James Edward Perry V. State of Maryland, No. 119, September Term, 1995
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James Edward Perry v. State of Maryland, No. 119, September Term, 1995. [Capital murder - Death sentence imposed. Opinion discusses voir dire examination, coconspirator hearsay exception, fingerprint authentication, and instruction on prior inconsistent statements. Alleged ineffective assistance of counsel in waiving issue concerning interception of telephone conversation reserved for post conviction review.] Circuit Court for Montgomery County Case #72050 IN THE COURT OF APPEALS OF MARYLAND No. 119 September Term, 1995 ____________________________________ JAMES EDWARD PERRY v. STATE OF MARYLAND ____________________________________ *Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker, JJ. ____________________________________ Opinion by Rodowsky, J. Bell, J., dissents. ____________________________________ Filed: December 16, 1996 *Murphy, C.J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the adoption of this opinion. 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 HornUs former wife, the HornsU disabled son, and the sonUs nurse. As explained below, we shall affirm the judgments of conviction, but this affirmance is without prejudice to PerryUs raising on post conviction review the asserted error discussed in Part II, infra, involving the claimed inadmissibility of a recorded telephone conversation. HornUs ex-wife, Mildred Horn, his son, a severely handicapped eight year old, Trevor Horn, and TrevorUs nurse, Janice Saunders, were murdered during the early morning hours of March 3, 1993, in Mildred HornUs 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 HornUs cousin, Thomas Turner. Much of the StateUs case was developed through telephone calls between Perry and Horn who frequently communicated with one another by using a -2- telephone credit card issued in a false name to HornUs cousin, Marcia Webb, who had obtained the card for Horn at his request. To augment the foregoing outline we set forth below from the StateUs 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 driverUs license. During closing argument, defense counsel acknowledged that the driverUs license presented was PerryUs--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 HornUs condition in connection with her duties as TrevorUs nurse. Trevor Horn, who was eight years old at the time, was under 24- hour nursing care due to injuries suffered at ChildrenUs Hospital when he was much younger. "Trevor, who had not been expected to survive after what was referred to at trial as Uthe accidentU at ChildrenUs Hospital, had Uturned everything aroundU 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. -3- TrevorUs 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, TrevorUs 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 [TrevorUs 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 DennyUs restaurant on Quince Orchard Boulevard in Gaithersburg, Maryland to HornUs residence in Los Angeles. The number called in L.A. was 213-874-4415, the number of Lawrence HornUs 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 HornUs house on North Gate Drive. Ms. Rice became alarmed when she saw the garage door open and heard TrevorUs 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 TrevorUs death had been -4- caused by the turning off of his medical equipment. Upon receiving more information about TrevorUs health and related circumstances, the medical examiner reached a different assessment--that TrevorUs air supply had been cut off by suffocation. When TrevorUs body was found, there was a piece of plant material on his cheek. This circumstance was described as Uvery unusualU 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 HornUs 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 HornUs bedroom had been toppled; Mildred HornUs bedroom appeared to have been Uslightly tossedU; 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 HornUs jewelry, which included a 5-carat diamond tennis bracelet lying on the counter in her bathroom, had been taken, and neither Janice SaundersU purse nor other personal possessions, including jewelry, had been disturbed. There were, however, some credit and check-cashing cards missing from Mildred HornUs 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 joggerUs 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 HornUs 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 -5- to do so. HornUs 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.