number four seventeen zero seven zero six the people of the state of illinois versus qian to jones and for the talent we have mr fisher and for the actually we have mr mansion you may proceed counsel aggravated battery with the father on the jury finding that he was guilty by accountability for any spice of shooting in injuring three individuals in an incident that took place in the april two thousand and eight defendant receive three concurrent terms of sixteen years in prison in each of his convictions and sentences were firm by this court on direct appeal and subsequently found a post conviction petition reason the claim of actual innocence based on newly available testimony from eddie spice of financial e the case proceeded to a third stage of an insurance hearing splice testified admitted that he was the shooter but testified the defendant had nothing to do with it and was not present at the scene at the conclusion of the third stage hearing the post conviction judge denied relief the defendant raises a single issue in this appeal he argues that the judge's ruling was incorrect that mr jones carried his a burden at the third stage and he therefore respectfully asked this court on appeal to reverse the order to nine post conviction  for a new trial the first thing i would like to discuss this morning is the appropriate standard to apply of the third spade or put it another way the defendant's burden of proof of the third stage where he is raised to pos people versus holeman stated that there are four parts to this test or birth for the defendant one is that the evidence must be newly available or newly discovered secondly it must be material and must also be known cumulative and finally it must be so conclusive that it would probably lead to a different result at a retrial now i think the first three parts of the status are fairly straightforward generally somewhat easy to apply and here the judge found that those first three parts of the house favored the defendant i think the more complex part of the that can sometimes give rise to some confusion is the requirement that the new evidence be so conclusive that it would probably result in a different verdict in the event of a  personally given that language that standard seems incredibly high and it sounds almost as if per haps the defendant has to establish his innocence in order to be awarded a new trial and that is not kill in the four supreme court cases that i mentioned the supreme court has clarified the standard attempting to interpret what those words mean and to provide guidance to courts an need not determine whether the defendant is innocent or guilty in deciding whether to order a new trial rather what the defendant moshe is that the new evidence is so compelling and paints the light such that it tends to undermine confidence in the original version and therefore under those circumstances if you can show that justice would be served by ordering a result on retrial does not mean that the defendant more likely than not would be acquitted and got a new trial but the likelihood of a different result is great enough to undermine undermines confidence in the original verdict now the judge the post conviction judge here stated the correct statement or the so conclusive and probably result in the trough however he also stated would find the defendant not guilty at a new trial the state on appeal argues that this second alternative standard is a correct restatement or interpretation of the so conclusive probably that no rational trier of fact could find the defendant guilty if that rational trier of fact considered the new evidence in both of those cases supreme court rejected that argument in washington justice authored a special concurrence in which she said if that were the standard the relief would seem to be out right reversed and yet the relief at a third stage post conviction hearing if the defendant succeeds  course a new trial it's also important to point out that in both coleman and moles spent illinois supreme court specifically said in those cases that the evidence presented to the original trial was  convict and yet in both cases the courts remanded ordered new trials based on the new evidence of the no rational trier of fact standard simply does not apply here credibility finding here and that's one thing i wanted to address this morning yes and found that mr spies was not a credible witness i do some reasons behind his conclusion and i would s reasons were highly questionable and not sufficient one thing the joy of seized on was the fact that of mr spice testified at the post conviction hearing but the car that brought him to the scene of the shooting was purple incident until the post conviction here or and so given that passage of time i don't think it's unusual that someone might eat this remember or for did exactly what the color of the car was  particular testimony about that so i think that's a really a very very minor point now again mr spicer testified that the defendant was not the driver of the vehicle and that was the prosecution theory in the trial court that in effect jones was the getaway driver drove the shooter to and then away from the scene of the offense so spice testifies the defendant wasn't the driver someone else so he was questioned by the prosecutor ok if it wasn't jones who was the driver who was the driver and at that point spice refused to divulge the identity of the man who claimed actually drove  that refusing begin assuming his truthfulness refusing to divulge the identity of the actual driver was somewhat less support much at the same time i think it's human nature is presumably he was friends behalf and saying that that in of itself could potentially in danger this individual because if that's believed maybe further investigation is done and ok well who was it so the person you guys haven't found who actually was the driver of the autumn that now sit down well just like coming forward and saying that if if if it's found to be credible they be there's an additional investigation prosecuted so i think that when some credibility this places us from now in the coleman case five individuals came forward to testify on the defendant's fact have at the post conviction hearing they  testified they committed the crime but the defendant was not involved the supreme in this was a claim of actual innocence the supreme court in deciding the case said among other things that th and i think three of the five testified they had in just of drugs and alcohol probably or to the incident so the court noted some serious credibility problems with those witnesses i would submit to this court much more individuals who were alleged victims in the case who identified the defendant at trial as one of the intruders into their home and who also both testified they know the defendant for several years on the west despite that testimony and despite these credibility problems noted by the supreme court supreme court concluded that these new witnesses painted the case in a new light presented  judge from what the judge says it's perhaps easy to conclude or to zoom but the evidence at trial was overwhelming that this was open and shut case and in fact it was not and after his testimony that he was released from custody on the motion of the state he was never prosecuted so there were problems with the speeds ace of trials was not an overwhelming case wasn't of physical evidence case in addition to that several police officers testified at trial that they responded to the scene investigated spoke to a lot of witnesses and nobody at the scene mentioned the defendants  submit that the evidence was close if you consider spice it's even closer the important thing to point out is that the post conviction judge was not you original trial therefore could we compare and contrast him many cases with multiple witnesses it different stories different perspectives i can get on that point didn't we have a conflict in that i can't remember specifically  all from but he was having a hard part trouble in and around the spirit of time apparently during the course of that day he was able to get the car going at times but apparently have now lying on him he claimed that  sorry i think you are mr manson feel free to take your time step process and then the say then as the language of the documentation the said for the color because actual innocence in other words they must raise the probability is more likely than whole claim of newly discovered evidence hangs on whether or not you believe mr spicer step only that the defendant just happened to the  inconsistency between spice and bennett regarding who got out of the car in what order who was arrested first the like so i submit that the trial court's assessment of the credibility of spices of witness correct this sudden change of heart to let get an innocent man off is just simply not credible the cop court was correct in finding  four the record where he says that the other scenario is that there is no other person beside the defendant who is the driver and that's how this scenario the second scenario the court based trial the fair hauled the feds at trial was that he was driving area his car broke down these guys ran up on him and the police pull him over immediately after the hop in the car spicer who says about but no rational trier of fact being the correct standard the it's the courts distinguish between a number one and the original petition or an amended original position and the success of petition  showing of no rational trier of fact considering the new evidence would it would would vote to convict it's records been very clear that were it was conviction petition alleging actual confronted and rejected a four thirty one be easier argument and in so doing so that the evidence was not close now i would respectfully disagree the considering all the evidence here but at this point we have more than just that original of them as we also have splices to us for money that was not before the original trier of fact it was not before this court at the time that the direct appeal was to sata so i think that's that's an it undermines the the the test for the person that the defendant must meet up so would you agree that let's assume that the trial court did not use the proper standard if we were to find based on our review of the record that utilizing the proper standard that defendant did not make the necessary showing you still who is correct that's correct that's correct i did i argued to this court that this court should be after that he saw three individuals running through the neighborhood i think through at the neighbor's yard and then later saw them in what he believed was the defendant's car he said one of those individuals were in a black tank top there was