Burgess v. United States

ROGERS, Chief Judge,

concurring:

In pretrial proceedings, the defense counsel objected on hearsay grounds to the prosecutor’s request for permission to bring out during direct examination of the government’s first witness, Campos, what she had heard Mainant say in addressing one of the two men. The prosecutor argued that the “Tony” statement was admissible under the present sense exception to the hearsay rule, and the trial judge agreed. If, as the government now argues, Maninant’s addressing of the shooter as “Tony” is not hearsay at all, then there was no error in admitting the statement for its truth. 1 See opinion of Judge Wagner, joined by Judge Schwelb. However, at trial the parties and the trial judge treated the statement as hearsay, and in my view the trial judge correctly applied the present sense impression exception embodied in Fed.R.Evid. 803(1). 2

Statements concerning events which the declarant is observing at the time he or she makes the declaration fall within the hearsay exception for present sense impression. 3 See E. Cleary, McCormick on Evidence, § 298, at 860 (3rd ed. 1984). Fed. R.Evid. 803(1) excepts from the hearsay rule statements, although hearsay, “describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”

*738 Historically, 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. See 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); McCormick, supra, § 288, at 835. Recently, the vague, general term res gestae has been used less frequently, and courts have begun to refer to the exceptions individually. See McCormick, supra, § 288, at 836. While this court has had occasion to discuss the first three res gestae exceptions, 4 and has referred to the present sense impression exception, 5 the court has yet formally to recognize the fourth exception. 6

The present sense impression exception to the hearsay rule is well rooted in our common law. The decisions of this court have used the term res gestae and admitted statements under this general doctrine. See e.g., Watts, supra, 226 A.2d at 162 . Statements of present sense impression, like statements of (1) present bodily condition, (2) present mental states and emotions, and (3) excited utterances, possess a degree of spontaneity which is the foundation of their trustworthiness. See Nicholson, supra, 368 A.2d at 564 (excited utterances trustworthy because they are made without opportunity for reflection); McCormick, supra, §§ 228, 298, at 836 & 860 (statements spontaneously made present less of an opportunity for fabrication); see also United States v. Leonard, 161 U.S.App.D.C. 36, 49 , 494 F.2d 955, 968 (1974) (noting similarities between excited utterance and contemporaneous declaration (present sense impression)). There is no principled basis, therefore, on which to recognize these three exceptions, but not the present sense impression exception to the hearsay rule since all four exceptions are founded on the same policy.

Furthermore, statements admitted under present sense impression possess other in-dicia of reliability besides spontaneity. See Laumer v. United States, 409 A.2d 190, 199 (D.C.App.1979) (look to indicia of reliability to determine whether to recognize hearsay exception). Statements concerning events that the declarant is observing at the time he or she makes the declaration have the advantage of contemporaneity of the event and statement. See United States v. Narciso, 446 F.Supp. 252, 285 (E.D.Mich.1977); Fed.R.Evid. 803 advisory committee note; McCormick, supra, § 298, at 860; (“since the [statement] concerns observations being made at time of the statement it is safe from any error caused by a defect of the declarant's memory”). Also, because the statement is made contemporaneously with the observation there is little room for fabrication. Narciso, supra, 446 F.Supp. at 285 ; McCormick, supra, § 298, at 860. Nor does the exception suffer from the perceived deficiencies of the excited utterance exception in the sense that statements made in a state of excitement may impair the accuracy of observation. See Fed.R.Evid. 803(1) (advisory committee note) (discussing criticism of excited utterance rule).

Given the indicia of trustworthiness underlying the present sense exception, there is no reason not to adopt it and the princi- *739 pies underlying Fed.R.Evid. 803(1), which embody the concerns of the common law with respect to spontaneity and contemporaneity. 7 Accordingly, the trial judge could properly look to Fed.R.Evid. 803(1) for guidance, see Laumer, supra, 409 A.2d at 199 (look to indicia of reliability to determine whether to recognize hearsay exception), and in my view correctly applied the present sense exception to the “Tony” statement. See United States v. Delaplane, 778 F.2d 570, 574 (10th Cir.1985) (statement in telephone conversation “Michael’s back” admissible under present sense impression), cert. denied, 479 U.S. 827 , 107 S.Ct. 104 , 93 L.Ed.2d 54 (1986); Brown v. Tard, 552 F.Supp. 1341, 1351 (D.N.J.1982) (statement in telephone conversation that man was in apartment to fix air conditioner admitted under present sense impression). Fed.R.Evid. 803(1) requires a (1) statement (2) describing or explaining an event or condition, (3) made while the declarant was perceiving the event or condition, or immediately thereafter. The event or condition being explained at the time it was being observed was, as the trial judge found, that Mani-nant was saying, in so many words, “there’s Tony. I’m speaking to Tony.” The statement “Tony” described whom Maninant had seen. There is no contention that the statement was not contemporaneous with the event Maninant was describing.

Apart from the statement itself, there also were other indicia of its trustworthiness. See Laumer, supra, 409 A.2d at 200 (look to indicia of trustworthiness); Brown v. Tard, supra, 552 F.Supp. at 1351 . Carl Johnson testified that he knew appellant (who had gone to school with two of his children), whose first name is Tony, and saw him in the area on the morning in question and saw him shoot the decedent. When the person described by Compos was addressed as Tony, he said nothing to indicate that he was not.

.In its brief on appeal, the government maintains that the statement was not hearsay because "there is nothing to indicate that the decedent intended his statement as an assertion.” It relies on United States v. Long, 284 U.S.App.D.C. 405, 412-13 , 905 F.2d 1572, 1579-80 , cert. de nied, — U.S. -, 111 S.Ct. 365 , 112 L.Ed.2d 328 (1990) (telephone conversation related by police officer, who answered the telephone during search of apartment for illegal drugs, where the caller asked to speak to "Keith” — the co-defendant’s first name — and then upon being told "Keith” still had “stuff,” asked if someone could come around to pick up the "fifty;” not hearsay because no assertion intended).

. This court has defined hearsay as an (1) assertion of fact or belief (2) made out of court, and (3) offered to prove the truth of the matter asserted. See Jenkins v. United States, 415, A.2d 545, 547 (D.C.1980). “ ’[AJssert’ ” carries no connotation of being positive or strong ... [but] simply means to say that something is so, e.g. that an event happened or that a condition existed.” E. Cleary, McCormick on Evidence, § 246, at 729-30 (3d ed. 1984) (emphasis added). Here, the trial judge’s conclusion, that the statement “Tony” meets the definition of hearsay, was based on his view that by uttering the name of one of the men Maninant was stating that a condition existed, i.e., he had observed Tony.

. On appeal appellant acknowledges that the trial judge allowed the statement into evidence under the present sense impression exception to the hearsay rule, but his brief focuses on the state of mind exception to the hearsay rule. The government does not argue on appeal that the statement was admissible under the state of mind exception.

. See Mitchell v. United States, 569 A.2d 177, 186 (D.C.App.) (present bodily condition), cert, denied, — U.S. -, 111 S.Ct. 521 , 112 L.Ed.2d 532 (1990); Gezmu v. United States, 375 A.2d 520, 522 (D.C.App.1977) (state of mind); Nicholson v. United States, 368 A.2d 561, 564 (D.C.App.1977) (excited utterance).

. See Pratt v. District of Columbia, 407 A.2d 612 , 616 n. 6 (D.C.App.1979); see also Wabisky, supra, 114 U.S.App.D.C. at 23 , 309 F.2d at 318 .

.At least twenty-eight states recognize the present sense impression exception to the hearsay rule. Booth v. State, 508 A.2d 976, 979 (Md.1986) (listing states). Some jurisdictions require precise contemporaneity and delete the words "immediately thereafter” found in the federal rule. Id. at 980 . The Court of Appeals of Maryland observed that "because the presumed reliability of a statement of present sense impression flows from the fact of spontaneity, the time interval between observation and utterance must be very short.” Id. at 981 .

. See Butler v. United States, 481 A.2d 431, 439 (D.C.App.1984) (adopting approach of Fed. R.Evid. 801(d)(2)(E), co-conspirator exception), cert. denied, 470 U.S. 1029 , 105 S.Ct. 1398 , 84 L.Ed.2d 786 (1985); Laumer, supra, 409 A.2d 190 (adopting approach of Fed.R.Evid. 804(b)(3) for statements against penal interest). See also Fed.R.Evid. 803(1) advisory committee note; McCormick, supra, § 298 at 861-62.