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Perry v. State12/10/1999
2-second tape had been finally litigated." In support of that proposition, he calls attention to the statements in our earlier opinion that "Perry's contention that Exhibit 312 was improperly admitted and should have been suppressed is not before us on direct appeal" and that our affirmance of the judgments of conviction was without prejudice to Perry's raising that issue in a post-conviction proceeding. Perry, supra, 344 Md. at 228, 686 A.2d at 285.
If, indeed, the post-conviction court had held that the issue of admissibility of the exhibits and testimony had been finally litigated, Perry would be correct in his assessment of that ruling, but that is not what the post-conviction court held. Unfortunately, the post-conviction court looked at the complaint made by Perry in too narrow a fashion. In his petition for post-conviction relief, Perry noted the mid-trial motion to suppress and its denial by the court and complained that " he trial Judge incorrectly ruled that because the tape had not been the subject of a pretrial suppression motion, that all rights to suppress it were waived by the Petitioner. That ruling was incorrect and highly prejudicial to the Petitioner."
Although that assertion embraced the whole issue of waiver, the post-conviction court seemed to interpret it as merely an attack on whether the trial court abused its discretion in failing to interrupt the trial to entertain the belated motion to suppress.
The relevant statement, appearing on page 15 of the post-conviction court's Statement of Reasons was:
"Petitioner argues that the trial Judge's refusal to entertain the suppression of the tape was highly prejudicial to the Petitioner and an abuse of discretion by the court. The issue was raised in the direct appeal and was decided against petitioner's position." (Emphasis added).
In the direct appeal, we noted the practical problems that would have been encountered had the trial court suspended the trial to hold a suppression hearing, and we held, unequivocally, that " or this reason, the trial court acted well within its discretion in refusing to interrupt the trial in order to conduct a belated suppression hearing for which neither party had the opportunity adequately to prepare." Perry, supra, 344 Md. at 226, 686 A.2d at 285. The precise ruling by the post-conviction court as to what was finally litigated, though not fully responsive to Perry's claim, was correct. More important, because that court did what we directed it to do - hold a suppression hearing itself and rule on admissibility - the fact that the ruling relating to the trial court's action did not fully address Perry's complaint was of no prejudice to him. By holding that suppression hearing and ruling on the merits of Perry's claim that the evidence should have been suppressed, the post-conviction court clearly did not treat the suppression issue as having been finally litigated.
B. Admissibility
(1) Co-Conspiracy Defense
At the post-conviction hearing, the State argued, according to the court, "that the recording is admissible under Maryland law because Horn and Perry were co-conspirators" - that "the recording would be admissible against Horn because he made it" and would likewise "be admissible against Perry because Perry was his co-conspirator and the recording was an act done in furtherance of the conspiracy." The court announced that it "agrees with this argument." Citing United States v. Underhill, supra, 813 F.2d 105, the court concluded 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
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