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Perry v. State12/10/1999
re committed. The fact that the post-conviction court did not believe that the tape captured that particular conversation is irrelevant; the prosecutor suggested that prospect to the jury and, although the conversation is certainly ambiguous, that suggestion was by no means a frivolous one. It is true, of course, that there was a great deal of other, documentary evidence from which contact could have been found, but, other than the testimony of Thomas Turner given under a grant of immunity, most of it was circumstantial - calls from pay telephones with no direct proof of who the caller was. Absent proof of contact with Horn, there was little or no evidence connecting Perry either with the murders or with any of the victims. Why would a stranger from Detroit want to break into a home in Maryland and murder its occupants, including a helpless child? To establish why, the prosecutor played the tape for the jury four times during the trial, twice during his closing argument.
It is always a judgment call in determining whether a circumstance sufficed to render the verdict unreliable. In this case, we conclude, under both the Sixth Amendment and, independently, under Article 21, that it did, and, for that reason, shall reverse the judgment of the post-conviction court and remand for the court to order a new trial for Perry.
JUDGMENT REVERSED; CASE REMANDED TO CIRCUIT COURT FOR MONTGOMERY COUNTY FOR ENTRY OF ORDER IN CONFORMANCE WITH THIS OPINION; MONTGOMERY COUNTY TO PAY THE COSTS.
Cathell, J., Dissenting:
I respectfully Dissent. Because I think Mustafa v. State, 323 Md. 65, 591 A.2d 481 (1991), was incorrectly decided and should be overruled, or at least distinguished from this case, I would hold that Horn's interception of phone conversations in California did not violate Maryland's wiretap statutes and I would affirm the trial court's denial of post-conviction relief. I also adopt the excellent reasoning of Judge John McAuliffe's Dissent in Mustafa, 323 Md. at 76-79, 591 A.2d at 486-88.
I note, initially, that in the Court's statutory construction of the Maryland Wiretap Act in Mustafa, no mention was made of what I perceive to have been an important modification of the Act.
In Mustafa, the Court opined:
It is plain that the legislative intent in the Maryland Act was to inhibit the disclosure in Maryland courts of the content of communications not intercepted in conformity with the public policy of this State as evidenced by the provisions of its governing law. In other words, the Maryland Act precludes the admission of a communication intercepted, no matter where, under circumstances inconsistent with this State's substantive law. [Emphasis added.] Id. at 74-75, 591 A.2d at 485-86. That statement mirrored the language of the statute in 1973, but not the present language. The present language, I would respectfully suggest, requires an actual violation of the Maryland Wiretap Act.
Prior to 1977, the admissibility language stated in relevant part: "Only evidence obtained in conformity with the provisions of this subtitle is admissible." Md. Code (1974), §10-406 of the Courts & Judicial Proceedings Article (emphasis added). That language was changed in 1977 to read, in relevant part: " o part of the contents of the communication . . . may be received in evidence . . . if the disclosure of that information would be in violation of this subtitle." Md. Code (1974, 1998 Repl. Vol.), § 10-405 of the Courts & Judicial Proceedings Article (emphasis added).
This change in the statute was not discussed in Mustafa. As I view the language, the earlier prohibition could be construed (although I would not do
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