Perry v. State

• Decision Date: 01 September 1995
• Docket Number: No. 119,119
• Citation: 686 A.2d 274,344 Md. 204
• Parties: James Edward PERRY v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 204

344 Md. 204

686 A.2d 274

James Edward PERRY v. STATE of Maryland.

No. 119, Sept. Term, 1995.

Court of Appeals of Maryland.

Dec. 16, 1996.

Nancy S. Forster, Assistant Public Defender (Stephen E. Harris, Public Defender; Claudia A. Cortese, Assistant Public Defender, on brief), Baltimore, for Appellant.

Ann N. Bosse, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Appellee.

Argued before MURPHY, ^* C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

RODOWSKY, Judge.

This is a direct appeal from three sentences of death and a life sentence for conspiracy to commit murder. Pursuant to an agreement or contract with one Lawrence Horn (Horn), the appellant, James Edward Perry (Perry), murdered Horn's former wife, the Horns' disabled son, and the son's nurse. As explained below, we shall affirm the judgments of conviction, but this affirmance is without prejudice to Perry's raising on post conviction review the asserted error discussed in Part II, infra, involving the claimed inadmissibility of a recorded telephone conversation.

Horn's ex-wife, Mildred Horn, his son, a severely handicapped eight year old, Trevor Horn, and Trevor's nurse, Janice Saunders, were murdered during the early morning hours of March 3, 1993, in Mildred Horn's home in Rockville, Maryland. Horn arranged for the murders because, upon the deaths of Mildred and Trevor Horn, over $1 million, tax free, would be distributed to him from a trust for the benefit of his son.

On this appeal Perry does not challenge the sufficiency of the evidence to sustain the guilty verdicts. The State proved that Horn, who lived in Los Angeles, became acquainted with Perry, who lived in Detroit, through Horn's cousin, Thomas Turner. Much of the State's case was developed through telephone calls between Perry and Horn who frequently communicated with one another by using a telephone credit card issued in a false name to Horn's cousin, Marcia Webb, who had obtained the card for Horn at his request.

To augment the foregoing outline we set forth below from the State's brief the statement of facts to which Perry took no exception in his reply.

"Shortly after midnight on March 3, 1993, a man identifying himself as James Perry registered at the Days Inn at 16001 Shady Grove Road in Rockville, Maryland. The man listed his address as being 13403 Glenfield and the tag number of his car as being EGR 643. Because he paid by cash, the man was required to provide identification; he produced a Michigan driver's license. During closing argument, defense counsel acknowledged that the driver's license presented was Perry's--that it had his picture on it.

"Prior to December of 1993, Appellant Perry lived at 13403 Glenfield in Detroit, Michigan, and one of the telephone numbers at that address was 313-372-7434. As of March of 1993, Michigan license tag number EGR 643 was registered to Betty Jo Riggs of Lansing, Michigan, who had no knowledge of James Perry.

"At 2:00 a.m. on March 3, 1993, Janice Saunders made various notations about Trevor Horn's condition in connection with her duties as Trevor's nurse. Trevor Horn, who was eight years old at the time, was under 24-hour nursing care due to injuries suffered at Children's Hospital when he was much younger.

"Trevor, who had not been expected to survive after what was referred to at trial as 'the accident' at Children's Hospital, had 'turned everything around' after being sent home. Although he was unable to walk, Trevor could crawl on his stomach and lift lightweight items. Although he suffered from cerebral palsy and extensive brain damage, Trevor enjoyed playing certain games, interacted with other students at school, and was able to say some words. Trevor, who had a tracheostomy, breathed primarily through a trach tube, and he received oxygen and humidification via tubing that ran from machines to a collar that fitted loosely around his neck. Trevor used a portable oxygen system when he went to school. Trevor's ability to make noises and words indicated that air was passing beyond his trach tube.

"At approximately 2:30 a.m. on March 3, 1993, Tiffany Horn, Trevor's older sister, spoke to her mother, Mildred Horn, by telephone from her dorm room at college, after mistakenly dialing her mother while attempting to contact her boyfriend. Just the night before, after 10:30 p.m. on March 1, Tiffany Horn had spoken to her father, Lawrence Horn, who lived in Los Angeles, California. During that conversation, Lawrence Horn had asked constant questions about when Mildred and Tamielle [Trevor's twin sister] would be at home. As of 2:03 a.m. (eastern standard time) on March 3, 1993, Lawrence Horn was videotaping his L.A. apartment, including the television, which was then on.

"At 5:12 a.m. on March 3, 1993, a twenty-two second call was made from a pay phone at the Denny's restaurant on Quince Orchard Boulevard in Gaithersburg, Maryland to Horn's residence in Los Angeles. The number called in L.A. was 213-874-4415, the number of Lawrence Horn's telephone--not that of his girlfriend, Shira Bogan, who had her own telephone number at the apartment she shared with Horn.

"Around 6:00 a.m. on March 3, 1993, George Murphy, who lived in a townhouse that was about five minutes walking distance and two minutes driving distance from North Gate Drive, saw a van with a handicap tag parked in a reserved parking space on Rosetree Court. The van seen by George Murphy belonged to Mildred Horn. At 6:30 a.m. on March 3, 1993, James Perry checked out of his room at the Days Inn in Rockville.

"At approximately 7:15 a.m. on March 3, 1993, Vivian Rice, as was her routine prior to going to work each morning, went to her sister Mildred Horn's house on North Gate Drive. Ms. Rice became alarmed when she saw the garage door open and heard Trevor's apnea monitor sounding. The police were alerted, and once inside they discovered the dead bodies of Mildred Horn, Trevor Horn, and Janice Saunders. Mildred Horn had been shot three times in the head; one of those shots had gone through the eye and then through the brain. Janice Saunders had been shot twice, and she too had been shot in the eye. Trevor Horn had died of asphyxia, and the medical examiner initially believed that Trevor's death had been caused by the turning off of his medical equipment. Upon receiving more information about Trevor's health and related circumstances, the medical examiner reached a different assessment--that Trevor's air supply had been cut off by suffocation. When Trevor's body was found, there was a piece of plant material on his cheek. This circumstance was described as 'very unusual' by one of the nurses who provided care for Trevor.

"Investigation of the Horn residence once the bodies were discovered disclosed that only a few areas of the home had been disturbed: a rug and cocktail table in the living room had been moved; cushions on a sofa in the family room had been placed on the floor; the contents of Mildred Horn's purse had been dumped on the floor of the first floor powder room; a rug in a second floor bathroom had been kicked to the side; a bookcase in Tiffany Horn's bedroom had been toppled; Mildred Horn's bedroom appeared to have been 'slightly tossed'; the screen of a basement window had been pulled away and there were pry marks on the window frame; and french doors leading out to a deck had puncture marks in their weather stripping. But for a missing Gucci watch, none of Mildred Horn's jewelry, which included a 5-carat diamond tennis bracelet lying on the counter in her bathroom, had been taken, and neither Janice Saunders' purse nor other personal possessions, including jewelry, had been disturbed. There were, however, some credit and check-cashing cards missing from Mildred Horn's wallet. Some of those cards were found by a jogger on Norbeck Road during the morning of March 3, 1993, and more were found in the same general vicinity once the jogger's discovery was reported to the police.

"At 11:50 a.m. (eastern standard time) on March 3, 1993, a one-minute call was placed from a pay phone at the U.S. Post Office on Wilcox Avenue in Los Angeles, California to the Days Inn in Rockville, Maryland. This particular call was charged to a telephone calling card issued to Kamella McKinney.

"Kamella McKinney was the false name used by Marsha Webb, Lawrence Horn's cousin, to obtain telephone service from Pacific Bell after having had service in her own name cut off due to inability to pay her bill. The calling card was issued in February of 1992, and it was first used on April 3, 1992 and last used on December 27, 1993. According to Webb, she obtained the calling card for the McKinney account because Lawrence Horn asked her to do so. Horn's reasoning was that he would be traveling back and forth to Rockville and did not want the bills coming to his home address.

"Once Webb got the McKinney calling card, she used it only a few times at the outset, and she gave the card number only to Lawrence Horn. Webb did not know anyone by the name of James Perry. State's Exhibit 682A reflects that the McKinney calling card was used to make 70 calls from Detroit to Lawrence Horn's residence; 66 calls from Los Angeles to James Perry's residence; 6 calls from phones in Los Angeles or elsewhere in California to Francel's bar in Detroit, an establishment that James Perry frequented; 13 calls from Los Angeles to Maryland while James Perry was registered at a Maryland hotel; 1 call from Maryland to James Perry's residence while Lawrence Horn was registered at a Maryland hotel; and 1 call from Maryland to Lawrence Horn's residence while James Perry was registered at a Maryland hotel. State's Exhibit 682 reflects also that the McKinney calling card was used to make a call from a pay phone at the Calverton Shopping Center in Beltsville, Maryland to Francel's bar in Detroit on July 20, 1993 at 8:57 p.m. At the time in...