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Perry v. State12/10/1999
the particular tape came during the testimony of Horn's daughter, Tiffany, on the fifth day of trial. Tiffany confirmed that Horn had an answering machine in his apartment, that there were cassettes that went with the machine, and that he taped calls. The prosecutor showed her Exhibit 312, which was marked for identification, and asked if she had listened to that tape prior to trial. She responded affirmatively and stated that, although she recognized one of the voices as that of her father, she could not identify the other voice. No objection was made with respect to that part of Tiffany's testimony. Neither Exhibit 312 nor Exhibit 342 were offered into evidence at that time.
Exhibits 312 and 342 came into evidence the next day during the testimony of Detective Wittenberger. The detective identified Exhibit 342 as one of the micro-cassettes seized pursuant to the search warrant and Exhibit 312 as containing a copy of the conversation recorded at the end of Exhibit 342. Perry objected on the grounds of materiality and relevance. He indicated, and the court acknowledged, that he had objected to those tapes earlier, although we are unable to locate any reference to such an objection, but explained that his objection was based on the lack of testimony "as to the total qualities, the analysis of those items, as to their ability to portray accurately whatever may be recorded on them." In our earlier opinion, we treated that objection as being on the ground that "the quality of the sound reproduction was so poor that the tapes could not accurately present that which they purported to record." Perry , supra, 344 at 223, 686 A.2d at 283. The court overruled the objection without prejudice to Perry's renewing it if and when the State sought to play the tape for the jury.
That occurred on the tenth day of trial, during the testimony of Cynthia Turner, Thomas Turner's wife. When the prosecutor said that he intended to play Exhibit 312 and ask if Ms. Turner could recognize any of the voices, Perry renewed his objection on the grounds that (1) there had been no foundation laid as to the familiarity of the witness with any of the voices on the tape, and (2) the quality of the tape was such as to render any attempt to identify the voices unreliable. In support of the latter point, Perry noted that experts who had conducted a spectrographic analysis had been unable to make a voice identification. The court pointed out that the tapes were already in evidence, but it took a brief recess, listened to Exhibit 312 in chambers, and concluded that it was clear enough that someone familiar with the voices could possibly identify them. On that basis, the objection was overruled. The witness stated that she was familiar with Perry's voice. The tape was then played in court, following which Ms. Turner said that she recognized Perry's voice.
On the morning of the eleventh day of trial, counsel informed the court that, on his way home the previous evening, he realized for the first time - "the neurons connected" - that Exhibit 342 was made in violation of the Maryland wiretap law, and he renewed his objection to that exhibit and Exhibit 312 on that ground. He argued that the recording made by Horn constituted the interception of a wire communication, that it was without Perry's consent, and that, under Maryland law, with exceptions not relevant here, the interception of a wire communication without the consent of all parties to the conversation is unlawful. He urged that CJ ยง 10-405 made any evidence derived from an unlawful interception inadmissible, whether or not the call originated in Maryland. Acknowledging that two witnesses had already identified the voices on the tape, counsel urged, at a minimum, that no
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