Freeman v. State

• Court: Maryland Court of Appeals
• Writing for the Court: Alpert, J.
• Citation: Freeman v. State, 259 Md.App. 212, 303 A.3d 62 (Md. App. 2023)
• Docket Number: 1118, Sept. Term, 2021
• Decision Date: 27 September 2023
• Parties: Darryl Edward FREEMAN v. STATE of Maryland

259 Md.App. 212

303 A.3d 62

Darryl Edward FREEMAN v. STATE of Maryland

No. 1118, Sept. Term, 2021

Appellate Court of Maryland.

September 27, 2023

Argued by Michael R. Braudes, Assigned Public Defender (Office of the Public Defender, Baltimore, MD), on brief, for Appellant.

Argued by Jer Welter, Asst. Atty. Gen. ( Anthony G. Brown, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.

Argued before: Beachley, Ripken, Paul E. Alpert (Senior Judge, Specially Assigned), JJ.

Alpert, J. Appellant, Darryl Edward Freeman, was indicted in the Circuit Court for Charles County, Maryland, and charged with first degree murder, use of a firearm in commission of a crime of violence, robbery with a dangerous weapon, possession of a regulated firearm by a minor, conspiracy, wearing and carrying a handgun in a vehicle, and other related lesser offenses. Appellant was tried by a jury, and that jury acquitted him of first degree premeditated murder, but convicted him of first degree felony murder, use of a firearm in the commission of felony murder, first degree assault, use of a firearm in the commission of first degree assault, robbery with a dangerous weapon, use of a firearm in the commission of robbery with a dangerous weapon, theft, possession of a regulated firearm by a minor, wearing, carrying and transporting a handgun in a vehicle, conspiracy to commit robbery, conspiracy to commit armed robbery, conspiracy to commit second degree assault, and conspiracy to commit theft. The court sentenced Appellant to life imprisonment for first degree felony murder, and either merged or imposed lesser concurrent sentences for the remaining offenses. On this timely appeal, Appellant asks us to address the following questions:

1. Is Appellant entitled to relief with respect to his sentence for wearing, carrying, or transporting a handgun; three of his convictions for conspiracy; and two of his convictions for use of a firearm?

2. Did the trial court err or abuse its discretion in permitting a police officer to opine as to the meaning of the word "lick" where the officer was not qualified as an expert?

3. Did the trial court err or abuse its discretion in admitting hearsay evidence?

4. Did the trial court err or abuse its discretion in admitting evidence of collateral misconduct?

For the following reasons, we shall merge some of Appellant's sentences, vacate the extra conspiracy convictions, but otherwise, shall affirm the judgments.

BACKGROUND

At around 7:00 p.m. on February 18, 2020, first responders arrived at 3117 Warehouse Landing Road, Bryans Road, Maryland, and found Bradley Brown lying on the driveway, outside near the garage. As would be later determined, Brown sustained two fatal gunshot wounds, one to the chest and the other to his right thigh, and the manner of his death was determined to be a homicide. ¹

In brief, the police recovered the victim's cellphone at the crime scene and found information therein that led them to suspect Appellant. Through text messages on the victim's and Appellant's cellphones, the police learned that the victim, Brown, was selling illegal THC vape pens through social media. ² At around the same time, and prior to the murder, Appellant was texting his coconspirators and others, and those conversations concerned Appellant's attempts to obtain handguns and to commit a robbery. ³

On the night of the murder, Appellant was in the company of some of his coconspirators. He was also communicating via Snapchat with the eventual victim, Brown, less than an hour before the murder. ⁴ It was the State's theory that Appellant and Brown were discussing an anticipated sale of some of the THC vape pens. Through eyewitness testimony, corroborated by surveillance video, neighbors recounted that they saw a vehicle park in Brown's driveway shortly before two gunshots were heard. The evidence at the scene included a loaded, but unfired firearm near the victim's feet, and THC vape pens in the open trunk of the victim's car, parked inside the garage. Cellphone location evidence and DNA evidence from a hairbrush found nearby on the ground placed Appellant at the scene.

Later that same evening, Appellant's alleged coconspirators were in possession of THC vape pens, and the State's theory was that these were the same ones stolen during the robbery and murder. As indicated, Appellant was convicted by a jury of first degree felony murder and related offenses.

We shall include additional details in the following discussion.

DISCUSSION

I.

Appellant first makes various contentions with respect to sentencing. The State concedes some issues, but contests others. We shall discuss these each in turn:

A. Wearing, Carrying or Transporting in a Vehicle

Appellant argues his three year sentence on Count 10 for wearing, carrying, or transporting merges into the twenty year sentence on Count 2 for use of a firearm under the rule of lenity. The State agrees, as do we. See Wilkins v. State , 343 Md. 444, 446-47, 682 A.2d 247 (1996) ; Hunt v. State , 312 Md. 494, 510, 540 A.2d 1125 (1988).

B. Multiple Conspiracy Convictions

Next, Appellant argues the State only proved one criminal conspiracy, and that, although the court merged the sentences for three of these four counts, namely Counts 11, 13, and 14, into his twenty year sentence on Count 12 for conspiracy to commit armed robbery, his convictions on three of those counts should be vacated. The State agrees, and again, so do we. See Molina v. State , 244 Md. App. 67, 169-71, 222 A.3d 222 (2019) ; Savage v. State , 212 Md. App. 1, 13, 66 A.3d 1049 (2013).

C. Use of a Firearm Convictions

Finally, on this question, Appellant recognizes that the court merged his sentences on Counts 2, 4, and 6 for use of a firearm in the commission of the three underlying felonies of murder, first degree assault, and robbery (Counts 1, 3, and 5), but asks us to go further and vacate his convictions on two of the three use counts. The State disagrees, responding that the merger at sentencing of these use offenses does not also require that their corresponding convictions be vacated. We agree with the State. See Lovelace v. State , 214 Md. App. 512, 543, 78 A.3d 449 (2013) ("[M]erger does not affect the underlying conviction." (citing Moore v. State , 198 Md. App. 655, 689, 18 A.3d 981 (2011) )); see generally Garner v. State , 442 Md. 226, 241-42, 112 A.3d 392 (2015) (holding that in a case involving separate offenses, the unit of prosecution for use of a handgun in the commission of a crime of violence is "the crime of violence, not the victim or criminal transaction"). The convictions on Counts 2, 4, and 6 remain unchanged.

II.

We next consider Appellant's contention that the court erred by permitting Detective Wimberly to testify that the word "lick" and the phrase "sweet licks" meant "robbery," on the grounds that the detective was not qualified as an expert. Specifically, Appellant asserts that "opinion testimony upon technical matters beyond the ken of the average juror requires that the witness be qualified as an expert[,]" and that "[i]t is not at all obvious that the word ‘lick,’ which in slang parlance may connote a sound beating or defeat ... means a robbery." ⁵ Appellant continues, "Under [ Ragland v. State , 385 Md. 706, 870 A.2d 609 (2005) ] and its progeny, an individual providing such testimony must be disclosed and qualified as an expert."

In response, the State does not claim that Detective Wimberly was qualified as an expert. Instead, the State argues that the detective's opinion that "lick" means "robbery," was lay opinion and was admissible under Maryland Rule 5-701. Relying on In re Ondrel M ., 173 Md. App. 223, 918 A.2d 543 (2007), wherein this Court held that "[n]o specialized knowledge or experience is required in order to be familiar with the smell of marijuana[,]" id. at 243, 918 A.2d 543, the State asserts "the detective's testimony about the meaning of a slang term he had encountered in his years of working in the robbery unit was permissible lay testimony." We shall provide further background of the pertinent facts and arguments in the trial court.

A. Pertinent Facts: Objections and Arguments

Detective Corey Wimberly, employed with the Charles County Sheriff's Office for fifteen years, nine of which were in the robbery unit, testified that he was involved in this investigation. Pertinent to the issue raised, the detective was asked the following:

[PROSECUTOR]: Okay. Now, you indicated that you have been in the robbery unit for nine years now?

DETECTIVE WIMBERL[Y]: Correct.

[PROSECUTOR]: In the course of your training and experience in that particular unit, have you come across the term, "lick"?

DETECTIVE WIMBERL[Y]: Yes.

[PROSECUTOR]: Okay, and what is a lick, in your training and experience?

[DEFENSE COUNSEL]: Objection, Your Honor.

During the bench conference, the following ensued:

[DEFENSE COUNSEL]: Okay. Yeah, so Judge, this is going to be interesting. They are asking him for the definition of what he believes is to be a lick. He was never offered as an expert in the field of slang. And I think for them to say, "Well, in the course of your," whatever, is inappropriate.

They knew that this was the whole basis, the whole State's theory with these text messages, or whatever, on the cell phone. You need an expert if you are going to come in here to indicate that, "Hey, this is what we do, this is what we know."

He could have been offered as an expert. There was no notice given, and he shouldn't be able to testify as to what he thinks it means. And I am going to ask that, I am going [to] object to it.

[TRIAL COURT]: Okay, alright. Mr. [Prosecutor]?

[PROSECUTOR]: And the one thing I would note is, he was designated through the Ragland and Blackwell notice which indicates he is a law enforcement officer[ ] with certain specialized training and experience, which obviously would include the specific experience that he has

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