Appeal from the Superior Court of the District of Columbia (M-8030-98) (Hon. Truman A. Morrison, III, Trial Judge)
Before Ruiz, Reid, and Glickman, Associate Judges.
Opinion for the court by Associate Judge RUIZ; Concurring opinion by Associate Judge REID; Concurring opinion by Associate Judge GLICKMAN; Dissenting opinion by Associate Judge RUIZ.
The judgment of the trial court is affirmed for the reasons stated in Parts I and II of Jud ge 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 h earsay identification at issue in this case w as admissible on that basis.
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 ou t to the sa les 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, *fn1 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. *fn2
The prosecutor continued to lay a foundation to have the statement admitted as an excited utterance *fn3 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 contem poraneous 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 ...