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Perry v. State12/10/1999
further attempt be made to identify the voices. He indicated that, as alternative remedies, the jury be instructed to disregard the identifying testimony of Tiffany Horn and Cynthia Turner, that the court declare a mistrial, and, if the tapes had been presented to the grand jury, that the indictment be dismissed.
The State responded that, because Horn and Perry were co-conspirators, the wiretap law did not render the tape inadmissible -that even if Horn's act of recording the conversation was illegal, "Mr. Perry acting in concert with Mr. Horn is in essence a co-conspirator bound by his acts," and that it was not the legislative intent for the statute to cover that situation. The prosecutor asserted, without challenge, that the tape had not been played to the grand jury. The court deferred ruling on the motion until the Conclusion of Thomas Turner's testimony, to give the State an additional opportunity to consider the matter. At that time, the court regarded the belated motion as presenting three issues: (1) whether the tape was admissible under the wiretap law; (2) who had the burden of establishing whether the taping was with mutual consent; and (3) whether the objection was waived. Ultimately, after listening to further argument, the court found that the objection was waived. The finding of waiver had a dual basis: counsel's failure to move to suppress the tape before trial, as required by Maryland Rule 4-252; and counsel's failure to object when the tape was offered into evidence the previous day. At no point in presenting and arguing his motion did Perry call the court's attention to CJ ยง 10-408(i), permitting a motion to suppress an unlawfully intercepted communication to be made during trial, and the court made no mention of that provision.
Following the court's ruling, the tape was played in court three more times. It was played first for Thomas Turner, who identified the voices as being those of Horn and Perry. Detective Wittenberger was recalled, and he, too, confirmed that he had listened to the tape and identified the voices as those of Horn and Perry. During the State's closing argument, the tape was played twice. In his principal closing argument, the prosecutor indicated that he did not know when the conversation took place, other than that it occurred between the middle of 1992 and March 12, 1993, and he invited the jury to listen and determine for itself what the parties were saying. In his rebuttal argument, he asked the jury to consider whether the tape was of the conversation that occurred at 5:12 a.m. on March 3 and whether the noise referred to by Perry was the noise emanating from Trevor's breathing monitor. The tape was played again for the jury. The prosecutor stressed that Perry had told the F.B.I., upon his arrest, that he did not know Lawrence Horn and that Horn had denied ever speaking with Perry.
B. The Appeal
On appeal, Perry pursued his claim that the tape was made in violation of the Maryland wiretap law and was inadmissible for that reason. He also took issue with the court's ruling that his objection had been waived. Although acknowledging that Maryland Rule 4-252 requires a motion raising the issue of an unlawful interception of a wire or oral communication to be made within five days after the interception is disclosed in discovery and that, ordinarily, the matter is waived if not so raised, Perry urged that the court retains discretion to consider a suppression motion at trial, and that a waiver under the rule is not absolute. In the plainly mistaken belief that the tapes had not yet been admitted into evidence when his wiretap objection was made, he also took exception to the court's finding of waiver based on his failure to object
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