which i will refer to as c t v hannon address first the c d b hand statute has changed somewhat over time in south carolina and the version under which mr lewis was convicted involves t elements sort of remain the same and they are the two elements that were addressed and shows them that i necessity had to have been deemed a violent it's physical harm or injury to a household member and an offer or attempt to cause physical harm or injury to in south carolina right now and that's under the newer version that just gives you an example of how it's treated by the legislature that it's a thousand to twenty five hundred dollars penalty currently and a maximum presence and it's up to ninety days  i have checked repeatedly and so far no cases on just those two elements have made their way up through the south carolina appellate courts however the core of the cases that i did find that were in the time period of mr lewis's  that no the third the three that i found related to these two elements are the leopold case which involved a push the ramsey case where a man bruised his wife's and want grabbing herself and so i don't know how but it also does doesn't involve violent physical force of the type described in johnson two thousand and two now that's just one part of the c v and statute and the other part is the part of the high an aggravated nature and when mr lewis was convicted that involved it involves an assault battery in the briefs i've gone back for many many years and assault and battery in south carolina stuart really doesn't involve that type of  contribute to the high aggravated nature one is that there was a possession of a weapon one is that there were serious bodily injury and that the third is that it's just an assault that can occur  sorry an assault with or without a battery where the the it's from the victim's point of view it's a subjective point of view where that person will be yours a certain kind of injury what do we make of the fact that brief don't give any facts at all that was the problem with the with the research on the c d b hand because a lot of cases they just don't recite the facts of the case and because it's changed over time there's only the small window in which to get cases so what i had to do in my briefing to try to explain mr loose his position is is to look at these elements and look at the associated assault and battery and things of that nature to   high and aggravated nature resulted in serious injury is that it is the resulting in the physical injury it's not the use of violent physical force in two is not enough to be a violent felony and there are several cases on that the charnel house key case was cited in the brief from the second circuit that causing physical injury or death that requiring the cause to be by violent force is not it's not knock on there's a more recent case from two thousand and fifteen white vs lynch that followed the trail ski reasoning holding that there is a realistic probability that physical injury could result without the use of violent physical or so the language of the high an aggravated nature part of the statue just doesn't require a enough to be a violent felony additionally i'm actually unless my colleagues have further questions on this issue  i'm actually very interested in the identification and argument here and happy that you are because from the from the calendar it looks like you're more interested in the c v and issues the un costal on unconstitutional identification there were actually two identifications that occurred here one was the photo identification and then there was the show up i did though the photo identification was certainly impermissibly suggestive and it was unnecessary and it was suggestive because they showed a photo of only one person there was no comparison the police had been out there for hours they could could have put together and a r photographs but they did not do so and the witness told the person the witnesses were told that the person in the photo would be brought from the apartment so that certainly made it suggestive or the following show up the photo identification was unnecessary because they had the live person arrested in the apartment they could have brought him out additionally since mr lewis was arrested he could have been transported to the police station and the two witnesses could have come to the station the next day and had a full lineup with people who were of similar build and well as mr le that's so that your son if if the if it was unnecessary what your best argument or probably meant arrest or even it was in the briefs but in som it is that these two witnesses identified a man who went into the apartment without the testimony that he was the man that they saw with the gun and the government cannot prove beyond a reasonable doubt that the verdict wouldn't have changed he did go out the witness who testified that he came to her door with a guy he did and that was on  venus santy on her being a spurious she had testified at the trial that she thought somebody was in her had come to her house when she was upstairs after mr lewis was in the house she also testified that she thought mr lewis tried to leave her house so she doesn't know whether or not he was there or not additionally her testimony was unreliable which which could have been pursued further at trial if not for these other witness identifications and it was pursued on cross examination is pursued that she that that her prior i get the case she could not make it in court i didn't make it or that it was if there were some inconsistency that  that she was with had troubles of her own because drugs were found in the apartment and that would also go to the fact that mr loose was not found with the gun on him the gun was found in the house and at the time nobody admitted or said to the gun belong so certainly there are other things which would have been stronger evidence in favor of mr lewis being not guilty if these two witnesses hadn't come forward and said that in fact base they stayed in the front of the apartment and it took a while for the backup to get there before they went around and secured the back and in addition to that and then went back to it there are as there was a back door and that's where miss santee on she's apartment it was said well i thought that somebody came to my apartment and i know mr lewis tried to go out that back door but no police officer ever testified that he tried to go out about door so therefore they could not have been watching the ba the entire time because they would have seen mr lewis at least stick his head out or tried out that back door so that that's that's another factor that weighs into whether or not don't know that i can do a better job in the amicus brief in pulling out some of the facts but one of the one of the factors is the opportunity to see the suspect and when you read through mr alexander  you know you can see that will initially she was mitchell or went outside and she saw a shooting and it was getting dark and on cross examination came out of the road was really really far away and she admitted she did not get a good look at the suspect when she told her boyfriend mr alexander they both went out in the park and they both testified that they were between to be a holes and they only saw him and both described it as the word quickly he quickly ran by and mr alexander testified that he told mischler to get behind him because he was worried for her safety therefore you've got a much bigger man if you see on the video the size difference he was a big man had missed sure behind him so she probably couldn't have gotten a good you have a suspect but he also although he claimed very convincingly you know i saw him if you read through his testimony he described with so much detail the gun that the suspect was and he was pulling in trying to get the gun jammed then he talked about a bullet being a git he jacked it from the gun and that he looked down at the ground and saw it on the ground so a lot of this time and this was a very very quick few seconds he couldn't have been looking at the face of the person and some of the research on identification issue shows that when someone has a gun witnesses tend to focus on that gun and not the face of the suspect that makes it very unreliable the witnesses degree of attention that's one of the second factors under totality of circumstances i put in my briefs but both of them admitted to being very freaked out is the term that they used mr alexander admitted that he was nervous and worked up and a different description of the clothing then he gave at trial and that certainly could have been affected by him seeing mr lewis being brought out of the house the day of the incident he according to a white undershirt and then a level of certainty regarding identification i would just like to point out that mr alexander although he quickly said when mr lewis was brought out of the house that  testified at trial i knew it was him before they even shined the light on him but i think that goes to what the innocence project but in their pre about this they basically told him it was going to be you know they did it when they showed them the photographs they said we will bring bringing him out shortly so i just there's no way that that could not have influenced the identification and i see my time is up so unless you have further thank you very  united states versus rollers and i'm sorry i'm chris tail ram the district court ruled that the identification procedure in this case was unnecessarily suggest however  close he had been to mr lewis when he had come to the parking lot firearm that he also missed schuler indicated that she had also seen a person outside with a firearm she went back inside the apartment mr alexander what had happened when they came out they saw him and she said she was freaked out and didn't doesn't focus well and situations like that and then she wasn't able to identify him in in court in the alexander i think an important note is even though it picture was shown to miss sure prior to the identification she did something very important and i think court should be aware she made  this procedure was unnecessarily suggestive or not we did we we did not argue that you know you know brief the officer who put together the line up was not available was not did not testify ok that's not your argument because you can't conceive for the government to produce or at least when i was a government attorney i could never see for the government that they're not affirmatively arguing that basis now right ok but even setting that issue aside we do still believe that in the trial of the up circumstances of there was a sufficient opportunity attention and accuracy certainty and link between the actual the actual crime taking place and the identification by ms schuler and mr alexander and as i was saying with michiru or when she described how he looked different w she made comments about he normally dressed as a different way she said she knew missing who was in apartment six prior to this i believe all these factors fact came into the apartment with fire i support is already recognize she during cross examination she recounted some of the reasons why that time she did know was not honest with lisa about what t like but all of those reasons were fleshed out on cross examination and given to the jury for them to be able to sit or her credibility so i don't believe that this is a case that relied solely on versions of the story that's correct your honor as a such she what she did bring out on cross exam nation some of the reasons and also also her behavior was really not consistent  well i would say more consists of what she said at trial as the reasons why she was not honest with the police when this incident first two plates she was in the apartment for almost three hours with mr lewis prior to the police entering but they were not entered into the record and there was a bit at least some testimony or talk of a video that was outside of apartment that also isn't in the record you know the government know what happened t identification evidence of missed jewelry mr alexander even if the woman in the apartment is all the government would have because you don't have the photographs that were shown you don't have the video that would show the jury the jury could see for themselves and you wouldn't have any eyewitness testimony you would have the woman in the apartment right  handgun entering the apartment and then they searched the apartment when they found mr lewis in a bedroom with the woman and the younger that's great job forty five caliber handgun that was the same type of hand a woman in the apartment and a handgun where was the handgun when i was it in his hand no your honor was on the beer it was in the bedroom where they were where they were where they were missing i believe was in the water too yes yes she was dealing drugs out of that apartment your honor i'm not sure of she actually said that i believe during the trial she said she was more concerned she's more fearful of mr lewis and that was one basis of w 's not honest with police there were things that he was telling her as in her apartment i believe it was her part of the gun was in her apartment and in her bedroom and her bed physical harm to a household member with president bill of the ability to create with the president ability in the circumstances creating fear of imminent peril to the victim most  that there were several the cases that we had cited in our brief that basically all indicate some type of physical injury to a victim in and of c t v type related all been determined to show that physical injuries require more conviction at c t v hand in south carolina just briefly to address some of the things that came up the length of time i did not get to that on my original time up here as the amicus brief pointed out even two hours is considered a time that can affect the reliability of an identification in this was a four hour time period late at night or they had been under a stressful situations i don't think that factor waves and ways in favor of the identification being reliable also some other things that came up when the photographs were shown to miss schuler it's not perfectly clear from her testimony but the indication is that she never told the police when they first responded that she recognize alexander told any of the police officers or said that the man they saw with the gun in the parking lot next to it which would be a pretty identifying factor and something that would could weigh in their favor toward whether how how much of a good look they had at additionally i think it was judge bakker that asked about whether or not he missed santa hat drugs in the apartment it did come out cross examination during trial that she only talked to the police a year later when she told them that mr lewis had a gun because she had state charges pending and she was trying to get those resolved she went with her turn each talk police and that's when she first told them about the gun he did not have a gun because mr metz who was mr lewis's trial attorney asked her didn't you tell the police that night that he didn't have a gun oh well i was scared and that was her repeated theme so it seems like she changed her story