David Thomas v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. IS-CM-lBSO

DAVH)THOMASNAHHLLANL

V.

UNI'I‘I'_-D S'l'.»\'i 125, Al>ri:i.l__i:lz.

Appea| t"rom the Superior Coun

ol`the District ot`Columbia

(DVl\/l-l$Ol-l$)

(l"lon. lose M. Lopez‘ l\/lotions .ludge)

(l~lon. Robert E. l\/lorin, 'I`ria| .ludge)

(Argued April 20_ 2017 Deeided October ll 20 | 7)

Ffetc/ier P. T/iompson i`or appellant.

l"alinda Jones, Assistant United States Attorney, with whom C'/miming D.

P/n'/h'p.s', United States Attomey at the time the briet` was filed, and E/i`:abei/i

Trosinan, C'/n'isei/en R. A'o/}L and il’Iarisa S. ll/Jst, Assistant United States

Attorneys1 were on the briet`, f`or appellee

Before l\/lL`Ll;l'Slj, i-'issoeiate .]nrige, and WASIIIN(';'|'(`)N and i"/\RRIEl_I__, Senior

Jncige.s.

\l\//\SItIi~~‘ti'l't_)i\Iq Sen:'or Jm/ge: David Thomas (““appellant") was found guilty

ot` attempted voyeurism t`or photographing his sexual partner while she slept nude

next to him and without her eonsent. Appeliant Sent the photograph to an unknown

l\.)

number ot` third parties and the photograph made its way online. The victim

notified law enforcement, and a recorded phone conversation was arranged

between the victim and appellant, with only the victim`s consent and knowledge

that the conversation was being recorded On appeal, appellant argues that the

audio recording was unlawful under Maryland law where he was located during its

reeording. and therel`ore. the trial court erred in denying his motion to suppress

We aff`irm.

ln April ol` 2013, appellant and the victim. .I.P.._ met while they were both

students at Howard University. The pair briefly dated and became sexually

intimate on one occasion in J.P.`s bedroom Unbel<nownst to .I.P., appellant

photographed her exposed back and buttocks while she slept. This photograph,

which was introduced into evidence depicted .I.P. lying on her left side with her

back to the camera. Although J.P.`s face could not be seen. she recognized her

body, comforter. pillows, and pillow cases in the photograph. She also recognized

several identifying items that appellant had staged around and on her body. These

included a hand-made poster board made by the victim`s father1 which visiny

displayed the victim`s name in large letters, the Greek letters identifying her

sorority. and a message from her f`amily; a purple and gold tee-shirt with a logo

and motto associated with appellant`s fraternity pledge class; a purple bracelet

worn by appellant; and a used condom and its wrapper displayed on her thigh. The

victim never consented to the photograph. J.P. testified that she had never seen

anyone in her house wearing the T-shirt in the photograph that appellant was

wearing that night.

.I.P. first became aware of the photographs existence roughly six months

later when a mutual friend told her that the photograph had been posted in an

online private chat room. Some months |ater. J.P. received a text message from a

sorority sister that included a screenshot of the photograph Now that she

possessed a copy ofthe photograph, .l.P. promptly filed a police report.

fn December of 2014, .I.P. met with Detective Wilf`red Yu|f`o who arranged

for her to call appellant to discuss the photograph The phone conversation was

made from J.P.`s cell phone to appellant`s cell phone from a police station in the

Districl and in Detective Yu|fo`s presence. J.P. Consented to the conversation

being recorded Appe|lant, however. was on a train traveling from New York to

D.C. at the time of the phone Convel'sation and indicated at the end of the

conversation that he was in Mary|and. During the conversation .I.P. asked

appellant why he took the photograph and then distributed it to others online.

Appellant responded that he was sorry he took the photograph and that he only sent

it to one other person. who then shared it with others online. J.P. also asked why

appellant staged items in the photograph He responded that it was an immature

thing “you do after you cross" (i`.e., to be accepted into a fraternity or sorority).

On August 12, 2015, appellant was charged by information with one count

of`Voyeurism I’rivacy,' subsequently amended to attempted voyeurism. Appellant

moved to suppress the phone recording on the grounds that appellant was in

Mary|and at the time ol`the callq where ordinarily two-party consent is required to

intercept a phone conversation On December 7, 2015, .ludge lose f\/f. Lopez

denied appellant`s motion to suppress, and appellant was found guilty of attempted

voyeurism based on the photograph, .I.P.`s testimony, and appellant`s audio

recorded admission. Appellant was sentenced to 90 days` incarceration, with

execution of the sentence suspended in favor of one year of supervised probation

and ninety hours ol`community serviee. Appel|ant now challenges his conviction

arguing that .ludge Lopez erred in denying his motion to suppress

' D.C. Code § 22-353| (c)( l }(B)~ (d) [2(]12 Repl.).

The issue before this court concerns the legality and admissibility of the

intercepted audio recording l\/lore particularly. the issue is whether a recording

made in the District of Columbia involving an interstate communication that only

one party consented to is admissible in our courts. ln this case. appellant argues

that a l\/laryland law, which limits the admissibility in Maryland courts of any

recorded conversation where both parties to the conversation did not consent to its

recording governs the admissibility of this recording at his criminal trial in the

Distl'ict, even though District of Columbia law is less restrictive ln essence

appellant argues that D.C. Code § 23-55\ (b)(l), the District of Columbia statute

that authorizes the suppression of “unlawfully intercepted" communications1 must

be interpreted in light ofMaryland law because he was in Maryland at the time the

communication was intercepted Appel|ant concedes that the intercept would have

been lawful under District of Columbia law ifboth parties had been in the District;

however. he contends that the District`s suppression statute is not expressly limited

to “`the law of`any particularjurisdiction," and therel`ore, the trial court should have

6

t 2

applied l\/laryland law under these circumstances We are not persuaded by

appellant`s arguments

"On appeal from a denial of a motion to suppress, we review the legal

conclusions of the trial court de novo and defer to its findings of fact." Lt'ons v.

Unitec/ Si‘ares, 833 A.Zd 481` 485 (D.C. 2003). We also review questions of

statutory interpretation de novo. Ho/ion'a_t‘ \'. Unired Sto.'es, 951 A.Zd 5()` ()() (D.C.

20()8). ln endeavoring to discern the meaning of any particular statute, “[t]he

primary and general rule of statutory construction is that the intent ofthe lawmaker

is to be found in the language that he or she used."' C`/or/c C`onsir. Grp., !nc. v.

District of Co/nrnhia Dep 't o/"Emp`r .S`ert's., 123 A.3d 199, 202-03 (D.C. 2()15)

(internal quotation omitted). "lnterpreting a statute or a regulation is a holistic

endeavor," whereby we consider a statute in the context of its entire statutoly

scheme and the language ol`surrounding and related paragraphs ll-“'.H. 1'. D. ll-".. 78

A.3d 327. 337 (D.C. 2013) (internal quotation omitted).

3 ln Mary|and it is unlawfuL in the absence of two-party consent. for “an

investigative or law enforcement officer acting in a criminal investigation or any

other person acting at the prior direction and under the supervision of an

investigative or law enforcement officer to intercept a wire, oral._ or electronic

communication" unless the intercept is to provide evidence for specific enumerated

offenses, ol` which voyeurism is not one. l\/ld. C`ode Ann.. Cts. & .lud. Proc. § 10-

402 [c)(.'£)(ii) (West 2015).

Under D.C. Code § 23-542." the legislature has clearly defined what acts of

interception disclosure, and use of wire or oral communications are lawful or

unlawful in the District of Columbia. ll` an intercepted audio recording does not

meet one of`the enumerated criteria, then under § 23-551 (b)( l )4 a defendant may

move to suppress The one-party consent recording here clearly falls within the

purview of our statute. See D.C. Code § 123-542 (b}(2). lt also provides that the

only exceptions are those "specifically provided in this subchapter." D.C. Code

§ 23-542 (a). While appellant argues that the language of§ 23-55| (bl( l ) does not

expressly limit the admissibility of recorded conversations to those lawfully

obtained under the District`s surveillance statute1 we do not read the statute as

incorporating the laws o|` any otherjurisdiction. Nowhere in this subchapter has

the legislature authorized the inclusion of the law of another jurisdiction despite

l "`lt shall not be unlawful under this section for . . . a person acting under

color of law to intercept a wire or oral communication where such person is a

party to the communication or where one of`the parties to the communication has

given prior consent to such interception . . . D.C. Code § 23-542 (b)(l).

“l "Any aggrieved person in any trial, hearing. or proceeding in or before any

count . . . of`the Llnited States or the District of Columbia, may move to suppress

the contents of any intercepted wire or oral communication or evidence derived

therefroln on the grounds that the communication was unlawfully intercepted."'

D.C. Code § 231-551 (b)( l ).

appellant`s attempts to suggest otherwise and we can think of no legitimate policy

justification for doing so.5 See also D.C. Code § 23-553 (b) (2012 Repl.) (persons

may testify in criminal cases about communications intercepted “in conformity

with" subchapter of D.C. Code including D.C. Code § 23-542).

ln addition our holding is consistent with how the federal courts have

addressed similar circumstances Evidence that is obtained in violation of state law

is nonetheless generally admissible in federal prosecutions so long as there has

5 Appellant relies on rt/Irrsio;‘r`r r'. Store, 591 A.?.d 481 (l\/ld. 1991). and the

l'vlaryland Code in support of his argument that the intercept was unlawfully

obtained l'lowever1 rlf!rrsrafa speaks to the admissibility of extraterritorially

intercepted communications under lvlaryland law. [d. at 485 (“[E]vidence

intercepted pursuant to more lenient statutory enactments of other jurisdictions

must comply with l\/laryland`s more restrictive standards before it may be lawfully

disclosed in a l\/laryland court."). fn that case, the contents of`the interception were

excluded not because Maryland purported to make the interception unlawful as a

matter of l\/laryland law even though it occurred in D.C., but rather because the

Maryland legislature had provided that only interceptions that met Maryland`s

requirements would be admissible as evidence in proceedings in Maryland. !d.

While rlflnsarfir does not control the admissibility of lawfully intercepted

communications in the District of Columbia, the same reasoning applies here.

District of Columbia law governing the admissibility of such evidence provides

that interceptions that meet District of Columbia requirements are admissible as

evidence in District proceedings Here the recording met the District`s

requirements and therefore, the evidence was properly admitted in court. As the

Maryland Court of Appeals recognized in fl»!rr.s'ta)‘r`x ““|\/laryland may not ordinarily

proscribe conduct occurring outside its bourrdaries." but could "regulate the

admissibility of evidence in its courts." !d. at 48(1. 'fhe same reasoning applies

with equal force in thc District ol`Columbia.

been compliance with all applicable federal requirements and the Four'th

Amendment. See Uniteci States r’. Ecirnomi, 718 F. Supp. 988. 993 (D.D.C. 1989)

(denying defendants` motion to suppress intercepted conversations that were

obtained contrary to the laws of l\/laryland as the intercepts were lawfully made

pursuant to federal law. and thus properly admissible in federal court);

RES'I`ATEr.-rEN'r (SECoND) or-‘ Cc_)Nl~'Ltc'r' or-' L./tws § 138 (1971) (‘“Tlre local law of

the forum determines the admissibility of evidence . . . ."). This general rule is

grounded in two sound policy considerations to allow otherwise (l) would permit

a foreign state to frustrate the legislative policy of another state in the enforcement

of its laws and (2) would create circumstances where a foreign court is having to

decide the breadth ofanother state`s laws1 decisions that are best left to that state to

make. See generofl_t' Urrr'ted States v. F_’)‘i)r:/reioier. 826 F.2d 200, 204 (2d Cir.

1987); Urn`teo' States r'. Sha)_"fer, 520 F.2d 13()9, 1372 (3d Cit'. 1975). We see no

compelling justification for why the laws of l\/laryland should be permitted to

frustrate the prosecution of crimes within the District of Columbia by excluding

lawfully obtained evidence within the District.

Because the interception of appellant`s phone conversation was lawfully

obtained under D.C. Code § 23-542q the trial court did not err in denying

appellant`s motion to suppress

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For' the foregoing reasons thejudgment of`the trial court is

A_f)"irmeci.