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Perry v. State12/10/1999
e or judgment was imposed in violation of the Federal or State Constitution or the laws of this State, to institute a proceeding under the Act. Under that provision, a host of issues arising from alleged trial error are within the purview of the Act. See, for example, Jourdan v. State, 275 Md. 495, 341 A.2d 388 (1975) (claim of double jeopardy); Austin v. Director, 237 Md. 314, 206 A.2d 145 (1965) (evidence seized pursuant to unlawful arrest); Cherry v. State, 305 Md. 631, 506 A.2d 228 (1986) (denial of right to make closing argument); Baldwin v. Warden, 243 Md. 326. 221 A.2d 73 (1966) (use of perjured police testimony); State v. Thornton, 73 Md. App. 247, 533 A.2d 951 (1987) (guilty plea unsupported by statement of facts); Davis v. Director, 3 Md. App. 205, 238 A.2d 573 (1968) (erroneous admission of confession). We expressly recognized that the claim of evidentiary error - the admission of the tapes and associated testimony - was within the purview of the Act when, in the direct appeal, we made clear that our affirmance of the judgment was without prejudice to Perry's raising on post-conviction review "his contention that Exhibit 312 should have been excluded under the Maryland wiretap statute."
When dealing with such a trial error issue in a post-conviction proceeding, apart from considering any applicable procedural bars, such as whether the issue was waived or finally litigated, the court undertakes essentially the same legal analysis that would be undertaken by an appellate court on direct appeal, supplemented, of course, by such additional evidence as is appropriate. The substantive issue is whether the alleged error was, in fact, committed, and, if so, whether the error was harmless. The test for harmlessness is necessarily the same as would be applied by the appellate court if the issue had arisen on direct appeal - the Dorsey standard of whether the reviewing court is convinced that the error was harmless beyond any reasonable doubt. The two-prong test enunciated in Strickland, explicated in Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993), and applied by us in Oken v. State, 343 Md. 256, 681 A.2d 30, cert. denied, 519 U.S. 1079, 117 S. Ct. 742, 136 L. Ed. 2d 681 (1997) and Wiggins v. State, 352 Md. 580, 724 A.2d 1, cert. denied, ___ U.S. ___, 120 S. Ct. 90, ___ L. Ed. 2d ___ (1999) is peculiarly applicable to ineffective assistance of counsel claims arising from the Constitutional right to the assistance of counsel and has no bearing on direct claims of trial error. See Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). The lesser standard of prejudice that forms the second prong of a Strickland analysis looks at the prejudice emanating from counsel's deficient performance, not from any error committed by the court at trial.
Accordingly, we hold that the post-conviction court erred in applying a Strickland prejudice analysis to the issue of whether the tapes and testimony were wrongfully admitted at trial. We have determined that that evidence was wrongfully admitted, and the question then becomes whether that admission was harmless beyond a reasonable doubt. We conclude that it was not. The post-conviction court recognized that the 22-second tape "was an important piece of evidence." We have already described its importance, being the only direct physical evidence of contact between Horn and Perry and contradicting, in a dramatic way, their pre-trial assertions that they never spoke to one another. It was important enough for the State to have four witnesses identify the voices on the tape and to play the tape in court four times, twice during the State's closing argument. Notwithstanding the weight of the other evidence produced aga
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