trial court admitted testimony of one witness by video conference in contravention of two of mazurkas is fundamental constitutional rights his right to confront his accusers in person and his right to a fair trial more specifically his right not to be convicted based upon an unreliable identification made after a suggestive identification procedure was utilized by the state regarding the first point the core of the confrontation clause is the right to stand in the presence of ones before you turn to the law can you fill in a bit of a black box on what actually occurred at the trial you know for example consent your honor the record is not clear about any of those points the there is no evidence on the record that his counsel consented to this there's no x no nation there's no objection the record your honor that's correct there's there's no finding by the trial court of any sort of necessity for this testimony it was really just a summary statement by the court that now we're going to go to the law library for this testimony there's no explanation of why it was done the only thing that can be gleaned from the record is that the witness was in canada at the time which certainly is not sufficient necessity to justify shaving this this test of also this isn't even before us on the certificate of military as it is not has to fit a pill blow to your honor in our brief we requested this court to treat the inclusion of this issue as a motion to explain the certificate which this court has the power to do and we've asked the court to do that because this is a demonstration of  the denial of a substantial their procedure will befall well your honor if there's a procedural default there's i think it's two different issues here one is the certificate of appeal ability itself which i think this court has the power to expand the second is the issue of procedural default which we do address in our brief that we believe there is causing prejudice that justifies the procedural to fault the cause being ineffective assistance of counsel in the state court there's no strategic reason why counsel mistake court w object to this testimony especially considering the second problem is prejudice there's no evidence in the record whatsoever other than this single witness's testimony to support mazurkas conviction on this count and so we think there is caus or calls about this but but isn't isn't this with the what was done a whole series of robberies and how fraud such that you have a problem with prejudice no your honor i don't think that the other instances that there was evidence of presented at trial would be sufficient for a reasonable juror to find perkins guilty beyond a reasonable doubt on this count there's and without this test file irgens girlfriend ex girlfriend amy hoover testified that she irgens other committed the robbery the first robbery it's totally independent of fraud task lying or not there's a measure and yeah he did it that's correct your honor but that's a different count so there were two there were two counts regarding mr was brought this guy was rob he was robbed twice and so the testimony of ms who are only applies to the the first count with respect to the second count there is the only testimony is from mr wise blood there's some testimony from the police officer but the police officer cannot identify mr ergen so without the what you know but but you then have circumstantially the first robbery the fact that they know where his home is if they dropped him in the past and it followed infer from the fact that maybe a jury had enough evidence to find him guilty on one count to find him guilty on another i don't think that that's sufficient i don't think that the fact that he committed one robbery whenever that may have a chemical of the exact timing but let's say several months before is sufficient proof upon which a reasonable jury could rely on finding him guilty of a completely separate robbery despite the fact that this may have fit some pattern that according to law enforcement so i don't think that that is sufficient without mr wise rights testimony mr irgens cannot of been found guilty on this count there is no other evidence pointing to that and by allowing him to testify by video it's a clear violation of the confrontation clause the supreme court has held in maryland versus kreg that the right to physical confrontation in person physically is fundamental that's the core of the guarantee and it can only be could be waived right the right to have to enforce your clear constitutional rights that's all here that appears to be the decision we don't have a record i guess we don't have record your honor and so but i think that the standard to be applied in the case of procedural default would be and prejudice and or our position is that there is cause because there is no strategic reason that counsel will not have objected to this testimony i could conceive of no reason why the only witness who could place mr irgens but this count why there would be no objection his testimony by video when it's clearly inadmissible for him to do so in maryland versus craig would require a finding of the sesame which as judge drenches asked about earlier was not found on the record and therefore this was a violation of the confrontation clause and the court should reverse or vacate that conviction on that basis but not only was the testimony by video there also was this identification this is an issue that was preserved throughout these proceedings this unreliable identification by mr weisbrod made during trial the suggested identification procedure was the police or scuse me the prosecutor two weeks before trial met with mr wise brought showed him a single photograph of mr irgens and said this is the guy on trial for robbing you now that is this just identification procedure under several cases that was cited in a brief showing a single photo is prototypical impermissibly suggest identification procedure so then we move to the second prong under neil versus biggers which is the factors in whether this testimony was none the less reliable and our view is that it's not several the factors especially the length of time between the incident and recognize these these your client and the other codefendant about six months after the second robbery from a news report where their photos were seen and that's why guys word of that column ran or the news report was not mentioned until trial mr wise brother not go to the police have to resell the news report and tell them i saw the guy that's the guy there was no identification made by mr wise broad for thirteen months none from the time scuse me from the time that the incident occurred until the time of trial there was no identification made and in fact it only occurred after me again after the prosecutor showed him the single photograph of mr gans now the fact that there was this news report  six months prior only actually lends further credence to our argument that the identification was unreliable it's highly likely that mr was bright looked at the single photograph from the prosecutor and in his mind had the six months after or five months after the news report so this concept of unconscious transference where he sees this photo in the news report then later sees the same photo when the prosecutor shows it to him and that must be the guy that was in the sequence that i me wanting tells a police officer right after the second robbery how have i see these i'll recognize him because i got a little good look at him the lighting was good their faces weren't covered and then he sees the news reports six months later the those of the guys he does tell the police that he probably would be able to identify them but in doing so he doesn't give a very detailed description much unlike the witness in the neil vs biggers case where there was a specific description of the features of the defendants or the perpetrators let's assume we agree at that point on the that we say it's unnecessarily suggestive and didn't apply the biggest factors in the way apply the it couldn't a court couldn't someone disagree with you and not be objectively unreasonable on making that determination this or they could your honor i would say that the district court applied the factors incorrectly in fact at least one of the factors the it reasonable i think it was unreasonable because the court applied the court misapplied the standard the court said that this standard the term goes to weight not to admissibility and that's incorrect and so i think that's the that is why it unreasonable your honor in misapplying the standard the court demonstrates it was unreasonable and that's what this court should reverse didn't the state court find that it was not unnecessarily suggestive which would have pre did other discussions so are we looking at both progs of that or are we looking at the state courts determination that it was that the showing of the one photo was not unnecessarily side in our brief where a single photo shown to a witness is objectively impermissibly suggestive and i think that applying that saying that showing this photo by the prosecutor as well which most of these cases involve police and i think  prosecutor actually it's even more suggestive i think that that demonstrates that this is unreasonable and it was impermissibly suggestive so i think under both prongs it's first impermissibly suggested procedure utilized by the prosecutor and then  the second prong is an unreasonable or excuse me unreliable identification by the witness considering all the factors in biggers and i see them i had my time as a driver that prejudice analysis that had t first issue the confrontation issue your honor i think that that issue was procedurally defaulted that we're talking there about cause and prejudice and with respect to the analysis you're talking about on the identification issue comes into play it with respect to both prongs probably but it comes then it comes into play at that spot on both prongs and then it comes back into play at overcoming the procedural default i think that analysis is slightly different but yes your honor if they know i understand i think what your point is a good morning your honor is my name is scott crist i'm here on behalf of the attorney general of ohio representing a word in first as to the confrontation clause issue the confrontation issue as judge goldman pointed out there is no c e o way on that issue there couldn't have been a c e o on that issue because it was not raised below so in addition to not being able to address this claim because there is no certificate of appeal ability  so you cannot raise a procedurally defaulted ineffective assistance claim as a cause for procedurally default to claim so for any number of reasons the confrontation cla or the confrontation issue that first reared its head in their brief should not be considered by this court to help help me understand structurally how you would step through that analysis would you not engage in  the failure of the trial counsel to raise it the failure of appellate counsel to raise it causing prejudice for they are applying it to different and then you would turn around on the procedural default and walk through the same thing is to educate me if that is an incorrect way to walk through this analysis and i'm sorry if i understand your question if it had been raisin in the petition  well if you're having never is the petition before us to expand the c e o way right so walk what briefly through how you would have that would could be analyzed for a grant o expanded c e o and why you think that is not applicable here well first i would argue there was not raise in the petition filed in the district court and so it can't be considered by this court on appeal next i would argue that it was procedur appeal if it had been raised on appeal it would have been procedurally defaulted because of the contemporaneous objection role because it was never objected to a trial as another procedural default so once you get to that point then i would say well what's what's the cause of prejudice while there is no the cause would have been in effect this is of counsel theoretically but that claim was never raised in the trial court and  you but not that i want to dress the claim because it is so procedurally defaulted but i think it's obvious from the record that it was that it was a stipulation among counsel that they would do the testimony this way and first that it was mentioned was when the prior witness got on testifying he asked to observe the rest of the trial and the judge said well sure you can observe the rest of the trial except for the next witness that we're going to law library for for two way video conferencing there was never an objection raised so i think it seems obvious from the record can be assume from the record that it was assented to by by the defendant  so and i think if you look at the trial record they had no problem lodging objections to any number of things if they had wanted to lodge an objection even a continuing objection to something that was discussed in chambers earlier they when he was in las vegas and a friend of his sent him a link to look like a what appears to be on the record he sent him a link to a news article online about the arrest of these three  folks so the first identification that he made was not state action on the stand that but they didn't he did not go to the police and say oh you found my gun i'm in your posting council makes a fair point did not fare so to the prosecutor who shows him the picture that's the question is that unduly suggestive to have done so with that we're guard to other things that the prosecutor doesn't even know about says that that's unnecessarily suggestive i think in the context of this case i don't think there's any condition of suggestiveness where he has already seen the pictures and it does voluntarily said but not be he didn't voluntarily say that before the prosecutor showed he did i'm sorry he did do you ever when he returned from las vegas he did it is true that he did not make a call and say hey i saw this news article these are the guys but when he returned from las vegas to cincinnati he was contacted by the defense by detectives who he told yeah i saw the news article those are the guys the robbery he volunteered that to he wasn't shown the pictures again  any rate he so he didn't he identified these folks from the news report came back to cincinnati he was contacted by the defense  recognize him in hoover because she was the woman who showed up at my door prior to the first robbery and maybe amy hoover in fact testified that yeah that was me i showed up at the door and that was me who was in the building when he was rob so  that is at least one indicia of reliability of his identification it was confirmed by one of the defendants that she was actually involved and he correctly identified her yet first robbery in the but the wrecked correct but she identified her co defendants in the first froggery saying yeah they were with me and they were they were who carried out the robbery with the if you could just follow up with a citation to the what about i had a question that count twenty two the theft fance yesterday the my understanding of the decision below is the that the court assumed that there the statute required both a theft to finance plus either a deadly weapon harm or forceful we know boger was never rob so it's not harm or force i'm not saying  there was any proof in the record for count twenty two that the fifth defense alleged was accompanied by a deadly weapon  and i'm sorry i'm not prepared to speak on that i i wasn't aware that that was part of the certificate of real ability and since i didn't i didn't investigate the other defendants very closely to be honest in preparing so i  apologize i'm not hundred percent clear on the evidence with respect to the other  defendants very thought that would it would it make a difference to his sentence here i mean you know he was convicted on what to do ever robberies in two or three different attempted robberies would if one count is defective  for were consecutive several working current and i did do the calculations to figure out if we lost a charge here and there which one would affect the length of the sentence is certainly possible but he had thirty one years  don't think that it would make a significant difference even if even one charge you want to weigh i believe on page see page aidid nine thirteen where he was asked i think this is cross examination weisbrod was asked he did not eat did not contact him when he was unfair guess he didn't make it make a phone call he says when i returned home i remember the office several officers had stopped by or at least detective kinney had stopped by and he said did anyone did any one of those officers share photograph at that time and  sixteen thank you just very briefly are our first judge going you mentioned something about the sentencing counts twenty two twenty eight and twenty nine the sentence was three years concurrent on the three of them and with respect to count eleven which is the other count we've been talking about the sentence was five years so we're talking about a total of eight years for all of the counts in our brief i mean you can even raise the count twenty two problem maybe you know that we did not raise that issue that judge strange clause issue i don't think it is that this court can assume from the record there was a stipulation there is no stipulation in the record to this video testimony and so i don't think that the court can rely upon evidence that's not there i don't think that can be inferred by to detective can he after seeing these people on this news report and those are the people that rob does that not impact the analysis of whether whether the shelling by the prosecutor was  i don't think it of why are reliability i think that it may go to the second prong around it to the first i don't i don't think that it does i think that the the procedure used by the prosecutors under lisa just to regardless of that whether that happened i don't recall that happening but certainly i know your honor is going to look at the record but i think it could affect the reliability analysis but i would still say that even at that point six or seven months after the robbery that's still sufficient of time that the the length of time would call into question the rely ability of the identification for the typical counsel i notice that you have taken the case pursuant to assignment by the criminal justice act and we want to thank you for taking this case and representing your client well