ups and then later identified him in court under similarly i highly suggestive circumstances the the evidence at the trial consisted of the eyewitness identification we say the unreliable in fact constitutionally unreliable identification in the face of what the north carolina supreme court described as substantial and detailed alibi witnesses who accounted for mr finch as whereabouts from around six o'clock the night of the murder until nine thirty that night which was a half hour after the murder had occurred he was in downtown wilson i engaged in a card game i and other participants in that game testified that he was there including the individual who took mr finch as place at the car to take the state blast from the shotgun about two feet between the person with the gun and the victim was the cause of death new evidence since the trial makes it indicated that the cause of death was a shotgun womb later a admit that that wise wrong i he was initially confronted by the chief medical examiner in north carolina dr john but i who expressed the opinion that the victim did not appear to die from a shotgun wound he contacted the person who had record it was a felony murder charge all the correct word there was was that challenge in the state court the felony murder or i don't believe i don't believe that it there i was not involved in the felony and did not commit the murder and so the question that the state's argument was that he was there attempting to rob the store owner and that in the course of attempting to rob the store room that he shot him that was the felony murder claim made by the state but our our claim rely on now is that he was i think they pretty much at least implicitly can see that mr finch did not personally kill the victim up but they're claiming that he was there with the person who did kill him and therefore he is guilty of felony murder as an accomplice to the felony do you think jury instructions played into the analysis of the actual innocence in this case and the reason why tallman i'll be asking you're pushing counsel same question is the jury instruction strikes me as very confusing yes they instruct the jury on essentially on felony murder without calling it felony murder her right but then directly below that tell them that they have to find that he was the trigger man career which of course is not required under colony murder correct does the fact that those instructions were confusing and even even contradictory in a very basic or not well i think i think you look at it because i think that what the court has to consider is what is the case that the state presented to the jury i and in this case that the the case that the state presented to the jury was that mr finch was the person who personally killed the victim and but i or i agree with you judge came in that the instructions are  confusing in the sense that in addition to focus in on the jury having to find that mr finch was the killer the actual killer the court instructed the jury the court also says almost as an aside but if he was not the killer that doesn't mean he would not be guilty but that doubt whether or not to the extent you can i'm sorry i mean to cut over your yeah the court said whether or not this defendant is the person who shot the gun does not mean he would not be guilty and then a couple paragraphs later says the state must satisfy you beyond a reasonable doubt that the defendant actually shot mr holman correct correct and the consequence of that is that on that charge which was the focus of the jury the judge's instructions as well as the prosecutor's arguments i think the prosecutor said that to the jury i've you know whether or not you in the end believe that mr jones saw mr finch shoot the victim with a shotgun and he'll go to his grave knowing that that was the case the state that the only theory that they argue was that mr finch killed the victim with the shotgun they were going to say they didn't argue in the alternative that but you could also find that if somebody else is right so that gets back to my question how does that play into the actual innocence inquiry which is essentially factual in nature well so that are just in the sense in corrie is whether he is innocent of the of the case that was presented by the state you have to find that he shot the victim with a solid off shotgun and that the victim died as a proximate cause of death toll if you focus on that instruction then mr finch and i think probably the state would have to admit that mr finch it would be innocent of that i that's no longer there argument even that he was the actual killer now you are  is that proper i well i'm not trying to do that but but obviously in our brief we talk about the constitutional standard not in the sense that therefore you shouldn't consider the eye witness a death case but that you should take into consideration that the eyewitness identification was so unreliable that not only would it not have serve mr finch guilty beyond a reasonable doubt that is a reasonable jury finding him guilty beyond a reasonable doubt but that in fact the eyewitness identification would not have been presented to the jury should not have been presented to the jury because of both the the lineups as well as the manner in which the the witness had been a fight mr finch in court was impermissibly suggestive and i think it's almost exactly like the situation in this court's decision in united states versus green he was shown a photograph of the lineup  was asked which you know who was the person in the lineup you selected he said number four they then circulated it photograph of the lined up to the jury and then they asked him whether he saw the man i in the courtroom whom he had selected yes that's miss that finch sitting there at the counter at the table with his with us attorney you know what the court said in united states versus green is even aside from the i'm not the point now the defendant as the person sitting at the table with his lawyer is a suggestive identification in this case it was explicitly tied to the to only it undermines the credibility of the eye witness identification it also undermines the credibility of other evidence in the case i it undermines the credibility of the deputy are in whose testimony the state also rely ira and with regard to the eyewitness an identification the obvious in this case is that when mr jones was shown the first lineup i in which and i think is that in the judge in the exit page nine forty three nine forty nine forty two what apparently what happened was that mr finch was the fourth person in the because the deputy sheriff ordered the i police to arrest him i because according to him he had received a tip that mr finch might be involved in a robbery at some point in wilson county on some specified date some unspecified country store i and on the basis of that the deputy claims that he had  mr fancher arrested and put in the lineup i don't believe that there was probable cause on those facts to arrest him the deputy testified at the evidentiary hearing before the superior court that he had no basis at all to believe that mr finch would have robbed anybody based on his past because i he had never been involved in that kind of criminal activity you describe the kinds of activities as move please the court i'm nick blotters assistant attorney general north carolina department of justice for the state respondent belly there are two legal disputes at the heart of this appeal and the resolution of the first t dispute points to the resolution of side the first legal dispute is whether the district court was correct to consider jones's in court and out of court identifications of petitioner as a perpetrator in adjudicating his gateway actual innocence  second legal dispute is whether after considering all the evidence old and new incriminating and exculpatory without regard to whether it would necessarily be admitted under the rules of admissibility that would govern the trial the district court was correct in finding petitioner fail to show it is more likely than not in light of new and reliable evidence no reasonable juror would find him guilty beyond a reasonable doubt now titian or intensive district court erred considering jones's in court and out of court identifications of him when adjudicating his gateway actual innocence why according to petitioner the district court could not consider those identifications because the likelihood of misidentification caused by the line up procedure violated his right to due process in essence what that argument what petitioner is arguing is that if the court will just grant me the relief that i have requested in my constitutional claim then you'll see how quote actually innocent unquote i am so i can get through the gateway so i can argue my constitutional client but that's not the standard that shalit sent sets out ok to properly adjudicated gateway actual innocence like a tory without regard to whether it would necessarily be admitted under the rules of the misbelief that would govern a trial and digging a little bit deeper into schwa because we want to make sure i understood that for what it is if you dig a little bit deeper the supreme court says in the majority opinion there is sided something that judge friendly had said in the past case and said we believe the judge friendly's description of the inquiry as appropriate behavi score must make its determination concerning the petitioners innocence in light of all the evidence including that alleged to have been illegally admitted parentheses but with due regard to any unreliability  parentheses and evidence tentatively claim to have been wrongly excluded or have become available only after the trial in other words and these are my words in other words any alleged constitutional deficiency of the client and they really didn't have any basis for putting him in a lineup except for some sort of a tip that he might be doing some robbery somewhere sometime isn't that something that weighs into it away from home and store or live there at the time his kids were coming home from basketball came and told noble harris hey there's something going on at home store so we went to see when he found that home in the being killed he went up there to find out as he had been up there earlier that night and when he talked to the law enforcement officers ok he told the deputy owens that he arrived at the store about seven forty five pm and he left the store about eight twenty pm he went in there to buy beer and a quarter one knew for ten years that it's not like he's come in knows him from around he's known the man for ten years and as petitioner gets out of his blue cadillac inherit paris kind of passes and go into his car and gets in his car as he's as get ready to pull off he says what jones described petitioner's of blackmail about thirty five years old from five foot nine inches to six feet tall lanky from one fifty to one sixty five pounds with a dark complection who was wearing a light colored stocking for a hat dark pants and a dark  that it narrows it pretty well it does but there's well there's more on top of that he described the other perpetrator the man in the red and white checkered shirt he told deputy owens that fisher was in the company of a black male about twenty eight or thirty years old from to you i know you want to argue this answer the question if you want because this is about to prove right yes when you want the person to is the deal five the person you get you put the one describing thing the article of yellow coat on it and then you put one person with a pink and green yellow coat on is it which one do you think it was don't you think just common sense i know you represent the north carolina but don't you think that's  progressive for back then they brought jones up there and they did not tell him they had arrested anybody they didn't tell me have a suspect in the lineup ok they didn't tell me any of the names of any of the people in the lineup he walked in to go see the people and was told not to make  he's the third person with a coat on you think that really made a difference that he's done with that's like shuffling but long horsemen did not put him in that coat they make him wear the coat he was wearing it when he was arrested and charles lewis was wearing the that particularly wrong but i do know that there were instructed on filmy murder and that the district attorney the elected district attorney tried the case argued felony murder two he went why did the poor say you have to find that he actually shot  i have no idea your honor i mean that's just to me it's just an inherent contradiction in the instruction with your honor you don't have to find that he actually shot him paragraph one paragraph three or whatever it was few down you do have to six seventy two which says the statement satisfy you beyond a reasonable doubt the defendant actually shot mr holman in the in your honor if we're going to go down that route  pellet of number one buckshot from the shoulder of mr holland ok and that was proved up by the lab report they said state's exhibit number eight and state's exhibit number fifteen in the shotgun shell and the  right above the collarbone right where it has a junction with the breast and it went all the way through the net into the back and that's the one that got lodged in the shoulder it did major damage to his neck in arteries and it ended up in a back shoulder where dr j b recovered  then the other room came from the back shoulder blade went in hit the second ribs and then either either fragment that in there to where you could not then if i what it was or went back out the ba where the exit wound was there could have been a bone or could have been a projectile and they found in the gurney that they had wheeled him into the medical examiner or the forensic pathologist office on he found a holman had fired one shot that was there was only one spent shell casing inside his revolver and and the only fired one his were only lead bullets that were not jacketed but they found around the store several pieces of and several  pper jacket bullets is the way they described him thirty eight caliber capper copper jacket pulled so you got three weapons holman's weapon which obviously that fired himself you got the sawed off shotgun that has number one buckshot pellets in it and you've got the thirty eight caliber firearm of some type that's fired now dr hadrian testified that he didn't know whether the wound caused the mr holman was caused by a rifle a shotgun or a pistol in fact his testimony at trial was completely discount system he never called this a shotgun wound at trial he only called them two gunshot w so he called them shotgun wounds in his in his report of autopsy examination but that was never introduced into evidence at trial ok so all the jury heard was two gunshot wounds ok and the jury also heard don't know whether it was caused by a shotgun a rifle or a pistol so based on that evidence is how they convicted of the logical argument here is he was hit one was five  millimeter entrance wound from the front and one was an eight millimeter entrance wound from the back that supports the theory that he was shot with two different projectiles entered and one from the front one from the back when it made a five millimeter hole that we know why the judge might have instructed on that but he was convicted under a theory of acting in concert so it doesn't matter whether he fired the other gun or the codefendant so you santa don't know how the what the court instruct the jury what the judge told them and now you say they just ignore that no you don't i'm saying to you they follow the right i'm telling you they follow the correct yes or are they follow and following it means that they had to find that he was the shooter you can say about the jury instructions that they're confusing ok i agree with you on that they are confusing but he instructed on felony murder so the jury could have found him guilty on the theory of felony murder ok and acting in concert it's clear that he instructed above that they have done that out of the presumption is that they did but even if they did one of the two shots that caused his death was both were lethal the one that went through the what next but when it went through the other way one of them we know was caused by a piece of number one buckshot and the logical conclusion the jurors could that the the report is the report is whatever dr haven says it is but the testimony at trial is what he was convicted on around the report never made it to the jury ok the testimony at trial was gunshot wounds not shotgun  would be stopped robbing a blue cadillac wearing a dark three quarter length in the company of the man fitting the description of the coconspirator who asked for it out the sensor right down to the long sleeve red and white checkered shirt he was wearing with the number one buck western winchester shotgun shell in the left rear of the ashtray a blue catalyze and on top of that what are the odds that the same man would be seen getting out of his blue cadillac outside of holland store by mail harris forty minutes before the attempted robbery resulting in holmes death when he was supposed to be playing cards a tom smith shoe shop parlor according to his alibi witnesses and that his alibi witnesses were full of holes because they said he left the card game three times ok there are about five people playing at the card game and there are about sixteen people in and out during that entire time in the room where the car gate was going on at times misuse on park tissue left one time you go take a man's dog home his man who walked up there with and tie it up outside his house  his wife and yet defense petitioner left the second time so you can go take a man's wife a couple of cheeseburgers because she was hungry and didn't want it up and go do it in petition was a guy that had the car so he threw him a couple of bucks and he took in the cheeseburgers ok and then all of the third time court so i'd argue to you that shit sitter and even if they still presented a witness or the cross examination by the defense attorney and a witness at trial try to say that hair said different thing that he thought it was finished or thought it was carpet it really wasn't incitements so that was before the jury at most all it does is is impeach what harris said it does not show the petitioner is actually innocent by the more likely than not stand and while we're on the standard was also important as the with regard to the identification the anti terrorism an effective death penalty act provides it in the hague use of proceeding challenging a state conviction a determination of a factual issue made by state court shall be presumed to be correct behaviors petitioner bears the burden of rebutting the presumption of correctness correction by clearing convincing evidence in sharp vs bell this court decided that  the state courts fact finding germane to havey is petitioners gateway actual innocence claim are entitled to deference under twenty eight u s c section twenty two fifty four you want now the state court in this case made two important foundings about the identification first it found in the joint appendix page ninety two paragraphs eighty five and eighty six lester floyd jones had hampel time and substantial life and opportunity to view the shooter at the time of the crime being within two feet of him when the shotgun was discharged his attention was directed toward the shooter and he was provided consistent descriptions with the colonel's height weight skin color and clothing his level certainly was great and remained so at trial finally there was a short length of time between the crime at approximately nine pm and the confrontation at approximately one thirty am on the same night early morning paragraph one eighty six based on the totality of the circumstances the court includes that the in court identification of defendant by lester floyd jones is of independent origin based on the witnesses observation at the time and scene the crime is supported by clear and convincing evidence unless petitioner can rebut these findings with clear and convincing evidence of this court must presume they are preliminary hearing before he ever saw any of the lineups at which he identified the defendant were talking to police in their hearing a probable cause hearing like like we used to have in north carolina where they take him straight to the grand jury so he had a preliminary hearing under statutory right in north the whole idea of the you try to but is that the mind of saying we know is right because we saw me court he said it was him i'm asking you to look at all the facts and the factor surrounding this identification that show that it's reliable it reliable or not ok whether it was an independent or didn't just hit those factors look at the facts in the case number one the opportunity of the witness to view the criminal at the time of the crime joe saw petitioner inside and outside of the store for a total of five minutes around with this he's trying to unlock a patent yet so he sees i'm there while he's unlocking the paddle i've been inside the store you've got these two big windows two feet by four feet and the light shining in from the outside and then in the back wall there's a clot twelve inches by the question and said doesn't racial identity across racial identification get can't that be a factor explain that to me and he says well any factor that could that could effect the person's ability to identify the person can be considered as a factor too weak in the identification and i'm paraphrasing horribly ironic because it's you know i'm just telling you what it says what the expert said in other words when the expert was given the latitude by the question to answer the question he chose he didn't give a long explanation about cross reference racial identification he didn't sit there and say how strong it was and how it wouldn't be also looking at the cases that fisher has attach all of them on cross racial identification all they do is suggest jury instructions jury instructions be given on the issue across racial identification not to throw the identification out not to say it's not admissible and even in those jury in the lineup he was wearing a red white checkered shirt ok they were both in the same lineup and he identifies petitioner but he doesn't identify louis three times he doesn't identify weren't you ask with us your honor i don't know what you're asking think a record reflect anywhere near the description but we're going i don't at all and in fact the evidence was offered it had nothing to do with jury instructions it was just to make the point that cross racial identifications  alive and it's a factor like weapon focus like stress that would affect a person's ability to identify a person under some that circumstances let me just try to quickly go through because there's so much to correct here let me let me start with the life that the state makes never ever identify i the person with the shotgun as having facial hair he never told deputy owens that the person had facial hair so if he's walking under three hundred watts of light coming toward the store i think what we have to assume is that that person did not have facial hair because by the state's argument there would have been sufficient light for him at least to have seen that and he never identifies facial hair as a characteristic of the person with the shot the other reason he may not have a dentist by facial hair or hair or any characterizations in the characteristics of the person's face was because his first description was that the man had a stock in over his head so it may have been that the person he never saw the man's face but in in even either he didn't see a space because he had he was wearing a stocking or he got a very good look at his face and he didn't see facial hair so either way you cut that i think it comes out the state makes a big deal about charles lewis in the lineup and you said well he didn't pick him well that's because he may not have been the person in the store there's nothing in the record that suggests that charles is in fact was dress like the person who rocked the store there's some you know reference to a red and white checked shirt but there's nothing in the record that says that the shirt that charles lewis was wearing the shirt worn by the person in the store and i think we have to assume that it was not right because if it was based on what counsel said the witness was instructed he would have picked charles  didn't pick him so we have to assume that he didn't fit the description of the person who was in the store with the with the man with the shotgun on noble harr testimony was that he saw a person he believed was charles rafe range and that he was in a blue a light blue cattle there was a question about when did he see this person now on cross examination misadventures a lawyer got him to say that it was it could have been around seven seven thirty eight eight twenty but when six something so that was a period when every all of the alibi witnesses say that mr financially left the game went out to buy a sandwich for one of the players white and then return now  returned after six o'clock until at least nine thirty when he left and one of the witnesses took his place so there is no gaps in where he was all of his alibi witnesses were consistent and the north carolina supreme court said that it was substantial that the that the evidence was substantial and detail about the card being on the shotgun evidence of the state continues to try was ever fired in the school the the f b i the state bureau of investigation elicits expert noted that when they sent the lead that was recovered at the crime scene they did not send any anything that they called number one buckshot except the one shell had that deputy owens told them was a number one buckshot they did not make that determination that was what they were told when they received the evidence that it was a number one bike shot and what they were asked to do was to see if they could match it to affidavit was that he talked about the number of references to shotgun move in his autopsy report and he says that all of these references to shotgun wound are irani each should have said gunshot in the wounds suffered by mr holman were not caused by a shotgun he also says that when he talks about slug in his report he says i use the term slug to describe projectiles taken from mr holland mine at the time my practice was to use the word slug to refer to bullets fired from a hand gun or right i did not use the word slug to refer to buck shot or pellets fired from a shot so i think i don't think this can be disputed this is the man is clear that when he when he viewed the first line that he went back and he said that mr that the suspect was in the fifth position and then he said he corrected that met he was in the fourth position ok and then he shown a second line up and in the second line up mr finch is moved from the fourth position to the first position and he says when we asked mr deputy jones why he showed mr jones why we he showed mr jones three lineups he said i did it to be fair to mr bench but what we know is that the way he set up the lineup was not be here he admits that it was not fair and so his purpose in showing him three lineups was not to be fair to miss t was to manipulate the identification so that mr jones got the right person got the person who was put in the lineup marked for jennifer cation the person deputy owens claims he had a