State v. Woodbury

LANSING, Judge,

concurring in result.

I am unable to join in Part 11(A) of the foregoing opinion because I conclude that Officer Knight’s testimony recounting Harley Hansen’s description of the assailant was hearsay.

Idaho Rule of Evidence 801(d)(1)(C) excludes from the definition of hearsay a statement “of identification of a person made after perceiving the person” if the declarant testifies at trial and is subject to cross examination. The only type of statement covered by this exclusion is an “identification” of a person. In the present ease, Hansen’s assailant wore a ski mask throughout the attack so Hansen was never able to see the assailant’s face or identify Woodbury as the perpetrator. The lead opinion nonetheless holds that Hansen’s out-of-court description of the perpetrator’s size and clothing was admissible as an “identification” within I.R.E. 801(d)(1)(C). This conclusion is not borne out by the plain language of the rule.

The word “identify” is clear and unambiguous, and does not mean “describe.” “Identify” is defined as, “to establish the identity of ... show or prove the sameness of.” WEBSTER’S THIRD INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1123 (1976). Thus, an identification of a person specifies a single individual as the same person who is sought. In criminal cases this is typically accomplished by the selection of an individual from a lineup or photographic array, or by information from a witness who personally recognized the perpetrator. By contrast, a description only narrows the focus of the search to the universe of persons who possess the described characteristics. Thus, “identification” and “description” are not synonymous. I believe that the drafters of the Idaho Rules of Evidence can be trusted to have expressed their meaning with the words used, and if they intended to include descriptions within I.R.E. 801(d)(1)(C), they would have done so by appropriate language.

Although examination of the history of I.R.E. 801(d)(1)(C) is unnecessary because the language of the rule is unambiguous, that history confirms that “identification” was used to mean a circumstance where a single individual has been picked out or specified. The comment to I.R.E. 801(d)(1)(C) states, *762“The purpose of the provision is to make clear, in line with the recent law in the area, that nonsuggestive lineup, photographic and other identifications are not hearsay and therefore are admissible.” REPORT OF IDAHO STATE BAR EVIDENCE COMMITTEE, C 801, p. 6 (Supplemented 6/1/85). Similarly, the report on the corresponding federal rule of evidence by the Senate Committee on the Judiciary states:

Both experience and psychological studies suggest that identifications consisting of nonsuggestive lineups, photographic spreads, or similar identifications, made reasonably soon after the offense, are more reliable than in-court identifications. Admitting these prior identifications therefore provides greater fairness to both the prosecution and defense in a criminal trial.

Nothing in the comments to the Idaho Rules of Evidence nor in the Advisory Committee notes or legislative history of the corresponding federal rule suggests that out-of-court statements that merely describe an individual’s physical appearance or clothing are to be considered statements of “identification” covered by I.R.E. 801(d)(1)(C). I thus find it abundantly clear that Officer Knight’s testimony was hearsay when he reiterated a description of the assailant given by Hansen on the night of the attack.

Because this testimony was hearsay, it is necessary to consider whether the testimony was admissible under a hearsay exception. The district court found that the testimony came within the present sense impression exception to the hearsay rule, I.R.E. 803(1). That rule provides that a hearsay statement will not be excluded if it is “a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” The rationale underlying this exception is that, “substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation.” REPORT OF IDAHO STATE BAR EVIDENCE COMMITTEE, C 803, p. 2, quoting FED. ADVISORY COMMITTEE NOTES TO F.R.E. 803(1). Testimony in this ease indicated that Hansen’s statement to Officer Knight was made about forty-five minutes after the attack. This time span does not qualify as “immediately” after the event. See United States v. Cruz, 765 F.2d 1020, 1024 (11th Cir.1985); Hilyer v. Howat Concrete Co., Inc., 578 F.2d 422, 426 n. 7 (D.C.Cir.1978). Therefore, Officer Knight’s testimony does not fall within the hearsay rule exception for statements of present sense impression. There being no other hearsay exceptions urged by the State as applicable to this testimony, the testimony should have been excluded pursuant to I.R.E. 802.

I nonetheless agree that reversal of Wood-bury’s conviction is unnecessary, for the error in the admission of this testimony was harmless. Before Officer Knight was called as a witness, Hansen himself had testified and described the assailant and his clothing. The only notable difference between Hansen’s own testimony and that of Officer Knight was in the degree of specificity as to the assailant’s coat and the assailant’s height. Hansen testified that the perpetrator was a very large individual, “quite a bit taller than six feet,” and wore “a dark coat with very distinctive zippers.” According to Officer Knight’s testimony, on the night of the incident Hansen described the attacker as being six feet, four inches tall or taller, and wearing a black leather jacket with zippers on it. Woodbury is six feet, seven inches tall, and when arrested he was wearing a black leather jacket with prominent zippers. Mr. Hansen testified that Woodbury’s jacket looked like the jacket the assailant was wearing. Thus, Officer Knight’s hearsay testimony added little, if anything, to Hansen’s in-court testimony, and the admission of the hearsay testimony was harmless beyond a reasonable doubt. See State v. Medrano, 123 Idaho 114, 120, 844 P.2d 1364, 1370 (Ct.App.1992); State v. Brazzell, 118 Idaho 431, 435, 797 P.2d 139, 143 (Ct.App.1990). Accordingly, I join in the conclusion that the judgment of conviction should be affirmed.