Perry v. State

Leahy, J. Appellant Brooks Sinclair Perry led police on a high-speed car chase in Talbot County, Maryland, after he fled the scene of a traffic stop conducted by Trooper Tanner Nickerson during the late evening of March 12, 2014. Trooper Nickerson pursued Perry — who, he suspected, was intoxicated' — down Route 50. Corporal Joshua Resh and Corporal Emerick soon joined the chase in their police vehicles. Perry abandoned his vehicle in the middle of Route 50 after it began to overheat and fled on foot into a nearby golf course. ⁶⁹² All three officers continued the chase on foot, over and around dirt mounds, through the golf course.

Perry jumped over a fence, exiting the golf course in the direction of Route 50. Once Perry landed on the other side of the fence, Corporal Resh observed a muzzle flash and heard a gunshot coming from Perry’s direction, prompting Resh to unholster his gun and return fire. Perry escaped unharmed but was apprehended twelve hours later. A gun was never recovered.

Perry was tried and convicted by a jury in the Circuit Court for Talbot County of, inter alia, two counts of reckless endangerment, negligent driving, and reckless driving. Perry presents several issues on appeal, which we have rephrased: I. Did the State fail to present sufficient evidence to support Perry’s convictions for reckless endangerment?

II

Did the trial court err in permitting the State to introduce inadmissible expert testimony regarding the alleged “muzzle flash”?

III

Did the trial court deny Perry a fair trial by coercing the jury to reach a verdict on an artificially shortened timetable imposed by the court?

IV

Did the trial court err by failing to merge Perry’s negligent driving and reckless driving convictions and then vacate the negligent driving conviction? We hold that the jury was presented with sufficient evidence to find that Perry’s reckless conduct placed both Corporal Resh and Trooper Nickerson in substantial risk of death or serious physical injury. We further determine that Perry failed to preserve both his argument that Corporal Resh’s testimony was inadmissible expert testimony and his argument that the judge coerced the jury by not raising contemporaneous objections. We agree that Perry’s negligent driving and reckless driving sentences should be merged; however, the separate convictions stand under Moore v. State, 198 Md.App. 655 , 18 A.3d 981 (2011). ⁶⁹³ BACKGROUND The following testimony and evidence was presented at Perry’s trial before a jury in the Talbot County Circuit Court on October 1 and 2, 2014.

Trooper Nickerson recounted that shortly after beginning his 11 p.m. to 7 a.m. shift on March 12, 2014, he obtained radar readings of 71 miles per hour and 75 miles per hour from Perry’s vehicle as it was heading westbound on Route 404. He activated his emergency equipment and initiated a traffic stop. After radioing the barracks his location and the tag number, make, and color of Perry’s vehicle, Trooper Nickerson approached on the driver’s side, identified himself, and requested Perry’s driver’s license and registration. Perry, who was alone in the vehicle, did not produce a license or registration.

He told Trooper Nickerson that his name was Christian Lawrence Perry, bom July 5th, 1988. Trooper Nickerson returned to his car, gave the name to the dispatcher at the barrack, and informed the dispatcher that he was going to do a field sobriety test after observing that the “driver had glassy bloodshot eyes. Slurred speech.” Trooper Nickerson re-approached the vehicle and asked Perry whether he would perform field sobriety tests to ensure that he could drive the vehicle safely. Perry asked Trooper Nickerson whether he was going to search the vehicle, and, after being assured by Nickerson that he was not, Perry agreed to perform the tests.

Perry exited the vehicle and faced away from Trooper Nickerson, toward the front of the vehicle. Trooper Nickerson observed Perry adjusting “something in his, in the front of his pants, belt, waist area.” Perry asked Trooper Nickerson whether he was going to search him and whether he had called for backup. Trooper Nickerson told Perry that he was going to search him, but did not respond to Perry’s inquiries about backup. Perry turned around twice to talk to Trooper Nickerson, and, each time, Trooper Nickerson instructed him to turn back around and place his hands on the trunk.

Perry complied, but after the second time, Trooper Nickerson instructed Perry to get back ⁶⁹⁴ in his vehicle because, he explained, “I didn’t feel comfortable with [Perry] outside the vehicle with just me there. I didn’t know if he had any weapons on him. What his plans were.” Trooper Nickerson decided to wait for the backup units before attempting to search Perry. Perry returned to his vehicle and suddenly Trooper Nicker-son observed the brake lights come on and Perry’s hand go “down by the shifter.” Perry drove away from the traffic stop.

Trooper Nickerson immediately entered his car, radioed the barracks and began pursuing Perry with his emergency equipment on. He attained a speed of approximately 100 miles per hour for about a mile and a half while pursuing Perry. During this time he was in radio contact with his backup units, Corporal Emerick and Corporal Resh, providing them with his location during the pursuit. Perry’s vehicle began to smoke and slow down to approximately 50 miles per hour.

Trooper Nickerson testified that smoke was coming from “the engine. ... [t]he whole car.” Corporal Resh joined the pursuit as Perry’s vehicle continued on until it reached Hog Neck Golf Course, 1 at which time it slowed to 5 miles per hour in a crossover turn lane. Perry opened the driver’s side door while the car was still moving, jumped out of the car, and started running toward the golf course. Corporal Resh stopped his car, exited, and immediately began pursuing Perry on foot. He followed Perry through a gate into the golf course and along the fence line parallel to Route 50.

Meanwhile Trooper Nickerson pulled into the golf course where he joined Corporal Emerick and together they ran around the backside of the dirt mounds between Route 50 and the golf course. Trooper Nickerson described the mounds as difficult to get around, relating that “[y]ou c[ouldn]’t see over top of [the dirt mounds].” ⁶⁹⁵ Although he was originally 40 yards behind Perry, Corporal Resh explained that he was able to close that distance to 10-15 yards because Perry fell three times on the uneven terrain. At the third fall, Corporal Resh illuminated Perry with a flashlight and advised him to stay on the ground. To the contrary, Perry sprang up and continued the pulse-racing chase.

Corporal Resh testified that Perry jumped onto the fence, and as he got down on the other side, he “heard a gunshot and [] observed a muzzle flash,” — occurrences that were “[a]lmost simultaneous[ ].” Corporal Resh was surprised because he had not seen Perry with a weapon. He immediately unholstered his weapon, a dock .40 caliber pistol, and returned fire — three consecutive shots, and then a fourth approximately a second later. Corporal Resh admitted at trial that he did not know whether Perry fired the gun intentionally or accidentally. Trooper Nickerson heard gunshots coming from the other side of the mound that he was crossing and immediately dropped to the ground.

He did not know who was shooting or from where the gunshots were originating. Nickerson recounted that “[t]here was one [gunshot] and then there was I believe two or three I heard right after that.” Perry escaped across Route 50. The police set a perimeter around the area, and Perry was located and arrested approximately 12 hours later. At some point it was discovered that Perry was not Christian Lawrence Perry, but rather Brooks Sinclair Perry, born January 27,1986.

Evidence was offered during trial that three .40 caliber cartridge casings were recovered from the golf course side of the fence, and one .45 caliber cartridge casing was recovered from the Route 50 side of the fence. No bullets were ever recovered. According to Susan Kaim of the Maryland State Police, who was qualified as an expert firearms and tool marks examiner, the .40 caliber cartridges were from Corporal Resh’s gun, but the .45 caliber cartridge was not. At the close of trial, Perry was found not guilty of attempted second-degree murder, first-degree assault, and second-degree assault.

He was, however, convicted of two counts of ⁶⁹⁶ reckless endangerment for putting Trooper Nickerson and Corporal Resh at substantial risk of death or serious physical injury, fraudulent use of identification to avoid prosecution, attempting to elude a uniformed police officer by failing to stop, two counts of attempting to elude a uniformed police officer by fleeing on foot, attempting to elude police in an official police vehicle by failing to stop, reckless driving, negligent driving, and failure to display a license on demand. On December 15, 2014, Perry was sentenced to 11 years’ imprisonment. Perry noted an appeal on January 6, 2015. Additional facts will be presented as they pertain to the discussion.

DISCUSSION I. Reckless Endangerment Perry argues that the State failed to present sufficient evidence at trial that his conduct created a substantial risk of death or serious bodily injury to Trooper Nickerson or Corporal Resh. He urges this Court to reverse his reckless endangerment convictions because the record lacks evidence that either officer was in the line of fire of “the gun allegedly fired by [him].” The State disputes Perry’s contention that the officers were not recklessly endangered because they were not within Perry’s line of fire, and asserts that Perry would have been culpable even if the police had merely found the gun on his person without it ever having been fired because reckless endangerment is an inchoate offense. On appeal in a criminal case, we review the evidence in the light most favorable to the prosecution and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Smith, 374 Md. 527, 533 , 823 A.2d 664 (2003) (citations omitted). When making this determination, the appellate court is not required to determine “ ‘whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” State v. Manion, 442 Md. 419, 431 , 112 A.3d 506 ⁶⁹⁷ (2015) (emphasis in original) (quoting Dawson v. State, 329 Md. 275, 281 , 619 A.2d 111 (1993)).

Rather, it is the trier of fact’s task to weigh the evidence, and the appellate court will not second guess the determination of the trier of fact “ ‘where there are competing rational inferences available.’ ” Manion, 442 Md. at 431 , 112 A.3d 506 (quoting Smith v. State, 415 Md. 174, 183 , 999 A.2d 986 (2010)). We nod with approval at the State’s commentary that, when reviewing the legal sufficiency of the evidence, “this Court does not act like a thirteenth juror weighing the evidence[.]” A. The Purpose of the Reckless Endangerment Statute is to Deter Potentially Harmful Conduct In Maryland, reckless endangerment is a statutory crime, codified at Maryland Code (2002, 2012 Repl. Vol.), Criminal Law (“Crim.”), § 3-204, which states in pertinent part: (a) Prohibited. — A person may not recklessly: (1) engage in conduct that creates a substantial risk of death or serious physical injury to another... * * * (b) Penalty — A person who violates this section is guilty of the misdemeanor of reckless endangerment and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $5,000 or both. The Court of Appeals has interpreted this statute to require the State prove: “1) that the defendant engaged in conduct that created a substantial risk of death or serious physical injury to another; 2) that a reasonable person would not have engaged in that conduct; and 3) that the defendant acted recklessly.” Jones v. State, 357 Md. 408, 427 , 745 A.2d 396 (2000) (citation omitted).

The corresponding Maryland Criminal Pattern Jury Instruction states: The defendant is charged with the crime of reckless endangerment. In order to convict the defendant of reckless endangerment, the State must prove: ⁶⁹⁸ (1) that the defendant engaged in conduct that created a substantial risk of death or serious physical injury to another; (2) that a reasonable person would not have engaged in that conduct; and (3) that the defendant acted recklessly. The defendant acted recklessly if [he] [she] was aware that [his] [her] conduct created a risk of death or serious physical injury to another and then [he] [she] consciously disregarded that risk. MPJI-Cr 4:26A Reckless Endangerment.

The instructions given to the jury in this case were substantially similar. 2 Notably, it is not a requirement that the individual have intended to cause the result. Minor v. State, 85 Md.App. 305, 316 , 583 A.2d 1102 (1991). Rather, the applicable mens rea, derived from the statute’s employment of the term “reckless,” is the “conscious disregard of a substantial risk” of harm. Williams v. State, 100 Md.App. 468, 503 , 641 A.2d 990 (1994).

Indeed, the statute applies even when the harm was never consummated, as in Perry’s case on appeal, because, as this Court explained in Williams , the purpose of the reckless endangerment statute is to deter reckless behavior before a criminal act results: Reckless endangerment is quintessentially an inchoate crime. It is designed to punish potentially harmful conduct even under those fortuitous circumstances where no harm results. Judge Bishop explained, 85 Md.App. at 314-315 , 583 A.2d 1102 : ⁶⁹⁹ This statute was enacted in 1989 to prohibit “conduct which, while not criminal under current law, creates a substantial risk that a criminal act will result.” Bill Analysis, H.B. 1448, Senate Judicial Proceedings Committee, 1989 (“Bill Analysis”); Floor Report, H.B. 1448, Senate Judicial Proceedings Committee 1989 (“Floor Report”). As the Committee observed, the purpose of the statute, like the statute prohibiting reckless driving, Md. Transp.

Code Ann. § 21-901.1, is to deter crime before injury or death occurs. Id. (footnote omitted) (emphasis supplied). The words of Chief Judge Murphy were of similar import in Minor v. State, 326 Md. at 442, 605 A.2d 138 : It is readily evident from the plain language of § 120(a) 3 that it was enacted to punish, as criminal, reckless conduct which created a substantial risk of death or serious physical injury to another person.

It is the reckless conduct and not the harm caused by the conduct, if any, which the statute was intended to criminalize, (emphasis supplied). As with all inchoate crimes, reckless endangerment was intended to plug a gap in the law. Inchoate crimes are designed to inhibit criminal conduct before it goes too far or to punish criminal conduct even when, luckily, it misfires. Reckless endangerment is, indeed, doubly inchoate.

At the actus reus level, it is one element short of consummated harm. At the mens rea level, it is one element short of the ⁷⁰⁰ specific intent necessary for either an attempt or for one of the aggravated assaults. 100 Md.App. at 480-81 , 641 A.2d 990 (italic emphasis in original) (bold emphasis supplied). Perry’s argument on appeal focuses on the actus reus— whether the State offered sufficient evidence regarding the “line of fire” of the gunshot to support a finding that he engaged in conduct that created a substantial risk of death or serious physical injury. He does not dispute that the conduct he engaged in was that which a reasonable person would not engage in, nor does he argue that his actions were not reckless.

Therefore, we turn to the question of whether the record supports a finding that Perry’s reckless actions actually created a substantial risk of death or serious physical injury to Corporal Resh and Trooper Nickerson. B. The Actus Reus is Measured Objectively It is well established in Maryland that “ ‘the actus reus of creating a substantial risk is to be measured objectively, not subjectively ... on the basis of the physical evidence in the case.’ ” Hall v. State, 448 Md. 318, 330 , 139 A.3d 936 (2016) (quoting Williams, 100 Md.App. at 495 , 641 A.2d 990 ). Objectively, we need not pause to inquire whether a loaded gun is the kind of instrument that can create a substantial risk of death or serious physical injury. The proper inquiry is into whether the gun was handled in a manner that created a substantial risk sufficient to find reckless endangerment.

Our survey of Maryland appellate opinions reveals that the reckless endangerment statute is most frequently applied in situations involving firearms. See, e.g., State v. Pagotto, 361 Md. 528, 553 , 762 A.2d 97 (2000); Thompson v. State, 229 Md. App. 385, 414-15 , 145 A.3d 105 , 2016 WL 4540407 (2016); Marlin v. State, 192 Md.App. 134, 140 , 993 A.2d 1141 (2010); Boyer v. State, 107 Md.App. 32, 36-38 , 666 A.2d 1269 (1995); Wieland v. State, 101 Md.App. 1, 6 , 643 A.2d 446 (1994). Indeed, we observed in Moulden v. State, 212 Md.App. 331, 356 , 69 A.3d 36 (2013) that documents in the legislative history file of the reckless endangerment statute express a particular concern ⁷⁰¹ for the reckless discharge of firearms. 212 Md.App. at 356 , 69 A.3d 36 (citing Senate Judicial Proceedings Committee Floor Report on H.B. 1448 (1989) (“This bill prohibits conduct which, while not criminal under current law, creates a substantial risk that a criminal act will result. According to testimony, individuals who recklessly shoot firearms without criminal intent near roads or buildings cannot be prosecuted under current law.”)) (other citations omitted).

It is axiomatic that the use of a gun does not always create a substantial risk sufficient to find reckless endangerment. See Williams, 100 Md.App. at 497-99 , 641 A.2d 990 (citing People v. Davis, 72 N.Y.2d 32 , 530 N.Y.S.2d 529 , 526 N.E.2d 20 (N.Y.1988)). In Williams , this Court examined the Davis decision because it “elaborated on the necessity that a risk actually be created,” id. at 498, 641 A.2d 990 , noting in that case “the actus reus of risk creation had not occurred, notwithstanding the defendant’s aiming and attempting to fire a gun, because the gun was inoperable.” Id. at 497 , 641 A.2d 990 . The Williams Court quoted Davis at length: Moreover, even if a gun is fired, that standing alone, is not enough to constitute commission of the crime.

The use of the gun must create a risk. Thus, it has been held that shooting a pistol into the air or in the general direction of a roadway but considerably short of it does not constitute reckless endangerment. In this case, the evidence established that although defendant pulled the trigger his gun did not fire and thus his conduct could not create a risk of death to Officers Freeman and Farley. (Citations omitted) (emphasis supplied).

Id. at 498, 641 A.2d 990 (quoting Davis, 530 N.Y.S.2d 529 , 526 N.E.2d at 22 ). In other words, “ ‘factual impossibility eliminates the risk essential to commission of the crime.’ ” Id. at 499, 641 A.2d 990 (quoting Davis, 530 N.Y.S.2d 529 , 526 N.E.2d at 22 ). The State allows that it is an “uncontroversial point” that the use of a gun might not create a substantial risk of death or ⁷⁰² serious physical injury; however, the State argues that “whether conduct is a gross departure from the standard of conduct that a law-abiding person would observe is a question determined objectively based on all the surrounding circumstances.” The State appears to conflate two issues: (1) whether the conduct, objectively viewed, created a substantial risk of death or serious physical injury to anyone, and (2) whether Perry acted recklessly with conscious disregard or wanton indifference to the creation of such a risk. In this appeal, however, we are concerned only with the first issue, and regardless of whether Perry’s conduct was a gross departure from that of a law-abiding citizen, as we just observed, factual impossibility would eliminate the risk essential to commission of the crime of reckless endangerment.

See Williams, 100 Md.App. at 498 , 641 A.2d 990 (stating that the only issue on appeal in Davis was the establishment of the actus reus); see also Albrecht v. State, 105 Md.App. 45, 77 , 658 A.2d 1122 (1995) (stating that the reckless conduct was the officer’s placement of his finger on the trigger, and the accidental firing of the weapon was the life-endangering act, prompting the Court to determine whether the individuals at the scene were within the arc of danger). In Albrecht v. State, on remand from the Court of Appeals, this Court upheld a number of reckless endangerment charges against a police officer. 105 Md.App. at 45 , 658 A.2d 1122 . The Court of Appeals determined that the officer’s actions were grossly negligent when he deviated from acceptable police practice. After arriving at the scene of an alleged stabbing, the officer placed his finger on the trigger of his gun, which was aimed at a person he believed was involved in the alleged crime, “thereby increasing, if not creating, the danger that a nervous twitch or an uncontrollable muscular spasm might cause the weapon to fire accidentally.” Id. at 50 , 658 A.2d 1122 .

This Court determined that the officer’s act created a substantial risk of death or serious bodily injury to the person upon whom the officer leveled his gun, as well as to those additional individuals who were within the “arc of danger” of his “line of fire.” Id. at 74, 77-79, 86 , 658 A.2d 1122 . With ⁷⁰³ respect to a four-year-old child who was on the playground behind the person at whom the officer was pointing his gun, Judge Moylan, writing for this Court, instructed that the inquiry should be: “was [the child] at that moment, arguably within the line of fire so as to have been actually at risk?” The Court concluded that even though the gun was pointed at another person, the evidence supported a finding that the child was “within the arc of danger at the very instance that the gun fired[,]” and therefore, “[t]he evidence was legally sufficient to support the conviction” of reckless endangerment. Id. at 78 , 658 A.2d 1122 . Perry relies on this Court’s holding in Albrecht to argue that there is no evidence in the record that either Corporal Resh or Trooper Nickerson were in his “line of fire,” and therefore, the evidence is insufficient to support a finding that he is guilty of reckless endangerment.

Because Trooper Nick-erson was “behind a hill” when the gun was fired, Perry insists that “there is absolutely no possibility based on the record that Trooper Nickerson was at risk of being hit by the bullet.” The State distinguishes Albrecht , underscoring that there the defendant was a police officer who “[was] justified in carrying, unlimbering, loading, and aiming a gun.” The State argues that the highly nuanced Albrecht “line of fire” analysis is “wholly inappropriate” in this case because it is limited to situations where “a criminal defendant is a societally approved and highly trained gunman whose only fault was the failure to mitigate the danger of an accidental shooting.” The State maintains that to adopt Perry’s interpretation of Albrecht to form a new rule would “convert the inchoate crime of reckless endangerment into an unheard of, and fully actualized, crime of ‘discharged firearm endangerment’ based on hyper-technical degrees of axial danger.” The State offers Boyer, swpra, to support its conviction that the evidence on record in the instant case was sufficient for the jury to find reckless endangerment. In Boyer , police responding to a domestic abuse call found the defendant in his ⁷⁰⁴ bedroom lying partially under a bedsheet, watching television with his eleven-month old daughter. 107 Md.App. at 37 , 666 A.2d 1269 . The defendant’s right hand was under the covers, and, when he refused to remove it, one officer pulled the bedsheet away and discovered a machine gun, pointed directly at him, “loaded, with its ‘safety’ in the ‘fire’ position, its setting on ‘SMG’ (sub-machine gun), and a round of ammunition in the chamber.” Id. at 37-38 , 666 A.2d 1269 . This Court upheld three reckless endangerment convictions for endangering the two officers who were in the room and the defendant’s daughter, emphasizing: Although appellant may not have had physical contact with the machine gun hidden beneath his bedsheet, it was in his possession and control.

Also, the evidence demonstrated that, while the officers were in the bedroom, the machine gun was loaded, pointed at Officer Aquaviva, and its safety was off. Appellant and his eleven-month old daughter were inches away from the gun and appellant had his hand under the sheet, next to the gun. ... [W]e hold that, viewing the evidence in a light most favorable to the State, a reasonable trier of fact could have reasonably concluded that appellant’s conduct, when viewed objectively, was so reckless that “[it] constitute^] a gross departure from the standard of conduct that a law-abiding person would observe and ... create[d] the substantial risk that [the reckless endangerment statute] was designed to punish.” Id. at 41-42 , 666 A.2d 1269 (quoting Albrecht, 336 Md. at 501, 649 A.2d 336 ). As Perry points out in his reply brief, Boyer states a number of times that the gun was pointed at an officer, and that the eleven-month old daughter was inches from the gun. Id. at 38, 41-42 , 666 A.2d 1269 .

We note however, that despite quoting from Albrecht, this Court did not apply the punctilious “line