recognizing the exception, but warning 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"
How later courts described this case
- recognizing the exception, but warning 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"
- defining a present sense impression as a “statement[] describing or explaining events which the declarant is observing at the time he or she makes the declaration or immediately thereafter” (emphasis added)
- noting that “[t]he classic present sense impression relates contemporaneous events or conditions as they are perceived by the observer’s senses”
- relying on the official comment to Fed,. R.Evid. 803(1) and (2) (present sense impressions and excited utterances, respectively) to justify adopting the exception for present sense impressions
Written by the judges who cited it.
The opinion
REID, Associate Judge,
concurring:
Given the testimony of Mr. Kenneth Barrick and Ms. Danielle Gibson, I am convinced that under the circumstances of this case, even assuming trial court error (without deciding) concerning the admission of the statement attributed to Mr. Danny Lee, the error nevertheless was harmless, both under the non-constitutional standard in Kotteakos v. United States, 328 U.S. 750, 764-65 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946), assuming (without deciding) that it is applicable as the government argues, and the constitutional standard in Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).
While watching a closed circuit television and monitoring activity at the Lord & Taylor Department Store on January 13, 1998, Mr. Barrick, a loss prevention officer, saw Ms. Hallums remove two or three handbags from the sales rack at Lord & Taylor. Mr. Lee, a lead officer for the store, was with Mr. Barrick in the television monitoring room. He instructed Mr. Barrick to move to the area where Ms. Hallums had been seen. Since he did not see Ms. Hallums pay for the handbags before she left the store, Mr. Lee ordered Mr. Barrick to go after her. When Mr. Barrick spotted Ms. Hallums on the sidewalk, she had a large, “bulging” plastic shopping bag in her hand. Mr. Barrick observed that the woman before him was the same one he had seen a few moments earlier on the closed circuit television. Before he could apprehend her, Ms. Hallums got into a waiting van, but Mr. Barrick saw her clearly as she sat in the passenger *1280 seat, and he confirmed that she was the same person he had seen removing the handbags from the sales rack in Lord & Taylor. During his testimony at Ms. Hal-lums’ trial, Mr. Barriek made an in-court identification of her as the person who had removed $1,876.00 worth of handbags from the store without paying for them. He asserted that Ms. Haullums’ “facial features stuck out to [him] and that’s how [he] recognize[d] her from her face.”
In addition to Mr. Barriek’s testimony, Lord & Taylor’s loss prevention manager, Ms. Gibson, identified Ms. Hallums after looking at the videotape in which Ms. Hal-lums was seen removing the handbags. Some three months earlier, on October 16, 1997, while monitoring the closed circuit television, Ms. Gibson saw Ms. Hallums in the store. On that same day, she went to a nearby store, Hechts, owned by the same entity that has the rights to Lord & Taylor. There, she watched Ms. Hallums for about 45 minutes. Ms. Gibson testified that the person she saw at Lord & Taylor and Hechts on October 16, 1997, and on January 13, 1998 at Lord & Taylor, were one and the same. Ms. Gibson was sure of her identification because by using the “zoom” feature on the surveillance camera, she was able to get a “clear view” of Ms. Hallum’s face.
Based on the testimony of Mr. Barriek and Ms. Gibson, in my view, there can be no doubt that Ms. Hallums was the person seen lifting the handbags at Lord & Taylor on January 13, 1998. Indeed, the trial judge credited the testimony of Mr. Bar-rick and Ms. Gibson by saying, “I believe they are telling the truth about what they said.” Moreover, it was abundantly clear to the trial judge that the person on the videotape was Ms. Hallums. As the trial judge put it, “you can see [Ms. Hallum’s] face with relative clarity.” Thus, under both Kotteakos (again assuming that it is applicable) and Chapman, supra, I conclude that even assuming trial court error (without deciding) in the admission of Mr. Lee’s statement, the error was nevertheless both “clearly harmless” and harmless beyond a reasonable doubt.