Case Information
*1 Before T HOMPSON and M C L EESE , Associate Judges , and K ING , Senior Judge .
K ING , 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
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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 thе 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 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 Sсandal. 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 detеctive 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 alsо found it “apparent” from the video that “Mr. Holmes is directly facing the individual as the individual deposits the items in his bag.”
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II. We review evidentiary rulings for abuse of discretion, Williams v. United States , 77 A.3d 425, 431 (D.C. 2013), and we assume without deciding thаt we review de novo a conclusion that a particular statement falls under a hearsay exception. [2]
Detective Adekunle‟s testimony about Holmes‟ conduct in the store was
basеd exclusively on what he saw on the store‟s surveillance cameras. Even
though his observation of Holmes was indirect, and mediated by the surveillance
system, his report of what he saw using that system was not hearsay. Hearsay is an
out-of-court statement, not made by the declarant while testifying at the current
trial or hearing, that is offered in support of the truth of the matter asserted.
Little
v. United States
,
A surveillance system, however, is not a person. Rather, it is a tool to aid perception, much like binoculars, a telescopе, or glasses. When a witness uses a tool to make an observation, the opposing party may challenge the reliability of the tool or the witness‟s ability to use the tool, as Holmеs‟ trial counsel did here. But a tool is not like another person who makes an “assertion” to the witness. When
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Detective Adekunle testified about what he saw on the screen of the stоre‟s surveillance camera, he was not reporting any other person‟s out-of-court statement. Thus his testimony was not hearsay. [3] Because his testimony was not hearsay, the admissibility of the detective‟s statements about what he saw on the surveillance system does not depend on the admission of the video feed itself into evidence.
Courts considering this question invаriably reach the same conclusion we
have reached here.
See, e.g.
,
United States v. McKenzie
, 505 Fed App‟x 843, 845
(11th Cir. 2013) (unpublished) (agent‟s testimony that he observed appellant
selling cocaine on a live vidеo feed was not hearsay because the agent testified
about his perceptions of the video and not about what anyone said in the video);
United States v. Munoz-Mosquera
, 101 F.3d 683, at *2 (2d Cir. 1996)
(unpublished) (“[V]isual images on the videotapes at issue were not oral or written
assertions or nonverbal conduct of a person intended by the person as an assertion .
. . .”) (internal quotation marks and elliрses omitted);
Ostalaza v. People
, 58 V.I.
531, at *17 n.32 (2013) (rejecting argument that testimony about what the witness
saw on a video was hearsay, and citing cases drawing the same conclusion from
state appeals courts in California, Michigan, Illinois, Wisconsin, Florida, Indiana,
Illinois, Pennsylvania, Kentucky, and Georgia, and the Second Circuit);
State v.
Schmidt
, 817 N.W.2d 332, 338-39 (N.D. 2012) (witness‟s statement that he saw
appellant on surveillance video using an in-store ATM was not hearsay);
People v.
Tharpe-Williams
, 676 N.E.2d 717, 720 (Ill. App. Ct. 1997) (“[T]he underlying
basis for excluding hearsay evidence does not apply to „out-of-court statements‟
made by a video camera.”);
Commonwealth v. Capeles
, 950 N.E.2d 84 at *1
(Mass. App. Ct. 2011) (unрublished) (“Witnesses may testify to things they have
seen even when visual aids are employed.”);
Pritchard v. State
,
Finally, we note that if a witness testifies about the content of an out-of-
court statement, and that statement is offered in support of its truth, then thе
testimony is hearsay, whether or not the witness observed the other person live or
on camera.
See, e.g
.,
United States v. Martinez
, 588 F.3d 301, 310-11 (6th Cir.
2009) (a video of a person describing and demonstrating the proper way to perform
a medical procedure was inadmissible hearsay because the person made statements
which were offered in support of the truth of the matter asserted);
see also
Pritchard
,
For the foregoing reasons, we affirm the judgment of the trial court. So ordered.
Notes
[1] Photos of the shirts found in Holmеs‟ bag were introduced into evidence. The store priced the shirts at two hundred and seventy five dollars each.
[2] Many of our cases distinguish review of an evidentiary ruling itself, which
is for abuse of discretion, with review of a legal conclusion about the scope of a
rule of evidence, which is
de novo
.
See, e.g
.,
Smith v. United States
,
[3] Holmes‟ suggestion that the video feed was a statement because the store detective was able to train the camera on him and follow him throughout the store is unavailing. If anyone could be said to have made a statement by moving the camera, it would have been Detective Adekunle, who testified and was available for cross-examination.