United States v. Baker

UNITED STATES, Appellee
v.
Demetrice K. BAKER, Staff Sergeant
U.S. Army, Appellant
No. 11-6007
No. ARMY Misc. 20100841
United States Court of Appeals for the Armed Forces
Argued July 6, 2011
Decided August 24, 2011
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and STUCKY, J., joined. BAKER, J., filed a
separate dissenting opinion in which RYAN, J., joined.
Counsel
For Appellant: Captain Richard M. Gallagher (argued); Colonel
Mark Tellitocci, Lieutenant Colonel Imogene M. Jamison, and
Lieutenant Colonel Peter Kageleiry Jr.
For Appellee: Major Adam S. Kazin (argued); Colonel Michael E.
Mulligan and Major Amber J. Williams.
Military Judge: Christopher T. Fredrikson
This opinion is subject to revision before final publication.
United States v. Baker, No. 11-6007/AR
Judge ERDMANN delivered the opinion of the court.
Specialist Demetrice K. Baker was charged with two
specifications of indecent exposure and two specifications of
assault in violation of Articles 120 and 128(a), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920(n), 928(a) (2006).
Prior to trial the military judge granted a motion to suppress
evidence of an initial photo identification and later in-court
identification made by the victim. The Government appealed that
ruling to the United States Army Court of Criminal Appeals
pursuant to Article 62, UCMJ. The Army court granted the
Government’s motion to vacate the military judge’s ruling.
United States v. Baker, No. ARMY Misc. 20100841, 2011 CCA LEXIS
52, at *19, 2011 WL 891345 at *6 (A. Ct. Crim. App. Mar. 7,
2011).
Military Rules of Evidence (M.R.E.) 321(a)(1) and (d)(2),
read together with (a)(2)(B), set forth a two-prong test based
upon Supreme Court case law for determining admissibility of
eyewitness identification. United States v. Rhodes, 42 M.J.
287, 290 (C.A.A.F. 1995). “First, was a pretrial identification
unnecessarily suggestive? Second, if the pretrial
identification was ‘unnecessarily suggestive,’ was it conducive
to a substantial likelihood of misidentification?” Id.(citations omitted). We granted review to determine whether the
military judge abused his discretion in suppressing the victim’s
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out-of-court and subsequent in-court identifications of Baker as
unreliable.1 We hold that the military judge did not abuse his
discretion in granting the defense motion to suppress and
reverse the decision of the Army Court of Criminal Appeals.
Factual and Procedural Background
The military judge summarized the facts leading up to the
identification at issue in his written ruling granting the
defense motion to suppress:2
a. In the afternoon of 25 July 2009, [KTB] went
for a fast-paced walk on a bicycle trail near
Reinheim, Germany. [KTB] was walking for
exercise/cardiovascular purposes and breathes hard
during her walks. She is normally not focused on the
people around her as she walks. [KTB] is nearsighted
and was not wearing her prescription contacts at the
time of her walk. Without her contacts, she can see
and recognize people at close distances of 2 to 3
meters. However, her eyesight is degraded at greater
distances.
b. Prior to getting onto the bicycle trail and
still approximately 20 to 30 meters away, she observed
1
We granted review of the following issue:
Whether the Army Court of Criminal Appeals erred (1)
in finding that the military judge’s suppression of
the identification evidence was an abuse of
discretion, and (2) in holding that the pretrial
identification procedures were reliable under the
circumstances where the Army Court made impermissible
findings of fact under Article 62 and relied on such
findings in overruling the military judge.
United States v. Baker, No. 11-6007 (June 22, 2011) (order
granting review).
2
The Army Court of Criminal Appeals held that the military
judge’s findings of fact were not clearly erroneous and adopted
them as its own. Baker, 2011 CCA LEXIS 52, at *2, 2011 WL
891345, at *1.
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a bicycle rider (the rider) pass by on the trail in
front of her. The rider was a black man wearing
bicycle clothes, a bicycle helmet, and sunglasses.
c. After [KTB] started walking along the trail,
she saw the rider again approximately 20 to 40 meters
in front of her. He was kneeling in front of his bike
and doing something to his bike. As [KTB] approached
to within 7 to 8 meters of the rider, he looked back
at her and then got back on his bike and rode away.
d. [KTB] continued to walk along the trail and
saw the rider again. This time he was standing with
his back towards her as if he was urinating. As she
walked past the rider -- approximately 5 to 7 meters
away -- he looked back at her. She continued to walk
along the trail, and at some point, the rider passed
her again.
e. A while later, [KTB] noticed the rider once
again standing with his back towards her as if he was
urinating. This time however, as she approached, he
turned around, and ran towards her with his penis in
his hand. He stood approximately 2 feet in front of
her face-to-face blocking her way. He had his pants
partially down and he was holding his penis. [KTB]
was panicked by this frightful situation. Her heart
was beating hard, her “stomach was upside down,” and
she was focused on getting away. As she tried to get
around the rider, either to his left or right, he
continued to block her way. The rider then grabbed
[KTB]’s sweater and said something which she
interpreted as “Get undressed.” She pushed him away,
saying, “Let me go.” He let go of her and she quickly
walked away.
f. After [KTB] got home, she called the police
and reported that she had been sexually assaulted by a
bicycle rider on the bicycle trail. She talked to
Officer Gress and described the rider as a 1.75 meters
tall black man with a muscular body and wearing
bicycle attire -- helmet, sunglasses, and bicycle
shirt and shorts.
g. Officer Gress called two patrols for
assistance, then Officer Gress and his partner drove
to the trail and started looking for a bicycle rider
fitting the description given by [KTB]. They did not
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United States v. Baker, No. 11-6007/AR
see anyone on the entire trail that fit the
description, but were able to question two groups of
people on the trail. One group of people on the trail
told them that they had seen a bicycle rider fitting
this description and pointed them in the right
direction. Officer Gress and his partner called ahead
to another patrol that was blocking off that end of
the trail. The other patrol stopped the accused on
his bicycle. The accused is a black male and he was
wearing bicycle attire -- helmet, sunglasses, and
bicycle shirt and shorts. Officer Gress and his
partner apprehended the accused and took him back to
the police station. At the police station, Officer
Gress took two photos with a digital camera -- one
full body view of the accused and one of the accused’s
bike helmet and sunglasses. . . .
h. Approximately 1½ hours after her encounter
with the rider on the trail, [KTB] received a phone
call from Officer Gress informing her that they “found
someone that she should take a look at.” When she
arrived at the police station, Officer Greff [sic]
told her that they had taken photos of the suspect and
asked her to provide a more specific description of
the rider. She provided the same description as she
had over the phone with the addition that the rider
had a gap in his teeth and that he spoke English. One
of the police officers left the room, which [KTB]
presumed was for the purpose of verifying the
description.
i. Officer Gress then showed [KTB] the full body
picture of the accused on the screen of the digital
camera. [KTB], who was now wearing her prescription
contacts, said that the accused was the rider who had
assaulted her. She also mentioned remembering that
the rider had a mustache (or stubble on the face).
Therefore, Officer Gress zoomed in on the photo to see
if they could decipher the mustache and the gap in the
teeth. Then Officer Gress showed [KTB] the screen
with just the accused’s face on it. (At the 20
September motions hearing, [KTB] only clearly recalled
seeing this “close-up,” which specifically focused on
the accused’s face, and admitted that her memory was
“pretty blurry” in her mind about how the
identification process transpired.) Although she had
to look at the photo a few seconds because she had
only seen the rider with his helmet and sunglasses on
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United States v. Baker, No. 11-6007/AR
and had never clearly seen his eyes, [KTB] was able to
identify the accused as the rider who assaulted her.
According to her 20 September 2010 testimony, she
noticed the similarities of the nose, ears, chin and
upper lip.
j. At the 20 September motions hearing, [KTB],
who was wearing her prescription contacts, identified
the accused as the rider who assaulted her. She was
very sure (“100 percent”) of her identification
because he “just looks like the person because the
nose, cheeks, the beard, the . . . muscular body.”
(Second ellipsis in original.)
In his ruling granting the motion, the military judge
applied the Supreme Court’s five-factor test for determining the
admissibility of pretrial and in-court identifications set forth
in Neil v. Biggers, 409 U.S. 188, 199-200 (1973): the
opportunity of the witness to view the criminal at the time of
the crime; the witness’ degree of attention; the accuracy of the
witness’ prior description of the criminal; the level of
certainty demonstrated by the witness at the confrontation; and
the length of time between the crime and the confrontation.
The military judge concluded “the manner in which the photo
identification was conducted was unnecessarily suggestive and
conducive to a substantial likelihood of misidentification.”
He ruled the photo identification inadmissible and the
subsequent in-court identification also inadmissible because it
was “significantly impacted by the suggestive close-up photo:
the only time in which [KTB] came ‘face-to-face’ (without
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United States v. Baker, No. 11-6007/AR
helmet/sunglasses) with either the rider or the accused until
the motions hearing 14 months later.”
Before issuing his written ruling, the military judge
notified the parties of his decision to grant the defense
motion. Prior to the issuance of the decision, the Government
filed a “Motion for Appropriate Relief (Request for
Reconsideration).” The military judge issued his written
decision and then convened an Article 39(a), UCMJ, session to
address the Government’s motion to reconsider. The Government
also urged the military judge to adopt additional findings of
fact. After an extensive argument and discussion, the military
judge adopted additional findings of fact from the bench, which
included:3
Based on a preponderance of the evidence, the rider
looked back at KTB, he saw her face and she saw the
rider’s face but “that was not a clear view, and she
did not have the eyesight to see his face clearly from
that distance.”
“[KTB], when she described the rider, she described
him with black bicycle shorts and a white bicycle
shirt; in addition to him being 1.7 meters tall,
muscular, black complexioned, riding a bicycle -- a
racing bicycle and wearing a bicycle helmet.”
“[W]hen [KTB] walked approximately 5 to 7 meters away
from the bike rider, she saw [his] face. . . . Not
clearly, but she did see it.”
3
These findings are paraphrased from the record except where
quotations are used.
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Notwithstanding these additional findings of fact, the
military judge denied the Government’s motion for
reconsideration.
The Army Court of Criminal Appeals held the facts set forth
by the military judge were not clearly erroneous and adopted
those facts in its opinion. Baker, 2011 CCA LEXIS 52, at *2,
2011 WL 891345, at *1. However, that court held the military
judge abused his discretion when he granted the motion to
suppress because he “‘committed a clear error of judgment in the
conclusions [he] reached upon weighing of the relevant
factors.’” Id. at *9, 2011 WL 891345, at *3 (alteration in
original) (quoting United States v. Ellis, 68 M.J. 341, 344
(C.A.A.F. 2010)). The lower court held the identification was
not so unnecessarily suggestive as to create a substantial
likelihood of misidentification. Id. In its de novo review of
the Biggers factors, the court concluded:
[KTB had] a concentrated period of at least one to two
minutes to view the rider’s face. . . . Contrary to the
military judge’s conclusions, [KTB] had far more than
minimal opportunity and capacity to view the rider the five
separate times she observed him. Even with degraded
eyesight at a distance past two to three meters, she was
able on those five instances to confirm it was the same
person in each encounter and to provide a relatively
detailed description of what the rider was doing at the
time she noted his presence on the trail.
. . . She focused her full attention on [the rider] five
times, albeit for varying lengths of time, to include three
occasions which involved more than the rider just passing
her on his bike.
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United States v. Baker, No. 11-6007/AR
Id. at *13, 2011 WL 891345, at *4-*5.
As to the other Biggers factors, the Court of Criminal
Appeals held that KTB’s description of the assailant was
accurate and “agree[d] with the military judge’s conclusion that
[KTB] had an ‘extremely high level of certainty in the accuracy
of both her photo-identification and in-court identification of
the accused.’” Id. at *15, 2011 WL 891345, at *5. The lower
court also agreed with the military judge’s conclusion that very
little time lapsed between the crime and the confrontation. Id.
at *16, 2011 WL 891345, at *5.
Before this court, Baker filed a petition for review of the
Court of Criminal Appeals decision as well as a motion to stay
the proceedings pending the appeal. We granted Baker’s assigned
issue4 and the motion for a stay.
Standard of Review
The standard of review we apply in this case is critical to
the outcome. “We review a military judge’s ruling on a motion
to suppress for abuse of discretion.” United States v.
Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004) (citing United
States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000)). “In
reviewing a military judge’s ruling on a motion to suppress, we
review factfinding under the clearly-erroneous standard and
conclusions of law under the de novo standard.” United States
4
See supra note 1.
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United States v. Baker, No. 11-6007/AR
v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “Thus on a mixed
question of law and fact . . . a military judge abuses his
discretion if his findings of fact are clearly erroneous or his
conclusions of law are incorrect.” Id. The abuse of discretion
standard calls “for more than a mere difference of opinion. The
challenged action must be ‘arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.’” United States v. White,
69 M.J. 236, 239 (C.A.A.F. 2010) (quoting United States v.
Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).
When reviewing matters under Article 62(b), UCMJ, the lower
court may act only with respect to matters of law. United
States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004). “When a court
is limited to reviewing matters of law, the question is not
whether a reviewing court might disagree with the trial court’s
findings, but whether those findings are ‘fairly supported by
the record.’” Id. (quoting United States v. Burris, 21 M.J.
140, 144 (C.M.A. 1985)). When reviewing a ruling on a motion to
suppress, “we consider the evidence in the light most favorable
to the prevailing party.” United States v. Cowgill, 68 M.J. 388,
390 (C.A.A.F. 2010) (quoting United States v. Reister, 44 M.J.
409, 413 (C.A.A.F. 1996)). As we “pierce the intermediate level
of appellate review and examine the military judge’s ruling
directly,” Baker is the prevailing party in this case. United
States v. Meghdadi, 60 M.J. 438, 441 (C.A.A.F. 2005).
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Discussion
In reviewing the admissibility of eyewitness identification
we look to M.R.E. 321(a)(1),(a)(2)(B), and (d)(2), which codify
the two-part test established by the Supreme Court in Neil v.
Biggers, 409 U.S. 188, 199-200 (1973). Rhodes, 42 M.J. at 290.
Initially the trial court determines whether the pretrial
identification was “unnecessarily suggestive,” and then if so,
determines whether it was “conducive to a substantial likelihood
of misidentification.” Id. This second inquiry centers on the
reliability of the identification as determined by an
application of the Biggers factors. Id. at 291. Even if the
pretrial identification is ultimately held inadmissible, M.R.E.
321(d)(2) provides that “a later identification may be admitted
if the prosecution proves by clear and convincing evidence that
the later identification is not the result of the inadmissible
identification.”
Both the military judge and the Army Court of Criminal
Appeals appear to have proceeded directly to an analysis of the
Biggers factors.5 The lower courts then relied on their analysis
5
Under the Rhodes and Biggers criteria, if a pretrial
identification is not “unnecessarily suggestive,” there is no
need to proceed to the Biggers factors to determine whether the
identification was “conducive to a substantial likelihood of
misidentification.” See Rhodes, 42 M.J. at 291; Biggers, 409
U.S. at 199.
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of the Biggers factors to determine whether the identification
was “unnecessarily suggestive” as well as whether it was
“conducive to a substantial likelihood of misidentification.”
Baker, 2011 CCA LEXIS 52, at *13-*18, 2011 WL 891345, at *4-*6.
In our analysis, we will address the two-part evaluation set
forth in Rhodes.
I. Was the Pretrial Identification Unnecessarily Suggestive?
Baker argues that showing KTB a single digital photograph
of Baker was unnecessarily suggestive because this type of
“show-up” procedure is “inherently suggestive” and was described
by the Supreme Court in Stovall v. Denno, 388 U.S. 293, 302
(1967), as “widely condemned.” Baker argues the suggestiveness
of the show-up was exacerbated by the police officer’s comment
that they “found someone that [KTB] should take a look at.”
The Government responds that the photo ID was not unnecessarily
suggestive because it took place immediately after the incident,
the police stopped the accused only after determining that he
matched the entire description given by KTB, and they made sure
KTB’s description matched the suspect before showing her the
picture.
“Suggestive confrontations are disapproved because they
increase the likelihood of misidentification, and unnecessarily
suggestive ones are condemned for the further reason that the
increased chance of misidentification is gratuitous.” Biggers,
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United States v. Baker, No. 11-6007/AR
409 U.S. at 198. “[S]howing a suspect singly to a victim is
pregnant with prejudice. The message is clear: the police
suspect this man. That carries a powerfully suggestive thought.
. . . When the subject is shown singly, havoc is more likely to
be played with the best-intended recollections.” Biggers v.
Tennessee, 390 U.S. 404, 407 (1968).
Weighing the evidence in the light most favorable to the
prevailing party, the military judge did not abuse his
discretion when he held that the initial identification was
unnecessarily suggestive. In addition to the police officer’s
comment that they had “found someone that [KTB] should take a
look at,” the image of Baker shown to KTB was displayed on a
relatively small digital camera screen and depicted a rider
without a helmet or sunglasses, unlike the rider KTB
encountered. The military judge also found that KTB only
mentioned that the assailant might have had a mustache after she
viewed the image, and only then did Officer Gress zoom-in on the
image and confirm the mustache. These factors coupled with the
suggestive nature of a show-up photo identification procedure,
created a scenario that was unnecessarily suggestive. We
therefore proceed to an analysis of the Biggers factors to
determine whether the identification was nevertheless reliable.
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II. Was the Unnecessarily Suggestive Pretrial Identification
Conducive to a Substantial Likelihood of Misidentification?
As in Biggers, we now address the central question,
“whether under the ‘totality of the circumstances,’ the
identification was reliable even though the confrontation
procedure was suggestive.” Biggers, 409 U.S. at 199. Because
the military judge provided a detailed ruling evidencing an
accurate understanding of the Biggers factors and their
application to the facts on the record, we give deference to his
ruling in our analysis. See United States v. Briggs, 64 M.J.
285, 287 (C.A.A.F. 2007) (citing United States v. Downing, 56
M.J. 419, 422 (C.A.A.F. 2002)).
A. Opportunity of the Witness to View the Criminal at the
Time of the Crime
The military judge and the Army court disagreed about the
sufficiency of KTB’s opportunity to view her assailant. The
military judge noted KTB’s “nearsightedness,” and concluded that
she had “minimal opportunity and capacity” to view the rider.
He explained, “[o]ther than the few moments that she was
extremely close with the rider during the assault itself, her
nearsightedness alone prevented her from getting a clear look at
the rider.” (Emphasis added.) In contrast, the Army court
found that when the assailant approached KTB with his penis in
his hand, she had a “concentrated period of at least one to two
minutes to view the rider’s face.” 2011 CCA LEXIS 52, at *13,
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United States v. Baker, No. 11-6007/AR
2011 WL 891345, at *4 (emphasis added). While Baker argues that
this amounts to an impermissible finding of fact by the Army
court in violation of Article 62, UCMJ, which confines that
court’s jurisdiction to matters of law, the Government suggests
this comment “reflects a legally permissible conclusion based on
the facts as found by the military judge.”
In its opinion, the Army court wrote “[t]he factual
findings set forth by the military judge . . . and his
additional factual findings in the record are not clearly
erroneous and thus, we adopt them.” Id. at *2, 2011 WL 891345,
at *1. However, the military judge’s ruling did not find that
KTB had “at least one to two minutes” to view the rider’s face,
nor is this fact reflected in KTB’s testimony at the hearing on
the motion. We disagree with the Government’s suggestion that
this statement does not constitute an additional fact, but
reflects a mere difference in the interpretation of facts found
by the military judge.6 While the dissent regards the difference
between the military judge’s finding of a “few moments” and the
Army court’s finding of “one to two minutes” as merely a
6
The Government’s argument at the trial level is consistent with
this conclusion. At the hearing on the Government’s motion for
reconsideration, the Government urged the military judge to
adopt additional findings of fact. Although the military judge
did adopt additional findings, he did not adopt all the findings
urged by the Government. On appeal the Government now argues
that the unadopted findings are not facts, but simply a
different interpretation of facts that were found by the
military judge.
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difference in the manner in which KTB’s testimony was
“characterized” by the lower courts, United States v. Baker, __
M.J. __ (7 n.1) (C.A.A.F. 2011) (Baker J., dissenting), this
temporal difference is more than a mere difference in
interpretation or characterization of KTB’s testimony. The Army
court’s finding is clearly distinct from, and indeed contrary
to, the findings of the military judge. There is no evidence in
the record or in the military judge’s findings that the
encounter between KTB and the rider lasted “at least one to two
minutes.”
As the Army court has no authority to find facts in an
Article 62, UCMJ, appeal, that court’s determination that KTB
had “a concentrated period of at least one to two minutes to
view the rider’s face” amounts to an impermissible finding of
fact. 2011 CCA LEXIS 52, at *13, 2011 WL 891345, at *4. This
erroneous finding is particularly problematic as the Army court
relied upon it for support of its determination that the
military judge erred in his analysis of this Biggers factor.
Id. at *9, 2011 WL 891345, at *3.
The military judge concluded that KTB had only “minimal
opportunity and capacity to view the rider” because “[o]ther
than the few moments that she was extremely close” to the rider,
her nearsightedness prevented her from getting a good look at
the rider. In addition, the rider was wearing a helmet and
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United States v. Baker, No. 11-6007/AR
sunglasses at the time of the incident, thus KTB could not get a
good view of the details of the rider’s face even at close
range. Although KTB walked past the rider a few times before
the incident, she testified that when she walks she is not
focused on the people around her. During the brief encounter
when she was face-to-face with the assailant, she was “panicked
and focused on getting away.”
If, as the Army court determined, KTB had come face-to-face
with the attacker for a “concentrated period of at least one to
two minutes,” a case could be made for the Army court’s
conclusion that she had ample opportunity to view the attacker.
However, as discussed supra, the military judge concluded that
she had only a few moments to view the rider up close. When
compared with other cases evaluating this factor, a few moments
is not a significant amount of time to view the suspect. See
Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (in finding
identification reliable, Supreme Court noted that witness
“looked directly at [the suspect]” for “two to three minutes”);
Biggers, 409 U.S. at 200 (no substantial likelihood of
misidentification where the witness “spent a considerable period
of time with her assailant, up to half an hour”); Rhodes, 42
M.J. at 291 (show-up identification sufficiently reliable in
part because the victim “had about 20 minutes to look at the
perpetrator” during the incident). Therefore, we hold the
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military judge’s analysis of this factor was fairly supported by
the record and did not constitute an abuse of discretion.
B. The Witness’ Degree of Attention
The military judge and the CCA also disagreed over KTB’s
degree of attention to the rider. The military judge concluded
that KTB “did not pay particular attention to the rider’s face”
during their first few encounters and noted that KTB was
panicked and focused on trying to get away during the assault.
The Army court, in contrast, concluded “the rider repeatedly
engaged in actions that drew KTB’s attention to him” and “[s]he
focused her full attention on him five times.” Baker, 2011 CCA
LEXIS 52, at *13, 2011 WL 891345, at *5. Here again the Army
court referenced KTB’s “extended face-to-face close encounter,”
which reflects a continued reliance on its impermissible finding
of fact that KTB had at least one to two minutes to view the
rider’s face at close range. Id. at *14, 2011 WL 891345, at *5.
Evaluating the witness’ degree of attention is relatively
straightforward and a high degree of attention is preferred. In
Rhodes, we held this factor favored the Government when the
witness was “very attentive” during the incident. Rhodes, 42
M.J. at 291. The Supreme Court has considered whether the
witness was a “casual or passing observer” versus a “specially
trained” police officer who would be expected to pay scrupulous
attention to detail. Brathwaite, 432 U.S. at 115. A witness’
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stress or anxiety level can also play a role in their degree of
attention, however courts differ as to whether heightened
anxiety increases attentiveness or reduces the witness’ focus on
the details of the suspect. See United States v. Garcia-
Alvarez, 541 F.3d 8, 14 (1st Cir. 2008) (finding a witness’
degree of attention would be high during traumatic events such
as a robbery and a carjacking); but see Richardson v.
Superintendent of Mid-Orange Correctional Facility, 621 F.3d
196, 204-05 (2d Cir. 2010) (witness may have had a “lack of
focus” on the suspect during a traumatic incident).
The Army court concluded that KTB “focused her full
attention on [the rider] five times, albeit for varying lengths
of time.” Baker, 2011 CCA LEXIS 52, at *13, 2011 WL 891345, at
*5. However, this finding is not reflected in the military
judge’s ruling and cannot be relied upon by either this court or
the Army court in determining whether the military judge abused
his discretion. The record reflects that KTB testified that she
“is normally not focused on the people around her as she walks”
and “[w]ithout her contacts, she can see and recognize people at
close distances of 2 to 3 meters.” Thus, during the first few
encounters with the rider, KTB was merely a “casual or passing
observer” of the type noted in Brathwaite. Only in the last
instance, when the assailant exposed himself to KTB, would she
have been focused on his face and features to any significant
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degree. However, as the military judge noted, KTB “was panicked
and focused on getting away” during that last encounter.
Accordingly, we conclude that the military judge did not abuse
his discretion when he held that KTB’s degree of attention to
the rider was minimal.
C. The Remaining Biggers Factors: Accuracy of the Witness’
Prior Description of the Criminal; Level of Certainty
Demonstrated by the Witness at Confrontation; and Length
of Time Between the Crime and the Confrontation
In regard to the final three Biggers factors, there is no
significant difference between the analysis of the military
judge and that of the Army court. As to the third prong, the
military judge concluded that KTB gave a “somewhat accurate”
description of the accused when he was apprehended and indicated
that her description matched that of the suspect during the
hearing on the motion to reconsider. The Court of Criminal
Appeals also concluded that the description given by KTB matched
the photo of the accused. 2011 CCA LEXIS 52, at *14, 2011 WL
891345, at *5. As to the fourth prong, the military judge and
the Court of Criminal Appeals agreed that KTB had an extremely
high level of certainty in the accuracy of her description. Id.
at *15, 2011 WL 891345, at *5. Finally, as to the fifth prong,
the military judge and the Court of Criminal Appeals also agreed
that there was only a brief lapse of time between the crime and
the confrontation. Id. at *16, 2011 WL 891345, at *5. We find
no errors in these findings and conclusions.
20
United States v. Baker, No. 11-6007/AR
D. Weighing of the Biggers Factors
“Against these factors is to be weighed the corrupting
effect of the suggestive identification itself.” Brathwaite,
432 U.S. at 114. Reviewing courts must determine whether under
the totality of the circumstances the identification was
reliable even though the confrontation procedure was suggestive.
Biggers, 409 U.S. at 199. We consider these guidelines under
the abuse of discretion standard of review required in this
case. As such, our task is to determine whether the military
judge’s findings of fact are clearly erroneous or his
conclusions of law are incorrect. Ayala, 43 M.J. at 298. As
discussed above, the abuse of discretion standard requires “more
than a mere difference of opinion.” White, 69 M.J. at 239. The
military judge’s decision warrants reversal only if it was
“‘arbitrary, fanciful, clearly unreasonable, or clearly
erroneous.’” Id. (quoting Lloyd, 69 M.J. at 89).
Accordingly, we cannot say the military judge abused his
discretion when he held the show-up identification unnecessarily
suggestive. Given the facts found by the military judge and
this court’s and the Supreme Court’s caution over the use of
show-up identifications, the military judge’s conclusion was not
arbitrary or clearly unreasonable. Nor can we find the military
21
United States v. Baker, No. 11-6007/AR
judge’s application of the Biggers factors to the facts of this
case to be clearly erroneous.7
Even if another court may have drawn other findings based
on the evidence, the military judge’s decision cannot be
reversed based on a mere difference of opinion or an
impermissible reinterpretation of the facts by appellate courts.
Further, the Army court’s decision to vacate the military
judge’s ruling was based to a large degree on impermissible
findings of fact.
Finally, the military judge’s decision to suppress the in-
court identification made by KTB was not clearly erroneous.
M.R.E. 321(d)(2) states “if the military judge finds the
evidence of identification inadmissible . . . a later
identification may be admitted if the prosecution proves by
clear and convincing evidence that the later identification is
not the result of the inadmissible identification.” Here the
military judge concluded that KTB’s in-court identification was
7
The dissent suggests that there is “no analysis as to how the
show-up used in this case, on this record, was ‘conducive to a
substantial likelihood of misidentification.’” Baker, __ M.J.
__ (8) (Baker, J. dissenting). However, the military judge’s
ruling evaluated all of the requisite factors for determining
the admissibility of an identification. He recognized that even
though an identification may be unnecessarily suggestive,
“[r]eliability, not procedure, is the constitutionality linchpin
in determining the admissibility of pretrial and in-court
identifications.” While the military judge could have taken
steps to more clearly separate his analysis of the first and
second prongs of the constitutional test, his findings addressed
22
United States v. Baker, No. 11-6007/AR
“significantly impacted by the suggestive close-up photo.”
Again, even if reasonable minds could differ about the
application of the facts to the law, we cannot say that the
military judge’s decision to suppress the identifications was
arbitrary or fanciful.
We find that the Army court erred in finding the military
judge abused his discretion when he granted the defense motion
to suppress the identifications.
Conclusion
The decision of the United States Army Court of Criminal
Appeals is set aside.
both and he evaluated each of the Biggers factors to assess the
reliability of the identification in this case.
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BAKER, Judge, with whom RYAN, Judge, joins (dissenting):
I. SUGGESTIVE IDENTIFICATIONS
In United States v. Rhodes, 42 M.J. 287, 290 (C.A.A.F.
1995), we adopted the two-part test established by the Supreme
Court for assessing suggestive identifications: (1) whether a
pretrial identification was unnecessarily suggestive; and (2) if
the pretrial identification was unnecessarily suggestive,
whether there was a substantial likelihood of misidentification.
Thus, regarding both in-court and out-of-court identifications,
there is a critical relationship between suggestiveness and
misidentification. Neil v. Biggers, 409 U.S. 188, 198 (1972).
Moreover, it is the substantial likelihood of misidentification
that violates the accused’s right to due process, not the
suggestive methodology alone. Id. Conversely, if a lineup is
not suggestive, then under the Rhodes test, the identification
should not be excluded on the grounds of likely
misidentification. As the Supreme Court long ago concluded,
“reliability is the linchpin in determining the admissibility of
identification testimony.” Manson v. Brathwaite, 432 U.S. 98,
114 (1977).
Caution is prudent when addressing a show-up. “Generally,
a showup by its very nature is suggestive” because it can
increase the risk of misidentification. Rhodes, 42 M.J. at 290.
Where, for example, a victim of crime is uncertain as to the
United States v. Baker, No. 11-6007/AR
identity of her assailant, but remembers generic details about
height, weight, and race, there is a risk that a photograph of a
single individual bearing those characteristics will prompt a
victim to “identify” the person in the photograph as the
perpetrator based on generic, and thus unreliable,
characteristics alone. Such a risk is heightened in cases where
law enforcement officials wittingly or unwittingly suggest to
the victim that they have “caught the suspect,” as well as in
situations where the victim wishes to please investigators. The
risk is compounded where a victim is later called upon and
recalls specific details of the perpetrator without discerning
between her original recollection of the suspect and her
subsequent observation of a photograph.
But that is not this case. The victim in this case, Ms. T-
B, did not describe a generic person of African American
descent, which was then validated and reinforced by a specific
photograph. Rather, the victim described an actual person with
distinct and personalized detail. She did so immediately
following her assault. She did so before law enforcement
detained Appellant, and she did so before seeing the up-close
show-up picture of Appellant. In addition, the victim
identified discreet aspects of the accused’s appearance that
were not depicted in the photograph she was shown by German law
enforcement; and did so before seeing the picture. Moreover, as
2
United States v. Baker, No. 11-6007/AR
Appellant’s counsel acknowledged at oral argument, her prior
description of her assailant was accurate in every respect. In
other words, the picture reinforced the victim’s prior
recollection of her assailant; it did not create that
recollection. This was not a situation where the identification
was “all but inevitable under the circumstances.” Biggers, 409
U.S. at 197 (citation and quotation marks omitted). Thus,
whether or not the use of a show-up photo lineup in this case
might be viewed as suggestive, it did not, and could not raise
“‘a very substantial likelihood of irreparable
misidentification.’” Id. at 198 (quoting Simmons v. United
States, 390 U.S. 377, 384 (1968)).
II. ABUSE OF DISCRETION
It is true that a military judge is accorded substantial
discretion regarding factual findings. We have often stated
that “[o]ur standard of review is to ‘give due deference’ to the
judge’s findings of fact and accept them ‘unless unsupported by
the evidence of record or . . . clearly erroneous.’” United
States v. Salazar, 44 M.J. 464, 471 (C.A.A.F. 1996) (alteration
in original) (citation omitted); see also United States v.
Armstrong, 54 M.J. 51, 54 (C.A.A.F. 2000); United States v.
Taylor, 47 M.J. 322, 325 (C.A.A.F. 1997). However substantial
the grant of discretion might be, it is not a blind grant. “[A]
finding is clearly erroneous when although there is evidence to
3
United States v. Baker, No. 11-6007/AR
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.” United States v. Martin, 56 M.J. 97, 106 (C.A.A.F.
2001) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948) (quotation marks omitted). An abuse of this
particular grant of discretion may occur when the trial judge
has considered incorrect factors or has failed to consider
necessary factors. 2 Steven Childress & Martha Davis, Federal
Standards of Review § 7.06, at 7-69 (4th ed. 2010); see, e.g.,
Motor Vehicles Manufacturers Ass’n v. State Farm Ins. Co., 463
U.S. 29, 43 (1983).
In reaching his conclusion that the pretrial and in-court
identifications would be suppressed, the military judge in this
case abused his discretion in three ways. First, the military
judge omitted critical aspects of the victim’s testimony from
his review of the Biggers factors. This testimony was
uncontested and uncontroverted. Thus, it needed to be addressed
in one way or another –- counted or discounted -- especially
where it facially contradicts the military judge’s own
conclusions. For example, in addressing the third Biggers
factor (the accuracy of the witness’s prior description) the
military judge stated “Ms. [T-B], gave a somewhat accurate
description of the accused when he was apprehended -- muscular,
black male, with a slight mustache and wearing bicycle attire .
4
United States v. Baker, No. 11-6007/AR
. . [b]asically . . . a black male, wearing bicycle attire,
riding along [a] trail.” However, the record reflects that Ms.
T-B gave a detailed description of her assailant and it was
accurate in every detail provided. Among other things, she
accurately described the color of his shirt, his pants, the gap
in his teeth, the style of his bike, the nature of his
sunglasses and of his helmet.
By further example, the military judge stated that “No
evidence was presented as to the likelihood of other black males
riding their bikes on this trail.” In fact, the record reflects
that immediately following the incident German police
encountered two separate groups on the bike path each of which
indicated that they had seen a person fitting the victim’s
description and the direction in which he was riding. Neither
group indicated that they had seen any other person fitting that
description.
Thus, if the military judge was correct that the victim’s
description was generic, two groups on the bike path indicated
that there was only one person on the bike path they had seen
who fit that description. Of course, the victim’s description
was not generic, but rather specific, and thus the issue is not
whether there were other black males on the trail, but other
black males fitting the victim’s description of her assailant.
5
United States v. Baker, No. 11-6007/AR
Military judges may differ in how they weigh these
particular factors in light of the totality of the circumstances
without abusing their discretion; however, they are not free to
ignore facts in the record that should inform that analysis.
Second, the military judge abused his discretion by
misapplying the law to the facts and concluding that Ms. T-B
“had minimal opportunity and capacity to view the rider” and
that her “degree of attention on the rider was minimal.” The
record reflects that the victim noticed her assailant repeatedly
while taking her walk, here presented chronologically:
“I saw a bicycle driver pass by on top of the trail.”
“I saw him. He drove by. I was still about 20 to 30 meters
away from the trail.”
“[T]hen I saw this bicycle rider again, and he was doing
something on the bicycle. I was about 20 or 30 or 40 meters
away and I saw him kneeling in front of his bike and doing
something to the bike.”
“I arrived closer to him about 7 or 8 meters away from him, and
then I saw – then he looked at me, and he got back on his bike
and drove away from me.”
“At some point, I saw him again. He was standing next to bushes
next to the trail, and it looked to me as someone being on the
side there and urinating.”
“[T]hen when I arrived closer he turned the face –- his head
towards me and then I passed.”
“I walked on and at some point he drove by me.”
When asked by the trial counsel whether she saw his face, she
responded: Yes, I did.”
6
United States v. Baker, No. 11-6007/AR
“I moved on, and at some point I saw him again in the bushes,
standing in the bushes.”
“I thought he has a weak bladder because he was standing there
again, but when I came closer he turned around. He had his
penis in his hand, and came running towards me and was standing
in front of me.”
“30 or 40 centimeters when he was very close to me.”1
Based on these encounters the victim identified the color of his
attire, the nature of his facial hair, and the gap in his teeth.
In my view, this does not reflect “minimal opportunity” to view
the rider or “minimal” attention on the part of the victim.
Neither, in my view, is this a matter upon which reasonable
1
On an appeal under Article 62, Uniform Code of Military
Justice, 10 U.S.C. § 862 (2006), it is axiomatic that a court of
criminal appeals is bound by the facts found by the military
judge, unless those facts are clearly erroneous. However, that
court is not bound by a military judge’s application of law to
facts. In this case, the parties dispute whether the lower
court found additional facts when it concluded that the victim
observed the accused for “at least one to two minutes” as
opposed to “the few moments” found by the military judge.
United States v. Baker, No. ARMY 20100841, 2011 CCA LEXIS 52, at
*13, 2011 WL 891345, at *4 (A. Ct. Crim. App. Mar. 7, 2011).
The same dispute exists regarding the court’s conclusion that
the victim observed the accused five times as opposed to the
military judge’s finding of four times. Id., 2011 WL 891345, at
*5. In my view, the variance between these “facts” does not
change the analysis. The issue is whether the victim’s
identification of the accused was reliable and whether the show-
up was unreasonably suggestive and conducive to a very
substantial likelihood of misidentification. Here, the critical
“facts” are found in the testimony of the witness herself, not
in the manner in which that testimony was characterized by the
military judge and the Court of Criminal Appeals.
7
United States v. Baker, No. 11-6007/AR
minds might differ, in which case we should defer to the
military judge.2
Finally, the military judge did not follow the structure
contemplated by Rhodes, Biggers, and Brathwaite, for addressing
show-ups that might raise the risk of misidentification. In
particular, after reviewing the Biggers factors the military
judge concluded without more that “the manner in which the photo
identification was conducted was unnecessarily suggestive and
conducive to a substantial likelihood of misidentification.”
The military judge’s conclusion does not indicate why, in this
case and context, the show-up was unreasonably suggestive, aside
from the fact a show-up format was used, especially where the
victim described her perpetrator in unique detail before she was
shown Appellant’s picture and where that description included
unique personal characteristics not depicted in the picture.
More importantly, the military judge’s ruling never
addresses the relationship between suggestiveness and
misidentification. It may be that the Government did not carry
its burden of persuasion on this point, but there is no analysis
2
Thus, the majority’s focus on whether the victim was “a ‘casual
or passing observer’” or a “‘specially trained’ police officer”
is misplaced. United States v. Baker, __ M.J. __ (18) (C.A.A.F.
2011) (quoting Brathwaite, 432 U.S. at 115). The question is
whether the victim had a qualitatively meaningful opportunity to
observe the perpetrator or whether that opportunity was
“minimal” as the military judge concluded. The answer is found
in the victim’s testimony.
8
United States v. Baker, No. 11-6007/AR
as to how the show-up used in this case, on this record, was
“conducive to a substantial likelihood of misidentification.”
In particular, the military judge did not discuss or explain why
a misidentification was likely where the record indicates the
following: police responded immediately to the report of the
incident on the trail; the trail was searched within the hour;
two separate groups on the trail, in addition to the victim, had
seen a person meeting the victim’s description of her assailant
and independently identified the direction the assailant was
biking; neither group identified any other person meeting this
description; the assailant was arrested at the end of the trail
wearing the clothing the victim described; and, the victim
identified unique features of the accused’s face before being
shown the close-up. Whether or not the show-up was suggestive
in this case, the Rhodes/Biggers/Brathwaite rationale requires
that the relationship between suggestiveness and a “substantial
likelihood of misidentification” be drawn. A persuasive
argument might exist, but it is an abuse of discretion to
provide no analysis at all. Therefore, I respectfully dissent.
9