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Perry v. State12/10/1999
ng of fact, which, if before us, we would review under the clearly erroneous standard. Maryland Rule 8-131(c) makes clear that an appellate court will not set aside a trial court judgment on the evidence unless clearly erroneous, and due regard will be given to the opportunity of the trial court to Judge the credibility of the witnesses. In this instance, there appear to have been no credibility determinations, as such. The court's finding of inadvertence rested solely on the inference it drew from the two circumstances noted, about which there was no substantial dispute.
In the absence of any other evidence bearing on the issue, that inference would be a permissible, though certainly not a necessary or compellable, one. The fact that Horn and Perry went to great lengths to preclude anyone else from discovering their relationship does not necessarily mean that Horn would not intentionally create some evidence of the relationship for his own purposes. In retrospect, it may have been a foolish thing to do, as in retrospect the taping of conversations in the Oval Office of the White House may have been a foolish thing to do, but that does not preclude a finding that the taping was nonetheless deliberate and intentional, in the belief that the tapes would never fall into hostile hands. Underhill, relied upon by the post-conviction court, is a clear example of co-conspirators intentionally taping incriminating conversations. There would be no need for us to speculate here as to why Horn might have intentionally recorded the conversation with Perry; the point is only that the camouflaging of their relationship does not lead inexorably, as the court supposed, to a Conclusion that the tape in question was made inadvertently.
More important, in drawing the inference of inadvertence, the court appears to have overlooked entirely several other significant items of evidence directly bearing on the issue. Tiffany Horn, who lived with her father for about three months while she was in California from the autumn of 1989 until the end of the summer of 1991, and who visited with him periodically in 1992, confirmed that her father had an answering machine, that there were cassette tapes that went with the machine, and that he taped calls. Consonant with that testimony was the testimony of Detective Wittenberger and the physical evidence of the various cassette and micro-cassette tapes found in Horn's apartment. As noted, there were 12 micro-cassette tapes and 56 regular cassette tapes. The police listened to those tapes, and Detective Wittenberger testified that they recorded conversations Horn had with various people - with Mrs. Horn and other family members, friends, and attorneys - emanating both from calls made to Horn's home and calls that he placed. The tapes also recorded messages left on Horn's answering machine.
Wittenberger described the answering machine itself, which the police still had in their possession but which was never offered into evidence. He said that the machine had two "set-ups." It could be on a "no ring delay," which meant that "the tape was immediately activated when the phone call came in," or on a "ring delay," which meant that, "after four rings, the answering machine would pick up." At that point, "the tape would activate itself and start recording." Once the machine activated, it would start to record automatically, even if Horn picked up the phone. The micro-cassettes, Wittenberger said, each captured between 30 and 60 minutes of conversation. Some of them had conversations recorded over other conversations, indicating that the tape had been rewound and new conversations recorded.
This evidence establishes, beyond doubt, that Horn did not use his answering
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