Hallums v. United States

841 A.2d 1270, 2004 D.C. App. LEXIS 48, 2004 WL 253372

• Court: District of Columbia Court of Appeals
• Decided: February 12, 2004
• Docket: 98-CM-1354
• Status: Published

Opinions

PER CURIAM:

The judgment of the trial court is affirmed for the reasons stated in Parts I and II of Judge Ruiz’s opinion for the court, and the separate concurring opinions of Judge Reid and Judge Glickman. Judge Ruiz files a separate opinion dissenting from the concurring opinions. In the concurrences affirming the judgment, Judge Reid concludes that any error was harmless, and Judge Glickman, though disagreeing with Judge Reid on that point, concludes there was no error. In her dissent, Judge Ruiz concludes there was constitutional error and that it was not harmless.

RUIZ, Associate Judge, for the court:

Theresa Hallums was convicted after a one-day bench trial of second degree theft for stealing merchandise from a department store. She raises evidentiary and constitutional challenges to the decision of the trial court to admit into evidence as a present sense impression a hearsay statement of a security officer identifying her as the thief as he watched the shoplifting incident on a video monitor. We decide to adopt the hearsay exception for present sense impressions as the law of the District of Columbia, but as set out in the various opinions, do not as a division come to the conclusion that the hearsay identification at issue in this case was admissible on that basis.

I.

A. Evidence At Trial

Kenneth Barrick, a loss prevention officer employed by the Lord & Taylor department store, testified that on January 13, 1998, he was operating the closed circuit television system used to monitor potential shoplifting activity at the store located at 5255 Western Avenue, N.W., Washington, D.C. Barrick and Officer Lee, another security officer, observed a woman enter the store and remove several Coach handbags from a display rack. Lee then instructed Barrick to go out to the sales floor and apprehend the woman. By the time Barrick reached the store’s Western Avenue exit ten to fifteen seconds later, he saw the woman outside on the sidewalk carrying a large bag and entering a waiting van. The woman glanced over her shoulder in Barrick’s direction and then got into the van, which sped away. Bar-rick made an in-court identification of appellant as the person he saw the day of the theft, and whose image was captured stealing handbags in an enlarged photograph made from the closed circuit videotape.

The government’s other witness, Danielle Gibson, was also a member of Lord & Taylor’s security force at the time of the theft. She testified that upon reviewing the videotape after the incident, she recognized the woman taking the handbags as someone she had observed on a previous occasion, and made an in-court identification of appellant as the shoplifter portrayed on the tape. Gibson related that approximately three months before the incident, she had seen appellant at close range for about forty-five minutes at a Hecht’s store across the street,¹ and later that same day had observed her again via surveillance cameras in the handbag department of the Lord & Taylor store.

The government also introduced the videotape of the shoplifting incident, which was played for the trial court’s review. Appellant did not testify.

B. Hearsay Statement & Trial Court’s Ruling

The disputed hearsay statement was first elicited when the prosecutor asked Barrick to describe Officer Lee’s reaction to watching the woman remove handbags on the video monitor:

[Prosecutor]: Mr. Barrick, this other officer, could you describe his reaction when he saw — was watching the tape-

[Barrick]: [Lee] became excited and pointed to the camera, to the monitor I should say and said, that’s the lady that hit the Coach handbags on a previous occasion.²

The prosecutor continued to lay a foundation to have the statement admitted as an excited utterance³ and a present sense impression. Asked about Lee’s statement, Barrick testified that “[Lee] stated that he recognized her from a previous [occasion].” Defense counsel objected to the statement as hearsay, arguing that the statement was not admissible as a present sense impression because it was an identification, noting that “[t]he reason that there’s a separate identification exception [under the terms of D.C.Code § 14^102(b)(3) ] is to allow rehable identifications to be admitted into evidence. And this is taking an [unreliable identification and trying to say that it should be admissible merely because the person made it while watching a tape.” Interpreting Burgess v. United States, 608 A.2d 733 (D.C.1992) (per cu-riam), the prosecutor argued that “the in-dicia that the court [looks for are] the spontaneous nature of the statement, the contemporaneous nature of the statement, [and] both of those indicia are present here.” The trial court admitted the statement as a present sense impression. Adopting the prosecutor’s interpretation, the court concluded, “I’m going to receive it and treat [defense counsel’s] argument as going to the weight of the evidence.” When finally asked the question for the record, the following exchange occurred:

[Court]: What did [Lee] say?

[Barrick]: He said, that’s the woman and he pointed to the monitor. And I asked him what woman and he said, that’s Theresa Hallums, the woman that hits for handbags.

[Court]:- One second. I will strike from the evidence everything after the word, Hallums.

At the close of the evidence, defense counsel again sought to exclude Barrick’s testimony about Lee’s out-of-court statement identifying appellant, arguing that nothing distinguishes this case from identifications at a show-up, a line-up, or a photo array, none of which can be admitted under D.C. CODE § 14 — 102(b)(3) (2001) unless the out-of-court declarant is available for cross-examination.

In announcing his verdict, the trial judge noted that the evidence was “far from overwhelming,” and the case was “close” and “posed considerable difficulty to decide.” The trial judge found appellant guilty based on: 1) the in-court identification made by Gibson, who testified that three months before the incident she had spent forty-five minutes paying close attention to Ms. Hallums at the Hecht’s store and then saw the Lord & Taylor videotape after the incident; 2) the in-court identification made by Barrick, who watched the shoplifter on the monitor and then saw the woman for a few seconds in broad daylight as she was leaving the store before she got into a van; and 3) Lee’s out-of-court declaration, as he watched the video monitor, that he recognized the woman as Ms. Hallums. Although the trial court acknowledged that “the govemment’s case [is] heavily centered on the videotape,” it declined to base the finding of guilt on a comparison between the tape and the court’s own observations of appellant.⁴

II.

Appellant argues that the trial court erred in admitting the statement, “that’s Theresa Hallums,” under the present sense impression exception to the hearsay rule. She claims that the statement is not a present sense impression because it does not describe or explain a contemporaneous event or condition, but rather identifies a person based on memory of a past event, similar to an identification from a photo array or a lineup. Reasserting her argument in the trial court, she also contends that, as an out-of-court identification, the admissibility of the statement is governed exclusively by § 14-102(b)(3),⁵ which requires the declarant to be available for cross-examination.' The government responds that many courts have allowed out-of-court identifications as present sense impressions without the declarant being available, and that the statement at issue in this case comes within that exception to the hearsay rule.⁶ See, e.g., United States v. Delaplane, 778 F.2d 570, 574 (10th Cir.1985) (allowing the statement, “Michael’s back,” as a present sense impression); United States v. Earley, 657 F.2d 195, 198 (8th Cir.1981) (admitting the statement, “Oh Mom, what am I going to do? That sounded just like Butch,” as a present sense impression or excited utterance). Although we have not in the past expressly considered the interaction between the statute and the common law of hearsay, we are confident that they provide separate bases for admissibility. The statute provides that an out-of-court identification “is not hearsay” if the declarant made the identification “after perceiving the person,” testifies at trial, and is available for cross-examination concerning the statement. § 14 — 102(b)(3). Conversely, an identification that is part of an out-of-court statement not satisfying § 14 — 102(b)(3) is hearsay, but may be admissible nonetheless under an exception to the hearsay rule independent of the terms of § 14 — 102(b)(3). See Lyons v. United States, 683 A.2d 1080, 1082-83 (D.C.1996) (hearsay statement identifying defendant by name admitted as both an excited utterance and a dying declaration). Because the out-of-court identification in this case does not satisfy the statute as the declar-ant was not available at trial, the first issue for decision is whether it was admissible under the exception for present sense impressions.

The present sense impression exception to the hearsay rule embodied in Federal Rule of Evidence 803(1) permits the admission of hearsay statements: '

describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

The declarant need not be available for cross-examination to admit a statement under this exception. See id.

While this court has referred to the hearsay exception for present sense impressions, see, e.g., Burgess, 608 A.2d at 738 (Rogers, C.J., concurring); Walker v. United States, 630 A.2d 658, 666 (D.C.1993); Pratt v. District of Columbia, 407 A.2d 612, 616 n. 6 (D.C.1979), we have no statute or rule equivalent to the federal rule, nor have we formally recognized the exception in our case law. The closest this court has come to recognizing the present sense impression was in Chief Judge Rogers’s concurring opinion in Burgess in which she stated that the “present sense impression exception to the hearsay rule is well rooted in our common law” and that “there is no principled basis ... on which to recognize [excited utterances, statements of present bodily condition, and statements of present mental state], but not the present sense impression exception ... since all four exceptions are founded on the same policy.” Burgess, 608 A.2d at 738 (Rogers, C.J., concurring).⁷

We agree with Judge Rogers that there is no reason why we should not accept the hearsay exception for statements of present sense impression along with the other related exceptions we recognize. The present sense impression exception to the hearsay rule is “one of the four hearsay exceptions encompassed by the ancient term res gestae: (1) statements of present bodily condition, (2) statements of present mental states and emotions, (3) excited utterances, and (4) statements of present sense impression.” Burgess, 608 A.2d at 738 (Rogers, C.J., concurring) (citing Steadman v. United States, 358 A.2d 329, 332 (D.C.1976); Watts v. Smith, 226 A.2d 160, 162 (D.C.1967); Wabisky v. District of Columbia Transit Sys., Inc., 114 U.S.App. D.C. 22, 23, 309 F.2d 317, 318 (1962); E. CLEARY, MCCORMICK ON EVIDENCE § 288 (3d ed.1984). All these types of statements share a degree of spontaneity that is the foundation of their trustworthiness. See Nicholson, 368 A.2d at 564 (discussing excited utterance); 2 JOHN W. STRONG, McCORMICK ON EVIDENCE § 271 (5th ed.1999) (comparing present sense impression with excited utterance). The official comment to Federal Rule of Evidence 803(1) and (2) explains that the present sense impression exception to the hearsay rule is based on the theory that the “substantial contemporaneity of [the] event and statement negative the likelihood of deliberate or conscious misrepresentation.” FED. R. EVID. 803(1) & (2) advisory committee’s note. The advisory committee’s note also states that an additional assurance of reliability is that the in-court witness relaying the statement had equal opportunity to observe and corroborate the existence of the event or condition and may be cross-examined on the statement. See id.; see also McCORMICK ON EVIDENCE § 271 (1999) (“[T]he statement will usually have been made to a third person (the witness who subsequently testifies to it) who was also present at the time and scene of the observation ... and thus can provide a check on the accuracy of the declarant’s statement and furnish corroboration.”). A further safeguard is that the permissible subject matter of the exception for present sense impressions is limited to a description or explanation of the event or condition being perceived, which adds to its trustworthiness. See FED. R. EVID. 803(1) & (2) advisory committee’s note (discussing permissible subject matter).

Thus, we will recognize the hearsay exception for present sense impressions, ie., statements describing or explaining events which the declarant is observing at the time he or she makes the declaration or immediately thereafter, as we already have recognized the excited utterance exception, which also is grounded in the spontaneity of the statement. See discussion note 6, supra. Given that statements made in a state of excitement may impair the accuracy of the declarant’s power of observation, there is no reason for us to accept the excited utterance exception and not the exception for arguably more reliable present sense impressions. See Burgess, 608 A.2d at 738 (Rogers, C.J., concurring); FED. R. EVID. 803(1) & (2) advisory committee’s note (conveying criticism of excited utterance exception). But see WIGMORE, EVIDENCE § 1757, A 238 (James H. Chadbourne rev.1976) (rejecting exception for present sense impressions as unreliable without shock of startling event). The exception for present sense impressions is, moreover, narrower in scope and subject to fewer infirmities than the exception for excited utterances. See MCCORMICK ON EVIDENCE § 271 (1999) (describing the development of the exception). The time within which an excited utterance may be made is measured by the duration of the stress, while present sense impressions may be made only while the declarant is actually perceiving the event, or immediately thereafter — a more circumscribed time period than that permitted for excited utterances. Compare Price v. United States, 545 A.2d 1219, 1226-27 (D.C.1988) (admitting as excited utterance statement made three hours after startling event) (citing cases) with State v. Moore, 82 Hawai'i 202, 921 P.2d 122, 138 (1996) (statements made some time after shooting when defendant flagged down police were not within present sense impression exception as they were not contemporaneous with event described, but were admissible as excited utterances).

The classic present sense impression relates contemporaneous events or conditions as they are perceived by the observer’s senses. See, e.g., Brown v. Tard, 552 F.Supp. 1341, 1351 (D.N.J.1982) (admitting as present sense impression statement made in course of telephone conversation that “the guy is here to fix the air conditioner”); People v. Buie, 86 N.Y.2d 501, 634 N.Y.S.2d 415, 658 N.E.2d 192, 196 (1995) (admitting as present sense impression 911 call by homeowner describing burglar’s appearance and actions as he followed burglar out of the home); Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474, 476 (1942) (admitting as present sense impression statement describing speed of car passing by). Hearsay statements of identification have been admitted under the exception for present sense impressions. See, e.g., United States v. Hawkins, 59 F.3d 723, 730 (8th Cir.1995) (admitting as present sense impression 911 call describing that “my husband just pulled a gun out on me”), vacated on other grounds by, 516 U.S. 1168, 116 S.Ct. 1257, 134 L.Ed.2d 206 (1996); United States v. Accetturo, 966 F.2d 631, 633 n. 3 (11th Cir.1992) (admitting statement identifying extortionist made to airport authorities); Delaplane, 778 F.2d at 574 (allowing “Michael’s back” as a present sense impression); State v. Flesher, 286 N.W.2d 215, 216-18 (Iowa 1979) (allowing as a present sense impression the decedent’s statement, “It’s Joan,” as describing the arrival of her lover’s wife).

In recognizing a hearsay exception for present sense impressions, however, we note that care must be taken to ensure that this exception is not used to admit statements that circumstances reveal were not truly spontaneous, but instead involved conscious reflection or recall from memory. The underlying rationale for the exception is that “[statements of present sense impression are considered reliable because the immediacy eliminates the concern for lack of memory and precludes time for intentional deception.” United States v. Brewer, 36 F.3d 266, 272 (2d Cir.1994) (quoting 4 LOUISELL, FEDERAL EVIDENCE § 438 (1980)).⁸ Thus, the court must be “assure[d] ... that the statements sought to be admitted were made spontaneously and contemporaneously with the events described.” People v. Brown, 80 N.Y.2d 729, 594 N.Y.S.2d 696, 610 N.E.2d 369, 374 (1993). See also, e.g., United States v. Parker, 936 F.2d 950, 954 (7th Cir.1991) (“The underlying rationale of the present sense impression exception is that substantial contemporaneity of event and statement minimizes unreliability due to defective recognition or conscious fabrication.”) (quoting United States v. Blakey, 607 F.2d 779, 785 (7th Cir.1979)); In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 303 (3d Cir.1983) (exception for present sense impression founded on notion that contemporaneity of observation and impression protects against defective memory), rev’d on other grounds sub nom., Matsushita Elec. Indus. Co. Ltd., et al. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Booth v. State, 306 Md. 313, 508 A.2d 976, 981 (1986) (discussing that the time interval between the observance and the utterance should be short). “With reflection!,] some reliability, which goes to the very essence of the present sense impression hearsay exception, is lost.” United States v. Hamilton, 948 F.Supp. 635, 639 (W.D.Ky.1996).

We recognize there are varying approaches to the admission of statements under the exception for present sense impressions. Many jurisdictions admit present sense impressions without requiring additional safeguards to ensure reliability. See, e.g., United States v. Ruiz, 249 F.3d 643, 646-47 (7th Cir.2001) (noting that the federal rule does not condition admissibility on the availability of corroboration); United States v. Medico, 557 F.2d 309, 315 (2d Cir.1977) (finding that the “specific requirements” of Federal Rule 803(1) are satisfied without corroboration, although the trial court may consider the absence of corroboration when deciding if the statement would be better admitted under the federal residual exception); Ramrattan v. Burger King Corp., 656 F.Supp. 522, 528 (D.Md.1987) (recognizing corroboration is not required); Warren v. State, 774 A.2d 246, 252 (Del.2001) (corroboration is not a prerequisite for admission); Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387, 390 (1974) (verification is not a prerequisite to admissibility). Some of these jurisdictions, including neighboring Maryland, justify this approach by reasoning that the absence of corroboration bears upon the weight, and not the admissibility, of the statement. See, e.g., Flesher, 286 N.W.2d at 218; Booth, 508 A.2d at 984.

In contrast, a shrinking minority of jurisdictions requires corroboration before a hearsay statement will be admitted as a present sense impression. See In re Japanese Elec. Prods., 723 F.2d at 303 (stating that the exception is generally understood to require some corroborating testimony); Brown, 594 N.Y.S.2d 696, 610 N.E.2d at 373 (holding that “spontaneous descriptions of events made substantially contemporaneously with the observations are admissible if the descriptions are sufficiently corroborated by other evidence”); see also People v. Vasquez, 88 N.Y.2d 561, 647 N.Y.S.2d 697, 670 N.E.2d 1328, 1335 (1996) (stating that “there must be some independent verification of the declarant’s descriptions of the unfolding events”). The corroboration requirement is strictest in those jurisdictions demanding that an “equally percipient witness” testify to the existence of the event or condition described in the statement to be admitted. See, e.g., Hewitt v. Grand Trunk W.R. Co., 123 Mich. App. 309, 333 N.W.2d 264, 267 (1983) (finding that hearsay statements regarding a train accident were not present sense impressions in part because the truth of the statements was not corroborated by a witness present at the scene); Houston Oxygen, 161 S.W.2d at 476-77 (relying on the general rationale that the testifying witness has an equal opportunity to observe the event or condition described by the statement and hence to check for misstatements).

Other jurisdictions take a moderating approach that prevents the admission of statements when the absence of corroboration or other circumstances indicate a lack of trustworthiness. See, e.g., CAL. EVID. CODE § 1241 (2002) (limiting present sense impressions to declarant’s explanations of own conduct); FLA. STAT. ch. 90.803(1) (2002) (expressly precluding admissibility of statements satisfying the traditional requirements of a present sense impression when “made under circumstances that indicate [their] lack of trustworthiness”); MIN. STAT. § 801(d)(l)(2002) (requiring that declarant be available for cross-examination); OH R. EVID. 808(1) (Anderson 2003) (expressly excepting statements satisfying the traditional requirements of a present sense impression when “circumstances indicate lack of trustworthiness”); Wal-Mart Stores v. Jenkins, 739 So.2d 171, 171-72 (Fla.Dist.Ct.App.1999) (stating that the trial court “should weigh any corroborating evidence together with all other factors in making this determination”) (quoting EH-RHARDT, FLORIDA EVIDENCE § 803.1 (1999 Edition)); State v. Case, 100 N.M. 714, 676 P.2d 241, 245 (1984) (stating that trial court has broad discretion and may consider whether an absent declar-ant’s observation could be verified by the witness who heard the declaration) (citing State v. Perry, 95 N.M. 179, 619 P.2d 855, 856 (Ct.App.1980)). We have adopted a similar approach in evaluating the reliability of excited utterances, where we consider the totality of the circumstances under which the hearsay statement was made. See Malloy v. United States, 797 A.2d 687, 690 (D.C.2002) (citing United States v. Woodfolk, 656 A.2d 1145, 1150 (D.C.1995)).

In light of our disposition, we do not finally resolve whether to adopt any particular safeguards for evaluating the admissibility of present sense impressions.

1 . There was no explanation of the circumstances under which Gibson would have observed appellant at such close range for an extended period of time, but the implication is that it was during another shoplifting incident at the Hecht's store, which also is owned by Lord & Taylor's parent company.

2 . The testimony at trial does not explain how Lee knew that the shoplifter had stolen Coach handbags on a previous occasion, nor how he knew her name. It would appear from Gibson’s testimony that Lee’s information was based on an incident three months earlier at the Hecht's store across the street. See note 1, supra.

3 .It is unclear whether Lee made the statement before or after the woman started taking the Coach handbags. Barrick stated that Lee "became excited and pointed to the ... monitor.” Presumably, the prosecutor had in mind that watching the woman steal the handbags or, alternatively, recognizing the woman as one who stole handbags, was a "startling event.”

4 . Defense counsel had argued that the trial court should make its own determination whether the shoplifter shown on the video was appellant. The trial court noted that there was only a three-second segment of the tape where the shoplifter’s face could be seen with relative clarity, but that, “[njothing viewing that tape causes me to think that it’s not Ms. Hallums.”

5 . Section 14-102(b)(3), which is virtually identical to Federal Rule of Evidence 801(d)(1)(C), excludes out-of-court identifications from the definition of hearsay, but only if the witness is available for cross-examination:

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... (3) an identification of a person made after perceiving the person.

D.C. CODE § 14 — 102(b)(3).

Federal Rule of Evidence 801(d)(1)(C) provides:

(d) Statements which are not hearsay. A statement is not hearsay if-

(1) Prior statement by witness. The declar-ant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ...

(C) one of identification of a person made after perceiving the person.

FED. R. EVID. 801(d)(1)(C).

6 . As an alternative ground for affirmance the government argues briefly that the statement also could have been admitted under the excited utterance exception to the hearsay rule. Hearsay statements may be admitted under the excited utterance exception if the following prerequisites are met:

(1) the presence of a serious occurrence which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.

Nicholson v. United States, 368 A.2d 561, 564 (D.C.1977) (citation omitted). We disagree with the government's assertion that this statement qualifies as an excited utterance. The government has not established, and the trial judge did not find, that Lee, a security officer presumably accustomed to watching shoplifters on the monitor, was in the requisite state of nervous excitement or physical shock. See note 3, supra.

7 . While the concurring opinion by Judges Schwelb and Wagner in Burgess concluded that the statement at issue was "non assertive” conduct and thus fell outside the hearsay rules, see id. at 740, Chief Judge Rogers thought that the trial court properly admitted the decedent’s statement identifying his assailant as "Tony” under the hearsay exception for present sense impressions. See id. at 739.

8 . This is different from the rationale for admitting excited utterances, which relies on the state of excitement that stills reflective powers and makes fabrication unlikely. See FED. R. EVID. 803(1) & (2) advisory committee’s note.