Pickett v. State, 112 A.3d 1078

Background

On Feb. 10, 2013, 16‑year‑old Samer El‑Amine was robbed at gunpoint in Silver Spring; his iPhone (in a blue OtterBox) and a red/white Helly Hansen jacket were taken. The phone was never recovered.
El‑Amine described the passenger as shorter, dark‑skinned, and having a high‑top‑fade haircut; he later identified a photo in a photo array as possibly the assailant.
Police executed warrants on Feb. 15, 2013 at two residences; they recovered an OtterBox case, a Helly Hansen jacket, appellant’s identification documents, and a firearm (DNA on the gun was not suitable for comparison). Appellant was photographed at arrest with a high‑top‑fade.
Appellant (George E. Pickett, III) was tried and convicted of robbery with a dangerous weapon, conspiracy counts, first‑degree assault, use of a firearm in a violent crime, and related conspiracy counts; sentenced to an effective term with portions suspended and supervised probation.
On appeal he challenged: (1) portions of the State’s closing (comments about changed hairstyle and forensic testing of the OtterBox); (2) the jury eyewitness‑identification instruction; (3) admission/authentication of surveillance‑derived photographs; and (4) exclusion of “Find My iPhone” location evidence. The Court of Special Appeals affirmed.

Issues

Issue	Pickett's Argument	State's Argument	Held
1A. Prosecutor’s comment about appellant’s changed hairstyle in rebuttal closing	Improper to comment on non‑testifying defendant’s courtroom appearance; no evidence of hairstyle at trial and post‑arrest change cannot show consciousness of guilt	Identity was disputed; hairstyle was visible to jury, relevant to why in‑court ID might differ, and could support an inference of consciousness of guilt	Court affirmed: comment was permissible where identity was at issue and change was visible; trial court did not abuse discretion
1B. Prosecutor’s rebuttal implying forensic evidence on OtterBox	Prosecutor improperly suggested DNA/fingerprints existed though none were introduced	State said prosecutor was responding to defense claim that lab testing was omitted and argued DNA/fingerprints would be a red herring even if present	Court held prosecutor’s rebuttal did not insinuate nonexistent evidence but rejected the defense’s characterization; no error found
2. Eyewitness‑identification jury instruction (MPJI‑Cr 3:30)	Instruction was improper because El‑Amine’s ID was uncertain/dubious	Defense agreed to the pattern instruction at trial; some photo‑array identification existed, so instruction was warranted	Not preserved for review (defense agreed); court declined plain‑error review and affirmed
3. Admission/authentication of surveillance photographs	Photographs lacked proper authentication/chain of custody and were prejudicial, placing appellant near the scene	Defense had initially proposed limited authentication; State introduced photos through Detective Hart who testified they were produced by Montgomery County equipment; defense did not object at trial	Court declined plain‑error review (defense had stipulated/accepted procedure) and affirmed admission
4. Exclusion of “Find My iPhone” location data	Excluding app/location data deprived defense of exculpatory evidence placing the phone at co‑defendant Dayquan’s residence	State: proffer was not made; location screenshots are hearsay without Apple records or foundation; irrelevant/unverified	Not preserved: defense elicited only that app existed and was used, made no proffer of the substance/foundation; appellate review refused

Key Cases Cited

Degren v. State, 352 Md. 400 (trial court has broad leeway in closing argument)
Wilhelm v. State, 272 Md. 404 (limits on counsel's summation; cannot comment on facts not in evidence)
Spain v. State, 386 Md. 145 (prosecutor remarks require reversal only if likely to have misled the jury)
Bryant v. State, 129 Md. App. 150 (prosecutorial comment on non‑testifying defendant’s courtroom demeanor improper)
Diggs & Allen v. State, 213 Md. App. 28 (comparing visible physical features in courtroom to video is permissible)
Kelly v. State, 195 Md. App. 403 (plain‑error review is rare; appellate discretion limited)
United States v. Foppe, 993 F.2d 1444 (9th Cir.) (comment on marked change in appearance may support consciousness of guilt)
United States v. Jackson, 476 F.2d 249 (7th Cir.) (comment on appearance changes not improper on identity/guilt issue)
People v. Cunningham, 25 P.3d 519 (Cal.) (change of appearance between crime and trial relates to identity and consciousness of guilt)
Commonwealth v. Brown, 676 A.2d 1178 (Pa.) (jury may infer consciousness of guilt from intentional alteration of appearance)