on one of the counts the one twenty four c count shows that the jury had concerns about the government's evidence and how it came out so i think that for one shows that there was not harmless error involved here second there were photographs that came from the quick trip which is  he was wearing a white t shirt which is how he was identified and you can see in her knee that a black t shirt with a little red spot right at the v in the white t shirt which is what he was eventually found in was the black t shirt with the black t shirt he was found in the woods without shoes without pants but everything about what they saw identified him as was consistent with what the video was the day i would disagree inside the video my client had a very prominent tattoo that you could see actually in the lineup and that's not visible in those videos that we're talking about strew my client also had this scar on his face which was fairly prominent in figures probably in the fact that was not apparent on his face so i understand that there was perhaps the coincidence of my client wearing a certain kind of shirt but my clothing that i see is my client's clothing that he was wearing at the time of his arrest did not match the clothing that the robber had and the one other was found without shoes  without pants basically it appeared he disposed of some clothing my client was and with a red share or black shirt what's a red design my site was down with those yes and the white t shirt a white t shirt was found nearby the the vehicle and at one point comes side to side with it and i and he also testified without objection that he had was from ill year with this particular individual because he encountered him before and prior sunny he only decided to be encountered my client before whenever he was back writing his reports and said that he had seen and that was after he didn't embrace to face my client at the scene where he had been arrested there was no objection to his id at trial and that identification judge standing alone would not be enough these were two people passing by at thirty miles an hour in vehicle while it was raining in the video you can see there's rain on that on the windshield you know it's a chaotic going past each other with you know ten fifteen feet between them there's flashing lights you know i understand that the officer did testify but i think that the circumstances that he identified him under said that he knew him when he saw the person he didn't say i recognize that guy he said simply white male wearing a ball had later he saw my client at the scene obviously he didn't tell me but he then i seen that guy before i know this guy it was only later that he came out and saw the report previous reports i guess if he'd been in and said oh i remember that guy now those are issues which judge had that been the only evidence against my client i don't think the government would have proceed because that's your my your my problem yes or is on these cases there is a bit on the government established the guilt beyond a reasonable appellant comes before our core not on the law primarily but when you get to our most area you are basically a factual determination and so on the facts now the argument is my client is not guilty judge we want you to make the determination of that on these factual points in our favor but the fact finder is already made of factual determination on the other side here it is the follow up on judge moore it's there was one identification correct the officer it in addition to drives out and he apprehends the chap this forget the clothes for now how far from where the officers were four miles i'd say about four miles i'm not sure if he quit the pursued by virtue of other cars being in front of him whenever they arrived at the scene there was the pick up abandoned later two or so hours later was whenever my client was a was found by a dog the dog you'll look at the testimony was not the track at that point it was just walking around in this area so there was not like a scent trail leading from the dropped my client and i'm not asking you to revisit the jury's decision and i'm saying that the jury's decision was based upon this flawed admission of that there the jury is now receiving information some of which is flawed but some of which is clearly not but certainly an augmented big part but certainly augmented by the testimony of the eyewitness as the cases say juries love eyewitness testimony you know and if you apply some of these thoughts to the split second the officer higgins would have seen my client i think that it may be overstating it to place that much emphasis on what he testified to i recognize what he said but the incidents in the the facts concerning that i'd if a case were certainly at issue but what you have is an officer who they know here sees this robbery we can talk about some of the infirmities with this testimony but you have an officer going by that think this person has been arrested then giving ample time and so that's a police action in ample time is given so that mr harris can look to see if you can find that plate you're the gentleman on the internet which he did and then it was two days later that another officer came by with what i argue is a flawed lineup in and of itself because the turned head to the left with the tattoo visible no other person in the line it had that my client had barely clearly orange uniform on at the time no other person had that in the in the situation and also if you look at it this officer particularly chose that one picture that had my client's face turn to the left with a tattoo testimony established at the motion hearing and a trial that they're actually for their photographs that that officer going to use one of them of course was the that my guy would have been bit by the dog hit but on his face discount that one there were two others each of which had my client looking straight into the camera so i would argue that not only was there a necessarily suggestive x taken by the officers that officer was told damage he said that he was in the comments a child he admitted i have problems remembering facts and statements and times and dates and everything like that was very clear in that and so that's why it was air one because the judge never factored in daniel harris expert an eyewitness well we have those narrow facts we have a gentleman with severe brain damage admitted memory loss issues that is a particular fact that the jury could have been offended from additionally there is the the fact that he had seen the prior of th have been able to tell the jury ok when he said that he had seen that picture before the lineup and that means that his ability to recall exactly where he had seen that face either it was at the scene or it was that the lineup that he was not able to keep those things straight we as human beings are not able to keep those things straight and so what that means is that the judge denied me the ability to have an expert say here is the problems with what this gentleman is saying i'm a learned expert twenty eight years as a psychologist fifteen years worth of experiments se and that's pretty significant because what perry said was basically you need to have different find the suggestive you've got to have some sort of state action here yes what we're trying to avoid is the police rigging these line up procedures and you don't discuss that you don't suggest that this was somehow the police's responsibility that the officers responsibility that these two individuals looked for the photo on the on the internet first or and i understand your point no which seems to be that the officer apparently may have been told that they that me may have known they viewed the photo but that's not state action and you don't say anything or argue in your brief that police had responsibility for that here's our state action in addition to the infirmities of the actual photo lineup judge i'd say to you then that officer that first officer comes in this is nothing perry says it has to be intentional wrongdoing no it talks about state action and officers responsibility for yes the procedures officers responsibility we have an officer arriving at the talking to the the witness this is a big problem as noted in the case is you can't tell the eyewitness that the guy has already been arrested before you put him in a lineup that isn't there and so the first officer committed in there that's him doing it's police action he did that then later when you have the other officer showing up he's got what i call as the fog line up but then also mr harris testified he told officer get what i've seen this guy on the internet and so that too is a state action once and where you don't make that argument you don't make that argument for one thing but i don't you don't cite any case suggesting that would be say the state action this is the first we've heard of it but well counsel can i just pick up on that in the sense that i think the perry case stands for the proposition that we're trying to deter conduct improper place conduct could you help me understand what improper cleese conduct would be deterred or should be deterred negligent negligent police conduct because here in we have an officer going by and informing this witness a witness we've arrested this guy showing the guy that somehow he's going to be seeing this picture again it gives him the opportunity to go out and look at this picture that's on the officer judge and then when you have an officer coming in showing in the lineup and the guy tells you the police officer i've seen this before on the internet officer can't proceed at that point the officers are charged with protecting and gathering evidence in here in this case they didn't do that that was their actions by telling the guy about it and then using the flawed line of are you suggesting that there's some case out there th is cited in there it's stated in the in the in the tenth circuit says it's wrong to show or to tell someone that you that the person has been arrested in then show them the lineup because well if it's all sure maybe if you do it that way but here my name is lena i represent the united states i want i want to begin with the court left off and talk about whether the initial  harris and i think the key in this case about that later presentation of the lineup is that detective get would testifies and mr harris later confirms in his trial testimony that when he presented the lineup to mr harris detective get would say if he's in there or if there's anyone involved in this crime in this lineup let me know and mr harris confirms he said that if he's not in there just let me know so unlike a case like wisemen where the fact that someone had been arrested and the lineup were contemporaneous these are separate events and before showing the lineup detective get what took the additional step of warning mr harris that the perpetrator might not be in the lineup and mr harris understood that to be the case that mr that detective get would carefully showed in the lineup morning that he might not be in there and in fact said i want you to look carefully at each picture because there are six before you make a decision and of course he'd already this mr harris had already looked on the internet and seen a picture of the mug shot of the individual of arrested of this defendant so how do you disassociate from then how do you how do you know whether that's part of what he's now seeing in addition to the tattoo on the right side of his face yes the one else with the tattoo or any facial my that are obviously visible on the right side of their face yes there are several things first of all mr harris initially testified that he hadn't looked at the picture until after the line of many changes just money yes went and then  the key to mr harris is independent research is perry versus new hampshire and the circumstances are actually fairly similar in that case when when asked to describe the person that committed the  crime witness looked out the window on her own accord and said there he is right there and here for the in the same way mr harris independently undertook to find a picture of  the perpetrator for the reasons you identified judgments this is not state action we don't seek to deter the due process clause doesn't seek to deter independent research seeks to deter police misconduct in fact in this case detective gap would when it took numerous steps to ensure that this was a fair photo in addition to the presentation points that have previously identified that he knew that essentially that the fact that he had only one photo with a tattoo with a facial marking on the right side might be a problem he and he she looked for others but was unable to find them in the time and the case was pretty clear that individual facial irregularities or different hair all of these things can you point me to any case where there was this kind of circumstance where the witness who was viewing the photo line up the only testimony they gave about the physical appearance of this this individual was about a facial marking on the right upper right side of their face because that's different the cases that you cited i didn't seen anywhere where this we had this kind of circumstance where there was a direct link between the one photo that showed a facial feature or a facial marking and and the witnesses statement about the characteristics of the physical characteristics of the individual that they observed yes and i think my cure response to that is here the district court  found and didn't clearly err in finding that the tat a very small tattoo on mr watchwords upper face was not particularly prominent in the photo in the lineup but you could see it i can see i can see it right now i mean if fine i'm a person who has identified the the robber or the carjacker as someone who had a scar on the upper right side of their face and then i see a photo lineup with one individual with a facial marking on the upper right side of their face plus i've looked at that person's photo on the internet the day before and seen that that person has a tattoo on the upper right hand side of their face you have to admit we've got a bit of a problem there well it's clear that mr harris is independent research cannot play a part a role in this court's due process analysis but even assuming that he be a factor that we would consider in the totality of the circumstances as to record that indicate that there was a description of the perpetrator by mr harris prior  to or prior to any photograph or is photographic presentation in which you describe the perpetrators having his face mr harris never used it never describe the perpetrators having a or about the reliability of his identification about his memory problems and about the fact that he had gone on his own and looked at a picture of mr waffer before making identification from the line up have failed to identify mr wofford at the scene at the show up that was never presented to the jury but she specifically testified in the pretrial hearing at i believe page fifty four volume three that  the guy was wearing different clothes and it's uncontroverted that at the time of his apprehension mr wofford was wearing different clothes then pictured in the quick trip video in the still photos that are included in  brief so i'm not clear what you're trying to say how do we factor then in it to the extent that mr right now is arguing that that failure to identify somehow undermines the reliability of the identification or the harmless error aspect of  shirt with a little red logo showing in the v neck and pants and shoes mr wofford was apprehended some two hours later in the woods wearing a black t shirt with a red logo  d between ten and twenty yards away from where the silverado had been crashed into a ditch officers found white the neck to shirt mr mr wofford was not wearing either shoes or pants and as  that to the extent that ms argue mendo was unable to identify mr wofford as the perpetrator but there is at least circumstantial evidence that explains why that might be so and so her failure to identify him does not necessarily weigh against the identification there was sufficient evidence in the record to support mr walker's conduct conviction officer higgins testified based on  opportunity to observe the perpetrator that mr he identified mr walker as the perpetrator and that identification was not challenged either at trial or here on appeal as well as i've sort described there was strong circumstantial evidence of mr wofford skillz he was the offense took place at a quick trip the offender was driving a stolen gray pick up with a yellow a t v in the back of the police officer shortly after the call went out observed that car driving northbound on harbor turned around followed the car and  shoes or pants and was found approximately ten to twenty yards from the crash silverado that white t shirt was found given the strong circumstantial district court did not abuse its discretion in excluding dr guns testimony in particular because as the court identified that much of his testimony was directed at the show up identification not at the lineup in because but counsel we don't want you to leave thinking that we cut you off with a lot of questions that gave you no time for rebuttal would you care to take the minute or so if you don't mind being excused at this point if you have anything scene of the crime identified my client at trial regardless of the officer regardless of the shirt regardless of the attack to only one person tested by the crowd that i was at the scene that's the gentleman that was daniel here with brain