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Perry v. State12/10/1999
nsel's failure to preserve an objection to the inadmissible and prejudicial conversation with Horn, he was denied the effective assistance of counsel guaranteed to him by Article 21 of the Maryland Declaration of Rights and the Sixth Amendment to the United States Constitution. The standard to be applied in determining whether counsel's representation comported with the requirements of the Sixth Amendment is that enunciated in Strickland v. Washington, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, as more recently explicated in Lockhart v. Fretwell, supra, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180. As we recounted that standard in Wiggins v. State, 352 Md. 580, 724 A.2d 1, cert. denied, ___ U.S. ___, 120 S. Ct. 90, ___ L. Ed. 2d ___ (1999), to prove a claim of Constitutionally ineffective assistance of counsel, the defendant must establish that counsel's performance was deficient and that the deficiency prejudiced the defense. To show a deficiency, the defendant must "(1) demonstrate that counsel's acts or omissions, given the circumstances, `fell below an objective standard of reasonableness considering prevailing professional norms,' . . . and (2) overcome the presumption that the challenged conduct `be considered sound trial strategy.'" Id. at 602, 724 A.2d at 12, quoting in part from Oken v. State, supra, 343 Md. 256, 283, 681 A.2d 30, 43. To show that a deficiency prejudiced the defense, the defendant "must establish that counsel's error was `so serious as to deprive of a fair trial, a trial whose result is reliable.'" Id. Those principles, as stated, apply as well to Article 21 - the Maryland analogue to the Sixth Amendment.
Based on counsel's uncontroverted admission, the post-conviction court found as a fact that counsel's failure to lodge a timely objection to the wiretap evidence was not a matter of trial strategy or tactics but was instead the product of his failure to realize that Perry had a good basis for suppression - in the court's words, their "ignorance of the law." Because the court went on to conclude that Perry suffered no Constitutional prejudice from that deficiency, however, it made no finding as to whether the deficiency fell below an objective standard of reasonableness considering prevailing professional norms.
There can be little doubt in this case that the omission to move timely to suppress the evidence, the almost certain effect of which was a waiver of any objection to the evidence, satisfied that test. Counsel correctly recognized the importance of the evidence when they first learned of it; contemporaneously with their discovery of the tape, they had all of the factual and legal information necessary to support a motion to suppress it; and they were well aware of the requirements not only of Maryland Rule 4-252, requiring that a motion to suppress be made before trial, but of the requirement that a contemporaneous objection be made at trial. As we have noted several times, there was already pending a sufficient motion to achieve that result, but it was not pursued. Not until the eleventh day of trial, after the tapes had been admitted into evidence and played in open court was an objection based on the wiretap law made. Without detracting from the general competence of the attorneys involved, it is clear that their omission to pursue a timely motion to suppress this evidence fell significantly below the objective standard of reasonableness and that the first prong of Strickland was therefore established. See Kimmelman v. Morrison, supra, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305.
The question of prejudice is not so facile. The essence of the ineffective assistance claim is that "counsel's unprofessional errors so upset the advers
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