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Perry v. State12/10/1999
when the tape was played for Cynthia Turner and she identified his voice. He argued that the court could have ruled the tapes inadmissible, precluded further mention of them, and instructed the jury to disregard Cynthia Turner's testimony regarding the voices on the tape. His point, as we perceived it, was that the trial court abused its discretion by failing to find good cause to excuse the waiver. Alternatively, he contended that, if we were to determine that the objection was not properly preserved, we should find that trial counsel's performance was Constitutionally inadequate under Strickland v. Washington, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
Perry never argued to us the effect of § 10-408(i). As we indicated, " efore this Court, as well as before the circuit court, the arguments for finding waiver, and for relieving from waiver, have revolved around Md. Rule 4-252(a)." Perry v. State, supra, 344 Md. at 228, 686 A.2d at 285. With respect to that issue, we noted that, had a pre-trial motion to suppress the Horn tape been made, the State would have had 15 days to respond to it. The State had no reason or occasion to focus on the complex factual and legal issues that might be generated by such a motion - issues that might require additional evidence. Because, as to suppression issues, the parties are ordinarily bound by the record made at a suppression hearing, we concluded that, in the interest of fairness, "the parties should be given substantially the same opportunity to develop a factual record, and legal arguments based thereon, in presenting and responding to Perry's belated suppression motion that they would have enjoyed in presenting and responding to a pretrial suppression motion." Id. at 226, 686 A.2d at 285. For that reason, we held that the trial court did not abuse its discretion in refusing to interrupt the trial to conduct a belated suppression hearing for which neither party had an adequate opportunity to prepare. For like reasons, we rejected Perry's invitation to decide his claim of ineffective assistance of counsel in the direct appeal. The net result of those Conclusions was our holding that Perry's claim that State's Exhibit 312 (and State's Exhibit 342) were improperly admitted was "not before us on direct appeal," but that our ruling and our affirmance of the judgment of conviction was "without prejudice to Perry's raising on post conviction review his contention that Exhibit 312 [and 342] should have been excluded under the Maryland wiretap statute." Id. at 228, 686 A.2d at 285.
Although Perry never noted the existence, and therefore never argued the effect, of § 10-408(i), we pointed out that, under that statute, a motion to suppress a communication intercepted in violation of the wiretap law "may be made before or during the trial." Id. at 229, 686 A.2d at 286 (emphasis added). We concluded that " t was unnecessary for Perry to have referred the trial court specifically to CJ § 10-408(i) in order to preserve his argument that the trial court should have considered his mid-trial motion to suppress." Id. We assumed, arguendo, that § 10-408(i) conferred a procedural right to seek suppression during the trial, but, for the reasons already noted in our Discussion of Rule 4-252, we were unable to determine from the existing record whether a hearing on a mid-trial motion "would have resulted in the suppression" of Exhibits 312 and 342. Id. Accordingly, we decided that we would not address the effect of § 10-408(i) in the direct appeal but made clear that that ruling "likewise, is without prejudice to Perry's relying on CJ § 10-408(i) in a post conviction proceeding." Id. With the caveats noted, and finding no other reversible error, we affirmed the judgments.
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