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Perry v. State12/10/1999
C. The Post-Conviction Case
In the post-conviction case, Perry presented his complaint about the admission of Exhibits 312 and 342 in two contexts - as trial error and as an example of the ineffective assistance of counsel. His trial error allegation dealt both with the admissibility of the tapes and the trial court's ruling that his objection to those tapes was waived. The alternative allegation was that trial counsel was ineffective in failing (1) to file a pre-trial suppression motion, and (2) to object to Exhibit 312 (and presumably Exhibit 342 and the testimony relating to those exhibits as well) in a timely manner.
The court dealt with most of the issues as presented by Perry in his petition although, as we shall explain, it treated the waiver issue narrowly, focusing only on whether the trial court abused its discretion in declining to entertain the mid-trial motion and concluding that that issue had been raised and finally litigated in Perry's direct appeal. The court noted that it had nonetheless held a suppression hearing to determine the admissibility of the exhibits and, reserving momentarily on the substantive issue, rejected Perry's contention that, if the exhibits were inadmissible, the court must apply the Dorsey v. State harmless error standard. That standard, it held, was inappropriate in a post-conviction proceeding. Rather, the court said that it had held a suppression hearing "to determine whether an error was committed by trial counsel sufficient to support a claim of ineffective assistance of counsel under the guidelines of Strickland and Oken [v. State, 343 Md. 256, 681 A.2d 30, cert. denied, 519 U.S. 1079, 117 S. Ct. 742, 136 L. Ed. 2d 681 (1997)]." The court thus treated the merits of Perry's claim regarding the admission of the two exhibits solely in the context of his assertion that counsel was ineffective in failing to file a pre-trial suppression motion and to make a timely objection at trial.
On that issue, the court made three basic findings. First, relying principally on United States v. Underhill, 813 F.2d 105 (6th Cir. 1987), it concluded that Perry and Horn were co-conspirators and that, "as a member of the conspiracy with Horn, Perry is bound by the acts of his co-conspirator and may be held to have waived his right of privacy in communications made in furtherance of the purposes of the conspiracy." The "general purpose and legislative intent" of the Maryland wiretap law, it said, "would be violated if Perry were able to suppress the tapes." Second, the court found by implication from the fact that " he relationship between Lawrence Horn and James Perry was covered in layers of secrecy and deception," that the recording was made inadvertently and therefore not willfully. It concluded, from the "extraordinary lengths" they went to hide their relationship, that " o suggest that Horn would `willfully' record a conversation between himself and Perry defies logical explanation." Thus, it found, for that reason as well, that the wiretap law "would not apply." Upon those findings, the court denied the motion to suppress, determining that "Exhibit 312, even if objected to in a timely fashion, would have been admissible during the trial in this case."
The court then turned, alternatively, to whether, if it had found Exhibit 312 to be inadmissible, trial counsel's failure to object timely to its admission could be regarded as unreasonable. Though acknowledging that counsel's failure to file a timely suppression motion was not due to strategic considerations but rather to their unawareness of the possible application of the Maryland wiretap law, the court nonetheless declined to determine whether that failure constituted defici
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