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Perry v. State12/10/1999
vidence was first offered.
Neither party has cited to us, and we have been unable to locate, any indication in the legislative history of the statute of what, precisely, the Legislature meant when, in 1977, it amended the initial version of the wiretap bill then before it to depart from the Federal approach and to allow motions to suppress to be made "during" a trial. Although it seems clear that the General Assembly did not intend to foreclose an objection if not made before trial, as the Federal Act did, we do not believe that it intended to override well-established principles of trial procedure, one of which requires that objections to evidence be made at the time the challenged evidence is first offered. See Martin v. State, 203 Md. 66, 72, 98 A.2d 8, 11 (1953) (reviewing earlier cases and confirming that "one against whom evidence is offered must object as soon as the applicability of the evidence is known or should reasonably have been known to him," and that an objection not made at that time is waived). That principle is now codified in Maryland Rule 4-323(a) and its civil action and district court counterparts, Rules 2-517(a) and 3-517(a): "An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived."
The requirement of a contemporaneous objection is a necessary and salutary one, designed to assure both fairness and efficiency in the conduct of trials. A party cannot be permitted to sit back and allow the opposing party to establish its case, or any part of its case, through unchallenged evidence and then, when it may be too late for the opposing party to recover, to seek to strike the evidence. The "sporting theory" of trial does not go that far, and we do not believe that, by allowing suppression motions to be made "during" trial, the Legislature intended to introduce that pernicious element into our jurisprudence.
In this case, the trial Judge found no good cause, based, at least in part, on the fact that counsel did not make his objection until the 11th day of trial - after the tapes were already in evidence and after one of them had been played for the jury. Counsel knew when they first heard the tape that it, coupled with the likely evidence of voice identifications, was an important and damaging piece of evidence, and they knew that Horn had made the recording without Perry's consent. In 1991 - more than three years before counsel learned of the Horn tape -this Court decided Mustafa v. State, supra, 323 Md. 65, 591 A.2d 481, expressly holding that a communication intercepted in another jurisdiction, but in violation of the Maryland wiretap law, was inadmissible in a Maryland court, even if the interception was not unlawful in the jurisdiction where it was made. Both the factual and legal information necessary to support a motion to suppress the Horn tape was therefore available to counsel (and through counsel to Perry) well before the commencement of trial. Other than counsel's failure to recognize the significance of that information, there was no basis whatever for counsel, and thus Perry, to have abandoned the motion to suppress the Horn tape and wait until the tapes and at least one voice identification were already in evidence before the motion was effectively made. Accordingly, Perry's complaint over the admission of State's Exhibits 312 and 342 and the voice-identification testimony relating to them was effectively waived, and, for that reason, the admission of that evidence was not reversible error.
E. Was Counsel's Performance Constitutionally Deficient?
Perry has complained that, as a result of cou
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