Freeman v. State

487 Md. 420

318 A.3d 1241

Darryl Edward FREEMAN

v.STATE of Maryland

No. 24, Sept. Term, 2023

Supreme Court of Maryland.

July 16, 2024

Circuit Court for Charles County, Case No.: C-08-CR-20-000179, H. James West, Judge

Argued by Michael R. Braudes, Assigned Public Defender (Baltimore, MD), on brief, for Petitioner/Cross-Respondent.

Argued by W. Elliott Hunter, Asst. Atty. Gen. (Anthony G. Brown, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent/Cross-Petitioner.

Argued before: Fader, C.J., Watts, ^*Hotten, Booth, Biran, Gould, Eaves, JJ.

Hotten, J.

Petitioner, Darryl Edward Freeman, was charged in the Circuit Court for Charles County with fourteen counts¹ surrounding the killing of Mr. Bradley Brown. During the direct examination of Detective Corey Wimberly ("Det. Wimberly") at trial, the State sought to elicit an opinion regarding the meaning of the slang terms "lick" and "sweet licks." Petitioner objected, arguing that Det. Wimberly had not been offered as an expert relative to defining those terms. The circuit court overruled Petitioner’s objection and allowed Det. Wimberly to testify that "lick" meant a robbery and "sweet lick" meant "an individual [who] is … easy to rob."²

Petitioner was convicted on all counts, nine of which were later merged with related counts for purposes of sentencing.

Petitioner appealed to the Appellate Court of Maryland, which affirmed. Freeman v. State, 259 Md. App. 212, 257, 303 A.3d 62, 88 (2023). The Appellate Court held that the opinion of Det. Wimberly was expert in nature under Maryland Rule 5-702, but that the circuit court "implicitly" accepted Det. Wimberly as an expert witness in overruling Petitioner’s objection. Id. at 235–36, 303 A.3d at 75–76.

We granted certiorari on six questions, which we rephrase³ into one for the sake of clarity: In the instant case, did the circuit court properly permit Det. Wimberly to opine that the word "lick" means "a robbery," either as an expert or as a lay witness? We hold that the circuit court properly permitted Det. Wimberly to opine regarding the definition of "lick" in his capacity as a lay witness.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Background

Both Petitioner and the State adopt the facts as outlined by the Appellate Court. We shall do the same. According to the Appellate Court:

At around 7:00 p.m. on February 18, 2020, first responders arrived at 3117 Warehouse Landing Road, Bryans Road, Maryland, and found [Mr.] Bradley Brown lying on the driveway, outside near the garage. As would be later determined, [Mr.] 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. In brief, the police recovered the victim’s cellphone at the crime scene and found information therein that led them to suspect [Petitioner]. Through text messages on the victim’s and [Petitioner]’s cellphones, the police learned that the victim, [Mr.] Brown, was selling illegal THC vape pens through social media. At around the same time, and prior to the murder, [Petitioner] was texting his co[-]conspirators and others, and those conversations concerned [Petitioner]’s attempts to obtain handguns and to commit a robbery. On the night of the murder, [Petitioner] was in the company of some of his co[-]conspirators. He was also communicating via Snapchat⁴ with the eventual victim, [Mr.] Brown, less than an hour before the murder. It was the State’s theory that [Petitioner] and [Mr.] 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 [Mr.] 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 [Petitioner] at the scene.

Later that same evening, [Petitioner]’s alleged co[-]conspirators were in possession of THC vape pens, and the State’stheory was that these were the same ones stolen during the robbery and murder.

Id. at 221–28, 303 A.3d at 67-68 (footnotes omitted).

Petitioner’s Trial

Trial was held between April 26 and May 6, 2021 in the Circuit Court for Charles County. The State called Det. Wimberly to testify regarding his investigation.⁵ During the course of examination, the State asked him to define the term "lick," based on his experience in the Robbery Unit of the Charles County Sheriff’s Department. Petitioner objected, arguing the response would elicit an expert opinion. The State countered that it provided the requisite notice of the testimony pursuant to this Court’s precedent in Ragland v. State, 385 Md. 706, 870 A.2d 609 (2005), and State v. Blackwell, 408 Md. 677, 971 A.2d 296 (2009).

Petitioner argued that he was entitled to "specific notice [that Det. Wimberly was] an expert in the field of criminal slang." The circuit court overruled Petitioner’s objection. Thereafter, the State resumed its questioning of Det. Wimberly, eliciting that "lick" meant a robbery and "sweet lick" meant "an easy rob[ or] easy to rob." Following the examination of Det. Wimberly, the State introduced phone messages between Petitioner and a contact named "Ebony[,]" wherein Petitioner asked "[w]here the sweet licks?" Additionally, the State introduced communications between Petitioner and a contact identified as "NIY Creations[,]" in which Petitioner asked "I [expletive] up my money on something good, but ji [sic] left me with couple hunned [sic]. You got some licks I can hit?"

At the close of trial, the jury returned a verdict of guilty on the counts of first-degree felony murder, assault in the first-degree, armed robbery, use of a firearm in the commission of a crime of violence for each of the three preceding offenses, robbery, theft, possession of a firearm by a person under the age of twenty-one, transport of a handgun on public roads, and for four conspiracies related to the assault, armed robbery, robbery, and theft offenses. For purposes of sentencing, the circuit court merged the assault, armed robbery, robbery, and theft convictions into first-degree felony murder, merged the use of a firearm convictions, and merged the conspiracy convictions. Petitioner was sentenced to life for first-degree felony murder, and a combined total of forty-eight years on the other convictions, which were to run concurrently with his life sentence. Petitioner timely appealed to the Appellate Court of Maryland. See generally Freeman, 259 Md. App. 212, 303 A.3d 62.

Opinion of the Appellate Court of Maryland

In a reported decision, the Appellate Court affirmed the convictions.⁶ Id. at 257, 303 A.3d at 88. Regarding the meaning of "lick," the Appellate Court held that Det. Wimberly’s opinion was within the realm of expert opinion testimony, but the circuit court had "implicitly" qualified Det. Wimberly as an expert when it overruled Petitioner’s objection. Id. at 234–36, 303 A.3d at 74–75.

After reviewing nontraditional dictionaries,⁷ the Appellate Court determined that "lick" may have multiple meanings, including "a successful type of theft[,]" a "sudden influx of money," and "to beat[.]" Id. at 233, 303 A.3d at 74 (cleaned up). The Appellate Court also pointed to Armstead v. State, 342 Md. 38, 56, 673 A.2d 221, 230 (1996), for the proposition that "words and phrases often have multiple meanings, and ‘the meanings of even common words may be context-dependent[.]" Id. at 234, 303 A.3d at 74. "Considering these principles," the Appellate Court held that "[t]he meaning attributed by [Det.] Wimberly may well have been foreign to members of the jury, and it is reasonable to conclude that this interpretation was based on his specialized knowledge, training and experience[ ]" thus requiring qualification of Det. Wimberly as an expert. Id. at 235, 303 A.3d at 75.

The Appellate Court also considered whether Det. Wimberly had been properly qualified as an expert, concluding that "although the court did not expressly accept [Det.] Wimberly as a qualified expert, he was deemed so, albeit implicitly."⁸ Id. at 236, 303 A.3d at 75. The Appellate Court reasoned that the circuit court was not required to "spell out every step in weighing the considerations that culminate in a ruling[ ]" and, for example, "use ‘magic words’ to find that a waiver of the right to jury trial was made ‘knowingly’ and ‘voluntarily.’ " Id., 303 A.3d at 75–76 (citing Nalls v. State, 437 Md. 674, 689, 89 A.3d 1126, 1134 (2014)). The Appellate Court concluded that, "it is clear that the [circuit] court thought, by simply overruling [Petitioner’s] objection that [Det.] Wimberly was not disclosed as an expert in slang, it was going to admit the detective’s expert opinion[,]" and held that the circuit court did not abuse its discretion. Id. at 237, 303 A.3d at 76.

Petitioner filed a petition for a writ of certiorari with this Court and the State submitted a conditional cross-petition, both of which were granted. Freeman v. State, 486 Md. 228, 305 A.3d 859 (2023).

DISCUSSION

Standard of Review

[1, 2] It is the general rule that the admissibility of expert testimony is within the sound discretion of the trial judge and will not be disturbed on appeal unless clearly erroneous. In this regard, the trial judge has wide latitude in determining whether expert testimony is sufficiently reliable to be admissible.

[3–5] Wilson v. State, 370 Md. 191, 200, 803 A.2d 1034, 1039 (2002) (citation omitted). An abuse of discretion is found where the decision is "well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable." Devincentz v. State, 460 Md. 518, 550, 191 A.3d 373, 391 (2018) (citation omitted). However, "even with respect to a discretionary matter, a [circui...