*1 рresent appropri- to be heard and to meaningful opportunity may impose ate evidence on her Before a court behalf. must parent, child the court restitution child’s The failure do so comply statutory requirements. with the constitutes error. is an abuse of discretion and reversible THE COURT OF APPEALS JUDGMENT OF SPECIAL FOR REMANDED TO CIRCUIT COURT REVERSED. BALTIMORE COUNTY FOR FURTHER PROCEEDINGS BE THIS COSTS TO CONSISTENT WITH OPINION. PAID BY BALTIMORE COUNTY.
686A.2d 274 PERRY, James Edward v. Maryland. STATE Term, 119, Sept. No. 1995. Appeals Maryland.
Court of Dec. 1996. *4 Forster, (Stephen Assistant Public Defender E. Nancy S. Harris, Defender; Córtese, A. Assistant Public Public Claudia brief), Baltimore, Defender, for Appellant. on (J. Bosse, Attorney Joseph Ann N. Cur- Assistant General brief), Baltimore, ran, Jr., General, Appellee. for Attorney MURPHY,* C.J., ELDRIDGE, Argued before RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.
RODOWSKY, Judge. three sentences of death and a appeal This is a direct from to commit murder. Pursuant conspiracy life sentence (Horn), or contract with one Lawrence Horn agreement an * C.J., retired, hearing Murphy, participated now in the and conference of Court; being while an member of this after recalled this case active IV, Constitution, 3A, participated Article he also pursuant to the Section opinion. adoption this decision and the in the *5 Horn’s (Perry), murdered Perry Edward appellant, James son, As wife, and the son’s nurse. the Horns’ disabled former conviction, below, judgments shall affirm the explained we prejudice Perry’s raising but this affirmance is without II, in Part error discussed conviction review the asserted post tele- inadmissibility of a recorded infra, involving the claimed phone conversation. Horn, son, ex-wife, severely his handi- Mildred a
Horn’s nurse, old, Horn, and Trevor’s year Trevor capped eight Saunders, early morning during were murdered Janice Rockville, 1993, in Horn’s home hours of March Mildred because, upon murders Maryland. arranged Horn for the million, free, Horn, Trevor over tax deaths of Mildred and $1 him from a trust for the benefit of his would be distributed to sоn. challenge sufficiency does not appeal Perry
On this guilty proved to sustain the verdicts. The State the evidence Horn, with Angeles, acquainted who lived in Los became Detroit, cousin, Horn’s Thomas Perry, through who lived through case was developed Turner. Much of the State’s and Horn who com- telephone Perry frequently calls between by using telephone credit card municated with one another cousin, Webb, issued in a false name to Horn’s Marcia who request. obtained the card for Horn at his foregoing To outline we set forth below from augment the statement of facts to which took no the State’s brief in his exception reply. 3,1993, on March a man
“Shortly midnight identify- after Days at the Inn at ing Perry registered himself as James Rockville, The man Shady Maryland. Grove Road tag 13403 Glenfield and the being listed his address as paid by 643. Because he being number of his car as EGR identification; cash, provide he required the man was During closing argu- license. produced Michigan driver’s ment, li- acknowledged counsel the driver’s defense Perry’s—that picture it had his on it. presented cense lived at Appellant December of “Prior to *6 of the tele- Detroit, and one Michigan, in 13403 Glenfield As of was 313-372-7434. at that address numbers phone 643 was number EGR 1993, tag license Michigan March of who had Lansing, Michigan, Riggs of Betty Jo registered Perry. knowledge of James no made 3, 1993, Saunders Janice “At 2:00 a.m. on March in connec- condition Trevor Horn’s notations about various Horn, who Trevor Trevor’s nurse. her duties as tion with time, nursing 24-hour was under old eight years was at he when Hospital at Children’s injuries suffered care due to younger. was much survive after what
“Trevor, expected who had not been at Children’s as ‘the accident’ to at trial was referred being sent around’ after everything ‘turned Hospital, walk, could crawl Trevor unable to Although home. he was he Although items. lightweight lift on his stomach damage, and extensive brain palsy cerebral suffered from with other interacted games, certain enjoyed playing Trevor Tre- some words. school, say was able to students a through primarily breathed vor, tracheostomy, a who had via and humidification tube, oxygen received trach and he loosely that fitted to a collar ran from machines tubing oxygen system portable Trevor used around his neck. make noises and ability Trevor’s to school. when he went trach tube. beyond his passing air was indicated that words 3, 1993, Tiffany a.m. on March 2:30 approximately “At mother, sister, Mildred to her Horn, spoke older Trevor’s after college, room at Horn, from her dorm telephone contact attempting to mother while dialing her mistakenly before, on p.m. after 10:30 night Just boyfriend. her father, Lawrence to her 1, spoken Horn had Tiffany March During Angeles, California. Horn, lived Los who questions conversation, had asked constant Lawrence Horn sister] twin [Trevor’s and Tamielle Mildred about when time) (eastern standard 2:03 a.m. at home. As of would be his L.A. videotaping Horn was Lawrence on March television, then on. which was including apartment, 3, 1993, twenty-two second call “At 5:12 a.m. on March phone Denny’s made from a at the restaurant pay Gaithersburg, Maryland Boulevard in Quince Orchard number called Angeles. Horn’s residence Los 213-874-4415, Horn’s L.A. the number of Lawrence who had telephone—not girlfriend, Bogan, that of his Shira she shared telephone apartment her own number at the with Horn. 3, 1993, who George Murphy,
“Around 6:00 a.m. on March walking minutes lived in a townhouse that was about five from North Gate driving distance and two minutes distance Drive, a reserved handicap tag parked saw a van with a by George van seen space on Rosetree Court. The parking а.m. on March to Mildred Horn. At 6:30 Murphy belonged Inn *7 Days of his room at the James checked out in Rockville.
“At 7:15 a.m. on March Vivian approximately Rice, to work each prior going as was her routine Horn’s house on North morning, went to her sister Mildred Drive. Ms. Rice became alarmed when she saw the Gate monitor sound- garage open apnea door and heard Trevor’s alerted, they inside discover- ing. police were and once Horn, Horn, ed the dead bodies of Mildred Trevor three times Mildred Horn had been shot Janice Saunders. head; gone through eye in of those shots had one had been shot through and then the brain. Janice Saunders twice, in Trevor Horn eye. and she too had been shot initially and the medical examiner asphyxia, had died of turning by that Trevor’s death had been caused believed receiving more infor- equipment. Upon off of his medical circumstances, and related mation about Trevor’s health assessment—that Tre- medical examiner reached a different had been cut off suffocation. When supply vor’s air found, piece plant was a material body Trevor’s there ‘very was described as on his cheek. This circumstance who care for Trevor. provided unusual’ one of the nurses bodies were of the Horn residence once the “Investigation home had a few areas of the only discovered disclosed room living table in the and cocktail rug disturbed: a been room had moved; family in the cushions on a sofa had been Horn’s floor; of Mildred the contents on placed been of the first floor on the floor dumped had been purse floor bathroom had been room; in a second rug a powder Horn’s bedroom side; Tiffany in to the a bookcase kicked appeared bedroom Mildred Horn’s toppled; had been win- tossed’; of a basement the screen ‘slightly have been marks on the pry were away and there pulled dow had been to a deck frame; leading french doors out window a But for stripping. marks their weather puncture jewelry, which watch, Mildred Horn’s none of missing Gucci on the lying tennis bracelet diamond included 5-carat taken, bathroom, and neither Janice had been counter her including personal possessions, nor other purse Saunders’ however, were, some There had been disturbed. jewelry, Horn’s cards from Mildred check-cashing missing credit and jogger aby cards were found of those wallet. Some 3, 1993, and of March during morning Norbeck Road vicinity once the general in the same were found more reported police. discovery was jogger’s time) (eastern 3, 1993, on March “At 11:50 a.m. standard phone U.S. placed pay call was from a one-minute California Angeles, Avenue Los Post Office on Wilcox call Rockville, This Maryland. particular Inn Days to Kamella calling card issued telephone to a charged McKinney. *8 name used Marsha McKinney was the false
“Kamella cousin, service telephone to obtain Webb, Horn’s Lawrence name in her own having after had service Pacific Bell from card was calling her bill. inability pay to cut off due 3, 1992, April first used on and it was February in issued 27, According 1993. last used on December 1992 and McKinney card for the Webb, calling she obtained Horn’s her to do so. Horn asked because Lawrence account back and forth traveling would be was that he reasoning to his home coming bills not want the Rockville and did address. card, it calling she used got McKinney
“Once Webb outset, card gave and she a few times at the only not know Horn. did to Lawrence Webb only number 682A Exhibit Perry. the name of James State’s anyone by to make 70 McKinney calling card was used reflects that the residence; calls Horn’s calls from Detroit to Lawrence residence; 6 calls from Angeles Perry’s Los to James from to Fran- in California Angeles in Los or elsewhere phones Detroit, Perry that James bar in an establishment cel’s while Angeles Maryland from Los 13 calls frequented; hotel; 1 call registered Maryland at a Perry James Lawrence Perry’s residence while Maryland from to James hotel; 1 call from Maryland registered Horn was while James to Lawrence Horn’s residence Maryland hotel. State’s Exhibit registered Maryland at a used to McKinney calling card was also that the reflects Shopping phone at the Calverton pay make a call from Beltsville, in Detroit on Maryland in to Francel’s bar Center in Law- question, At the time July p.m. 1993 at 8:57 using Shopping the Calverton rence Horn was observed at issue. pay phone Center 5, 1993, twenty-one there was a
“At 3:18 a.m. on March Beverly in Hills to phone from a phone pay minute call McKinney calling card Again, residence. Perry’s James before, card McKinney calling was used. Just a minute Beverly pay Hills make a call from the same was used to Detroit, Michi- Lakepointe to 313-884-9715 at 5323 phone to a tele- assigned been previously 313-884-9715 had gan; at 5026 Devonshire Detroit. phone Turner, a first cousin Thomas spring “During lived Perry, friend of James good Horn and a of Lawrence Detroit, spring Also Michigan. at 5026 Devonshire Horn at his cousin Jean Turner met Lawrence house; since Turner years it had been about 20 Baker’s Baker’s, Horn visited meeting at Jean seen Horn. After the occa- on several Devonshire residence Turner at Turner’s talked about occasions Turner one of these sions. On able Perry might be to Horn and advised James *9 Horn, respecting having problems who was then to assist his children. visitation with murders in this
“Turner, involved being who denied with from granted immunity prosecution casе and who was murders, a number of testified at trial about respect a car matters, that he had rented following: including early including of occasions Perry on a number for James 1992, 1993, February of early January late December 8, 1993; that in the 1993, March through and from March 1993, had advised Lawrence Horn summer/fall on he had told Turner hairy,’ ‘a little and things were if say anything contacted several occasions not the F.B.I. picked up by had been that Turner police; Horn and Horn 1994, time he had called at which January Turner; he, Turner, had lawyer for arranged Horn and contacts between telephone facilitated murders, including at after or three occasions two time in 1993. Thanksgiving Turner, subject of an his was the telephone
“Unknown 15, November 1993 and -wiretap between F.B.I.-monitored collection of 10, Exhibit 570 is a January 1994. State’s intercepted that were of various conversations transcripts 6,1994. 24,1993 During a January and November between Thom- Lawrence Horn and between telephone conversation 25, 1993, were made arrangements Turner on November as time) (Detroit on November p.m. for a contact at 4:00 26,1993, Francel’s bar Perry went into November 1993. On 4:00 and minutes later. Between and he left 28 p.m. at 3:59 28, 1993, a series of there was on November p.m. 10:15 Turner, and Tur- Turner, Horn calls—Horn Turner, Turner—about a 10:00 ner, Perry and Perry and time) (California on November p.m. contact. At 7:12 p.m. call from Marsha Webb’s placed a direct dial at 18287 Money as Mr. establishment known residence to an staying Horn was with Lawrence Livernois Detroit. and neither she nor question, the time in Marsha Webb an Money Mr. made the call at issue. boyfriend her with whom King, Dr. someone belonging to establishment *10 worked, had to Mr. gone Thomas Turner Perry had and Perry with on several occasions. Money series of “A five before the aforementioned days mеre 28, had been Perry’s calls home telephone on November was a the items seized by Among the F.B.I. searched was a Press. therein from Paladin Advertised catalogue Inde- A publication Hit Man: Technical Manual called for reflect that pendent Records of Paladin Press Contractors. Detroit, Michigan or- Perry of Glenfield in James 13403 as book the Hit as well another publication, dered Man Silencers, that he Disposable How to and entitled Make 24, cost of pay a check 1992 the January submitted dated bounced, Perry’s his order Although the two books. check 28, 1992, recog- January company on and processed 28, loss for on 1992. accounting purposes May nized a other manual that “Among things, Hit Man use an AR7 rifle be- following: ordered recommended easy disassem- lightweight cause it is and to conceal when number; bled; out at the drill the AR7’s serial while still scene, run weapon’s crime rat tail file down the barrel gun markings; dispose weap- barrel’s ballistic of change locations; on if the hit is meant to parts various different and conceal- appear up like a mess the scene take burglary, them with the along able items of value and then of dispose distance, if a silenc- weapon; necessary to shoot from a use head, eye er The preferably and aim sockets. there up-front Hit Man manual also recommended that be $5,000. expense money of of and payment between $500 28, 18, 1993, August January 1992 either “Between McGhee, girlfriend, Perry’s or his Pauline James behalf, money trans- received a number of Western Union Shaw, 213-877- person George gave from a who fers named who, number occasion and 2121 as his on one telephone address, 6222 or 6255 Sunset specifying when an used telephone The number 213-877-2121 was Boulevard. City, City law firm at 10 Plaza Universal Universal California; George no Angeles, Los one name for, firm. Although for the searched Shaw worked Sunset Boulevard could not be found. The address of 6255 Sunset Boulevard did exist and had once been address Motown, but no one George name of Shaw had ever worked for obituary Motown. The for a named person had, however, George Shaw published July been Times, Angeles edition of the Los as had been an announcement of the Mary death Motown star Wells. During the summer of Shira Bogan Lawrence Horn had discussed the Mary fact of Wells’s death.
“The dates and money amounts of the transfers from George 18, 1992—$500; were August Shaw as follows: 22, 1992—$2,500; September 30, 1992—$2,500; September 4, 1992—$300; December January 1993—$200. *11 December 4 transfer was received James on De- 5, cember 1992 at the All American ’76 Truck Plaza in Breezewood, 28, Pennsylvania. January 1993 transfer Mailboxes, was received James Perry at Etc. in Gaith- ersburg, Maryland. 26, 1993,
“On March pieces of an AR7 rifle were found along in Montgomery Route 28 County; holes had been drilled in one of the pieces a manner consistent with the obliteration of the weapon’s serial number. An F.B.I. foren- sic metallurgist opinion was of the that the weapon had been exposed to the surrounding environment for a matter of weeks and that the weapon had been intentionally fractured 3, and early disassembled. As as March police had file, found a metal one of the of tips wrapped which was tape, with duct on the ground near the ramp wheelchair leading to the deck of Mildred Horn’s residence. Process- ing of the file revealed two materials found in gun propel- lants, and those materials were found on that of portion file that could have been fitted in the barrel of an AR7 .22 Also, caliber fragments rifle. bullet removed from the victims were determined to be consistent with .22 caliber long rifle ammunition. An AR7 rifle ‘is manufactured to accept and function with ... 22 properly long rifle caliber ammunition.’ Detroit, was arrested July James
“On for the Maryland indicted having after been Michigan, Horn. Mildred Trevor and of Janice Saunders murders had been that an indictment awaiting confirmation While to be anyone going returned, Perry asked whether else and when day. yes, When told or indicted that arrested other as the Horn from identified Lawrence California he heard of Horn.” person, Perry said had never (record and footnotes at 3-19 references Appellee Brief of omitted). points: respect following error with
Perry claims requested question; voir dire propound 1. Refusal to a in a into found Allowing tape recording, 2. evidence containing twenty-two seconds search of Horn’s residence and Horn; Perry and conversation between telephone deposition into of Horn’s Admitting portions 3. evidence corpus; trust involving in civil actions taken expert testify rebut- Permitting fingerprint a state 4. prints; tal concerning “open” statements; inconsistent Instructing prior
5. the use sentencing phase at the Sufficiency evidence 6. State; upon by relied aggravating factors establish stat- Maryland’s penalty death constitutionality 7. The *12 ute. in the required will to the extent facts be stated
Additional issues. foregoing discussion of each
I re committed the circuit court Perry contends of the voir dire examination circumscribing in versible error put the court jurors. questions One of the prospective the venire was: aor jury panel prospective member of the any
“Has personal yours close friend or a your family member 218 witness, juror,
ever had a as a victim or prior experience any defendant criminal homicide or assault aggravated proceeding?”
Perry submits that the should have been question expanded embrace criminal any proceeding. Alternatively, he submits “any crime of violence” should have substituted for been “aggravated assault.” of voir dire and the form of the scope questions
propounded
firmly
judge.
rest
within the discretion of the trial
State,
431, 436,
Boyd v.
Davis
33,
(1996);
341 Md.
671 A.2d
35
State,
v.
Casey
v.
27, 34,
867,
(1993);
333 Md.
633 A.2d
870-71
Archbishop,
Roman Catholic
595, 605,
627,
217 Md.
143 A.2d
(1958).
631
“
purpose of voir dire examination is to exclude from
‘[T]he
jurors
the venire those potential
for whom there exists
disqualification,
jury
cause for
so that
that remains is
“capable
deciding
solely upon
the matter before
based
[it]
presented,
by any
the facts
‘uninfluenced
extraneous consid-
” ’ ”
erations.’
State,
Boyd,
Hill v.
435,
(quoting
Consequently,
really
contention
is addressed to
inquiries requested by
“reasonably
whether
him were
*13
likely to reveal
disqualification,”
cause for
upon
based
partiali-
Davis,
ty
or bias.
Priоr to jury Perry and the State respectively submitted their proposed questions court; voir dire to the court modified them and then furnished its questions modified to counsel. The court and counsel then conferred on the record. At that conference the working draft of the question in issue was limited to a criminal homicide proceeding. Perry requested that “criminal homicide” be changed to “criminal proceeding.” The court denied the request because
“it simply provokes huge such a response which would require follow-up questions galore, and we would have to sit here and listen to each incident that the prospective juror experienced lifetime, has of, over their which will consist no doubt, type some of larceny and who knows what else.” Perry argued bicycle” bias, that “a stolen generate could but the court noted that it would also general ask a question (which did) it directed to why reason a prospective juror could not be fair and impartial.
Perry then requested that “any crime of violence” be added to the question. Pursuant to that request expanded the court question, using phrase, “aggravated assault.” Perry objected “just for the purposes of the record....” question
The voir dire Perry objects which was asked on the second day jury selection of a venire then consisting of 150 persons. Thirty-nine prospective jurors responded affir- matively question, and each of them was then individu- ally questioned bench, by the court at the out of the hearing venirepersons. other persons
Of the responding, one was the victim of a sexual assault, and two others acknowledged being victims of an assault. Seven child, members of the venire spouse, had a *14 The of an
sibling aggravated who was the victim assault. other, potential affirmatively-responding, of the relationships from aggravated ranged to of or assault jurors victims murder aunt, Mends. cousin, Mend to relatives of nephew, and to and venirepersons of the prior responding The of some experience jurors five juror. prospective Four or of the was of a of or had been convicted persons were related to knew who whose one venireperson the crimes. These included described by the State of Califor- high school Mend been executed the also question nia for and The net cast rape murder. children, criminal in a for abused professional drew advocate en- who a former attorney prosecutor, persons defense was relatives, in who were people and their gaged law enforcement not did prior person to a and one who responding question, The question. responding understand the crimes which the included question to be embraced jurors considered murder, murder, suicide, kidnap- conspiracy rape, to commit abuse, assault, rob- trafficking, armed ping, drug child sexual (with knife), and without the use of a bery, muggings street questioning and various batteries and assaults. subject affirmatively who thirty-nine jurors responded ten for cause. question excusing resulted the court’s determining pro A court’s whether process trial likely disqualifying par to reveal posed inquiry reasonably and tiality or includes of time weighing expenditure bias to a response of the reason for pursuit resources question against pursu dire the likelihood that proposed voir bias ing response partiality. for the will reveal reason Here, conspiracy murder charges against were and to court its to commit murder. The exercised discretion victims, but of murder identify, only not relatives friends victims, of victims, and of the also the rеlatives Mends discretion, the circuit aggravated abusing assault. Without its there the circumstances here that court could conclude under uncovering a disqualification not a reasonable likelihood was victim, connection, to even venireperson’s as a based some required The circuit court was not some other class crime. enlarge question. Perry submits that the court was obliged modify “aggra- vated “any assault” to crime of violence” order to capture responses relating robbery. He asserts that the failure to do so prejudicial because taking by perpetrator of the check cashing cards of Mildred Horn constituted robbery, though even it charged. was not There are at least two First, answers to this contention. robbery, which includes an steal, intent to part was not of the theory State’s of the case. It was the theory State’s taking cashing check cards merely a cover to make the entry into the house and the murders appear part Indeed, be of a burglary. its closing argument on guilt or innocence argued the State *15 that the entry was not a burglary, Second, but a “hit.” the prospective jurors understood the question to robbery, include as indicated the fact that at least seven of those who responded to question that referred to “aggravated as- sault” robbery described responses. their
II In the course of the trial and arguments the State’s final the jury heard a second-generation audiotape recording, twen- ty-two seconds in length, of a telephone conversation between persons identified as and Horn. It was State’s Exhibit 312. During a search of Horn’s residence in Angeles Los 12, 1993, conducted on March pursuant to a search warrant, cassette, the police 342, seized the Statе’s Exhibit from which Exhibit 312 was appears made. It only that the portion of the contents of Exhibit 342 that played for the jury in the instant matter portion reproduced on Exhibit 312. Consequently, we shall discuss the evidentiary ruling complained byof Perry only terms of Exhibit 312.
Perry contends that Exhibit 312 was inadmissible under the legislatively created exclusionary rule set forth in Md.Code (1974, § RepLVol.), 10-405 of the Courts and Judicial (CJ). § Proceedings subtitle, Article part CJ 10-405 is of the Surveillance,” “Wiretapping and Electronic of the Evidence Title of the CJ Article. The trial court admitted Exhibit 312 because Perry had not filed a pretrial suppression motion as the court found
required by Maryland Rule 4-252 and because requirements. that rule’s good a want of cause waive 4-252(a) in part Rule reads: Maryland relevant court, following shall be raised “In the circuit matters if not conformity Rule so raised by motion with this and shown, court, orders good cause are waived unless otherwise:
“(3) search, seizure, or interception An wire unlawful communication, pretrial identification[.]” oral (b) Rule, “shall filed such motion be Under subsection appearance of counsel or days within 30 after the earlier of appearance pursu the first defendant before court 4-213(c)____”1 first defense appearance ant to Rule on filed motion August counsel was 1994. which, things, other suppress September among on wiretaps, the results of certain conduct sought suppression of tape recordings ed court orders. The became under motion, challenged in the 312 and 342 were not Exhibits wiretaps challenges were unsuccessful. jury opening had been statements empaneled, After the 13,1995, September were first evidence for In opening introduced. its statement the State State was *16 jury hearing recording of tape the that it would be advised 1995, 19, day to On the fifth talking Perry. Sеptember Horn Horn, trial, daughter, Tiffany testified for the of Horn’s older to Exhibit upon having State. Based her earlier listened the jury, but it for the she identified one of playing without of Exhibit 312 was marked Thereupon, voices as that Horn. for identification. Tiffany from following testimony also the
The State elicited Horn: 4-252(b) applicable Maryland exception also an when
1. Rule contains Perry suppress, to but does discovery the basis a motion discloses exception applies not that here. contend that answering if had an recall he “Q. you [Horn] And do Angeles residence]? his Los machine there [in “A. Yes. were remember whether there
“Q. you And do answering that with the machine? tapes go cassette Yes.” “A. the admitted into evidence on 342 and 312 were
Exhibits 20, 1995, trial, during the examination day September sixth of County Wittenberger Montgomery of the Craig of Detective participated the search Department Police who on lack of relevance and Perry objected for Horn’s residence. was so reproduction the of the sound ground quality accurately not that which tapes present could poor that objection The court overruled the to record. they purported objection when the Perry’s renewing prejudice without jury. Exhibit 312 before play State undertook jury Exhibit 312 before sought play The State trial, Turner, day Cynthia while the tenth September Turner, testified for the State. the wife of Thomas out tape The trial court listened to objection. his renewed objection.2 jury and overruled the presence of the jury, Cynthia Turner played 312 was before the When Exhibit of the two voices which did most “lighter” of the identified voice. talking Perry’s as trial, during day the eleventh September
It was on chief, moved to for the first time case in the State’s it an unlawful ground 312 on the that was Exhibit suppress statute, §§CJ 10-401 Maryland wiretap intercept under the court represented counsel 10-414. Defense through home driving he had been connected” while that his “neurons Perry submitted evening. previous from his office the Horn had recorded a tele- be that theory would the State’s evidence, however, transcript, into would not admit 2. The court State, In essence the content of Exhibit 312. prepared by the tape be for determining was said on the would what court ruled that listening tape itself. jury, conclusions from based on its *17 in and which Maryland originated to him which call phone 3,1993, from a.m. on March 5:12 approximately made at Gaithersburg. in Per- Denny’s restaurant phone a pay parties of the that all there was no evidence ry argued that recording of consented to the telephone conversation Perry urged as of it. any portion or of the conversation of, reference first, further and playing that remedies: possible in- second, jury be that to, prohibited; be Exhibit 312 identity testimony concerning prior disregard structed to fourth, third, voices; granted; that a mistrial be of the had been if Exhibit 312 be dismissed that the indictment argued The State grand jury. to the presented the use of prohibit intended to Assembly never General coconspirators coconspirator, if made one recording, Further, conspiracy. of the in in furtherance acting concert late. objection came too motion and Perry’s argued, the State finding a waiver Perry’s objection, trial court overruled issue that Exhibit timely to raise the the failure upon based Maryland wiretap under interception an unlawful 312 was any it not find also stated that “does The trial court statute. Noting of Rule 4-252.” requirements cause to waive good week, the circuit calendar then its fourth that the trial was tape of a supрression issue of revisiting court stated create other jury to the would played already that had been problems. substantial 10-402(a), § Court, on CJ Perry relies
In his brief to this ... any person “it is unlawful for providing part oral, wire, communi- ... electronic intercept [wjilfully stat- cation,” provided except specifically as otherwise 10-402(c)(3) § it is lawful CJ ute. Under wire, oral, communication or electronic ... “intercept the communication party is a person where given have to the communication parties all of the where unless the communication interception consent prior criminal or committing any purpose for the intercepted or laws of the Constitution act violation tortious this State.” States or of United
225 State, that, v. 323 Md. under argues further Perry Mustafa (1991), governs statute Maryland wiretap A.2d 481 591 intercepted unlawfully has been a communication whether in a in evidence interception is offered product of the when in Exhibit 312 court, resulting interception that the Maryland statute, and Maryland of the policy unlawful under the in CJ Legislature ordained exclusionary rule that the consider may submits that this Court applies. Perry § 10-405 court abused because the trial appeal these matters on direct excuse the waiver good to find cause to by failing its discretion 4- Md. Rule conferred under power in the exercise of the 252(a). direct this Court to rule on this
Alternatively, Perry asks
timely
to file a
motion
that trial counsel’s failure
appeal
Perry the effective
directed to Exhibit 312 denied
suppress
in this
counsel
argument
of counsel.3 At oral
Court
assistance
that,
complete explanation
assured us
after a
Perry
to decide
ramifications,
urge
this Court
Perry has decided
perfor
trial counsel’s
record whether defense
present
on the
so,
and, if
Perry
prejudiсed,
deficient
whether
mance was
Washington,
v.
466 U.S.
holding
under the
Strickland
(1984).
2052,
In this Court the State submits waiver, did not abuse its discretion the trial court waiver, that all of the other to relieve from the declining will Perry concerning tape sought issues to be raised Maryland Post explored proceedings under have be Act, (1957, Repl.Vol.), Procedure Md.Code Conviction through §§ 645A 645J. Art.
A to contentions can be considered Perry’s alternative same, full namely, to both is the gether response because the Perry’s contention to resolve evidentiary hearing required trial represented by different counsel from appeal Perry is 3. On this counsel. under suppressed have been that Exhibit 312 should 4—252(b) the time Rule Under wiretap statute. Maryland Exhibit suppress moved to have which should within Further, trial started. before the year over one expired .within days at least fifteen is entitled to ordinarily the State 4-252(f). motion. Rule suppression to a respond which motion, suppression If, actually made his when trial, jury in this during held a recess hearing were to be that required factual issues generated could have party either came so Perry’s objection evidentiary hearing. Because a full *19 on the late, required to focus had never been the State excluded Exhibit wiretap statute Maryland that the contention to Exhib- wiretap applies statute Maryland the 312. Whether would have complexity, and the State legal it does not lack 312 Moreover, the issues. time to research entitled to been a at such bearing facts on issues presenting and uncovering locating, inter- might require in this case hearing suppression of, hearing the the attendance obtaining and viewing, times, in or who, Angeles had resided Los at relevant persons in Detroit. suppres on of a ordinarily appeal is bound
The State suppression record made at the issue the hearing sion (1987) State, 749 Trusty v. Md. 521 A.2d hearing. See 308 (where of conviction judgment from appeal defendant on motion, may the in State suppression error denial of claims trial record to the suppression hearing the beyond not look motion). Consequently, of the denial of support for record fairly, parties instant matter to approach in order develop to substantially opportunity the same given should be thereon, pre in record, based legal arguments and a factual motion suppression belated Perry’s to senting responding and to enjoyed presenting responding they would have reason, court this the trial motion. For suppression a pretrial refusing interrupt its discretion acted well within hearing suppression to conduct a belated trial order pre opportunity adequately had the party neither which trial to treat willing is now though Even pare. 227 record, as suppression hearing record waiver cannot deprive procedure the State of the it is to which entitled. reason,
For
Perry’s
much the same
reject
we
invita
to decide
of
tion
his claim ineffective
of counsel on
assistance
all,
present
First of
record.
no factual determinations
have been made
trial
judge. Perry’s arguments
as
facts,
sume certain
it is not
of
but
the function
this Court to
facts,
primary
find the
the first
instance
draw infer
from
ences
undisputed
suppression
facts
bear on a
issue.
This Court
has
of
ordinarily
required claims
ineffective
conviction,
of trial
developed
post
assistance
counsel
be
full,
that,
where
can
factual record
be made.
It is true
not
uncommonly,
of
inadequacy
the record on direct appeal
counsel,
possible
whereas,
concerns
decisions by
tactical
triаl
matter,
in the instant
trial
represented
defense
counsel
court
circuit
that he had not earlier
of
thought
telephone
intercept argument,
having
despite
tried to think
a basis for
Exhibit
keeping
312 out
evidence.
inadequacy
Here the
record
bearing
includes the lack
on wheth
fact-findings
Compare,
er there was a violation
whether it
was willful.
State,
Walker v.
e.g.,
cert.
(1995),
Md.
658 A.2d
—
denied,
(1995)
U.S. -,
116 S.Ct.
133 L.Ed.2d
*20
(where
trial,
the accused
from
voluntarily
was
absent
cross-examine,
object
evidence,
defense counsel did not
call
or argue,
witnesses
issue of
was left for post
ineffectiveness
State,
Colvin v.
record);
in
a full
develop
conviction
order to
denied,
88,
953,
cert.
873,
Md.
472
299
A.2d
469
105
U.S.
S.Ct.
(1984)
226, 83
(general
L.Ed.2d 155
of ineffectiveness in
claims
State,
v.
case);
329,
Harris
capital
295 Md.
228 (at Brown, (1991) conclu- 532, A.2d State v. Md. 597 978 324 State, 631, hearing); Cherry v. Md. 305 suppression sion of (before (1986) in guilty verdict announcing 506 A.2d State, v. A.2d 336 Covington trial); 282 Md. bench (1978) (same). im- that Exhibit was Perry’s contention
Consequently, not is suppressed and should have been properly admitted affirmance of ruling, This and our appeal. us on direct before case, prejudice without of conviction this judgment review his contention Perry’s raising post conviction Maryland under the Exhibit 312 should have been excluded statute. wiretap
B court, Court, well bеfore the circuit this as as Before waiver, waiver, for relieving from arguments finding 4-252(a). however, note, Md. Rule We have revolved around 10—408(i) statute reads Maryland wiretap § CJ part as follows:
“(1) trial, any pro- or Any person hearing, aggrieved suppress ... move to may in or court ceeding before oral, wire, or any intercepted electronic the contents of therefrom, communication, on the or evidence derived grounds that:
“(i) unlawfully intercepted; communication trial, “(2) during made or may This motion be before the con- granted, If the motion is hearing, proceeding. or oral, wire, or electronic communica- intercepted tents of the therefrom, as tion, shall be treated evidence derived of this subtitle.” been obtained violation having 10-408(i) Chapter 692 of the Acts § enacted CJ introduced, As July effective 1977. and became *21 suppress have that motion to statute would read proposed ” at 2815. the trial.... 1977 Md. Laws “shall be made before The bill was amended in the course of passage provide “may motion be made before or during the trial....”4
It unnecessary for Perry to have referred the trial 10—408(i) court specifically § to CJ in order preserve his argument that the trial court should have considered his mid- assume, trial motion to suppress. arguendo, shall We that CJ 10-408(i) § conferred on a procedural right to seek during his suppression trial of Exhibit 312 on the ground that it was an unlawfully intercepted communication. Neverthe- less, we cannot determine on present record whether such a hearing would have resulted the suppression of Exhibit 312. The same rationale toas the absence of a record dealing with the merits of suppression that we applied Part II.A applies to this Part II.B. Consequently, we do not address CJ 10-408(i) § on this direct appeal, likewise, but this ruling, 10—408(i) without prejudice to Perry’s relying § on CJ in a post conviction proceeding.
Ill Mildred Horn’s sisters and the Horns’ adult daughter chal- alia, lenged in legal civil proceedings Horn’s right, inter receive distribution from the trust that had been established for the benefit of Trevor Horn. Horn’s deposition provisions 4-252(a)(3), 4. The now found in Md. requiring Rule pretrial suppress motion to interception an unlawful of wire or oral communication, were included in former Rule 736.a which was recom- Fifty-third mended to this Report Court in the Standing Commit- Maryland tee on the Rules of Practice and Procedure. This Court adopted 31, 1977, report by an January order dated July effective 1, 1977. Thus, 10—408(i) § both CJ and former Rule 736.a became effective on approaches the same date. The different manifested the two enact- ments directly were never reconciled. Rules, Chapter 736.a, Maryland Former including Rule repealed present Maryland when Title 4 of the adopted Rules was 1, 1984, July pursuant effective Eighty-seventh Report of the Rules Committee. Thereafter, 10—408(i)(l) (2) § repealed CJ were and reenacted Chapter 607 of the Acts of Assembly 1988 when the General inserted sub-subsections, "electronic communication” into each of those without altering otherwise the statute.
230 7,1994. At murder July Perry’s and litigation was taken on 6 State, jury objection by Perry, read to the trial over the trial Perry that the argues now portions deposition. of Horn’s objection. erroneously his court overruled the number of admitted that he had deposition In Horn his card, but calling credit telephone long Marsha Webb’s distance he denied or, at August used the card number after
—that he latest, 1993; January after utilizing at time Perry any had telephoned —that he number; card utilizing Perry any at time without telephoned
—that he had number; the card from any telephone hаd time a call
—that he received at Perry; use the person any had another time to
—that he allowed number; card and 3,1993. March 2 or Perry contact with
—that he state- court Horn’s One on which trial admitted ground of a declarations hearsay exception ments and in furtherance during course coconspirator hear- Horn’s statements are conspiracy. Perry submits that and exception, say, they coconspirator that are not within Perry argues further they are therefore inadmissible. relevan- are irrelevant. We shall consider that the statements cy first. having made the statements
The relevance of Horn’s
evidence
conflicts with other
directly
is that
their content
communications
by
tending
prove
the State
introduced
telephone credit
Perry
Horn
use of Webb’s
between
communications
were to find that
jury
card.
If the
and that Horn
Perry
place,
Horn
fact took
between
infer
jury
respect
in that
at his
then
could
lying
deposition,
Perry
himself from
because
sought
that Horn
to disassociate
state-
Accordingly,
deposition
guilt.
of a
consciousness
they
are
make it
likely
ments
relevant because
tend to
more
there was a
and Horn.
conspiracy
between
Rivenbark,
that our
v.
holding
submits
State
(1987),
Md.
533 A.2d
the State’s
prevents
use
against Perry
proved
Horn’s declarations that were
rejected
deposition.
means Horn’s
Rivenbark
“the theory
every
includes,
conspiracy
by implication,
criminal
subsidiary
conspiracy
conceal evidence of the substantive
agreed
offense that the conspirators
to commit.” Id. at
*23
addition,
at
In
adopted
533 A.2d
276.
the
Rivenbark
view set
States,
440,
in Krulewitch
United
forth
v.
336 U.S.
69 S.Ct.
(1949),
submits there is no evidence of any agreement, as part of alleged conspiracy, the to suppress or conceal after the sub that, stantive offenses had been if committed so even the jury believed that Horn trying to conceal the conspiracy by at lying deposition, his Rivenbark viewing bars that conduct as to, of, incidental or part alleged the conspiracy. aspect of by Perry Rivenbark relied upon appli- not objective
cable because the central principal aim of the conspiracy, evidence, under the State’s towas obtain the of corpus the trust had that been established for the initial of benefit Trevor Horn. When Horn made the statements on objective that deposition, not been attained. The portion opinion of our Rivenbark that applies to instant matter out that points
“many
appear
decisions
theory
that
to endorse the
of an
implied ongoing conspiracy of concealment actually hold
only that a
conspiracy
through
endures
acts
concealment
performed
conspirators finally
achieve their main
before
purpose.
burglars
For
robbers
example,
must hide
crime;
dividing
while
proceeds
their
thieves must
proper-
stolen
dispose
title
order
misrepresent
their
that property
insurers
ty, and arsonists must convince
rather than intentional.”
damage was accidental
276.
at
When
conspiracy
implied
that it was
an
applying
trial court indicated
Rivenbark, however,
noted
theory.
of concealment
We
theory
possibility
“fail to consider the
endorsing
cоurts
ground
on the narrower
con-
placing their decisions
aim when the chal-
principal
not achieved their
spirators had
were made.” Id.
lenged statements
(Minn.1985), illustrates
v.
Strongly analogous
for
eases.
gain conspiracy
are the arson
instant matter
Xheka,
(7th Cir.),
these,
v.
974
States
704 F.2d
Among
United
486,
denied,
993,
464
S.Ct.
233 that in July took Id. at place 1979. 977-78. The defendants argued “an agreement completed that to conceal a crime does not the conspiracy.” extend life of a Id. at 985. court The agreed that conspired destroy “[h]ad defendants res- [the simply of this would joy argument taurant] destruction merit, have but that was not the Id. government case.” The business, poor established “the financial of condition claim [one owner’s] that he could to hire [the arsonist] afford insured, because the restaurant that the [owners] were still seeking payment from the company.” insurance Id. The court concluded support “[a]U these factors theory recovery proceeds pri- insurance was the mary goal Id. conspiracy.” The statements were also in furtherance of the conspiracy purpose since their towas keep the arsonist in conspiracy thereby “and facilitate the attempt to proceeds.” [owners’] obtain the insurance Id. at 986. that,
Other arson cases hold
where
principal objective
is to
conspiracy
coconspira
obtain fire insurance proceeds,
tors’ statements made after the fire that are
designed
conceal
conspiracy
and the
crime
in fur
substantive
are
therance of
aim and
principal
hearsay excep
within
Kaden,
(7th Cir.1987);
tion. See United States v.
813
819 F.2d
(6th
Howard,
Cir.1985),
United States v.
in conspiracies where the
was made
declaration
before
States,
divided, see, e.g.,
the loot Atkins v. United
(9th
States,
Cir.1962);
F.2d
Murray
v. United
state commerce where the
vehicle, see
from the sale of the stolen
ment was received
States,
(6th Cir.1954).
Similar
Koury v. United
summed
as follows:
Lawrence
up
death were irrelevant
upon
were
his wife and child’s
goals
Perry’s
they
is
were also Mr.
unless there
evidence
Appellant
Brief of
at 17.
goals.” Reply
In our
agree
Perry’s legal premise.
with
We do not
United
correctly
stated
proposition
view the relevant
(6th Cir.1982),
Hamilton,
denied
v.
cert.
States
Hamilton involved to violate federal statutes conspiracy By prear- in without a license. prohibiting dealing explosives men, Reid, Wright, Salisbury, and stоle rangement, three operators sale to mine named Hamil- dynamite caps and for easy was to make some objective ton. “The of [the former] to obtain money, explosives while that of the was [latter] Id. at 1268. There was “no contradiction inexpensively.” with the remain- having the Hamiltons’ not interests identical Id. at 1270. Perry has confused the ing conspirators.” conspiracy of a with conspirator participating motive object conspiracy. aim or principal deposi- of Horn’s admitting portions There was no error tion.
IV Perry’s assignment involving We next consider of error in the re- fingerprint comparison presented evidence State’s buttal That of comparison fingerprints case. concerned others, and contends that it lacked authentication record contention and the State’s prints. Perry’s response trial, many facets of the as described require weaving through below. 6, 1993, days
On March three after the murders for which case, in this an unidentified female tele- convicted phoned Montgomery County police approximately 7:30 about the murders. The caller was report a.m. information Columbia, and she had direct- telephoning from the District Montgomery call to number of the nonemergency ed her recorded, and County police. telephone The conversation crying. the informant could be heard to be in the District just The caller said that she had left a home Street, where her at 916 Westminster N.W. Columbia home, resided. The girlfriend, a niece of a resident of the she had overheard a conversation caller said there African American adjoining among took an room four place twenties, and They early unemployed, in their males. were The not three of money. informant did know guns “Drunk,” as but she did only the men. She knew the fourth talking men not know Drunk’s real name. four were ” “ ‘the and a son.’ shooting lady about the “ nurse her *27 they saying they about it and was watched ‘They talking was at breathing they maybe laughing after he was stopped how the boy....’” something eat and stating going get
After that she was to minutes, within ten the promising dispatcher again to call the recorded conversa- caller terminated the conversation. The the dispatcher tion sent the to the homicide unit of by was County The caller never called back. Montgomery police. trial, case, the Perry’s during permit- At the defense court In the Perry taped opposition ted to introduce conversation. the unsuccessfully argued the State its introduction of the triple hearsay—at were the level tape contents ie., declarant, the the tape, telephone at the level of first declarants, ie., four caller, the the level the second record, tape men. submitted that the business utterance, and that expressing the caller was an excited secondary making against declarants were declarations The trial court ruled that “under penal their interests. case and based the nature of upon circumstances of this offered, evi- the defendant is entitled to have the testimony it is worth.” No jury for whatever presented dence requested given. instruction was limiting had Perry’s, of which matched fingerprints, Latent none home, her Horn’s on certain contents of been found Mildred home, motor in the at her and in her vehicle. purse, garage by called by were described witnesses fingerprints The latent They Mary in its Ann Horton case chief. were State County (Horton), Montgomery fingerprint examiner with the Holmes, same employed who was police, and Jacob (FBI). The Investigation Bureau of capacity by Federal if were “of value” fingerprints heard evidence that latent jury identifying points number of they contained a sufficient of identified prints prints per- the latent permit matching jury authorities. The also sons the files of law enforcement recovered prints was told that certain of the latent “open,” were investigators they were of value but that prints i.e., had not been matched with those prints value that despite prints open identified These remained person. jointly by maintained having against been checked a data base despite having counties and Montgomery George’s and Prince FBI against been checked on a somewhat selective basis twenty-seven fingerprints data of some million sets of base persons. identified Horton, examiner, Montgomery County fingerprint defense, after by Perry
called as a witness for de- telephone into evidence the recorded conversation put examination of Horton elicited scribed above. The defense for com- specifics open prints about the number of submitted investigators of the murders. parison *28 anonymous telephone In to the combination of the rebuttal the evidence that open prints produced call and the State described, from, of the investigation and that resulted its that telephone day call. On the conveyed information the the received the had interviewed telephone police call was Street, had those they put of 916 occupants Westminster premises under surveillance. result, associated with 916 Westminster
As a four witnesses They as rebuttal witnesses. by Street were called the State Kirkland, since had lived at that address Mary were who son, Kirkland, was known as age twenty-seven, Kevin who her Kirkland, “Drunk,” and Amanda her Yolanda granddaughter, child. The female of Kevin Kirkland’s Byrd, the mother dispatcher’s on the had identified the female voice witnesses Thomas, Kirkland’s former that of Kevin tape as Wanda engaged that he never Kevin Kirkland testified girlfriend. Thomas, and he as that described Wanda a conversation about murders other than what knowing anything denied he had on the heard news. he also testified rebuttal that had Wittenberger
Detective at July apartment Thomas on her interviewed Wanda N.E., Street, agent D.C. An FBI Washington, at 641 Hamlin been that Thomas had not also testified on rebuttal Wanda mail that for more than a month picking up her address with had left no address prior forwarding to trial that she as called Wanda Thomas party the Postal Service. Neither witness.5
Further, surveillance, Detective Witten- as result number of be exam- berger fingerprint that a cards requested ined. Perry’s for evidentiary ruling that is the basis Horton called as a
appellate issue arose when State Wittenberger testified that Detective rebuttal witness. She investi prints in the requested compare open she Horton cards of certain individuals. gation fingerprint with utilized, one of record cards that she fingerprint identified the Perry objected the name of a Keith Kirkland. which bore that, in order authenticate argued lack a foundation. He records, necessary it was for the who fingerprint person original, testify inked fingerprints had taken the those named on fingerprints on a card were of the individual the card. objection, ruling that “it is admissi
The court overruled the The court thoroughness investigation.” ble show limiting to a instruc Perry further advised entitled tion, one, if Horton then but declined.6 he wanted him of 5. not contend that State failed advise does *29 concerning identity anonymous developed call or the information of the caller. location 6. The trial court offered an instruction that, thoroughness says simply to show the 'This is offered "that prove that at the investigation. It is not offered to she looked fingerprints matched the open prints that none of the testified from Detective had received cards that she on the record Wittenberger. for Kevin record card fingerprint shown a
Horton was also fingerprint FBI Kirkland, FBI from the by agent obtained an testimony. Horton’s rebuttal day on the before data bank did not fingerprints Kirkland’s Horton testified that Kevin any open prints. match of the fingerprint that the cards plain makes foregoing review case were not rebuttal by Horton the State’s
identified criminal an accused as the identity prove offered to no Consequently, express we charged. in the offense agent fingerprint where authenticity requirements opinion on the Here, pur- purpose. is offered for that record evidence police had done of the was to show what pose evidence information from receipt after the way investigation caller, the evidence the State’s anonymous telephone an records already fingerprint how explained case chief had in police investigations. are used much like that which we Perry’s argument
In this
respect
State,
332 Md.
V by failing to the trial court erred Perry contends Bar Maryland State jury language the instruct Association, Inc., Jury Pattern Instruction Criminal Maryland (1986, reads: pattern That instruction Supp.). No. 3:19 that_made a state- testimony “You have heard hearing] your pres- another [out ment [before trial] [at permitted Testimony concerning that statement ence]. testimony to believe the you decide whether only help this trial. gave during that the witness the trial you “It is for to decide whether believe of_in you may in part, whole or but testimony other than to any purpose statement not use the earlier you making that decision.” assist (A) the issue has no merit to the contention because There is (B) not instruction did requested preserved, not been case, of this the law under the circumstances accurately state (C) fairly covered the matter actually given the instruction case; circumstances of this instruction under the requested (D) of the case to which respect part with error, if applicable, have been may instruction requested beyond a reasonable doubt. any, was harmless
A the court and the close of the evidence day before On At instructions. parties’ requested on the counsel conferred any use of error in above-described We also held in Colvin-el 7. Colvin- beyond a reasonable doubt. fingerprint card was harmless (1993). State, 144, 161, This was 630 A.2d 733-34 el v. 332 Md. police prints at trial officer was identified because a set of inked Colvin-еl, fingers and that set also had rolled them from who prints crime from the scene. matched the latent instruc- above-quoted that the Perry requested the conference names and particular “without reference given tion be Perry’s out that pointed witnesses.” The State particular law statement of the entirely an accurate request would not be statements, acknowledged inconsistent prior because certain (McGhee), could be witness, Pauline McGhee State’s *31 court The trial as substantive evidence. argued by the State at that time. instruction ruling Perry’s requested reserved grant it would not day next the court ruled The instruction, how the uncertainty as to indicating requested indicating that Perry and requested helped instruction jury. confuse the instruction would requested a list of actually given, gave the court In the instructions assessing the credibil- factors that could be used illustrative defense charge, At the conclusion of the ity of witnesses. instruction, counsel, said: to another after brief references Honor, add, during is I Your only point “The other would of witnesses credibility with the instruction which dealt I ninth one and the eight subtopics, there were different that the court read. don’t believe eight. I Okay. only got
“THE have COURT: Oh, you only eight. have COUNSEL]: “[DEFENSE you should my version. It Okay. The ninth one is a witness’s as extent to which consider such instructions made the statements in the court differed from testimony occasion.” previous the witness on addition to the requested that this After the court stated question to the court’s response would be charge given, objection, defense counsel request or concerning any other we would re- stated, the records and preserve would “[W]e indi- already court has read instructions which the quest the cating that.” supplemental differs from the pattern instruction (see V.C, infra) by gave court
instruction which the “may not use the jury stating expressly former’s to assist” other than any purpose statement for earlier reference Perry’s general credibility determination. making not instructions does requested his submitted previously failed to instruction supplemental that the point his preserve general His credibility determinations. solely limit the use instruc- previously requested all again requesting exception, 4-325(e) respect with tions, Maryland Rule satisfy does not part in relevant as That rule reads point. limited use follows: or the failure to giving as error the may assign
“No party objects on the record party unless the give an instruction distinctly jury, stating instructs the after the court promptly grounds and the objects the party the matter to which objection.” change focused Here, supplement Perry’s requested statements, and the court subject prior inconsistent on the statements prior it use inconsistent jury could advised For now to believe a witness. assessing whether jury that it also have told the that the trial court should argue only credibility inconsistent statements prior could use *32 in his that feature specify did not Perry when purposes, court and violates sandbag the trial operates exception, 4-325(e). Rule Maryland
B
in not
event,
no reversible error
In
there was
Perry
pattern
instruction.
language
in the full
charging
in
witnesses
impeached
to all
sought
applicable
an instruction
law,
reason,
applicable
not state the
that
it did
the case. For
Maryland
it.
required
grant
not
trial court was
and the
State,
175,
A.2d 398
4-325(c);
v.
341 Md.
670
Grandison
Rule
—
denied,
U.S. -,
(1995),
117
136 L.Ed.2d
S.Ct.
cert.
(1984).
State,
(1996);
Md.
The State’s
predicated
then
signed
of McGhee’s
statement was
tent
(1993).
State,
That
Md.
C gave concerning supplemental instruction that the court follows: prior the use of inconsistent statements was as 5-802.1, part, Maryland reads: 8. Rule relevant following previously a witness who testi- "The statements made *33 hearing subject to cross-examination fies at the and who trial or by hearsay rule: concerning excluded the the statement are not "(a) testimony, with declarant's A statement that is inconsistent (1) given subject penalty oath to the of under if the statement (2) trial, deposition; hearing, proceeding or in a perjury at a or other declarant; (3) signed or writing by to and recorded reduced substantially by stenographic or electronic means verbatim fashion making contemporaneously statement!.]” with the I instruction to gentlemen, “Ladies and have one additional I of the instructions that give you, very which is brief. One credibility of witnesses and how you had to do with the gave witnesses, credibility suggested and I you decide the things. to consider a list of different you might want I am eight things, it a list of about “Actually, was consider in give you thing you one more can going the witnesses. deciding credibility the context of it, you I that means that can say you When can consider what, if you any, think it and it is to decide up about consideration, weight you give want to to this factor. which the
“It is as follows: Whether and the extent to from the statements testimony witness’ the court differed can you made the witness on occasion. So previous credibility you considering consider that also when are of the witnesses.” statement, the Nance ramifications of McGhee’s
Given law. actually fairly presented applicable charge given 4-325(e). Maryland Rule
D witness, other than Perry’s only In brief to this Court McGhee, testimony Perry claims was affected whose (Tur- instruction, is Thomas Turner requested denial of the ner). State, for the In his direct examination as witness by Perry indicating certain Turner testified to admissions Tur- Perry. On cross-examination contact between Horn and given completely contradictory that he had acknowledged ner that, to his testimony grand jury subsequent grand immunity. had been jury testimony, given he Nance, the substantive argue Under was entitled just as the grand jury testimony, of Turner’s admissibility incon- substantively prior from McGhee’s written argued State error, Further, any, if in the supple- statement. sistent on use was the absence of a limitation mental instruction to the testi- credibility respect determinations. With solely Turner, prejudiced by is not the absence mony *34 testi- grand jury If the Turner’s jury limitation. considered evidence, it, jury the and believed then mony as substantive testimony, trial court reject contradictory would Turner’s error, if the damaging Perry. Consequently, to which doubt. beyond is harmless a reasonable any, VI at Perry that there was insufficient evidence asserts (1957, under any factors Md.Code sentencing aggravating 413(d). 27, § circum aggravating Art. The Repl.Vol.), com were jury found the were that the murders stances for contract remuneration pursuant agreement mitted an or more one offense of murder and that committed than degree arising out of the same incident. the first “a sen argument the premises separate his references (k)(8). 413(a) 27, § this in Art. From tencing proceeding” at the evidence that was introduced Perry concludes that the automatically part innocence of his not guilt phase trial is sentencing phase. Perry at record for consideration testify witness must does not contend that each apparently His seems again point must be reintroduced. or that exhibits prosecutor case failed to move to be that this sentencing phase into at the the evidence admission evidence phase. or innocence guilt that had been introduced prior this The made to verdict reject argument. record We are prior after verdict and sentence and the record made whole, is, cause the record parts of the same Formal judgment appeal. to the final reviewed on leading up into the post-verdict incorporation pre-verdict evidence not re- underlying judgment final portion of record quired. cause understood this criminal participants as described above. penalty proceed
death cases When it planned prove asked the trial court how State was following colloquy place: took circumstances aggravating Honor, we Your I think that because “[PROSECUTOR]: from the arguing are to be jury, going the same we have I need to nor record of the trial itself. don’t think we matters any evidentiary or revisit should we review I think we are to do that. through permitted witnesses. are, “THE I think too. Is there you COURT: objection to that? *35 No.
“[DEFENSE COUNSEL]: entirely appropriate “THE It strikes me as an COURT: so don’t have to way jury, you to do it. You have the same figure it out. same, Assuming that
“[DEFENSE COUNSEL]:
very
it is
serving
sentencing jury,
will be
as the
jury
this
convictions
simply rely
clear that
can
on the
State
fact,
object
any
would
jury.
returned
We
the evidence.”
revisiting
support
argument
cites to
his
are
The cases
State,
695,
A.2d 830
Tichnell v.
287 Md.
415
distinguishable.
(Tichnell
(1980)
State,
43,
I),
290 Md.
427 A.2d
and Tichnell v.
(1981) (Tichnell II),
from
appeals
separate judg-
991
were
jury
In
I we affirmed the
ments of conviction.
Tichnell
verdict,
sentence,
court
death
and re-
imposed
reversed the
resentencing
Tichnell
sentencing.
manded for a new
elected
necessarily
newly empaneled
and com-
jury
which
rendered the
jurors
of different
from those who had
posed
sentencing
I.
at the
jury
verdict in Tichnell
second
guilty
death,
portions
had read to it “relevant”
having
after
imposed
49-52,
from Tichnell I.
247 State, A.2d Md. 174 226 Brady on v. also relies 10 L.Ed.2d (1961), 83 S.Ct. aff'd, 373 U.S. from that, retrial, of evidence (1963), duplication holding a situation Brady involved may required. trial be the first 430-31, 174 at Id. empaneled. to be jury new where a A.2d at 171. II here: applicable we stated Tichnell
What seeks prosecutor in which the “In the usual case degree first murder qualifying and obtains a penalty death heard the evidence conviction, jury which judge the trial sentencing subsequent in the also be involved at trial will therefore, fully conversant with will be they proceeding; the commencement prior to evidence introduced hearing.” sentencing II, 59-60, A.2d at 999. The instant 290 Md.
Tichnell usual case. case is the
VII Maryland’s submits that preservation purposes For requires because it statute is unconstitutional penalty death it by preponderance; proved circumstances to be mitigating mitigating that claimed the defendant to establish requires are, in in the statute not enumerated circumstances are circumstances; sen- requires it a death fact, and mitigating mitigating outweigh aggravating circumstances tence when of the evidence. by a preponderance circumstances and have prior cases have addressed these claims We State, 175, 341 Md. v. each of them. See Grandison rejected claim, 398, “though 231, (stating that a similar 670 A.2d 425 consistent years, has been again time over the made time and State, 30, Court”); 340 Md. Whittlesey v. this ly rejected by (1995) 223, similar constitutional 82-83, (rejecting A.2d 249 665 denied, statute), cert. penalty Maryland death challenges (1996); 1021, 100 U.S. -, 134 L.Ed.2d 116 S.Ct. - 582-83, State, 597 A.2d 324 Md. Wiggins v. burden
(1991)
to defendant’s
challenges
no merit in
(finding
factors
mitigating
and other
statutorily recognized
regarding
denied,
1007, 112
cert.
S.Ct.
to burden of
U.S.
proof),
(1992).
1765,
VIII by In advanced considering arguments addition to imposition we have also considered the appeal, on this set forth standpoint death sentence from the of the factors 414(e), following § and we make the determina- Article tions:
(1) was not under imposed The sentence death factor; arbitrary other passion, prejudice, influence of (2) jury’s statutory supports findings The evidence 413(d); § circumstances under aggravating (3) jury’s finding aggra- that the supports evidence circumstances outweigh mitigating circumstances vating more, twelve, all that were found one or but less than jurors. THE MONT- JUDGMENT OF CIRCUIT COURT FOR AFFIRMED. GOMERY COUNTY BELL, Judge, dissenting. 452(a)(3)
Maryland provides: Rule (a) court, In circuit the follow- Mandatory Motions. conformity raised motion in with this ing matters shall be court, if not so raised are waived unless the Rule and shown, cause orders otherwise: good
s}{ iH # [*] wire or (3) search, seizure, interception An unlawful *37 oral communication pretrial (Emphasis identification. added) (2) by interception methods which the specifies
This Rule two To be may validly or oral communications be raised.1 wire statute, out, Maryland Wiretap Maryland majority points the 1. As the 10-408(i) (1974, expressly § Repl.Vol., Cum.Supp.) Code 1996 move, trial,” during permits "[a]ny aggrieved person" to "before or the Be- pretrial. motion filed sure, by is preferred the method the court to however, permits cause, explicitly the Rule also matter, that method to raise the timely the failure forgive not absolute. the suppress to pretrial motion did not file petitioner without, conversation, so far as the taped telephone second He reflects, being taped. to its having his
record consented and the case to the close of State’s suppress prior did move he When into evidence. tape the had been admitted before to grant the court was able motion to interposed suppress, the it a time when was raised at sought; objection the relief thereto- the error of the court correct power within the rely to refer to by permitting made the State fore Turner, whom of Thomas testimony to corroborate tape Rather than entertain immunity. granted complete the State by failing the-motion, petitioner, the court ruled objection. had waived his suppress, file a motion to earlier to court of two reasons: wrong for either ruling That 4-452(a)(3) or byit Rule given exercise the discretion failed to refused, these circum- it under its discretion when it abused presence stances, hearing outside suppression to conduct a Moreover, beyond a was not harmless the error jury. of the judg- I would reverse Consequently, doubt. reasonable circuit court. ment of the objection no was made true, argues, as the State
It is until the tape of the admissibility to the petitioner by trial, had been identified tape after the fourth week time, the counsel petitioner’s At that jury. played with the comply had failed to acknowledged that he candidly pre- filed motion be suppression that the requirement Rule’s unlawfully intercepted, suppress the contents that it was on the basis Although not raised intercepted wire communication. of an my certainly supports position and buttresses his petitioner, this section majority ignoring the clear argument. The rationale offered 10-408(i) getting offered as a means § mirrors mandate of and, as I justify of the merits. As far thus to avoidance the Rule around concerned, persuasive. it is no more am *38 250 suggested and no one again candidly, explained,
trial. He he that his co-counsel and genuine, was not explanation one of variety things, on a laboring- have been for months to deal with attempt the issue of how we being those recording, particular of that 22-second introduction [S]tate’s from the driving that as I was home say and suffice it to o’clock, or 9:00 the neurons night office last about 8:30 conneсted. objection he then support he made in argument (1974, Maryland Repl.Vol., Code 1995
interposed, premised on 10-405,4 10-402(a),2 10-402(c)(3),3 §§ Cum.Supp.) 1996 Article, was the same Proceedings and Judicial Courts State, v. 323 this announced argument Court Mustafa (1991). case, 65, 73-75, In that we A.2d 485-86 Md. 591 “unambiguous,” §of 10—405as language characterized and, thus, “no indication that exceptions for no providing ‘all-encompass anything but the legislature adopt intended §in 10- it fashioned exclusionary unequivocally rule which ing ” State, v. 290 (quoting A.2d at 485 Wood 405.’ Id. at 591 (1981)). 579, 584, then stated that A.2d 95 We Md. more restrictive consent purposes the clear of the “one of 10-402(e)(3) pre- § is to ] Act Maryland [i.e. of the provision (1974, Cum.Supp.) § 10- Repl.Vol., 1996 Maryland Code 2. 402(a)(1) intercept, any person [w]illfully makes “it unlawful wire, oral, intercept, any or communication.” electronic endeavor wire, oral, 10-402(c)(3) "interception or of] allows the 3. Section person party to the communi- where the is electronic communication given parties have to the communication cation and where all intercept- interception unless the communication prior consent to the committing any criminal or tortious act purpose of ed for the States or of this or the laws of the United violation of the Constitution State.” provides: 4. That section intercepted, has been no any wire or oral communication
Whenever evidence derived and no part of the contents of the communication trial, any hearing, other may be received in evidence therefrom officer, court, department, grand jury, proceeding in or before committee, authority of body, legislative or other agency, regulatory State, the disclosure of that political subdivision thereof if or a this of this subtitle. would be a violation information where of communications interception unauthorized vent ‘the ” privacy.’ expectation reasonable has a parties one of the Id. State, court’s waiver,5 at the trial argue than
Rather *39 the admissible because recording was that the request, posited it, made were Horn, co-defendant who petitioner argument, not satisfied with Apparently coconspirators. the waiver applied waiver. But it fell back on the court part a of meaning only to give manner as to analysis in such a that, court failed doing, in so I submit Rule 4-452. defendant to relieve a possessed that it the discretion exercise so. This cause to do good there is a default where from explanation on the court’s when one focusses obvious becomes ruling. of its suppress that the motion noted quite properly
The court before trial must be made motion which mandatory is a or raise the such motion did not file petitioner that the fact, the Relying on the latter before trial. any way issue in the issue determined, that fact alone” that “on trial court later From its admissibility was waived. recording’s petitioner’s was the remarks, obvious that it it is even more motion, or otherwise suppression a filing pretrial in not default the court tape, jury heard raising the issue before waiver, cause” “good rather than the dispositive found acknowl- passing. Having it referred requirement, to which by finding forgiven could be that an initial default edged cause,” stated: the court “good that when the exhibit
Furthermore, *40 mention the the court did not even significant It is that for to raise the failing of the reason adequacy petitioner’s demonstrated, focus, I have was Its sole as issue earlier. have forgiving that the default would the default and the effect both contemplates But the fact that the Rule on the trial. occasiоn, they, on will be there will be defaults and that that excused, emphasis that the appropriate it seems much more and whether objection delayed why be on the motion only I can conclude “good constituted cause.” that reason in this failed to exercise discretion simply that the court does, to majority also apparently as the regard, preferring, suppression of the issue. reaching avoid the merits that reflecting the record as Even if one could read default, just it is as cause” for the “good court did not find that, the court abused its finding, in in so reflecting clear argument demonstrated that the already I have discretion. with, made was consistent that the counsel petitioner’s it was an Accordingly case. by, foreshadowed Mustafa suppression of the argument favor extremely strong Moreover, nothing is the record there recording. respect anything but truthful with that counsel suggests Í53 issue. raising suppression reason for not earlier to his default sought by the favoring the result argument Where the good of his or her lack of strong is and the evidence ing party concerned, follows, I weak, clearly as far as am faith it on the merits and hearing is entitled to a defaulting party And there an abuse of discretion.6 that a failure to so order is conducting suppression court impediment was no is often done when the jury. without That hearing sworn, evidence, depends jury offered after the is admission of predicate. establishment of a factual upon the appeal address this issue on direct Alternatively, we should petitioner’s demonstrates that clearly since the record That mat assistance of counsel. inadequate counsel rendered and, submit, it is I must be addressed whenever ter can be adequate appeal direct and the record appeal raised on State, 292 Md. review. Johnson v. permit meaningful its (1982). 434-435, To do otherwise is to waste 439 A.2d least, resources, is, say very judicial commodity I out that there is no indica already pointed have precious. any way court was in concerned about tion that or believed that he acted counsel’s motivation petitioner’s bad faith. that I not ducks an issue only
The decision this case decision, but it ripe and is generated believe has been Court, as full Had this appeals. that there will be two ensures suppression the merits of precedent permits, addressed issue, the result issue, with this albeit through we would be *41 struck, premised impressed, by majority’s argument not 6. I am but by ensuring it had State court’s need to be fair to the on the prepare petitioner’s motion to enough respond for the time to to and just contemplates this majority that the Rule suppress. I remind the situation, objection pretrial and is made motion has been filed when no situation, Moreover, jury when the is in this for the first time at trial. suggested, or ongoing, has never trial is this Court in the box and the intimated, of apply as in the case the same time frames even short, simply is no timely trial. In there motions that are filed before concern. basis for that 254 is one.7 That the result not be a welcome
undoubtedly would hope for is no reason likely be that which we seek not to all, merits; result after not to decide an issue All that we passage of time. likely change not with and decision is ensure opinion this accomplished have moot, it we that, if in the meantime render nothing happens I can not in another context. to address the issue will have pro does not majority opinion and the any justification, find in this one, judicial resources expenditure vide for the fashion. A.2d 298 al., v. et
Abdolrahman M. ADLOO ESTATE, H.T. REAL INC. BROWN Term, Sept. 1995. No. Maryland. Apрeals
Court 16, 1996. Dec. State, A.2d v. 323 Md. crystalline to me that 7. It seems Mustafa conviction, (1991) petitioner's assum- a reversal of the foreshadows interesting to me that the ing waived. It is that the issue has not been me, case, suggesting to majority studiously the merits of the avoids co-conspiracy argu- "buy” implicitly, the State's least that it does not admissibility right challenge the waiver ment. The .of holding recognize the recording by think of it or counsel who did not surely render effective week of trial does not until the fourth Mustafa hence, assistance; on that of this case to this Court I foresee a return very order. basis in short notes Court this objection on there was no again yesterday, offered objection there was an admissibility. Indeed to its grounds I believe by counsel and raised grounds properly on other Court, of this statute but violation ruled on properly merely lamented: 5. The State back and now we are proceed with Mr. Turner prepared to We were petitioner's hearing. [the like to know what suppression I would in a Court and I given range of remedies to the He has counsel] wants. point. respond one at this prepared to each if I am don’t know evidence, so once excluding was not raised as a basis objection. any right a waiver of again there was in the fourth week also notes that we are The Court already that has tape the issue of a trial and that to revisit other create substantial jury to the would played been to begin for the rule rise to the reason problems give n with, dealt with something like this needs to be which is that trial, trial, certainly needs to during not but before the it, it. they not after hear jury before the hears be dealt with waived, concerned, it waived. once it is As far as I am I don’t think that it is partially I think it is waived. don’t well, its in evidence but now the say, for me to appropriate testimony respect further with can’t offer State before may is an issue that be issue since that identification jury for them to consider.