UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                        CAMPANELLA, HERRING, and PENLAND
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Specialist AUSTIN L. HENDRIX
                          United States Army, Appellant

                                   ARMY 20140476

                 Headquarters, 21st Theater Sustainment Command
                       David H. Robertson, Military Judge
                  Colonel Jonathan A. Kent, Staff Judge Advocate

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major Christopher D.
Coleman, JA; Captain Jennifer K. Beerman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Steven J. Collins, JA; Captain Linda Chavez, JA (on brief).


                                      18 July 2016

                              -----------------------------------
                                OPINION OF THE COURT
                              -----------------------------------

PENLAND, Judge:

       A panel with enlisted representation sitting as a general court-martial
convicted appellant, contrary to his plea, of one specification of sexual abuse of a
child, in violation of Article 120b, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. § 920b (2012). The panel sentenced appellant to be discharged
with a dishonorable discharge, to be confined for thirty months, to forfeit all pay and
allowances, and to be reduced to the grade of E-1. The convening authority
approved the adjudged sentence.

      We review this case under Article 66, UCMJ. Appellant raises two
assignments of error, one of which merits discussion but no relief. We have
considered matters personally submitted pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982); they lack merit.
HENDRIX—ARMY 20140476

      We hold the military judge did not err when he denied the defense motion to
suppress evidence of the victim’s identification of appellant during an Army-
administered voice identification procedure. 1

                                  BACKGROUND

       On 10 June 2013, appellant and Private First Class (PFC) BW visited a fellow
soldier, Specialist (SPC) PK, and his family at SPC PK’s quarters in Germany. In
the early evening hours, SPC PK’s ten year-old daughter, JK, retired to her bedroom.
As she tried to fall asleep, a person whom she later identified as appellant entered
her room, sat down on her bed, and rubbed her vulva with his fingers for five to ten
minutes. JK was unable to see appellant’s face in the darkness, but he spoke to her,
asking, “Is your sister asleep?” He also said, “Promise me you won’t tell anybody.”
The next day, JK reported the sexual abuse and a law enforcement investigation
began.

      JK moved stateside with her family soon after and began to receive trauma
counseling. Within the first two or three sessions, JK told her therapist “Austin”
was the person who sexually abused her.

       After the Article 32 investigation, government counsel requested U.S. Army
Criminal Investigation Command (CID) present JK with a “voice lineup.” CID
officials in Germany obtained voice recordings from appellant, PFC BW, three CID
agents, and a fourth person unrelated to the case. These six voices were recorded,
saying in three ascending volume levels: “Is your sister asleep?” and “Promise me
you won’t tell anybody.” Each person’s voice was randomly assigned a number.
The six voices were arrayed into three uniquely-ordered “segments” and numbered
differently in each segment.

       In March 2014, JK listened to the voice recordings at a CID office in Virginia.
She was not informed of the speakers’ identities. After the first segment, JK
indicated numbers three (SA NZ) and four (appellant) sounded like the man who
sexually abused her. After the second segment, she identified number two
(appellant) as the abuser’s voice. After listening to the third segment, JK identified
number six (appellant) as the abuser’s voice.


1
  The parties refer to this procedure as a “voice lineup.” This term is somewhat
colloquial and should be avoided, for it invites confusion over applicable legal
protections. In the context of criminal procedure, a “lineup” is the law-enforcement
technique of having a witness attempt to identify a single person of interest from
multiple persons compelled to simultaneously present themselves before the witness.
Whereas this case involves the identification of a voice from a recording. As
discussed infra whether an identification is a “line up” is critical to determining
whether there is an accordant right to counsel.


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HENDRIX—ARMY 20140476

       Defense counsel was present when CID agents obtained the voice recordings
from appellant and the others. However, despite defense counsels’ efforts to attend
the voice identification, a CID agent conducted this procedure without them.

      Before trial, the defense moved the court to suppress the voice identification
for two reasons. First citing, inter alia, Military Rule of Evidence [hereinafter Mil.
R. Evid.] 321, defense counsel argued the process was “unnecessarily suggestive”
and “conducive to irreparable mistaken identification.” Second, citing Mil. R. Evid.
321 and multiple United States Supreme Court cases, the defense counsel argued
appellant’s Sixth Amendment right to counsel was violated when the voice
recordings were played for JK’s review outside defense counsel’s presence.

       After an Article 39(a) session, the military judge summarily denied the motion
but informed the parties that he reserved “the right to supplement [his] rulings with
essential findings of fact and conclusions of law at a later date.” At trial, the
government called the CID agent who conducted the voice identification with JK in
Virginia. The agent described the procedure he followed, and he described JK’s
multiple identifications of a numbered voice. However, the military judge sustained
the defense objection to the government’s attempt to introduce investigative
documents which associated appellant’s name with the voice which she identified.
After trial, the military judge issued a “Court Ruling on Defense Motion to Compel
Witnesses and Suppress Voice Line-Up”:

             [T]he Government elected not to admit the voice lineup into
             evidence. Therefore, the Court will not issue findings of
             fact and conclusions of law as it relates to its ruling on the
             motion to suppress this voice lineup.

                                     ANALYSIS

       We disagree with the military judge’s tacit conclusion that the voice
identification dispute was moot. While the government did not admit the voice
identification per se—for example, the voice exemplars were not offered or
admitted—the government did present ample testimony regarding the procedure and
its results. Though we afford little deference to the military judge’s ruling in light
of his decision not to provide findings of fact and conclusions of law, we
nonetheless conclude he did not err in denying the motion. We address appellant’s
two complaints regarding the out-of-court identification seriatim.

                 A. Unnecessarily Suggestive Pretrial Identification

       Mil. R. Evid. 321(b)(1) provides an exclusionary rule against an
“identification [that] is the result of an unlawful lineup or other unlawful
identification process . . . conducted by the United States or other domestic



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authorities.” The rule first defines “unlawful” as an “identification process [which],
is so suggestive as to create a substantial likelihood of misidentification.” Mil. R.
Evid. 321(c)(1).

       To determine whether the process violated these rules, we must examine the
factual circumstances surrounding JK’s voice identification. The voice recordings
were part of an appellate exhibit submitted to the military judge during the pretrial
motion session, and the defense stated it had no objection to his considering them in
deciding the motion. Upon listening to the recordings, we find as a matter of fact
that the tone, cadence, and volume of each voice to be remarkably similar to one
another. 2 Turning to the session during which the recordings were played for JK’s
review, we also find the following based on the evidence at trial and the pre-trial
motion session: JK was summoned to the CID office in Virginia without prior
knowledge that she would be asked to identify her assailant’s voice; JK was not
allowed to consult anyone else while listening to the recordings; JK was not asked to
identify appellant–instead, she was asked whether she recognized any of the voices
as her abuser’s. Based on the foregoing, we conclude the voice identification
process was neither unnecessarily suggestive nor conducive to “a substantial
likelihood of irreparable misidentification.” United States v. Chandler, 17 M.J. 678,
681 (A.C.M.R. 1983) (citing Manson v. Brathwaite, 432 U.S. 98, 107 (1977)).

                     B. Right to Counsel at Voice Identification

       Appellant argued both at trial and on appeal that the government violated the
Sixth Amendment and Mil. R. Evid. 321 by conducting the voice identification
session with JK outside the presence of his counsel. While we resolve this matter
against appellant, the issue’s importance, and somewhat infrequent treatment, cause
us to decide this case in precedential form.

      Beyond its first definition of unlawful, supra, Mil. R. Evid. 321(2) provides:

             (2) In Violation of Right to Counsel. A lineup is unlawful
             if it is conducted in violation of the accused’s right to
             counsel:

             (A) Military lineups. An accused or suspect is entitled to
             counsel if, after preferral of charges or imposition of
             pretrial restraint under R.C.M. 304 for the offense under
             investigation, the accused is required by persons subject to


2
 Article 66(c), UCMJ provides us with the authority “to determine controverted
questions of fact.”




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HENDRIX—ARMY 20140476

                the code or their agents to a lineup for the purpose of
                identification. . . . 3

(emphasis added.).

      This rule mirrors the Sixth Amendment right to counsel at post-indictment
lineups. See United States v. Wade, 388 U.S. 218 (1967). The rule does not define
“lineup,” a fact noted in the drafter’s analysis of its previous version. Manual for
Courts-Martial, United States (2012 ed.), Appendix 22-32. We agree with the
analysts’ remark, “recourse to case law is necessary.” Id. We need look no farther
than Wade and United States v. Ash, 413 U.S. 300 (1973).

       In Ash, the U.S. Supreme Court held that the Sixth Amendment does not grant
the right to counsel at a post-indictment photographic display conducted by the
government to allow a witness to identify an offender. (Id. at 301, 321). The Court
explained, “our cases have construed the Sixth Amendment guarantee to apply to
‘critical’ stages of the proceedings” in a modern criminal prosecution, such as a
preliminary hearing or when entering pleas because there, counsel’s assistance is
meaningful. Id. at 309-11. Examples of “one-sided confrontation between
prosecuting authorities and the uncounseled defendant,” which were not “critical”
include collecting fingerprints, hair, clothing, and other blood samples. Id. (citing
Wade 388 U.S. at 227-28). Additionally, the Court pointed out its holding in Gilbert
v. California, 388 U.S. 263, 267 (1967), that “the taking of handwriting exemplars
did not constitute a ‘critical stage.’” Ash at 319, n. 10.

       Based on these cases, we conclude that a lineup involves the corporeal
presence of an accused before government witnesses. We recognize appellant was
compelled to present himself to CID authorities in order to speak–in a non-
testimonial way–so a recording could be made of his voice. When appellant was
ordered to provide this recording, counsel was present. However, the playback of his
and others’ recorded voices to JK outside his presence under the circumstances of
this case was not a lineup for purposes of the Sixth Amendment. Instead, this event
was akin to a photo array, as in Ash, and appellant was not entitled to his counsel’s
presence under either Mil. R. Evid. 321 or the Sixth Amendment. See also United
States v. Akgun, 19 M.J. 770, 771 (A.C.M.R. 1984) (affirmed on other grounds by
Akgun, 24 M.J. 434 (C.M.A. 1987)).




3
    Neither party disputes that the voice identification occurred after preferral.


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                              CONCLUSION

    The findings of guilty and sentence are AFFIRMED.

    Senior Judge CAMPANELLA and Judge HERRING concur.


                                  FOR THE COURT:
                                   FOR THE COURT:




                                  MALCOLM H. SQUIRES, JR.
                                  MALCOLM    H. SQUIRES. JR
                                  Clerk of Court




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