Sinclair v. State

JAMES A. KENNEY, III (Ret’d, Specially Assigned), J. A jury in the Circuit Court for Prince George’s County convicted Ronald Sinclair, appellant, of charges related to carjacking, use of a handgun in the commission of a felony or crime of violence, and possession of cocaine. He was sentenced to a twenty-year term for carjacking, a concurrent twenty-year term for conspiracy to commit armed carjacking, a concurrent four-year term for possession of cocaine, a concurrent five-year term for possession of a regulated firearm by a prohibited person, and a consecutive twenty-year term for use of a handgun in a felony or crime of violence. The remaining convictions merged for sentencing purposes. Appellant presents three questions, which we have consolidated into two, reordered, and rephrased as follows: 1 1.

Did the trial court err in ruling that [appellant’s] cell phone could be searched without a warrant incident to his valid arrest? 2. Did the trial court err in admitting other crimes evidence, and, if not, did the trial court then abuse its discretion in determining that appellant’s statement to his probation officer was proper rebuttal evidence? For reasons that follow, we answer “no” to both questions, and, accordingly, affirm the judgments of the circuit court. FACTUAL and PROCEDURAL BACKGROUND Motion in Limine Immediately before the jury was selected and trial began, appellant, through defense counsel, moved in limine to suppress photographs of car rims found on appellant’s cell phone, which was seized at the time of his arrest.

During argument ³¹⁴ on the motion, defense counsel stated that at some point after appellant was arrested, “[t]he law enforcement officer opens the cell phone, goes through it, and apparently pulls out what purports to be some photographs.” This search, according to defense counsel, violated appellant’s Fourth Amendment “right against unreasonable searches and seizures.” Defense counsel further argued: “I know there’s been some case law about if the phone is just opened, for example, similar to a digital phonebook, that might be permissible, Your Honor, but here the State did more in the absence of a warrant. And in the absence of exigent circumstances.” Defense counsel also argued that the images recovered from appellant’s phone constituted impermissible hearsay: [DEFENSE COUNSEL]: Your Honor, if it’s just the images, but there’s other information in there to it, which is clearly hearsay. There’s a time stamp on it, it says sent. We don’t know who the other party is.

If [it’s] just an image without more, Your Honor, then, you know, I think that’s workable, but any testimony beyond that I think has to come through an expert and the State has not noted one. The court concluded that a witness was not required to authenticate the images on appellant’s phone and denied appellant’s motion, finding that it was “a valid search incident to arrest.” Appellant also moved to suppress the introduction of a recorded phone call that he made from jail to his probation agent following his arrest for carjacking. 2 In this recorded conversation, appellant informed his probation agent that he was with his mother and girlfriend on the day of the carjacking. During argument on the second motion, the following exchange occurred: [DEFENSE COUNSEL]: The second motion in limine, Your Honor, is that the State has put the defendant on notice that they want to use certain phone calls from the ³¹⁵ detention center. And particularly a phone call between the defendant and he calls his probation agent to say, you know, I’m here.

I’m always straight with you, I’m at the earliest stages of the case, but don’t worry, I didn’t have anything to do with this. It gives a little more explanation and says something like I was with my mom and my girlfriend that day or something to that effect. And she [the probation officer] says that’s fine. Just keep me updated.

The State has said that they want to use that recording by and through the probation agent, Your Honor. I’d object for a couple of reasons. One, it’s hearsay. Two, it’s [sic] prejudicial value, exceeds its probative value.

Third, I don’t think the State can use it in [its case-in-chief], Your Honor, unless and until an alibi is generated, and then only if the defendant were to take the witness stand, it could be used potentially as impeachment. THE COURT: Or if he presents another witness. What is the State’s position? [THE STATE]: That is the State’s position. It was not our intention to use it in our case-in-chief.

The Defense have given a [notice] of alibi witnesses of which I have a motion in limine. That is the reason we be would using it is to rebut [an] alibi witness. Whether it be the defendant or somebody else. THE COURT: Correct. [DEFENSE COUNSEL]: Your Honor, that’s pretty significant for a couple of reasons.

One [it’s] hearsay. [It’s] not under oath. THE COURT: It’s the statement of the defendant. [DEFENSE COUNSEL]: Yes, but it still—it has to be for some [other] exception to the hearsay rule, Your Honor. Admission against interest. Consciousness of guilt.

Any of those, Your Honor, but this is him calling his probation agent. THE COURT: Once again I don’t know anything about this case. They came up to me yesterday afternoon, but pre ³¹⁶ sumably if you call a witness who is not his mother or his sister [sic] and he says he was with me at the time, that is appropriate rebuttal. [DEFENSE COUNSEL]: Your Honor, I think at some stage we should probably hear the recording. It’s four minutes and I don’t think it specifies a time.

It’s not under oath, I mean, it’s something that I think is unfairly prejudicial to the defendant because it was not said under oath and it was maybe a two minute [conversation] where he’s not specifically saying this is my alibi or even the time in question, Your Honor. The concern that is it’s going to prejudice the jury. THE COURT: Mr. [Defense Counsel], we can deal with that if you do call your alibi witness and that comes up, but the fact it’s not under oath is not significant. The fact that he didn’t say, quote unquote, this is my alibi is not significant.

If it impeaches a witness, it is perfectly appropriate. So let’s pick our jury and we’ll leave that and see if that occurs. But if you do call a witness who testifies otherwise, it’s admissible, and I will certainly find that the probative value far outweighs any prejudicial value. [DEFENSE COUNSEL]: Your Honor, why don’t we address that as we get closer. I think I want the court to hear it before the witness.

(Emphasis added.) The Trial Thomas Gaines testified that at approximately 9:00 p.m. on April 29, 2010, he stopped at the CITGO gas station located at 5175 Old Branch Avenue in Temple Hills to get gas for his Dodge Charger. While pumping gas into his car, he observed two men engaged in a heated phone conversation: one was appellant, who “had some plaits or something in his hair at the time.” After the call ended, appellant and the second man approached Gaines. Appellant asked Gaines if he “wanted to buy some weed.” Gaines rejected the offer. ³¹⁷ Appellant then “put a gun” in Gaines’s side, and told him not to move. Gaines described the gun as being black; “[i]t looked like a 9mm, like the kind of gun the police have.” The second man went into Gaines’s pockets and took his wallet and cell phone.

Gaines testified that he had two or three dollars in his wallet. After his wallet was taken, appellant and the second man fled the scene in Gaines’s car. Gaines identified appellant as the person who brandished the handgun and drove the car away. Gamadanyau Salami, the cashier at the CITGO gas station where the carjacking occurred, corroborated Gaines’s testimony.

Salami testified that while Gaines was pumping gas into a Dodge Charger, he was approached by two men, one of whom had dread locks. Immediately after approaching Gaines, one of the two brandished a gun. After taking Gaines’s wallet, they sped away from the gas station in the Dodge Charger. The following day, Gaines went to a shopping center in Marlow Heights to purchase a new phone and saw his car in the parking lot.

Gaines instructed his girlfriend to flag down the police officer that was also in the parking lot while he “blocked in” his vehicle, so that it could not be driven out of the parking lot. He then “went looking for the guys that stole it.” At approximately the same time that the officer contacted by Gaines’s girlfriend arrived to help, Gaines saw appellant in a barber shop in the shopping complex. According to Gaines, appellant kept looking back at him. Appellant exited the barber shop, talking on his cell phone.

A car soon pulled up, appellant got in, and the car drove away. The police stopped that car before it exited the shopping center and ordered appellant out of the car. Officer Kevin Stevenson, Prince George’s County Police Department, testified that he responded to the call for assistance regarding the carjacking at the CITGO station. At the station, Gaines provided Officer Stevenson with a physical description of appellant.

Officer Stevenson put out a lookout for the stolen Dodge Charger. ³¹⁸ When Gaines discovered his car the next day, Officer Stevenson came to the shopping center where the Dodge Charger was parked and confirmed that the vehicle belonged to Gaines. After calling a towing company to pick up the car, he, along with Gaines, watched appellant, who, at the time, was still sitting in the barber shop. When appellant was in the barber shop, Gaines identified appellant as the perpetrator of the carjacking. According to Officer Stevenson, Gaines “was pretty adamant that [appellant] was the guy who carjacked him.” Officer Stevenson testified that appellant entered a car driven by another person and containing an additional passenger.

He stopped the car almost immediately thereafter and ordered the passengers to get out of the car and sit on a curb. When the occupants of the car were sitting on the curb, Officer Stevenson observed “some marijuana bags lying on the floor in the back seat on the floorboard.” When asked “who had been seated” where the marijuana was located, Officer Stevenson replied that it was “where the defendant was sitting.” After Officer Stevenson “patted everybody for weapons,” Gaines “walked up and pointed out the defendant, once again, and said that’s the guy who carjacked me.” Appellant was arrested, and a cell phone as well as a substance that was later determined to be cocaine were seized from his person. 3 Approximately five minutes after arresting appellant, Officer Stevenson examined the cell phone found on appellant’s person. Officer Stevenson testified that the screen saver of the recovered cell phone was a photograph of automobile rims that were confirmed to be identical to the rims on the stolen Dodge Charger. He also located two other pictures of rims that were confirmed to be identical to the rims on the stolen Dodge Charger in the photo library of appellant’s cell phone.

In his arrest report, Officer Stevenson wrote that appellant had “dreads to his shoulders” and “looks like the person who carjacked [Gaines].” The report also noted that appellant was ³¹⁹ “standing near [Gaines’s] vehicle.” On re-direct, Officer Stevenson was asked if there was any evidence that appellant had a haircut while sitting in the barber shop. Officer Stevenson replied: “It didn’t appear [appellant] ha[d] a haircut.” Appellant did not take the stand, but he presented alibi evidence through his father, Ronald Sinclair, Sr. and Jason Slaughter. Mr. Sinclair testified that he let appellant, who did not have a driver’s license, borrow a family car on the date of the carjacking and go out with a family friend, Jason Slaughter, in Largo. According to Sinclair, appellant and Slaughter asked to borrow the car “[a]round 8ish, 7:30—between 7:30 and 8” in the evening.

Sinclair was certain that he let appellant borrow (and Slaughter drive) the car on the night the carjacking occurred. He was confident that he correctly remembered this because his day planner for April 29, 2010 had a “notation” that appellant and Slaughter borrowed a car. He did not bring the day planner to trial because it had been misplaced. Slaughter testified that he was with appellant on the night of the carjacking.

According to Slaughter, they were at the Largo Town Center between approximately 8:00 p.m. and 10:00 p.m., and eventually went to the Stonefish Grill, where he used to work, for approximately 90 minutes. Slaughter testified that he was able to remember the events so well because on April 30, 2010, the day after the carjacking occurred, he was told to leave his home. On cross-examination, Slaughter acknowledged that he had not shared this information with the police prior to trial. After Slaughter testified, the State called appellant’s probation agent to the stand, and during her testimony, the State presented as rebuttal evidence the recorded phone call that appellant made from jail to her.

On cross-examination, there was the following exchange: [DEFENSE COUNSEL]: And when you spoke with [appellant], was there any conversation specifically about what—where he was and what times? ³²⁰ PROBATION AGENT: I remember [appellant] mentioning that he was somewhere else. I do recall that. [DEFENSE COUNSEL]: And do you recall whether there were time things on the phone call? PROBATION AGENT: No. Additional facts -will be added as necessary in our discussion of the issues. DISCUSSION I. Cell Phone Search Appellant contends that the police were required to obtain a warrant prior to searching the recovered cell phone.

Therefore the “court erred by admitting the photographs of the wheel rims stored on the cell phone.” In support of his argument, appellant cites State v. Smith, 124 Ohio St.3d 163 , 920 N.E.2d 949 (2009), in which the Ohio Supreme Court held that “the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances.” Smith, 920 N.E.2d 949 at 955-966 . The State counters that Md. Rule 4-252 “requires that certain issues in a criminal case, including, as here, an allegation of an unlawful search, be raised by written motion filed within 30 days after the appearance of counsel in the case.” Because appellant did not comply with this Rule, the State contends that he has automatically waived this argument. If the issue is preserved for our review, it is the State’s view that defense counsel conceded that Officer Stevenson’s initial opening of the cell phone was constitutional, and, therefore, did not object to its introduction. In other words, appellant’s motion in limine as to the cell phone was “intentionally limited to the claim that it was only Officer Stevenson’s conduct in doing ‘more in the absence of a warrant,’ namely, the examination of the phone’s photo library[.]” Moreover, “[b]ecause the concededly admissible screen-saver photograph duplicates the ³²¹ essential content of the other photographs from the phone photo library,” it follows that, “there could be no prejudice from the admission of the other photographs” found on the phone.

As to the merits of appellant’s contention, the State argues that a majority of jurisdictions confronting the issue have concluded “ ‘that a search of the contents of a defendant’s cellular telephone or other personal electronic device is a lawful search incident to arrest.’ ” (quoting People v. Taylor, 296 P.3d 317, 323 (2012)). According to the State, [t]hese cases generally emphasize the well-established ability of the police to search, in particular, the person of the arrestee, as opposed to the immediate area around the arrestee, and that a cellular phone is simply a digital method of transporting information that otherwise would have to be carried in physical form, no doubt in some form of a container. As we explain below, we are persuaded that appellant’s claim is adequately preserved for our review, but that it fails on the merits. 4 A. Preservation The Court of Appeals has repeatedly held that “the Maryland Rules are precise rubrics.” Pinkney v. State, 427 Md. 77, 87 , 46 A.3d 413 (2012); Dove v. State, 415 Md. 727, 739 , 4 A.3d 976 (2010); Williams v. State, 364 Md. 160, 171 , 771 A.2d 1082 (2001). Maryland Rules, therefore, “are to be read and followed. ” Pinkney, 427 Md. at 87 , 46 A.3d 413 (quoting Parren v. State, 309 Md. 260, 280 , 523 A.2d 597 (1987)) (emphasis added).

Additionally, the “interpretation of the Maryland Rules is a question of law; as such, [an appellate court’s] review [of] a trial court’s determinations on ³²² matters of interpretation [is] without deference.” Id. at 88, 46 A.3d 413 . Md. Rule 4-252(b) provides that a motion to suppress “shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court[.]” According to Md. Rule 4-252(e): “[a] motion filed pursuant to this Rule shall be in writing unless the court otherwise directs, shall state the grounds upon which it is made, and shall set forth the relief sought.” We have said “[fjailure to make a mandatory motion within the prescribed time limits, absent good cause to forgive the dereliction, bars all claims, even those full of constitutional merit.” Pugh v. State, 103 Md.App. 624, 656-57 , 654 A.2d 888 (emphasis added), ce rt. denied, 339 Md. 355 , 663 A.2d 73 (1995). In Pugh , we pointed out that in finding good cause the trial court is vested “with wide discretion.... Thus the trial judge’s determination is entitled to the utmost respect and should not be overturned unless there was a clear abuse of that discretion.” Id. at 656 , 654 A.2d 888 (internal quotations and citations omitted) (ellipses in Pugh).

Here, appellant was arraigned on July 30, 2010 and on August 5, 2010, an attorney, from the Office of the Public Defender, filed an entry of appearance along with an omnibus motion that requested suppression of any evidence obtained in violation of appellant’s 4th, 5th, 6th, and 14th Amendment rights. On September 2, 2010, the State responded that appellant’s motion did not comport with Maryland Rule 4-252(e) and did not put the State on notice of the suppression issues that he actually wished to raise. The State filed discovery on September 7, 2010, and set forth that it would use relevant material on appellant’s cell phone and the testimony of Officer Stevenson. Appellant’s motions were withdrawn without prejudice on September 24, 2010.

The next hearing dates were rescheduled after the State had discovered new evidence but subsequently failed to provide timely discovery. On January 26, 2011, the court reset the motions hearing because appellant ³²³ had retained a private attorney, who was not prepared to proceed. On March 2, 2011, the court granted the State’s request for a continuance because a new State attorney was assigned to the case. From the record, it appears that on March 11, 2011, motions were again withdrawn without prejudice.

The record is unclear, however, as to the subject of those motions and who withdrew them. On March 17, 2011, appellant’s request for a continuance was granted because the State had failed to provide timely discovery. Before trial on April 19, 2011, the appellant made a motion in limine to suppress the evidence recovered from the cell phone. The State’s attorney argued that he had not come prepared to address the motion because they had “already litigated motions, time [had] passed and so on and so forth so [he] had no notice that [the issue would be] raised.” There was no reference to Md. Rule 4-252.

The trial court then addressed the issue on the merits. We have held that omnibus motions, such as the motion filed in this matter, are permitted under Md. Rule 4-252. See Sellman v. State, 152 Md.App. 1, 13-14 , 828 A.2d 803 (2003). Here, appellant, through counsel, timely filed the omnibus motion within 30 days of his arraignment in accordance with Md. Rule 4-252(b).

While appellant’s first counsel withdrew the motion to suppress, it was withdrawn without prejudice, which ordinarily would not preclude a future motion. Appellant’s second counsel then raised the issue before trial in a motion in limine. 5 The issue we must decide is whether withdrawal of the omnibus motion negated appellant’s compliance with subsection (b). Under the circumstances presented by the record, we are not persuaded that it does. The trial court allowed the motion to be withdrawn without prejudice, ³²⁴ which on its face, preserved appellant’s right to raise the issues again.

To hold that appellant’s motion to withdraw negated his initial compliance with subsection (b), we would effectively be converting the withdrawal without prejudice into a withdrawal with prejudice. We decline to do so. We recognize that the State challenged the sufficiency of the omnibus motion. The Court of Appeals held in Denicolis v. State, 378 Md. 646, 660 , 837 A.2d 944 (2003) that sometimes courts will overlook the generality of omnibus motions and permit defendants to make their complaint more specific at a hearing on the motion.

On appeal, the trial court’s discretion to allow a defendant to support an unsupported motion has not been disturbed, so long as “the State is not unduly prejudiced by being called upon to respond immediately to allegations of which it had no notice.” Id. From the record, it appears that the appellant did not provide a factual or legal basis for the motion to suppress until the hearing before trial on April 19, 2011. The trial court, however, allowed the appellant to proceed with his argument which provided a factual or legal basis for the motion. We will not disturb the trial court’s decision because the State was not unduly prejudiced.

Even though the State’s Attorney commented that he was not prepared, he was able to argue the motion and the court ruled in favor of the State. Additionally, we have said that when the State fails to raise the argument at trial that appellant did not comply with the requirements of Md. Rule 4-252, the issue is not preserved for our review. State v. Brown, 200 Md.App. 47, 50 , 24 A.3d 195 (2011). Here, the State’s Attorney commented that he was not prepared to argue the suppression issue because motions had already been litigated and “time has been passed [sic].” It is not clear from the statement that the State was objecting on the grounds that the appellant had failed to comply with the requirements of Md. Rule 4-252.

The trial court proceeded to hear the motion on the merits. The trial court, therefore, must have found either that the appellant had not waived his right to raise the issue or, if it ³²⁵ understood that the State was objecting on a failure to comply with the time requirements of Md. Rule 4-252, that there was good cause to hear the motion. Although the court did not articulate its reasoning for considering and ruling on the motion, silence on the issue does not imply an abuse of discretion. See Wagner v. Wagner, 109 Md.App. 1, 50 , 674 A.2d 1 (“[W]e presume judges to know the law and apply it, even in the absence of a verbal indication of having considered it.”), cert. denied, 343 Md. 334 , 681 A.2d 69 (1996); accord Brown v. State, 171 Md.App. 489, 509 , 910 A.2d 571 (2006).

For these reasons, we are persuaded that the issue is preserved for our review. B. Warrantless Cell Phone Search Warrantless searches are said to be “per se unreasonable.” Williamson v. State, 413 Md. 521, 556 , 993 A.2d 626 , cert. denied, Williamson v. Maryland, — U.S. —, 131 S.Ct. 419 , 178 L.Ed.2d 327 (2010); accord City of Ontario, Cal., v. Quon, 560 U.S. 746 , 130 S.Ct. 2619, 2630 , 177 L.Ed.2d 216 (2010); Paulino v. State, 399 Md. 341, 349 , 924 A.2d 308 , cert. denied, Maryland v. Paulino, 552 U.S. 1071 , 128 S.Ct. 709 , 169 L.Ed.2d 571 (2007). See also Groh v. Ramirez, 540 U.S. 551, 572-73 , 124 S.Ct. 1284 , 157 L.Ed.2d 1068 (2004) (Thomas, J., dissenting) (“[0]ur cases stand for the illuminating proposition that warrantless searches are per se unreasonable, except, of course, when they are not.”). In other words, warrantless searches are not unreasonable when they are permitted by an exception recognized by the Supreme Court. “Among the exceptions to the warrant requirement is a search incident to a lawful arrest.” Arizona, v. Gant, 556 U.S. 332, 338 , 129 S.Ct. 1710 , 173 L.Ed.2d 485 (2009); accord Briscoe v. State, 422 Md. 384, 396 , 30 A.3d 870