State v. Bowdrey

2019 UT App 3
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
K ENNETH M ORRIS 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 D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and K ATE A PPLEBY 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
20170033-CA 	2 	2019 UT App 3
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.

State v. Bowdrey
20170033-CA 	3 	2019 UT App 3
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 twists2 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.

State v. Bowdrey
20170033-CA 	4 	2019 UT App 3
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

State v. Bowdrey
20170033-CA 	5 	2019 UT App 3
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

State v. Bowdrey
20170033-CA 	6 	2019 UT App 3
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

State v. Bowdrey
20170033-CA 	7 	2019 UT App 3
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

State v. Bowdrey
20170033-CA 	8 	2019 UT App 3
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.

State v. Bowdrey
20170033-CA 	9 	2019 UT App 3
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.