Washington v. State

943 A.2d 704 (2008) 179 Md. App. 32 Rory Howard WASHINGTON v. STATE of Maryland. No. 938, Sept. Term, 2006. Court of Special Appeals of Maryland. March 6, 2008. ⁷⁰⁷ Renee M. Hutchins and Yedidyah Charner, Baltimore, for Appellant.

Diane E. Keller (Douglas F. Gansler, Atty. General on the brief), Baltimore, for Appellee. Panel: DAVIS, DEBORAH S. EYLER and JAMES S. GETTY, (retired, specially assigned), JJ. DAVIS, Judge.

Appellant, Rory Howard Washington, was charged with seven counts, including attempted murder in the first degree, attempted murder in the second degree, assault in the first degree, assault in the second degree, illegal use of a handgun in the commission of a felony or crime of violence, illegal carrying or transporting of a handgun and illegal possession of a regulated firearm, respectively. After a three-day trial beginning on March 20, 2006, a jury sitting in the Circuit Court for Baltimore City found appellant guilty, inter alia, of counts three through seven, but acquitted appellant of attempted first-degree murder. The jury deadlocked on the count charging attempted second-degree murder. [1] On June 6, 2006, the court sentenced appellant to the jurisdiction of the Division of Corrections for a period of twenty years for his conviction of assault in the first degree. [2] Appellant was also sentenced to fifteen years for use of a handgun in the commission of a crime of violence, three years for illegally carrying a handgun and five years for possession of a regulated firearm, these sentences to run concurrent with the twenty-year sentence for assault. This appeal was thereafter timely noted, in which appellant presents the following issues for our review: 1.

Whether the trial court improperly admitted a videotape which purported to be a recording of the events surrounding the shooting, where that videotape was never properly authenticated. 2. Whether the trial court improperly admitted a detective's lay opinion ⁷⁰⁸ testimony implicitly identifying appellant in the videotape which purported to depict the events surrounding the shooting. 3. Whether [appellant's] jury was inappropriately pressured into reaching a verdict by the trial court's premature, repetitive and improperly worded Allen [ [3] ] charges. 4. Whether [appellant's] conviction for possession of a regulated firearm must be reversed where proof of the size of the firearm is a necessary element of the offense and the State failed to produce any evidence that [appellant] possessed a gun smaller than sixteen inches.

For the reasons that follow, we resolve the issues in favor of the State and, accordingly, affirm the judgment of the Circuit Court for Baltimore City. FACTUAL BACKGROUND During the evening of June 23, 2005, Jermaine Wright frequented Jerry's Bar, a bar and liquor store, located at 604 Poplar Grove Street in Baltimore City. At approximately 10:00 p.m., Wright stepped outside of Jerry's Bar and was shot. A bullet entered the right-side of Wright's stomach and became lodged in his spinal cord, resulting in L3 spinal cord injury.

After arriving on the scene, police officers found narcotics on Wright's person and recovered a pink hat that was later determined to belong to Wright. Pursuant to police investigations, Wright told the officers that he did not know his assailant, but described him as "a black male," having a "thick build" and "wearing a white T-shirt." Wright also told the officers that he did not see the weapon used to shoot him. Appellant was subsequently apprehended for the shooting of Wright and was charged under the seven counts set forth, supra. The lead detective working Wright's case, Carlos Vila, met with Wright on three separate occasions, including the day before trial, in an effort to identify his assailant.

On those different occasions, Wright either refused to view the photo array that Detective Vila had prepared or claimed that he needed more time. Appellant's trial began on March 20, 2006 and spanned three days. Despite Wright's failure to identify appellant prior to trial, Wright testified that he and appellant had an argument. Appellant subsequently left Jerry's Bar, returned ten minutes later and asked Wright to step outside.

Believing that appellant wanted to "rumble," Wright followed appellant out of the bar. According to Wright, once outside of Jerry's Bar, appellant "whipped out his gun and shot [him]," and everything "happened real fast." After unequivocally identifying appellant, whom he had known for three years, as the man who shot him, Wright explained his reasoning for not coming forward until trial. He said: "I wanted [appellant] to still be out there because, you know, I was going to take advantage myself. I was going to get him." "I was so mad and angry I wanted — you know, I was going to deal with it myself." Wright testified that, although he was still "mad," he decided to come to court because he thought "it's best." An employee of Jerry's Bar, Charles Burrell, however, recounted a different version of events that occurred during the night of June 23, 2005.

According to Burrell, a man named "E" and Wright engaged in a fight at approximately 9:00 p.m. ⁷⁰⁹ Burrell broke up the fight and "put the guy named `E' out of the bar." Burrell then told Wright to sit in a chair, while he (Burrell) went next door to pick up food that he had ordered. While Burrell was waiting for his food, he heard gun shots. Burrell ran outside to find Wright "at the front door of Jerry's Bar laying down on the ground." The State pointed out that, contrary to his trial testimony, Burrell had told police that he saw appellant on the day of the shooting. After refreshing Burrell's recollection with his taped statement to police, Burrell agreed that appellant "had been in and out" of the bar.

Burrell additionally testified that appellant is known to wear a white T-shirt on his head "like he an Arab or something." Gregory Jennings confirmed Burrell's testimony that appellant always wore a T-shirt or towel around his head. Jennings also agreed that, on the day after the shooting, he identified appellant's photograph for the police. On the back of a photograph, Jennings wrote and signed that "[he] saw [appellant] outside arguing with [Wright]." At trial, however, Jennings claimed that it was his understanding that he was not free to leave during police questioning until he provided a statement to police. He further claimed that police officers informed him of what to say in his statement.

During appellant's trial, the State presented the testimony of Detective Vila regarding his investigation. Detective Vila testified that, once he discovered that David Kim, the owner of Jerry's Bar, had installed eight surveillance cameras, he requested a copy of the footage. Kim, however, did not know how to extract data from the computerized system and, in turn, called a "technician" to transfer the recorded data to a compact disc. Thereafter, Kim provided the disc to Detective Vila, which was later converted to VHS.

The State offered the videotape and excerpted photographic stills therefrom into evidence. Over appellant's specific objection that the videotape lacked proper authentication, the court allowed the State to play the videotape in the courtroom and permitted the jury to view the videotape during its deliberations. Additionally, Detective Vila conveyed to the jury his observations of the still photographs. Appellant takes issue with the detective's testimony, claiming that he repeatedly "implied" that an individual pictured in the photographs was appellant.

After hours of deliberation, the jury returned its verdict. As noted, appellant was found guilty of first-degree assault, second-degree assault, use of a handgun in a felony or crime of violence, possession of a regulated firearm and illegally carrying a handgun. Appellant was acquitted of attempted first-degree murder. The jury, despite an Allen charge, remained deadlocked on the charge of attempted second-degree murder.

Additional facts will be discussed as warranted throughout our analysis. ANALYSIS I Appellant initially argues that the videotape of the surveillance footage taken from Jerry's Bar was not properly authenticated. Specifically, he argues that, pursuant to the "silent witness" theory of authentication, the State failed to present sufficient evidence describing the process that produced the videotape and excerpted still photographs therefrom. To the extent preserved, the State contends that it presented sufficient evidence to permit a reasonable jury to infer that the videotape is an accurate recording of events surrounding the shooting. ⁷¹⁰ Preliminarily, the State argues that appellant's specific contention that the State failed to establish if and how the videotape was "edited" is unpreserved for appellate review.

At trial, Kim testified that the computerized surveillance system of Jerry's Bar records automatically, twenty-four hours a day. To provide Detective Vila with the footage of the shooting, Kim asked a "technician" to transfer the data from the system to a compact disc because he did not know how to do so himself. A compact disc was subsequently provided to Detective Vila that night. [4] Appellant objected to the admittance of the videotape into evidence, arguing that the State failed to present testimony of someone familiar with the computer generated system. Thus, he asserts that "there's a hole that's not filled" regarding the copying of the computer data onto compact disc.

On appeal, appellant contends that, "without specific evidence describing how the video data recorded from multiple cameras was transferred and compiled into a single viewable format, and how the portions of the video admitted into evidence were edited, a trial court could not know whether the video was presented in a manner which significantly altered the accuracy of the tape." Because appellant failed to explicitly mention the possibility of "editing" to the trial court, the State argues that the trial judge "would have no reason to suspect that any `editing' had occurred and could not have considered this aspect of the current claim in its ruling." "To preserve an issue for appellate review, it must first have been presented, with particularity, to the trial court." Jordan v. State, 82 Md.App. 225, 244 , 571 A.2d 238 (1990), aff'd in part, rev'd in part on other grounds, 323 Md. 151 , 591 A.2d 875 (1991); Harmony v. State, 88 Md.App. 306, 317 , 594 A.2d 1182 (1991) (opining that "[a]n offhand remark that the `statute of limitations or something like that' might `come into play' is simply not particular enough to allow appellate review"). A party is required to "bring his argument to the attention of the trial court with enough particularity that the court is aware first, that there is an issue before it, and secondly, what the parameters of the issue are." Harmony, 88 Md.App. at 317 , 594 A.2d 1182 . The trial court needs sufficient information to allow it to make a thoughtful judgment. Id.

Appellant's repeated general objections that the videotape lacked authentication encompasses his specific contention of "editing" on appeal. Appellant brought the issue of authentication to the trial court's attention by pointing to the gap in testimony and arguing that "someone familiar with the computer generated system" needed to testify to "the copying from the system onto CD_ROM or CD — a DVR or whatever." Clearly, the issue before the trial court was the lack of testimony regarding how data from eight different cameras, feeding into the computer generated system, was compiled into a single viewable format. The fact that "editing" may have been required is reasonably implied by the objection raised below. See Sifrit v. State, 383 Md. 116 , 857 A.2d 88 (2004).

Thus, the issue of "editing" is properly before this Court. Addressing the merits, videotapes are generally admissible in evidence on the same basis as motion picture films and are subject to the same general rules applicable to photographic evidence. Dep't ⁷¹¹ of Pub. Safety & Corr.

Servs. v. Cole, 342 Md. 12, 20 , 672 A.2d 1115 (1996) (Cole II); [5] Tobias v. State, 37 Md.App. 605, 615 , 378 A.2d 698 (1977). Photographs may be admissible under one of two distinct rules. Typically, photographs are admissible to illustrate testimony of a witness when that witness testifies from first-hand knowledge that the photograph fairly and accurately represents the scene or object it purports to depict as it existed at the relevant time. Cole II, 342 Md. at 21 , 672 A.2d 1115 (This method of authentication is known as the "pictorial testimony" theory.); see also 6 Lynn McLain, Maryland Evidence § 901.2, at 491 (1987).

There is a second, alternative method of authenticating photographs that does not require first-hand knowledge. The "silent witness" theory of admissibility authenticates "a photograph as a `mute' or `silent' independent photographic witness because the photograph speaks with its own probative effect." Cole II, 342 Md. at 21 , 672 A.2d 1115 ; see also Sisk v. State, 236 Md. 589, 591-92 , 204 A.2d 684 (1964). Professor Wigmore, explaining the rationale behind this theory, has stated: With later advancements in the art of photography . . . and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the `pictorial testimony' rationale) there may nevertheless be good warrant for receiving the photograph in evidence.

Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which `speaks for itself.' Cole II, 342 Md. at 21-22 , 672 A.2d 1115 (citing 3 Wigmore on Evidence § 790, at 219-220 (Chadbourn rev.1970)) (emphasis added). Under the silent witness doctrine, "photographic evidence may draw its verification, not from any witness who has actually viewed the scene portrayed on film, but from other evidence which supports the reliability of the photographic product. . . ." Cole II, 342 Md. at 22 , 672 A.2d 1115 (citing 2 McCormick on Evidence § 214, at 15). Appellant argues that the State attempted to authenticate the videotape and still photographs therefrom, pursuant to the silent witness theory. He contends, however, that the "scant evidence" adduced at trial regarding the process that produced the videotape stands in stark contrast to the detailed testimony that the Court of Appeals concluded warranted admissibility in Sisk v. State, supra and Cole II, supra .

The Court in Sisk relied upon the "silent witness" theory over forty years ago to uphold the admission of a Regiscope photograph. [6] In its prosecution of James Sisk for obtaining money by false pretenses, the State entered into evidence a Regiscope photograph that showed Sisk passing the check, the identification Sisk used in passing the check and the check itself. By presenting evidence that showed when, ⁷¹² where and under what circumstances the picture was taken, the State laid an adequate foundation for admissibility. William Shraver, Chief Investigator for Montgomery Ward, testified that, after receiving an unpaid check, he removed the film from the store's Regiscope camera. Id. at 594 , 204 A.2d 684 .

He then sent the film, by mail, to the "Regiscope Company," with a description of the check and the Bates number thereon and requested a photograph. The returned photograph was admitted into evidence. The bottom part of the photograph was a picture of the person cashing the check, while the top part was a picture of the check and the identification used to cash the check. Id.

Marian Stevens, head cashier of Montgomery Ward, testified that she and her assistants cashed approximately twenty-five to thirty checks on the day in question and that they had each operated the Regiscope machine on many occasions. Id. at 595 , 204 A.2d 684 . Stevens explained to the court the location of the machine in the store and how a picture is taken. Joseph Slattery, an employee of Regiscope, demonstrated for the court, in detail, how the camera worked.

Id. Slattery additionally explained how his company processed and stored the film. After examining the roll of developed film in the film reader and finding the negative of the "particular transaction," he testified that the enlargement was a true representation of the negative. Id.

According to Slattery, the film used in taking Regiscope pictures is perforated on one side only, so that the film "cannot be put in reverse." Id. at 596 , 204 A.2d 684 . Therefore, on the finished picture, the check is always above the person's picture. The detailed explanation of the operation of the Regiscope camera made "the possibility of error in the photograph almost nil, in the absence of some intentional trickery to `fake' the photograph" and, thus, the court held that the negative and enlargement thereof accurately portrayed the subjects illustrated. Id.

Thirty years after Sisk , the Court of Appeals in Cole II, supra, applied the "silent witness" principle to videotape evidence. The videotape at issue showed a disruptive inmate being extracted from a prison cell and was offered at an administrative hearing for termination of employment of a correctional officer who had participated in the extraction. The Department, however, did not produce a witness who was present at the extraction to testify to the videotape's accuracy. Thus, in an effort to authenticate the videotape pursuant to the "silent witness" theory, the prison warden testified that cell extractions are ordinarily videotaped and routinely labeled with the date and time of the extraction and the names of the inmate and officers involved.

Cole II, 342 Md. at 27 , 672 A.2d 1115 . (The warden was competent to testify as to the routine practices of the prison under Md. Rule 5-406); see Md. Rule 5-406 (2007) ("Evidence of the . . . routine practice of an organization is relevant to prove that the conduct of the . . . organization on a particular occasion was in conformity with the . . . routine practice."). According to the warden, the videotapes are kept in an individual envelope and are stored in a security vault at the institution, where they may be viewed only by signing in and out on a chain of custody form. Cole II, 342 Md. at 27 , 672 A.2d 1115 .

Based on the totality of the circumstances, the Court held that the videotape was sufficiently authenticated. Id. Applying the "silent witness" theory to videotape evidence for the first time, the Court declined to adopt any rigid, fixed foundational requirements for authentication, reasoning ⁷¹³ that the facts and circumstances surrounding the making of photographic evidence and its intended use at trial will vary from case-to-case. Id. at 26 , 672 A.2d 1115 .

Thus, the Court left the trial court with "some discretion in determining what is an adequate foundation" so long as the foundation laid assures the accuracy of the process producing the photographic evidence. Id. at 26-27 , 672 A.2d 1115 ; see also Md. Rule 5-901(a) (2007) ("The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."). It is clear from Sisk and Cole II that the governmental entities utilized the silent witness theory so that the Regiscope photograph and videotape "spoke for themselves," rather than "solely to add to or illustrate the testimony of a human witness." Cole II, 342 Md. at 23 , 672 A.2d 1115 (emphasis added). In Sisk , the State's entire case rested upon the Regiscope photograph.

By comparison, in Cole II , the Department did not produce a witness who was present at the cell extraction to testify as to the accuracy of the videotape. Because it was undisputed that Cole was depicted in the videotape, see Cole II, 342 Md. at 27 , 672 A.2d 1115 , the Department's primary objective in showing the videotape was to demonstrate that Cole committed actions that warranted his dismissal. Accordingly, the application of the silent witness theory hinges, in large part, on the proponent's purpose in entering the videotape or photograph into evidence. Undeniably, the State's purpose for showing the videotape of the surveillance footage in the case sub judice was to place appellant at the scene of the shooting.

Cf. Cole II, 342 Md. at 27 , 672 A.2d 1115 (where the videotape showed the commission of improper conduct and not that Cole was present at the time of the cell extraction). To completely resolve the issue before us, however, we must also determine whether the videotape was probative evidence that appellant was at the scene of the crime or whether the images portrayed by the videotape added to the testimony of the State's witnesses. The State elicited testimony from three witnesses who were present in Jerry's Bar on the night of the shooting.

Its primary witness, Wright, unequivocally identified appellant as the individual who shot him. The other two witnesses, Burrell and Jennings, testified that appellant frequented Jerry's Bar that evening. Prior to appellant's trial, including the day before trial, however, Wright had failed to identify his assailant. We may not assume, however, that the State was uncertain as to whether Wright would testify that appellant was the shooter or place him at the scene of the shooting when he was called to testify. [7] Sequentially, the State produced Wright as a witness only after the State had called Detective Vila and introduced the videotape and still photographs therefrom through his testimony.

See infra Part II. It was subsequent to Vila's testimony that Wright was called to testify during which he identified appellant as the individual who shot him. Thus, irrespective of the order in which the witnesses were called to testify, the net effect of the videotape served to bolster Wright's credibility and corroborate his testimony that, not only was appellant present at the scene of the shooting, but that appellant had shot him. ⁷¹⁴ See Cole II, 342 Md. at 24 , 672 A.2d 1115 (citing Fisher, 643 S.W.2d at 573-75) (Photographic evidence is the best available means of preserving the appearance of a scene at a given time and because "[e]yewitness testimony is subject to errors in perception, memory lapse, and a witness' problem of adequately expressing what he observed in language so that the trier of fact can understand," photographic evidence is superior to eyewitness testimony in certain respects.). [8] The purpose for which the videotape was offered in the instant case thus differs from the purpose for which the videotape and photographs were offered in Sisk, Cole II and cases from other jurisdictions, in which there was no testimony from a witness capable of swearing that he or she personally perceived what the videotape or photograph purported to portray. Cf.

Brooks v. Virginia, 15 Va.App. 407 , 424 S.E.2d 566, 569 (1992) (videotape of a drug transaction between Brooks and a police informant, where the State authenticated the videotape by showing that tabs allowing alteration of the tape were removed and that the videotape contained an on-screen display of the seconds that had passed and by presenting testimony of three police officers who verified that the voice on the tape was that of Brooks even though none of the officers testifying actually observed the drug transaction taking place); Fisher v. Arkansas, 7 Ark.App. 1 , 643 S.W.2d 571, 573 (1982) (holding that the trial court properly admitted a surveillance videotape of a grocery store after the store's owner testified that, prior to the time the defendant entered the store, he had adjusted the camera, began recording, checked that it was working properly and then left the premises whereupon the unattended camera captured video of Fisher and her daughters "sacking groceries, and removing them"); see also United States v. Pageau, 526 F.Supp. 1221, 1224 (N.D.N.Y.1981) (testimony as to installation, activation, operation and chain of possession of videotape depicting correctional officers beating inmate was sufficient foundation); Maine v. Young, 303 A.2d 113, 116 (Me.1973) (testimony as to installation, testing and custody of film from bank's automatic camera justified admission of film as independent evidence). In the above cited cases, the photographs or videotapes were real evidence. See Joseph F. Murphy, Jr., Maryland Evidence Handbook § 1103 at 445 (3d ed. 1999) (Real evidence are those tangible items that are actually part of the facts being presented and not mere visual aids). Former Chief Judge Murphy of this Court explained that, "Like an X-ray, an [unattended] surveillance photograph that positively identifies a burglar or robber is `real,' not `demonstrative' evidence" and "[s]uch a photograph is not admissible as a visual aid because nobody can testify that it fairly and accurately shows what he saw." See Cole II, 342 Md. at 22 , 672 A.2d 1115 (Although no one who can testify from direct observation inside the body, x-ray photographs are admissible, pursuant to the silent witness theory, because they accurately represent what they purport to show).

Wright's testimony reveals that he personally perceived the images portrayed by the surveillance footage. See 3 Wigmore on Evidence § 790, at 219-20. ("Even though there is no human capable of swearing that he personally perceived ⁷¹⁵ what a photograph purports to portray (so that it is not possible to satisfy the requirements of the `pictorial testimony' rationale) there may nevertheless be good warrant for receiving the photograph into evidence."). Consequently, appellant's case does not, technically, fall within the silent witness rule.

Authentication of the videotape of the surveillance film is required, however, in any event. Regarding authentication, we said in Cole I: In 5 Lynn McLain, Maryland Evidence § 403.6 (1987), Professor McLain discusses the admission of movies, video tapes, and sound recordings. She points out that `the courts suspect that movies and tapes may be easily manipulated, through such means as editing and changes of speed, to produce a misleading effect.' Id. at 322 (footnote omitted). She states that the modern trend is to require `that a person with first-hand knowledge of the subject of the movie or video tape testify that it is a fair and accurate portrayal of the subject.' Id. at 322, citing, among others, Tobias, 37 Md.App. 605 , 378 A.2d 698 (1977), and McCormick on Evidence § 214. 2 John W. Strong, McCormick on Evidence § 214 (4th ed.1992) states: `[A] photograph is viewed merely as a graphic portrayal of oral testimony, and becomes admissible only when a witness has testified that it is a correct and accurate representation of relevant facts personally observed by the witness.' Id. at 13 (footnote omitted). 3 Charles C. Scott, Photographic Evidence § 1294 (2d ed.1969), says, relative to video tapes, `[V]ideo tape recordings should be admitted in evidence and played back for court and jury on the same basis as ordinary motion pictures on film, subject only to the usual showing of relevancy and materiality and to proper verification.' Id. at 152 (emphasis added).

Cole I, 103 Md.App. at 133, 652 A.2d 1159 . See Cole II, 342 Md. at 24 , 672 A.2d 1115 ("Photographic evidence is admissible where its authenticity can be sufficiently established in view of the context in which it is sought to be admitted."). The State failed to lay an adequate foundation assuring the accuracy of the process that produced the videotape and, thus, the trial court abused its discretion in permitting the admission of the videotape and still photographs therefrom into evidence. Kim testified that the computerized system at Jerry's Bar is comprised of eight cameras, with six cameras located inside of the bar and two cameras located outside of the bar.

According to Kim, the system is "almost hands-free" and records constantly, twenty-four hours a day, depending "on the activity of the movement." On the night of the shooting, Kim received a telephone call from Detective Vila, asking him to come to Jerry's Bar and provide police with the surveillance footage in issue. Unable to transfer the data from the computer system to a compact disc himself, Kim asked a "technician" to transfer the data. A compact disc was provided to Detective Vila that night. The eight cameras recorded automatically onto a computerized system, but the data was transferred onto one rather than eight different discs.

There was no testimony describing how the recordings from eight different cameras were compiled into a single viewable format. It was necessary for the "technician" or someone possessing expertise or knowledge of the computerized system and how the data is transferred therefrom to explain whether the videotape was edited and, if so, how it was edited. Despite the fact that the date and time is displayed, the lack of evidence regarding the process of transferring the ⁷¹⁶ data from the computerized system to compact disc leaves open the possibility of distortion. See 5 Lynn McLain, Maryland Evidence § 403.6 at 322 (1987) (pointing out that "the courts suspect that movies and tapes may be easily manipulated, through such means as editing and changes of speed, to produce a misleading effect.").

Because of the lack of extrinsic evidence showing under what circumstances the surveillance footage was transferred to a compact disc, the trier of fact could not reasonably infer that the subject matter is what the State claims it to be and, thus, the videotape was not sufficiently authenticated. Nevertheless, we are of the view that the trial court's error in admitting the videotape and still photographs therefrom was harmless beyond a reasonable doubt. See Dorsey v. State, 276 Md. 638, 648 , 350 A.2d 665 (1976) ("In those circumstances where a violation of a right protected by the Federal Constitution occurs, the Supreme Court, as the ultimate arbiter in interpreting and implementing constitutional guarantees, has declared such error to be `harmless,' where, upon a review of the evidence offered the [C]ourt [is] able to declare a belief that it was harmless beyond a reasonable doubt.") (internal citation omitted) (alterations in Dorsey); see also Spain v. State, 386 Md. 145, 161 , 872 A.2d 25 (2005) (citing Dorsey in finding harmless error beyond reasonable doubt). Although appellant and the State, in closing arguments, declared that the "tape [was] the best evidence," the gravamen of the State's case was Wright's unequivocal identification of appellant as the man who shot him.

According to Wright, on the night of the shooting, Wright and appellant engaged in an altercation inside of Jerry's Bar. Thereafter, appellant asked Wright to step outside of Jerry's Bar to "rumble." Wright testified that, once outside of the bar, appellant "whipped out his gun and shot [him]," and that everything "happened real fast." The most important aspect of Wright's direct-examination was his testimony that he had known appellant for approximately three years. On the night of June 23, 2005, he argued with appellant face-to-face and immediately followed appellant outside to continue their fight, whereupon he was shot. From the testimony elicited at trial, there was nothing concealing appellant's identity.

Thus, Wright was able to positively and accurately identify appellant as the shooter. Appellant, however, takes issue with Wright's conclusive identification, pointing to the fact that Detective Vila met with Wright on three separate occasions, including the day before trial, in an effort to have Wright identify his assailant. On those different occasions, Wright either refused to view the photographic array that Detective Vila had prepared or claimed that he needed more time. During the trial, Wright provided a plausible explanation for his failure to identify appellant until the trial.

He explained: "I wanted [appellant] to still be out there because, you know, I was going to take advantage myself. I was going to get him." He also said: "I was so mad and angry I wanted — you know, I was going to deal with it. myself." Wright testified that, although he was still "mad," he decided to come to court because he thought "it's best." Additionally, Jennings, who "helps [Jerry's Bar] out," saw Wright and appellant inside of the bar on the night of the shooting. He testified that Wright, whom he had known as "Juice," [9] "had a few words ⁷¹⁷ with a couple guys in the bar and [appellant] was one of them." According to Jennings, at some point, Wright and appellant went outside of the bar. Moreover, in a statement to police, Jennings identified appellant's photograph and wrote on the back of the photograph, "I saw [appellant] outside arguing with Juice" and signed his name.

During trial, however, Jennings claimed that police officers told him what to write in his statement and refused to allow him to leave the station until he gave that statement. Burrell, after the State refreshed his recollection with his taped statement to police, confirmed the testimony of Jennings by testifying that appellant "had been in and out" of Jerry's Bar on the evening of the shooting. Upon our independent review of the record, we can affirmatively say beyond a reasonable doubt that the trial court's error in admitting the videotape and still photographs without proper authentication did not in any way influence appellant's verdict. Lawson v. State, 389 Md. 570, 581 , 886 A.2d 876 (2005).

The videotape and still photographs added to or illustrated the testimony of Wright, Burrell and Jennings and, thus, in our view, the jury would have found appellant guilty without reliance on the improperly admitted evidence. Because the error "probably" did not affect the jury's verdict, a reversal is not warranted. Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Kotteakos v. United States, 328 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946) (Non-constitutional errors require reversal only when the error "substantially" or "probably" affected the jury's verdict and, thus, to put it another way, only when there is no probability that the jury's verdict would have been different is the error harmless). II Appellant next complains that the trial court compounded the error of improperly admitting the videotape and still photographs therefrom by allowing Detective Vila, who was not present at the time of the shooting "to repeatedly imply that an individual in the videotape and photographs excerpted from the video was [appellant]." [10] The State responds that the trial court properly exercised its discretion in allowing the detective to relate his observations regarding the videotape and still photographs therefrom to the jury, while expressly precluding the detective from identifying appellant as one of the individuals depicted.

Pursuant to Maryland Rule 5-701, "If the witness is not testifying as an expert, the