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Perry v. State12/10/1999
ssible in Maryland, even if no part of the conversations occurred in Maryland and if the recording of them elsewhere was legal. I see no justification for the application of the extreme Mustafa rule in this case.
Rodowsky, J. Dissenting:
I respectfully Dissent because, as the circuit court found at the post-conviction hearing, the interception by Horn of the telephone conversation with Perry was inadvertent and not in violation of the Maryland wiretap statute.
In my opinion the legal analysis is straightforward. Perry contends that the 22 second tape should have been suppressed.
Suppression is governed by § 10-405 which in relevant part reads:
"Whenever any wire ... communication has been intercepted, no part of the contents of the communication ... may be received in evidence in any trial ... if the disclosure of that information would be in violation of [Subtitle 4]."
What constitutes a violation of Subtitle 4 by way of disclosure of information contained in an intercepted wire communication is found in § 10-402(a)(2). It reads: "Except as otherwise specifically provided in this subtitle it is unlawful for any person to ... (2) ilfully disclose ... to any other person the contents of any wire ... communication, knowing or having reason to know that the information was obtained through the interception of a wire ... communication in violation of [Subtitle 4]."
What constitutes an interception of a communication in violation of Subtitle 4 is found in immediately preceding § 10-402(a)(1) reading in relevant part: "Except as otherwise specifically provided in this subtitle it is unlawful for any person to ... (1) ilfully intercept ... any wire ... communication." Thus, whether the content of an intercepted communication is to be suppressed turns on (excluding exceptions) whether the interception was willful.
This issue was addressed by the post-conviction court. It made the specific and ultimate fact findings set forth below.
"The facts surrounding this case make it clear that this recording was not wilfully obtained, certainly a highly permissible inference from the facts as detailed below. The relationship between Lawrence Horn and James Perry was covered in layers of secrecy and deception.
The evidence produced at the trial and the post-conviction hearing revealed the following:
"1. Telephonic secrecy - Lawrence Horn and James Perry established an elaborate plan to ensure that their telephone calls would not be traced. They utilized a calling card belonging to a Kamella McKinney, which was a false name assumed by Horn's cousin Marsha Webb. Perry and Horn would always use a pay phone to initiate a call to the other. They attempted pay phone to pay phone calls to one another, without success.
"2. Wire transfers - Over the course of the conspiracy, Lawrence Horn sent money to Perry through Western Union. In an effort to avoid any connection between him and Perry, Horn used the name of George Shaw when sending the money. George Shaw, as more fully discussed below, was a name taken from a Los Angeles Times obituary.
"3. Turner utilized - After the murders, when Perry and Horn realized that their telephones may be subject to police surveillance, they utilized Thomas Turner, as an intermediary, to set up a time and place when contact needed to be made.
"4. Horn's Deposition - Horn denied knowing James Perry during a civil deposition taken in 1994.
"5. No Paper Trail - During a search of Horn's residence, the police obtained thousands of pages of text that was printed from certain cassettes, disks, and the hard dr
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