STATE OF LOUISIANA v. SULLIVAN WALTER No. 2024-KA-0420 Court of Appeals of Louisiana, Fourth Circuit APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 557-339 SECTION "D" Judge Kimya M. Holmes Liz Murrill LOUISIANA ATTORNEY GENERAL J. Bryant Clark, Jr. J Taylor Gray Stephanie May Bruno ASSISTANTS LOUISIANA ATTORNEY GENERAL Louisiana Department of Justice COUNSEL FOR THE STATE OF LOUISIANA / APPELLANT Christopher J. Murell Meghan Matt MURELL LAW FIRM David B Shanies PRO HAC VICE DAVID B. SHANIES LAW OFFICE COUNSEL FOR DEFENDANT / APPELLEE DYSART , J., DISSENTS LEDET , J., DISSENTS WITH REASONS ( Court composed of Chief Judge Roland L. Belsome , Judge Daniel L. Dysart , Judge Rosemary Ledet , Judge Sandra Cabrina Jenkins , Judge Nakisha Ervin-Knott ) Roland L. Belsome ,Chief Judge The State through the Attorney General's Office ( "State" ) appeals the trial court 's judgment that granted Sullivan Walter 's petition for compensation pursuant to the Louisiana Wrongful Conviction Compensation Statute , La. R.S. 15:572.8 , and awarded him the statutory maximum of $480,000 from the Louisiana Wrongful Conviction Compensation Fund. For the reasons that follow, we amend the judgment to reflect that the awards of compensation are subject to any credit the State is entitled pursuant to La. R.S. 15:572.8 (H) (5) and, as amended, affirm the judgment. This wrongful conviction compensation case arises out of a May 10, 1986 midnight home invasion and rape of L.S. [ 1 ] , a single mother living in her home with her eight-year old son sleeping in the next room. L.S. described her attacker as a young, lean black man with greasy hair wearing a blue baseball cap and a yellow rag around his face to mask his appearance. After the man left, L.S. dressed in shorts and a shirt while waiting for the police to arrive. The police took L.S. to the hospital that night for a sexual assault exam. The examination indicated the presence of seminal fluid near the victim's genital area. Internal and external vaginal swabs were collected as well as the victim's shorts and shirt. On May 12, 1986 , Patricia Daniels ( "Ms. Daniels" ) , a medical technologist with the Orleans Parish Coroner's Office , tested the samples from the rape kit and prepared a report (the "Daniels Report" ) . The Daniels Report indicated that L.S.'s blood type was "O" and that testing of the internal vaginal swabs identified "no blood substances." On May 13, 1986 , Harry O'Neal [ 2 ] ( "Mr. O'Neal" ) , a New Orleans Police Department ( "NOPD" ) criminalist and DNA analyst, tested the stains on L.S.'s clothing. The results of his testing are reflected in his report (the "O'Neal Report" ) and state that stains on the victim's shorts tested positive for seminal fluid and spermatozoa, and "no secretor activity." Around six weeks after the crime, 17-year old Sullivan Walter ( "Mr. Walter" ) was arrested for an unrelated non-violent burglary. Believing Mr. Walter resembled the description of L.S.'s attacker, a NOPD officer informed the detective investigating L.S.'s rape. Mr. Walter's photo was presented in a photo array for L.S., who identified him as her attacker. Mr. Walter was subsequently charged with (1) one count of forcible rape; (2) one count of aggravated burglary; and (3) two counts of aggravated crime against nature. In December 1986 , a one-day trial was held. On the morning of trial, prosecutors provided Mr. Walter, for the first time, a copy of the O'Neal Report. Although the report was not admitted into evidence, Mr. O'Neal was accepted as an expert in bodily fluid analysis and testified to the contents of his report. Mr. O'Neal explained: Additionally, while Ms. Daniels did not testify at trial, her report was admitted into evidence by stipulation. The jury found Mr. Walter guilty as charged. Mr. Walter was sentenced to 35 years as a multiple offender on the forcible rape conviction and sentenced to 15 years imprisonment on each of the other convictions, with all sentences to run concurrently with each other. [ 3 ] In his first appeal, Mr. Walter argued that the State 's untimely production of the O'Neal Report deprived him of constitutional due process and violated the rules of discovery. The serology test results, reflected in the O'Neal Report, showed that the perpetrator was a non-secretor. He argued that had he known of the test results earlier, he could have conducted tests to exonerate himself by proving that he is a secretor. This Court affirmed Mr. Walter's convictions, subject to his right to move for a new trial and present evidence of his secretor status. On remand, Mr. Walter's blood and saliva were tested. Mr. O'Neal conducted the tests and his January 1988 report indicated that Mr. Walter was Blood Type B, and the saliva sample revealed Blood Type B secretor activity. Mr. Walter then filed a motion for new trial . At the April 1988 hearing on the motion for new trial , Mr. O'Neal was the sole witness. He stated that he could not exclude Mr. Walter as the perpetrator of the crime based on the sample stain he tested, despite having testified at trial that the perpetrator was a non-secretor. The trial court denied the motion for new trial , and this Court affirmed on remand from the Supreme Court . [ 4 ] In August 2022 , the Orleans Parish District Attorney ( "DA" ) and Mr. Walter filed a joint motion to vacate Mr. Walter's convictions pursuant to La. C.Cr. P. art. 926.2 (B) , alleging that Mr. Walter is factually innocent of the offenses for which he was convicted. Mr. Walter submitted the report from DNA expert, Alan Keel , who reviewed the records and serological reports in this case . The joint motion was based on the serological evidence showing that the perpetrator was a non-secretor, while Mr. Walter is a secretor, thereby excluding him as the perpetrator. Following a hearing, the trial court granted the motion and vacated Mr. Walter's convictions and ordered his immediate release as to those crimes. In March 2023 , Mr. Walter filed a petition for compensation for wrongful conviction and imprisonment pursuant to La. R.S. 15:572.8 . The State through the Attorney General's Office opposed the petition on the basis that Mr. Walter cannot prove by clear and convincing evidence that he is factually innocent. Following an evidentiary hearing, the trial court rendered judgment in Mr. Walter's favor. The trial court found the evidence collected from the 1986 rape revealed no group type secretions and thus eliminated Mr. Walter as the rapist of L.S. The trial court awarded Mr. Walter the statutory maximum of $480,000 from the Louisiana Wrongful Conviction Compensation Fund in connection with his time served in Docket No. 316-973. [ 5 ] The State 's appeal to this Court followed. On appeal, the main issue is whether Mr. Walter proved by clear and convincing evidence that he is factually innocent of the crimes for which he was convicted pursuant to La. R.S 15:572.8 . In opposing the State 's appeal, Mr. Walter contends that he did and, as a threshold matter, argues the State is precluded from asserting otherwise under the doctrines of res judicata and judicial confession. We address this subsidiary issue first before turning to the principal question of whether Mr. Walter met his burden of proving he is factually innocent. Mr Walter contends that res judicata and the judicial confession doctrine bar the State from challenging his factual innocence. In support of his contention, Mr. Walter argues that the State is bound by the underlying criminal judgment, to which it consented and which found Mr. Walter to be factually innocent, as well as by the factual admissions made in the joint motion that preceded the entry of that judgment. Res judicata only applies to matters "actually litigated and determined." La. R.S. 13:4231 (3) . An issue is not litigated if it was not "contested by the parties ." In re Keaty , 397 F.3d 264, 272 ( 5th Cir. 2005 ) . Here, a determination of Mr. Walter's factual innocence was never actually litigated in the post-conviction relief proceedings; rather, it was jointly admitted by the DA and Mr. Walter. Thus, res judicata does not apply. See Smith ex rel. Smith v. State , 08-1349, unpub. , ( La.App. 4 Cir. 5/6/09 ) , 2009 WL 8688916 ( rejecting argument based on res judicata that evidence of juvenile court 's finding of "innocence" precluded the State from challenging a wrongful conviction claim) . Additionally, a judicial confession is "a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it." La. C.C. art. 1853 . "A stipulation has the effect of a judicial admission or confession which binds all parties and the court ." Young v. Martinez , 98-674 , p. 4 ( La.App. 5 Cir. 11/25/98 ) , 722 So.2d 1143, 1145 . "A judicial confession is binding on the court and must be applied in the case in which it is made." Herbert v. Richard , 15-8 , p. 6 ( La.App. 3 Cir. 6/17/15 ) , 166 So.3d 1265, 1272 ( citation omitted ) . The judicial confession doctrine does not apply. This appeal arises in a separate civil proceeding wherein the parties appear before the court in different capacities. In this compensation action, Sullivan Walter v. State of Louisiana ( Docket No. 557-339 ) [ 6 ] , the State is a civil defendant , and pursuant to statute ... 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