Derry v. State

• Decision Date: 17 March 2000
• Docket Number: No. 94,94
• Citation: 358 Md. 325,748 A.2d 478
• Parties: John Stanley DERRY v. STATE of Maryland.
• Court: Maryland Court of Appeals

748 A.2d 478

358 Md. 325

John Stanley DERRY v. STATE of Maryland.

No. 94, Sept. Term, 1998.

Court of Appeals of Maryland.

March 17, 2000.

David B. Irwin (Joseph Murtha, Irwin Green & Dexter, L.L.P., on brief), Baltimore, for Petitioner.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.

RAKER, Judge.

In this case, we must decide whether the State possesses the authority to file an interlocutory appeal of a trial court's decision to suppress the tape-recording of a conversation where the court based its suppression upon a violation of § 10-411(c) of the Maryland Wiretapping and Electronic Surveillance Act.¹ We shall hold that the State enjoys no such right.

I.

A.

On June 12, 1978, the lifeless body of Mark Stephen Schwandtner was discovered in the Gunpowder River near Jones Road in Baltimore County. Exactly seventeen years and nine months later, on March 12, 1996, the Grand Jury for Baltimore County indicted Petitioner, John Derry, along with three co-defendants, on charges of murder, kidnaping and conspiracy to commit murder in connection with Schwandtner's apparent homicide. At the close of a suppression hearing held prior to trial, the Circuit Court for Baltimore County granted Petitioner's motion to exclude evidence of an audio-cassette recording of a February 4, 1996 conversation between himself and a police informant based upon the court's finding that the recording equipment used by the informant was never affixed with a State Police registration number pursuant to § 10-411(c).² The relevant facts adduced at the suppression hearing follow.

During 1995, the Federal Bureau of Investigation was using one Charles Wilhelm as a paid informant in a number of federal criminal investigations. In the course of those investigations, Wilhelm provided the F.B.I. with information implicating himself and Petitioner in a 1978 homicide in Baltimore County. The federal agents contacted Detective Michael Downes, a Baltimore County Police Officer assigned to work with the F.B.I., and apprised him of the information they had received. In an effort to obtain more information about the homicide, law enforcement officials decided to intercept and record certain conversations between Derry and Wilhelm. Accordingly, on December 22, 1995, Baltimore County Police executed a written agreement with Wilhelm in which the latter agreed to participate in and assist with the investigation of the 1978 homicide.

Sometime before Wilhelm conducted the interceptions, Detective Downes contacted the Baltimore County State's Attorney's Office to ensure compliance with the Maryland wiretap provisions. He was advised that any recording equipment to be used in connection with the investigation should be registered with the Maryland State Police. To this end, he contacted Detective Jack Cover, a member of the Baltimore County Police Department's Intelligence Unit and the officer responsible for completing the registration of the Department's wiretapping and electronic surveillance equipment pursuant to § 10-411. Cover told Downes that he "should get the serial numbers, model numbers off the equipment to be used and give it to him and have him register the equipment, as is his duty, with the State Police."

Although the F.B.I. owned the recording equipment that was to be used to investigate Petitioner's role in the 1978 homicide, it was Wilhelm who retained possession of the individual devices, since he had been using them in connection with his participation in the federal investigations. Some time in mid-January, 1996, the F.B.I. agreed to provide the manufacturers' serial numbers needed to identify and register the individual devices with the Maryland State Police. On January 15, 1996, the F.B.I. informed the Baltimore County Police Department of the serial numbers associated with the electronic recording equipment Wilhelm was using. Detective Downes immediately contacted Detective Cover and asked him to register four pieces of equipment: "a large recorder,... a Panasonic video camera and the ensuing recording device, and ... a small mini-cassette, Panasonic, that Mr. Wilhelm had on his person."³ That same day, Detective Cover told Detective Downes that the equipment had been registered, effective January 15, 1996.

At some point during the ensuing weeks, F.B.I. technicians installed a video camera and VCR recorder, two of the recording devices registered by Detective Cover, in the back of a sub shop owned by Wilhelm in order that he might intercept and record a meeting arranged with Derry for February 3, 1996. According to plan, Wilhelm video-taped that meeting himself, by means of a remote control device that he kept on his person. The following day, Wilhelm tape recorded a second conversation with Derry during a get-together in Wilhelm's home. It was during that conversation, on February 4, 1996, that Petitioner allegedly confessed to his involvement in the 1978 murder.⁴ The device used by Wilhelm to intercept and record this crucial communication was the Panasonic Recorder, Model Rn 36, that Wilhelm had kept hidden in his pocket during the conversation. Again, the micro-cassette recorder used on February 4th to record Petitioner's admissions had been registered with the State Police as of that date. Petitioner moved to suppress, contending that the issued serial number for the registered device had never been "affixed or indicated" on the device in question within the meaning of § 10-411(c).⁵

B.

The trial court granted Petitioner's motion to suppress the February 4, 1996 recording, ruling as follows:

Obviously, to me, sure, there was a serial number on the equipment. It was the manufacturer's serial number. It is not the number contemplated by the statute, and that, I think, is what turns the trick in favor of the defendant.

There is no way that that equipment was ever marked with the Maryland State Police issued number BA1786. It was never affixed to the item of equipment, nor as far as I know, any of the other equipment.

So it seems to me it is absolutely fatal to the State's introduction of this tape. It doesn't come in.

It passes on every other standard, every other question we examined it on, but it doesn't come in because it was not registered pursuant to 10-411, Sub-section C, end of case.[⁶]

The State filed an interlocutory appeal to the Court of Special Appeals, invoking § 12-302(c)(3) as its authority to do so.⁷ Whether the State had the right to file such an appeal under Maryland law was not argued by either party before the intermediate appellate court, nor did the court, in its unreported opinion, address the issue in any other way than to acknowledge that the State's appeal was interlocutory, along with a footnote citing to and quoting § 12-302(c)(3). The Court of Special Appeals held that the resolution of the State's appeal of the trial court's grant of suppression was controlled by Battaglia v. State, 119 Md.App. 349, 705 A.2d 36 (1998), a decision unavailable to the Circuit Court at the time of its ruling.⁸ The Battaglia court had determined that

the registration requirement outlined in § 10-411, as the State contends, is a provision intended to facilitate administrative goals. We find nothing within the legislative history or the language of the Act to indicate that the General Assembly intended violations of this provision to result in the suppression of evidence. Therefore, the State was not required to prove that the device was registered, and the trial court did not err in admitting the evidence. It goes without saying that every device obtained to intercept and record wire, oral, and electronic communications is to be registered pursuant to Maryland law. Whether the device was registered, however, does not affect the admission of the recorded communication as evidence. Admissibility is governed by § 10-408. Thus, because the registration requirement does not affect the admission of evidence, the party seeking to introduce the recording is not required to prove the device is registered pursuant to § 10-411 before having the recording admitted into evidence.

Id. at 356, 705 A.2d at 39-40.

In direct reliance on Battaglia, the Court of Special Appeals rejected Petitioner's claim that the cassette recording of his February 4, 1996 conversation with Wilhelm was suppressed correctly by the trial court based upon the State's failure to comply with the affixation requirement of § 10-411(c). Accordingly, the court reversed the trial court's judgment, ruling that "[u]nder Battaglia, the recording of [Derry]'s conversation is admissible." We granted Derry's petition for certiorari, which presented the following question:

Did the suppression court correctly grant Derry's motion to suppress a tape recorded conversation based on its finding that the device used for the interception and recording was not properly registered in compliance with Section 10-411 of the Courts and Judicial Proceedings Article?

After oral argument before this Court and subsequent to our initial conferencing of the suppression issue upon which we granted certiorari, it became clear that there was a genuine issue as to whether the State is authorized to appeal the suppression of an intercepted communication at an interlocutory stage of the trial proceedings where the suppression was ordered pursuant to the Maryland Wiretapping and Electronic Surveillance Act (hereinafter referred to by its full name, or "the Wiretap Act," "the Maryland Act," or "the Act"). That this issue had not yet been raised or argued during judicial review of the present case was of no weight given that the existence vel non of the State's right of appeal directly involves the subject matter jurisdiction of the Court of Special Appeals in hearing and deciding this case in the first place. As we stated in Stewart v. State,...