United States v. Baker , 70 M.J. 283 ( 2011 )


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  •                        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
    2
    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
    19
    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