Perry v. State
146 A.3d 529
| Md. Ct. Spec. App. | 2016Background
- Late-night traffic stop (March 12, 2014): Trooper Nickerson initiated a stop after radar showed 71–75 mph; Perry (using a false name) displayed signs of intoxication and fled when asked to re-enter his car for safety.
- High-speed vehicle pursuit on Route 50; Perry abandoned his smoking/overheating car near Hog Neck Golf Course and ran on foot across rough terrain while pursued by Trooper Nickerson, Corporal Resh, and Corporal Emerick.
- During the foot pursuit, Corporal Resh closed to ~10–15 yards; Perry fell multiple times, then jumped a fence. As Perry landed on the far side, Resh heard a gunshot and observed a "muzzle flash," immediately returning fire. Perry escaped and was arrested 12 hours later; no firearm was recovered.
- Forensic evidence: three .40 caliber casings recovered on the golf-course side (matched to Resh’s service weapon); one .45 casing on Route 50 side (not Resh’s). No bullets were recovered.
- Jury verdict: guilty of two counts of reckless endangerment (endangering Resh and Nickerson), various eluding offenses, reckless driving, negligent driving, and identity fraud; acquitted of attempted murder and assault charges. Sentence totaled 11 years; appeal followed.
Issues
| Issue | Perry's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for reckless endangerment | Evidence fails because record lacks proof officers were within Perry's literal "line of fire." | Officers were recklessly endangered by Perry's conduct (inchoate offense); proximity and the shot justified conviction. | Affirmed: viewing evidence objectively, a jury could find Perry created substantial risk to Resh and Nickerson. |
| Admissibility of Resh's "muzzle flash" testimony (expert vs. lay) | Resh’s testimony relied on specialized training and thus required Rule 5-702 foundation; admission was error. | Defense failed to preserve the argument; testimony was properly admitted as lay perception. | Not reviewed on merits: objection below preserved only an "invading jury province" argument; issue waived and plain-error not shown. |
| Jury coercion by judge's remarks about trial length | Court pressured jurors by indicating the case would conclude within an artificial timetable, coercing verdict. | No contemporaneous objection; remarks merely advised jurors of anticipated schedule to screen for conflicts. | Not preserved; record shows no coercion — comments concerned scheduling and admonitions, not a deliberation deadline. |
| Merger of negligent driving and reckless driving | Negligent driving (lesser included) should be vacated/merged with reckless driving conviction. | Sentence for negligent driving should be merged but convictions may remain distinct per precedent. | Sentence for negligent driving vacated (merged for sentencing); convictions remain consistent with Moore. |
Key Cases Cited
- Jones v. State, 357 Md. 408 (Court of Appeals) (sets elements of reckless endangerment)
- Williams v. State, 100 Md. App. 468 (Md. Ct. Spec. App.) (reckless endangerment is inchoate; risk must be actually created)
- Albrecht v. State, 105 Md. App. 45 (Md. Ct. Spec. App.) ("arc of danger"/line-of-fire analysis in officer-context)
- Boyer v. State, 107 Md. App. 32 (Md. Ct. Spec. App.) (possession/proximity to loaded weapon can suffice for reckless endangerment)
- Moore v. State, 198 Md. App. 655 (Md. Ct. Spec. App.) (merger principle: vacate sentence for lesser included offense)
- Hall v. State, 448 Md. 318 (Court of Appeals) (actus reus measured objectively for risk creation)
- State v. Smith, 374 Md. 527 (Court of Appeals) (standard for appellate sufficiency review)
- Manion v. State, 442 Md. 419 (Court of Appeals) (appellate review respects jury factfinding)