Hallums v. United States

GLICKMAN, Associate Judge,

concurring:

I would hold that the trial judge did not err, constitutionally or otherwise, in admitting Officer Lee’s identification of appellant.

Officer Lee was with Officer Barriek when they saw a woman enter Lord & Taylor and begin removing Coach handbags from a counter top display. According to Officer Barriek, Officer Lee “immediately” declared, “That’s Theresa Hallums.” In my view, Officer Lee’s declaration was a statement of “present sense impression” as defined in Federal Rule of Evidence 803(1): “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” The premise of this exception to the rule against hearsay is that “substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.” 1 The requirements of the exception and the conditions of its premise were satisfied here. 2 The triggering *1281 event was the shoplifting, and the statement describing the shoplifter was made while it was happening. There is no reason to think that Officer Lee was making a deliberate or conscious misrepresentation. There is every reason to think he was speaking what he believed to be the truth. The present case is not distinguishable in principle from numerous other cases in which courts- have held similar statements of identification to be admissible in evidence under the present sense impression exception. See, e.g., United States v. Murillo, 288 F.3d 1126, 1137 (9th Cir.2002) (upholding admission under Rule 803(1) of decedent victim’s statement during telephone call that “I’m with Kiane and Rico”); United States v. Accetturo, 966 F.2d 631 , 633-34 n. 3 (11th Cir.1992) (holding that where victim pointed to defendant and said to police, “That’s Tony,” the statement was admissible under Rule 803(1)); United States v. Delaplane, 778 F.2d 570, 574 (10th Cir.1985) (upholding admission of statement in a wiretapped telephone conversation that “Michael’s back”); United States v. Earley, 657 F.2d 195, 198 (8th Cir.1981) (holding statement admissible where the declarant said, “That sounded just like Butch” immediately after receiving telephone call; “[t]he spontaneity of the statement in relation to the telephone call attests to its trustworthiness.”); see also Burgess v. United States, 608 A.2d 733, 737-39 (D.C.1992) (Rogers, C.J., concurring) (concluding that where the victim of a shooting called his assailant “Tony,” the victim’s statement was admissible under the present sense impression exception of Rule 803(1)).

I agree that a present sense impression statement must be “spontaneous” as well as contemporaneous with the event being described. A statement that is scripted or planned in advance of the event would not qualify, nor would a statement that is the product of interrogation or deliberation following the event. Spontaneity is a question of fact. In this case the trial court could find that Officer Lee’s statement was spontaneous based on Officer Barrick’s uncontradicted testimony that Officer Lee identified the shoplifter as Theresa Hallums “immediately” upon seeing her. As the trial court’s finding is supported by the evidence, we are not free to disregard it. See D.C.Code § 17-305(a) (2001).

The argument is made that Officer Lee’s statement identifying the shoplifter as Theresa Hallums was not spontaneous, and hence was not a statement of present sense impression, because it was based on Lee’s memory of Hallums from a previous encounter. This argument treats Officer Lee’s personal knowledge of Hallums from past contact with her, the sine qua non for admitting his identification of her, as the essential basis for excluding that identification. But every valid identification depends on the declarant having a memory of past contact with the person identified. If appellant’s argument were sound, it would mean — despite the abundant case law to the contrary — that no valid statement of identification could ever come within the exception for present sense impressions. Appellant’s rationale also would mean that statements involving recollection, including statements of identification, could not satisfy the requirements of the closely related spontaneous declara *1282 tion (also known as “excited utterance”) exception to the hearsay rule — a conclusion that has been rejected by more cases of this court than one can count. See, e.g., Jones v. United States, 829 A.2d 464, 466 (D.C.2003); Lyons v. United States, 683 A.2d 1080, 1082-83 (D.C.1996); Smith v. United States, 666 A.2d 1216, 1222-23 (D.C.1995); Young v. United States, 391 A.2d 248, 250 (D.C.1978), all cases in which the court upheld the admission as spontaneous declarations of statements in which assault victims identified the persons who had attacked them.

I think that appellant’s argument is not sound, however, because it is based on a false dichotomy. Spontaneity and recollection are not opposites.' It is a mistake to think that one can restrict the present sense impression exception to statements in which memory plays no role. 3 Indeed, I doubt there is such a thing as a statement of pure perception that is completely unaided or uninfluenced by the declarant’s memory. While statements about past events are not admissible under Rule 803(1), that Rule does not require that statements of present perception be divorced from memory; if it did, the exception would be limited by its terms to pure descriptions and would not encompass as well statements “explaining” an event or condition. Consider, for example, a sports announcer reporting a baseball game as it unfolds. Imagine hearing the announcer say something like this: “Barry Bonds swings at a high fastball, it’s going, it’s into the right field stands, it’s his seventieth home run on the season!” That statement relies in part on the announcer’s memory. It is also a statement of present sense impression par excellence.

Thus, I am not persuaded by the argument that Officer Lee’s statement “That’s Theresa Hallums” is equivalent to the typical identification made by a witness to a crime at a subsequent viewing of a suspect. Ante at 1273, 1274. When a witness views a photographic array or a lineup, for example, and identifies a suspect as the perpetrator of the crime, the- witness’s statement is about a past event, the commission of the crime. The statement does not fall within the exception, for present sense impressions because it is not made contemporaneously with the event being described or explained. In contrast, Officer Lee’s statement “That’s Theresa Hal-lums” was not a statement about a past event. It said nothing about what happened when Officer Lee previously confronted Theresa Hallums. Rather, the statement “That’s Theresa Hallums” was purely about the event transpiring as the words were spoken. The event and the statement describing it were contemporaneous, as the present sense impression exception requires.

Finally, I do not, agree that the admission of Officer Lee’s statement violated appellant’s Sixth Amendment right to confront the witnesses against her. It is settled that the Confrontation Clause allows the admission against a criminal defendant of out-of-court statements that fall within what the Supreme Court has called “firmly rooted” exceptions to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). 4 “Firmly *1283 rooted” exceptions “carry sufficient indicia of reliability to satisfy the reliability requirement posed by the Confrontation Clause.” White v. Illinois, 502 U.S. 346 , 355-56 n. 8, 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992).

The Supreme Court has not had occasion to decide whether the present sense impression exception is a “firmly rooted” one for Sixth Amendment purposes: In White , however, the Court had “no doubt” that the hearsay exceptions for spontaneous declarations and statements made for medical treatment are “firmly rooted” given their age, widespread acceptance in the States, and incorporation in the Federal Rules of Evidence. Id. at 355-56 n. 8, 112 S.Ct. 736 ; see also Lilly, 527 U.S. at 126, 119 S.Ct. 1887 . “[S]uch out-of-court declarations are made in contexts that provide substantial guarantees of their trustworthiness.” White, 502 U.S. at 355 , 112 S.Ct. 736 .

If the spontaneous declaration exception is “firmly rooted,” I think we must agree that the present sense impression exception is as well. The two exceptions share nearly identical genealogy and genes; they are two peas from the same pod. See Burgess, 608 A.2d at 738 (Rogers, C.J., concurring) (explaining that the excited utterance and present sense impression exceptions have a common origin in “the ancient term res gestae ” and “are founded on the same policy”). Like the spontaneous declaration exception, “[t]he present sense impression exception to the hearsay rule is well rooted in our common law.” Id.; accord, Brown v. Keane, 229 F.Supp.2d 298, 308 (S.D.N.Y.2002), vacated on other grounds, 355 F.3d 82 (2nd Cir.2004) (“Cases applying the res gestae doctrine to admit present sense impressions date back at least as early as 1897.”); Clark v. Commonwealth, 14 Va.App. 1068 , 421 S.E.2d 28, 30 (1992) (tracing recognition of present sense impression exception in Virginia back to 1877). Also like the spontaneous declaration exception, the present sense impression exception has been adopted in the Federal Rules of Evidence and “by at least four-fifths of the states.” Brown, 229 F.Supp.2d at 309 . Most important, present sense impression statements have comparable — if not stronger — indicia of reliability, beginning with the “degree of spontaneity which is the foundation of their trustworthiness.” Burgess, 608 A.2d at 738 . 5 “There is no *1284 principled basis,” id., to treat the present sense impression exception differently from the spontaneous declaration exception for purposes ’ of the Confrontation Clause. Virtually every court that has addressed the issue agrees and has found the present sense impression exception to be “firmly rooted.” 6

Accordingly, I would affirm appellant’s conviction on the grounds that Officer Lee’s out-of-court identification of her was admissible under the present sense impression exception to the hearsay rule, and that its admission did not violate appellant’s rights under the Confrontation Clause.

. FED. R. EVID. 803(1) & (2) advisory committee’s note.

. I would adopt the present sense impression exception as it is defined in the Federal Rules of Evidence (together with its implicit requirement of spontaneity, see infra), without any of the supposed "safeguards” (corroboration requirements and the like) that Judge Ruiz's opinion for the court notes have been adopted in a few jurisdictions. See ante at 1278-79. For one thing, I doubt the utility of such additional requirements and I think that *1281 the presence or absence of corroboration, for example, should go to the weight rather than to the admissibility of the evidence. For another thing, it seems to me that when a statute or other binding authority does not require otherwise, we should strive to align our rules of evidence with the Federal Rules. See, e.g., Johnson v. United States, 683 A.2d 1087, 1099-1100 (D.C.1996) (enbanc).

. Thus, I am constrained to demur to the statement in Judge Ruiz's opinion for the court 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.” Ante at 1277.

. The opinion of Justice Stevens for a four-Justice plurality in Lilly v. Virginia, 527 U.S. 116 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999), summarizes the "firmly rooted” doctrine:

*1283 We now describe a hearsay exception as “firmly rooted” if, in light of "longstanding judicial and legislative experience,” Idaho v. Wright, 497 U.S. 805, 817 , 110 S.Ct. 3139 , 111 L.Ed.2d 638 (1990), it "rests [on] such [a] solid foundation that admission of virtually any evidence within [it] comports with the 'substance of the constitutional protection.” ' Roberts, 448 U.S. at 66 , 100 S.Ct. 2531 (quoting Mattox [v. United States, 156 U.S. 237, 244 , 15 S.Ct. 337 , 39 L.Ed. 409 (1895) ]). This standard is designed to allow the introduction of statements falling within a category of hearsay whose conditions have proven over time "to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath” and cross-examination at a trial. Mattox, 156 U.S. at 244 , 15 S.Ct. 337 .

Lilly, 527 U.S. at 126 , 119 S.Ct. 1887 .

. “Furthermore,” as Chief Judge Rogers added in Burgess , “statements admitted under present sense impression possess other indi-cia of reliability besides spontaneity .... Statements concerning events that the declar-ant is observing at the time he or she makes the declaration have the advantage of contemporaneity of the event and statement .... Also, because the statement is made contemporaneously with the observation there is little room for fabrication .... 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." Id. (citations omitted).

. See Gutierrez v. McGinnis, 2003 WL 21782628 , at*7, 2003 U.S. Dist LEXIS 13333 at *13 (S.D.N.Y.2003); Brown, 229 F.Supp.2d at 309-10 ; Reedus v. Stegall, 197 F.Supp.2d 767, 777 (E.D.Mich.2001), affd on other grounds, 79 Fed. Appx. 93 (6th Cir.2003); Brown v. Tard, 552 F.Supp. 1341, 1351 (D.N.J.1982); State v. Wooten, 193 Ariz. 357 , 972 P.2d 993, 1002 (App.1998); Green v. St. Francis Hosp., Inc., 791 A.2d 731, 736 (Del.2002); State v. Brown, 618 So.2d 629, 633-34 (La.App.1993); People v. Hendrickson, 459 Mich. 229 , 586 N.W.2d 906, 910 (1998); State v. Pickens, 346 N.C. 628 , 488 S.E.2d 162, 171 (1997).