Perry v. State

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 ²⁰⁹ 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. ²¹⁰ “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. ²¹¹ “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 ²¹² 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. ²¹³ “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 question, Lawrence Horn was observed using the Calverton Shopping Center pay phone at issue. “At 3:18 a.m. on March 5, 1993, there was a twenty-one minute phone call from a pay phone in Beverly Hills to James Perry’s residence. Again, the McKinney calling card was used.

Just a minute before, the McKinney calling card was used to make a call from the same Beverly Hills pay phone to 313-884-9715 at 5323 Lakepointe in Detroit, Michigan; 313-884-9715 had previously been assigned to a telephone at 5026 Devonshire in Detroit. “During the spring of 1992, Thomas Turner, a first cousin of Lawrence Horn and a good friend of James Perry, lived at 5026 Devonshire in Detroit, Michigan. Also in the spring of 1992, Turner met Lawrence Horn at his cousin Jean Baker’s house; it had been about 20 years since Turner had seen Horn. After the meeting at Jean Baker’s, Horn visited Turner at Turner’s Devonshire residence on several occasions. On one of these occasions Turner talked about James Perry to Horn and advised that Perry might be able ²¹⁴ to assist Horn, who was then having problems respecting visitation with his children. “Turner, who denied being involved in the murders in this case and who was granted immunity from prosecution with respect to the murders, testified at trial about a number of matters, including the following: that he had rented a car for James Perry on a number of occasions including in early December of 1992, late January of 1993, early February of 1993, and from March 1 through March 8, 1993; that in the summer/fall of 1993, Lawrence Horn had advised that things were ‘a little hairy,’ and he had told Turner on several occasions not to say anything if contacted by the police; that Turner had been picked up by the F.B.I. in January of 1994, at which time he had called Horn and Horn had arranged for a lawyer for Turner; that he, Turner, had facilitated telephone contacts between Horn and Perry on two or three occasions after the murders, including at Thanksgiving time in 1993. “Unknown to Turner, his telephone was the subject of an F.B.I.-monitored -wiretap between November 15, 1993 and January 10, 1994.

State’s Exhibit 570 is a collection of transcripts of various conversations that were intercepted between November 24,1993 and January 6,1994. During a telephone conversation between Lawrence Horn and Thomas Turner on November 25, 1993, arrangements were made for a contact at 4:00 p.m. (Detroit time) on November 26, 1993. On November 26,1993, Perry went into Francel’s bar at 3:59 p.m. and he left 28 minutes later.

Between 4:00 and 10:15 p.m. on November 28, 1993, there was a series of calls—Horn and Turner, Perry and Turner, Horn and Turner, Perry and Turner, Perry and Turner—about a 10:00 p.m. contact. At 7:12 p.m. (California time) on November 28, 1993, a direct dial call was placed from Marsha Webb’s residence to an establishment known as Mr. Money at 18287 Livernois in Detroit. Lawrence Horn was staying with Marsha Webb at the time in question, and neither she nor her boyfriend made the call at issue.

Mr. Money was an establishment belonging to Dr. King, someone with whom ²¹⁵ Perry had worked, and Thomas Turner had gone to Mr. Money with Perry on several occasions. “A mere five days before the aforementioned series of telephone calls on November 28, Perry’s home had been searched by the F.B.I. Among the items seized was a catalogue from Paladin Press. Advertised therein was a publication called Hit Man: A Technical Manual for Independent Contractors. Records of Paladin Press reflect that James Perry of 13403 Glenfield in Detroit, Michigan ordered the Hit Man publication, as well as another book entitled How to Make Disposable Silencers, and that he submitted a check dated January 24, 1992 to pay the cost of the two books. Although Perry’s check bounced, his order was processed on January 28, 1992, and the company recognized a loss for accounting purposes on May 28, 1992. “Among other things, the Hit Man manual that Perry ordered recommended the following: use an AR7 rifle because it is lightweight and easy to conceal when disassembled; drill out the AR7’s serial number; while still at the crime scene, run a rat tail file down the weapon’s barrel to change the gun barrel’s ballistic markings; dispose of weapon parts at various different locations; if the hit is meant to appear like a burglary, mess up the scene and take concealable items of value and then dispose of them along with the weapon; if necessary to shoot from a distance, use a silencer and aim for the head, preferably the eye sockets.

The Hit Man manual also recommended that there be up-front payment of expense money of between $500 and $5,000. “Between August 18, 1992 and January 28, 1993, either James Perry or his girlfriend, Pauline McGhee, on Perry’s behalf, received a number of Western Union money transfers from a person named George Shaw, who gave 213-877-2121 as his telephone number on one occasion and who, when specifying an address, used 6222 or 6255 Sunset Boulevard. The telephone number 213-877-2121 was that of a law firm at 10 Universal City Plaza in Universal City, Los Angeles, California; no one by the name of George Shaw had worked for the firm. Although searched for, 6222 ²¹⁶ Sunset Boulevard could not be found. The address of 6255 Sunset Boulevard did exist and had once been the address of Motown, but no one by the name of George Shaw had ever worked for Motown.

The obituary for a person named George Shaw had, however, been published in the July 27, 1992 edition of the Los Angeles Times, as had been an announcement of the death of Motown star Mary Wells. During the summer of 1992, Shira Bogan and Lawrence Horn had discussed the fact of Mary Wells’s death. “The dates and amounts of the money transfers from George Shaw were as follows: August 18, 1992—$500; September 22, 1992—$2,500; September 30, 1992—$2,500; December 4, 1992—$300; January 28, 1993—$200. The December 4 transfer was received by James Perry on December 5, 1992 at the All American ’76 Truck Plaza in Breezewood, Pennsylvania. The January 28, 1993 transfer was received by James Perry at Mailboxes, Etc. in Gaithersburg, Maryland. “On March 26, 1993, pieces of an AR7 rifle were found along Route 28 in Montgomery County; holes had been drilled in one of the pieces in a manner consistent with the obliteration of the weapon’s serial number.

An F.B.I. forensic metallurgist was of the opinion that the weapon had been exposed to the surrounding environment for a matter of weeks and that the weapon had been intentionally fractured and disassembled. As early as March 3, 1993, police had found a metal file, one of the tips of which was wrapped with duct tape, on the ground near the wheelchair ramp leading to the deck of Mildred Horn’s residence. Processing of the file revealed two materials found in gun propellants, and those materials were found on that portion of the file that could have been fitted in the barrel of an AR7 .22 caliber rifle. Also, bullet fragments removed from the victims were determined to be consistent with .22 caliber long rifle ammunition.

An AR7 rifle ‘is manufactured to accept and function properly with ... 22 long rifle caliber ammunition.’ ²¹⁷ “On July 19, 1994, James Perry was arrested in Detroit, Michigan, after having been indicted in Maryland for the murders of Janice Saunders and Mildred and Trevor Horn. While awaiting confirmation that an indictment had been returned, Perry asked whether anyone else was going to be arrested or indicted that day. When told yes, and when Lawrence Horn from California was identified as the other person, Perry said he had never heard of Horn.” Brief of Appellee at 3-19 (record references and footnotes omitted). Perry claims error with respect to the following points: 1.

Refusal to propound a requested voir dire question; 2. Allowing into evidence a tape recording, found in a search of Horn’s residence and containing twenty-two seconds of a telephone conversation between Perry and Horn; 3. Admitting into evidence portions of Horn’s deposition taken in civil actions involving the trust corpus; 4. Permitting a state fingerprint expert to testify in rebuttal concerning “open” prints; 5.

Instructing on the use of prior inconsistent statements; 6. Sufficiency of the evidence at the sentencing phase to establish the aggravating factors relied upon by the State; and 7. The constitutionality of Maryland’s death penalty statute. Additional facts will be stated to the extent required in the discussion of each of the foregoing issues.

I Perry contends that the circuit court committed reversible error in circumscribing the voir dire examination of prospective jurors. One of the questions that the court put to the venire was: “Has any member of the prospective jury panel or a member of your family or a close personal friend of yours ²¹⁸ ever had a prior experience as a juror, witness, victim or defendant in any criminal homicide or aggravated assault proceeding?” Perry submits that the question should have been expanded to embrace any criminal proceeding. Alternatively, he submits that “any crime of violence” should have been substituted for “aggravated assault.” The scope of voir dire and the form of the questions propounded rest firmly within the discretion of the trial judge. Boyd v. State, 341 Md. 431, 436 , 671 A.2d 33, 35 (1996); Davis v. State, 333 Md. 27, 34 , 633 A.2d 867, 870-71 (1993); Casey v. Roman Catholic Archbishop, 217 Md. 595, 605 , 143 A.2d 627, 631 (1958). “ ‘[T]he purpose of voir dire examination is to exclude from the venire those potential jurors for whom there exists cause for disqualification, so that the jury that remains is “capable of deciding the matter before [it] based solely upon the facts presented, ‘uninfluenced by any extraneous considerations.’ ” ’ ” Boyd, 341 Md. at 435 , 671 A.2d at 35 (quoting Hill v. State, 339 Md. 275, 279 , 661 A.2d 1164, 1166 (1995)).

A juror’s having had prior experience as a juror, witness, victim or defendant in a criminal proceeding of any kind, or in one involving a crime of violence, is not per se disqualifying. It is even less tenable to argue that a juror is disqualified simply because of the experience of a member of the prospective juror’s family or on the part of a close personal friend. See Yopps v. State, 234 Md. 216, 221 , 198 A.2d 264, 267 , cert. denied, 379 U.S. 922 , 85 S.Ct. 279 , 13 L.Ed.2d 336 (1964) (holding in prosecution for daytime housebreaking, where the accused sought on voir dire to identify victims, or family members of victims, of the crime of burglary, that the question “sought to [be] propounded to the jury did not relate to a cause of disqualification under the circumstances.”). Consequently, Perry’s contention really is addressed to whether the inquiries requested by him were “reasonably ²¹⁹ likely to reveal cause for disqualification,” based upon partiality or bias.

Davis, 333 Md. at 35 , 633 A.2d at 871 . Under the circumstances of the instant matter, there was not “a demonstrably strong correlation between the status in [Perry’s expanded voir dire ] question and a mental state [of a venireperson] that gives rise to cause for disqualification.” Id. at 37 , 633 A.2d at 872 . Prior to jury selection, Perry and the State respectively submitted their proposed voir dire questions to the court; the court modified them and then furnished its modified questions to counsel. The court and counsel then conferred on the record.

At that conference the working draft of the question in issue was limited to a criminal homicide proceeding. Perry requested that “criminal homicide” be changed to “criminal proceeding.” The court denied the request because “it simply provokes such a huge response which would require follow-up questions galore, and we would have to sit here and listen to each incident that the prospective juror has experienced over their lifetime, which will consist of, no doubt, some type of larceny and who knows what else.” Perry argued that “a stolen bicycle” could generate bias, but the court noted that it would also ask a general question (which it did) directed to any reason why a prospective juror could not be fair and impartial. Perry then requested that “any crime of violence” be added to the question. Pursuant to that request the court expanded the question, using the phrase, “aggravated assault.” Perry objected “just for the purposes of the record....” The voir dire question to which Perry objects was asked on the second day of jury selection of a venire then consisting of 150 persons.

Thirty-nine prospective jurors responded affirmatively to the question, and each of them was then individually questioned by the court at the bench, out of the hearing of the other venirepersons. Of the persons responding, one was the victim of a sexual assault, and two others acknowledged being victims of an assault. Seven members of the venire had a spouse, child, or ²²⁰ sibling who was the victim of an aggravated assault. The relationships of the other, affirmatively-responding, potential jurors to victims of murder or aggravated assault ranged from aunt, nephew, and cousin, to Mend and to relatives of Mends.

The prior experience of some of the responding venirepersons was that of a juror. Four or five of the prospective jurors were related to or knew persons who had been convicted of the described crimes. These included one venireperson whose high school Mend had been executed by the State of California for rape and murder. The net cast by the question also drew in a professional advocate for abused children, a criminal defense attorney who was a former prosecutor, persons engaged in law enforcement and their relatives, people who were responding to a prior question, and one person who did not understand the question.

The crimes which the responding jurors considered to be embraced by the question included murder, suicide, conspiracy to commit murder, rape, kidnapping, drug trafficking, child abuse, sexual assault, armed robbery, street muggings (with and without the use of a knife), and various batteries and assaults. The questioning of the thirty-nine jurors who responded affirmatively to the subject question resulted in the court’s excusing ten for cause. A trial court’s process of determining whether a proposed inquiry is reasonably likely to reveal disqualifying partiality or bias includes weighing the expenditure of time and resources in the pursuit of the reason for the response to a proposed voir dire question against the likelihood that pursuing the reason for the response will reveal bias or partiality. Here, the charges against Perry were murder and conspiracy to commit murder.

The court exercised its discretion to identify, not only relatives and friends of murder victims, but also the victims, and relatives and Mends of the victims, of aggravated assault. Without abusing its discretion, the circuit court could conclude under the circumstances here that there was not a reasonable likelihood of uncovering a disqualification based on some venireperson’s connection, even as a victim, to some other class of crime. The circuit court was not required to enlarge the question. ²²¹ Perry submits that the court was obliged to modify “aggravated assault” to “any crime of violence” in order to capture responses relating to robbery. He asserts that the failure to do so was prejudicial because taking by the perpetrator of the check cashing cards of Mildred Horn constituted robbery, even though it was not charged.

There are at least two answers to this contention. First, robbery, which includes an intent to steal, was not part of the State’s theory of the case. It was the State’s theory that the taking of the check cashing cards was merely a cover to make the entry into the house and the murders appear to be part of a burglary. Indeed, in its closing argument on guilt or innocence the State argued that the entry was not a burglary, but a “hit.” Second, the prospective jurors understood the question to include robbery, as indicated by the fact that at least seven of those who responded to the question that referred to “aggravated assault” described robbery in their responses.

II In the course of the trial and in the State’s final arguments the jury heard a second-generation audiotape recording, twenty-two seconds in length, of a telephone conversation between persons identified as Perry and Horn. It was State’s Exhibit 312. During a search of Horn’s residence in Los Angeles that was conducted on March 12, 1993, pursuant to a search warrant, the police seized the cassette, State’s Exhibit 342, from which Exhibit 312 was made. It appears that the only portion of the contents of Exhibit 342 that was played for the jury in the instant matter is that portion reproduced on Exhibit 312.

Consequently, we shall discuss the evidentiary ruling complained of by Perry only in terms of Exhibit 312. Perry contends that Exhibit 312 was inadmissible under the legislatively created exclusionary rule set forth in Md.Code (1974, 1995 RepLVol.), § 10-405 of the Courts and Judicial Proceedings Article (CJ). CJ § 10-405 is part of the subtitle, “Wiretapping and Electronic Surveillance,” of the Evidence Title of the CJ Article. The trial court admitted Exhibit 312 because Perry had not filed a pretrial suppression motion as ²²² required by Maryland Rule 4-252 and because the court found a want of good cause to waive that rule’s requirements.

Maryland Rule 4-252(a) in relevant part reads: “In the circuit court, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise: “(3) An unlawful search, seizure, interception of wire or oral communication, or pretrial identification[.]” Under subsection (b) of the Rule, such a motion “shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4-213(c)____” 1 The first appearance of defense counsel was on August 23, 1994. Perry filed a motion to suppress on September 9, 1994, which, among other things, sought suppression of the results of certain wiretaps, conducted under court orders. The tape recordings that became Exhibits 312 and 342 were not challenged in the motion, and the challenges to the wiretaps were unsuccessful. After the jury had been empaneled, opening statements were had on September 13,1995, and the first evidence for the State was introduced.

In its opening statement the State advised the jury that it would be hearing a tape recording of Horn talking to Perry. On September 19, 1995, the fifth day of trial, Horn’s older daughter, Tiffany Horn, testified for the State. Based upon her having earlier listened to Exhibit 312, but without playing it for the jury, she identified one of the voices as that of Horn. Thereupon, Exhibit 312 was marked for identification.

The State also elicited the following testimony from Tiffany Horn: ²²³ “Q. And do you recall if he [Horn] had an answering machine there [in his Los Angeles residence]? “A. Yes. “Q. And do you remember whether there were any cassette tapes that go with the answering machine? “A. Yes.” Exhibits 342 and 312 were admitted into evidence on the sixth day of trial, September 20, 1995, during the examination of Detective Craig Wittenberger of the Montgomery County Police Department who had participated in the search of Horn’s residence. Perry objected for lack of relevance and on the ground that the quality of the sound reproduction was so poor that the tapes could not accurately present that which they purported to record. The court overruled the objection without prejudice to Perry’s renewing the objection when the State undertook to play Exhibit 312 before the jury. The State sought to play Exhibit 312 before the jury on September 28, the tenth day of trial, while Cynthia Turner, the wife of Thomas Turner, testified for the State.

Perry renewed his objection. The trial court listened to the tape out of the presence of the jury and overruled the objection. 2 When Exhibit 312 was played before the jury, Cynthia Turner identified the “lighter” of the two voices which did most of the talking as Perry’s voice. It was on September 29, the eleventh day of trial, during the State’s case in chief, that Perry for the first time moved to suppress Exhibit 312 on the ground that it was an unlawful intercept under the Maryland wiretap statute, CJ §§ 10-401 through 10-414. Defense counsel represented to the court that his “neurons connected” while he had been driving home from his office the previous evening.

Perry submitted that the State’s theory would be that Horn had recorded a tele ²²⁴ phone call to him which originated in Maryland and which Perry made at approximately 5:12 a.m. on March 3,1993, from a pay phone at the Denny’s restaurant in Gaithersburg. Perry argued that there was no evidence that all of the parties to the telephone conversation had consented to the recording of the conversation or of any portion of it. Perry urged as possible remedies: first, that further playing of, and reference to, Exhibit 312 be prohibited; second, that the jury be instructed to disregard prior testimony concerning the identity of the voices; third, that a mistrial be granted; and fourth, that the indictment be dismissed if Exhibit 312 had been presented to the grand jury. The State argued that the General Assembly never intended to prohibit the use of a recording, if made by one coconspirator, of coconspirators acting in concert in furtherance of the conspiracy.

Further, the State argued, Perry’s motion and objection came too late. The trial court overruled Perry’s objection, finding a waiver based upon the failure timely to raise the issue that Exhibit 312 was an unlawful interception under the Maryland wiretap statute. The trial court also stated that it “does not find any good cause to waive the requirements of Rule 4-252.” Noting that the trial was then in its fourth calendar week, the circuit court stated that revisiting the issue of suppression of a tape that had already been played to the jury would create other substantial problems. In his brief to this Court, Perry relies on CJ § 10-402(a), providing in part that “it is unlawful for any person to ... [wjilfully intercept ... any wire, oral, or electronic communication,” except as otherwise specifically provided in the statute.

Under CJ § 10-402(c)(3) it is lawful to “intercept ... a wire, oral, or electronic communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State.” ²²⁵ Perry further argues that, under Mustafa v. State, 323 Md. 65 , 591 A.2d 481 (1991), the Maryland wiretap statute governs whether a communication has been unlawfully intercepted when the product of the interception is offered in evidence in a Maryland court, that the interception resulting in Exhibit 312 was unlawful under the policy of the Maryland statute, and that the exclusionary rule ordained by the Legislature in CJ § 10-405 applies. Perry submits that this Court may consider these matters on direct appeal because the trial court abused its discretion by failing to find good cause to excuse the waiver in the exercise of the power conferred under Md. Rule 4-252(a). Alternatively, Perry asks this Court to rule on this direct appeal that trial counsel’s failure to file a timely motion to suppress directed to Exhibit 312 denied Perry the effective assistance of counsel. 3 At oral argument in this Court counsel for Perry assured us that, after a complete explanation of the ramifications, Perry has decided to urge this Court to decide on the present record whether defense trial counsel’s performance was deficient and, if so, whether Perry was prejudiced, under the holding in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). In this Court the State submits that there was a clear waiver, that the trial court did not abuse its discretion in declining to relieve from the waiver, and that all of the other issues sought to be raised by Perry concerning the tape will have to be explored in proceedings under the Maryland Post Conviction Procedure Act, Md.Code (1957, 1996 Repl.Vol.), Art. 27, §§ 645A through 645J.

A Perry’s alternative contentions can be considered together because the response to both is the same, namely, a full evidentiary hearing is required to resolve Perry’s contention ²²⁶ that Exhibit 312 should have been suppressed under the Maryland wiretap statute. Under Rule 4—252(b) the time within which Perry should have moved to suppress Exhibit 312 expired over one year before the trial started. Further, the State ordinarily is entitled to at least fifteen days .within which to respond to a suppression motion. Rule 4-252(f).

If, when Perry actually made his motion, a suppression hearing were to be held during a recess in this jury trial, either party could have generated factual issues that required a full evidentiary hearing. Because Perry’s objection came so late, the State had never been required to focus on the contention that the Maryland wiretap statute excluded Exhibit 312. Whether the Maryland wiretap statute applies to Exhibit 312 does not lack legal complexity, and the State would have been entitled to time to research the issues. Moreover, uncovering and presenting facts bearing on issues at such a suppression hearing in this case might require locating, interviewing, and obtaining the attendance at the hearing of, persons who, at relevant times, had resided in Los Angeles or in Detroit.

The State ordinarily is bound on appeal of a suppression hearing issue by the record made at the suppression hearing. See Trusty v. State, 308 Md. 658 , 521 A.2d 749 (1987) (where defendant on appeal from judgment of conviction claims error in denial of suppression motion, the State may not look beyond the suppression hearing record to the trial record for support of the denial of the motion). Consequently, in order to approach the instant matter fairly, the parties should be given substantially the same opportunity to develop a factual record, and legal arguments based thereon, in presenting and responding to Perry’s belated suppression motion that they would have enjoyed in presenting and responding to a pretrial suppression motion. For this reason, the trial court acted well within its discretion in refusing to interrupt the trial in order to conduct a belated suppression hearing for which neither party had the opportunity adequately to prepare.

Even though Perry is now willing to treat the trial ²²⁷ record as a suppression hearing record, that waiver cannot deprive the State of the procedure to which it is entitled. For much the same reason, we reject Perry’s invitation to decide his claim of ineffective assistance of counsel on the present record. First of all, no factual determinations have been made by the trial judge. Perry’s arguments assume certain facts, but it is not the function of this Court to find the primary facts, or in the first instance to draw inferences from undisputed facts that bear on a suppression issue.

This Court ordinarily has required claims of ineffective assistance of trial counsel to be developed on post conviction, where a full, factual record can be made. It is true that, not uncommonly, the inadequacy of the record on direct appeal concerns possible tactical decisions by trial counsel, whereas, in the instant matter, defense trial counsel represented to the circuit court that he had not earlier thought of the telephone intercept argument, despite having tried to think of a basis for keeping Exhibit 312 out of evidence. Here the inadequacy of the record includes the lack of fact-findings bearing on whether there was a violation and whether it was willful. Compare, e.g., Walker v. State, 338 Md. 253 , 658 A.2d 239 (1995), cert. denied, — U.S. -, 116 S.Ct. 254 , 133 L.Ed.2d 179 (1995) (where the accused was voluntarily absent from trial, and defense counsel did not object to evidence, cross-examine, call witnesses or argue, issue of ineffectiveness was left for post conviction in order to develop a full record); Colvin v. State, 299 Md. 88 , 472 A.2d 953 , cert. denied, 469 U.S. 873 , 105 S.Ct. 226 , 83 L.Ed.2d 155 (1984) (general claims of ineffectiveness in a capital case); Harris v. State, 295 Md. 329 , 455 A.2d 979 (1983) (in capital murder case, alleged ineffectiveness of counsel as it related to accused’s guilty plea left for post conviction consideration); Johnson v. State, 292 Md. 405 , 439 A.2d 542 (1982) (alleged ineffectiveness in failing to develop a coherent defense theory left for post conviction consideration).

We have also ordinarily left for post conviction review claims of error on direct appeal that the trial court foreclosed argument by defense counsel when counsel made no objection. See ²²⁸ State v. Brown, 324 Md. 532 , 597 A.2d 978 (1991) (at conclusion of suppression hearing); Cherry v. State, 305 Md. 631 , 506 A.2d 228 (1986) (before announcing verdict of guilty in bench trial); Covington v. State, 282 Md. 540 , 386 A.2d 336 (1978) (same). Consequently, Perry’s contention that Exhibit 312 was improperly admitted and should have been suppressed is not before us on direct appeal. This ruling, and our affirmance of the judgment of conviction in this case, is without prejudice to Perry’s raising on post conviction review his contention that Exhibit 312 should have been excluded under the Maryland wiretap statute.

B Before this Court, as well as before the circuit court, the arguments for finding waiver, and for relieving from waiver, have revolved around Md. Rule 4-252(a). We note, however, that CJ § 10—408(i) of the Maryland wiretap statute reads in part as follows: “(1) Any aggrieved person in any trial, hearing, or proceeding in or before any court ... may move to suppress the contents of any intercepted wire, oral, or electronic communication, or evidence derived therefrom, on the grounds that: “(i) The communication was unlawfully intercepted; “(2) This motion may be made before or during the trial, hearing, or proceeding. If the motion is granted, the contents of the intercepted wire, oral, or electronic communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this subtitle.” CJ § 10-408(i) was enacted by Chapter 692 of the Acts of 1977, and became effective July 1, 1977. As introduced, the proposed statute would have read that the motion to suppress “shall be made before the trial.... ” 1977 Md. Laws at 2815. ²²⁹ The bill was amended in the course of passage to provide that the motion “may be made before or during the trial....” 4 It was unnecessary for Perry to have referred the trial court specifically to CJ § 10—408(i) in order to preserve his argument that the trial court should have considered his mid-trial motion to suppress.

We shall assume, arguendo, that CJ § 10-408(i) conferred on Perry a procedural right to seek during his trial suppression of Exhibit 312 on the ground that it was an unlawfully intercepted communication. Nevertheless, we cannot determine on the present record whether such a hearing would have resulted in the suppression of Exhibit 312. The same rationale as to the absence of a record dealing with the merits of suppression that we applied in Part II.A applies to this Part II.B. Consequently, we do not address CJ § 10-408(i) on this direct appeal, but this ruling, likewise, is without prejudice to Perry’s relying on CJ § 10—408(i) in a post conviction proceeding. Ill Mildred Horn’s sisters and the Horns’ adult daughter challenged in civil legal proceedings Horn’s right, inter alia, to receive distribution from the trust that had been established for the benefit of Trevor Horn.

Horn’s deposition in that ²³⁰ litigation was taken on July 6 and 7,1994. At Perry’s murder trial the State, over objection by Perry, read to the jury portions of Horn’s deposition. Perry now argues that the trial court erroneously overruled his objection. In his deposition Horn admitted that he had the number of Marsha Webb’s long distance telephone calling credit card, but he denied —that he used the card number after August 1992, or, at the latest, after January 1993; —that he had telephoned Perry at any time utilizing the card number; —that he had telephoned Perry at any time without utilizing the card number; —that he had received at any time a telephone call from Perry; —that he had allowed another person at any time to use the card number; and —that he had any contact with Perry on March 2 or 3,1993.

One ground on which the trial court admitted Horn’s statements was the hearsay exception for the declarations of a coconspirator during the course and in furtherance of the conspiracy. Perry submits that Horn’s statements are hearsay, that they are not within the coconspirator exception, and that they are therefore inadmissible. Perry further argues that the statements are irrelevant. We shall consider relevancy first.

The relevance of Horn’s having made the statements is that their content directly conflicts with other evidence introduced by the State tending to prove communications between Perry and Horn by use of Webb’s telephone credit card. If the jury were to find that the communications between Perry and Horn in fact took place, and that Horn was lying in that respect at his deposition, then the jury could infer that Horn sought to disassociate himself from Perry because of a consciousness of guilt. Accordingly, the deposition state ²³¹ ments are relevant because they tend to make it more likely that there was a conspiracy between Perry and Horn. Perry submits that our holding in State v. Rivenbark, 311 Md. 147 , 533 A.2d 271 (1987), prevents the State’s use against Perry of Horn’s declarations that were proved by means of Horn’s deposition.

Rivenbark rejected “the theory that every criminal conspiracy includes, by implication, a subsidiary conspiracy to conceal evidence of the substantive offense that the conspirators agreed to commit.” Id. at 158 , 533 A.2d at 276 . In addition, Rivenbark adopted the view set forth in Krulewitch v. United States, 336 U.S. 440 , 69 S.Ct. 716 , 93 L.Ed. 790 (1949), “that a co-conspirator’s statement is inadmissible unless it was made before the attainment of the conspiracy’s central objective.” Rivenbark, 311 Md. at 158 , 533 A.2d at 276 . As Perry analyzes the record in the instant matter, the central objective of the conspiracy was accomplished when the murders were committed. Further, Perry submits that there is no evidence of any agreement, as part of the alleged conspiracy, to suppress or conceal after the substantive offenses had been committed so that, even if the jury believed that Horn was trying to conceal the conspiracy by lying at his deposition, Rivenbark bars viewing that conduct as incidental to, or part of, the alleged conspiracy.

The aspect of Rivenbark relied upon by Perry is not applicable because the central objective or principal aim of the conspiracy, under the State’s evidence, was to obtain the corpus of the trust that had been established for the initial benefit of Trevor Horn. When Horn made the statements on deposition, that objective had not been attained. The portion of our opinion in Rivenbark that applies to the instant matter points out that “many decisions that appear to endorse the theory of an implied ongoing conspiracy of concealment actually hold only that a conspiracy endures through acts of concealment performed before the conspirators finally achieve their main purpose. For example, burglars and robbers must hide while dividing the proceeds of their crime; thieves must ²³² misrepresent their title in order to dispose of stolen property, and arsonists must convince insurers that property damage was accidental rather than intentional.” 311 Md. at 157 , 533 A.2d at 276 .

When admitting the evidence from Horn’s deposition the trial court indicated that it was applying an implied conspiracy of concealment theory. We noted in Rivenbark , however, that courts endorsing that theory “fail to consider the possibility of placing their decisions on the narrower ground that the conspirators had not achieved their principal aim when the challenged statements were made.” Id. State v. Buschkopf, 373 N.W.2d 756 (Minn.1985), illustrates the central purpose analysis in the context of a conspiracy to murder. There were at least three coconspirators, the widow of the murder victim, the actual killer, and the witness.

One theory on which the trial court had admitted against the accused widow the killer’s statements to the witness was that the conspiracy had as its object collecting the proceeds of the insurance on the