court in affirming derek's conviction noted the state offered no physical evidence connecting him with the crime at the original trial we heard about calvin stewart we heard his nickname was bopeep and that he and derek may have had some animosity between them possibly over a girl but we didn't hear from calvin stewart because as he testified to later in the post conviction proceedings he didn't want to be found when we finally did hear from him the target of the shooting and someone with no bias in testifying for the defended accused of shooting at him he said unequivocally that derek jordan was not one of the shooters that was enough for the trial court which dismissed stewart's testimony and denied their expression of course the trial court's decision is entitle to a substantial difference here on review but it just missed calvin stewart's credible testimony simply because he did not come forward sooner it's stewart explained why he did not and made it rather explicit he would not have cooperated with anyone even if he had not made himself scarce and his explanation is not uncommon nor does it make him an credible by default when accords bases its decision not on the evidence its ruling is arbitrary and on reasonable and it is manifestly erroneous by dismissing stewart's testimony in such a quick manner with no basis in the record and then mischaracterize it the court's ruling isn't based on any evidence and it's just that in denying the petition the court st misunderstood stewart's testimony saying he testified that he didn't see the shooters despite the fact that calvin said he did calvin also testified that he had known the jordans at that point for more than thirty years he said he had a clear look at who was shooting but derek nor stephen where the shooters dismissing stewart is not credible the court mischaracterized this testimony saying quote he didn't see who did the shooting he didn't say he looked at the shooting he just said he didn't see who did the shooting but that's not what stewart testified to now the court did later seem to realize it's a mistake at the motion to reconsider but when it was rendering its original ruling and  considering the evidence it got that evidence wrong the court also seemed to suggest and this is the important bit that stewart was not credible because he wouldn't have talked to anyone he had not talked to anyone about the case up until that point but that doesn't have anything to do with his credibility and again the court relied upon an arbitrary and on the reasonable conclusion in dismissing stewart's testimony such a blanket ruling would in essence make proving an actual innocence claim nearly impossible since many such claims are based on witnesses coming forward with new testimony long after a trial importantly the court never examined what stewart's testimony offered to the case as a whole a direct contradiction which weakens an already close case of identification this is conclusive evidence material really relevant to derek's claim in significantly advances if you remember this court if you go back to the original proceedings this conviction rests upon three identifications the identifications from gregory war field ronnie green in case the story but there are problems with each one case the stewart's st identification came three months after the shooting and only after police st asked him about it he did not volunteer it originally ronnie green also identified there but had told police that he was simply repeating what gregory warfield told him a common theme in this case since many of the other identifications at trial traced back to mr warfield and then we have mr warfield himself he admitted at trial lying to the police bopeep being mr stewart in this case also explaining why mr stewart was on what nobody could find mr stewart originally and then admitted later on that he only thought to all the stewart to all the jordan excuse me was there but he's already recanted that until his post conviction proceedings james folds the other target next to calvin of the shooting didn't identify anybody at trial when we finally did hear from calvin stewart one of the targets of th conviction proceedings since he was in federal custody in texas facing federal charges there was no reasonable way mata could be called to testify at that hearing however his evidence was still admissible and the court the court should have properly considered at the time there acknowledges that the standard interview is significant but by waiting away mr stewart's credible testimony simply because he failed to come forward earlier mischaracterizing it and failing to take into consideration just how close the evidence in this case was the court's ruling was arbitrary an unreasonable it did not base its decision on the evidence and for that reason its denial of the petition was manifestly erroneous derek asks this court to reverse a granted petition and remand this matter for a new trial and with that i'm happy to answer any questions and i think the court for its time thank you berman that defendant was not one of the shooters we noticed or i noticed that really that was contradicted by several in fact i think for the eyewitnesses who identified the defendant as one of the s because they the entirety of and i think just to make sure that i understand the question clearly you're referring to matters testimony inside of their kids and it's sort of a double hearsay matta says that eric jordan was case of a variety of contradicting identifications there's a lot of there weren't at the original trial there were a few positive identifications of derek is the shooter so that was casey stewart ronnie green great  reward field and there were a number of either no identifications but there were not any direct negative identifications or straight you know it was not him and so when two people come forward now in a case where we have three people who say we think it was him although there are questions about that and we have a variety of other identifications that were basically no identifications or untrustworthy identifications to add different to as negative identifications changes the equation here and i think that's that's the difference here it's different evidence when somebody says it's different if somebody says i didn't see who the shooter was it's a lot more it's a lot more persuasive when somebody says i saw the shooter and it wasn't them and that's the difference here massa and casey stewart sorry strike that calvin stewart both came in and said we saw the shooters it was not of them and that that was never at the original trial we had some people say it was them we had some people say we didn't so or we could make an identification now we have people saying no it was not and that's and that's that's that's why it's so different and why it's so important thank you for your answer counsel i don't have any other with calvin stewart excuse and i followed calvin stewart bopeep and was i was acquainted with them to the point where he admitted lying to the police and was covering for calvin stewart he also was aware of this disagreement between calvin stewart and derek about this girl and it wasn't that was not fleshed out terribly well in the original trial proceeding but it was clear that there was some sort of disagreement between calvin stewart and derek jordan possibly over a woman and that gregory warfield was affiliated or friends with calvin stewart to the point where he was willing to lie to the police about calvin stewart being there because gregory warfield didn't tell the police that calvin stewart and james folds bopeep and pappu respectively were on the street and so although it wasn't made plain mr warfield clearly was affiliated more closely with calvin stuart which may motivate which would i argue would motivate the misidentification in this case the interesting thing leigh i use is also i think important keep in mind that mr warfield's original identification of the three jordan brothers is already weakened because he has already recanted it for one of the jordan brothers i think calling into suspect or calling into question sorry his other identification as well the morning your honour's may it please the court this court is well aware of the facts in this case they've already affirmed the convictions of the defendants and his two brothers and direct appeal defendant derek jordan now claims actual in a sense based largely on an exceptionally tardy affidavit of calvin stewart one of the intended victims and additional affidavit that provides nd hand allegations a decade after these crimes occurred again  think rd stage proceed at a rd stage post conviction hearing it's the task of the court the trunk court to determine the actual facts that will consider the court the trial court can limit the matter in which evidence is presented the trial court had no had no response had no there was no reason for the trial court to to consider testimony from  i'd like to point out too that no no witnesses have placed anywhere near the scene so we really have no no corroboration that he was anywhere around there from outside his affidavit but again that the court was not required to accept the contents of reasonable basis to not come forward earlier the court could consider the lapse of time between the shooting and callan steward's appearance and the court was not required to take anything in the affidavit is true or anything that fact is basically arguing that this court is or is should make a finding that stewart's affidavit seward's testimony was credible and that that plus a double hearsay affidavit should should change the course of of  this case however that is not that is not what this court is asked to do at this stage of post conviction proceedings contrary to what the opposing counsel argued the issue here is not as you know the affidavit of calvin stewart at this point is not the game changer that that it is purported to be by defendant it may have been credible if it was presented earlier but at this stage in the time needs to be taken into consideration the fact that calvin stewart is now saying that dick that air jordan was not one of the shooters at this stage is simply simply not credible i think i think if it was if it was a trial i think it's a different consideration then when it's on a post conviction for seating i think here you have other credibility determinations that are folded into it and a pointed out i think that you know the trial court here could consider the motivation for stewart to come forward at this stage you know if he if he so again i point to that yulia jordan affidavit i don't know why you know that that was in two thousand and twelve and he was in prison and he was able to do that so if you know his motivation for coming forward at this stage must be must must be weighed in terms of his credibility yet yes your honor it is i mean st st and foremost that was a nd stage proceeding as you point out that was a proceeding in which you know evidence has to be you know affidavits etc have to be considered distinguishable because he only of jordan actually testified at trial he provided alibi witnesses and therefore that lack this court to say that evidence as to make may not have been quite so overwhelming as it was to to the other to the other two brothers who are who are who are who are tried with feel so that is that is that is his you know the most you know the most reliable testimony the most reliable identifications are those that are made immediately recantations are regarded as unreliable also we have in this case ronnie green who testified that he was within ten to fifteen feet away from the defendant and identified the defendant in broad daylight so those would be distinguishable what i'm saying is sorry i didn't i didn't realize you were talking about celia jordan gregory warfield did provide an affidavit as to only a jordan however he didn't you know in which he in which he you know said that he knew that he only a was not one of the shooters however he didn't he didn't exonerate either of these defendants in that affidavit so you know why why mr stewart when mr calvin stewart gave his affidavit to the jordan and when he filled out the affidavit in this case i think important to keep in mind the procedural history of this case the brothers all three brothers are represented by the same attorney the same private attorney at during the trial proceedings and also on the original post conviction petition there was one post and action petition filed for all three there was a conflict that developed and then derek and  stephen jordan had to get a public defender just to kind of highlight the this point is i think it's important that was back in two thousand and eleven the public defender then began working on the case and as we i think all know sometimes these cases particularly post conviction proceedings take a while to develop when you're starting from scratch and so that i think does explain a lot of the delay because there was not a amended petition including all of the  affidavits including calvin stewart's until later in this case which would explain quite a bit of it because private counsel retainer continued working on the old jordan's case which would explain why it had been filed sooner while competition council began working on derek and stuart or derek and stephen's case later on i think that explains that delay and that kind of i think that cut some of the state's argument out as to why the delay matters in this case the other thing the cuts that that's important keep in mind here is that calvin stewart you have to ask what's his what's his motive in testifying now he was the target in this case there were people who were trying to shoot and kill him in this case so it doesn't make any sense that he would ever come forward unless he really did unless unless  were trying to tell the truth and exonerate somebody who had actually shot asked him he is he is and mr and there jordan have a disagreement between each other so there's no bias in coming forward here and also tell them stuart was in federal custody for the majority of that time probably making it very difficult for posting fiction counsel to reach him as i believe post conviction counsel mentioned a few times in his significant and sizable rule sixty one dollars c f of david's so as far as when we're talking about does the delay in time make him incredible almost as the false as the trial court held in this case is part of the analysis but in this case when you look at the fact that there was a change in counsel there were proceedings going on and calvin stewart still came through and testif d it doesn't make him i guess de facto incredible which is what the trial court seemingly concluded here secondly both in the calvin stewart affidavit outside of the identifications there is nothing that contradicts calvin stewart's version of events here nor daniel matters version of events i realize that the state says that because there's no cooperation we can't give any credibility to this affidavit but this affidavit doesn't rebut anything other than the ola and said nothing as far as derek or steven the fact that mr warfield already has recanted one of the three identifications should call into question the other two so when the court takes additional notices judicial notice of tools proceedings if you keep that in mind as well and with that if between the ones who exchange rounds and i'm not saying it happened in this case but you haven't stablished that under the circumstances that the alleged psyche or its psychology of what this witness was was acting under has been clearly established and you're making this argument in order to establish that the trial court's ruling was not credible and there's nothing in the record that i'm aware of that establishes or supports or corroborate logic of your argument is there any that you're aware of put the pause in the questions i want to make sure that i answer it there were there are a few different elements inside of your question i want to make sure i'm answering crackly so if i'm if i'm drifting off please correct me but i think that by focusing on the idea of this code of silence between felons or the like i don't think there's enough evidence to sort of highlight that here i don't  to draw that conclusion i think there would need to be something else inside of the record that they really truly did have some sort of ongoing you know that that that there was that there would be some something that would give rise to that i don't think that i'm the director doesn't bear that out if the field is part of the credibility analysis i think that has to be rooted somewhere in the record no the fact that they had a disagreement i don't think is another to say that we all mr stewart would come in and live simply as like on or among feeds because there's no there's no i i just i i think that there would have to be something in the record one way or the other and i don't see that i would argue there is nothing in the record that would lead to that conclusion outside of conjecture you  with witnesses who did not wish to testify or recanted prior to trial in so far as original statements made to authorities and the public policy if you will of those kinds of laws suggests that there is a phenomena and it is in the nature of people especially people who know one another are more willing to not identify with mrs on the basis that they don't want them to go away they may either forgiv forget or they may actually attempt revenge so that's their there's case law and there are statutes on the books that relate to witnesses who don't really want to cooperate for whatever their own personal reasons and i believe you're referring to the turncoat of the hearsay that the turncoat evidence hearsay if you have him and i and i and i acknowledge that that's that's an issue but i think that i think we're reaching way too far afield if we start to pull that in from from from this record and i knowledge that that's a phenomenon that the legislature has acknowledged and i obviously have cases in which that has been that has been that issue this isn't that this isn't that case though because there we don't have you know we don't have mr stewart you know we can take anything if if there had been a if there had been an initial identification and i recanted and then i think perhaps the logic of something behind a eleven thousand five hundred and ten point one might come into play here but we don't have that here and i think i think your conclusion i would argue is spin is is too speculative as to his credibility  anything to folks like this but if this didn't mean something to him i don't think he would have taken the steps to constantly show up when he needed to to present his version of events is this that delimitation is run  ok assuming that there was an assuming that the motive for him not coming forward would have been because if there was testimony that he had fired upon his attackers that he as a convicted felon would also be a while ago under the law liable in what manner and i apologize i was being prosecuted is a convicted felon in possession of a weapon and possibly aggravated possession because he discharged it in the direction of someone if if that had been the case but there was no i don't believe there was any evidence that the that mr stewart or mr fultz the targets ever attempted or just charge there were a number of other witnesses that even if they didn't make the identifications know and i don't believe there was any other evidence from any of the other witnesses that mr stewart the person later was determine to be mr calvin stewart and mr fulton had weapons or had fired at all or had any indication  mr fulton mr stewart both testified well let me talk about mr fulton at trial and then mr stewart i post mission hearings both testified that when the shooting began they both ran on and i believe that was backed up by every other witness including than the ones that didn't have any active interest in this case so there wouldn't have been any any any i think criminal liability for mr calvin stewart from this incident it turns out i believe that he may have had some other federal issues and that was one of the reasons why he was trying to avoid police but that's not clear in the record either thank you i have no further questions as you know i don't have any questions call thank you thank you thank you