Perry v. State

• Decision Date: 07 November 2002
• Docket Number: No. 0667,0667
• Citation: 822 A.2d 434,150 Md. App. 403
• Parties: James Edward PERRY, v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

822 A.2d 434

150 Md. App. 403

James Edward PERRY, v. STATE of Maryland.

No. 0667, Sept. Term, 2001.

Court of Special Appeals of Maryland.

November 7, 2002.

Reconsideration Denied April 22, 2003.

Claudia A. Cortese, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Douglas Gansler, State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Argued before MURPHY, C.J., CHARLES E. MOYLAN, JR. (retired, specially assigned) RAYMOND G. THIEME, JR. (retired, specially assigned), JJ. CHARLES E. MOYLAN, JR., Judge, Retired, Specially Assigned.

The appellant, James Perry, stands convicted, on four separate charges, of as sordid a series of cold-blooded executions as is to be found in the annals of Maryland crime. He was a "hit man" out of Detroit, Michigan, with no prior involvement with either the State of Maryland or with the persons he was hired to come into Maryland to murder. He killed, as he had been hired to do, a severely handicapped, quadriplegic eight-year-old boy along with the boy's mother for a combined price of $6,000. The third murder was randomly gratuitous. An unanticipated witness to the planned murders was in the wrong place at the wrong time and had to be eliminated as an inconvenient nuisance.

For his initial convictions in the Circuit Court for Montgomery County on October 12, 1995, for three counts of murder in the first degree and one count of conspiracy to commit murder, the appellant received three sentences of death for the murders and a sentence of life imprisonment for the conspiracy. On the initial appeal, the Court of Appeals in Perry v. State, 344 Md. 204, 686 A.2d 274 (1996), affirmed both the convictions and the sentences, without prejudice, however, to the appellant's right to raise on post conviction petition his claim that he had been denied the effective assistance of counsel.

Following a three-day hearing before Judge S. Michael Pincus in January, 1999, the appellant's petition for post conviction relief was denied. On December 10, 1999, however, a 4-3 majority of the Court of Appeals reversed the denial of post conviction relief and granted the appellant a new trial. Perry v. State, 357 Md. 37, 741 A.2d 1162 (1999).

Following eight separate days of motions hearings between September, 2000, and March, 2001, a 27-day trial began on March 4, 2001, before a Montgomery County jury, meticulously presided over by Judge Martha G. Kavanaugh. Both the investigative effort and the prosecutorial effort in this case were masterful. On April 19, the jury convicted the appellant of three counts of murder in the first degree and one count of conspiracy to commit murder.

Following a three-day sentencing hearing before the same jury, the jury declined to impose the death sentence because it was not persuaded beyond a reasonable doubt that the appellant had been the principal in the first degree. The jury sentenced the appellant to three sentences of life imprisonment without the possibility of parole for the murders and a sentence of imprisonment for life for the conspiracy.

On this appeal, the appellant raises four questions:

1. Did Judge Kavanaugh err in giving a supplemental instruction to the jury on aiding and abetting in response to a jury request after earlier having ruled that the facts did not support such an instruction?

2. Did Judge Kavanaugh err in admitting into evidence the fact that the appellant refused to sign the fingerprint card made on August 22, 1994?

3. Did Judge Kavanaugh commit plain error when she permitted the prosecution in closing argument to comment impermissibly on the appellant's failure to testify?

4. Was the appellant denied his right to allocution?

A reasonably full recital of the factual background is appropriate because it will have a bearing on the appellant's first and third contentions.

The Crime Scene of March 3, 1993

On March 3, 1993, at approximately 7:15 a.m., Vivian Rice drove from her home at 13616 North Gate Drive in Silver Spring to the nearby home of her sister, Mildred Horn, at 13502 North Gate Drive. Mildred was a flight attendant for American Airlines and was scheduled that day for an early flight out of Dulles Airport. As was their custom when Mildred was on flight duty, Ms. Rice had had Mildred's daughter, Tamielle Horn, spend the preceding night with her. Ms. Rice would on such occasions regularly go to Mildred's house in the morning to check on Mildred's disabled son, Trevor Horn.¹ Trevor had a number of problems arising from his premature birth. He had required twenty-four hour nursing care as a result of a case of medical malpractice that occurred when he was approximately thirteen months old, which resulted in severe brain damage and cerebral palsy.

When Ms. Rice arrived at Mildred's residence on March 3, she immediately noticed several things out of place. She noticed that the garage door was open; normally it would not have been. She could see that the door leading from the garage into the family room was also open. As soon as Ms. Rice got out of her car, she heard "the piercing sound of Trevor's apnea monitor."² The alarm would sound "[w]hen there was no breath sound transmitted to the machine."

Ms. Rice got back in her car, drove home, and told Tamielle to call 911. She then went to a neighboring house and asked Deborah Falls to accompany her to Mildred's house. Ms. Falls and Ms. Rice then went back together and tried to open the front door. The door would not open all the way, because something was blocking it. When Ms. Rice looked inside, she saw her sister's body "with half of her face blown off." When Ms. Falls looked inside, she also saw Mildred's body. Neither woman entered the house.

The police arrived shortly thereafter and found the bodies of Mildred; Trevor; and Trevor's nurse, Janice Saunders. Mildred's body was found inside the front doorway, Trevor was in his bed, and Ms. Saunders's body was also found in Trevor's bedroom. The medical examiner advised that both Mildred and Ms. Saunders had died of gunshot wounds to the head, while Trevor had been suffocated. It was undisputed that the cause of death in each of the three cases was homicide.

Mildred Horn had been shot three times in the head, one shot going through the eye and into the brain. Janice Saunders had been shot twice, one of those shots also going through the eye. The reliance of that modus operandi would take on significance later in the investigation.

The house had been ransacked, but in a cursory way that gave the appearance of having been staged. A subsequent inventory revealed that only a few items were missing. Among those were check cashing cards and credit cards. No items of value, such as jewelry or video and stereo equipment, were missing. Mildred Horn's five-carat diamond tennis bracelet, lying openly on a bathroom counter, strangely was not taken, nor was Janice Saunders's purse or jewelry. Theft seemed to have been an unlikely motive for the crimes. Mildred's van was also missing, although it was recovered by police on 14322 Rose Tree Court in Silver Spring a short time later. The police found two possible points of entry: 1) the basement window and 2) a set of French doors at the rear of the first floor.

Suspicion Focuses on The Father and Ex-Husband

Suspicion focused almost immediately on Lawrence Horn, then living in Los Angeles, California. Horn was the ex-husband of Mildred and the father of Trevor and Tamielle. Mildred and Lawrence Horn also had an older daughter, Tiffani, who was living in a Howard University dormitory on the night of the murders.

Although it is unclear from the record when Lawrence and Mildred had been married, it was at some time in the early 1970s prior to Tiffani's birth in 1974. The original marital residence had been Detroit. In 1978, Mildred moved with Tiffani to Maryland, although she did not at that time seek a divorce from Lawrence. Mildred and Lawrence continued to see each other, and Mildred became pregnant in 1984 with Trevor and Tamielle. The couple's relationship apparently broke down during that pregnancy. The twins were born prematurely. Trevor had the most difficulties and was not released from the hospital for approximately six months. Lawrence showed little interest in Trevor, visiting him only three times during his life.

Tiffani described her father as controlling and manipulative in his relationship with Mildred. He was, as of March, 1993, $16,000 in arrears in child support. In fact, Lawrence Horn was not allowed into his ex-wife's house, and communication was conducted primarily through the court system.

A Strong Financial Motive

Lawrence Horn had a financial motive to wish his son and his ex-wife dead. Trevor had suffered severe brain damage and cerebral palsy as the result of the failed medical procedure that occurred when he was thirteen months old. Mildred Horn had sued the hospital as Trevor's next friend, and a settlement was reached. The attorney for Trevor's estate testified to the terms of the settlement. The gross amount of the settlement was $2,750,000. "There was a provision for attorneys' fees. There was a provision for $350,000.00 to pay medical bills. There was $250,000.00 awarded to [Mildred Horn and] $125,000.00 to [Lawrence] Horn." Lawrence Horn had complained to both his daughter, Tiffani, and to his girlfriend, Shira Bogan, about what he considered to be his inappropriately small share of the settlement. A total of $1,100,000 was held in trust for Trevor, to be paid to him when he reached the age of thirteen.

Lawrence Horn's mother, Pauline, testified to a $65,000 loan she had made to Lawrence to assist him in paying the "substantial legal fees" he had incurred in "fighting the divorce and custody battle" with Mildred Horn.

A further financial problem had been looming on the horizon as insurance coverage...