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Holmes v. United States

Court of Appeals of Columbia District

June 5, 2014

MARVIN HOLMES, APPELLANT,
v.
UNITED STATES, APPELLEE

Argued April 17, 2014.

Appeal from the Superior Court of the District of Columbia. (CMD-21847-12). (Hon. Juliet J. McKenna, Trial Judge).

Edward E. Schwab for appellant.

Sandra Talbott, Assistant United States Attorney, for appellee. Ronald C. Machen, Jr., United States Attorney, Elizabeth Trosman, Elizabeth H. Danello, and SuzAnne C. Nyland, Assistant United States Attorneys, were on the brief for appellee.

Before THOMPSON and MCLEESE, Associate Judges, and KING, Senior Judge.

OPINION

Page 329

King, Senior Judge :

On December 24, 2012, Marvin Holmes was charged by criminal information with theft of two shirts from a Saks Fifth Avenue men's clothing store in the Friendship Heights neighborhood of Northwest Washington, D.C., in violation of D.C. Code § § 22-3211, -3212 (b) (2012 Repl.). Following a February 21, 2013 bench trial, Holmes was found guilty of that charge and sentenced to sixty days of incarceration, all suspended, and supervised probation for one year. He argues on appeal that the store detective's testimony about what he saw on the store's surveillance video was inadmissible hearsay, and that admitting that evidence was not harmless error. As we reject Holmes' assumption that a video camera can make statements as understood in the rule against hearsay, we affirm.

I.

The surveillance system at the Saks Fifth Avenue men's clothing store in Friendship Heights includes several cameras that can follow individuals as they move throughout the store. A store detective, Abiden Adekunle, testified that he was monitoring the security cameras, noticed appellant when he entered the store with two other individuals, and trained the camera on appellant and one of his companions. Through the live video feed, Detective Adekunle saw Holmes' companion select two shirts from a display table and place them in Holmes' bag.[1] Holmes was facing his associate at the time. Holmes then zipped his bag and both men walked away, browsing briefly in the shoe department before exiting the store onto Wisconsin Avenue. Holmes was still holding the bag and had not paid for the shirts. Detective Adekunle then alerted a colleague on the sales floor by walkie-talkie, who

Page 330

detained Holmes on the street a few steps from the door. The video about which Detective Adekunle testified was also entered into evidence.

During trial, Holmes objected to Detective Adekunle's testimony about what he observed on the surveillance video, saying that " the problem is that he's not viewing it with his own eyes. It's sort of like I watched Scandal tonight and . . . come back and tell you . . . what happened on Scandal. It's not necessarily what happened on Scandal, it's my interpretation of what happened . . . on the TV." The trial court overruled this objection and allowed the detective to testify " based on what he observed, not his interpretation of the actions."

The trial court credited Detective Adekunle's testimony that he observed Holmes throughout his visit to the store through a surveillance camera, and observed specifically that a man with Holmes took two items from a table and placed them into Holmes' bag. The court also found it " apparent" from the video that " Mr. Holmes is directly ...


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