Pickett v. State

GRAEFF, J. Following a jury trial in the Circuit Court for Montgomery County, appellant, George Pickett, III, was convicted of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, first degree assault, conspiracy to commit first degree assault, use of a firearm in the commission of a crime of violence, and conspiracy to use a firearm in the commission of a crime of violence. The court sentenced appellant to 20 years, all but seven years suspended, followed by five years of supervised probation. 1 On appeal, appellant presents four questions for our review, which we have rephrased, as follows: 1. Did the circuit court abuse its discretion when it allowed the State, in closing arguments: (a) to reference appellant’s changed appearance; and (b) to rebut appellant’s argument that the State could have performed forensic tests on the victim’s iPhone case? 2. Did the circuit court commit plain error in giving the jury an instruction on eyewitness identification? ³²⁶ 3.

Did the circuit court commit plain error in admitting photographs from a surveillance camera? 4. Did the circuit court err in excluding evidence that a “Find My iPhone” app on the victim’s cell phone located the stolen phone at a residence other than appellant’s? For the reasons set forth below, we shall affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND The charges against appellant arose out of the robbery and assault of Samer El-Amine in Silver Spring, Maryland on February 10, 2013.

Mr. El-Amine, who was 16 years old at the time of the assault, testified that at approximately 1:30 a.m., he left his friend’s house and began walking home. He stopped at a 7-Eleven convenience store to purchase gummy worms. In the parking lot, approximately 20-30 feet away, he noticed a light brown car with two people inside. Although Mr. El-Amine could not “really see” the faces of the two individuals in the car, he did notice that the individual in the front passenger seat had a “high-top fade” haircut. 2 Twenty to thirty seconds after Mr. El-Amine left the 7-Eleven store, “the same car ... or I think it was the same car — it looked like it,” pulled up next to him and “the person in the passenger side got out.” He described the car as “the same color and the same shape.” The two individuals in the car were wearing ski masks, so Mr. El-Amine could not see their faces or their hair.

The person who got out of the car put a small, black gun to Mr. El-Amine’s head and said: “Give me your shit.” 3 The person then reached into Mr. El-Amine’s pocket and removed his iPhone5, which was covered by a blue “OtterBox” phone case. The person also told him: ³²⁷ “Give me this Helly, too,” referring to Mr. El-Amine’s red and white Helly Hansen brand jacket. Mr. El-Amine hesitated, at which point he was forced to the ground. The person removed his jacket, got back into the car, and the driver of the car drove away “very fast.” Mr. El-Amine walked to his mother’s house, approximately two minutes away.

He told his mother what had happened, and she called the police. In the 911 call, Mr. El-Amine described the person who got out of the car as “wearing a colorful jacket. He was kind of dark-skinned or brown-skinned, probably brown-skinned, and he had a long ... high-top fade.” 4 When the police arrived at his mother’s house that night, Mr. El-Amine gave a description of the passenger and drew a picture of the haircut that he saw on the passenger of the car when he walked out of the 7-Eleven. A few days later, Mr. El-Amine went to the police station to look at photographs of potential suspects.

He identified a photograph of an individual that he thought “was him, but The] wasn’t sure.” He explained that he chose the photograph based on the skin tone of the individual depicted, noting that, during the robbery, he was able to see the individual’s “eyes and the skin around his eyes and part of the nose.” Detective Adam Hart, a member of the Montgomery County Police Department, testified that, on February 15, 2013, he executed two search warrants, one at 816 Easley Street and the other at 632 Potomac Avenue. When he executed the Easley Street warrant, there were four individuals inside: appellant, Dayquan Tyler, Michael Tyler, and Diante Tyler. 5 ³²⁸ Detective Hart identified a photograph of appellant taken that day, at the time of appellant’s arrest. The photograph was admitted into evidence as State’s Exhibit 7, and it depicted appellant with a high-top fade haircut. When Detective Hart executed the warrant at 816 Easley Street, Dayquan was sleeping on the floor in the living room, and appellant was sleeping on a bed in the master bedroom.

Detective Hart found appellant’s birth certificate and social security card at the residence. In the middle of the living room, there was a ladder with a red and white Helly Hansen ski jacket on top of it. Detective Hart then executed the warrant at 632 Potomac Avenue. In the bedroom basement of that residence, behind a locked door to which he had retrieved the keys from Day-quan’s pocket during the search at 816 Easley Street, Detective Hart found a birth certificate and social security application for Dayquan Tyler.

He also found a blue “OtterBox” case for an iPhone5. A functional firearm was recovered from a dog house behind Dayquan’s residence. The mixture of DNA recovered from the firearm was not suitable for comparison. Detective Jesse Dickensheets, a member of the Montgomery County Police Department, testified that, on February 13, 2013, three days after the robbery, he saw appellant walk out of 816 Easley Street wearing a red and white Helly Hansen jacket.

Detective Dickensheets identified a photograph of the jacket and identified appellant in court as the individual who had been wearing the jacket. At trial, Mr. El-Amine identified the OtterBox and the jacket that had been stolen from him. His iPhone5 was not recovered. DISCUSSION I. Closing Argument Appellant’s first argument is that the court “erred in permitting the State’s improper argument about facts not in the ³²⁹ record.” Specifically, he contends that the court should not have permitted the State to: (1) point out that appellant had changed his hairstyle between the time of his arrest and the trial; and (2) insinuate that appellant’s DNA and fingerprints were found on the OtterBox iPhone case recovered from Dayquan’s residence.

The State disagrees. It contends that the court properly exercised its discretion in controlling closing argument, asserting that: (1) the comments regarding appellant’s hair were “appropriate and relevant” where identity was an issue, and (2) appellant mischaracterizes the argument regarding the OtterBox. A. Standard of Review It is well established that “attorneys are afforded great leeway in presenting closing arguments to the jury.” Degren v. State, 352 Md. 400, 429 , 722 A.2d 887 (1999). Accord Sivells v. State, 196 Md.App. 254, 270 , 9 A.3d 123 (2010), cert. dis’d as improv. granted, 421 Md. 659 , 28 A.3d 704 (2011).

The Court of Appeals defined the boundaries of permissible summation in Wilhelm v. State, 272 Md. 404 , 326 A.2d 707 (1974), as follows: As to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range. Counsel is free to use the testimony most favorable to his side of the argument to the jury, and the evidence may be examined, collated, sifted and treated in his own way. Moreover, if counsel does not make any statement of fact not fairly deducible from the evidence^] his argument is not improper, although the inferences discussed are illogical and erroneous. Generally, counsel has the right to make any comment or argument that is warranted by the evidence proved or inferences therefrom; the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, ³³⁰ on the accused’s action and conduct if the evidence supports his comments, as is accused’s counsel to comment on the nature of the evidence and the character of witnesses which the (prosecution) produces....

While arguments of counsel are required to be confined to the issues in the cases on trial, the evidence and fair and reasonable deductions therefrom, and to arguments of opposing counsel, generally speaking, liberal freedom of speech should be allowed. There are no hard-and-fast limitations within which the argument of earnest counsel must be confined — no well-defined bounds beyond which the eloquence of an advocate shall not soar. He may discuss the facts proved or admitted in the pleadings, assess the conduct of the parties, and attack the credibility of witnesses. He may indulge in oratorical conceit or flourish and in illustrations and metaphorical allusions.

Id. at 412-13 , 326 A.2d 707 . Nevertheless, there are limitations upon the scope of a proper closing argument. The Court of Appeals has emphasized that “counsel should not be permitted by the court, over proper objection, to state and comment upon facts not in evidence or to state what he could have proven. Persistence in such course of conduct may furnish good grounds for a new trial.” Id. at 413 , 326 A.2d 707 .

Accord Lee v. State, 405 Md. 148, 166 , 950 A.2d 125 (2008) (improper to make comments “that invite the jury to draw inferences from information that was not admitted at trial”). Reversal is required, however, only “ ‘where it appears that the remarks of the prosecutor actually misled the jury or were likely to have misled or influenced the jury to the prejudice of the accused.’ ” Spain v. State, 386 Md. 145, 158 , 872 A.2d 25 (2005) (quoting Degren, 352 Md. at 431 , 722 A.2d 887 ). The determination and scope of closing argument is within the sound discretion of the trial court. Wise v. State, 132 Md.App. 127, 142 , 751 A.2d 24 , cert. denied, 360 Md. 276 , 757 A.2d 811 (2000).

An appellate court should not “interfere with that judgment unless there has been an abuse of discre ³³¹ tion by the trial judge of a character likely to have injured the complaining party.’ ” Washington v. State, 180 Md.App. 458, 473 , 951 A.2d 885 (2008) (quoting Wilhelm, 272 Md. at 413 , 326 A.2d 707 ). “ ‘Abuse of discretion’ ... has been said to occur ‘where no reasonable person would take the view adopted by the [trial] court,’ or when the court acts ‘without reference to any guiding rules or principles.’ ” Nash v. State, 439 Md. 53, 67 , 94 A.3d 23 (quoting North v. North, 102 Md.App. 1, 13 , 648 A.2d 1025 (1994)), cert. denied, — U.S.-, 135 S.Ct. 284 , 190 L.Ed.2d 209 (2014). With these principles in mind, we address appellant’s contentions. B. Appellant’s Changed Appearance At the close of the evidence, the court and counsel discussed jury instructions. The court declined to give an instruction on consciousness of guilt, despite the State’s argument that appellant’s change in hairstyle could be construed as such.

The court stated that “cutting your hair, alone” was not enough to warrant that instruction. It stated, however, that the State could address that issue in closing, stating: “I think that the Defense is certainly free to argue that he cut his hair. From February — it’s now December. I think both of you have that argument.” During the State’s closing arguments, the following occurred: [PROSECUTOR]: Now, what did George Pickett look like on February 15?

Here we go.[ 6 ] What does George Pickett look like today? Do you think that was an accident that Mr. Pickett cut his hair? Black— [DEFENSE COUNSEL]: objection. [THE COURT]: overruled. ³³² [PROSECUTOR]: — male, shorter than the victim, dark skin, high top fade. That’s what George Pickett looked like on the night that he robbed Mr. El-Amine, but he is smarter than to look like that today.

Defense counsel, in his closing argument, challenged Mr. El-Amine’s identification of appellant, noting that when Mr. El-Amine identified appellant’s photograph, he did not say: “ ‘That’s the guy. I’m 100 percent certain that’s the guy. He doesn’t say that. He says: T think so.’ And on the witness stand he said, ‘Yeah, I’m not really sure.’ ” Counsel continued: But you know what the most telling thing ... is?

He’s in the same courtroom — I was going to say — maybe is that 20 feet away? Maybe. Was he asked yesterday in court, “Do you see the person who robbed you?” He wasn’t even asked that. You know why?

Because he couldn’t say yes. He couldn’t say yes. He doesn’t know. That’s the truth.

He doesn’t know who did this robbery. What he has done is he has assumed that the people in the parking lot of the 7/11 that that’s the same people. That’s what he’s done. He’s made an assumption.

You can’t do that. You can’t assume that. In rebuttal, the State responded: You heard that there is no difference between direct evidence which would be [Mr. El-Amine] standing over there saying it’s him. He’s drastically changed his appearance ladies and gentleman, drastically.

The court overruled appellant’s objection, and the State continued: He identified him three days after the crime occurred. Three days. And that same day he’s wearing [Mr. El-Amine’s] property and his co-conspirator is found to be in possession of further property and the weapon. He saw him in the 7/11 parking lot and with no equivocation he knew it was the exact same person.

And that was something [appellant’s counsel] did not focus on. She focused on the actual 30 seconds of the robbery. I’m asking you to focus on all of it together. Not to exclude what he says he ³³³ saw at the 7/11.

Because when he calls 911, what does he say? It’s the guy with the high top fade. He did not see that high top fade in the actual 30 seconds of the robbery. He made that identification based on knowing that it was the same two men in the exact same car that followed him.

Appellant contends that the State’s references in closing arguments to his changed hairstyle between the time of assault and the time of trial were improper for two reasons: (1) the State could not rely on appellant’s appearance because he did not testify, and therefore, there was no evidence to establish what appellant’s hairstyle looked like at trial; and (2) the evidence was not relevant because “post-apprehension changes in appearance do not constitute proper consciousness-of-guilt evidence.” The State contends that where, as here, identity was at issue, it “was appropriate for the prosecutor to emphasize to the jury that [appellant] looked different at trial than he did on the day of the crime.” That argument, it asserts, accomplished three legitimate purposes: (1) it reminded the jury that appellant looked different in court from how he looked on the day of the crime; (2) it explained why Mr. El-Amine may not have been able to make an in-court identification; and (3) it appropriately suggested consciousness of guilt. In any event, the State argues, even if there was error, it was harmless. The jury had the opportunity to observe appellant’s hairstyle; thus, the jury “could make its own decision about whether [he] had the same or a different hairstyle from the man whom [Mr.] El-Amine described as his assailant, the man in the still photographs taken shortly before the crime and the man in the photo array.” And the court specifically instructed the jury that it must base its decision on evidence, and that closing arguments are not evidence, but are only intended to help the jury understand the evidence and apply the law. We begin our analysis with Bryant v. State, 129 Md.App. 150 , 741 A.2d 495 (1999), cert. denied, 358 Md. 164 , 747 A.2d 645 (2000), upon which appellant relies.

In that case, the ³³⁴ prosecutor commented in closing argument on the defendant’s demeanor during trial, asking the jury if it noticed the failure of the defendant to look a witness in the eye. This Court held that the argument was improper, stating that prosecutorial comment “on the passive courtroom demeanor of a non-testifying defendant” was not appropriate. Id. at 161, 741 A.2d 495 . We further stated that the prosecutor compounded the impropriety by adding her personal assurance that the alleged conduct occurred, saying: ‘We all saw it.” Id. at 161 , 741 A.2d 495 .

The Court stated: “ ‘Generally, it has been held improper to remark on the personal appearance of an accused, except where identity is in issue or where the remark is with respect to the accused’s appearance while testifying.’ ” Id. at 159 , 741 A.2d 495 (quoting Campbell v. State, 65 Md.App. 498, 505 , 501 A.2d 111 (1985)). This case is distinguishable from Bryant . Unlike in that case, the prosecutor here was not commenting on appellant’s demeanor or off-the-witness-stand courtroom conduct. Rather, the comments focused on appellant’s hairstyle, an objective fact that the jury could see.

There is a significant difference between comment on passive courtroom demeanor and comment on an undisputed, and significant, change in physical appearance. See Diggs & Allen v. State, 213 Md.App. 28, 81 , 73 A.3d 306 (2013) (where prosecutor “simply asked the jury to compare an aspect of the physical appearance and mannerisms of the man in the video, who is clearly visible on screen, to the physical appearance and mannerisms of Diggs, who sat in the courtroom before the jury” argument was not improper), ajfd on other grounds sub nom., 440 Md. 643 , 103 A.3d 700 (2014). Other courts have addressed whether it is appropriate for a prosecutor to comment on a defendant’s change in appearance between the time of the crime and the time of trial. Such a comment has been held to be appropriate where, as here, identity is at issue.

See Commonwealth v. Horwat, 511 Pa. 398 , 515 A.2d 514, 516 (1986) (appropriate for prosecutor to comment on change in appearance where change may affect ability of witness to identify the defendant); People v. Sand ³³⁵ ers, 213 A.D.2d 432 , 622 N.Y.S.2d 986, 987 (1995) (“[Ijdentifi-cation of the defendant was a relevant factor in this trial, the prosecutor’s reference during summation to the defendant’s changed hair style, as evidenced by a photograph of the defendant at the time of his arrest, was fair comment upon the ‘four corners of the evidence.’ ”). Moreover, where there is an undisputed significant change in appearance, other courts have held that it is not an abuse of discretion for the trial court to permit the prosecutor to argue that the change permits an inference of the defendant’s consciousness of guilt. See United States v. Foppe, 993 F.2d 1444, 1450 (9th Cir.) (no error for prosecutor to argue that Foppe grew beard to disguise himself and prevent the eyewitness and the jury from identifying him as the robber), cert. denied, 510 U.S. 1017 , 114 S.Ct. 615 , 126 L.Ed.2d 579 (1993); United States v. Jackson, 476 F.2d 249, 251-53 (7th Cir.1973) (prosecutor may comment on a marked change in defendant’s physical appearance, i.e., cropping Afro haircut short, shaving mustache and growing a goatee, as some evidence of guilt); People v. Cunningham, 25 Cal.4th 926 , 108 Cal.Rptr.2d 291 , 25 P.3d 519, 568 (2001) (comment on defendant’s change of appearance between crime and trial not improper because it relates to identity and consciousness of guilt), cert. denied, 534 U.S. 1141 , 122 S.Ct. 1092 , 151 L.Ed.2d 991 (2002). See also Commonwealth v. Brown, 544 Pa. 406 , 676 A.2d 1178, 1183 (court properly admitted evidence that appellant grew a beard shortly after his arrest because “fa] jury may infer consciousness of guilt upon finding that a defendant intentionally altered his physical appearance for the purpose of avoiding identification”), cert. denied, 519 U.S. 1043 , 117 S.Ct. 614 , 136 L.Ed.2d 538 (1996).

We agree with this analysis. Accordingly, we hold that it is not an abuse of discretion for a trial court to allow a prosecutor to comment on a significant change in the physical appearance of the defendant between the time of the crime and the trial where the change relates to identity and consciousness of guilt. Here, identity was the primary issue, and ³³⁶ the trial court did not abuse its discretion in permitting the prosecutor to argue that appellant’s change in hairstyle was made to avoid identification. C. Lack of Forensic Testing on OtterBox Case Appellant’s next complaint about the prosecutor’s closing argument is that the court erred in allowing the prosecutor, in rebuttal closing argument, to insinuate that appellant’s DNA and fingerprints were found on the OtterBox iPhone case, even though it “presented absolutely no forensic evidence, whatsoever.” The State contends that appellant mischaracterizes the prosecutor’s argument.

In closing argument, appellant’s counsel criticized the State for not