Hallums v. United States

RUIZ, Associate Judge,

dissenting:

I conclude that even if the identification at issue in this case came within the exception for present sense impressions — a close issue I do not decide — the statement was admitted in violation of the Confrontation Clause, and the error was not harmless beyond a reasonable doubt. Therefore, I would reverse appellant’s conviction and remand for a new trial.

I. Identifications.

We are dealing here with the admission of a hearsay identification without the de-clarant available for cross-examination. Statements of identification are more likely than other statements describing an observed event to contain assertions based upon are collection from memory, and if so, would lack the trustworthiness bom of spontaneity for which statements of present sense impression are deemed reliable. The most obvious examples are statements identifying a person at a lineup or from an array, where even though the declarant is responding to an unfolding event, the statement is not a description of the event, but a recognition of a person presently being seen based on recollecting a prior occurrence. See United States v. Brewer, 36 F.3d 266, 271-72 (2d Cir.1994) (“The essence of an identification such as at a photo array or a lineup ... is a comparison between what the witness is contemporaneously viewing and the witness’ recollection of a prior event .... ”); United States v. Hamilton, 948 F.Supp. 635, 639 (W.D.Ky.1996) (“[A] photographic identification involves an intervening step that required [the declarant] to reflect back to what she saw that night and perhaps other occasions .... ”); Edwards v. State, 736 So.2d 475, 478-79 (Miss.Ct.App.1999) (reasoning that witness’s identification of individual seen running near scene shortly after murder was not admissible under present sense impression exception where identification was given in response to question from police officer). To be admissible, these types of identifications must comply with the requirements of D.C. CODE § 14 — 102(b)(3) (2001), or come under some other exception to the hearsay rule. They are not, however, present sense impressions. In this regard, it makes no difference whether the statement was made in response to observing a person at a show-up, through a mirror in a line-up, from a photo array, or as in this case, from a live video monitor. Those are merely the mechanics that allow the *1285 observer to perceive. What matters is whether a statement’s spontaneous, almost reflexive character, qualifies it as a present sense impression because it is describing a current event, rather than recollecting a previous experience.

Even though they may be contemporaneous with an observed event, some statements of identification- — particularly those of strangers 1 — may in fact be recollections from memory identifying a person from a previous encounter. Such identifications, to the extent that they require reflection and recall from memory, are not spontaneous and thus more likely to be unreliable. They are not admissible as present sense impressions. See People v. Kello, 96 N.Y.2d 740 , 723 N.Y.S.2d 111 , 746 N.E.2d 166, 167-68 (2001) (holding that statement of identification was not present sense impression where declarant had 2lk hours “time for reflection” between observation of the crime in progress and subsequent identification to police as he was observing the perpetrator from his window); Hamilton, 948 F.Supp. at 639 (holding it was error to admit a photographic identification as a present sense impression because it required declarant to “reflect back” to an undercover buy ten minutes earlier).

I focus on hearsay statements of identification, not only because some identifications might not be trae present sense impressions, but also because of their potential for serious prejudice if improperly admitted. An out-of-court identification of the defendant as the perpetrator of a crime can be powerful evidence with a jury, highlighting the importance of ensuring the statement’s reliability before dispensing with the constitutional right to conffont and cross-examine to uncover weaknesses in the identifier’s ability to perceive or biases that may have led to misidentifi cation. See generally United States v. Wade, 388 U.S. 218, 228 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967) (stating that the “annals of criminal law are rife with instances of mistaken identification”) (citations omitted); Wehrle v. Brooks, 269 F.Supp. 785, 792 (W.D.N.C. 1966) (“Positive identification of a person not previously known to the witness is perhaps the most fearful testimony known to the law of evidence.”); In re L.G.T., 735 A.2d 957, 962 (D.C.1999) (Schwelb, J., concurring) (“This court and other courts have repeatedly recognized the unreliability of identifications of strangers made on the basis of brief observation under stressful conditions.”) (citations omitted)). Recognizing the constitutional implications and impact of out-of-court identifications, Federal Rule of Evidence 801(d)(1)(C) and D.C.Code § 14-102(b)(3) permit out-of-court identifications, but only on the condition that the declarant have first-hand knowledge, testify as a witness in court, and be available for cross-examination. Therefore, although hearsay statements of identification can be admissible as present sense impressions, their admission requires particular scrutiny.

Lee’s out of court statement, “[tjhat’s Theresa Hallums,” occurred as he was observing a woman shoplifting on the video monitor, and seems, at first blush, to be a present sense impression. Bamck’s testimony makes clear, however, that Lee identified the woman as Theresa Hallums be *1286 cause he remembered her from a prior encounter. As Barrick explained three times, Lee reported that he recognized the woman he was observing on the monitor as someone he had previously seen stealing handbags and thus was able to identify her from that previous occasion. 2 According to appellant, Lee’s statement, “[t]hat’s Theresa Hallums,” is the equivalent of saying, “I recognize the woman I now am seeing on the monitor as the same woman I previously saw steal handbags three months ago at a different store, a woman whose name is Theresa Hallums.” 3 Thus, appellant argues, Lee’s identification was not spontaneous and devoid of reflection, but involved an intervening step that required him to reflect back to what he saw on a “previous occasion.” Cf. Young v. United States, 391 A.2d 248, 250 (D.C.1978) (noting that the decisive factor in allowing a spontaneous utterance is “whether the circumstances reasonably justify the conclusion that the remarks were not made under the impetus of reflection”) (citation omitted). “If the statement involves the declarant’s memory, it fails to qualify under this exception.” 2 JOHN W. STRONG, MCCORMICK ON EVIDENCE § 271 n.' 22 (5th ed.1999). The government contends, on the other hand, that Lee’s identification was a spontaneous description of what he was observing on the monitor and, therefore, admissible as a present sense impression. I do not decide this close issue 4 because, as I now turn to discuss, even if Lee’s identification is a present sense impression, its admission would violate the Sixth Amendment.

II. Confrontation Clause

Appellant challenges the admission of Lee’s out-of-court identification not only as an evidentiary matter, but also as a violation of her constitutional right to cross-examine witnesses under the Confrontation Clause of the Sixth Amendment. 5 The Supreme Court has established a link *1287 between evidentiary law and the constitutional right to confront one’s accusers such that the admission of out-of-court statements that bear “adequate indicia of reliability” do not violate the right to confrontation if the declarant is not available for cross-examination. See Ohio v. Roberts, 448 U.S. 56, 65 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980) (citing Mancusi v. Stubbs, 408 U.S. 204, 213 , 92 S.Ct. 2308 , 33 L.Ed.2d 293 (1972)). 6 The required reliability can be met if the hearsay statement comes within a “firmly rooted” exception to the hearsay rule or otherwise bears “particularized guarantees of trustworthiness.” Id. at 66, 100 S.Ct. 2531 . Therefore, even if Lee’s identification is admissible as a present sense impression, we would also have to conclude either that the exception for present sense impressions is firmly rooted or that Lee’s statement bore “particularized guarantees of trustworthiness.” I can do neither.

The question of whether the present sense impression is firmly rooted, which has not been decided by the Supreme Court or any federal appellate court, is not free fi'om doubt. See United States v. Murillo, 288 F.3d 1126, 1137 (9th Cir.2002). Although a majority of jurisdictions — but by no means all — has adopted the exception, the present sense impression is of fairly recent vintage in its present form, having gained an important foothold with its inclusion in 1975 in the Federal Rules of Evidence. It is no happenstance that it is not until today that we have adopted it. In contrast, exceptions that have been found to be firmly rooted, such as the exception for excited utterances and co-conspirator’s statements, are hundreds of years old. See White v. Illinois, 502 U.S. 346 , 355 n. 8, 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992) (excited utterances); Bourjaily v. United States, 483 U.S. 171, 185 , 107 S.Ct. 2775 , 97 L.Ed.2d 144 (1987) (statements of co-conspirators). In addition, even though present sense impressions form part of the group of exceptions categorized as res gestae — one of which, excited utterances, the Supreme Court has determined to be firmly rooted, see White, 502 U.S. at 355 n. 5, 112 S.Ct. 736 — present sense impressions have not been generally so recognized. This might be attributable to the fact that although the term “present sense impression” is generically used across the country, the evaluation of hearsay statements for admissibility under the exception’ as set out in my opinion for the court adopting the exception, is not uniform and depends on consideration of a variety of factors that can differ from jurisdiction to jurisdiction. The determination that a hearsay exception is firmly rooted operates as a substitute for the constitutional right to cross-examination “because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of statements.” Idaho v. Wright, 497 U.S. 805, 817 , 110 S.Ct. 3139 , 111 L.Ed.2d 638 (1990). In light of the various forms in which it has been adopted during a relatively brief history in the legal landscape, the present sense impression does not have the necessary stamp of longstanding acceptance to accord it the special status of a firmly rooted exception that can serve *1288 as a substitute for the right of cross-examination ensconced in the Confrontation Clause. But see Brown v. Keane, 229 F.Supp.2d 298, 304-10 (S.D.N.Y.2002) (reviewing cases and concluding, “albeit not without hesitation,” that present sense impression exception is firmly rooted).

Nor does Lee’s out-of-court identification bear such particularized guarantees of trustworthiness that cross-examination “would add little to its reliability.” Idaho v. Wright, 497 U.S. at 821 , 110 S.Ct. 3139 . To the contrary, there are many questions raised by Lee’s statement which go to the reliability of his identification of Theresa Hallums as the shoplifter he saw on the monitor. For example, when Lee identified the shoplifter as Theresa Hallums, his statement implied that he recognized her from a previous occasion. But what occasion, how long ago, and under what circumstances? These questions would normally be asked of a person who makes an identification based on memory. In this case, however, we do not know from Lee— the only person with first-hand information about his ability to observe Ms. Hallums on the previous occasion to which he alluded in his out-of-court statement. At most there is the rather obscure testimony of Danielle Gibson, and even there, we can only assume that the incident she vaguely described is the same one on which Lee relied to identify Hallums. See notes 1 and 2 of my opinion for the court, ante. We also do not know about the accuracy of Lee’s recollection, which, as far as one can tell from Gibson’s testimony, was likely three months old when he saw her on the video monitor. These are questions that are left unanswered unless the jury had an opportunity to evaluate Lee’s responses to cross-examination and to see his demeanor while on the stand. Nor could the jury assess his credibility and motive, a question that might occur to some jurors about a security officer, if he were to be perceived upon being cross-examined on the stand as being over-zealous or anxious to nab and identify a shoplifter. The jury simply had no first-hand basis to evaluate the credibility of Lee’s identification. 7 Finally, even absent any deliberate or unconscious bias, an important purpose of cross-examination is to force an honest witness to consider and nuance in-court testimony when confronted with a matter.as serious as an identification that could lead to conviction in a criminal prosecution^ That factor is absent when the identification is made informally, as here, to a colleague within the confines of a work setting. Under these circumstances, I conclude that Lee’s statement lacked the particularized guarantees of reliability that can supplant cross-examination.

III. Harm

The conclusion that the trial court erred in admitting Lee’s identification does not conclude the inquiry, however, as we must “determine whether any such error committed is of constitutional dimension — ié., whether the trial court has permitted sufficient cross-examination to comport with the requirements of the Sixth Amendment right to confrontation.” Jenkins v. United States, 617 A.2d 529, 532 (D.C.1992) (quoting Springer v. United States, 388 A.2d 846, 856 (D.C.1978)). When the trial court’s evidentiary ruling deprives the defendant of any opportunity to cross-examine a witness or present evidence concerning a central issue in the case, we will affirm only if we are convinced that the error was harmless beyond a reasonable doubt, applying the test set forth in Chap *1289 man v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). See Clark v. United States, 639 A.2d 76, 81 (D.C.1993) (adopting Chapman). Under that test, it must be clear beyond a reasonable doubt (1) that the defendant would have been convicted without the witness’s testimony, or (2) that the restricted line of inquiry would not have weakened the impact of the witness’s testimony. See Scull v. United States, 564 A.2d 1161, 1166 (D.C.1989) (quotation omitted).

Because appellant did not have the opportunity to cross-examine a witness upon which the verdict relied for a central issue in the case — the identity of the shoplifter — it must be analyzed under Chapman. See 386 U.S. at 24 , 87 S.Ct. 824 . Lee’s out-of-court identification of appellant was one of three underlying the trial court’s decision to convict appellant. I cannot say that it is clear beyond a reasonable doubt that appellant would have been convicted without Lee’s identification, or that cross-examining Lee would not have weakened the impact of his identification on the trial court’s verdict. At the outset of his ruling, the trial judge stated that: “The case is close and in the course of thinking about it, posed considerable difficulty to me, perhaps because I wasn’t thinking as clearly as I should be. But, also because I think the case is difficult to decide.” He added that although the government’s evidence is “far from overwhelming” in the “aggregate” it passes muster based on “three things”: the identifications of Gibson, Bar-rick and Lee. The trial judge thought that Barrick and Gibson were not biased and “were telling the truth” of what they believed,, but that there remained the question of what weight to give their testimony. With respect to Lee’s identification, the trial judge recognized that he had initially said that “if it ended up mattering much, I might not pay much attention to it,” 8 but immediately added “that was a statement that I take back” and went on to say that the government was entitled to use Lee’s identification as substantive evidence and that it was appropriate to admit Lee’s identification of Ms. Hallums. Two days earlier during closing arguments the trial judge referred to Lee’s identification as “an important piece of evidence.” The prosecutor thought as much, and during closing argued to the trial judge that there were a “series of identifications” and expressly referred to Lee’s hearsay statement.

The tidal judge’s view that the government’s case was far from overwhelming is borne out by the record because the objective accuracy of all the identifications was subject to question. Barrick, who observed the thief on the monitor and then, for a few seconds in person (but from a distance) when he saw her enter a waiting van outside the store, did not identify Hal-lums as the perpetrator until trial seven months later. Gibson saw the shoplifter only on the videotape and it was not until trial that she identified appellant as the person on the videotape and the same person she had observed at Hecht’s three months before the charged shoplifting incident at Lord & Taylor. Earlier I set out the questions raised (and left unanswered) by admission of Lee’s hearsay identification concerning the basis for his identification of Theresa Hallums. In light of the weakness of the government’s case, I cannot say the error of admitting and relying on Lee’s identification was harmless be *1290 yond a reasonable doubt, would reverse. Therefore, I

. Hearsay statements that identify close relatives and friends are more likely to be truly spontaneous as they would not require reflection and memory to the same extent as identifications of strangers. We have noted the reliability of these identifications in other contexts. See, e.g., Black v. United States, 755 A.2d 1005, 1008-09 (D.C.2000)(noting the reliability of the identification because identifier knew appellant); Washington v. United States, 689 A.2d 568, 572-73 (D.C.1997) (same).

. When first asked about Lee's identification of appellant, Barrick testified that Lee said, "that's the lady that hit the Coach handbags on a previous occasion.” When asked a second time, Barrick again testified that "[Lee] stated that he recognized her from a previous [occasion].” Yet a third time, Barrick testified that Lee identified the woman he saw on the monitor as “Theresa Hallums, the woman that hits for handbags.”

. Although the trial court excluded (as other crimes evidence) Barrick’s testimony that Lee recognized appellant from a previous shoplifting incident, it provides important context for the purpose of understanding the immediacy with which Lee was able to identify her. See FED. R. EVID. 803(1) & (2) advisory committee's note ("If the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement.”).

That the declarant knows the person’s name does not make a difference unless it sheds light on the declarant's ability to identify the person without need to search his or her memory, e.g., because the person is known to the declarant. Similarly, an out-of-court identification from a line-up or photo array does not become admissible without the declarant available as required by D.C.Code § 14-102(b)(3), simply because the declarant knows the name of the person identified.

. Whether a particular statement comes within the hearsay exception for present sense impressions is a legal question that we review de novo. Cf. Doret v. United States, 765 A.2d 47, 62 (D.C.2000) (noting that whether a statement is against the declarant's penal interest is a legal question), cert. denied, 532 U.S. 1030 , 121 S.Ct. 1980 , 149 L.Ed.2d 772 (2001). This question may involve findings of fact, to which we defer if supported by substantial evidence. See Sanders v. United States, 751 A.2d 952, 954 (D.C.2000) (citations omitted).

. Our review of the record supports the conclusion that the objection to admission of Lee's identification was made on constitutional grounds and that the trial court recognized it as such.

. But see State v. Crawford, 147 Wash.2d 424 , 54 P.3d 656 (2002), cert. granted, - U.S. -, 123 S.Ct. 2275 , 156 L.Ed.2d 129 (2003), in which petitioner asks the Supreme Court to overturn Ohio v. Roberts and hold that the Confrontation Clause establishes a bright-line procedural requirement that prohibits hearsay testimonial evidence without regard to its reliability. There is a question whether the hearsay statement at issue in this case, which was made by a security officer in the course of his duties, would come within the category of statements at issue in Crawford.

. Although defense counsel suggest could in closing argument doubts about Lee's identification, a jury instructed that arguments of counsel are not evidence is likely to give more weight to the trial court’s admission over objection of an out-of-court identification.

. Earlier in the proceeding, the trial judge had commented, "if this case ends up hinging on some person who is not here looking at a screen and saying, 'Theresa Hallums,’ it’s not going to be worth very much.”