BROOKS S. PERRY
STATE OF MARYLAND
Deborah S., Leahy, Moylan, Charles E., (Senior Judge,
Specially Assigned), JJ.
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.
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.
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
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?
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).
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.
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
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
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,
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.
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 "the engine. . . .[t]he whole
car." Corporal Resh joined the pursuit as Perry's
vehicle continued on until it reached Hog Neck Golf Course,
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.
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
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.
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."
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.
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.
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
December 15, 2014, Perry was sentenced to 11 years'
imprisonment. Perry noted an appeal on January 6, 2015.
facts will be presented as they pertain to the discussion.
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
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 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
The Purpose of the Reckless Endangerment Statute is to Deter
Potentially Harmful Conduct
Maryland, reckless endangerment is a statutory crime,
codified at Maryland Code (2002, 2012 Repl. Vol.), Criminal
Law ("Crim."), § 3-204, which states in
(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.
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:
(1) that the defendant engaged in conduct that created a
substantial risk of death or serious physical injury to
(2) that a reasonable person would not have engaged in that
(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.
instructions given to the jury in this case were
substantially similar. 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 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. ...