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Perry v. State12/10/1999
le evidence can never constitute Strickland prejudice. In In re Neely, 864 P.2d 474 (Cal. 1993), the court had before it a habeas corpus petition based on the failure of trial counsel to move to suppress a tape of an incriminating conversation between the defendant and a State agent instigated by the State while the defendant was represented by counsel, and thus in violation of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). The court found both deficient performance and prejudice. As to the latter, the court concluded that there was a reasonable probability that had the tape recording been suppressed, the outcome with regard to guilt would have been more favorable to the defendant, and it therefore granted the writ. The majority opinion did not discuss Justice Powell's view but simply acted inconsistently with it. In a Concurring opinion, however, Justice Arabian took note of Justice Powell's view and, though sympathetic with that view, nonetheless rejected it as a statement of current law, observing that " holding that prejudice has not been shown for these reasons would effectively render meaningless the majority opinion in [Kimmelman] and would run counter to broad language found in that opinion." Id. at 488.
We cannot, of course, predict how the Supreme Court might ultimately resolve this question in the context of the Sixth Amendment, but, with all due respect to Justice Powell, the Concurring Justices, and the Seventh Circuit Court of Appeals, we reject as a matter of independent Maryland law under Article 21 of the Declaration of Rights the notion that a defendant is never prejudiced under a Strickland-type analysis when reliable, though legally inadmissible, evidence is admitted against him or her. The issue in a Sixth Amendment/Article 21 context is not the scope, function, or reach of the exclusionary rule, whether judicially designed to protect a Constitutional right or created by the Legislature to protect a statutory one, but whether the defendant received the effective assistance of counsel. Nor is it a matter of an inappropriate "windfall." The most fundamental underpinning of our criminal Justice system, upon which most, if not all, other rights rest, is that a defendant is presumed to be innocent, and it is the obligation of the State to prove guilt, upon proper procedure and by admissible evidence, beyond a reasonable doubt. It is not a "windfall" when counsel succeeds in suppressing evidence that, for whatever reason, is inadmissible. That is precisely what counsel is there to do - to make the State prove its case by legally admissible evidence. It is difficult for us to comprehend either a logical or a practical basis for a Conclusion that the defendant is not prejudiced, as a matter of law and without regard to any other circumstance, when counsel fails in that very basic responsibility.
Our focus, therefore, under the Sixth Amendment and, independently, under Article 21, must be on whether the admission of the tape recording and the voice-identification testimony relating to it "so upset the adversarial balance between defense and prosecution that the trial was unfair and the verdict rendered suspect." Lockhart v. Fretwell, supra, 506 U.S. at 369, 113 S. Ct. at 842, 122 L. Ed. 2d at 189 (quoting from Kimmelman, supra), whether, as noted in Oken, "there is a substantial possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different." As we have indicated several times, this evidence was extremely important. It affirmatively and persuasively established contact between Horn and Perry and, depending on how the jury interpreted the message, may have proved contact on the very morning the murders we
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