Paige v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2105

September Term, 2014

______________________________________

LABRIA PAIGE

v.

STATE OF MARYLAND

_____________________________________

Wright,
Graeff,
Moylan, Charles E., Jr.
(Retired, Specially Assigned),

JJ.
______________________________________

Opinion by Wright, J.
______________________________________

Filed: November 30, 2015
 Appellant, Labria Paige, was convicted by a jury in the Circuit Court for Howard

County, Maryland, of theft under $1,000.00 in connection with a shoplifting case. After

she was sentenced to 18 months, with all but six months suspended, appellant timely

appealed and presents the following questions for our review:

1. Did the motions court err in denying Appellant’s motion to suppress a
statement obtained in violation of Miranda?1

2. Did the trial court abuse its discretion in permitting Loss Prevention
Officer Salley to narrate the events depicted in the Macy’s closed-circuit
camera footage?

For the following reasons, we shall affirm.

BACKGROUND

Motions Hearing

On April 14, 2013, Thea Salley, a loss prevention agent with the Macy’s

Department store located in the Columbia Mall, testified that appellant and two juveniles

were stopped by Macy’s loss prevention agents as they exited the store carrying

concealed merchandise. Because appellant fought with the loss prevention agents in the

Macy’s parking lot, the agents handcuffed her, for her safety as well as their own.

Appellant and the two juveniles were then escorted to the Macy’s loss prevention

office, located in an area of the store that otherwise was not accessible to the general

public. Salley testified that the dimensions of the office was equal to half the size of the

well in the courtroom, or approximately 20 feet by 20 feet. The room was well lit, and

1
Miranda v. Arizona, 384 U.S. 436 (1966).
1
there were no police insignia located anywhere within the room. Further, there was one

door to the office, and that door was closed during Salley’s interview with appellant.

Salley stated that, as a loss prevention officer, she worked for Macy’s, a retail

store that is “not affiliated with any government organization.” Salley testified that her

office was “not a police department,” and that loss prevention officers are not “endowed

with arrest powers,” nor are they “police officers themselves.” According to Salley,

during her six years at Macy’s, she was never “affiliated with any law enforcement

agency” and never worked for the Howard County Police Department or any other police

department.

When appellant and her two companions initially arrived in the office, they were

met by Salley and three other Macy’s loss prevention officers. At that time, while Salley

was attempting to get everything “sorted out,” appellant admitted that the two juveniles

were under her care and that, according to Salley, “she was taking all the blame for

anything that they – that the two juveniles did.” Salley also testified:

Ms. Paige was frightened that the two juvenile teenagers that was
with her, she was frightened that she would be in trouble by the parents of
the children because they was under her custody. She was – they were
hanging out with her is what she said and she wanted all the blame to go on
herself because she didn’t want the parents of the children to try to, you
know, harm her or – and/or threaten her. So, she repeatedly said, “I did it.
I did everything. I did everything. Don’t involve them. Don’t get them in
trouble.”

At a later point, Salley called the Howard County Police, informed them of the

theft, and asked them to respond to the store. Salley testified that the police ordinarily

were called anytime there was a shoplifting case where the value of the goods exceeded

2
$50.00. Salley agreed that she called the police so that appellant would ultimately be

charged in connection with the theft. She also stated that she had called Howard County

Police about sixteen times in the past month and that equaled the average number of calls

Macy’s would make on a monthly basis.

Officer Kristian Bush, of the Howard County Police Department, arrived at

approximately 2:10 p.m.1 Thereafter, at around 2:48 p.m., and after appellant’s handcuffs

had been removed, appellant signed a Macy’s statement of admission form, a Macy’s

trespass notification form, and a Macy’s civil demand notice.

Salley agreed that Officer Bush was present when these forms were signed. At the

time, Officer Bush was standing near the door, up against a wall. Salley confirmed that

Officer Bush did not handle the Macy’s forms, and that she handed the forms over to

appellant. In addition, Officer Bush never handcuffed appellant, nor did he ever threaten

her. And, according to Salley, Officer Bush never spoke to appellant about the Macy’s

forms and never told her that she needed to talk in order to avoid arrest. Salley further

testified that she did not tell Officer Bush about appellant’s earlier oral admission of

guilt. After appellant signed the Macy’s forms, she was temporarily transferred to the

custody of Officer Bush, who released her shortly thereafter.2

1 Salley testified that appellant’s oral admission of guilt was made before Officer
Bush arrived in the loss prevention office. She maintained that the office, itself, was not
affiliated with the Howard County Police and was the property of Macy’s.
2According to Salley’s testimony, appellant was released from the store without
being arrested and then taken back to a central booking facility.

3
 In addition to Salley, Officer Bush also testified at the motions hearing, but he

provided very limited details about the interview with appellant. He confirmed that he

met with Salley on the day in question and went to the loss prevention office. However,

when asked if he saw Salley direct anyone to sign any papers in his presence, the officer

replied that he was “not sure,” and “I didn’t notice that.” Officer Bush then concluded

his brief testimony by stating: “I believe the – the three suspects that were in custody

signed papers, and I’m not sure of the papers.”

After testimony concluded, defense counsel moved to suppress any statements

appellant made after Officer Bush arrived in the Macy’s loss prevention office.

Counsel’s argument was that the presence of the police officer, as well as the other

circumstances surrounding the interview, established that appellant was in custody when

she signed the written admissions of guilt and that those statements should be suppressed.

The State responded that any statements appellant made were not made to State agents

because the Macy’s employees were not working as agents of the police. Further, the

State contended that Officer Bush was merely present and did nothing to either further

the interview or to suggest that appellant was in custody.

In denying the motion to suppress, the circuit court found that, after Macy’s

employees observed an apparent shoplifting, they took appellant “into their custody based

on a – what they observed.” Appellant was handcuffed by Macy’s personnel and then

taken to the loss prevention office at the store. The court further found that there was no

dispute that appellant gave an oral admission of guilt, and that statement was made before

the police officer, Officer Bush, arrived.

4
 The circuit court then found that, after Officer Bush arrived, he did not take

appellant into police custody, he did not handcuff her, he was not aware of the prior oral

admission, and he did not make “any inquiries of the defendant concerning any statement

or – or the signing of any documents by the defendant.” The court also found that,

although Officer Bush was present in the loss prevention office when appellant signed the

written admissions, he did not “seem to be taking any sort of an active role” in the

investigation. In fact, the court found that Officer Bush “wasn’t entirely aware of exactly

what the paperwork was” and that “their decision to present the paperwork to the

defendant was not at Officer Bush’s suggestion or direction.”

The circuit court then concluded as follows:

So, clearly, you have custody, but it’s not police custody. It’s
Macy’s custody. And I don’t find that – that the Macy’s personnel were
acting on behalf of Officer Bush or the Howard County Police Department.
The Macy’s personnel clearly are not state agents or actors. The arrest was
by Macy’s. No participation in the arrest by Officer Bush. The handcuffs
were Macy’s. The Macy’s loss prevention room is not a Howard County
Police facility.

There is no indication Officer Bush made any gestures or statements
to the defendant or about the defendant within earshot of the defendant to
manipulate her into signing the subject documents.

So, the – I find that the defense has not met its burden of
demonstrating that there was a Howard County Police custody or
interrogation by Howard County Police or some actors acting on the – for
the benefit of the Howard County Police Department or for – or based on
any sort of encourage [sic] or direction of the Howard County Police
Department.

So, I find that the defense has not been able to meet its initial burden
of demonstrating that this was a police custody or police interrogation, and
I’ll deny your motion.

5
 Trial

On April 14, 2013, at around 1:30 p.m., Salley was working as a loss prevention

officer at the Macy’s inside the Columbia Mall. While observing the broadcasts from the

approximately 97 closed circuit televisions located throughout the store, Salley saw a

man roaming around in the women’s department. Testifying that this was “kind of

unusual,” she watched the man approach three female individuals, which included

appellant, a 14-year-old, and a 16-year-old. One of these three was carrying a large

Downtown Locker Room bag, and another was carrying a black handbag.3 All three

were making “random selections” of merchandise from the racks without looking at

either the price tag or the sizes of the respective items. They would drape this

merchandise over their arms, concealing the contents of the bags. Salley identified

appellant, in court, as one of these three individuals.

Salley watched as appellant selected a leather jacket, a yellow shirt, and some

leggings, and then threw them over her arm. Then, appellant and the other two juveniles

went to the fitting rooms. There, all three of them went inside a single stall. Testifying

that the stall was a “small room,” Salley indicated that the three individuals remained in

the stall for ten minutes.

Salley provided more detail in court as she testified along with a recording of

surveillance video that was played for the jury. After watching the man approach

3 Downtown Locker Room was a separate store in the Columbia Mall that was not
affiliated with Macy’s.

6
appellant and the other two juveniles, Salley watched them on multiple cameras, from

multiple angles, walking around the women’s department. Salley saw six items of

merchandise in appellant’s possession at this time, and she also testified that one of the

other juveniles was carrying the large Downtown Locker Room bag. The three

individuals continued walking around the department, working their way towards the

fitting rooms, gathering merchandise along the way. After the man again appeared in the

video nearby, appellant and the two juveniles then took “a lot of merchandise” into the

handicapped stall located in the fitting room, where they remained for approximately ten

minutes.

Because there were no cameras in the fitting room stall, Salley left her post in the

loss prevention observation room and went to the fitting room area. She then entered a

stall that was located opposite the one occupied by appellant and the juveniles. Salley

was able to see into this other stall because there were broken slats on the bottom of the

door. As she crouched down to get a better view, Salley observed “the merchandise

going into the black bag and the Downtown Locker Room bag.” And, Salley specifically

saw appellant placing items into the Downtown Locker Room bag.

Salley then testified that, while she was inside the adjacent stall, she heard the man

she had seen before call out, and appellant and the two juveniles then emerged from their

stall, exiting together and carrying a few items. After appellant and the juveniles placed a

few of these items down, Salley saw that one of the other, unidentified juveniles was

carrying the Downtown Locker Room bag. Over objection, Salley testified that the bag

had been filled because it was larger than it was before the three of them first took the

7
bag into the stall. After the appellant and the two juveniles walked away, Salley entered

the stall in question and noticed that, although appellant originally entered with six items

of merchandise, only two items remained behind.

Salley then emerged from the fitting room and watched as appellant proceeded

past approximately twelve cash registers, without paying, towards a store exit. After

appellant and her companions walked out the door, Salley called out a code on her radio

that instructed other loss prevention officers to stop and detain appellant and her

companions “[b]ecause they left the store with merchandise that was unpaid for.”

Appellant was apprehended near the curb outside Macy’s carrying the Downtown

Locker Room bag. There ensued a “lot of tussling and fighting and profanity.” Salley

explained that she identified herself and told appellant that she needed to come back

inside the store to discuss the merchandise, but appellant attempted “to run and fight.”

Thereafter, after she was escorted to the loss prevention office, appellant verbally

admitted that she stole the Macy’s merchandise in question. Appellant also signed a

Macy’s trespass notice, a Macy’s civil demand notice, and a Macy’s statement of

admission. The trespass notice forbade appellant from entering any Macy’s for three

years. And, the civil demand notice let appellant know the amount of restitution owed to

Macy’s for the stolen items.

As for the Macy’s statement of admission, that form not only listed the specific

items of merchandise that had been taken, but also included appellant’s admission that “I

did take merchandise and/or cash belong to Macy’s valued at $673.98 without consent or

permission and with the intent to permanently deprive Macy’s of their property.” Salley

8
testified that she had personally witnessed appellant take many of the listed items while

inside the store. She also saw appellant attempt to leave without paying for them. The

items, with their anti-theft sensors still attached, were ultimately found inside the

Downtown Locker Room bag. Salley further testified that the bag was lined with

aluminum foil which was significant because lining a bag in this way could defeat the

sensor alarms located near the exits of the store.

Appellant testified in her defense that her boyfriend, Brandon Wilder, drove her

and the two other juveniles to the Columbia Mall on the date in question in order to buy

clothes. Appellant agreed that she went into the fitting room with the two juveniles and

watched as they tried on some of the clothes. Appellant had brought some of the items

into the fitting room and then left some behind when the three of them left.

After leaving the fitting room, appellant and the two juveniles met up with Wilder

and then walked out of Macy’s. Appellant testified that one of the two juveniles was

carrying a bag at the time. Appellant denied leaving the store with anything in her hands.

At that point, appellant was apprehended by three men. The three men were not in

uniform, did not have identification badges, and did not identify themselves to her.4 After

the men told her she needed to go back inside Macy’s, because someone had stolen

merchandise, appellant complied, but the woman who had the bag resisted. Appellant

maintained that she did not know about, and was not involved with, the shoplifting.

4At around the same time, appellant watched as her boyfriend sped away from the
scene in his car.

9
 Appellant was taken to a small room, where she and the two juveniles were

interviewed by three or four men, as well as Salley and a police officer. During the

course of the interview, Salley gave appellant the forms and told her to sign them.

Appellant testified that she had a prior theft case and had vowed never to steal again, so

she initially refused to sign.5 At that point, Salley told her that if she did not sign, she

would be turned over to the police officer. Appellant, who was pregnant at the time,

needed to go pick up her four-year-old daughter from school that afternoon, so she

testified she agreed to sign the papers because “I had no choice.” She maintained that she

did not steal anything from Macy’s on the day in question.

We shall include additional detail in the following discussion.

DISCUSSION

I.

Appellant first contends the circuit court erred in denying the motion to suppress

her written statements because she was in custody for Miranda purposes when she gave

those statements. The State responds that appellant was not in custody because the

Macy’s loss prevention agents were not acting as State agents at the time of the

encounter. We agree.

In reviewing the motions court’s decision on a motion to suppress, we are limited

to the facts developed at the hearing, Hill v. State, 418 Md. 62, 67 n.1 (2011), viewing the

5 Appellant was convicted of theft less than $1,000.00 on November 1, 2012.

10
evidence in the light most favorable to the prevailing party on the motion. Robinson v.

State, 419 Md. 602, 611-12 (2011); accord Gonzalez v. State, 429 Md. 632, 647 (2012).

We review the motions court’s factual findings for clear error, but we make our own

independent constitutional appraisal, “reviewing the relevant law and applying it to the

facts and circumstances of this case.” State v. Luckett, 413 Md. 360, 375 n.3 (2010)

(citation omitted); accord Moore v. State, 422 Md. 516, 528 (2011). The issue of

whether a confession is voluntary presents a mixed question of law and fact, subject to de

novo review, with deference given to the suppression court’s factual findings. Winder v.

State, 362 Md. 275, 310-11 (2001).

In Maryland, a confession may be admitted against an accused only when it has

been “determined that the confession was ‘(1) voluntary under Maryland non-

constitutional law, (2) voluntary under the Due Process Clause of the Fourteenth

Amendment of the United States Constitution and Article 22 of the Maryland Declaration

of Rights, and (3) elicited in conformance with the mandates of Miranda.’” Ball v. State,

347 Md. 156, 173-74 (1997) (quoting Hof v. State, 337 Md. 581, 597-98 (1995)); accord

Knight v. State, 381 Md. 517, 531-32 (2004); Smith v. State, 220 Md. App. 256, 273

(2014), cert. denied, 442 Md. 196 (2015).

Appellant’s claim is grounded in an alleged Miranda violation. Pursuant to

Miranda and its progeny, the police are required, when they detain a person for

questioning in a custodial setting, to inform the person of several rights including

the right to remain silent, that anything the person says may be used in
evidence, that the person has a right to consult with an attorney
before responding to questioning, and that an attorney will be

11
 appointed if the person is indigent . . . . [A]n inculpatory statement elicited
in violation of that requirement is inadmissible in the State’s case-in-chief.
See Dickerson v. U.S., 530 U.S. 428, 120 S. Ct. 2326, 1147 L.Ed.2d 405
(2000).

Phillips v. State, 425 Md. 210, 212 (2012) (footnote omitted).

The Miranda requirements, however, apply only to custodial interrogation. J.D.B.

v. North Carolina, 131 S. Ct. 2394, 2401-02 (2011). This is due to the Supreme Court’s

recognition that “[a]ny interview of one suspected of a crime by a police officer will have

coercive aspects to it, simply by virtue of the fact that the police officer is part of a law

enforcement system which may ultimately cause the suspect to be charged with a crime.”

Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam). Therefore, “before a

defendant can claim the benefit of Miranda warnings, the defendant must establish two

things: (1) custody; and (2) interrogation.” State v. Thomas, 202 Md. App. 545, 565

(2011) (citation omitted), aff’d, 429 Md. 246 (2012). Accord Smith v. State, 186 Md.

App. 498, 518 (2009), aff’d, 414 Md. 357 (2010). And, the burden of “showing the

applicability of the Miranda requirements,” i.e., that there was custody and interrogation,

is on the defendant. Smith, 186 Md. App. at 520.

In suggesting that appellant has not met her burden, the State contends that she

was not in custody when she was interrogated by the Macy’s loss prevention agents.

Some commentators have addressed this issue:

The Supreme Court has emphasized that constitutional rights protect
against governmental infraction. In 1986 in Colorado v. Connelly, [479
U.S. 157 (1986)], the Supreme Court ruled that, in order for a confession to
be suppressed under the constitutional due process test of voluntariness,
“coercive police activity is a predicate.” The Connelly Court concluded:
“Even the most outrageous behavior by a private party seeking to secure

12
 evidence against a defendant does not make that evidence inadmissible
under the Due Process clause.” Some form of police interrogation is
similarly required to trigger the Miranda protections of the Fifth
Amendment.

Jezic, et al., Maryland Law of Confessions § 10:1 at 437-38 (2014-2015 ed.) (footnotes

omitted) (hereinafter “Law of Confessions”).

And:

In the Miranda case the Court defined interrogation as “questioning
initiated by law enforcement officers.” Because of this and also because of
the general doctrine that state action is a prerequisite to application of
constitutional protections, it is clear that Miranda does not govern
interrogation by private citizens acting on their own.

2 LaFave, Israel, et al., Criminal Procedure § 6.10(b) at 871-72 (3d ed. 2007) (footnote

omitted) (hereinafter “Criminal Procedure”).

There is little case law in Maryland addressing when or whether the Miranda

advisements are necessary when it is alleged an encounter involves a non-State actor. In

Pratt v. State, 9 Md. App. 220 (1970), William C. McKinley worked as a security officer

for Montgomery Ward, Incorporated, in Prince George’s County. In fulfilling this role,

McKinley swore an oath to perform his duties and was appointed by the Governor in

order to protect the property of the establishment. Id. at 220. On October 8, 1970,

McKinley saw Bernard Pratt climb onto a Montgomery Ward’s department store’s

loading dock and start to move a box towards the edge. Id. at 221-22. After he hollered

for Pratt to stop, a chase ensued inside the store, and Pratt, apparently carrying a box of

stolen merchandise, was ultimately stopped by McKinley and taken to the store security

office. Id. at 222. The box contained a sewing machine worth approximately $170.00.

13
Id. At trial before a jury, and over objection, McKinley testified that he asked Pratt “if he

was going to sell the sewing machine and he said no, he was going to keep it.” Id.

The issue on appeal was whether McKinley was acting as a law enforcement agent

such that admission of Pratt’s statement was in violation of Miranda. The Court agreed

with Pratt that the statement was improperly admitted. Pratt, 9 Md. App. at 226-27.

McKinley had testified that he was a sworn, and appointed, law enforcement officer,

pursuant to then Sections 342-348 of former Article 23. See Md. Code (1957), Art. 23,

§§ 342-48 (superseded). Pertinent to its discussion, former Section 344 authorized

policemen appointed under these provisions to exercise “all the authority and powers held

and exercised by constables at common law and under the statutes of this State, and also

all the authority and powers conferred by law on policemen in the City of Baltimore.”

Article 23 § 344 (superseded).

This Court agreed that this designation of powers meant that McKinley was

performing his duties as a State actor. The Court observed:

“If an individual is possessed of state authority and purports to act under
that authority, his action is state action. It is irrelevant that he might have
taken the same action had he acted in a purely private capacity or that the
particular action which he took was not authorized by state law.”

Pratt, 9 Md. App. at 226 (quoting Griffin v. State of Maryland, 378 U.S. 130, 135

(1964)).

This Court concluded:

With regard to the issue of the admissibility of the statement, the court
could not have properly concluded, on the evidence before it, other than
that McKinley was appointed and qualified as a policeman as provided by
law, and purported to act under that authority when he took appellant in

14
 custody. We find it crystal clear that McKinley was a ‘law enforcement
officer’ within the meaning of Miranda.

As the statement of appellant was obtained by a law enforcement
officer initiating questioning of him while he was in custody without the
employment of the procedural safeguards required by Miranda, its
introduction in evidence was reversible error.

Pratt, 9 Md. App. at 226.

The role of private security guards in Maryland has also been addressed in cases

decided under the Fourth Amendment. For instance, in Waters v. State, 320 Md. 52

(1990), on the evening of May 16, 1988, while Paul Madden was working as a licensed

security guard at a private establishment in Anne Arundel County, he accosted Waters,

apparently at gunpoint, as Waters was leaning against a vehicle in the parking lot.

During the encounter, Madden removed a beer can and a plastic bag containing a whitish

substance from Waters’s pocket. Waters, 320 Md. at 54. Madden called Anne Arundel

County police, and Waters was arrested and charged with possessing cocaine. Id. at 54-

55.

Waters moved to suppress the cocaine, contending that Madden was acting as an

agent of the police and that the arrest and search were unlawful under the Fourth

Amendment. Waters, 320 Md. at 55. Waters maintained that because privately licensed

security guards, just like special police officers commissioned by the Governor, perform

duties similar to those of regular police officers, he was subject to illegal state action. Id.

at 56.

The Court of Appeals disagreed and affirmed Waters’s conviction. The Court

began its analysis as follows:

15
 The Fourth Amendment of the United States Constitution guarantees
the right of individuals to be secure against unreasonable searches and
seizures. It applies to actions by the State, Mapp v. Ohio, 367 U.S. 643,
655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961), but generally does not
apply to actions by private individuals. United States v. Jacobsen, 466 U.S.
109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); Burdeau v.
McDowell, 256 U.S. 465, 467, 41 S.Ct. 574, 574, 65 L.Ed. 1048 (1921).
Thus when a private individual obtains incriminatory matter from an
accused, no matter how improperly, and such matter comes into the
possession of the government without a violation of the accused’s rights by
governmental authority, the exclusionary rule does not prohibit its use at
trial. Bowers v. State, 298 Md. 115, 139-40, 468 A.2d 101 (1983); Herbert
v. State, 10 Md. App. 279, 284-85, 269 A.2d 430 (1970). A private search
or seizure may, however, trigger Fourth Amendment protections if the
private individual whose actions are in question, “in light of all the
circumstances of the case, must be regarded as having acted as an
‘instrument’ or agent of the state.” Coolidge v. New Hampshire, 403 U.S.
443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971).

Waters, 320 Md. at 56-57.

The Court distinguished between private individuals employed as “special police

officers” appointed by the Governor pursuant to statute, and individuals licensed as

security guards by the Maryland State Police. Waters, 320 Md. at 57-59. Special police

officers have “‘and may exercise, the powers of a police officer upon the property,’

including the power to preserve the ‘peace and good order’ of the property and to make

arrests.” Id. at 57 (quoting Md. Code (1986 Repl. Vol.), Article 41, § 4-905 (repealed)).

Security guards, in contrast, do not have arrest or other police powers. Id. at 58. The

Court explained that “[w]ithout governmental powers, security guards are acting as

private citizens when protecting property, and their private status is not altered because

their interest in protecting property coincides with the public’s interest in preventing

crime generally.” Id. at 59.

16
 The Court concluded that Waters had not met his burden of establishing a Fourth

Amendment violation. Waters, 320 Md. at 59. He also did not prevail because, “[i]n the

same vein, the burden of establishing government involvement in a private search rests

on the party objecting to the admissibility of the evidence.” Id. at 60 (citations omitted).

As Madden was a licensed security guard and there was no evidence that he “was

working in collusion with the police at the time of the search, or otherwise acted as an

instrument of the State in the performance of his duties,” the Court of Appeals agreed that

the evidence was admissible and that the motion to suppress was properly denied. Id.

The commentators have further explained the distinction in Maryland law as

follows:

Special police officers are deemed state agents in the performance of their
responsibilities.

Unlike special police officers, security guards are not vested with arrest or
other police powers . . . . Courts in Maryland have therefore determined
that such private security guards are not state agents unless they are
working under the direction of, or in concert with, law enforcement
officers.

Law of Confessions, § 10:7 at 466.

And:

[T]he courts have rather consistently held that such persons as security
officers, store detectives, railroad detectives, insurance investigators, bank
investigators, and private investigators are not required to comply with the
Miranda procedures. A contrary result has sometimes been reached if the
interrogator, though then serving private security functions, has been given
police powers by a governmental unit.

Criminal Procedure § 6.10(b) at 873.

17
 The record in this case persuades us that Salley and the other loss prevention

officers at Macy’s were private security guards, and were not special police officers, as

that category of individual is understood under Maryland law. Salley did not have any

arrest powers or other duties associated with typical law enforcement. Ordinarily in these

circumstances, and as many courts recognize, private security guards are not required to

give the Miranda warnings when interrogating an individual. See Woods v. City Court of

City of Tucson, 626 P.2d 1109, 1110 (Ariz. Ct. App. 1981); People v. Chastain, 733 P.2d

1206, 1214 (Colo. 1987); State v. Boyd, 260 A.2d 618, 623 (Conn. Cir. Ct. 1969);

Singleton v. State, 500 S.E.2d 411, 412-13 (Ga. App. Ct. 1998); People v. Raitano, 401

N.E.2d 278, 281 (Ill. App. Ct. 1980); Owen v. State, 490 N.E.2d 1130, 1135 (Ind. Ct.

App. 1986); City of Grand Rapids v. Impens, 327 N.W.2d 278, 281 (Mich. 1982); Silks

v. State, 545 P.2d 1159, 1161 (Nev. 1976); State v. Kelly, 294 A.2d 41, 43 (N.J. 1972);

State v. Giallombardo, 504 N.E.2d 1202, 1204 (Ohio App. Ct. 1986); State v. Petersen,

__ S.W.3d __, No. 11-14-00064-CR (Tex. Ct. App. July 16, 2015); State v. Valpredo,

450 P.2d 979, 981 (Wash. 1969); see also In re Deborah C., 635 P.2d 446, 449 (Cal.

1981) (“That private security guards sometimes act under color of law when they conduct

illegal searches neither makes them ‘law enforcement officials’ nor establishes the

complicity of those officials for purposes of Miranda. It does not render their detention

of shoplifting suspects ‘police custody’ nor their questioning ‘official’”); People in

Interest of R.R., 447 N.W.2d 922, 926 (S.D. 1989) (“[A]bsent coordinate action or

complicity between private security guards and the police, Miranda warnings need not be

given to a suspect”).

18
 In arguing that the Macy’s employees were actually acting as agents of the State,

appellant directs us to Peoples v. State, 615 So.2d 1265 (Ala. Crim. App. 1992). In that

case, Peoples entered a K-Mart with her two children and another unrelated juvenile child

from her neighborhood. While she was in the shoe department, the unrelated juvenile

was stopped on suspicion of shoplifting. Peoples was called to the front of the store and

informed of these developments. Peoples, 615 So.2d at 1265-66. After disavowing any

responsibility for this other child, Peoples began to walk away but was stopped after store

personnel noticed that she not only was wearing new shoes from the shoe department, but

that their tags had been removed. Id. at 1266.

Peoples and her children were then taken to the store security office, where they

were interviewed by three store employees and a police officer in a very small room that

could barely accommodate that number. Id. The police officer had responded to the

store earlier due to the reported shoplifting by the juvenile and was asked by the loss

prevention manager to attend the interview with Peoples. Id. In the presence of this

police officer, Peoples was questioned about the new shoes she was wearing, as well as

other items. Id. After Peoples confessed to stealing the shoes, the police officer, who

had been relatively quiet during the interview, then began to question Peoples for

purposes of completing a police report. Id. Following this inquiry, the officer told

Peoples to turn herself in at a later time because she had small children with her. Id.

On appeal, and after recognizing the general rule that the Fifth Amendment

protections ordinarily do not apply to questioning by private citizens, the Alabama

19
appellate court concluded that, under the facts of the case, Peoples should have been

advised of her Miranda rights. Peoples, 615 So.2d at 1267. The Court observed:

[I]n certain instances private conduct can become so entangled with
government involvement that a reasonable person would find it difficult to
distinguish one from another. In such a case, the question of whether one is
entitled to the protections of Miranda cannot be answered merely by
observing the relationship between the private citizen and the government
official as they themselves see it. Our inquiry must focus on whether “the
presence of the police and/or other circumstances indicate that the
questioner is acting on behalf of the police.” 1 W. LaFave & J. Israel,
supra, § 6.10(b), p. 141 (Supp. 1991). “It is the impact on the suspect’s
mind of the interplay between police interrogation and police custody –
each condition reinforcing the pressures and anxieties produced by the
other – which creates ‘custodial interrogation’ within the meaning of
Miranda.”

Id. (emphasis in original) (citation omitted).

The Court then held that:

In the present case, the police officer’s involvement in the
appellant’s interrogation was not insignificant. The record indicates that the
officer was present throughout the process. He had recently assisted in the
arrest of the youngster who had accompanied the appellant to the store and
was then asked by an employee to remain in the security office during the
detention and the questioning of the appellant. Furthermore, the physical
surroundings and conditions of the interrogation certainly emphasized the
officer’s presence. Under these circumstances, the appellant could have
reasonably concluded that she was not merely answering the questions of
the K-Mart employees, but the questions of the police officer as well and
that, for all practical purposes, a police investigation was in progress.
Therefore, the appellant was entitled to be advised of her rights under
Miranda before being questioned. The trial court erred in allowing the
appellant’s confession into evidence.

Id.

We conclude that Peoples is distinguishable. Unlike that case, Officer Bush’s role

in appellant’s interview was very limited. He was not involved when appellant was

20
stopped and handcuffed by Macy’s employees. Nor did he interview appellant or ask her

any questions. And there is no indication in the record that Officer Bush directed the

private security guards in their actions in obtaining the written admissions from appellant.

Thus, we conclude that the motions court was not clearly erroneous in ruling that Salley

and the other Macy’s employees were not agents of the State. And, we also conclude that

Officer Bush’s presence was not the equivalent of police custody so as to require the

satisfaction of Miranda. Accordingly, the court properly denied the motion to suppress

appellant’s written statements.

Moreover, even if the court erred in admitting the written admissions, any error

was harmless beyond a reasonable doubt because appellant confessed to the shoplifting

before Officer Bush arrived. See State v. Logan, 394 Md. 378, 388-91 (2006) (applying

harmless error analysis to a Miranda violation but holding error was not harmless beyond

a reasonable doubt); see also Bartram v. State, 33 Md. App. 115, 153 (1976) (“It is, of

course, settled law that a Miranda error can, indeed, be harmless error”) (citations

omitted), aff’d, 280 Md. 616 (1977); Cummings v. State, 27 Md. App. 361, 385 n.5

(1975) (“That a Miranda violation can be harmless error is not to be doubted”) (citations

omitted).

Here, in addition to testifying at the motions hearing that appellant confessed

before Officer Bush arrived at trial, Salley was asked on direct examination, “beyond the

signed statements, did [appellant] admit to stealing the items from Macy’s?” Salley

testified, without objection, “Yes.” We hold that any error in suppressing the written

statements was harmless beyond a reasonable doubt given that the jury heard evidence of

21
appellant’s confession, without objection. See State v. Guidry, 496 So. 2d 650, 653 (La.

Ct. App. 1986) (even assuming arguendo that a private security guard was acting as a law

enforcement agent, the defendant’s statement, “I’m guilty,” was unsolicited and

voluntary); Sandone v. State, 394 S.W.3d 788, 794 (Tex. App. 2013) (concluding that any

error in admitting testimony about statements defendant gave to store’s loss prevention

officer was harmless where another witness testified to the same facts without objection).

II.

Appellant next asserts that the circuit court erred in allowing Salley to narrate the

events depicted in the surveillance video. Appellant’s claim in this Court is that Salley

offered improper lay opinion. The State responds that the issue was not properly

preserved because these grounds were not raised in court, and that the issue is without

merit in any event.

Prior to hearing any specific testimony about the surveillance video recording of

the incident, defense counsel objected on the grounds that there was no foundation for the

video. A bench conference ensued as follows:

[DEFENSE COUNSEL]: (Indiscernible) any type of CD, any
information to determine how it gets recorded, whether or not she did it.
The foundation element is just not there at this point, Your Honor.

[PROSECUTOR]: I’m not offering it for (indiscernible) right now.
The objection is premature.

THE COURT: And, can I ask you, is this the original CD or is this
one that was made from the security system at the store?

[PROSECUTOR]: Can we ask the witness that, Your Honor?

22
 THE COURT: Okay. I just – if it’s not the original then I’d like to
know who created it and how they did that and if the program that they
used is reliable.

[PROSECUTOR]: Okay.

Subsequently, Salley testified that the video was recorded and kept in the ordinary

course of business for Macy’s, that she was a custodian of records for the store, that she

watched the video in question, and that this video was consistent with what she

personally observed on the day in question. When asked whether defense counsel wanted

to conduct any further voir dire, counsel declined, stating “I believe the foundation

requirements have been fulfilled.” The video was thereafter admitted into evidence

without objection.

The State then received permission to publish the video to the jury. Just prior to

playing the video, the following ensued:

BY [PROSECUTOR]:

Q. Now, Ms. Salley, I’m going to play the recording that’s already
in evidence as State’s. Explain to the jurors what’s going on with the
contents of this video.

[DEFENSE COUNSEL]: Your Honor, objection as to the – I’m not
sure who their (several words indiscernible) cameras that have recorded.
Just as to completeness, Your Honor.

THE COURT: Would you approach?

[DEFENSE COUNSEL]: Yes.

***

BENCH CONFERENCE

(Counsel and defendant approached the bench and the following occurred.)

23
 THE COURT: Will they play all three at the same time?

[PROSECUTOR]: No.

[DEFENSE COUNSEL]: Okay, I just wanted to make sure.

THE COURT: Just one at a time?

[PROSECUTOR]: Just one at a time.

THE COURT: Okay.

***

BENCH CONFERENCE ENDS

Direct examination of Salley proceeded as the video played in open court:

BY [PROSECUTOR]:

Q. Now, Ms. Salley, please explain to the jurors what’s going on in
content of these recordings, please.

A. The part that you’re viewing right now is a video of the
gentleman with the red shirt and the camouflage pants. Pretty much what I
do on a daily basis, I come in and I scan the whole store until I see
something that I want to – something that looks out of the ordinary,
something odd.

There’s the gentleman in the red shirt and camouflage pants. He’s
walking into the women’s coat department. And I start to begin to pan my
camera over to the right and when I zoomed it all the way up, he meets up
with the three ladies, one being Labria Paige.

I stay with him for a little while longer.

[DEFENSE COUNSEL]: Your Honor, I don’t believe a question has
been asked.

[PROSECUTOR]: I asked her to detail what’s in the contents of the
recording.

24
 THE COURT: I’ll allow it.

Salley was then asked by the State to continue providing detail as the video played

for the jury. At several points while the video played, the State fast forwarded through

the video, and defense counsel expressly stated that he had no objection so long as the

video could be observed during that fast forwarding.

Salley continued to testify, still without objection, that she saw appellant and the

two other juveniles on the video as they stood together with the unidentified man. She

testified as to another point in time when the three were observed on the video talking on

cellphones and making selections in the women’s department. Salley testified, again

without objection, that she saw appellant in the video on the “top of the screen on the

right.” Salley testified further that appellant could be seen on the video on the “left side

of the screen,” carrying a pair of black Nike jogging pants. She also testified, without

objection, to scenes during the video when: appellant was observed selecting a black and

white athletic t-shirt; making more selections in the store, and then walking over to the

fitting room and looking for an empty stall. Salley further stated, without objection, that

the three individuals went into a stall together. The video then depicted the moment in

time when Salley, herself, entered an adjacent stall in order to continue her surveillance

from the store floor. Salley maintained that the video had not been altered or disturbed in

any way, and that she was able to see appellant throughout the course of that video

recording.

Salley then testified as follows on further direct examination:

Q. Now, please detail for us once again what’s in the recording.

25
 A. Right now the recording shows the gentleman come back to the
stall with the three women that stall together [sic]. He called out to them.
He waited outside for them and they all came out, all three of the women
came out.

Q. Now, what are the things they came out with?

A. I’m sorry?

Q. What did they come out with?

A. They came out with two athletic shirts, another pair of
sweatpants or leggings and they carried that stuff and put it down.

Q. Now, as you can see – well, what is Ms. Paige carrying?

A. Right now, Ms. Paige is carrying a teal-colored dress that she
just selected off the rack.

Q. Okay, and what about the other two that are behind her, what are
they carrying?

A. The one in the ball cap is carrying the now full Downtown
Locker Room bag and the black bag.

Q. Okay, now you said it’s full. Why do you describe it as full?

A. Because the size of the bag prior to them going into that stall was
not as big as it is now. And secondly –

[DEFENSE COUNSEL]: Objection.

THE COURT: No, I’ll allow it. Overruled.

BY [PROSECUTOR]:

Q. And secondly?

A. And secondly, my job is to verify and identify anything that was
left in the stall after they walked out of the stall.

26
 Salley explained that appellant originally entered the stall carrying six items.

After she inspected the stall, Salley determined that “[f]our of the items that stood out to

us during their selection were not in the stall at all.” Two items remained behind,

according to Salley.

Salley continued testifying about a second camera view of the incident, again

without objection. Salley explained that the second recording offered “[d]ifferent angles”

that showed “different people making selections.” She provided details from that

recording including, but not limited to, views of: appellant and her two female

companions; appellant selecting a yellow shirt from the Nike section of the athletic area

of the women’s department; one of appellant’s companions with the Downtown Locker

Room bag; and, a picture of both the outside of the stall where all three had entered with

merchandise, and an area in the fitting room just outside that same stall.

Salley also testified there was a third view of the encounter, and that view

displayed similar scenes of appellant and the two juveniles congregating together

throughout the store and entering and exiting the fitting room stall together. Salley

testified, without objection, that a portion of the recording showed the three individuals

exiting the store without paying for the merchandise.

Considering this record, we begin with Md. Rule 8-131(a), which provides, in

pertinent part:

Ordinarily, the appellate court will not decide any other issue unless it
plainly appears by the record to have been raised in or decided by the trial
court, but the Court may decide such an issue if necessary or desirable to
guide the trial court or to avoid the expense and delay of another appeal.

27
 Additionally, Md. Rule 4-323(a) provides, again in pertinent part:

An objection to the admission of evidence shall be made at the time the
evidence is offered or as soon thereafter as the grounds for objection
become apparent. Otherwise, the objection is waived. The grounds for the
objection need not be stated unless the court, at the request of a party or on
its own initiative, so directs. The court shall rule upon the objection
promptly . . . .

The purposes of these rules are:

“(a) to require counsel to bring the position of their client to the attention of
the lower court at the trial so that the trial court can pass upon, and possibly
correct any errors in the proceedings, and (b) to prevent the trial of cases in
a piecemeal fashion, thus accelerating the termination of litigation.”

Fitzgerald v. State, 384 Md. 484, 505 (2004) (quoting County Council v. Offen, 334 Md.

499, 509 (1994)); accord Robinson v. State, 404 Md. 208, 216-17 (2008); see also

Conyers v. State, 354 Md. 132, 149-50 (1999) (relying on Md. Rule 4-323 which

describes the proper method for making objections at trial).

In addition, “[i]t is well-settled that when specific grounds are given at trial for an

objection, the party objecting will be held to those grounds and ordinarily waives any

grounds not specified that are later raised on appeal.” Klauenberg v. State, 355 Md. 528,

541 (1999) (citations omitted); see also Gutierrez v. State, 423 Md. 476, 488 (2011)

(reiterating that “when an objector sets forth the specific grounds for his objection . . . the

objector will be bound by those grounds and will ordinarily be deemed to have waived

other grounds not specified”) (citation omitted); Robinson v. State, 209 Md. App. 174,

202 (2012) (“Because [appellant’s] arguments were not raised below, they are not

preserved for appellate review”).

28
 As indicated in our discussion, although there were various points during Salley’s

testimony when defense counsel raised certain objections to certain testimony, at no time

did defense counsel ever specifically contend that Salley’s testimony amounted to

improper lay opinion. We ordinarily would conclude that this issue is not preserved due

to the overall absence of specific objections to Salley’s testimony on the grounds raised

for the first time on appeal.

However, there was one instance where counsel raised a general objection.

Pursuant to Md. Rule 4-323(a), if a party appeals a trial court’s ruling on a “general”

objection to the admission of evidence, then that party is free to “argue any ground

against its inadmissibility.” See Johnson v. State, 408 Md. 204, 223 (2009) (citations

omitted) (emphasis in original); accord Wilder v. State, 191 Md. App. 319, 355 (2010).

When Salley testified to that part of the video concerning the appearance of the

Downtown Locker Room bag, defense counsel offered a general objection as follows:

Q. Okay, now you said it’s full. Why do you describe it as full?

A. Because the size of the bag prior to them going into that stall was
not as big as it is now. And secondly –

[DEFENSE COUNSEL]: Objection.

THE COURT: No, I’ll allow it. Overruled.

BY [PROSECUTOR]:

Q. And secondly?

A. And secondly, my job is to verify and identify anything that was
left in the stall after they walked out of the stall.

(Emphasis added).

29
 Ordinarily, this would be sufficient to preserve appellant’s argument, at least to the

extent that it challenged Salley’s testimony about the size of this particular bag.7 And

yet, despite this general objection, we conclude that any challenge to Salley’s opinion

was waived. This is so because Salley offered a similar opinion later during direct

examination, without objection, when she testified that the video showed the Downtown

Locker Room bag when it was smaller and then later again, when it was larger.

Specifically:

Q. And you mentioned earlier the bag was a smaller, sort of, state at
this time. Was that the state you were talking about?

A. Yes.

Q. And when you will see this again, in this recording, will it be
smaller, the same or larger?

A. Larger.

In Yates v. State, 429 Md. 112, 120-21 (2012), the Court of Appeals stated:

“[w]here competent evidence of a matter is received, no prejudice is sustained where

other objected to evidence of the same matter is also received.” (Citation and internal

quotation marks omitted); see also DeLeon v. State, 407 Md. 16, 30-31 (2008) (holding

that a defendant waived an objection to what he claimed was irrelevant and highly

prejudicial testimony about his purported gang affiliation because “evidence on the same

7Salley’s testimony that her job required her to “verify and identify” items left
behind is arguably a statement of fact, not opinion. See Thomas v. State, 183 Md. App.
152, 178 (2008) (“An opinion is a belief or view base on an interpretation of observed
facts and experience”) (citation omitted), aff’d, 413 Md. 247 (2010).

30
point [was] admitted without objection” elsewhere at trial). Although defense counsel’s

general objection initially preserved a challenge to Salley’s direct examination offering

an opinion about the relative appearance of the Downtown Locker Room bag, that

objection was waived when similar testimony came in later without objection.

Accordingly, we are persuaded that this issue is not preserved for appellate review.

Even if preserved, we conclude that appellant’s claim is without merit. “We

review a circuit court’s decisions to admit or exclude evidence applying an abuse of

discretion standard” Norwood v. State, 222 Md. App. 620, 642 (citing Kelly v. State, 392

Md. 511, 530 (2006)), cert. denied, 444 Md. 640 (2015); see also Warren v. State, 164

Md. App. 153, 166 (2005) (“The decision to admit lay opinion testimony is vested within

the sound discretion of the trial judge”) (citation omitted). We have previously

explained:

“‘[A] ruling reviewed under an abuse of discretion standard will not
be reversed simply because the appellate court would not have made the
same ruling.”’ Alexis v. State, 437 Md. 457, 478 (2014) (emphasis omitted)
(quoting North v. North, 102 Md. App. 1, 14 (1994)). “Rather, ‘[a] court’s
decision is an abuse of discretion when it is well removed from any center
mark imagined by the reviewing court and beyond the fringe of what that
court deems minimally acceptable.”’ Id. (quoting Gray v. State, 388 Md.
366, 383 (2005) (quoting Dehn v. Edgecombe, 384 Md. 606, 628 (2005))
(some internal quotation marks omitted)).

Id. at 643.

Pursuant to the Maryland Rules of Evidence, a lay witness may testify to those

opinions or inferences which are “(1) rationally based on the perception of the witness

and (2) helpful to a clear understanding of the witness’s testimony or the determination of

a fact in issue.” Md. Rule 5-701. “The rationale for the standard set by [Md.] Rule 5-701

31
is two-fold: the evidence must be probative; in order to be probative, the evidence must

be rationally based and premised on the personal knowledge of the witness.” State v.

Payne, 440 Md. 680, 698 (2014) (citation and footnote omitted); see also Md. Rule 5-602

(a witness must have personal knowledge of the matter, and “[e]vidence to prove

personal knowledge may, but need not, consist of the witness’s own testimony”). And:

The personal knowledge prerequisite requires that “‘[e]ven if a
witness has perceived a matter with his senses,’” he must also have “‘the
experience necessary to comprehend his perceptions.’” The rational
connection prerequisite requires that there “‘be rational connection between
th[e] perception and the opinion.’”

Rosenberg v. State, 129 Md. App. 221, 255-56 (1999) (quoting Robinson v. State, 348

Md. 104, 121, 124 (1997)).

The issue presented concerns admission of Salley’s opinions. By way of

background information, Salley had been employed as a loss prevention officer at Macy’s

for six years. During that time, she attended yearly training sessions that taught her how

to apprehend, escort, and detain individuals suspected of shoplifting. She testified that

there were five “steps” that a loss prevention officer needed to observe prior to making an

apprehension, and those steps were “entry, selection, continuous observation,

concealment and exit.” Her job at Macy’s required her to view 97 closed circuit

televisions throughout the entirety of the store, except for the restrooms, the stalls inside

the fitting rooms, and the employee lounge.

On April 14, 2013, Salley was working in the Columbia Mall Macy’s when she

personally watched appellant, from the moment appellant first appeared in the women’s

department until she exited the door. Pertinent to this issue, Salley testified that she had

32
reviewed the video prior to trial, and that the information recorded on the CD was a fair

and accurate depiction of what transpired on the day in question. Macy’s retained videos

such as these in the ordinary course of business, and Salley agreed that she was a

custodian of the specific video that was recorded in connection with this case.

Thereafter, during the playing of the recording, it was apparent that Salley had

operated the surveillance cameras on the day in question. She testified that, at one point,

she switched cameras while following the man and zoomed in on his movements as he

approached the three individuals. Salley indicated there were three monitors that showed

the different angles, and the video used the one monitor that focused on appellant and the

two juveniles. She explained that she could move from one camera to any one of the 97

cameras at her disposal during the recording process by pressing a number associated

with an individual camera feed. Salley further testified that there were 6 cameras in the

athletic and couture section2 of the women’s department. Some of these 6 cameras were

located over the registers, some were covert cameras, and some were inside black

bubbles on the ceilings. Salley stated that these cameras could catch people stealing and

could be used to exonerate those individuals.

We are persuaded that Salley’s testimony, offering a narrative that described the

events in the surveillance video, was based on Salley’s personal knowledge of the events

that unfolded. To the extent that Salley went beyond testifying to mere facts, any

opinions she offered, including the opinion about the change in size of the Downtown

2
Couture clothing are garments created or produced by a fashion designer.
33
Locker Room bag after appellant entered the fitting room stall with the two juveniles,

were rationally based on her perception. We also conclude that the testimony, based as it

was on Salley’s six-year experience as a loss prevention agent, was helpful to a clear

understanding of Salley’s testimony and the determination of whether appellant knew

about the shoplifting.

In support of her argument, appellant cites Moreland v. State, 207 Md. App. 563

(2012). We conclude that Moreland actually supports our decision. In that case, we

decided that the lay witness testimony of a non-eyewitness police officer was “helpful” to

the jury, and therefore, admissible because the officer had sufficient “substantial

familiarity” with the defendant. Id. at 572-73; see also Tobias v. State, 37 Md. App. 605,

616-17 (1977) (“We find no abuse of discretion in allowing the authenticating witness to

identify the people shown in the video tape . . . . The jury saw the tape, and could judge

for itself what it showed and whether Detective Battle’s identifications were accurate”).

Likewise, Salley, who actually was an eyewitness to the events discussed herein, offered

helpful testimony that was probative on the issue of criminal responsibility.

We find additional support in Cuzick v. Commonwealth, 276 S.W.3d 260, 266

(Ky. 2009). In Cuzick, Officer Bradley Sapp was driving his marked police vehicle when

he encountered Cuzick, who was driving the wrong way on a Kentucky roadway. Id. at

262. After activating his emergency equipment and turning around to pursue Cuzick,

Officer Sapp stopped appellant momentarily. Id. However, while the officer approached

Cuzick’s vehicle on foot, Cuzick sped away from the traffic stop, again into oncoming

traffic. Id. Officer Sapp resumed pursuit and, eventually accompanied by Officer Jason

34
Faddasio and Corporal Michael Fleming, a high speed chase, reaching speeds in excess

of 85 miles per hour, ensued. Id. Appellant’s vehicle soon thereafter failed, and

appellant was apprehended, charged, and convicted of multiple counts, including fleeing

and evading police and resisting arrest. Id.

At trial, both Officer Sapp and Corporal Fleming testified to the events in

question. Cuzick, 276 S.W.3d at 265. During their respective testimonies, a video of that

pursuit was played for the jury. In response to questioning, both officers described the

images on that video as it related to their perspective of the underlying events. Id. An

issue presented on appeal concerned admission of the officers’s narrative that

accompanied playing of the video recording. Id. at 264-65. In its discussion, the

Supreme Court of Kentucky noted that it had previously addressed the issue of whether a

police officer’s narrative testimony during the playing of a crime scene video was

improper lay testimony. Id. at 265. The Court had determined that the relevant test was

whether the testimony complied with the Kentucky Rules of Evidence, more specifically,

Kentucky Rule of Evidence (“KRE”) 701, governing lay opinion testimony and KRE

Rule 602, concerning the requirement that testimony be based on personal knowledge.

Id. (citing Mills v. Commonwealth, 996 S.W.2d 473 (Ky. 1999)). Compare Milburn v.

Commonwealth, 788 S.W.2d 253, 257 (Ky. 1989) (allowing narrative testimony from in

court witnesses providing “simultaneous commentary” of crime scene video), with Fields

35
v. Commonwealth, 12 S.W.3d 275, 280 (Ky. 2000) (finding error in pre-recorded

narrative video when such narration contained inadmissible hearsay).8

The Court stated that “the fulcrum of the matter upon which this issue turns, is

whether the witness has testified from personal knowledge and rational observation of

events perceived and whether such information is helpful to the jury. In short, does the

testimony comply with the rules of evidence?” Cuzick, 276 S.W.3d at 265. The Court

held that “[w]hile a witness may proffer narrative testimony within the permissible

8 The Kentucky Rules of Evidence are substantially similar to their Maryland
counterparts:

If the witness is not testifying as an expert, the witness’ testimony in the
form of opinions or inferences is limited to those opinions or inferences
which are:

(a) Rationally based on the perception of the witness;

(b) Helpful to a clear understanding of the witness’ testimony
or the determination of a fact in issue; and

(c) Not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.

KRE 701.

And:

A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge of
the matter. Evidence to prove personal knowledge may, but need not,
consist of the witness’ own testimony. This rule is subject to the provisions
of KRE 703, relating to opinion testimony by expert witnesses.

KRE 602.

36
confines of the rules of evidence, we have held he may not “interpret” audio or video

evidence, as such testimony invades the province of the jury, whose job is to make

determinations of fact based upon the evidence.” Id. at 265-66.

Applying this test to the facts, the Supreme Court of Kentucky upheld the

admission of the officers’s narration:

Here, the videos in question depicted the substance of a high-speed police
chase, as captured from the in-car cameras. It is completely reasonable to
conclude that the officers’ testimony was not only beneficial to the jury in
discerning what was happening on the video, but was in all likelihood
necessary. Moreover, and importantly, the officers’ testimony did not
interpret the video. While the testimony was narrative in the sense that it
sequentially followed the chronology of the tape, all statements were
responsive in nature and were in answer to the Commonwealth’s questions.
Narrative testimony is not necessarily interpretive testimony per se. Here,
the testimony was explicative of the officers’ perception of the events
occurring on the video as they perceived them during the police chase and
provided further elucidation of matters of police procedure, etc., which
were not readily identifiable from the video standing on its own. Thus,
having reviewed the record and determined that the testimony was proper
lay opinion testimony which was beneficial to the jury, we find no palpable
error.

Id. at 266 (internal citations omitted); see also State v. Buie, 671 S.E.2d 351, 356 (N.C.

App. 2009) (noting cases where the Court had upheld admission of opinion testimony

narrating events in a surveillance video “when their interpretations were based in part on

firsthand observations”); People v. Hardy, 981 N.Y.S.2d 722, 723 (N.Y. App. Div. 2014)

(“[I]t was permissible for the witnesses to explain matters depicted on the videotapes that

they had personally participated in or observed”), leave to appeal denied, 17 N.E.3d 506

(N.Y. 2014).

37
 In sum, and to the extent preserved, Salley’s testimony in this case was based on

her personal knowledge from having witnessed appellant’s actions, real time, as appellant

moved through the women’s department at Macy’s. That testimony explained facts on

the video, including appellant’s selection of various items, the conference of appellant

and the two juveniles in one fitting room stall, and then the exit from the store without

paying, while one of appellant’s companions carried a “full” Downtown Locker Room

bag. To the extent that Salley offered opinions about these events, including that the bag

looked larger after emerging from the crowded fitting room stall than when the appellant

entered, we conclude that the testimony was rationally based on Salley’s perceptions and

were helpful for the jury to understand facts at issue.

JUDGMENTS OF THE CIRCUIT COURT FOR
HOWARD COUNTY AFFIRMED. COSTS TO
BE PAID BY APPELLANT.

38