United States v. Hendrix , 76 M.J. 283 ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Austin L. HENDRIX, Specialist
United States Army, Appellant
No. 16-0731
Crim. App. No. 20140476
Argued March 16, 2017—Decided June 1, 2017
Military Judge: David H. Robertson
For Appellant: Captain Cody Cheek (argued); Colonel Mary
J. Bradley, Lieutenant Colonel Christopher D. Carrier, Ma-
jor Christopher D. Coleman, and Captain Matthew L.
Jaladoni (on brief).
For Appellee: Captain Linda Chavez (argued); Colonel
Mark H. Sydenham, Lieutenant Colonel A. G. Courie III,
and Major Cormac Smith (on brief).
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge ERDMANN, and Judges STUCKY,
RYAN, and SPARKS, joined.
_______________
Judge OHLSON delivered the opinion of the Court.
Contrary to Appellant’s pleas, a general court-martial
with enlisted representation convicted Appellant of one spec-
ification of sexual abuse of a child, in violation of Article
120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920b (2012). Appellant’s adjudged and approved sentence
consisted of confinement for thirty months, a reduction to E-
1, forfeiture of all pay and allowances, and a dishonorable
discharge. The United States Army Court of Criminal Ap-
peals (CCA) affirmed the approved findings and sentence.
See United States v. Hendrix, 75 M.J. 704, 707 (A. Ct. Crim.
App. 2016). We granted review on five issues, but we need
only address the following two issues:1
1 We also granted review as to whether a judge could simulta-
neously sit on the CCA and the United States Court of Military
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
[I]. Whether the military judge abused his dis-
cretion in denying Appellant’s motion to compel an
expert consultant, EP, in the field of audio forensic
science and voice identification.
[II]. Whether the military judge abused his dis-
cretion when he denied a defense motion to sup-
press related to the identification of the Appellant
during a voice lineup.
United States v. Hendrix, 76 M.J. 40, 40–41 (C.A.A.F. 2016).
For the first issue, we conclude that the military judge
did not abuse his discretion because the defense failed to
demonstrate the necessity of having an expert consultant in
the field of audio forensic science and voice identification as-
sist him before trial. For the second issue, we conclude that
the military judge did abuse his discretion because under
the factual circumstances of the instant case, the putative
voice-lineup evidence had no probative value. We further
conclude that this evidence substantially influenced the
members’ findings and thus had a prejudicial effect. Accord-
ingly, we reverse the decision of the United States Army
Court of Criminal Appeals.
I. Background
On June 10, 2013, Appellant and Private First Class
(PFC) BW visited the quarters of Specialist (SPC) PK in
Kaiserslautern, Germany. SPC PK shared this home with
his wife, his ten-year-old daughter (Miss JK), his nine-year-
old daughter, and two infant daughters. Appellant had visit-
ed SPC PK’s home on a few occasions, and PFC BW was a
frequent visitor to the home. During the evening of June 10,
Appellant interacted with Miss JK by braiding her hair, and
Appellant and SPC BW slept overnight at the house.
The following day after school, Miss JK asked her step-
mother whether she had ever been “sexually assaulted.” The
stepmother stated that she had and inquired why Miss JK
Commissions Review (USCMCR). In United States v. Ortiz, we
held that the appellate military judge was statutorily authorized
to sit on the CCA and his presidential appointment to sit on the
USCMCR did not violate the Appointments Clause with regard to
his status on the CCA. 76 M.J. 189 (C.A.A.F. 2017). Therefore, we
resolve this matter in favor of the Government.
2
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
was asking. This prompted Miss JK to tell a story about a
friend’s mother being sexually assaulted the prior night.
Later that afternoon, SPC PK and his wife smelled cigar
smoke in the house and asked their two older daughters who
was responsible. Miss JK and her sister both denied respon-
sibility and began blaming the other. When neither daugh-
ter admitted responsibility, SPC PK “gave them a few
spankings with [his] work belt.” He took a five-minute break
from the first set of spankings. When neither girl would ad-
mit responsibility, he spanked them again until he took an-
other break. These spankings resulted in abrasions and
bruises on Miss JK’s right thigh and hip area and a bruise
on her inner left thigh. During the second or third break
from the spankings, SPC PK’s wife overheard Miss JK tell
her sister to take the blame for lighting the cigar because
Miss JK had been sexually assaulted the night before and
did not want her father to keep hitting her. When SPC PK’s
wife sought clarification, Miss JK was “very hesitant to say
much” and “was very shy about it.” At that time, Miss JK
did not identify Appellant as the perpetrator of the sexual
assault. Instead, Miss JK stated that “she didn’t know who,
but she knew it wasn’t [PFC BW] because she knew his
voice.”
After making this allegation of abuse, Miss JK saw a
sexual assault nurse examiner (SANE) at the emergency
room. Miss JK reported to the SANE multiple times that the
touching of “her private parts” occurred “on top of her
pants.”
The Army Criminal Investigation Command (CID) con-
ducted an investigation into Miss JK’s allegations. CID col-
lected the clothing that Miss JK was wearing on the night of
the alleged assault, including her underwear. A DNA exam-
ination of the underwear revealed that “there was male
DNA there,” but it was only an “inconclusive DNA profile.”
The forensic examiner could not “pinpoint” where the DNA
was found on the underwear, but the profile came from “a
swab of the waistband, inside front panel, as well as inside
crotch” of the underwear. The examiner also could not match
the DNA to Appellant or to any other individual because it
was of “low quality and minute [quantity].”
3
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
CID also spoke with Miss JK about her allegations. Miss
JK reported that: (1) she was “really tired” and did not re-
member much about the incident; (2) she “felt like” it was “a
dream or something;” (3) she was “pretty sure” the incident
was not a dream; and (4) the perpetrator did not pull down
her clothes. Pursuant to questioning by CID, Miss JK even-
tually identified Appellant as the perpetrator through the
process of elimination by stating that PFC BW “didn’t do it,”
her father “wouldn’t do it,” her sister and mother would not
do it, and Appellant “was the only other one” in their house
the night of the incident. Miss JK also informed CID that
she heard Appellant’s voice, but she did not see Appellant’s
face because “it was really dark.”
Following law enforcement’s investigation, the Govern-
ment preferred a charge of sexual abuse of a child against
Appellant. However, the Article 32, UCMJ, 10 U.S.C. § 832(2012), investigating officer determined that Miss JK “did
not provide credible testimony regarding the sexual assault.”
The investigating officer further found that no “reasonable
ground exist[ed] to believe that” Appellant had committed
the offense because there was “no credible evidence to be-
lieve that [Appellant] touched [Miss JK’s] groin area,” and
even if the incident did occur, he was “still not convinced
that [Appellant] is the person that sexually assaulted her.”
The investigating officer noted that Miss JK had only met
Appellant on two other occasions and that “CID never did a
voice [lineup] to confirm whether [Miss JK] could identify
[Appellant’s] voice.” After the Article 32, UCMJ, investiga-
tion was completed, government counsel requested that CID
conduct a voice lineup.
A CID agent in Kaiserslautern, Germany, created voice
recordings to conduct the voice lineup. The agent had never
performed or created a voice-identification procedure before.
Furthermore, the CID office in Germany did not have any
protocols or standard operating procedures for voice identifi-
cations. However, the CID agent believed the procedures for
creating voice lineups were the same as photographic ar-
rays.
The CID agent recorded the voices of six individuals: Ap-
pellant; PFC BW; three CID agents; and a Navy sailor. At
the suppression hearing, defense counsel told the military
4
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
judge that one of the CID agents had a speech impediment
and that the Navy sailor “was picked simply at random” and
had a cough, “sinus issues,” and a Jamaican accent. (Appel-
lant is Caucasian.) The trial counsel did not dispute this
characterization. Although Miss JK only heard the perpetra-
tor speak in a whisper, the CID agent asked each male to
say two sentences—“Is your sister asleep” and “Promise me
you won’t tell anybody”2—at three ascending volume levels:
“a whisper, above a whisper, and [a] normal voice.” The CID
agent then created three voice-identification segments. Each
segment included all six voices being played at each voice
level. The only difference between the segments was the po-
sition of the voices—each voice was played in a different or-
der for the three segments. The CID agent sent the voice-
identification segments to the CID office at Fort Eustis, Vir-
ginia, where SPC PK was then stationed with his family.
On March 7, 2014,—nine months after the alleged sexual
assault occurred—a CID agent conducted the voice lineup
with Miss JK at the Fort Eustis CID office. This CID agent
had never performed a voice lineup, but he, like his counter-
part in Germany, equated it with a photographic identifica-
tion.
To facilitate the voice lineup, the command directed SPC
PK to bring Miss JK to the CID office without explaining the
purpose of the visit. The CID agent then obtained SPC PK’s
consent to perform the voice identification with Miss JK and
directed SPC PK not to interact with Miss JK during the
voice-identification procedure. The CID agent explained the
procedure to Miss JK and asked her “to listen very intently
and [to state whether she] actually … recognized any of the
voices as the alleged offender” after each segment. After
playing the first segment, Miss JK stated that she recog-
nized two out of the six voices as the “pictures she had in her
head of the voices that had touched her wrong.” Miss JK was
“confident” that one of the two voices was that of the perpe-
trator. For the second and third segments, Miss JK did not
“second-guess[] herself” in selecting Appellant’s voice.
2 Miss JK reported that the alleged perpetrator had whispered
these two sentences.
5
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
Following this voice identification, the convening author-
ity referred one charge of sexual abuse of a child to a general
court-martial. Before trial, Appellant sought to suppress
Miss JK’s voice identification and to compel the production
of an expert consultant in the field of audio forensic science
and voice identification.
The military judge conducted an Article 39(a), UCMJ,
10 U.S.C. § 839(a) (2012), hearing on both motions. Appel-
lant’s proposed expert, Mr. EP, testified as an expert in voice
identification at the hearing. He generally noted that whis-
per identifications are less reliable than full voice identifica-
tions. In regard to Appellant’s case, Mr. EP expressed “sev-
eral concerns” with CID’s voice lineup and concluded that it
was “not reliable and … should not be used to prosecute or
convict somebody of a crime.” Following the Article 39(a),
UCMJ, hearing, the military judge summarily denied the
motion to suppress and the motion for an expert consultant.3
At trial, the Government did not admit the voice lineup
itself or the accompanying audio into evidence, but the
court-martial received considerable evidence describing both
the lineup and its results. The Government introduced evi-
dence about the voice identification through three witnesses.
First, trial counsel elicited from Miss JK that she had identi-
fied Appellant’s voice during the lineup. Miss JK testified
that she knew it was Appellant because “he was the only
person in my house who had the girlish voice.” Miss JK tes-
tified that PFC BW, in contrast, had “a scratchy type of
voice.” Second, SPC PK testified that he witnessed the voice
lineup and no one told Miss JK whose voice to identify.
Third, the CID agent who conducted the voice lineup testi-
fied that: (1) Miss JK identified two voices in the first voice
segment and indicated that “these are the faces [she] imag-
3 Four months after trial, the military judge indicated that he
did not have to enter findings of fact or conclusions of law with
respect to each motion because the Government did not admit the
voice lineup or the audio of the voice lineup into evidence. We
agree with the Army Court of Criminal Appeals that the military
judge erred in “tacit[ly] conclu[ding] that the voice-identification
dispute was moot” because “the government did present ample
testimony regarding the procedure and its results.” United States
v. Hendrix, 75 M.J. 704, 706 (A. Ct. Crim. App. 2016).
6
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
ine[d] as being the ones that touched [her] wrong”; and
(2) for the second and third voice segments she chose the
same voice, identifying it as that of the person who “touched
[her] wrong.” The CID agent further indicated that Miss JK
was confident in her identification.
In addition to the voice-identification evidence, both Miss
JK and Appellant testified about the night of the alleged in-
cident. Miss JK testified that on June 10, 2013, she went to
sleep around 8:30 p.m. She, at the age of ten, was taking
sleeping medicine at this time because of sleeping problems.
Miss JK testified that Appellant entered the bedroom and
asked, “Is your sister asleep?” Contrary to her earlier state-
ments, Miss JK testified that she could see Appellant be-
cause the kitchen light was on and her blinds were open,
and described him as having short, blond hair and being as
tall as her father. Miss JK testified that Appellant sat on the
side of her bed and told her that she could trust him. Then,
contrary to her earlier statements that she was inappropri-
ately touched over her clothing, Miss JK testified that Ap-
pellant “pulled down [her] pants and underwear,” placed his
hand on the inside of her underwear, “touched [her] private
area,” and moved “his hand up and down” for approximately
five to ten minutes. After Appellant stopped, he told Miss JK
“not to tell anyone,” pulled her pants up, and left the room.
Appellant testified that he never entered Miss JK’s bedroom
on the night of the incident. Nevertheless, the members con-
victed Appellant of one specification of sexual abuse of a
child.
We will begin by examining whether the military judge
erred in denying an expert consultant before addressing
whether he erred in admitting the voice-identification evi-
dence.
II. Discussion
We review a military judge’s decision denying a request
for an expert consultant for an abuse of discretion. United
States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010). We also re-
view a military judge’s admission of evidence for an abuse of
discretion. United States v. Hills, 75 M.J. 350, 354 (C.A.A.F.
2016). This abuse of discretion standard is “a strict one, call-
ing for more than a mere difference of opinion”—“[t]he chal-
7
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
lenged action must be arbitrary, fanciful, clearly unreasona-
ble, or clearly erroneous.” Lloyd, 69 M.J. at 99 (citation omit-
ted) (internal quotation marks omitted). In this case, the
military judge provided no explanation for his decisions to
deny the expert consultant and to admit the evidence of the
voice identification. Therefore, the military judge’s decisions
are entitled to “less deference.” United States v. Flesher,
73 M.J. 303, 312 (C.A.A.F. 2014).
A. Expert Consultant
We conclude that the military judge did not abuse his
discretion in denying Appellant’s request to have Mr. EP
serve as an expert consultant in the field of audio forensic
science and voice identification. In reaching this conclusion,
we note that regardless of his argument on appeal, Appel-
lant never requested that Mr. EP serve as an expert witness
at trial. Instead, he only sought Mr. EP as an expert con-
sultant.
“An accused is entitled to an expert’s assistance before
trial to aid in the preparation of his defense upon a demon-
stration of necessity.” United States v. Bresnahan, 62 M.J.
137, 143 (C.A.A.F. 2005). To establish necessity, “an accused
must demonstrate something more than a mere possibility of
assistance from a requested expert.” United States v.
Gunkle, 55 M.J. 26, 31 (C.A.A.F. 2001) (citation omitted) (in-
ternal quotation marks omitted). Instead, the accused must
establish a reasonable probability “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. Anderson, 68 M.J. 378, 383 (C.A.A.F. 2010)
(citation omitted). To establish that an expert would be of
assistance, “the accused must show (1) why the expert assis-
tance is needed; (2) what the expert assistance would ac-
complish for the accused; and (3) why the defense counsel
were unable to gather and present the evidence that the ex-
pert assistance would be able to develop.” Id. (citation omit-
ted) (internal quotation marks omitted).
Simply stated, in the instant case, the record reflects
that Appellant failed to meet this burden of demonstrating
necessity. As part of our analysis, we note that Appellant did
receive some assistance from the requested expert when Mr.
8
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
EP testified at the Article 39(a), UCMJ, hearing about defi-
ciencies in the Government’s voice-identification procedure.
In light of this help, Appellant has not shown why additional
expert consultation was needed. Further, the defense had
other scholarly resources available to assist it in defending
against the voice-identification evidence.4 See United States
v. Kelly, 39 M.J. 235, 238 (C.M.A. 1994) (“Defense counsel
are expected to educate themselves to attain competence in
defending an issue presented in a particular case,” including
consulting “a number of primary and secondary materials.”).
Appellant has not shown why these scholarly works, or
works like them, were inadequate to prepare his defense.
Because Appellant failed to make a showing of necessity, we
conclude that the military judge did not abuse his discretion
in denying the motion for an expert consultant in the field of
audio forensic science and voice identification.
B. Voice Identification
We next examine whether the military judge abused his
discretion when he admitted into evidence—over defense ob-
jection—the results of the voice lineup where Miss JK pur-
portedly identified Appellant as her assailant. We conclude
that the voice-identification evidence had no probative value
and that its admission was prejudicial.
Turning first to the question of probative value, we note
that only relevant evidence is admissible at courts-martial.
See Military Rule of Evidence (M.R.E.) 402(a). Evidence that
has no probative value is not relevant and is therefore in-
admissible at trial. See M.R.E. 402(b) (“Irrelevant evidence
is not admissible.”); see also United States v. Clark, 535 F.3d
571, 579–80 (7th Cir. 2008) (holding that evidence with “no
probative force … was properly excluded”).
In certain instances, a voice identification may have
“considerable probative value.” See United States v. Brown,
510 F.3d 57, 69 (1st Cir. 2007). However, the voice-lineup
evidence in Appellant’s case had no probative value as to
4 See, e.g., Jason A. Cantone, “Do You Hear What I Hear?”:
Empirical Research on Earwitness Testimony, 17 Tex. Wesleyan L.
Rev. 123, 126 (2011); Lawrence M. Solan & Peter M. Tiersma,
Hearing Voices: Speaker Identification in Court, 54 Hastings L.J.
373, 380 (2003).
9
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
whether the sexual assault actually occurred, or if the sexu-
al assault did occur, whether Appellant was the person who
perpetrated that assault.
We preliminarily note that it is difficult to discern a le-
gitimate investigative purpose for conducting a voice lineup
in this case after the victim had already identified Appel-
lant—whom she knew from social interactions at her home
on two separate occasions, to include the close personal in-
teraction of having Appellant braid her hair—as the person
who had sexually abused her. Certainly it would be highly
unusual—at a minimum—for law enforcement to conduct a
more traditional visual lineup in a case where a victim al-
ready had identified the perpetrator, the victim was familiar
with the perpetrator from prior social occasions, and the
perpetrator already had been charged with the offense. But
even assuming that the voice lineup in this case was not in-
tended to merely bolster the testimony of Miss JK by dress-
ing up her identification in scientific garb, the lineup was
not conducted in a manner that would assist the trier of fact
in deciding whether or not Appellant perpetrated the report-
ed sexual assault. We reach this conclusion for several rea-
sons.
First, there were flaws in the selection of participants in
the voice lineup. Mr. EP, the voice-identification expert, pre-
sented unrebutted testimony that voice identifications
should “[a]bsolutely” use individuals with similar voices.
And yet, that did not happen here. The CID agent who as-
sembled the voice lineup was a novice with voice identifica-
tions. He selected six individuals without conducting any
screening of voices. This resulted in the selection of one in-
dividual with a speech impediment and another with a Ja-
maican accent. It also led to the CID agent using Appellant’s
“girlish voice” in the same voice segment as PFC BW’s
“scratchy” voice. Indeed, Miss JK recognized the differences
in the voices because she testified that some of the voices
sounded strange and that none of them sounded the same.5
5 We note that the CCA found the “tone, cadence, and volume
of each voice to be remarkably similar to one another.” Hendrix,
75 M.J. at 706. However, this finding is unhelpful because it does
not establish that the voices themselves were similar. This is best
10
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
Second, CID had the individuals who provided the voice
exemplars speak two sentences at a whisper and then, in the
same sound bite, repeat those same sentences at two in-
creasingly louder volumes. The record does not reflect any
legitimate investigatory purpose for this methodology. Fur-
ther, we note that (a) Miss JK only heard the alleged perpe-
trator speak in a whisper so it was unnecessary for her to
hear the louder exemplars, and (b) Miss JK already was fa-
miliar with Appellant’s spoken—rather than whispered—
voice and already had identified him as the perpetrator, so
the three back-to-back repetitions of the two sentences mere-
ly served to taint any purported identification Miss JK could
otherwise have made of the whispered voice she heard on
the night in question.
Third and finally, during the motions hearing, the voice
expert raised a number of legitimate concerns about the
voice lineup employed in Appellant’s case. For example, the
CID agents, who did not have experience with voice lineups,
did not remove Appellant’s voice from the segments that also
included PFC BW’s voice. Additionally, the voice expert ob-
served that Miss JK’s identification was based on memory—
the voice lineup in Virginia occurred nine months after the
alleged sexual abuse occurred in Germany—and indicated
that “[m]emory is not something that serves us well with …
being able to identify somebody through their voice.” In fact,
the voice expert’s concerns led to his unrebutted opinion that
the voice lineup in Appellant’s case was “not reliable.”
Because these circumstances demonstrate that the voice-
lineup evidence had no probative value in this case, we con-
clude that the military judge abused his discretion in admit-
ting it into evidence.6 Accordingly, we next turn our atten-
exemplified by the fact that the tone, volume, and cadence of a fe-
male speaker can also be remarkably similar to the tone, volume,
and cadence of a male speaker.
6 Even if the voice-identification evidence had some minimal
probative value, it was inadmissible under M.R.E. 403 because
this minimal probative value was substantially outweighed by the
misimpression it left on the members about the usefulness and
importance of the voice identification. See M.R.E. 403 (providing
that relevant evidence may be excluded where “its probative value
is substantially outweighed by a danger of unfair prejudice … [or]
11
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
tion to the issue of prejudice. See Article 59(a), UCMJ,
10 U.S.C. § 859(a) (2012).
The erroneous admission of evidence is prejudicial when
it has a substantial influence on the members’ findings.
United States v. Norman, 74 M.J. 144, 150 (C.A.A.F. 2015).
“We evaluate prejudice from an erroneous evidentiary ruling
by weighing (1) the strength of the Government’s case,
(2) the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.
1999). After weighing these factors, we conclude that the
admission of the voice identification substantially influenced
the members’ findings.
In regard to the strength of the Government’s case, we
conclude that it was weak both in regard to whether the in-
cident actually occurred, and if it did occur, whether Appel-
lant was the perpetrator. Turning initially to the question of
whether the sexual abuse actually happened, we begin by
noting that Miss JK was taking sleep medication when the
incident occurred. When discussing the incident with CID,
Miss JK stated that the incident “felt like” it was “a dream
or something” and that she was only “pretty sure” it was not
a dream.
Next, Miss JK used the term “sexual assault” to describe
what happened, and the defense expert in clinical psycholo-
gy, child development, and the treatment of child sexual
abuse victims described this usage as being “extremely ir-
regular for a child” because children do not typically know
what the term “sexual assault” means. During cross-
examination, Miss JK disclosed that she learned about this
term prior to the alleged incident from a public service an-
nouncement on the Armed Forces Network. The defense ex-
pert further testified that it was “odd” that Miss JK altered
“core pieces of” her sexual abuse story because victims ordi-
narily do not change such details.
misleading the members”); cf. Perry v. New Hampshire, 565 U.S.
228, 247 (2012) (noting that “trial judges [may] exclude relevant
evidence if its probative value is substantially outweighed by its
prejudicial impact or potential for misleading the jury”).
12
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
And we finally observe that Miss JK did not divulge her
allegations of sexual abuse until she was seeking a means to
put a stop to the painful physical punishment being inflicted
upon her by her father. When evaluating these aspects of
the trial evidence, we conclude that the Government’s case
was weak with respect to whether the sexual assault even
occurred.
Turning next to the identity of the perpetrator, we also
conclude that the Government’s case was weak. The most
important piece of evidence as to the identity of the perpe-
trator was the erroneously admitted evidence of Miss JK’s
voice identification. Absent the voice identification, the re-
maining evidence demonstrated that Miss JK’s statements
about her ability to see and identify the perpetrator on the
night of the incident varied greatly. Specifically, Miss JK
initially reported that she could not see the perpetrator be-
cause the room was “really dark.” But as time passed, Miss
JK testified that she could see Appellant at the time of the
sexual assault because the kitchen light was on and her
blinds were open. Finally, we note that there was no other
substantial evidence tying Appellant to this reported of-
fense. For example, the male DNA evidence introduced by
the Government at trial was minimal and inconsequential.
We therefore conclude that the Government’s case was weak
on two important facets of the case: whether the incident oc-
curred and whether Appellant was the perpetrator.
Moreover, it is clear from the record that the voice-
identification evidence was vital to the Government’s case.
The Supreme Court has recognized that “identification tes-
timony is significant evidence,” Manson v. Brathwaite,
432 U.S. 98, 113 n.14 (1977) (citation omitted) (internal quo-
tation marks omitted) and, indeed, in the instant case trial
counsel treated Miss JK’s identification evidence as a signif-
icant component of the Government’s case. For example, at a
pretrial hearing, trial counsel described the voice-
identification evidence as “important evidence.” Further,
during opening statement, trial counsel underscored to the
panel members the importance of the identification evidence
by referring to Miss JK’s voice identification as the “last im-
portant detail.” Trial counsel then elicited evidence of the
voice identification through three witnesses. Trial counsel
13
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
finally emphasized the importance of the voice identification
in findings argument by (1) pointing “[m]ost importantly” to
Miss JK’s recognition of Appellant’s voice in explaining why
Appellant was the perpetrator, and (2) defending the voice
identification in rebuttal argument. Trial counsel’s position
with respect to the voice identification demonstrates that it
was important evidence to the Government’s case.
The materiality of the voice-lineup evidence is further
exemplified by the disparate conclusions reached by the in-
vestigating officer and the court-martial panel. At the Arti-
cle 32, UCMJ, hearing, the investigating officer declined to
recommend forwarding the charges under a reasonable
grounds standard. See Rule for Courts-Martial 405(j)(2)(H).
However, at trial, the panel voted to convict despite the
higher standard of proof—beyond a reasonable doubt. See
Article 51(c)(4), UCMJ, 10 U.S.C. § 851(c)(4) (2012). The rec-
ord indicates that the only significant difference between the
evidence presented at the Article 32, UCMJ, hearing and the
trial was Miss JK’s voice identification.7
Based on these circumstances, we decline the appellate
government counsel’s invitation to view the voice-
identification evidence as being entirely inconsequential. In-
stead, we conclude that the erroneous admission of this evi-
dence substantially influenced the members’ findings—and
was therefore prejudicial—because of the Government’s
weak case and the importance of the voice-identification evi-
dence.
7 We further observe that Miss JK’s voice identification was
presented as a definitive identification. Miss JK testified that she
“knew” the voice was Appellant’s because “he was the only person
in [her] house who had the girlish voice.” Also, the CID agent who
conducted the voice lineup described Miss JK as being “absolutely
sure” about her identification. The certainty of the voice identifica-
tion would have been persuasive to the members. See Young v.
Conway, 698 F.3d 69, 88 (2d Cir. 2012) (indicating that “jurors
may also erroneously have relied on certainty [of identification
testimony] as an indicator of accuracy”); United States v. Schiro,
679 F.3d 521, 543 (7th Cir. 2012) (Wood, J., dissenting) (“We can-
not ignore the power that a witness’s claim to be ‘100% sure’ may
have on a jury ….”); cf. Brathwaite, 432 U.S. at 115–16 (identify-
ing the level of certainty of an identification as an indicator of an
accurate identification).
14
United States v. Hendrix, No. 16-0731/AR
Opinion of the Court
III. Decision
For the reasons discussed above, the military judge
abused his discretion in admitting the voice-lineup evidence
over the objection of defense counsel when it had no proba-
tive value and only served to bolster the complainant’s tes-
timony in an otherwise weak case. Therefore, the decision of
the United States Army Court of Criminal Appeals is re-
versed. The findings and sentence are set aside. The record
is returned to the Judge Advocate General of the Army and
a rehearing is authorized.
15