presented newly discovered evidence from one of the intended victims calvin stuart excluding him as one of the offenders the trial court committed manifest error in finding talent unbelievable to do is delay in coming forward without considering the substance of ca unimpeached statement and without examining how a new jury would evaluate the state's case in light of the new evidence the evidence against even is far from overwhelming stevens conviction rus entirely on identification evidence there is no physical evidence v that resembled eric's petit harris didn't see the shooters and didn't identify steven but she thought that stevens older brother teela could have been one of the shooter james faults one of the two intended victims did not identify steven h and if i dared to the police as well as kendrick elliott lily and white could not identify anyone remaining for eyewitnesses identify even but three of them based their i d s on hearsay not their personal knowledge and all three of them redacted their identifications at some point or responding officer interviewed gregory warfield in his front yard immediately after the shooting in front of and within earshot of all the other witnesses including ronnie green and destiny anderson in officer testified that witnesses could have overheard what gregory told him and that's exactly what destiny and ronnie said occurred destiny anderson recanted her identification at trial she said she couldn't see the shooters and she needed jordan's only because she heard gregory warfield her uncle dean them to the police destiny in turn told vivian warfield that the jordans were the shooters the day after the shooting vivian who is hearing impaired viewed a photograph of grey without an interpreter she testified that the police asked her if she recognized anyone in the pictures she knew the jordan so she selected their photos she said she couldn't see the shooter's faces though ronnie green initially denied knowledge of the shooting and then he implicated jordan's and then five days later he recanted his id he explained to an officer that he only repeated what gregory warfield to the police it wasn't until about three months after the shooting that ronnie formally and officially identified stephen so only one witness gregory warfield out of the eight to testify to trial has consistently identified stephen as the offender six out of eight of the witnesses did not identify stephen at trial this is the identification of an on which stevens conviction rusk the flaws in the identification evidence are real and their indisputable in contrast to this week identification and skeleton stuart one of the intended targets of the shooting has recently come forward saying that steven is not one of the offenders calvin testified at involved in this case because in a poor relationship with the police and didn't want to get involved even the state never made contact with them director confirms that he was on available and that no amount of due diligence could have produced his testimony earlier investigator testified at a hearing on shooter and the jury did not hear any evidence like this from the victim who said i know stephen i saw the shooter's faces and i know stephen wasn't one of the shooters this is compelling sculpturing evidence that the jury never h goes to the ultimate issue in this case the identity of the shooters and as provocative even innocence it's difficult to see how scott the tory testimony from a victim wouldn't raise new questions for the trier of fact in fact this court  was material and not cumulative finally calvin's testimony is sufficiently conclusive so that it would probably lead to a different result resile in rejecting calvin's testimony the court didn't consider the substance of what he had to say rather the court dismissed kelvin out of hand due to his delay in coming forward the court didn't believe calvin's explanation but the court's finding was based on its own subjective belief and not the evidence the only evidence about ca delaying coming forward came from kelvin himself he offered a reasonable and unimpeached reason for not coming forward sooner he said that he had a strained relations with the police we know that he had legal troubles for which he ultimately served eight years in prison and he did not want to get involved in this case it's not unheard of for a witness to avoid involvement in a criminal case especially where he could have been arrested and charged in connection with the offense after all at least two eyewitnesses said they saw calhoun fire a gun so perhaps relevant it's not dispositive of a witness's credibility it alone doesn't render a witness and haron really incredible if so few actual innocence claims based on new testimony would succeed yet the court dismissed calvin altogether because of his lay in coming forward even though the state did not discredit the substance of his exclusive tory testimony the substance of calends testimony was almost irrelevant to the court and the court's comments at the hearing demonstrated it paid little if any attention to what calvin had to say the court initially dismissed stevens post conviction protection because it erroneous we believe that calvin didn't see the shooters or the shooting the defense or to point out in a motion for reconsider that calvin on equivocally said that he saw the shooter's faces i mean that the factual basis of stephen's actual innocence claim and the court that the facts wrong the substance of calvin's test why didn't matter to the court because it had dury upon hearing the new evidence would probably reach a different result this necessarily required the court to evaluate the substance of calvin's testimony but the court did not engage in this comprehensive analysis it is however probable that are to are a fact would reach a different result on retrial in an identification case like this exculpatory testimony from the victim is arguably the most persuasive evidence of actual innocence calvin's to credible testimony directly contradicts the state evidence on the key issue in this case it places the state's weak identification evidence in a different light and undermines confidence in the jury's verdict indeed on retrial evidence of stevens innocence would arguably be stronger than evidence of his guilt other identification of events steven has met the criteria to warrant a new trial based on newly discovered evidence the judge committed manifest error and not granting a new trial and therefore this court should reverse the lower court's findings and remand the cause for  account so you indicated that the court's conclusion regarding calvin was based on its own subjective belief rather than the evidence and i'm not sure exactly what he meant because it is the court's job at this stage of the proceedings is it not to assess the credibility of the witness isn't that correct that is true the well so certainly the court was permitted to take not only the length of time he waited but his prior record into account in assessing his credibility isn't that correct that's true all right and you are going to  i was going to say the problem is that the speech the state besides the fact that he had a prior record at the state did not impeach his reason for coming forward and his reason for coming for was reasonable and understandable reasonable and understandable that he didn't want to have anything want to have anything to do with the police is that what you're referring to thank you council the court's conclusion with respect to calvin you indicated in your argument this morning was based on the court's own subjective belief rather than the evidence and i'm a little bit unsure about what you meant because it is the court's job to assess the credibility of witnesses at this stage of the proceedings and not only is calvin weight twenty i'm sorry twelve years but the court certainly could have taken into account that he had a prior record isn't that correct that is correct the court could consider his prior record the problem with the court's finding is that it was not based on the evidence the state other than offering the fact that he had a prior record the state  impeach his reason for coming forward sooner further the court never got to the substance of cullen's testimony the witness is delaying coming forward it isn't the only factor affecting his credibility in the court in order to balance calvin's testimony against the trial identification of ins the court necessarily had to consider the substance of his testimony but the court dismissed him out of hand because it found his delay in coming forward was unbelievable which was an unreasonable finding given the fact that the state never really impeached his reason for coming forward and his reason his delay in coming forward was reasonable given the fact that you know even because of his prior record he did not want to get involved in this case and it's possibly not want to get involved because there was he could have been arrested and charged in connection with the offense because there was evidence that he also fired a over in discovery his name was on the witness list his address was not his address listed as a rural illinois and as this court found in post conviction appeal the defense did exercise due diligence in trying to locate him and the court said that no amount of further diligence would have produced his testimony earlier because he made himself on available i mean even the state could not make contact with him and i'm sure the state would have exhausted all of its resources to bring the victim in to testify in this case and it never made contact with him is the witness a convicted felon is so that's the real was why he would not want to be around when the police arrived because he was a convicted well i think that's one of the reasons he also had legal troubles at the time and shortly after this offense he was convicted of a drug case and he's spent eight years in prison and i think there's also a possibility that he could have been arrested in this case not just for possessing a weapon but for actually firing the weapon in this case because at least two witnesses told the police officer that they saw calvin's door fire a gun as well and how long did it take for him to come forward and  him twelve years after the offense and it was shortly after he was released from prison that he came forward and signed an affidavit  is the ability to sign affidavits precluded while one is in prison no but i think you know he made himself unavailable to the defense and the defense could not have gotten i testimony as to establishing that a rd party other than the defendant was the one who actually shot at him and so i'm suggesting use it when you say innocence you're not necessarily establishing innocence because you are using a negative to affirmatively establish what you call innocence when i suggest to you that what you're really doing is you're attempting to argue that this trip trial held again the fact that he claimed that it wasn't the defendant would overwhelm d the jury to the extent that they would then find that mr warfield assessed the morning was credible or it would raise a reasonable doubt am i correct i'm actually not following you as of right now we don't have to prove innocence the question is whether it's probable that a new jury upon hearing the new evidence would reach a different result so i'm not i'm not following what other evidence is or what other result is there other than to another guilty not guilty right and not guilty we don't have to prove he doesn't have to prove his actual innocence the question is would this evidence possibly change the result on retrial so if and when you look i understand what you're basically saying then that this is a misnomer that when they say actual innocence they mean that it's actually not guilty thus you can call it what you want it's an actual innocence cl but we do not at this point have to prove his actual innocence we just have to prove that it's probable that a new jury upon hearing this is called victoria evidence would reach a different result on retrial and when you consider the weak identification evidence witness indicate that he was aware of the fact that it wasn't of and because he looked at a photo d array and determined that it wasn't the defendant or was it because he knew the defendant and it was the defendant offenders he was in a superior position to view the offenders and he knows what stephen looks like you know stephen he got a clear look at the shooter's faces and he said even isn't one of them so in the context of this case there is no you that's your argument we would have to find that the trial court's decision in weighing similarly was on reasonable yes and i had to interrupt because the court didn't really weigh the calvin's testimony it looked at his failure to come forward sooner and rejected it out of hand the problem is that it didn't weigh his testimony it didn't consider the substance of his testimony so there was manifest error for two reasons one his credibility determination about ophelia come for was on reasonable because it was not based on the evidence and two because the court never engaged in the comprehensive analysis it was required to engage in where it needed to balance the that he was his address was aurora illinois that's all we know i don't know where he was does it does he wasn't in jail at the time and would you agree that while the the panel into all of is persuasive we're not bound by this decision you know i don't know how this court could reach a different decision and say this affidavit which is the same affidavit that was introduced until this case isn't newly discovered evidence and isn't material if it wasn't his case i don't know how the court could reach a different vision so though it's not technically bound i don't know how could not reach a difference engine but again you  learned from his mistakes that he quote unquote needs to change and he understands the mistakes these names nothing about he's actually innocent he didn't do this we should we even look at to read into that and i think it's inappropriate to fault him for that at the sensing hearing when he's not required to say anything to get up and stand and professes innocence no but one would expect that a person who was facing a charge th try to find witnesses who had information on this case and that's when one of the investigators came across calvin who threatened him the defense did try to find information to prove that he was innocent and it was that testimony presented by the investigator at the right at the motion for a new trial and it's that evidence that this court until relied on to find that the defense did exercise due diligence in trying to produce calvin's testimony that no amount of further diligence would have would have produced them sooner because he had made himself unavailable and threaten the investigator thank you   reviewed for manifest error stewart's account must be evidence that was discovered since the trial and that defendant could not have discovered sooner through due diligence as this court has noted this morning stewart was disclosed as a possible state witness he testified at the hearing he was incarcerated in two thousand and eight and spent eight years in prison however stewart does not account for his whereabouts between twenty million forty two thousand and eight when the trial as was occurring the question is whether the defendant could have obtained this information due diligence requires that some effort be taken prior to trial to procure stewart's account and defendant noted the testimony by the private investigator in the post trial motion however callan stewart does not state in his affidavit that he was anything regarding to that private investigator he simply makes a general boilerplate big claim that he was never contacted by anyone and that he would not have cooperated he does not provide any further facts as  the trial court could consider the long lapse of time in this case between the shooting and calvin stewart's decision to finally provide an affidavit here as to stephen jordan and the trial court certainly c proceeding and you know s as to the ultimate determination of whether the evidence was of such conclusive character that stewart's version of events would lead to a different result know this we know the attire extent of what calvin stewart's purported testimony would be you know this is not a proceeding at the nd stage where we take everything that's true the trial court considered everything that calvin stewart had to say he was he was cross examined you know we have everything out there and just as at a bench trial substantial deference needs to be paid to the trial court who observed cabin stewards demeanor jordan brothers had been charged in the case and that he could not have come forward sooner and the trial court could determine that calvin stewart you know has become less credible with the passage of time and not more credible  encounter this morning is restated much of the evidence and defendant you know contends in his brief that he you know that this court should make a finding contrary to the trial court that all of calvin stewart's testimony if they have an entry in hearing was credible and respectfully that is not you know what this court is able to do at this point you know that the test is not whether calvin stewart's new newly found version of events refutes t state's case the test is whether is is whether is is the test is not whether the state's case has a strong foundation and  a conclusion that the defendant has now had a trial he said a direct appeal at which is conviction was affirmed by this court and this court a direct appeal in fact describe the evidence that was presented at trial as overwhelming and closely or thank you you address the issue of newly discovered evidence in so far as the statement that has never been made versus a statement that was  compare its credibility to someone who did testify and who then recanted their testimony is one more believable than the other or are they equally believable or is it for the trier of fact stewart i think calvin stewart's credibility has to be determined at the time he comes forward he came forward he chose to come forward at this point the trial court did not find him credible  body that the trial court in determining that the witnesses testimony was incredible is an indicator that he didn't weigh the evidence  here we have the trial court's findings and rulings after the after the evidentiary hearing and the trial court did say that he considered all of the testimony calvin stewart in light of the you know what it already transpired and that these defendants cases and that he did not find that it was credible  the trial court is presumed to have understood the test for actual innocence and there is no basis on the record to to reverse on that on that basis the judge indicated that the evidence or testimony was incredible well here here that the court the court did consider the content of calvin stewart's testimony and it's exactly because his story was so you know was so exculpatory and so you know he like as was pointed out by the panel previously he didn't say i thought the shooters and it was joe smith and not one of the jordan brothers he just simply said you know it wasn't it wasn't defendant it wasn't even jordan that the trial court did not believe took into account as it can the length of time and the circumstances account and stewart's affidavit and the trial court did not find it credible that he would have sat on that on that information for so and isn't she correct and i'm not sure she said it exactly this way but what i gleaned was the total number of witnesses of the total number of witnesses who testified at trial over half never identified steven witnesses and that was that was gregory warfield and ronnie green who immediately identified the defendants and there are their identifications of the defendants were were confirmed and corroborated by testimony of police who who can for who confirmed that they were identified directly you know immediately after the shooting you know as this court is well aware that you know it only takes know the reasons for the other defend the other witnesses that were pointed out by opposing counsel the reasons for their you know they are you know going back on their testimony we can't speculate as to those and those that is actually not really for us but in terms of the weight of the testimony against the defendant as as this court as this court stated and direct appeal the evidence was deemed to be overwhelming and and that is that is what this court should should take into consideration thank you i don't have i just have a few points the state said that the trial court's credibility findings are not subject to review and i strongly strongly contest that while you do apply the manifest erroneous standard banner isn't a rubber stamp this court still has to review the court's factual findings and the court's factual findings were on reasonable contrary to what the state said we actually have evidence in the record refuting refuting the fact that the judge probably apply the law and consider the substance of calvin's testimony because when the court originally denied the petition it denied the petition because it thought calvin said he didn't see the shooting and didn't see the shooters i mean that was the factual basis of stephen's actual innocence claim and the court didn't understand the facts probably because he wasn't paying attention to what calvin said because it was focused solely on his delay in coming forward the judge was required to balance his testimony common sense money against the trial evidence and some point to know that the judge that the nih had the petition is not the same judge that presided over stevens trial so the judge never heard those witnesses testify the defendant does not in a p c case have to prove the identity of the real offenders the state and the judge faults ste calvin for not identifying and naming the real funders that evidence is required calvin testified to scupper tory evidence that he saw the shooter's faces and knows that even isn't one of them that's enough  the identification of a th that the state said that one id is sufficient to convict and that's true generally that is true however the evidence in this case is far from overwhelming and this court  c appeal it said that the evidence identification evidence in this case is far from over overwhelming it is flawed only one out of eight eyewitnesses consistently identified him and of the redacted their i d s they provided real awful nations for why they nischelle we identified the jordans they based their initial i d s on hearsay and it's when you think about what happened in this case it's total totally understand you think that a cop came and interviewed the witnesses all in front of each other of course they could overhear what gregory warfield said and so they based their initial i d s on hearsay and at trial they said two of them said i never actually saw the funders it happened so quickly i wasn't wearing my glasses we all ducked down i didn't i couldn't see them when you consider the weakness in the identification of it and against the exculpatory evidence that kelvin presented it is probable that a new of fact would reach a different result in this case therefore the judge's findings were manifestly erroneous and this court should award a new trial that the witnesses explained and their explanation is reasonable when you consider how the interviews went down in this case it's reasonable if they did they say is this i don't know who this person was th defense ronnie green yes ronnie green told an officer i only identified them because i heard gregory warfield tell an officer on the scene that they were the shooters and then they be in warfield said that she kept saying i don't know who the shooters are  and the police were pressuring her and saying you know anyone in the pictures you know in the pictures and she just she's hearing impaired could understand what they were saying and just selected the door and photos those are just  all we i mean we do have evidence that ronnie green did tell the officer five days after the shooting that he only named the jordan because he overheard gregory tell the op the responding officer thank you for things