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Perry v. State12/10/1999
ent performance, for it concluded that, even if it were, the error was not so serious as to deprive Perry of a fair trial. In that regard, the court declared that the evidence presented by the State at trial was "overwhelming," and that, even without Exhibit 312, Perry would have been convicted. From the content of the recorded message and from the fact that the tape did not appear to record the entire conversation, the court doubted that the exhibit captured the 22-second conversation that occurred on the morning of the murders. The fact that the conversation recorded on the tape lasted 22 seconds was, in the court's view, merely coincidental. The significance of the exhibit was limited, therefore, to simply proving that Horn and Perry were in contact with each other by telephone. There was "an abundance of other evidence" to that effect, however, much of which the court recounted. Its ultimate Conclusion was that "even if the 22-second tape had been suppressed, there is not a reasonable probability or a substantial possibility, that the verdict would have been different."
THE ISSUES
Regrettably, the issues articulated by Perry are, to some extent, based on incorrect assumptions or are incomplete and, to that extent, cannot be fairly resolved precisely as presented. We have noted, for example, the assumption by all parties and the post-conviction court that no pre-trial motion to suppress the Horn tape was made and the articulation of the issues on that premise. Throughout, the issue of the 22-second tape has often been framed with reference only to State's Exhibit 312, when it necessarily involves as well Exhibit 342 and the testimony of four witnesses who identified the voices on that tape. Perry has assumed in this appeal that the post-conviction court held that the issue of admissibility of the tape had been finally litigated, which is not the case. The real complaints made by Perry are, however, evident.
The issues presented by those complaints, as we see them, are as follows:
(1) Did the post-conviction court err in concluding that the issue of whether the trial court abused its discretion in failing to entertain the mid-trial motion to suppress Exhibits 312 and 342 had been finally litigated;
(2) Were Exhibits 312 and 342 and the testimony relating to them admissible:
(a) Did the post-conviction court err in holding that, as a co-conspirator, Perry waived his right to privacy and, for that reason, could not avail himself of the exclusionary rule embodied in the wiretap law;
(b) Did the court err in holding that willfulness on the part of Horn was required in order for the intercepted communication to be suppressible;
(c) Did Perry consent to having the conversation recorded;
(3) If Exhibits 312 and 342 and the testimony relating to them were inadmissible under the wiretap law, what test of harmlessness or prejudice should be applied and was that test satisfied;
(4) If the exhibits and testimony were inadmissible and not harmless, did Perry nonetheless waive his objection to them by failing to make it timely; and
(5) If the answer to Question (4) is "yes," was the assistance of counsel Constitutionally ineffective, for purposes of Article 21 of the Maryland Declaration of Rights and the Sixth Amendment to the United States Constitution, under the standards enunciated in Strickland v. Washington and Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993)?
DISCUSSION
A. What Was Finally Litigated?
Perry contends in his brief that the post-conviction court erred "in concluding that the issue of the 2
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