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Perry v. State12/10/1999
342; the copy of the 22-second conversation taken from that tape was admitted as State's Exhibit 312. Those exhibits, and the testimony identifying the voices, are the subject of the dispute now before us.
A transcript of the conversation recorded on the tape was prepared by the State, but it was not admitted into evidence and is not in the trial record.
Judge Pincus, the post-conviction hearing Judge, listened to the tape and found the conversation to be as follows:
"Horn: Yeah.
Perry: Are you able to talk?
Horn: No.
Perry: OK. All right. So I mean, I'm sittin' there.
Horn: Can you uh . . .
Perry: I could take a picture, I could take a picture of him. You know, right you know right . . . there but I couldn't. The noise, you understand what I'm saying? I wasn't able to do the others, didn't, I didn't want to go uh front wise. . ."
Although, at trial, Perry contended that the tape was unclear, he does not now contest Judge Pincus's finding of what it contains. Nor does the State.
The tape recording was disclosed to defense counsel in discovery, and they recognized that it was an important and damaging piece of evidence, for either of two reasons. It was the only direct physical evidence of contact between Perry and Horn - it documented a conversation between the two. In pre-trial statements to the police, both men had denied ever speaking with the other. The State also had evidence, from the mass of telephone records, that a 22-second telephone call was made at 5:12 a.m. on March 3, 1993 - very shortly after the murders were committed - from a pay phone at a Denny's restaurant in Gaithersburg, which is not far from Rockville, to Horn's home, and, although there was no clear evidence that Exhibits 312 and 342 captured that particular conversation, the State was likely to argue that they, in fact, did so. If the jury accepted that contention, it would have evidence not only of contact between the two men, but of contact that was contemporaneous with the murders and, depending on how the jury interpreted the conversation, could relate to the murders.
Immediately upon the entry of counsel's appearance on September 9, 1994 - before the State disclosed the tape in discovery - Perry filed an omnibus motion to suppress evidence, including " ll wire intercepts, eavesdropping, electronic surveillance and telecommunication records" on the ground that " ire intercepts, eavesdropping, electronic surveillance and telecommunication records were obtained in violation of the Defendant's rights secured to Defendant by the United States Constitution, the Maryland Constitution and federal and state substantive and procedural law." That motion remained pending when counsel learned of the tape in discovery. Notwithstanding their appreciation of the significance of the conversation on Tape No. 5, however, which they knew had been recorded by Horn, counsel did not mention that tape when arguing their motion to suppress and made no argument that the recording of the conversation by Horn constituted a violation of the Maryland Wiretapping and Electronic Surveillance law, Maryland Code, ยงยง 10-401 - 10-414 of the Courts and Judicial Proceedings Article (CJ). Though facially broad enough to include the recording by Horn, the motion to suppress, as argued, was limited to four other wiretaps made by the F.B.I. pursuant to orders entered by Federal courts in Los Angeles and Michigan. As so limited, the pre-trial motion was denied.
In his opening statement, the prosecutor informed the jury that it would hear a tape recording of Perry talking with Horn. The first evidentiary reference to
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