Pickett v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 199

September Term, 2014

GEORGE E. PICKETT, III

v.

STATE OF MARYLAND

Wright,
Graeff,
Nazarian,

JJ.

Opinion by Graeff, J.

Filed: April 3, 2015
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?

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?

1
The circuit court sentenced appellant as follows: on Count I, robbery with a
dangerous weapon, 10 years, all suspended; on Count II, conspiracy to commit robbery with
a dangerous weapon, 10 years, all but two years suspended, to be served consecutive to the
sentence on Count V; on Count III, first degree assault, 10 years, all suspended; on Count IV,
conspiracy to commit first degree assault, merged with Count III for sentencing purposes;
on Count V, use of a firearm in the commission of a crime of violence, 10 years, all but five
years suspended, without the possibility of parole, to be followed by five years of supervised
probation; and on Count VI, conspiracy to use a firearm in the commission of a crime of
violence, merged with Count V for sentencing purposes.
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

2
A high-top fade is defined as “[s]haved on the bottom then fad[ing] to long
hair that goes inches above the head.” High-Top Fade, U RBAN D ICTIONARY,
http://perma.cc/BH6R-NA7F (last visited Mar. 9, 2015).
3
Mr. El-Amine did not remember a lot, but he thought the person who got out of the
passenger side of the car “was wearing black and was a bit shorter” than he was.

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also told him: “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 [he] 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.”

4
On cross-examination, Mr. El-Amine testified that he did not recall telling the police
who responded to the 911 call that the individual who had robbed him had been wearing a
colorful jacket, but he stated that he “obviously did because of the 911 call.” He agreed that,
at the time of trial, he did not have any memory of what the robber wore “[b]esides a ski
mask.”

-3-
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 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

Dayquan’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

5
To avoid confusion, we will refer to these individuals by their first names. The
spelling of “Dayquan” is inconsistent in the transcript and the parties’ briefs. We use
“Dayquan.”

-4-
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 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

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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 (1999). Accord Sivells v. State,

196 Md. App. 254, 270 (2010), cert. dis’d as improv. granted, 421 Md. 659 (2011). The

Court of Appeals defined the boundaries of permissible summation in Wilhelm v. State, 272

Md. 404 (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, 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

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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.

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. Accord Lee v. State, 405 Md. 148, 166 (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 (2005) (quoting Degren, 352

Md. at 431).

The determination and scope of closing argument is within the sound discretion of the

trial court. Wise v. State, 132 Md. App. 127, 142, cert. denied, 360 Md. 276 (2000). An

appellate court should not “interfere with that judgment unless there has been an abuse of

discretion by the trial judge of a character likely to have injured the complaining party.’”

Washington v. State, 180 Md. App. 458, 473 (2008) (quoting Wilhelm, 272 Md. at 413).

“‘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

-7-
guiding rules or principles.’” Nash v. State, 439 Md. 53, 67 (quoting North v. North, 102

Md. App. 1, 13 (1994)), cert. denied, 135 S. Ct. 284 (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.

6
The prosecutor’s comments suggest that she was showing the jury the photographs
of appellant that had been introduced into evidence and depicted appellant with a high-top
fade hairstyle.

-8-
[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:

‘I 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 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

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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.

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We begin our analysis with Bryant v. State, 129 Md. App. 150 (1999), cert. denied,

358 Md. 164 (2000), upon which appellant relies. In that case, the 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. 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. 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 (quoting Campbell v. State, 65 Md. App. 498, 505 (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 (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

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the courtroom before the jury” argument was not improper), aff’d on other grounds sub nom.,

440 Md. 643 (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, 515 A.2d 514, 516 (Pa. 1986) (appropriate for prosecutor to

comment on change in appearance where change may affect ability of witness to identify the

defendant); People v. Sanders, 622 N.Y.S. 2d 986, 987 (N.Y. App. Div. 1995)

(“[I]dentification 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 (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

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growing a goatee, as some evidence of guilt); People v. Cunningham, 25 P.3d 519, 568 (Cal.

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 (2002).

See also Commonwealth v. Brown, 676 A.2d 1178, 1183 (Pa.) (court properly admitted

evidence that appellant grew a beard shortly after his arrest because “[a] 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 (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 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.

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

iPhone case, the blue Otterbox, for fingerprints and DNA. Counsel stated as follows:

What else could the State have done? What else could they have given to the
crime lab, to Mary Green . . . to try to test for DNA? [7] How about this? How
about the blue OtterBox? According to [Mr. El-Amine] the robber took this
in his hand. Obviously gave it to [Dayquan]. But they could have tested this.
Mary Green told you and you’ll be able to touch it yourself. They can get
DNA off plastic surfaces like this. They didn’t do that. I don’t know why.
They could have. It wouldn’t have been that hard, but they chose not to. I
wish they had. So, no OtterBox DNA.

What about fingerprints? I know in the age of DNA it seems a little
outmoded maybe, but there are still people who do fingerprints. The State
chose not to do that. Could have done that. Could have tried on both the gun
and the OtterBox, but they did neither. Again, wish they had.

In the State’s rebuttal argument, the prosecutor responded as follows:

[THE STATE]: And putting out DNA, finger prints, that is all a red herring
to confuse you. Because if we had that . . . OtterBox, [appellant’s counsel]
would be up here saying oh all it does is show –

[APPELLANT’S COUNSEL]: Objection.

[THE STATE]: – that [appellant] touched the OtterBox. Not that he
committed the robbery. What if there was his DNA on the OtterBox? Oh he
touched it, they’re together all the time. They sleep over at each other’s
houses, they’re riding around in cars together.

[APPELLANT’S COUNSEL]: Objection.

THE COURT: Overruled.

7
Mary Green, a forensic biologist with the Montgomery County Police Crime
Laboratory, testified for the State that she analyzes items of evidence in connection with
criminal investigations, and performs DNA testing. In this case, she examined DNA swabs
only from the firearm found in the doghouse.

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[THE STATE]: That’s exactly what would be said. It is a red herring and
we’re asking you to focus on the evidence that we have given you which
beyond all doubt proves that. . . .

We disagree with appellant’s characterization of the State’s closing argument. The

State’s argument did not, as appellant contends, insinuate that appellant’s DNA and

fingerprint were found on the iPhone case. Rather, it was merely a response to appellant’s

counsel’s argument regarding forensic evidence, asserting that the lack of DNA evidence and

fingerprints was irrelevant, a “red herring.” The prosecutor asked the jury to focus, not on

this “red herring,” but “on the evidence that we have given you.” We perceive no error.

II.

Jury Instructions

Appellant’s next contention involves the court’s instruction to the jury regarding

eyewitness identification. He asserts that the instruction was improper because Mr. El-

Amine’s eyewitness identification was “uncertain” and “dubious.”

The State contends that we should not review this claim because appellant

affirmatively agreed to the instruction given. Moreover, it asserts that there was no error,

much less plain error, because Mr. El-Amine’s selection of appellant’s photo in the photo

array constituted “some evidence” to generate the instruction.

Prior to instructing the jury, the court discussed the jury instructions, as follows:

THE COURT: Okay. Pattern instruction 3.30: identification of Defendant?

[PROSECUTOR]: Yes.

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[APPELLANT’S COUNSEL]: Yes.

The court then gave an instruction consistent with Maryland Criminal Pattern Jury

Instruction (“MPJI-Cr”) 3:30,8 as follows:

The burden is on the State to prove beyond a reasonable doubt that the offense
was committed and that George Pickett was the person who committed it. You
have heard evidence about the identification of George Pickett as the person
who committed the crime. You should consider the witness’s opportunity to
observe the criminal act and the person committing it including the length of
time the witness had to observe the person committing the crime, the witness’s
state of mind, and any other circumstance surrounding the event. You should
also consider the witness’s certainty or lack of certainty, the accuracy of any
prior description, and the witness’s credibility or lack of credibility as well as
any other factors surrounding the identification.

You have heard evidence that prior to this trial a witness identified
George Pickett in a photo array. The identification of George Pickett by a
single eye witness as the person who committed the crime if believed beyond
a reasonable doubt can be enough evidence to convict George Pickett.
However, you should examine the identification of George Pickett with great
care. It is for you to determine the reliability of any identification and give it
the weight you believe it deserves.

Appellant made no objection to the instruction as given.

8
Maryland Criminal Pattern Jury Instruction (“MPJI-Cr”) 3:30 states as follows:

The burden is on the State to prove beyond a reasonable doubt that the offense
was committed and that the defendant was the person who committed it. You
have heard evidence regarding the identification of the defendant as the person
who committed the crime. In this connection, you should consider the witness's
opportunity to observe the criminal act and the person committing it, including
the length of time the witness had to observe the person committing the crime,
the witness’s state of mind, and any other circumstance surrounding the event.
You should also consider the witness’s certainty or lack of certainty, the
accuracy of any prior description, and the witness’s credibility or lack of
credibility, as well as any other factor surrounding the identification.

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Appellant acknowledges that, because he did not object to the instruction, his

contention in this regard is not preserved for this Court’s review. See Md. Rule 4-325(e)

(“No party may assign as error the giving or the failure to give an instruction unless the party

objects on the record promptly after the court instructs the jury, stating distinctly the matter

to which the party objects and the grounds of the objection.”); Md. Rule 8-131(a) (An

appellate court ordinarily will not decide an issue “unless it plainly appears by the record to

have been raised in or decided by the trial court.”). Not only did appellant fail to argue below

that the court’s instructions were erroneous, he affirmatively agreed to the instruction.

Appellant argues, however, that we should review this claim for plain error. In Kelly

v. State, 195 Md. App. 403 (2010), cert. denied, 417 Md. 502, cert. denied, 131 S. Ct. 2119

(2011), this Court recognized that we have discretion under Md. Rule 8-131(a) to address an

unpreserved issue. We stated, however, that

[i]t is a discretion that appellate courts should rarely exercise, as
considerations of both fairness and judicial efficiency ordinarily require that
all challenges that a party desires to make to a trial court’s ruling, action, or
conduct be presented in the first instance to the trial court so that (1) a proper
record can be made with respect to the challenge, and (2) the other parties and
the trial judge are given an opportunity to consider and respond to the
challenge.

Id. at 431 (citations and quotations omitted).

We further stated:

“Plain error is ‘error which vitally affects a defendant’s right to a fair
and impartial trial.’” Appellate courts will exercise their discretion to review
an unpreserved error under the plain error doctrine “only when the ‘unobjected
to error [is] compelling, extraordinary, exceptional or fundamental to assure

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the defendant a fair trial.’” “[A]ppellate review under the plain error doctrine
‘1) always has been, 2) still is, and 3) will continue to be a rare, rare
phenomenon.’”

Id. at 431-32 (citations omitted).

Appellant has not convinced us to exercise our discretion to engage in plain error

review in this case, where the court gave a pattern instruction, to which appellant’s counsel

agreed and referenced in her closing argument.9 This is not one of those rare cases that

warrants plain error review.

III.

Admission of Photographs

Appellant’s next contention involves the admission of photographs. He asserts that

the court erred in admitting these photographs because the State failed to authenticate them,

and they were prejudicial. The State contends that this Court should decline to engage in

plain error review of this claim.

A.

Proceedings Below

Prior to trial, the State moved in limine to introduce a video captured by a

Montgomery County Police surveillance camera approximately two hours before the robbery

9
In closing argument, appellant’s counsel emphasized how little Mr. El-Amine could
see of his assailant and how quickly the robbery took place. Counsel stated: “And I know
that you’ll look carefully at the judge’s instruction to you – actually, you’ll listen carefully
to what the judge said about identification and how carefully you have to look at
identification because that’s what this case is all about.”

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of Mr. El-Amine. The videotape depicted appellant and Dayquan attempting to steal a police

“bait car” located at 525 Thayer Avenue, 7/10 of a mile from the scene of the crime at issue

in this case.10

The trial court agreed with appellant that the videotape of the bait car incident should

be excluded as impermissible other crimes evidence that was unduly prejudicial. It ruled,

however, that the State could introduce photographs derived from the video that

“distinctively show [appellant] and his hairstyle,” as well as appellant and Dayquan together.

It stated that the photographs were to be admitted in a “very controlled” manner, with no

reference to auto theft. Rather, the photographs would be accompanied by testimony that

they were “taken by Montgomery County Police equipment.”

At a subsequent hearing, appellant’s counsel asked the court to revisit the issue of

allowing the State to introduce the photographs as those taken by police equipment. After

the court noted that it made that ruling to prevent an authentication issue, appellant’s counsel

suggested that the photographs be identified as taken by “Montgomery County government

equipment” at 525 Thayer Avenue at 12:24 a.m. on February 10, 2013. Appellant stated that

he was willing to stipulate to the admission of the photographs so identified, as long as he

could preserve his earlier objection on “other crimes” and prejudice grounds. The

prosecutor, however, stated that she would introduce the photographs through the testimony

10
Before trial in this case, appellant pled guilty to attempted theft of a motor vehicle
arising out of the videotaped bait car incident.

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of Detective Hart. The court clarified that the State could ask Detective Hart about “where

it was taken, the time, the location” and establish that the photographs were taken by

“Montgomery County government equipment.”

Consistent with appellant’s suggestion and the court’s ruling, Detective Hart

identified the photographs, stating only that they were taken by “Montgomery County

government equipment” on February 10, 2013, at 12:24 a.m., at 525 Thayer Avenue in Silver

Spring. He further testified that the photographs were taken 7/10 of a mile from were Mr. El-

Amine was robbed, approximately two hours prior to the robbery. Appellant did not object

to Detective Hart’s testimony or to the introduction of the photographs.

B.

Appellant’s Contention

Appellant argues on appeal that, because Detective Hart “failed to offer first-hand

knowledge about the photographs or the process used to produce them,” and “failed to

establish a chain of custody,” the State failed to authenticate the photographs. He also

contends that the photos were prejudicial, asserting that the photographs were the “only

evidence” placing him in the vicinity of the 7-Eleven during the period of time leading up

to the assault.

As we previously indicated, plain error review is a “rare, rare phenomenon,”

undertaken only when unobjected to error is extraordinary. Kelly, 195 Md. App. at 432.

Here, where appellant initially stipulated to the admission of the photos, and the State’s

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limited questioning was at the request of appellant, we decline to exercise our discretion to

engage in plain error review.

IV.

Exclusion of Evidence

Appellant’s final contention is that the court improperly excluded evidence of GPS

data that would have shown that the stolen iPhone was in Dayquan’s possession in the days

following the crime. The State contends that this claim is moot because appellant’s counsel

stated that he was not seeking to admit such evidence, and he never made a proffer regarding

the evidence he wanted to elicit. In any event, the State asserts that the claim is without merit

because evidence that the “Find My iPhone” app located the phone at Dayquan’s residence

“was neither relevant nor authenticated.”

A.

Proceedings Below

Mr. El-Amine’s iPhone5 was never recovered. Mr. El-Amine testified that he had an

application on his iPhone5 called “Find My iPhone App,” the purpose of which is to locate

a cellular phone that is missing or stolen.

On cross-examination, appellant’s counsel asked Mr. El-Amine whether he tried to

use the app on the night of the robbery. Mr. El-Amine responded in the affirmative, and

defense counsel asked if he was able to do that. The prosecution objected, and the following

ensued at a bench conference:

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[PROSECUTOR]: This is going to bring the phone back to [Dayquan’s] . . .
house, but it’s like three days later. I mean, we never heard from, nor were we
able to get any verified reference from Apple, so this is just like a screenshot
of where he saw his phone pop up.

***
And none of it is verifiable. One ping comes across from [Dayquan’s]; we
next have pings that were on 16th Street. So, all of this could be hearsay as to
where these pings popped up and what he read off of his mom’s phone that he
was using to try to find his phone.

[2nd PROSECUTOR]: Those pings have to come in through Apple . . . .

THE COURT: Well, she’s not asking about the pinging.

[PROSECUTOR]: She’s about to.

THE COURT: She’s just asking him what it says.

[PROSECUTOR]: Well, asking what it says is a ping. What it said is where
the phone is.

***
So, that’s hearsay that’s coming over this device, his mom’s device to him.
That is not admissible.

THE COURT: Yeah, but it’s someone he saw.

[PROSECUTOR]: Yeah, but it’s still not admissible if he’s not allowed to say
that, “Apple sent me a text that said ‘this’.” We would need to have records
from Apple that say that.

[APPELLANT’S COUNSEL]: Well, right now I’m not asking about what it
said, I’m just asking if he has the application and if he tried to use it. So I
don’t think I’ve gone –

[PROSECUTOR]: All right. Well, if we go any further, that’s what we
thought.

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[2nd PROSECUTOR]: The result of where that ping comes . . . would be
hearsay.

THE COURT: Okay. But she’s not asking any of that. She’s asking did he
have the app and did he try to use it, is as far as we got.

[PROSECUTOR]: Okay.

THE COURT: So, overruled.

(Emphasis added).

Immediately after the court overruled the State’s objection, the following took place:

THE COURT: Okay. You want to restate the question or repeat it so he’ll
understand. Do you remember the question?

[MR. EL-AMINE]: Yes.

THE COURT: Okay. Well then we got to – okay. Go ahead.

[MR. EL-AMINE]: Well, I was able [to] log onto the computer to that – I’m
not sure if they located the phone that night. I know everyday that night and
everyday after that, I looked for it. I remember there was a –

[PROSECUTOR]: Objection.

THE COURT: Sustained.

[APPELLANT’S COUNSEL]: So, you did try to use that application?

[MR. EL-AMINE]: Yes.

[APPELLANT’S COUNSEL]: Okay. All right. Let me ask you some other
questions. Excuse me, one moment. A couple days later did you get a phone
call? Is that what happened? From the police asking you to come to the
station?

[MR. EL-AMINE]: Yes.

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(Emphasis added). Appellant’s counsel did not ask any further questions regarding the “Find

My iPhone” app.

On appeal, appellant claims that the court erred in excluding, on hearsay grounds,

“exculpatory evidence tending to show that [Dayquan], and not [appellant], was the

assailant.” He asserts that the data on the “Find My iPhone App” was “admissible to show

that the stolen iPhone was in [Dayquan’s] possession in the days following the crime.”

The colloquy listed above, however, shows that appellant did not present that issue

to the trial court. Appellant’s counsel initially stated that she was “just asking” if Mr. El-

Amine had the “Find My iPhone” app and “whether he tried to use it.” That testimony was

elicited. When Mr. El-Amine subsequently began to answer a question beyond that which

was asked, the prosecutor objected. As the State notes, the court may have sustained the

objection because Mr. El-Amine was exceeding the scope of the question, or because he was

going to give an answer to a question that appellant had assured the court he would not elicit.

Appellant did not ask any further questions on the subject.

Nor did counsel make any proffer regarding the evidence that she sought to elicit.

“Where evidence is excluded, a proffer of substance and relevance must be made in order to

preserve the issue for appeal.” South Kaywood Cmty. Ass’n v. Long, 208 Md. App. 135, 163

(2012) (quoting Sutton v. State, 139 Md. App. 412, 452 (2001)). Accord Conyers v. State,

354 Md. 132, 164 (proffer as to substance and importance of the expected answers was

required to preserve issue for appeal), cert. denied, 528 U.S. 910 (1999) .

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Here, defense counsel failed to proffer below the substance of the expected answer

(to the question he never asked).11 And more importantly, even assuming that it could be

inferred that the app showed that Mr. El-Amine’s phone was at Dayquan’s house, defense

counsel never proffered how he would show that this evidence was relevant, i.e., that the

iPhone app produced accurate results regarding the location of a phone. See United States

v. Espinal-Almeida, 699 F.3d 588 (1st Cir. 2012) (discussing foundational requirements for

admission of GPS data). Because appellant’s counsel did not ask a question seeking to elicit

an answer that he now says was improperly excluded, and because counsel did not proffer

how such an answer was properly admissible, this issue is not preserved for appeal.

Accordingly, we will not address it.

JUDGMENTS OF THE CIRCUIT
COURT FOR M ONTGOM ERY
COUNTY AFFIRMED. COSTS TO
BE PAID BY APPELLANT.

11
The only indication in the record concerning the substance of the expected
testimony was the prosecutor’s statement that “[t]his is going to bring the phone back to
Dayquan’s house, but it’s like three days later . . . . And none of it is verifiable. One ping
comes from across from Dayquan’s; we next have pings that were on 16th Street.”

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