                       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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United States v. Baker, No. 11-6007/AR

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.

                                  3
United States v. Baker, No. 11-6007/AR

     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


                                4
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


                                5
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




                                 6
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.

                                   7
United States v. Baker, No. 11-6007/AR

     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.



                                   8
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.

                                  9
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).



                                10
United States v. Baker, No. 11-6007/AR

                              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.

                                11
United States v. Baker, No. 11-6007/AR

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,



                                 12
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.




                                  13
United States v. Baker, No. 11-6007/AR

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,



                                    14
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.

                                15
United States v. Baker, No. 11-6007/AR

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



                                  16
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



                                17
United States v. Baker, No. 11-6007/AR

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’



                                18
United States v. Baker, No. 11-6007/AR

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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United States v. Baker, No. 11-6007/AR

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.

                               23
United States v. Baker, No. 11-6007/AR


     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
