Woodward, Graeff, Kenney, James A., III (Ret'd, Specially Assigned) JJ.
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. 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 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. 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 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 presumably 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.)
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 ...