as his sole assignment of error whether the district court abused its discretion by denying his application for compensation for wrongful conviction and imprisonment pursuant to La. R.S. 15:572.8.
Standard of Review
This Court, upon appellate review of an Application for Compensation for Wrongful Conviction and Imprisonment pursuant to La. R.S. 15:572.8, must afford great weight to the findings of the trier of fact and apply the manifest error standard. State v. Ford , 50,525, p. 5 (La. App. 2 Cir. 5/18/16), 193 So.3d 1242, 1247. Further, "[t]he issue is not whether the trial court's findings are right or wrong, but whether they are reasonable on the record as a whole. Id.
The Louisiana Supreme Court, in Burge v. State , reasoned that "this application is not a civil lawsuit." 2010-2229, p. 5 (La. 2/11/11), 54 So.3d 1110, 1113 ; Burrell v. State , 50,157, p. 6 (La. App. 2 Cir. 1/13/16), 184 So.3d 246, 250.
DISCUSSION
Louisiana Revised Statute 15:572.8 addresses compensation for wrongful conviction and imprisonment and provides, in pertinent part:
In 2005, the Louisiana legislature enacted La. R.S. 15:572.8 "to create an application for those wrongfully convicted and imprisoned." Burge , 2010-2229, p. 3, 54 So.3d at 1112 ; 2005 La. Acts, No. 486, § 1, effective September 1, 2005. Further, "while La. R.S. 15:572.8 ... formerly provided that ‘[a]ll applications for compensation as provided in this Section shall be filed in the Nineteenth Judicial District Court,’ the statute was amended by 2007 La. Acts, No. 262, § 1 to now provide that such claims must be ‘filed in the district court in which the original conviction was obtained[.]’ This change in the statute became effective on August 15, 2007. Sampson v. State, LA's Risk Mgmt. , 2008-0714, unpub. (La. App. 1 Cir. 9/23/08), 2008 WL 4332540 at *1.
A petitioner is entitled to compensation in accordance with this Section if he has served in whole or in part a sentence of imprisonment under the laws of this state for a crime for which he was convicted and:
(1) The conviction of the petitioner has been reversed or vacated; and
(2) The petitioner has proven 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)
Appellant, pursuant to La. R.S. 15:572.8(A)(2), must prove "by clear and convincing scientific or non-scientific evidence that he is factually innocent of the crime for which he was convicted." Further, La. R.S. 15:572.8(B) provides that factual innocence "means 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." Moreover,
The Louisiana Supreme Court has explained that "factual innocence is different than legal innocence. Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt." State v. Pierre , 2013-0873, p. 9 (La. 10/15/13), 125 So.3d 403, 409 (quoting Gould v. Comm. of Correction , 301 Conn. 544, 22 A. 3d 1196, 1206 (2011).
The applicant's burden of proof is very clearly provided for by statute: one must prove a conviction for which he served imprisonment has been either vacated or reversed, and by clear and convincing evidence, scientific or not, that he is "factually innocent," i.e., that he did not commit the crime for which he was convicted or any crime based on the same set of facts used in that conviction.
Clearly, the statute requires more than just a showing that a conviction has been overturned or vacated. Implicitly, it reflects the intent that compensation will not be awardable in every matter in which post-conviction relief has been granted. An applicant must also prove by clear and convincing evidence that he did not commit the crime or any other crime based on the same set of facts used in that conviction.
In re Williams , 2007-1380, p. 5 (La. App. 1 Cir. 2/20/08), 984 So.2d 789, 793.
The defendant in Ford "did not produce any evidence in addition to that which is contained in the record of the criminal proceeding and the motion to vacate his conviction and sentence." Ford , 50,525, p. 12, 193 So.3d at 1250. Contrarily, in the instant case, Appellant provided the testimony of an expert witness – forensic odontologist, Dr. Robert Barsley. Dr. Barsley is a 1977 graduate of the Louisiana State University Health Science Center School of Dentistry and a 1987 graduate of Loyola University New Orleans College of Law. At the time of this hearing, Dr. Barsley had taught at the Louisiana State University Health Science Center School of Dentistry for thirty-eight (38) years. Additionally, for more than thirty (30) years, Dr. Barsley had belonged to the American Academy of Forensic Sciences, an organization of approximately 7,000 professionals who specialize in forensic areas such as fingerprints, toxicology, DNA, pathology, and dentistry. Dr. Barsley is the chair of the odontology section of the National Institute of Standards, which examines how identifications are made on individuals who are killed in plane or train crashes. Dr. Barsley trains other dentists in forensic bite marks. Dr. Barsley, along with a retired judge from Chicago, published "Case Law in Bitemark Evidence" and "Case Law and Bitemark Evidence" and discussed how appellate courts handle bite mark evidence; Dr. Barsley testified that his "conclusion at this point is that no court on appeals ever denied bite mark evidence to be allowed in a trial."
Pursuant to La. R.S. 15:572.8, the district "court may consider any relevant evidence regardless of whether it was admissible in, or excluded from, the criminal trial in which the petitioner was convicted."
Dr. Barsley is licensed to practice law in Louisiana.
Approximately twenty (20) years ago, Dr. Barsley was designated a fellow of the American Academy of Forensic Sciences in recognition of his participation in the organization and his work and publications in the field.
When testifying about the photographs of the bite marks that Mr. Salinas sustained, Dr. Barsley explained that "a dentist doesn't witness the bite nor in many cases does the dentist actually see the bite either in the coroner's office or the hospital, so much of our work is done off of photographs. So we [odontologists] know how to look at photographs, how to use photographs, and ... to take photographs, how to do it properly." At this hearing, Dr. Barsley produced a life-sized replica or mold of Appellant's teeth. Dr. Barsley, after comparing the replica or mold of Appellant's teeth with the photographs of the bite marks inflicted on Mr. Salinas, concluded that Appellant could not have, in "no way," inflicted the bite marks; further, Appellant's "teeth do not have the arrangement that would be required of a set of biting teeth to make that and that includes his top teeth also." Appellant's teeth were "relatively straight" and "at least three of them line up almost perfectly straight" and the teeth that inflicted the bite marks were "crooked." While Dr. Barsley could not conclude who inflicted those bite marks, he was certain that Appellant could be excluded as Mr. Salinas' assailant.
On cross-examination, when asked whether he considered that bite marks change over time and can be distorted by skin's elasticity, Dr. Barsley explained the bite marks showed that the assailant's teeth were arranged in the shape of a "W" and Appellant's teeth were straight. While he acknowledged that distortions could occur, the position of the teeth or shape of the bite was not a distortion that could occur. Dr. Barsley also testified that he showed the photos of the bite marks inflicted on Mr. Salinas and Appellant's mold to other experts in the field of odontology and these experts reached the same conclusion—that Appellant's teeth could not have inflicted the bite marks on Mr. Salinas. Dr. Barsley emphasized that this is "a case of exclusion" and "the only question that's being asked here, not who made it, not how it was made, not when it was made, but could these teeth have inflicted this injury?" Dr. Barsley further testified that "[a]nyone who made that bite had to have teeth that were crooked and that's the entire point. [Appellant's] teeth are not crooked."
The Louisiana Supreme Court has observed that, "[u]nquestionably, eyewitness identifications can be imperfect." State v. Young , 2009-1177, p. 12 (La. 4/5/10), 35 So.3d 1042, 1049. However, despite, other objective evidence, in the instant matter, the district court found "persuasive that three witnesses had identified [Appellant] as the [assailant]." Next, the assailant was described as driving a green jeep with an infant's car seat in the backseat. At the hearing, Mr. Salinas, on direct examination, explained that there was a crying infant in the backseat of the assailant's vehicle. Contrary to this testimony, Appellant testified that he had never driven a green jeep, and was allowed to introduce into evidence varying automotive insurance policies to confirm this. Further, Appellant, in his application for post-conviction relief, provided photographs and birth certificates of his children to show that he had no small children or grandchildren, at the time of the incident, and did not have an infant's car seat in the back of his vehicle.
Appellant further explained that he was able to locate and take photographs of a man who better fit the description of the assailant; this man drove a green jeep with a baby seat and tools in the back.
At the hearing, Mr. Salinas described the physical altercation with the assailant. According to Mr. Salinas, the assailant hit, bit, and stabbed him. During the physical altercation, Mr. Salinas recounted "wrestling" and "fighting" with the assailant. Shortly after the altercation, NOPD detectives interviewed Appellant and observed no visible injuries. Appellant asserts that, based on Mr. Salinas' description of the physical altercation, the assailant should have sustained physical injuries. Appellant asserted that he had no visible physical injuries, thus, he could not have been the assailant.
At the hearing, Mr. Suazo, on direct examination, explained that it was approximately two (2) weeks after the incident that the NOPD detectives produced the photographic line-ups to him; he identified Appellant as the assailant. On cross-examination, Mr. Suazo was presented with photos of Appellant and the man who Appellant believed to be the assailant. Mr. Suazo denied that the men looked alike, and insisted that Appellant was the assailant. Mr. Suazo testified that the assailant was driving a green jeep, but that he was unaware whether a child's car seat was located in the backseat of the vehicle.
Also at the hearing, Mr. Craig, on direct examination, again identified Appellant as the assailant. On cross-examination, Mr. Craig, when shown photos of both Appellant and the man who Appellant believes to the assailant, agreed that the men resembled one another.
When asked by the State if he was "just a random good Samaritan" who was previously unfamiliar with any of the men involved, he answered affirmatively.
Appellant, through Dr. Barsley's testimony, provided uncontroverted evidence that his teeth could not have inflicted the bite marks that Mr. Salinas suffered from the assailant. Appellant also provided uncontroverted evidence, through the police photographs, that he did not have the physical injuries that the assailant likely would have suffered as a result of the physical struggle as Mr. Salinas described. Appellant provided through objective, uncontroverted evidence, i.e., the insurance policies, that he did not own a vehicle like the one that the assailant drove. Further, through birth certificate evidence, Appellant provided uncontroverted evidence that he did not have any infant children and/or grandchildren at the time of the incident. All of Appellant's objective, uncontroverted evidence far outweighed the eyewitness testimony (subjective evidence) of the victims. Appellant proved, through clear and convincing scientific evidence, as well as other evidence, that he is factually innocent of the crimes for which he was previously convicted. Thus, the district court erred in denying Appellant's Application for Compensation for Wrongful Conviction and Imprisonment.
CONCLUSION
For the aforementioned reasons, we reverse the district court's denial of Appellant's Application for Compensation for Wrongful Conviction and Imprisonment pursuant to La. R.S. 15:572.8 and remand for further proceedings.
REVERSED AND REMANDED
BELSOME, J., CONCURS WITH REASONS
DYSART, J., RESPECTFULLY DISSENTS WITH REASONS SET FORTH BY JUDGE JENKINS
JENKINS, J., DISSENTS WITH REASONS
BELSOME, J., CONCURS WITH REASONS
I respectfully concur with the majority's opinion; however, I write separately to discuss the district court's credibility determination. The trial court's judgment in this case is based on its decision to heavily credit the witnesses' testimonies concerning their identification of the Appellant. Longstanding case law from this court demands that courts of appeal give great deference to a trier of fact's factual findings based on credibility judgments. See Rosell v. ESCO , 549 So.2d 840, 845 (La. 1989). See also Stobart v. State, Dept. of Transp. and Dev. , 617 So.2d 880, 882 (La. 1993). The principles set forth in Rosell have been uniformly affirmed in numerous cases since it was issued. However, even in Rosell , the Louisiana Supreme Court stated that "[w]here documents or objective evidence so contradict the witness's story, ... that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination." Id. Recently, the Court clarified that principle, stating as follows:
There is no legitimate conflict in testimony where documents or objective evidence so contradict the witness's story, or the story presented by the witness is so internally inconsistent or implausible on its face, that a reasonable fact-finder could not give credence to the witness's testimony. Faced with such circumstances, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.
Henderson v. Nissan Motor Corp. , 03-606, pp. 9-10 (La. 2/6/04), 869 So.2d 62, 68-69 (internal citations to Stobart , 617 So.2d 880, 882, omitted).
When considering a petition for compensation for wrongful conviction and imprisonment, any relevant evidence is properly considered in the determination of factual innocence. In this case, the issue is whether Appellant proved by clear and convincing evidence that he did not commit "any crime based upon the same set of facts used in his original conviction." La. R.S. 15:572.8 ; State v. Ford , 50,525, p. 8 (La. 2 Cir. 5/18/16), 193 So.3d 1242, 1248. The trial court is not constrained to a sterile examination of the testimony presented at the initial trial as it appears in the record; rather, the entirety of the evidence, whether admitted at the underlying trial or excluded, is properly considered in the determination of factual innocence. Id.
There is no dispute that Appellant was convicted, served a five-year sentence, and his conviction was later vacated.
La R.S. 15:572.8 states in pertinent part:
A. A petitioner is entitled to compensation in accordance with this Section if he has served in whole or in part a sentence of imprisonment under the laws of this state for a crime for which he was convicted and:
(1) The conviction of the petitioner has been reversed or vacated; and
(2) The petitioner has proven by clear and convincing scientific or non-scientific evidence that he is factually innocent of the crime for which he was convicted.
B. For the purposes of this Section, "factual innocence" means 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.
C. All petitions for compensation as provided in this Section shall be filed in the district court in which the original conviction was obtained, hereinafter referred to as "the court", and shall be governed by procedures outlined herein and randomly re-allotted by the court.
D. The court shall render a final decision on all petitions for compensation filed in accordance with the provisions of this Section and shall be tried by the judge alone. The court may consider any relevant evidence regardless of whether it was admissible in, or excluded from, the criminal trial in which the petitioner was convicted (emphasis supplied).
In this case, the trial court considered all of the relevant evidence, including the record from trial, the application for post-conviction relief, and the application for compensation for wrongful conviction and imprisonment. After a hearing, the trial court denied the application, finding the eyewitness identifications to be credible. However, a review of the record reveals that the objective evidence clearly contradicts the witnesses' testimonies concerning the identification, thus calling the trial court's credibility determination into question.
The record consists of evidence presented by the State and evidence presented by Appellant. As to the State, it presented testimony from the victim and three eye-witnesses, who all identified Appellant as the assailant. The victim, Mr. Terencio Salinas, a Nicaraguan native, testified that after developing a flat tire, he went to MBK Tire Shop to get his flat tire fixed. He further explained that he saw the assailant at the tire shop when he was getting his car fixed. When he returned to his car, he observed a green Jeep Cherokee parked in front of his van and the assailant steeling tools from his van. Upon confronting the assailant, a struggle ensued, wherein he was hit with tire iron, bit, and stabbed with a small pocket knife. Mr. Salinas remembered that there was a small child crying in a baby seat in the back of the vehicle. After the encounter, Mr. Salinas was hospitalized.
In his description of the assailant to Detective Nigel Baddoo, Mr. Salinas stated the assailant was wearing a work shirt with the name "Santos" written on it. Following his release from the hospital, Mr. Salinas, who had recognized that the perpetrator was Hispanic, decided to seek out the perpetrator in places where Hispanic people patronized because the police explained that they would likely not find the assailant since the license plate could not be traced. He testified at trial that he went from "store to store, from football [soccer] camp to football camp, Wal-Mart, any place." Eventually, he identified Appellant at the Union Market in Kenner. He followed Appellant out to his vehicle to see if he was in a green Jeep; however, he was not. He later identified Appellant for a second time in a line-up.
The remaining three eyewitnesses testified relatively consistently with Ms. Salinas's version of the events and identified Appellant as the assailant. Ruben Suazo did not recall seeing a child in the back seat; however, he did write down the license plate number of the Jeep. Yoni Omar Sanchez-Aguilera confirmed that there was a baby crying in the back seat of the vehicle. Aristede Craig, Sr., who stopped to render assistance, called 911 and observed the assailant from approximately twenty feet away. Inexplicably, the trial court did not discuss this crucial witnesses' vantage point. Significantly, the State did not offer any objective evidence that would place Appellant at the scene of the crime, nor could it offer a motive. A search of Appellants home did not uncover any stolen tools or a work shirt similar to that described by Mr. Salinas. Rather, the photographs of Appellant's numerous tools revealed that Appellant had no motive to steal tools since he had his own. To the contrary, a determined Mr. Salinas had a clear motive to find and identify the person who injured him since the police could not recover any information from the license plate. Likewise, some of the other eyewitnesses had motive to identify Appellant as they were offered assistance with immigration visas in exchange for their cooperation in the case. This information, which formed part of the basis for his application for post-conviction relief, was not disclosed to Appellant until after his conviction. Surprisingly, the trial court made no mention of these facts while weighing the credibility of these eyewitnesses.
Turning to Appellant, his witnesses included himself, Eugenio Santos, Thang Hguyenh, and Hiep Vo, Mr. Escobar, and Dr. Robert Barsley, D.D.S. Appellant testified that on the day of the incident, he worked at Trinity Yacht Company and was also doing some repair/remodeling work at the home of Mr. Vo, his neighbor. He further explained that every day after the work was complete he would drink beer with Mr. Vo. At the time of the assault, Appellant was either at home or at Mr. Vo's home, in Kenner.
In addition, Appellant testified that he did not have any small children or grandchildren on the day of the assault. He also never owned a green Jeep. Mr. Vo and Escobar, who also worked on Mr. Vo's home, both corroborated Appellant's version of events and confirmed he never owned a green Jeep or had any small children or grandchildren.
Further, Thang Hguyenh, the owner of the MBK Tire Shop on Chef Menteur Highway, stated that he did not know the defendant. He also stated that Appellant was not a regular customer. Mr. Hguyenh testified that all of his employees are Hispanic. In addition, Mr. Eugenio Santos testified that he owns Santos Automotive Center, although he is no longer actively involved in running the business. Nevertheless, he stated he knows the employees and that the defendant was not one, nor had he ever been one. To his knowledge, no one had given the defendant a uniform shirt from the shop. Just as Mr. Santos had told the police, his employees stopped wearing any type of uniform shirt after Hurricane Katrina.
Unlike the State, the Appellant admitted scientific and non-scientific objective evidence to prove his innocence. The objective evidence is completely inconsistent with the State witnesses' identifications of the Appellant.
First, in the area of scientific evidence, the uncontroverted bite mark evidence, as explained by Dr. Barsely, excludes the Appellant because his teeth were relatively straight and the assailant had crooked teeth. Moreover, when Appellant stated that he had no involvement with this assault in a polygraph test, the results determined he was being truthful. Next, pertaining to non-scientific evidence, the Appellant submitted automobile insurance policies, revealing he had three insured automobiles at the time; however, there was no green Jeep. He also admitted his grandchild's birth certificate to establish that his only grandchild was born almost a week after the incident. He further submitted tax returns, bank and loan statements, which established that he owned two properties, filed his taxes, and had over $100,000.00 line of credit to buy tools, if needed.
While the trial court took notice of the issues raised with bite mark identification, Dr. Barsely explained that this case was one of exclusion so the risks associated with misidentification were not present. He further testified that he had no trouble in excluding Appellant from the photographic evidence, although blurry. He also established that Appellant's bite mark remained relatively the same before and after the assault, which eliminated the potential for a changing bite.
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In this case, the bite-mark evidence and polygraph test, in conjunction with the fact that there is an absence of evidence that Appellant ever worked at Santos Automotive, owned a green Jeep, cared for a young child, and/or was in possession of or had a motive to steal tools, establishes Appellant's high probability of innocence. Aside from the eyewitness testimony, there was no evidence to link Appellant to this crime, nor was there proof of a motive. Alarmingly, the trial court did not acknowledge any of this exculpatory evidence when ruling.
When considering this evidence as a whole, particularly the objective evidence, a reasonable fact-finder could not give credence to the witnesses' identification of Appellant. Thus, the trial court was manifestly erroneous in its credibility determination. Given that Appellant established his factual innocence by clear and convincing evidence, I would grant his application for compensation and render an award in accordance with the record.
JENKINS, J., DISSENTS WITH REASONS
I respectfully dissent from the majority's decision to reverse the district court's judgment denying Mr. Ruano's request for compensation for wrongful conviction and imprisonment. For the following reasons, I would affirm the district court's judgment.
The district court's determination of whether the petitioner is entitled to compensation is two pronged. First, the petitioner must show that his conviction has been reversed or vacated. Second, the petitioner must prove by clear and convincing evidence , either scientific or not, that he is factually innocent, i.e., he did not commit the crime for which he was convicted or commit any crime based upon the same set of facts used in his original conviction. La. R.S. 15:572.8 (emphasis added). As explained by the Second Circuit in Burrell v. State , 50,157, pp. 10-11 (La. App. 2 Cir. 1/13/16), 184 So.3d 246, 253, "[t]he intermediate standard of ‘clear and convincing’ means more than a ‘preponderance’ but less than ‘beyond a reasonable doubt.’ " (citing Mulkey v. Mulkey , 12-2709 (La. 5/7/13), 118 So.3d 357, 369 ). Therefore, to prove entitlement to compensation, the petitioner must prove it is highly probable that he is factually innocent of the crimes for which he was convicted.
When a petitioner seeks review of the district court's denial of his request for compensation, the appellate court reviews the district court's ruling under the manifest error standard. In reviewing the denial of the petitioner's request for wrongful conviction compensation, in State v. Ford , 50,525, pp. 5-6 (La. App. 2 Cir. 5/18/16), 193 So.3d 1242, 1247, the Second Circuit stated the parameters of this standard of review, as follows:
Under this standard, the trial court's factual findings will not be disturbed unless they are plainly wrong or manifestly erroneous. La. Const. Art. V, § 10 ; Moreland v. Gungor , 49,671 (La. App. 2 Cir. 4/15/15), 163 So.3d 825 ; Wooley v. Lucksinger , 09-0571 (La. 4/1/11), 61 So.3d 507. A determination of fact is entitled to great deference on review.
Id. ; McGlothlin v. Christus St. Patrick Hosp. , 10-2775 (La. 7/1/11), 65 So.3d 1218. When there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or plainly wrong. Khammash v. Clark , 13-1564 (La. 5/7/14), 145 So.3d 246 ; Rosell v. ESCO , 549 So.2d 840 (La. 1989). The issue is not whether the trial court's findings are right or wrong, but whether they are reasonable on the record as a whole. Broussard v. State , 12-1238 (La. 4/5/13), 113 So.3d 175 ; Rosell v. ESCO, supra .
In this case, the district court held a hearing on the petitioner's request for wrongful conviction compensation, during which the district court heard testimony from several witnesses, including the petitioner and Dr. Barsley, an expert in forensic dentistry, in support of the petition; and three eyewitnesses, including the victim, in opposition to the petition. After the hearing, the district court took the matter under advisement and, on March 29, 2018, issued its ruling and written opinion denying the petition. The district court's written reasons provide a thorough review of the testimony and expert bite-mark analysis introduced at the hearing. In its conclusion, the district court explains that it found the testimony of the three eyewitnesses, who still identify Mr. Ruano as the suspect who battered Mr. Salinas, credible and persuasive. In addition, the district court found the eyewitness testimony outweighed the bite-mark evidence, which the district court was "not persuaded to accept ... without DNA evidence to exclude Mr. Ruano as the suspect." In conclusion, the district court found that the petitioner had failed to prove by clear and convincing scientific or other evidence that he is factually innocent of the crime for which he was convicted.
Upon my review of the record of this case, in consideration of the district court's reasons for ruling, and in light of our appellate standard of review, I find it reasonable for the district court to conclude that Mr. Ruano had not met the necessary burden of proof to entitle him to compensation. Thus, I find no manifest error in the judgment of the district court.