Hallums v. US, No. 98-CM-1354.

• Decision Date: 12 February 2004
• Docket Number: No. 98-CM-1354.
• Citation: 841 A.2d 1270
• Parties: Theresa May HALLUMS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

841 A.2d 1270

Theresa May HALLUMS, Appellant, v. UNITED STATES, Appellee.

No. 98-CM-1354.

District of Columbia Court of Appeals.

Argued April 3, 2001.

Decided February 12, 2004.

Richard Greenlee, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief for appellant.

Matthew Sloan, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher, Thomas J. Tourish, Jr., John Interrante, and Danny Onorato, Assistant United States Attorneys, were on the brief for appellee.

Before RUIZ, REID, and GLICKMAN, Associate Judges.

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. Barrick 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 reliable identifications to be admitted into evidence. And this is taking an [un]reliable 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 curiam), the prosecutor argued that "the indicia 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 government'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.⁶See, 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 declarant 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

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