State v. Bowdrey , 438 P.3d 946 ( 2019 )

2019 UT App 3THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KENNETH MORRIS BOWDREY,
Appellant.
Opinion
No. 20170033-CA
Filed January 10, 2019
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 161905902
Teresa L. Welch, Brenda M. Viera, and Tessa Hansen,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
MORTENSEN, Judge:
¶1 In short, this is not a Long case. 1 A police officer (Officer),
using a spotting scope in a surveillance operation to detect drug
1. See State v. Long, 721 P.2d 483 (Utah 1986). In Long, the Utah
Supreme Court stated that “trial courts shall give [a cautionary]
instruction [to apprise the jury of the limitations of eyewitness
identification] whenever eyewitness identification is a central
issue in a case and such an instruction is requested by the
defense.” Id. at 492. The holding in Long was modified by State v.
Clopten, 2009 UT 84, 223 P.3d 1103, to grant trial judges
discretion when deciding whether to give a cautionary
(continued…)
State v. Bowdrey
dealing, directed other officers (the Arrest Team) via police radio
to detain Kenneth Bowdrey. Officer then joined the Arrest Team
and confirmed that his colleagues had apprehended the correct
suspect. Bowdrey argued that Officer’s post-surveillance
confirmation entitled him to a cautionary jury instruction—a
Long instruction—about the limitations of eyewitness
identification. The trial court denied his request. Bowdrey now
appeals his conviction for drug distribution. We affirm.
BACKGROUND
The Arrest
¶2 Around 10:00 p.m. on May 27, 2016, Officer was
conducting surveillance of possible drug dealing near Salt Lake
City’s homeless shelter. In a concealed location about one
hundred yards away, Officer used a spotting scope to observe
the area near the shelter. The scope was not equipped with a
recorder or night vision, but Officer reported he could see the
area “very well” because he had an unobstructed view and the
area around the shelter was “very well-lit . . . even at nighttime.”
His view of the area was interrupted only by the passing of an
occasional light rail commuter train. Officer was accompanied
by a new recruit, whom he was training. The recruit used her
own spotting scope, and she and Officer discussed their
observations.
¶3 After watching the area through his scope for about thirty
minutes, Officer observed three men conducting what appeared
to be drug transactions. Two of the men (the Sellers) spit items
(…continued)
instruction in cases where testimony of an eyewitness expert is
heard. Id. ¶ 34.
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out of their mouths after people gave them cash. Officer
observed the Sellers conduct about ten such transactions each.
Officer stated that the Sellers’ behavior was consistent with his
knowledge of drug dealing practice. Officer explained that after
a buyer gives a seller cash, the seller proceeds to spit twists 2 and
hands over the drugs to the buyer. Drug sellers often work with
a “holder.” According to Officer, a holder stays at a distance
from the sellers and retains the bulk of the drug inventory, while
the sellers conceal small quantities of twists in their mouths as
they conduct sales. Officer explained that sellers use this method
so that they can swallow or spit out the drugs if approached by
police officers.
¶4 Officer observed the Sellers approach a holder two times
each between sales. Officer reported that the holder would take a
pill bottle out of his jacket; the Sellers would receive the bottle,
transfer its contents to their mouths, and then continue selling
drugs. Officer noted that the holder appeared to be smoking a
crack pipe when he was not resupplying the Sellers. Officer
described the holder as a “tall black male approximately 50 years
old who was wearing a red backpack.”
¶5 Officer radioed the Arrest Team to stop the three men he
had been observing, namely the Sellers and the holder. The
Sellers ran when the Arrest Team approached them, but they
were stopped about forty feet from where the holder was
detained. The holder did not run when the Arrest Team
approached him. Officer continued to watch through his scope
as the Arrest Team detained the holder. Officer informed the
2. According to officer, a “twist” is a method of prepackaging an
individual dose of illegal drugs in several layers of plastic wrap.
White twists contain crack cocaine and black twists contain
heroin. The drugs typically are wrapped in plastic at an off-site
location for sale on the street.
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Arrest Team members that they had “the right person at the time
they made the initial stop.”
¶6 After the three suspects were in custody, Officer left his
place of concealment and joined the Arrest Team. Once there,
Officer confirmed that the Arrest Team had detained the holder
he had been watching. Officer stated that he “didn’t further
identify [the holder], because [Officer had] already done that.
They held—detained him until [Officer] arrived on the scene.”
¶7 The holder was identified as Bowdrey. Bowdrey had a
crack pipe when the Arrest Team approached him. A search of
Bowdrey, conducted by Officer, revealed a pill bottle inside a
sock in Bowdrey’s jacket. The pill bottle contained about thirty
black and white twists of heroin and cocaine. The Sellers
detained along with Bowdrey did not have any drugs on them at
the time, but each had a substantial amount of cash.
Proceedings at Trial
¶8 The State charged Bowdrey with two felony counts of
possession of a controlled substance with the intent to distribute
and one misdemeanor count of possession of drug
paraphernalia. Officer, the recruit, and members of the Arrest
Team testified at trial about the events leading up to Bowdrey’s
arrest.
¶9 At the close of the State’s case, Bowdrey requested a Long
instruction on the reliability of eyewitness identification.
Bowdrey argued that Officer’s confirmation to the Arrest Team
members that they had apprehended the suspected holder
constituted an eyewitness identification. Bowdrey did not argue
that the request for the Long instruction was related to Officer’s
observation of Bowdrey while Officer conducted surveillance;
rather the members of the Arrest Team “were waiting for
[Officer] to come and confirm that this was the person. And that
20170033-CA 4 2019 UT App 3State v. Bowdrey
certainly does make an identification by Officer . . . and that does
qualify under the Long instruction, that he’s making
identification.” Thus, Bowdrey asserted that he was entitled to a
Long instruction because Officer identified Bowdrey as the
correctly apprehended holder after Officer had left his position
of concealment and joined the Arrest Team. The State opposed
Bowdrey’s request, arguing that Officer’s confirmation to the
Arrest Team was not an after-the-fact identification like the one
contemplated in Long; rather, “[t]his is a case where the officer
saw someone engaging in conduct, saw the person arrested, that
person remained in custody, [and] that person was then booked
into jail.” The trial court agreed with the State and denied
Bowdrey’s request.
¶10 Bowdrey then testified at trial. He stated that he had been
living at a homeless shelter and worked odd jobs, getting paid in
cash under the table. He used his money to buy cigarettes, beer,
and crack cocaine. He testified that on the night he was arrested,
he had finished smoking cocaine at his preferred spot in the
neighborhood and was making his way toward the homeless
shelter, where he planned to sleep. On his way there, Bowdrey
stated that he saw “somebody throw something in the garbage
can.” Intrigued and thinking it might be money, Bowdrey said
he retrieved the item and put it in his pocket. The item turned
out to be a sock. Bowdrey explained, “Every time I see . . . a sock,
I’m picking it up because . . . [n]ot too long ago I found $200.”
But Bowdrey stated that he did not immediately open the sock to
investigate its contents owing to the police presence in the area
and not wanting to call attention to himself. After smoking some
cocaine with a friend he met along the way, Bowdrey was
apprehended by the Arrest Team. At trial, Bowdrey’s counsel
summed up his argument in these terms: “Mr. Bowdrey is here
today to tell you . . . that well, yes, he was there and, yes, he did
have a crack pipe, but he was not selling. He was not working
20170033-CA 5 2019 UT App 3State v. Bowdrey
with anyone to sell, and . . . that was simply, quite frankly, a
wrong place, wrong time for him.”
¶11 After Bowdrey testified, the State recalled Officer to ask if
it was possible that the Arrest Team “stopped the wrong guy.”
Officer responded, “Absolutely not. . . . Mr. Bowdrey was the
key to our case. So I was watching the whole time. If we didn’t
get the holder with the drugs, we would have just had two other
guys holding cash . . . . I was watching the whole time as . . . [the
Arrest Team] did the takedowns. So I made sure they got the
right guy.”
¶12 The jury convicted Bowdrey of all three charges. Bowdrey
appeals.
ISSUE AND STANDARD OF REVIEW
¶13 The issue before this court is whether the trial court erred
in refusing to grant Bowdrey’s requested Long instruction.
“Whether the trial court erred in not giving a cautionary
eyewitness instruction to the jury is a question of law which we
review for correctness, giving no deference to the trial court’s
conclusions.” State v. Snyder, 932 P.2d 120, 125 (Utah Ct. App.
1997).
ANALYSIS
¶14 Trial courts are required to give a cautionary instruction
to a jury “whenever eyewitness identification is a central issue in
a case and such an instruction is requested by the defense.” State
v. Long, 721 P.2d 483, 492 (Utah 1986). Bowdrey argues that Long
required the trial court to give the jury a cautionary instruction
about the limitations of eyewitness testimony, because
(1) Bowdrey requested it and (2) Officer’s identification of
Bowdrey to the Arrest Team constituted a central issue in the
20170033-CA 6 2019 UT App 3State v. Bowdrey
case. We disagree. Although it is clear that Bowdrey requested
the Long instruction, we do not consider Officer’s confirmation
to Arrest Team members that they had apprehended the correct
suspect “a central issue” as contemplated in Long. And when
eyewitness identification is not a central issue, the trial “court
retains significant discretionary authority to refuse to submit
such an instruction to the jury.” State v. Robertson, 2005 UT App
419, ¶ 12, 122 P.3d 895.
¶15 Officer made a continuous, real-time observation of
Bowdrey as he engaged in selling drugs and was subsequently
detained by the Arrest Team. Officer’s post-surveillance
confirmation that Bowdrey was the holder was not an
identification as contemplated in Long, because Long addressed
the problem of the reliability of eyewitness identifications based
on the “process of perceiving events and remembering them.”
Long, 721 P.2d at 488 (emphasis added). Indeed, the Long court
describes at some length the weaknesses of the “memory
process” as justification for its decision, noting that numerous
“studies all lead inexorably to the conclusion that human
perception is inexact and that human memory is both limited
and fallible.” Id. at 488–91.
¶16 Thus, eyewitness identification based on memory is the
key factor in Long and its progeny. In Long, the witness failed to
pick out the defendant from a photo lineup three days after an
assault but later identified him at a preliminary hearing and
during trial. Id. at 484. Cases applying Long also involve
identifications made from memory after the perceived event. For
example, in State v. Clopten, 2009 UT 84, 223 P.3d 1103, the
identification occurred after a shooting in a “show up” and in a
photo array. Id. ¶¶ 45–46. Additionally, in State v. Maestas, 1999
UT 32, 984 P.2d 376, the victim identified suspects after a
robbery in a show up situation. Id. ¶ 8. Further, in State v. Snyder,
932 P.2d 120 (Utah Ct. App. 1997), two girls made identifications
three years after the defendant allegedly exposed himself to
20170033-CA 7 2019 UT App 3State v. Bowdrey
them. Id. at 122, 124. Long and its progeny all share in common
eyewitness identifications based on memory and made after—
sometimes years after—the incident in question.
¶17 Put succinctly, the facts surrounding Officer’s
identification of Bowdrey as the suspected drug holder do not
match the pattern established by Long and its progeny. The
difference between this case and the Long precedent is that
Officer’s identification was not memory-based. Although Officer
made an in-person confirmation to the Arrest Team that
Bowdrey was correctly detained, Officer had already identified
Bowdrey in real-time (1) participating in a drug selling operation
and (2) being detained. Officer testified that he identified
Bowdrey by “keeping [his] eyes on him the entire time.” Officer
was able to identify Bowdrey “because [he] saw [Bowdrey]
taken into custody through [his] spotting scope.” Thus, Officer’s
contemporaneous identification of Bowdrey during the
surveillance period was not memory-based; rather it was the
result of direct observation of Bowdrey over a period of thirty
minutes—as he supplied drugs to the Sellers and up to the
moment of his detention.
¶18 Even though Officer testified that he “actually watched
[the Arrest Team] take [Bowdrey] down,” Bowdrey still argues
that he is entitled to a Long instruction because Officer came
“onto the scene” to “confirm” that Bowdrey was the correct
individual to detain. But Bowdrey misapplies Long when he
argues that Officer’s confirmation to the Arrest Team constituted
an identification. The key fact is that Officer already identified
Bowdrey in real-time as he directed the Arrest Team to
apprehend Bowdrey. At no point in the sequence of events
leading to Bowdrey’s detention did Officer’s memory of
Bowdrey’s identity come into play. As this court has pointed out,
a Long instruction in this case would be misapplied because it
would go to the circumstances of Bowdrey’s arrest rather than his
identification. See State v. Pascual, 804 P.2d 553, 555 (Utah Ct. App.
20170033-CA 8 2019 UT App 3State v. Bowdrey
1991) (explaining that a Long cautionary instruction is not
required when it “goes to eyewitness testimony as to
circumstances, not identification”). Thus, Officer’s post-detention
confirmation that the Arrest Team had detained the correct
person is not “a central issue” requiring a Long instruction;
rather the post-detention confirmation was a mere circumstance
of Bowdrey’s arrest after Bowdrey had already been identified.
CONCLUSION
¶19 Because Officer’s identification of Bowdrey was based on
real-time observation rather than recall from memory, the trial
court correctly denied Bowdrey’s Long request. The
circumstances of Officer’s confirmation that Bowdrey was
correctly arrested place this case in a different category than that
contemplated in Long. Accordingly, we affirm.
20170033-CA 9 2019 UT App 3