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Judges hear arguments in Finch case

Lineup procedure questioned

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CHEROKEE — Calvin Jones couldn’t sleep. He was too anxious. After decades of stops and starts, court hearings and motions filed, he knew Thursday was a significant step in his father’s case.

“You can’t explain it,” Jones said.

Jones’ father, Charles Ray Finch, is serving a life sentence in the killing of Richard “Shadow” Holloman, who was gunned down in a failed robbery attempt inside his Black Creek country store on Feb. 13, 1976. Finch, who is 80 years old, has spent more than four decades in prison for a murder he maintains he didn’t commit. On Thursday, the U.S. Court of Appeals for the Fourth Circuit heard Finch’s case. Oral arguments were held at the Cherokee Tribal Court on the Cherokee Reservation in North Carolina — a historical moment for the Fourth Circuit, which is headquartered in Richmond, Virginia.

Calvin Jones, along with his father’s brother, Jimmy, made the trek to Cherokee in support of their family member, who has fought for years to have his 1976 conviction overturned. Finch has maintained his innocence since the time of his arrest; he was not at the proceedings Thursday.

“I hope for him to be freed,” Finch’s brother said.

Several attorneys and Duke University Law School students were also present for the hearing. The Duke Innocence Project, which is not an innocence commission, took on Finch’s case in 2001. It was the group’s first case.

The three-judge panel hearing arguments Thursday included Chief Judge Roger L. Gregory, Judge Barbara Milano Keenan and Judge Henry F. Floyd.

Duke Wrongful Convictions Clinic, which represents Finch, has claimed that since Finch’s conviction “new evidence” has shown that the evidence the state relied on in 1976 to show Finch killed Holloman with a sawed-off shotgun was “untrue.”

Finch’s attorneys say as a result of that, the state now claims Finch was present when Holloman was killed and that he acted in concert with an unknown killer. The only evidence supporting that new claim, they say, is the discredited eyewitness identification.

THE COAT

On the night Finch was arrested, he was placed in a police lineup along with six other black men. But Finch stood out, Finch’s attorneys and experts have said. He was the only suspect wearing a three-quarter-length coat in all three lineups, which suggested Finch was the man that the only eyewitness to the killing, Lester Floyd Jones, should or could identify. The coat itself was a “cue” for Jones to pick out Finch, Finch’s attorneys have said.

Jim Coleman, Duke University School of Law professor and co-director of the Duke Wrongful Convictions Clinic, argued before the court Thursday on behalf of Finch. He has said one of the main factors of Finch’s wrongful conviction included flawed and suggestive police lineups surrounding eyewitness identification.

Judge Gregory pressed Nick Vlahos, assistant attorney general for the N.C. Department of Justice, specifically on the coat.

“Why do you put the coat on him?” Gregory asked. “This is about truth, right?”

Gregory pressed further.

“Do you think that’s suggestive?” he asked Vlahos, who continued to argue his point. “Is that a yes?” Gregory asked. “Answer the question.”

Vlahos said it could be.

Gregory continued.

“This is about justice here and the Constitution ... and you’re saying that’s not suggestive?” Gregory said.

Vlahos claimed the police lineups in 1976 that Finch was placed in were “progressive.” He said Jones, the eyewitness, picked Finch out of the lineups several times.

Coleman has said the “suggestive lineups” that occurred in 1976 are no longer constitutional after research and subsequent court rulings.

Research shows even under the best circumstances, eyewitness identification is highly problematic, Finch’s attorneys have said. It is also the single most common factor in the vast majority of wrongful convictions, Coleman has said.

Coleman also pointed out Thursday that former Wilson County Chief Deputy Tony Owens, who was the lead investigator in the case at the time, also admitted during an 2013 evidentiary hearing in Wilson that the lineups were unfair, according to court proceedings.

THE GUN

During Finch’s 1976 trial, Wilson County prosecutors claimed Holloman was killed at close range with a shotgun. They also argued that the alleged eyewitness to the shooting, Jones, who worked with Holloman at the store, saw Finch shoot Holloman with that shotgun.

Coleman argued that a second autopsy Duke discovered contradicts the eyewitness account of what happened. The medical examiner who conducted the first autopsy and said Holloman was killed with a shotgun admitted years later in a sworn affidavit to Duke that he was wrong, Coleman said Thursday.

The slug removed from Holloman’s body was not a shotgun pellet but was a bullet that came from a handgun, Coleman said.

At the time of Finch’s trial, prosecutors included a No. 1 buck shotgun shell. Jurors were allowed to examine the buckshot allegedly found in Finch’s Carolina blue Cadillac after he was arrested and a piece of lead allegedly removed from Holloman’s body during his autopsy.

A state report, which Duke didn’t discover until years later, revealed it wasn’t a match.

State prosecutors claim that Finch may or may not have been the person who pulled the trigger and killed Holloman. And that he could have been found guilty under the felony murder rule even if Finch didn’t pull the trigger but was participating in the robbery. But Coleman has said the fact that Finch was an accomplice was never the state’s theory at the time of the trial.

“Mr. Finch wasn’t involved in any way,” Coleman told judges Thursday. “He wasn’t there — period.”

Judge Keenan said the jury instructions at the time were “very confusing,” and contradictory.

Vhalos argued the jury was instructed under the felony murder rule, and the jury followed that.

LIGHTING AND TIME

Vlahos also argued there was ample lighting at the time the incident occurred for Jones to identify Finch. But Coleman argued Thursday if that was the case, then why didn’t Jones ever describe or document what the killer’s face actually looked like? At the time, Finch had distinctive facial hair — a mustache, beard and long sideburns.

Vlahos argued there was substantial evidence at trial other than Jones’ identification of Finch including a witness during Finch’s trial who said he saw Finch get out of his blue Cadillac outside the store about 40 minutes prior to the killing. Coleman argued that witness, Noble Harris, told the court during the 1976 trial under cross examination by Finch’s defense attorney that he might have seen Finch at the “edge of dark,” on that day.

Coleman said on that particular day in 1976, the sun set shortly before 6 p.m., and twilight ended at 6:17 p.m., which would have been several hours before the murder occurred. Finch lived near Holloman’s store and was a regular customer. Finch’s attorneys have said the fact that Harris may have seen Finch at the store three hours before Holloman was killed is irrelevant.

Several witnesses testified on behalf of Finch at the time of his trial. They said he was gambling with them in downtown Wilson at the time of the murder, which happened at 9 p.m. — several miles away from the store.

Coleman said there were no “gaps” as to where he was that night as the state claimed Thursday. He said those witnesses gave “substantial details” about the card game.

‘I FEEL LIKE HE’S COMING HOME’

After Thursday’s hearing was over, Finch’s son, Calvin Jones, said he just wanted his father’s case to be heard.

“They listened,” he said about Thursday’s judges.

While it could be two months before the court issues an opinion in the case, Calvin Jones remains hopeful.

“I feel like he’s coming home,” he said. “When you get a feeling like that, it doesn’t change.”

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