State v. Bowdrey , 438 P.3d 946 ( 2019 )


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    2019 UT App 3
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    KENNETH MORRIS BOWDREY,
    Appellant.
    Opinion
    No. 20170033-CA
    Filed January 10, 2019
    Third District Court, Salt Lake Department
    The Honorable Mark S. Kouris
    No. 161905902
    Teresa L. Welch, Brenda M. Viera, and Tessa Hansen,
    Attorneys for Appellant
    Sean D. Reyes and Jonathan S. Bauer, Attorneys
    for Appellee
    JUDGE DAVID N. MORTENSEN authored this Opinion, in which
    JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
    MORTENSEN, Judge:
    ¶1     In short, this is not a Long case. 1 A police officer (Officer),
    using a spotting scope in a surveillance operation to detect drug
    1. See State v. Long, 
    721 P.2d 483
     (Utah 1986). In Long, the Utah
    Supreme Court stated that “trial courts shall give [a cautionary]
    instruction [to apprise the jury of the limitations of eyewitness
    identification] whenever eyewitness identification is a central
    issue in a case and such an instruction is requested by the
    defense.” Id. at 492. The holding in Long was modified by State v.
    Clopten, 
    2009 UT 84
    , 
    223 P.3d 1103
    , to grant trial judges
    discretion when deciding whether to give a cautionary
    (continued…)
    State v. Bowdrey
    dealing, directed other officers (the Arrest Team) via police radio
    to detain Kenneth Bowdrey. Officer then joined the Arrest Team
    and confirmed that his colleagues had apprehended the correct
    suspect. Bowdrey argued that Officer’s post-surveillance
    confirmation entitled him to a cautionary jury instruction—a
    Long instruction—about the limitations of eyewitness
    identification. The trial court denied his request. Bowdrey now
    appeals his conviction for drug distribution. We affirm.
    BACKGROUND
    The Arrest
    ¶2     Around 10:00 p.m. on May 27, 2016, Officer was
    conducting surveillance of possible drug dealing near Salt Lake
    City’s homeless shelter. In a concealed location about one
    hundred yards away, Officer used a spotting scope to observe
    the area near the shelter. The scope was not equipped with a
    recorder or night vision, but Officer reported he could see the
    area “very well” because he had an unobstructed view and the
    area around the shelter was “very well-lit . . . even at nighttime.”
    His view of the area was interrupted only by the passing of an
    occasional light rail commuter train. Officer was accompanied
    by a new recruit, whom he was training. The recruit used her
    own spotting scope, and she and Officer discussed their
    observations.
    ¶3     After watching the area through his scope for about thirty
    minutes, Officer observed three men conducting what appeared
    to be drug transactions. Two of the men (the Sellers) spit items
    (…continued)
    instruction in cases where testimony of an eyewitness expert is
    heard. Id. ¶ 34.
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    State v. Bowdrey
    out of their mouths after people gave them cash. Officer
    observed the Sellers conduct about ten such transactions each.
    Officer stated that the Sellers’ behavior was consistent with his
    knowledge of drug dealing practice. Officer explained that after
    a buyer gives a seller cash, the seller proceeds to spit twists 2 and
    hands over the drugs to the buyer. Drug sellers often work with
    a “holder.” According to Officer, a holder stays at a distance
    from the sellers and retains the bulk of the drug inventory, while
    the sellers conceal small quantities of twists in their mouths as
    they conduct sales. Officer explained that sellers use this method
    so that they can swallow or spit out the drugs if approached by
    police officers.
    ¶4     Officer observed the Sellers approach a holder two times
    each between sales. Officer reported that the holder would take a
    pill bottle out of his jacket; the Sellers would receive the bottle,
    transfer its contents to their mouths, and then continue selling
    drugs. Officer noted that the holder appeared to be smoking a
    crack pipe when he was not resupplying the Sellers. Officer
    described the holder as a “tall black male approximately 50 years
    old who was wearing a red backpack.”
    ¶5     Officer radioed the Arrest Team to stop the three men he
    had been observing, namely the Sellers and the holder. The
    Sellers ran when the Arrest Team approached them, but they
    were stopped about forty feet from where the holder was
    detained. The holder did not run when the Arrest Team
    approached him. Officer continued to watch through his scope
    as the Arrest Team detained the holder. Officer informed the
    2. According to officer, a “twist” is a method of prepackaging an
    individual dose of illegal drugs in several layers of plastic wrap.
    White twists contain crack cocaine and black twists contain
    heroin. The drugs typically are wrapped in plastic at an off-site
    location for sale on the street.
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    State v. Bowdrey
    Arrest Team members that they had “the right person at the time
    they made the initial stop.”
    ¶6     After the three suspects were in custody, Officer left his
    place of concealment and joined the Arrest Team. Once there,
    Officer confirmed that the Arrest Team had detained the holder
    he had been watching. Officer stated that he “didn’t further
    identify [the holder], because [Officer had] already done that.
    They held—detained him until [Officer] arrived on the scene.”
    ¶7     The holder was identified as Bowdrey. Bowdrey had a
    crack pipe when the Arrest Team approached him. A search of
    Bowdrey, conducted by Officer, revealed a pill bottle inside a
    sock in Bowdrey’s jacket. The pill bottle contained about thirty
    black and white twists of heroin and cocaine. The Sellers
    detained along with Bowdrey did not have any drugs on them at
    the time, but each had a substantial amount of cash.
    Proceedings at Trial
    ¶8      The State charged Bowdrey with two felony counts of
    possession of a controlled substance with the intent to distribute
    and one misdemeanor count of possession of drug
    paraphernalia. Officer, the recruit, and members of the Arrest
    Team testified at trial about the events leading up to Bowdrey’s
    arrest.
    ¶9     At the close of the State’s case, Bowdrey requested a Long
    instruction on the reliability of eyewitness identification.
    Bowdrey argued that Officer’s confirmation to the Arrest Team
    members that they had apprehended the suspected holder
    constituted an eyewitness identification. Bowdrey did not argue
    that the request for the Long instruction was related to Officer’s
    observation of Bowdrey while Officer conducted surveillance;
    rather the members of the Arrest Team “were waiting for
    [Officer] to come and confirm that this was the person. And that
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    State v. Bowdrey
    certainly does make an identification by Officer . . . and that does
    qualify under the Long instruction, that he’s making
    identification.” Thus, Bowdrey asserted that he was entitled to a
    Long instruction because Officer identified Bowdrey as the
    correctly apprehended holder after Officer had left his position
    of concealment and joined the Arrest Team. The State opposed
    Bowdrey’s request, arguing that Officer’s confirmation to the
    Arrest Team was not an after-the-fact identification like the one
    contemplated in Long; rather, “[t]his is a case where the officer
    saw someone engaging in conduct, saw the person arrested, that
    person remained in custody, [and] that person was then booked
    into jail.” The trial court agreed with the State and denied
    Bowdrey’s request.
    ¶10 Bowdrey then testified at trial. He stated that he had been
    living at a homeless shelter and worked odd jobs, getting paid in
    cash under the table. He used his money to buy cigarettes, beer,
    and crack cocaine. He testified that on the night he was arrested,
    he had finished smoking cocaine at his preferred spot in the
    neighborhood and was making his way toward the homeless
    shelter, where he planned to sleep. On his way there, Bowdrey
    stated that he saw “somebody throw something in the garbage
    can.” Intrigued and thinking it might be money, Bowdrey said
    he retrieved the item and put it in his pocket. The item turned
    out to be a sock. Bowdrey explained, “Every time I see . . . a sock,
    I’m picking it up because . . . [n]ot too long ago I found $200.”
    But Bowdrey stated that he did not immediately open the sock to
    investigate its contents owing to the police presence in the area
    and not wanting to call attention to himself. After smoking some
    cocaine with a friend he met along the way, Bowdrey was
    apprehended by the Arrest Team. At trial, Bowdrey’s counsel
    summed up his argument in these terms: “Mr. Bowdrey is here
    today to tell you . . . that well, yes, he was there and, yes, he did
    have a crack pipe, but he was not selling. He was not working
    20170033-CA                      5                  
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    State v. Bowdrey
    with anyone to sell, and . . . that was simply, quite frankly, a
    wrong place, wrong time for him.”
    ¶11 After Bowdrey testified, the State recalled Officer to ask if
    it was possible that the Arrest Team “stopped the wrong guy.”
    Officer responded, “Absolutely not. . . . Mr. Bowdrey was the
    key to our case. So I was watching the whole time. If we didn’t
    get the holder with the drugs, we would have just had two other
    guys holding cash . . . . I was watching the whole time as . . . [the
    Arrest Team] did the takedowns. So I made sure they got the
    right guy.”
    ¶12 The jury convicted Bowdrey of all three charges. Bowdrey
    appeals.
    ISSUE AND STANDARD OF REVIEW
    ¶13 The issue before this court is whether the trial court erred
    in refusing to grant Bowdrey’s requested Long instruction.
    “Whether the trial court erred in not giving a cautionary
    eyewitness instruction to the jury is a question of law which we
    review for correctness, giving no deference to the trial court’s
    conclusions.” State v. Snyder, 
    932 P.2d 120
    , 125 (Utah Ct. App.
    1997).
    ANALYSIS
    ¶14 Trial courts are required to give a cautionary instruction
    to a jury “whenever eyewitness identification is a central issue in
    a case and such an instruction is requested by the defense.” State
    v. Long, 
    721 P.2d 483
    , 492 (Utah 1986). Bowdrey argues that Long
    required the trial court to give the jury a cautionary instruction
    about the limitations of eyewitness testimony, because
    (1) Bowdrey requested it and (2) Officer’s identification of
    Bowdrey to the Arrest Team constituted a central issue in the
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    State v. Bowdrey
    case. We disagree. Although it is clear that Bowdrey requested
    the Long instruction, we do not consider Officer’s confirmation
    to Arrest Team members that they had apprehended the correct
    suspect “a central issue” as contemplated in Long. And when
    eyewitness identification is not a central issue, the trial “court
    retains significant discretionary authority to refuse to submit
    such an instruction to the jury.” State v. Robertson, 
    2005 UT App 419
    , ¶ 12, 
    122 P.3d 895
    .
    ¶15 Officer made a continuous, real-time observation of
    Bowdrey as he engaged in selling drugs and was subsequently
    detained by the Arrest Team. Officer’s post-surveillance
    confirmation that Bowdrey was the holder was not an
    identification as contemplated in Long, because Long addressed
    the problem of the reliability of eyewitness identifications based
    on the “process of perceiving events and remembering them.”
    Long, 721 P.2d at 488 (emphasis added). Indeed, the Long court
    describes at some length the weaknesses of the “memory
    process” as justification for its decision, noting that numerous
    “studies all lead inexorably to the conclusion that human
    perception is inexact and that human memory is both limited
    and fallible.” Id. at 488–91.
    ¶16 Thus, eyewitness identification based on memory is the
    key factor in Long and its progeny. In Long, the witness failed to
    pick out the defendant from a photo lineup three days after an
    assault but later identified him at a preliminary hearing and
    during trial. Id. at 484. Cases applying Long also involve
    identifications made from memory after the perceived event. For
    example, in State v. Clopten, 
    2009 UT 84
    , 
    223 P.3d 1103
    , the
    identification occurred after a shooting in a “show up” and in a
    photo array. 
    Id.
     ¶¶ 45–46. Additionally, in State v. Maestas, 
    1999 UT 32
    , 
    984 P.2d 376
    , the victim identified suspects after a
    robbery in a show up situation. Id. ¶ 8. Further, in State v. Snyder,
    
    932 P.2d 120
     (Utah Ct. App. 1997), two girls made identifications
    three years after the defendant allegedly exposed himself to
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    State v. Bowdrey
    them. 
    Id. at 122, 124
    . Long and its progeny all share in common
    eyewitness identifications based on memory and made after—
    sometimes years after—the incident in question.
    ¶17 Put succinctly, the facts surrounding Officer’s
    identification of Bowdrey as the suspected drug holder do not
    match the pattern established by Long and its progeny. The
    difference between this case and the Long precedent is that
    Officer’s identification was not memory-based. Although Officer
    made an in-person confirmation to the Arrest Team that
    Bowdrey was correctly detained, Officer had already identified
    Bowdrey in real-time (1) participating in a drug selling operation
    and (2) being detained. Officer testified that he identified
    Bowdrey by “keeping [his] eyes on him the entire time.” Officer
    was able to identify Bowdrey “because [he] saw [Bowdrey]
    taken into custody through [his] spotting scope.” Thus, Officer’s
    contemporaneous identification of Bowdrey during the
    surveillance period was not memory-based; rather it was the
    result of direct observation of Bowdrey over a period of thirty
    minutes—as he supplied drugs to the Sellers and up to the
    moment of his detention.
    ¶18 Even though Officer testified that he “actually watched
    [the Arrest Team] take [Bowdrey] down,” Bowdrey still argues
    that he is entitled to a Long instruction because Officer came
    “onto the scene” to “confirm” that Bowdrey was the correct
    individual to detain. But Bowdrey misapplies Long when he
    argues that Officer’s confirmation to the Arrest Team constituted
    an identification. The key fact is that Officer already identified
    Bowdrey in real-time as he directed the Arrest Team to
    apprehend Bowdrey. At no point in the sequence of events
    leading to Bowdrey’s detention did Officer’s memory of
    Bowdrey’s identity come into play. As this court has pointed out,
    a Long instruction in this case would be misapplied because it
    would go to the circumstances of Bowdrey’s arrest rather than his
    identification. See State v. Pascual, 
    804 P.2d 553
    , 555 (Utah Ct. App.
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    2019 UT App 3
    State v. Bowdrey
    1991) (explaining that a Long cautionary instruction is not
    required when it “goes to eyewitness testimony as to
    circumstances, not identification”). Thus, Officer’s post-detention
    confirmation that the Arrest Team had detained the correct
    person is not “a central issue” requiring a Long instruction;
    rather the post-detention confirmation was a mere circumstance
    of Bowdrey’s arrest after Bowdrey had already been identified.
    CONCLUSION
    ¶19 Because Officer’s identification of Bowdrey was based on
    real-time observation rather than recall from memory, the trial
    court correctly denied Bowdrey’s Long request. The
    circumstances of Officer’s confirmation that Bowdrey was
    correctly arrested place this case in a different category than that
    contemplated in Long. Accordingly, we affirm.
    20170033-CA                     9                  
    2019 UT App 3
                                

Document Info

Docket Number: 20170033-CA

Citation Numbers: 2019 UT App 3, 438 P.3d 946

Filed Date: 1/10/2019

Precedential Status: Precedential

Modified Date: 1/12/2023