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Pickett v. State

Court of Special Appeals of Maryland

April 3, 2015

GEORGE E. PICKETT, III
v.
STATE OF MARYLAND

Page 1079

Appeal from the Circuit Court for Montgomery County. Cheryl Ann McCally, Judge.

Argued by: Michael A. Pusateri (Chadbourne & Parke, LLP on the brief) of Washington D.C. for Appellant.

Argued by: Brenda Gruss (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.

Panel: Wright, Graeff, Nazarian, JJ.

OPINION

Page 1080

[222 Md.App. 325] Graeff, J.

Following a jury trial in the Circuit Court for Montgomery County, appellant, George Pickett, III, was convicted of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, first degree assault, conspiracy to commit first degree assault, use of a firearm in the commission of a crime of violence, and conspiracy to use a firearm in the commission of a crime of violence. The court sentenced appellant to 20 years, all but seven years suspended, followed by five years of supervised probation.[1]

On appeal, appellant presents four questions for our review, which we have rephrased, as follows:

1. Did the circuit court abuse its discretion when it allowed the State, in closing arguments: (a) to reference appellant's changed appearance; and (b) to rebut appellant's argument that the State could have performed forensic tests on the victim's iPhone case?
2. Did the circuit court commit plain error in giving the jury an instruction on eyewitness identification?
[222 Md.App. 326] 3. Did the circuit court commit plain error in admitting photographs from a surveillance camera?
4. Did the circuit court err in excluding evidence that a " Find My iPhone" app on the victim's cell phone located the stolen phone at a residence other than appellant's?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

The charges against appellant arose out of the robbery and assault of Samer El-Amine in Silver Spring, Maryland on February 10, 2013. Mr. El-Amine, who was 16 years old at the time of the assault, testified that at approximately 1:30 a.m., he left his friend's house and began walking home. He stopped at a 7-Eleven convenience store to purchase gummy worms. In the parking lot, approximately 20 - 30 feet away, he noticed a light brown car with two people inside. Although Mr. El-Amine could not " really see" the faces of the two individuals in the car, he did notice that the individual in the front passenger seat had a " high-top fade" haircut.[2]

Twenty to thirty seconds after Mr. El-Amine left the 7-Eleven store, " the same car . . . or I think it was the same car -- it looked like it," pulled up next to him and " the person in the passenger side got out." He described the car as " the same color

Page 1081

and the same shape." The two individuals in the car were wearing ski masks, so Mr. El-Amine could not see their faces or their hair. The person who got out of the car put a small, black gun to Mr. El-Amine's head and said: " Give me your shit." [3] The person then reached into Mr. El-Amine's pocket and removed his iPhone5, which was covered by a blue " OtterBox" phone case. The person also told him: [222 Md.App. 327] " Give me this Helly, too," referring to Mr. El-Amine's red and white Helly Hansen brand jacket. Mr. El-Amine hesitated, at which point he was forced to the ground. The person removed his jacket, got back into the car, and the driver of the car drove away " very fast."

Mr. El-Amine walked to his mother's house, approximately two minutes away. He told his mother what had happened, and she called the police. In the 911 call, Mr. El-Amine described the person who got out of the car as " wearing a colorful jacket. He was kind of dark-skinned or brown-skinned, probably brown-skinned, and he had a long . . . high-top fade." [4]

When the police arrived at his mother's house that night, Mr. El-Amine gave a description of the passenger and drew a picture of the haircut that he saw on the passenger of the car when he walked out of the 7-Eleven. A few days later, Mr. El-Amine went to the police station to look at photographs of potential suspects. He identified a photograph of an individual that he thought " was him, but [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."

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]. [222 Md.App. 328] Detective Hart identified a photograph of appellant taken that day, at the time of appellant's arrest. The photograph was admitted into evidence as State's Exhibit 7, and it depicted appellant with a high-top fade haircut.

When Detective Hart executed the warrant at 816 Easley Street, Dayquan was sleeping on the floor in the living room, and appellant was sleeping on a bed in the master bedroom. Detective Hart found appellant's birth certificate and social security card at the residence. In the middle of the living room, there was a ladder with a red and white Helly Hansen ski jacket on top of it.

Detective Hart then executed the warrant at 632 Potomac Avenue. In the bedroom basement of that residence, behind a locked door to which he had retrieved the keys from Dayquan's pocket during the search at 816 Easley Street, Detective Hart found a birth certificate and social

Page 1082

security application for Dayquan Tyler. He also found a blue " OtterBox" case for an iPhone5. A functional firearm was recovered from a dog house behind Dayquan's residence. The mixture of DNA recovered from the firearm was not suitable for comparison.

Detective Jesse Dickensheets, a member of the Montgomery County Police Department, testified that, on February 13, 2013, three days after the robbery, he saw appellant walk out of 816 Easley Street wearing a red and white Helly Hansen jacket. Detective Dickensheets identified a photograph of the jacket and identified appellant in court as the individual who had been wearing the jacket.

At trial, Mr. El-Amine identified the OtterBox and the jacket that had been stolen from him. His iPhone5 was not recovered.

DISCUSSION

I.

Closing Argument

Appellant's first argument is that the court " erred in permitting the State's improper argument about facts not in the [222 Md.App. 329] record." Specifically, he contends that the court should not have permitted the State to: (1) point out that appellant had changed his hairstyle between the time of his arrest and the trial; and (2) insinuate that appellant's DNA and fingerprints were found on the OtterBox iPhone case recovered from Dayquan's residence.

The State disagrees. It contends that the court properly exercised its discretion in controlling closing argument, asserting that: (1) the comments regarding appellant's hair were " appropriate and relevant" where identity was an issue, and (2) appellant mischaracterizes the argument regarding the OtterBox.

A.

Standard of Review

It is well established that " attorneys are afforded great leeway in presenting closing arguments to the jury." Degren v. State, 352 Md. 400, 429, 722 A.2d 887 (1999). Accord Sivells v. State, 196 Md.App. 254, 270, 9 A.3d 123 (2010), cert. dis'd as improv. granted, 421 Md. 659, 28 A.3d 704 (2011). The Court of Appeals defined the boundaries of permissible summation in Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974), as follows:

As to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range. Counsel is free to use the testimony most favorable to his side of the argument to the jury, and the evidence may be examined, collated, sifted and treated in his own way. Moreover, if counsel does not make any statement of fact not fairly deducible from the evidence[,] his argument is not improper, although the inferences discussed are illogical and erroneous. Generally, counsel has the right to make any comment or argument that is warranted by the evidence proved or inferences therefrom; the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, [222 Md.App. 330] on the accused's action and conduct if the evidence supports his comments, as is accused's counsel to comment on the nature of the evidence and the character of witnesses which the (prosecution) produces. . . .
While arguments of counsel are required to be confined to the issues in the cases on trial, the evidence and fair and

Page 1083

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

Id. at 412-13.

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, 950 A.2d 125 (2008) (improper to make comments " that invite the jury to draw inferences from information that was not admitted at trial" ). Reversal is required, however, only " 'where it appears that the remarks of the prosecutor actually misled the jury or were likely to have misled or influenced the jury to the prejudice of the accused.'" Spain v. State, 386 Md. 145, 158, 872 A.2d 25 (2005) (quoting Degren, 352 Md. at 431).

The determination and scope of closing argument is within the sound discretion of the trial court. Wise v. State, 132 Md.App. 127, 142, 751 A.2d 24, cert. denied, 360 Md. 276, 757 A.2d 811 (2000). An appellate court should not " interfere with that judgment unless there has been an abuse of discretion [222 Md.App. 331] by the trial judge of a character likely to have injured the complaining party.'" Washington v. State, 180 Md.App. 458, 473, 951 A.2d 885 (2008) (quoting Wilhelm, 272 Md. at 413). " 'Abuse of discretion' . . . has been said to occur 'where no reasonable person would take the view adopted by the [trial] court,' or when the court acts 'without reference to any guiding rules or principles.'" Nash v. State, 439 Md. 53, 67, 94 A.3d 23 (quoting North v. North, 102 Md.App. 1, 13, 648 A.2d 1025 (1994)), cert. denied, 135 S.Ct. 284, 190 L.Ed.2d 209 (2014).

With these principles in mind, we address appellant's contentions.

B.

Appellant's Changed Appearance

At the close of the evidence, the court and counsel discussed jury instructions. The court declined to give an instruction on consciousness of guilt, despite the State's argument that appellant's change in hairstyle could be construed as such. The court stated that " cutting your hair, alone" was not enough to warrant that instruction. It stated, however, that the State could address that issue in closing, stating: " I think that the Defense is certainly free to argue that he cut his hair. From February -- it's now December. I think both of you have that argument."

During the State's closing arguments, the following occurred:

[PROSECUTOR]: Now, what did George Pickett look like on February 15? Here we go.[6] What does George

Page 1084

Pickett look like today? Do you think that was an accident that Mr. Pickett ...

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