# David Thomas v. United States

> District of Columbia Court of Appeals · October 12, 2017

URL: https://www.frixlaw.com/law-library/cases/4211008

## Case

- **Court:** District of Columbia Court of Appeals
- **Decided:** October 12, 2017
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Notice: Tltis opinion is subject to formal revision before publication in the
A tlantic' and il-Iarylaml Reporters. Users are requested to noti)jt the C/erk of the
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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

10

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

A_f)"irmeci.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4211008. Public record. Not legal advice.