REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2489
September Term, 2014
______________________________________
BROOKS S. PERRY
v.
STATE OF MARYLAND
______________________________________
Eyler, Deborah S.,
Leahy,
Moylan, Charles E.,
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Leahy, J.
______________________________________
Filed: September 28, 2016
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.
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?
1
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 (2011).
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, born 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.”
2
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 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 Nickerson 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.
3
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].”
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
1
According to the transcript, Trooper Nickerson said “Hog Creek Golf Course,”
however, our research indicates that “Hog Neck Golf Course” is the correct name. See
Hog Neck Golf Course, http://www.hogneck.com/ [https://perma.cc/NM3R-5UTF].
4
with a weapon. He immediately unholstered his weapon, a Glock .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 reckless endangerment for putting Trooper Nickerson and Corporal Resh at substantial
risk of death or serious physical injury, fraudulent use of identification to avoid
5
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 (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
6
beyond a reasonable doubt.’” State v. Manion, 442 Md. 419, 431 (2015) (emphasis in
original) (quoting Dawson v. State, 329 Md. 275, 281 (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 (quoting Smith v. State, 415 Md. 174, 183 (2015)).
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 (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:
7
(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 (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 (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
2
The Judge instructed the jury:
“In order to convict the Defendant of Reckless Endangerment, the
State must prove, one, that the Defendant engaged in conduct that created a
substantial risk of death or serious physical injury to another. Two, that a
reasonable person would not have engaged in that conduct and three, that the
Defendant acted recklessly. The Defendant acted recklessly if he was aware
that his conduct created a risk of death or serious physical injury to another
and then he consciously disregarded the risk.”
8
circumstances where no harm results. Judge Bishop explained, 85 Md. App.
at 314–315, 583 A.2d 1102:
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 specific intent necessary for either an
attempt or for one of the aggravated assaults.
3
The statute was enacted as 1989 Md. Laws, ch. 469 (H.B. 1448) and codified at
Maryland Code (1957, 1992 Repl. Vol.), Art. 27 § 120. Section 120(a) read:
(a) Any person who recklessly engages in conduct that creates a substantial
risk of death or serious physical injury to another person is guilty of the
misdemeanor of reckless endangerment and on conviction is subject to a
fine not exceeding $5,000 or imprisonment not exceeding 5 years or both.
In 1996, Maryland Code (1957, 1996 Repl. Vol.), Art. 27 § 12A-2(a) replaced Art.
27 § 120(a) with only minor, non-substantive changes. See 1996 Md. Laws, ch. 561 (S.B.
215). As the quoted text demonstrates, Crim. § 3-204 is substantially similar to the original
statute.
9
100 Md. App. at 480-81 (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 (2016) (quoting Williams, 100 Md. App. at
495). 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 (2000); Thompson v.
State, ___ Md. App. ___, ___, No. 168, September Term 2015, slip op. at 27 (filed Aug.
31, 2016); Marlin v. State, 192 Md. App. 134, 140 (2010); Boyer v. State, 107 Md. App.
32, 36-38 (1995); Wieland v. State, 101 Md. App. 1, 6 (1994). Indeed, we observed in
10
Moulden v. State, 212 Md. App. 331, 356 (2013) that documents in the legislative history
file of the reckless endangerment statute express a particular concern for the reckless
discharge of firearms. 212 Md. App. at 356 (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. 497-99 (citing
People v. Davis, 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,
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. 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 (quoting Davis, 526 N.E.2d at 22). In other words, ‘“factual impossibility
eliminates the risk essential to commission of the crime.’” Id. at 499 (quoting Davis, 526
N.E.2d at 22).
11
The State allows that it is an “uncontroversial point” that the use of a gun might not
create a substantial risk of death or 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
(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 (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.
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
12
that a nervous twitch or an uncontrollable muscular spasm might cause the weapon to fire
accidentally.” Id. at 50. 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. With 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.
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 Nickerson 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
13
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, supra, 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 bedroom lying
partially under a bedsheet, watching television with his eleven-month old daughter. 107
Md. App. at 37. 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. 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[d] 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.”
14
Id. at 41-42 (quoting Albrecht, 336 Md. at 501). 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. We note however, that
despite quoting from Albrecht, this Court did not apply the punctilious “line of fire” or “arc
of danger” analysis in Boyer. Rather, the Court determined that although the daughter and
the second officer were never in the line of fire, their proximity to the unreasonably
dangerous behavior was sufficient for the jury to find that they were recklessly endangered.
Id. at 41-42.
Returning to the case on appeal, although there was some evidence offered at trial
that would have allowed the jury to conclude that Corporal Resh was in Perry’s “line of
fire,”4 we decline to expand Albrecht’s “arc of danger” analysis to the case at hand.
4
Corporal Resh testified that he saw a “muzzle flash.” The State argued to the jury
that, if Perry had been turned away from Corporal Resh, his body would have blocked the
“muzzle flash,” stating:
When that shot was fired, when he jumped the fence, his body was
between, well the fence was between him and Corporal Resh. Had the gun
been fired in some other direction, away from him, his body would have
blocked the view of that muzzle flash. . . . When he came off that fence he
had to have been in a position turned, facing Resh. Or else Resh would not
have seen the muzzle flash.
The court seemed to agree with this logic, replying to one of Perry’s motions for judgment
of acquittal of the murder charges, after both parties had presented their case:
Seeing a muzzle flash, the jury may well find at a minimum would indicate
that the Defendant was not pointing, holding this gun if they find he fired the
gun and they certainly could, at a minimum it would indicate that the gun
was not pointed away from the officer in the opposite direction. They may
well find that you couldn’t see the muzzle flash if the man was facing 180
15
Although the “arc of danger” is a wonderfully descriptive phrase that is applicable in
certain factual situations, it is not a precise substantive element of the crime of reckless
endangerment.
In the context of the Albrecht case—the genesis of the “arc of danger” expression—
the appellant was a police officer who was trained to carry and discharge a gun, and the
exact line of fire was known and established. 105 Md. App. at 50. This Court was able to
conduct a heightened and nuanced review of who at the scene was actually placed in
substantial risk of death or serious bodily harm based on the arc of danger created by the
officer’s line of fire. When Officer Albrecht, a trained officer authorized to carry and use
a weapon, purposefully aimed it at one precise target in broad daylight, the arc of danger
was very narrow. See id. at 54-55.
Here, the reckless behavior that created the substantial risk was not that of a police
officer, trained to discharge a weapon leveled at a specific target. Perry was a civilian who
was not authorized to carry or discharge a weapon. After fleeing a traffic stop and leading
three police cars on a high-speed chase on a public highway, in the middle of the dark
night, Perry continued to flee franticly on foot with a loaded gun on his person. Either he
was so drunk or the terrain was so rough that he fell three times. When Perry’s gun fired,
all that Corporal Rush (who was only yards away) could see was a muzzle flash in the dark
degrees away from the officer and holding the gun somewhere close to his
body whereas if he was facing the officer they could see it.
Based on this evidence, a jury could reasonably find that Corporal Resh was in Perry’s
“line of fire” and was recklessly endangered.
16
signaling that he was in grave danger. There was no way to establish the geometric
dimensions of the line of fire from the discharge of a gun held by an untrained, possibly
intoxicated, person fleeing wildly from the police. Clearly, the highly nuanced “arc of
danger” analysis that was applied in Albrecht is inapplicable to the facts presented in this
case.
We hold that the jury could have reasonably found that, based on the evidence,
Perry’s conduct put Corporal Resh and Trooper Nickerson in substantial risk of death or
serious physical injury sufficient to find reckless endangerment. It is clear from Boyer that
the gun need not have fired in order to find reckless endangerment; therefore, the jury was
not limited to just the isolated moment that the gun fired in making its finding of substantial
risk. 107 Md. App. at 41-42. Unlike the episode in Boyer, here the gun did fire, prompting
Corporal Resh to return fire, and increasing the risk of harm the officers were placed in by
Perry’s reckless conduct. We cannot conclude, based on the circumstances presented in
this case, that not knowing the exact direction Perry’s gun fired in the dark precluded a jury
from finding reckless endangerment. Here, the jury was presented with sufficient evidence
to find the “essential elements of the crime beyond a reasonable doubt,” where the officers
were within a close enough proximity to Perry’s reckless behavior to be considered
endangered. Smith, supra, 374 Md. at 533.
II. Corporal Resh’s Testimony as to the Muzzle Flash
Perry argues that the circuit court erred by admitting Corporal Resh’s testimony that
he observed a “muzzle flash” without making determinations under Maryland Rule 5-702
required for admitting expert testimony. He contends that Corporal Resh’s testimony,
17
though offered as testimony of a lay witness, was that of an expert because it was based on
“his specialized knowledge, skill, expertise, and training as a law enforcement officer.”
Therefore, Perry argues that because Corporal Resh was not qualified as an expert, his
testimony was improperly admitted.
The State counters that Perry’s counsel failed to preserve this argument because she
did not properly object at trial. The testimony at issue given by Corporal Resh’s concerning
the “muzzle flash” proceeded as follows:
[PROSECUTOR]: What, if anything, occurred next, sir?
[CPL RESH]: When [Perry] got down on the other side actually I heard a
gunshot and I observed a muzzle flash.
[DEFENSE COUNSEL]: Objection.
[COURT]: You want to approach the Bench?
[DEFENSE COUNSEL]: Yes, Your Honor.
[COURT]: What’s the basis of your objection?
[DEFENSE COUNSEL]: I think the characterization of the muzzle flash is
for the jury to determine if it’s a muzzle flash. He can describe he saw a light
in conjunction with hearing a bang but I think he’s calling for a conclusion.
[COURT]: A muzzle flash to me is a very descriptive.
[PROSECUTOR]: I’m going to have him explain, Your Honor. That’s just,
there are going to be follow up questions what a muzzle flash is. Where he’s
even seen one before, so forth and so on.
[COURT]: Well, I’m going to overrule the objection but you can clarify it as
well.
***
18
[PROSECUTOR]: All right, so you got on the other side of the fence. You
saw a muzzle flash and heard a gunshot?
[CPL RESH]: That’s correct.
[PROSECUTOR]: Tell me. What is a muzzle flash?
[CPL RESH]: A muzzle flash is actually when the primer ignites the powder
in a bullet and that little minor explosion has to go somewhere so it actually
goes out the end of the barrel and as a result you actually see the powder
being lit off and that essentially the flash of the powder being lit.
***
[PROSECUTOR]: Okay. You’ve been a trooper for 12 years now?
[CPL RESH]: Yes, sir.
[PROSECUTOR]: Have you ever trained, done any firearms training at
night?
[CPL RESH]: I have.
[PROSECUTOR]: Have you ever seen muzzle flashes before this time?
[CPL RESH]: Every time. Every time we do, the state police you have to do
two qualification a year. A day fire and a night fire. At a night fire every
time you see muzzle flashes. When you’re on the firing line that’s all you
see is going off to your left and right.
[PROSECUTOR]: Is there anything unique about them, I mean can they be
mistaken for anything else?
[DEFENSE COUNSEL]: Objection, Your Honor.
[COURT]: Well, I will sustain the objection, the second part of the question.
The first part I think is okay. Is there anything unique about it?
[PROSECUTOR]: I’ll withdraw.
The State argues that defense counsel’s objection to Corporal Resh’s testimony was that
“it invaded the province of the jury” by making factual conclusions, not that Corporal Resh
19
was testifying as an expert. The State maintains that defense counsel’s second objection
during this testimony was understood by the court to have been to the compound nature of
the question, not its substance.
We conclude that Perry’s counsel failed to preserve the issue for appeal. Maryland
Rule 8-131(a) provides that “[o]rdinarily, 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.”
Furthermore, in Klauenberg v. State, the Court of Appeals stated that, where an appellant
states specific grounds when objecting to evidence at trial, the appellant has forfeited all
other grounds for objection on appeal. 355 Md. 528, 541 (1999) (citations omitted). See
also Monk v. State, 94 Md. App. 738, 746 (1993) (“Because appellant did indeed set forth
a specific ground for his objection, we consider all other grounds—including the ground
stated in appellant's brief before this court—as waived.”); Thomas v. State, 301 Md. 294,
328 (1984) (“It is, of course, well settled that ‘where specific grounds are delineated for an
objection, the one objecting will be held to those grounds and will ordinarily be deemed to
have waived grounds not specified.’” (quoting Jackson v. State, 288 Md. 191, 196 (1980))).
We agree with the State that the first objection did not challenge the witness’s
testimony as an expert. Indeed, as Corporal Resh continued and described his experience
with muzzle flashes, seemingly at defense counsel’s urging, the defense made no objection.
When the court responded to the second objection indicating that it understood the
objection to be to the compound nature of the question, the defense counsel expressed no
dissatisfaction with the court’s ruling. In other words, there is nothing in the transcript
that demonstrates that the court was made aware that the defense objected to Corporal
20
Resh’s testimony because it constituted impermissible expert testimony. Moreover,
because counsel’s objections were specific and not general, the court was not even able to
hazard a guess. Therefore, we need not reach the merits to decide whether the testimony
offered by Corporal Resh was actually permissible lay opinion rather than, as Perry argues,
impermissible expert testimony,5 because Perry’s counsel waived the issue by failing to
object at trial.
5
We note that “[t]he mere fact that a witness is a law enforcement officer does not
automatically transform his testimony into expert testimony.” Prince v. State, 216 Md. App
178, 201 (2014). Indeed, Corporal Resh’s testimony in this case could easily be
characterized as lay opinion testimony based on his rational perception. The record does
not reflect that he was specifically trained to recognize a “muzzle flash;” rather he testified
that, because of his job he has been exposed to “muzzle flashes” a number of times, much
like the officers identifying the smell of marijuana in In re Ondrel M. 173 Md. App. 223
(2007). In that case, this Court determined that an officer could properly testify as a lay
witness about smelling marijuana at the scene. Id. at 244. We quoted with approval the
following language from a Texas case, Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim.
App. 2002):
There are certain fields where a witness may qualify as an expert based upon
experience and training, however, use of the terms “training” and
“experience” do not automatically make someone an expert. All opinions
are formed by evaluating facts based on life experiences including education,
background, training, occupation, etc. While [the police officer] may have
had the potential to be qualified as an expert because she possessed
knowledge, skill, experience and education, she was not testifying as an
expert when she identified the marihuana. Rather, she was testifying
based on her firsthand sensory experiences. [The police officer] herself
smelled the odor that she perceived to be burnt marihuana. The fact that she
had smelled marihuana before in the course of her employment as a police
officer does not necessarily make her an expert. And, again, even if she was
an expert, that would not preclude her from offering a lay opinion about
something she personally perceived.
Id. at 244-45 (bold emphasis supplied; italics emphasis in original) (quoting Osbourn, 92
S.W.3d at 538–39). We concluded in In re Ondrel M., that the fact that the officer “based
his opinion regarding the odor of marijuana on his prior training and experience as a police
21
Perry presses in his reply brief that we should conduct plain error review. This
Court has previously stated that plain error review is a “‘rare, rare phenomenon,’
undertaken only when the un-objected-to error is extraordinary.” Pickett v. State, 222 Md.
App. 322, 342 (2015) (declining to undertake plain error review where the appellant
initially stipulated to the admission of the evidence and the State’s limited questioning was
at the request of the appellant) (quoting Kelly v. State, 195 Md. App. 403, 432 (2010)).
Plain error review can be conducted where (1) there is an error that the defendant did not
affirmatively waive, (2) the error is “‘clear and obvious,’ i.e., not subject to reasonable
dispute,” and (3) the error affected the outcome of the trial, and, therefore, is material.
Steward v. State, 218 Md. App. 550, 565-66 (2014) (citing Kelly, 195 Md. App. at 432).
Corporal Resh’s testimony in this case as to the “muzzle flash” does not rise to the
level of error required for plain error review. Not only is the error not “clear and obvious,”
but the error was not material for the reason that even if he couldn’t use the word “muzzle
flash,” Corporal Resh could have testified that he saw a flash of light in conjunction with
the gunshot. This testimony would have allowed the jury to infer, in the same manner they
may have based on hearing “muzzle flash,” that the gun was shot in Corporal Resh’s
direction. It did not require an expert, nor advanced knowledge in physics, for the jury to
have concluded that the light travelled straight ahead and did not bend around Perry’s body.
Therefore, plain error review is not warranted.
officer [did] not render the opinion, ipso facto, an expert opinion.” Id. at 245. Because the
officer’s opinion was based on his personal perception of the odor that he smelled it was
properly lay opinion testimony. Id.
22
III. Jury Coercion
Perry contends that the circuit court impermissibly coerced the jury by informing
the jurors that the case would conclude in two days or less. Perry argues that the court’s
comments “signaled to the jury that its deliberations could not follow the natural course,
but rather must be completed on the trial court’s arbitrary and artificial timetable.”
The State in riposte argues that (1) Perry did not make this objection at trial,
therefore it is not preserved, (2) plain error review should not be applied to reach the merits
of this claim, and (3) the claim is unmeritorious as the Judge’s comments merely informed
the jurors of the anticipated running time of trial.
The transcripts reflect that the following exchange occurred between the court and
potential jurors:
[COURT]: [I]t’s anticipated that this case may take two days to complete. Is
there anything about the anticipated length of the trial that might cause any
of your [sic] any problem in serving on this jury[?] If so please stand up and
give us your number.
During voir dire of the potential jurors, the court stated:
[COURT]: [T]he length of the trial. How might that pose a difficulty for
you?
[JUROR]: When I got my notice I get off the 30th and 31st which I requested
and received. But last week my plans changed and I needed off the 23rd and
24th. I faxed them last Thursday and told them I would be available the 30th
and 31st but not the 23rd and 24th and I haven’t responded, they have not
responded. So I gave it to the Clerk when I came in and she said to see her
afterwards.
[COURT]: So you’re saying tomorrow is a problem for you?
[JUROR 1]: No, no, no, not tomorrow. I thought you said anytime would two
days be a problem. No.
23
[COURT]: Well this case is expected to last two days meaning today and
tomorrow.
[JUROR 1]: Right.
[COURT]: So you’re all right with these two days?
[JUROR 1]: With these two days, yes.
[COURT]: All right. Well then that’s not likely to be a problem. . . .
***
[COURT]: You also expressed some concern about the length of the trial.
How is that an issue for you?
[JUROR 2]: I don’t know if you’re planning on doing the trial like tomorrow
and Friday, but Friday. . .
[COURT]: No, it’s today and tomorrow.
[JUROR 2]: Today and tomorrow. As long as it doesn’t go into Friday I’m
fine.
[COURT]: I think we’re in pretty good shape on that.
[JUROR 2]: You’re like positive that it won’t go into Friday? Because I, I. .
.
[COURT]: That’s what they tell me. I’m basing it on what the lawyers tell
me.
[JUROR 2]: Okay, I have to take my state boards on Friday morning so I
can’t miss that. . . .
[COURT] We’ll hold them to it.
***
[JUROR 3]: . . . My main issue today is this Friday morning my wife has
her appendix removed. . .
24
[COURT]: Well the attorneys have assured me we are going to finish this
case tomorrow. . .
On the second day of trial, when dismissing the jury for lunch, the court stated:
[COURT]: . . . It’s about 12:15. It’s going to take us a few minutes so I’ll
give you until 1:30. Now, let me admonish you of what I try to tell you each
time we take a recess, but it’s particularly important when you leave the
courthouse that once again, do not have any contact with anybody associated
with this case, the witness, the parties, the lawyers, etcetera. . . .Don’t talk to
anyone about this case. . . .You’ll have plenty of time to do that when you
heard everything. This case is going to conclude this afternoon so you’ll
have opportunities to talk with one another then. So with that in mind, I’ll
excuse the jury till 1:30.
The record does not reflect that defense counsel objected or that the issue was raised
below, and so we agree with the State that the issue is not preserved for appeal. See
Heineman v. Bright, 140 Md. App. 658, 671 (2001) (citing Maryland Rule 8-131 for the
premise that the Court of Special Appeals ordinarily will not decide any “non-jurisdictional
issue unless the issue plainly appears by the record to have been raised in or decided by the
trial court”) (citing Acquah v. State, 113 Md. App. 29, 43 (1996); see also Lohss v. State,
272 Md. 113, 119 (1974), superseded on other grounds by State v. Rush, 174 Md. App.
259 (2008) (“[W]hen a party has the option of objecting, his failure to do so while it is still
within the power of the trial court to correct the error is regarded as a waiver estopping him
from obtaining a review of the point or question on appeal.”) (citations omitted).
It is evident from the court’s statements made during the voir dire of potential jurors
that the court was informing the jury as to how long the evidence and arguments would
take, based on the timeline given to the court by the attorneys, in order to determine if any
juror had a conflict. There is no evidence that the court was imposing a deadline for a jury
25
decision. Furthermore, when the court stated during the trial that the trial was going to
conclude that afternoon, it was in the context of admonishing the jurors not to discuss the
case during lunch and informing them that they would finally be able to deliberate that
afternoon, after the conclusion of the evidentiary phase of the trial. There is no evidence
that the court was pressuring the jury to come to a decision within a specified amount of
time. And, because Perry’s counsel made no objections, there was no opportunity for the
court to voir dire the jury to determine whether they felt coerced by these statements. There
is simply nothing in the record that would support a finding of coercion in this case. As
the State points out, it would be unreasonable to restrict a court from informing a jury about
the anticipated length of the evidentiary phase of the trial.
IV. Merger of Negligent Driving and Reckless Driving Convictions
Finally, Perry argues that because negligent driving is a “lesser included offense”
of reckless driving, that conviction should be merged into his conviction for reckless
driving and his negligent driving conviction should be vacated.6 The State agrees that
Perry’s sentence for negligent driving should be merged with his sentence for reckless
driving. However, the State disagrees that the convictions should be merged, arguing that
“the double-jeopardy protection against multiple punishment for the same offense within
6
Perry may properly appeal his convictions for negligent driving and reckless
driving even though the circuit court suspended the fines for these convictions. Under
Maryland Code (1973, Repl. Vol. 2013), Courts and Judicial Proceedings Article (“CJP”),
§ 12-301, “[i]n a criminal case, the defendant may appeal even though imposition or
execution of sentence has been suspended.” See also Pearlman v. State, 226 Md. 67, 71
(1961) (“[I]n a criminal case there is an appeal from any judgment and from any conviction
where sentence has been suspended.”).
26
the context of a single prosecution is not the same as the double-jeopardy plea in bar against
successive prosecutions for the same offense . . . .” In his reply brief, Perry acknowledges
that under Moore v. State, 198 Md. App. 655 (2011), cited by the State, only sentences are
merged under these circumstances. Perry asks this Court to either vacate his conviction
for negligent driving or, alternatively, his sentence for negligent driving.
In Maryland, negligent driving is a lesser included offense of reckless driving.
Jones v. State, 175 Md. App. 58, 89 (2007). In Jones, this Court vacated the fines for the
conviction of negligent driving, stating:
We agree with appellant that the offenses of negligent driving and
reckless driving are the same for double jeopardy purposes. We think that it
“splits hairs” to conclude anything other than that negligent
driving, i.e., driving in a careless or imprudent manner that endangers
property or the life or person of any individual, is a lesser included offense
of reckless driving, i.e., driving with a wanton or willful disregard for the
safety of persons or property.
Id. (citation omitted).
It is clear that when lesser included offenses merge into the greater offense, the
convictions stand while the sentence for the lesser included offense is vacated. Moore, 198
Md. App. at 692. In Moore, this Court explained:
When a defendant is convicted of a greater inclusive offense, double
jeopardy considerations protect him from being punished for a lesser
included offense. . . . It is not literally appropriate to acquit the defendant of
the lesser offenses, for it is the indisputed fact that he has perpetrated each
and every element of those lesser included offenses. . . . Most of our
conceptual problems are eliminated when we appreciate that the very notion
of merger is something designed simply to avoid multiple punishment.
Id. at 689-90 (emphasis omitted) (quoting Richard P. Gilbert & Charles E. Moylan, Jr.,
Maryland Criminal Law; Practice and Procedure, 452-53 (1983)). Accordingly, we hold
27
that Perry’s negligent driving conviction stands, but merges with his reckless driving
conviction for the purpose of sentencing only.
JUDGMENTS OF CONVICTION BY
THE CIRCUIT COURT FOR
TALBOT COUNTY AFFIRMED;
SENTENCE FOR NEGLIGENT
DRIVING VACATED;
COSTS TO BE PAID 2/3 BY
APPELLANT AND 1/3 BY TALBOT
COUNTY.
28