Perry v. State
| Decision Date | 28 September 2016 |
| Docket Number | Sept. Term, 2014,No. 2489,2489 |
| Parties | Brooks S. Perry v. State of Maryland |
| Court | Court of Special Appeals of Maryland |
Argued by: Joshua A. Ellis & Frank E. Correll, Jr. of Washington, D.C. (Paul B. DeWolfe, Public Defender of Baltimore, MD) all, on the brief, for Appellant.
Argued by: Daniel J. Jawor (Brian E. Frosh, Atty. Gen., on the brief) all of Baltimore, MD, for Appellee.
Panel: Deborah S. Eyler, Leahy, Charles E.Moylan, Jr., Senior Judge, Specially Assigned, JJ.
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.
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:
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)
.
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
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, 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.
Perry's vehicle began to smoke and slow down to approximately 50 miles per hour. Trooper Nickerson testified that smoke was coming from 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 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 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.
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...
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