Perry v. State

• Decision Date: 10 December 1999
• Docket Number: No. 23,23
• Citation: 741 A.2d 1162,357 Md. 37
• Parties: James Edward PERRY v. STATE of Maryland.
• Court: Maryland Court of Appeals

741 A.2d 1162

357 Md. 37

James Edward PERRY v. STATE of Maryland.

No. 23, Sept. Term, 1999.

Court of Appeals of Maryland.

December 10, 1999.

R. Rene Dupuy, Washington, DC (William Jordan Temple, Alexandria, VA, on brief), for appellant.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen. of Maryland, on brief), Baltimore, for appellee. Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL, and ROBERT L. KARWACKI (retired, specially assigned), JJ.

WILNER, Judge.

Appellant, James Perry, was convicted by a jury in the Circuit Court for Montgomery County of three counts of premeditated murder and one count of conspiracy to commit murder. For the three murders, Perry was sentenced to death. A separate sentence of life imprisonment was imposed for the conspiracy.

The convictions arose from the murders of Mildred Horn, her eight-year-old disabled son, Trevor Horn, and Trevor's nurse, Janice Saunders. The murders occurred in Mildred Horn's home in Rockville, in the early morning hours of March 3, 1993. Ms. Horn and Ms. Saunders were shot in the head; Trevor died of asphyxia—his air supply had been cut off by suffocation. The State's evidence, the sufficiency of which has never been challenged by Perry, was that Perry was a hired killer, that he committed the murders as part of a conspiracy with Lawrence Horn, Mildred's former husband and Trevor's father, and that Lawrence Horn's motive in arranging for the murders was to collect approximately $1 million from a trust that had been established for Trevor from the proceeds of a personal injury claim. Lawrence Horn was tried separately and convicted for his role in the matter.

In his direct appeal from the three convictions and sentence of death, Perry raised a number of issues, all but one of which we rejected on the merits. Perry v. State, 344 Md. 204, 686 A.2d 274,cert. denied, 520 U.S. 1146, 117 S.Ct. 1318, 137 L.Ed.2d 480 (1997). The one issue that we did not address but left for further development in a post-conviction proceeding concerned the admission into evidence of a 22-second taped telephone conversation between Perry and Horn and testimony identifying the voices on that tape. Upon denial of relief by the Supreme Court, Perry filed a petition for post-conviction relief in the Circuit Court for Montgomery County. He raised several issues but focused principally on questions arising from the admission of the tape-recorded conversation: whether admission of the recording and testimony concerning it was error; whether, if error, the error was harmless under the test enunciated in Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976); and whether, if Perry's complaint about the admission of that evidence is held to have been waived because of the lack of a timely objection, counsel's failure to make such an objection amounts to a Constitutionally ineffective assistance of counsel under the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The post-conviction court denied relief, and we granted Perry's application for leave to appeal. Although Perry presses several complaints in his petition, we need address only those relating to the 22-second tape recording.¹

BACKGROUND

A. The Trial

The evidence that Perry murdered Mildred Horn, Trevor Horn, and Janice Saunders, though substantial and more than legally sufficient, was almost entirely circumstantial. We recited that evidence in some detail in the opinion disposing of Perry's direct appeal, and there is no need to recount it all here. As Perry had no apparent connection with the victims and as it seemed clear from the circumstances that robbery was not a motive for the break-in at Ms. Horn's home, a key element of the State's case was tying Perry to Lawrence Horn, who did have a substantial motive to have Mildred and Trevor killed and also to have any witness to those murders killed. Horn lived in Los Angeles; Perry lived in Detroit; and Mildred and Trevor lived in Rockville.

The only direct testimonial evidence of contact between Horn and Perry came from Thomas Turner, a resident of Detroit, who was Horn's cousin and Perry's friend and who testified under a grant of immunity.² In the spring of 1992, Horn, while visiting Detroit, had complained to Turner of problems he was having regarding visitation with his children, and Turner (1) suggested that Perry might be able to help him, and (2) assisted Horn in contacting Perry. After the murders, Turner continued to act as an intermediary to facilitate communication between Horn and Perry. Apart from Turner's testimony and the tape recording at issue here, the State's evidence relating to contact between Horn and Perry was entirely circumstantial and consisted of telephone records documenting approximately 160 calls during 1992 and 1993(1) from public telephones in Detroit, located near Perry's home or in places Perry was known to visit, to Horn's home in Los Angeles, (2) from public telephones in Los Angeles to Perry's home in Detroit or to places in Detroit Perry was known to visit, (3) from public telephones in the Rockville area to Horn's home and from Los Angeles to hotels in Maryland at times when Perry was in Maryland, and (4) from public telephones in the Maryland-District of Columbia suburban area to Perry's home at times when Horn was in Maryland.

The State contended that these calls were, in fact, between Horn and Perry. Through evidence of the use of fictitious names, telephone cards in other person's names, and intermediaries, the State further attempted to show an elaborate scheme by Horn and Perry to camouflage the contact between them. All of the calls originated from pay phones; no evidence was uncovered of any calls between Horn's home and Perry's home. Similar camouflaging techniques were used to disguise the transfer of $6,000 from Horn to Perry, which presumably served as compensation for Perry's services. The money was transferred through Western Union in the name of a fictitious person in Los Angeles to Perry's girlfriend in Detroit.

On March 12, 1993—nine days after the murders—the Los Angeles police executed a search warrant at Horn's apartment. Montgomery County Detective Wittenberger, who accompanied the Los Angeles police, described the residence as a small one-bedroom apartment, with a living room, kitchen area, and bathroom. In the living room, the police found three computers, computer disks, hard drives, back-up drives, telephone and bank records, videotapes, 56 cassette tapes, 12 micro-cassette tapes, and a telephone answering machine. After listening to and examining this evidence, the police discovered, at the end of one of the micro-cassettes—Tape No. 5—a 22-second conversation between two men, whose voices were later identified as those of Horn and Perry. That conversation was copied to another cassette, and both tapes were eventually admitted into evidence against Perry. Tape No. 5 was admitted as State's Exhibit 342; the copy of the 22-second conversation taken from that tape was admitted as State's Exhibit 312. Those exhibits, and the testimony identifying the voices, are the subject of the dispute now before us.

A transcript of the conversation recorded on the tape was prepared by the State, but it was not admitted into evidence and is not in the trial record. Judge Pincus, the post-conviction hearing judge, listened to the tape and found the conversation to be as follows:

"Horn: Yeah.

Perry: Are you able to talk?

Horn: No.

Perry: OK. All right. So I mean, I'm sittin' there.

Horn: Can you uh ...

Perry: I could take a picture, I could take a picture of him. You know, right you know right ... there but I couldn't. The noise, you understand what I'm saying? I wasn't able to do the others, didn't, I didn't want to go uh front wise..."

Although, at trial, Perry contended that the tape was unclear, he does not now contest Judge Pincus's finding of what it contains. Nor does the State.³

The tape recording was disclosed to defense counsel in discovery, and they recognized that it was an important and damaging piece of evidence, for either of two reasons. It was the only direct physical evidence of contact between Perry and Horn—it documented a conversation between the two. In pre-trial statements to the police, both men had denied ever speaking with the other. The State also had evidence, from the mass of telephone records, that a 22-second telephone call was made at 5:12 a.m. on March 3, 1993— very shortly after the murders were committed—from a pay phone at a Denny's restaurant in Gaithersburg, which is not far from Rockville, to Horn's home, and, although there was no clear evidence that Exhibits 312 and 342 captured that particular conversation, the State was likely to argue that they, in fact, did so. If the jury accepted that contention, it would have evidence not only of contact between the two men, but of contact that was contemporaneous with the murders and, depending on how the jury interpreted the conversation, could relate to the murders.

Immediately upon the entry of counsel's appearance on September 9, 1994—before the State disclosed the tape in discovery— Perry filed an omnibus motion to suppress evidence, including "[a]ll wire intercepts, eavesdropping, electronic surveillance and telecommunication records" on the ground that "[w]ire intercepts, eavesdropping, electronic surveillance and telecommunication records were obtained in violation of the Defendant's rights secured to Defendant by the United States Constitution, the Maryland Constitution and federal and state substantive and procedural law." That motion remained pending when counsel learned of the tape in discovery. Notwithstanding their appreciation of the significance of the conversation on Tape No. 5, however, which they knew had been recorded by Horn, counsel did not mention that tape when arguing their motion to suppress and made no argument that...