2016 CCA LEXIS 425
A.C.C.A.2016Background
- In June 2013, appellant Hendrix allegedly entered a 10-year-old girl's bedroom and digitally abused her; the victim later reported the offense and identified the assailant as "Austin" to a therapist.
- CID obtained voice recordings from Hendrix, another suspect, three CID agents, and a fourth person; each recited two phrases used by the assailant in three segments and were numbered randomly.
- In March 2014, the victim listened to the recordings at a CID office in Virginia (defense counsel was not present) and, across three segments, selected the numbered voice corresponding to Hendrix multiple times.
- Defense moved to suppress the out-of-court voice identification as (1) unnecessarily suggestive under Mil. R. Evid. 321 and (2) violative of the Sixth Amendment/right to counsel because the identification occurred outside counsel’s presence after charges were preferred.
- The military judge denied the suppression motion (later declined to issue full findings because the government elected not to admit the recordings themselves), and the panel convicted Hendrix at a general court-martial; the Army Court of Criminal Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the voice identification was unreasonably suggestive under Mil. R. Evid. 321 | Government: voice samples were similar and the procedure was proper; identification testimony admissible | Hendrix: lineup-like procedure created substantial likelihood of misidentification and thus was unlawfully suggestive | Court: process was not unnecessarily suggestive; voices were similar and procedure (no request to pick Hendrix specifically) did not create substantial likelihood of irreparable misidentification |
| Whether Hendrix had a Sixth Amendment/right-to-counsel entitlement at the voice-playback identification | Government: playback of recordings to witness is like a photo array; no corporeal lineup occurred so no post-indictment right to counsel attaches | Hendrix: he was compelled to give voice exemplar after preferral and playback to witness outside counsel’s presence violated Mil. R. Evid. 321(2) and the Sixth Amendment | Court: playback of recorded voices is not a "lineup" for Sixth Amendment purposes; akin to photographic display in Ash, so no right to counsel attached |
Key Cases Cited
- United States v. Wade, 388 U.S. 218 (U.S. 1967) (post-indictment corporeal lineup triggers Sixth Amendment right to counsel)
- Gilbert v. California, 388 U.S. 263 (U.S. 1967) (taking of handwriting exemplars not a "critical stage")
- United States v. Ash, 413 U.S. 300 (U.S. 1973) (no Sixth Amendment right to counsel at photographic display)
- Manson v. Brathwaite, 432 U.S. 98 (U.S. 1977) (reliability standard governs admission of identification evidence)
- United States v. Chandler, 17 M.J. 678 (A.C.M.R. 1983) (identification reliability analysis in military context)
- United States v. Akgun, 19 M.J. 770 (A.C.M.R. 1984) (analogous treatment of voice/identification issues)