United States v. BakerUnited States v. Baker
Lead Opinion
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, 10 U.S.C. § 862. The Army court granted the Government’s motion to vacate the military judge’s ruling. United States v. Baker, No. ARMY Misc. 20100841,
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,
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:
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 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 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 1$ hours after her encounter with the rider on the trail,*286 [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 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,
The military judge concluded “the manner in which the photo identification was conducted was unnecessarily suggestive and conducive to a substantial likelihood of misidentifi-eation.” 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 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, 10 U.S.C. 839(a) 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:
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.”
*287 “[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.”
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,
[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.
Id. at *13,
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,
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 issue
Standard of Review
The standard of review we apply in this ease 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,
When reviewing matters under Article 62(b), UCMJ, the lower court may act
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,
Both the military judge and the Army Court of Criminal Appeals appear to have proceeded directly to an analysis of the Big-gers factors.
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,
“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 misiden-tification is gratuitous.” Biggers,
Weighing the evidence in the light most favorable to the prevailing party, the military
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,
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.”
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,
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.
The military judge concluded that KTB had only “minimal opportunity and capacity to view the rider” because “[ojther 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 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,
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,
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,
The Army court concluded that KTB “focused her full attention on [the rider] five times, albeit for varying lengths of time.” Baker,
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.
D. Weighing of the Biggers Factors
“Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Brathwaite,
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 judge’s applica
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 “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.
Notes
. 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,
. 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,
. These findings are paraphrased from the record except where quotations are used.
. See supra note 1.
. 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,
. 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.
. 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,
Dissenting Opinion
with whom RYAN, Judge, joins (dissenting):
I. SUGGESTIVE IDENTIFICATIONS
In United States v. Rhodes,
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,
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 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,
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,
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 ... [b]asieally ... 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
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.
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.”
“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 minds might differ, in which case we should defer to the military judge.
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 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.
. 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. Baiter, No. ARMY 20100841,
. 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,