 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Perry v. State12/10/1999
machine simply to record messages when he was not available to take the call, which is the normal function of such devices. It indicates, rather, that (1) he routinely taped all or most of the conversations he had, including calls that he placed, and (2) he retained those taped conversations. There is a fair inference that conversations initially recorded on the micro-cassette tapes were re-recorded on the larger cassette tapes, as there is no evidence that the answering machine would accommodate both size of tapes. The fact that he had retained between six and twelve hours of conversation on the micro-cassette tapes and perhaps 100 hours or more on the larger cassettes is telling evidence that the conversations recorded on those tapes were not recorded inadvertently. The fact that the 22-second conversation with Perry was at the end of a tape and that that tape, too, was retained indicates that he recorded the conversation intentionally. Given the weakness of the inference drawn by the post-conviction court solely from the efforts by Horn and Perry to hinder any public awareness of their contacts, this evidence, never mentioned, and therefore probably not considered, by the court would convince us that the factual Conclusion drawn from that inference was clearly erroneous. The whole of this record shows quite clearly that Horn's interception of the conversation with Perry was deliberate, purposeful, and intentional, and therefore willful. Unless consented to by Perry, the interception would therefore have been unlawful, even under Judge Rodowsky's view of § 10-405.
(3) Consent
Because it found that Perry, as a co-conspirator, could not invoke the protection of the wiretap law and because it found, alternatively, that willfulness was required on Horn's part as a condition to suppression and that the conversation was not recorded willfully, the post-conviction court never addressed the question of whether Perry had consented to having the conversation recorded. As we have rejected those findings, it becomes critical to deal with the issue of consent.
Perry averred (belatedly) at trial, and maintained throughout the post-conviction proceeding, that he never consented to the recording of his conversation. He placed into evidence at the post-conviction hearing an affidavit to that effect, although we have been unable to locate that affidavit in his record extract. The State never contested Perry's averment of non-consent. It made no argument to us, either in its answer to the Application for Leave to Appeal or in its brief, that Perry did, in fact, consent to having the conversation recorded. Nor does it appear that the State ever contested Perry's statement at the post-conviction hearing. Thus, there is no issue in this case that Perry did not consent to having his conversation recorded by Horn.
(4) Conclusion
As we have concluded that Horn unlawfully intercepted the 22-second conversation with Perry, without Perry's consent, it follows that the tapes made of that conversation (Exhibits 312 and 342) and the testimony identifying the voices on the tapes were inadmissible under § 10-405.
C. Harmlessness
There is a dispute between the parties over what standard of harmlessness, or prejudice, should be applied if, as we have done, we were to conclude that admission of the challenged evidence was in error. The post-conviction court accepted the State's argument that, because the issue was being addressed in a post-conviction proceeding, the two-prong test of Strickland v. Washington, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 is applicable. Perry maintains that, because we directed the post-conviction court to hold the equ
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 Maryland Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|