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Perry v. State12/10/1999
inst Perry, we cannot conclude that the erroneous admission of the tapes and the voice-identification testimony was harmless beyond a reasonable doubt.
D. Was The Objection Waived?
The issue of waiver is important. If Perry's complaint about the admission of the tapes and identifying evidence, which we have found to be valid, was not effectively waived by the failure of counsel to make a timely objection, the judgment of the trial court would have been in error and, for that reason, Perry would be entitled to a new trial. If, on the other hand, the complaint was effectively waived by counsel's failure to make a timely objection, the trial court's judgment would not be in error, and Perry's quest for post-conviction relief would depend on a finding that counsel's lack of diligence, which alone caused the judgment of the trial court to stand, amounted to a State or Federal Constitutional deficiency.
When counsel first raised a wiretap law objection at trial, the court determined that the objection had been waived because (1) Perry had failed to move pre-trial to suppress the evidence, as required by Maryland Rule 4-252, and (2) the objection, in any event, came too late at trial - after the tapes had been admitted into evidence and one of them had already been played in court. On appeal, we noted the existence of CJ § 10-408(i), which allows a motion to suppress an unlawfully intercepted communication to be made "before or during the trial," and we made two preliminary comments regarding that statute. First, we held that it was not necessary for Perry to have called the court's attention to that statute in order to preserve his argument that the court should have considered his mid-trial motion. We then stated that we could not determine, on the record then before us, whether, had the court conducted a suppression hearing when the objection was made, Perry's motion would have been granted. Accordingly, we declined to address the matter further but noted that our decision not to do so was without prejudice to Perry's relying on § 10-408(i) in a post-conviction hearing. Perry, supra, 344 Md. at 229, 686 A.2d at 286. In acknowledging the existence of § 10-408(i), we did not suggest that it would suffice to trump the requirement of Rule 4-252, or permit a defendant to raise the issue at any time during the trial, even after the challenged evidence was already admitted and made known to the jury; we noted it only to allow its scope and function to be considered in a post-conviction proceeding.
In his petition for post-conviction relief, Perry cited § 10-408(i) in support of his argument that the trial court erred in ruling that his objection was waived because of his failure to move pre-trial to suppress the evidence. The post-conviction court never addressed that issue. Having concluded, as a matter of law, that the evidence was admissible, the court found no need to address the issue of waiver. In this appeal, the State, in a footnote in its brief, urges that Rule 4-252, rather than § 10-408(i), applies and that the trial court's ruling was therefore correct. Its point is that the Rule "unlike Section 10-408(i), deals only with criminal trials where pretrial suppression hearings are the norm."
It is not necessary for us, in this appeal, to address the apparent conflict between Rule 4-252(a) and § 10-408, for it is clear that, even if we were to conclude that the statute prevails and that, pursuant to it, a motion to suppress an unlawfully intercepted wire communication may be made during the trial notwithstanding the failure to make such a motion pre-trial in accordance with the rule, Perry waived his right to complain by failing to make his objection when the e
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