UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                                RISCH, TOZZI, and BURTON
                                  Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Specialist DURELL J. STEWART
                            United States Army, Appellant

                                      ARMY 20160128

                       Headquarters, 7th Infantry Division
                       Kenneth W. Shahan, Military Judge
            Colonel Robert F. Resnick, Staff Judge Advocate (pretrial)
       Major Christopher T. Franca, Acting Staff Judge Advocate (post-trial)

For Appellant: Captain Joshua B. Fix, JA (argued); Lieutenant Colonel Christopher
D. Carrier, JA; Major Andres Vazquez, Jr., JA; Captain Joshua B. Fix, JA (on brief);
Lieutenant Colonel Christopher D. Carrier, JA; Captain Katherine L. DePaul, JA;
Captain Joshua B. Fix, JA (on reply brief); Lieutenant Colonel Melissa R.
Covolesky; JA; Captain Michael A. Gold, JA.

For Appellee: Captain Jennifer A. Donahue, JA (argued); Colonel Mark H.
Sydenham, JA; Lieutenant Colonel A.G. Courie, III, JA; Major Melissa Dasgupta
Smith, JA; Captain Jennifer A. Donahue, JA (on brief).


                                        25 April 2017

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

RISCH, Chief Judge:

     We hold that the military judge did not err by denying appellant’s motion to
compel production of an expert assistant.

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of making a false official statement, two
specifications of larceny, and one specification of forgery, in violation of Articles
107, 121, and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 921, 923
(2012) [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a bad-conduct discharge, confinement for fifteen months, and reduction
to the grade of E-1.
STEWART–ARMY 20160128

       We have reviewed this case pursuant to Article 66, UCMJ. * Appellant asserts
one assignment of error, which merits discussion but no relief. Appellant argues the
military judge abused his discretion by denying appellant’s motion compelling
production of an expert assistant to help the defense team prepare for appellant’s
court-martial. We find the military judge did not abuse his discretion. Assuming,
arguendo, the military judge did err, his decision did not materially prejudice
appellant’s substantial rights. We have also considered the matters personally
submitted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982); they lack merit.

                                  BACKGROUND

      On 25 March 2015, Mr. BS saw a vehicle listed on Craigslist.com for sale.
Mr. BS called the person listed on the advertisement and met with him in person
twice before purchasing the vehicle. Mr. SG, Mr. BS’s father, accompanied him in
the vehicle to one of the meetings. In total, Mr. BS saw appellant, in person, three
times. The vehicle was later found to be property belonging to Sergeant (SGT) MM,
appellant’s roommate, who was away on temporary duty.

       On 31 March 2015, appellant’s commander and another soldier sent Mr. BS a
photo of appellant and asked if the photo was of the person who had sold him the
vehicle. Mr. BS indicated that it was. On 8 April 2015, Mr. BS and Mr. SG selected
another photograph of appellant from a photo-array prepared by military police
investigators.

       On 27 October 2015, after referral of charges (dated 8 June 2015), appellant
requested the convening authority appoint an expert assistant in the field of
eyewitness identification–to include cross-racial identification. The defense
proffered the expert assistance was necessary because of the importance of the
reliability of the victim’s identifications, the fact that “the accused and alleged
victims were strangers who had only met on two [sic] isolated occasions,” and cross-
racial identification “is more difficult than a same-race identification.” The defense
stated the expert would “explain to us how reliable the victim’s identifications of
SPC Stewart were, what factors or issues could have influenced the identification,
and possibly testify about that reliability at trial.” Defense counsel asserted that
they could not do this alone because they “do not understand the science of
eyewitness identifications” and are “not able to testify.”




*
  Oral argument in this case was heard in Columbia, South Carolina on 25 January
2017 at University of South Carolina School of Law as part of the Outreach Program
of the United States Army Court of Criminal Appeals.

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STEWART–ARMY 20160128

       On 2 November 2015, the convening authority denied the request, and on 10
November 2015, appellant filed a motion for the military judge to compel the
appointment. On 8 December 2015, the day prior to trial, the military judge denied
the request, making the following ruling:

            The photographic lineup will not be admitted into
            evidence by the Government. In that lineup, two
            individuals identified the accused three separate times
            each from eight photographs. The alleged victim in the
            case had between 40-90 minutes of face to face interaction
            with the seller of the vehicle prior to receiving a text
            message photograph of the accused, and prior to the
            photographic lineup. The alleged victim’s father also had
            face to face interaction with the seller of the vehicle,
            though to a lesser extent than did the alleged victim. Prior
            to identifying the accused in a photographic lineup, the
            alleged victim had received a photo of the accused in a
            text message from a third party, asking the alleged victim
            if the individual in the photo was the seller of the vehicle.
            The alleged victim replied that the person in the photo (the
            accused) was the seller of the vehicle. (App. Ex. VI).

            The Court finds the Defense did not establish:

            1) Why the expert assistance is needed. The photographic
            lineup will not be admitted into evidence. The defense
            theory that the text message photo tainted the photo lineup
            and that the photo lineup (and perhaps the text message
            photo) will taint the in-court identification of the accused
            is mere speculation. The Defense’s desire to explore all
            possibilities in this case does not establish a reasonable
            probability that the requested expert would be of
            assistance to the Defense.

            2) What the expert assistance would accomplish. For the
            same reasons explained above, there is no showing of what
            the expert assistance might accomplish for the Defense.

            3) Why the defense is unable to gather and present the
            evidence that the expert assistant would be able to
            develop. This field is not overly complicated or scientific.
            Indeed, from the Defense pleadings it is clear that the
            Defense already has some knowledge of how photographic
            lineups should be conducted, as well as some familiarity
            with the issues of reliable or unreliable identifications.
            The Defense already appears to have sufficient familiarity
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STEWART–ARMY 20160128

             with these areas to conduct an effective cross-examination
             of all witnesses relevant to the identifications of the
             accused, whether out of court or in court.

       The military judge denied the defense’s motion to compel expert assistance.
At trial, Mr. BS and Mr. SG identified appellant as the person who met with them
and sold the stolen vehicle. Appellant now asserts that the military judge erred.

                               LAW AND ANALYSIS

       A military judge’s decision to deny defense’s motion to compel expert
assistance is reviewed for an abuse of discretion. United States v. Lee, 64 M.J. 213,
217 (C.A.A.F. 2006). We find no abuse of discretion by the military judge.

        Employment of experts to assist the defense at government expense is
authorized under Rule for Courts-Martial [hereinafter R.C.M.] 703(d) if the expert is
“relevant and necessary.” An accused is entitled to an expert’s assistance “before
trial to aid in the preparation of his defense upon a demonstration of necessity.” Id.
(quoting United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005)) (additional
citation omitted).

       In requesting expert assistance, the accused has the burden to show both that
“(1) an expert would be of assistance to the defense and (2) that denial of expert
assistance would result in a fundamentally unfair trial.” United States v. Freeman,
65 M.J. 451, 458 (C.A.A.F. 2008); United States v. Gonzalez, 39 M.J. 459, 461
(C.M.A. 1994). The defense has the burden to show there is more than the “mere
possibility of assistance from a requested expert.” Bresnahan, 62 M.J. at 143
(internal citation and quotation marks omitted). The defense must show a
“reasonable probability” the expert would assist the defense and that denial of the
expert would result in an unfair trial. Id.

                     A. How an Expert Would Assist the Defense

       Appellant’s burden to show an expert would be of assistance to the defense
involves three prongs: “(1) why the expert assistance is needed; (2) what the expert
assistance would accomplish for the accused; and (3) why the defense counsel were
unable to gather and present the evidence that the expert assistance would be able to
develop.” Id. (internal citations omitted). The military judge found appellant did
not prevail on any of these three prongs.

       Appellant argues that this case presents an unusual fact pattern that tainted the
in-court identification of the appellant—the government’s main witnesses were sent
a digital photograph of appellant under suggestive circumstances, and were later
asked to pick a photograph out of a photo array constructed by military police. We
find appellant’s argument unpersuasive for the reasons that follow.

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STEWART–ARMY 20160128

                      1. Why the Expert Assistance was Needed

       The military judge conducted the proper inquiry. The defense counsel failed
to establish why the expert assistance was needed given that the photographic lineup
was not admitted into evidence. The military judge did not abuse his discretion in
finding the defense theory--that the text message photo tainted the photo lineup and
in-court identification of the accused--was mere speculation. The defense proffered
no theory that was persuasive enough to conclude the military judge abused his
discretion.
              2. What the Expert Assistance Would have Accomplished

       The defense also could not show what an expert would accomplish. This was
not a case in which eyewitnesses only had a split second, under duress, to observe an
assailant or where a witness’s view was partially obscured thus calling identification
into question and requiring expert assistance. People v. McDonald, 37 Cal. 3d 351
(Cal. 1984). Quite the opposite occurred here. Two witnesses, under no apparent
stress, spent significant time with appellant on three separate occasions. They were
then able to identify appellant. Even assuming the pre-trial identification of
appellant was suggestive, we must determine whether under the “totality of the
circumstances” the identification was reliable. Neil v. Biggers, 409 U.S. 188, 199
(1972). Biggers sets out five factors to consider in determining the validity of an
eyewitness identification. The factors include: the “the opportunity of the witness
to view the criminal at the time of the crime; the witnesses’ 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.” Id. at 199-200.

       Here, Mr. BS and Mr. SG had more than ample opportunity to view appellant
at the time of the crime. They had between forty and ninety minutes of interaction
with the appellant, including face-to-face discussions in broad daylight. There was
no duress or stress involved with the eyewitness interactions with appellant. The
witnesses were paying attention to appellant as they were considering purchasing a
vehicle from him. Both Mr. BS and Mr. SG identified appellant at trial without
hesitation. Finally, the length of time between the eyewitness interactions with
appellant and their confrontation at trial was not inordinate, as it was less than nine
months from the first interaction to the date of trial.

       Under the totality of the circumstances the Biggers factors weigh in favor of
the government. The defense did not establish how an expert would assist in
assessing the reliability of the witnesses in this case. Additionally, given that this
was a judge alone trial, there is limited concern that the military judge gave the in-
court identification undue weight.




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STEWART–ARMY 20160128

 3. Why Defense Counsel were Unable to Gather and Present the Evidence that the
              Expert Assistance Would have been able to Develop

       Defense counsel did not establish why they were unable to gather and present
the evidence that the expert assistance would be able to develop. Lee, 64 M.J. at
217. Defense counsel are “expected to educate themselves to attain competence in
defending an issue presented in a particular case, using a number of primary and
secondary materials that are readily available.” United States v. Short, 50 M.J. 370,
373 (C.A.A.F. 1999) (internal quotation marks and citation omitted). “Due process
requires that the accused be given the ‘basic tools’ necessary to present a defense,
but defense counsel is responsible for doing his or her homework.” Id. Here,
appellant was given the basic tools. The military judge did not abuse his discretion
by finding that defense counsel appeared to have the requisite knowledge necessary
to address the pitfalls of eyewitness identification. In fact, from defense’s motion to
compel, it appeared that counsel clearly understood the weaknesses of identification,
and had the requisite knowledge to prepare a defense strategy.

     B. How an Expert’s Denial Would Result in a Fundamentally Unfair Trial

       We hold that the military judge did not abuse his discretion in ruling that
appellant failed to make an adequate showing of the necessity for the expert
assistant. Assuming, arguendo, there was an abuse of discretion by the military
judge we find appellant was not prejudiced by the military judge’s ruling and that
appellant received a fundamentally fair trial. Other evidence corroborated the
eyewitness identifications and proved appellant’s guilt beyond a reasonable doubt.
Appellant had access to the barracks room he shared with the owner of the vehicle
and, thus, the car keys. Even more telling, the phone number from the
Craigslist.com website, initially used by the victim, Mr. BS, to inquire about the
purchase of the vehicle, belonged to the appellant’s fiancée. Contrary to assertions
by appellant, the identification is not the only key and material fact in this case.

                                   CONCLUSION

       The military judge did not abuse his discretion in denying appellant’s motion
to compel production of an expert assistant. The findings and sentence as adjudged
by the convening authority are AFFIRMED.

      Senior Judge TOZZI and Judge BURTON concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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