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Holmes v. State

Court of Special Appeals of Maryland

April 5, 2018

CLOYD JAMES HOLMES
v.
STATE OF MARYLAND

          Circuit Court for Montgomery County Case #129068

          Eyler, Deborah S., Graeff, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.

          OPINION

          ALPERT, J.

         In this appeal, we consider whether a parent's surreptitious use of her cell phone to record a face-to-face conversation with her child may be used as evidence in a criminal trial of a third party. We shall hold that in the circumstances presented here, the recording was prohibited under the Maryland Wiretap Act, Md. Code (2013 Repl. Vol., 2017 Supp.), § 10-401 et seq. of the Courts and Judicial Proceedings Article ("CJP"). Moreover, we conclude that even if we were to recognize a narrow "vicarious consent doctrine" under which a parent may be deemed to have consented to a recording on behalf of his or her child, the recording in this case would not be admissible because appellant failed to establish that it was made in good faith for the benefit of the child.

         A jury in the Circuit Court for Montgomery County convicted Cloyd James Holmes, appellant, of sexually abusing an eight-year-old girl and a related third-degree sex offense. Appellant was sentenced to a total of twelve years, with all but six years suspended, plus five years of supervised probation. He presents three questions for our review:

1. Did the circuit court err in preventing the defense from introducing a cell phone recording on the grounds that the recording violated Maryland's wiretap statute?
2. Did the circuit court err in limiting the defense's questioning of the lead detective?
3. Did the circuit court err in excluding other relevant evidence? Concluding there was no error or abuse of discretion, we shall affirm appellant's convictions.

         FACTS AND LEGAL PROCEEDINGS

         Because appellant does not challenge the sufficiency of the evidence supporting his convictions, our summary of the trial record provides context for the issues raised in this appeal. See Washington v. State, 180 Md.App. 458, 461 n.2 (2008).

         The charges against appellant stemmed from a single incident of sexual assault reported by B.B., who is the daughter of appellant's girlfriend, Ashley B. At the time of the incident, appellant and Ashley B. lived in an apartment, together with the couple's one-year-old son, eight-year-old B.B., and her five-year-old brother. The State's prosecution theory was that while B.B. was sleeping in her bed one night, appellant woke her; touched her vagina with his mouth, finger, and penis; then asked her to touch his penis. In support, the State presented testimony from B.B. as well as individuals to whom she reported the assault, including three family members, a police detective, and a pediatrician.

         B.B. recounted that the incident occurred between Christmas 2015 and New Year's Day. That night, while the rest of the family was asleep in other bedrooms, appellant entered her bedroom wearing a robe and "went under [her] cover for the tablet, " which was "a pink Kindle." He pulled down her pajama pants and underwear, put a pillow over her face, got on his knees between her legs, touched his "private part" to her private part, used his index finger to touch the outside of her private part, and "licked" her private part. She used an anatomical drawing to identify her vagina as her private part and appellant's penis as his private part.

         When appellant asked her to go to the living room, she put her clothes back on and did so. B.B. testified that appellant then took a "vinegary color" substance out of a little glass cup, put it on his "private part, " "asked [her] to rub it[, ]" and rubbed it "[a] little bit" with his own hand. When she refused to touch his private part, he asked again. After she said no a second time, appellant "said I'm sorry" and asked if she wanted to play on her tablet. The next day, when B.B. got home from school, appellant repeated his apology and warned her that if she told anyone, there "will be consequences, " which "scared" her because she understood him to mean that "[s]omething bad will happen."

         Around Valentine's Day, B.B. reported the incident to her grandmother and great-aunts. That day, she first told her Aunt Alandria (also known as Aunt Langie), who then called Aunt Eboni (also known as Aunt Bebe) and her grandmother Pamela Walters. All three women testified that on February 13, 2016, each individually spoke with B.B., who recounted the incident consistently during separate conversations. Pam Walters testified that B.B. told her that "after Christmas" appellant

came into my room looking for the tablet. So then he went to pull my underwear down, but I was pulling them back up. Then he got them down. He took them off, and she said he played with me down there, then he kissed me down there, and he tried to use his finger, but his fingernail was hurting me, so I started to cry. And she said he took a pillow and he put it over her face to muffle her crying, and then she said he went and got some type of ointment and put it on his penis and tried to get her to touch it, but she was reluctant to touch it. But she said he attempted to bend her over, but she wouldn't bend when he was attempting to.

         B.B. talked to a police officer the day after she reported the abuse to her family members. Montgomery County Police Detective Leonor Diaz, the lead investigator assigned to the case, interviewed B.B. Later, B.B. also recounted the incident to Dr. Evelyn Shukat, a pediatrician who testified at trial as an expert in child abuse reporting and evaluation.

         On cross-examination, B.B. testified that she talked to her mother after coming home from the police station. When her mother asked why B.B. did not first tell her about the incident, the child answered, "because I was scared." Although she denied asking her mother "what would happen if . . . [she] had lied in [her] statement to the police, " she then recalled that she asked, "will I go to jail if I lie?" B.B. later explained on re-direct that she asked her mother, "if I ever lie about something, will I have to go to jail. And then she said I won't." B.B. also recalled that during that conversation, Ashley B. went to the kitchen cupboard, "took out the cup" that appellant used during the incident, and asked "was this the cup that the stuff was in and [B.B.] said it was." When her mother asked "if it was just a dream, " B.B. "said it wasn't."

         On cross-examination, B.B. also acknowledged that during a Christmas party at her grandparents' house around the time of the incident with appellant, there was a heated argument between appellant and her aunts, after appellant told B.B. that if she took another piece of cake, he would "drop kick it out of [her] hand."

         Appellant, testifying in his defense, denied any sexual contact with B.B. He suggested that after the Christmas Day altercation, B.B. fabricated the incident with the encouragement of her grandmother and aunts.

         By Christmas 2015, appellant and B.B.'s mother had been in a relationship for two to three years. The "blended family" lived in a three bedroom apartment in Silver Spring. Although B.B. initially told him that he would never be her father, they eventually grew closer, and he read books to her, helped her with homework, and watched television together.

         But there was friction with Ashley B.'s aunts and mother, which was evident in the Christmas Day 2015 altercation at the residence of Ashley B.'s aunt, Alandria Walters. During that family gathering, appellant admitted that he told B.B. that if she took more cake, he would knock it out of her hand. Alandria Walters yelled at him, saying, "You're not even her real father." Appellant, who had been drinking, became upset, spoke with Pam Walters and her husband, then left.

         Ashley B., mother of B.B., testified in appellant's defense. According to both Ashley B. and appellant, when B.B.'s school break began around December 21, the child stayed with her grandmother, Pam Walters, and did not return home to sleep until after New Year's.

         As detailed below in Part I of our discussion, after B.B. reported the incident, Ashley B. used a "voice recorder" application installed on her cell phone to record a conversation she had with B.B. Ashley B. told Detective Diaz about the recording but never sent it to her. When police came to search her home, Detective Diaz took Ashley B.'s cell phone into another room. When the phone was returned, the recording was no longer stored on it. But by then, Ashley B. had sent the recording to appellant's mother and his defense lawyer.

         Although the trial court granted the State's motion to exclude that recording, Ashley B. testified about her conversation with B.B. According to Ashley B., her daughter discussed the incident, then asked "what would happen to her if it really didn't happen, " and asked whether she would go to jail if she lied, while looking down and away from her mother. Ms. B. told her that she did not know what would happen. Based on that conversation, Ashley B. did not believe B.B.'s accusation of appellant. But she did not ask B.B. whether she lied.

         We shall add facts in our discussion of the issues raised by appellant.

         DISCUSSION

         I. Exclusion of Cell Phone Recording

         Under Md. Rule 5-104(a), admissibility of evidence is preliminarily decided by the trial court. Appellant contends that the trial court erred or abused its discretion in excluding Ashley B.'s recording of her oral conversation with her eight-year-old daughter, B.B. It was undisputed that the recording was made by Ashley B. using an application (commonly referred to as an "app") on her cell phone, without her daughter's knowledge or permission.

         The State moved to exclude the recording on the grounds that it was both inadmissible hearsay and an unlawful interception under the Maryland Wiretap Act, CJP § 10-402(a). Appellant countered that the wiretap statute does not apply to a recording made in these circumstances and that even it if does, the recording should have been admitted under the doctrine of vicarious consent and Md. Rule 5-806, the impeachment exception to the rule against hearsay.

         Declining to reach the hearsay question, the trial court excluded the recording as an unlawful interception under CJP § 10-402(a). The court also declined to decide whether Maryland recognizes a doctrine of vicarious consent that would allow a parent to consent to any recording made in good faith for the benefit of her child. Based on voir dire testimony and proffers from counsel, the court determined that even if the vicarious consent doctrine were available, it would not apply to Ashley B.'s recording because appellant failed to establish that she made it for the protection of B.B.

         Appellant asserts that "the circuit court erred in preventing the defense from introducing [the] cell phone recording on the grounds that the recording violated Maryland's wiretap statute." He offers several alternate theories in support of its admissibility. First, he contends that the statute "does not apply to a parent's recording of his or her minor child in the privacy of the home." If the statute does apply, he maintains that the court erred in failing to admit the recording under the doctrine of vicarious consent. Finally, appellant maintains that even if the recording was unlawful, the trial court abused its discretion in ordering exclusion rather than a lesser remedy and in refusing to allow it to be used for impeachment purposes under Rule 5-806.

         The State advances two reasons to affirm the trial court's decision, arguing that "[e]ither rationale represented an independent bar to the admission of the audio recording[.]" First, the State asks us to affirm on the ground not reached by the trial court, i.e., that the recording was inadmissible hearsay, not subject to the impeachment exception in Md. Rule 5-806. Alternatively, the State argues that the trial court did not err in excluding the recording as a violation of Maryland's anti-wiretapping statute, based on evidence and proffers that Ashley B. did not make the recording for the protection of B.B.

         For the reasons explained below, we hold that the trial court did not err or abuse its discretion in excluding the recording under the Maryland Wiretap Act.

         A. Standards Governing Evidence Challenged Under the Maryland Wiretap Act

         In this appeal, we review the trial court's exclusion of evidence under the Maryland Wiretap Act, which provides that unless expressly exempted under the statute, an oral communication recorded in Maryland without the consent of all parties to the conversation is not admissible at trial, either as substantive evidence or impeachment evidence. See Seal v. State, 447 Md. 64, 71-72 (2016). CJP § 10-402(a)(1) states that, "[e]xcept as otherwise specifically provided in this subtitle, it is unlawful for any person to . . . [w]illfully intercept . . . any . . . oral . . . communication[.]" To "intercept" means "the aural or other acquisition of the contents of any . . . oral communication through the use of any electronic, mechanical, or other device." CJP § 10-401(10). "[A]ny conversation or words spoken to or by any person in private conversation" qualifies as an "oral communication." CJP § 10-401(13)(i). The willfulness mens rea does not require a showing of "bad motive" or "knowing unlawfulness." See Deibler v. State, 365 Md. 185, 199 (2001). It is sufficient to show that there was an intentional, rather than inadvertent or negligent, interception. Id. Cf. Boston v. State, 235 Md.App. 134, 150-51 (2017) (when jail unintentionally recorded a third person who was added to an inmate call after notice was given that the call was being recorded, the conversation was not "willfully intercepted").

         Although the statute has an exemption for oral communications, it requires the consent of all participants to the recorded conversation. Pursuant to § 10-402(c)(3),

[i]t is lawful under this subtitle for a person to intercept a[n] . . . oral . . . 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.

(Emphasis added.)

         In this respect, Maryland's statute is more restrictive than the analogous federal statute and other state laws that require the consent of only one party to the recorded conversation. As the Court of Appeals has explained,

the two-party consent provision of the Maryland Wiretap Act is "a departure from the federal act" and is "aimed at providing greater protection for the privacy interest in communications than the federal law." Indeed, we have recognized that the provisions of the Maryland Wiretap Act constitute a declaration of the public policy of this State. In explaining its importance and history we stated:
The requirement of consent by all parties for the recording . . . by a private individual has been a fundamental part of Maryland law since at least 1956, and the one attempt by the Legislature, in 1973, to modify that provision met with a veto in which the Governor expressed his deep concern that the "opportunity for unwarranted spying and intrusions on people's privacy authorized by this bill is frightening." . . . Under long-standing Maryland law, therefore, a party to a telephone conversation does not take the risk that another party, not acting as, or under the direction of, a government agent, will record and divulge the contents of the conversation[.]
The "departure" by the Maryland Wiretap Act in the consent exception - "the most important exception" in wiretap statutes - demonstrates a clear legislative intent that Maryland law afford greater privacy than does the federal wiretap statute.

Seal, 447 Md. at 73-74 (citations and footnotes omitted).

         In addition, the Court of Appeals has repeatedly instructed that "the procedures underlying the Maryland Wiretap Act and its exceptions must be strictly followed." Id. at 71. Accordingly, "[w]henever one unlawfully intercepts such a communication, it is inadmissible in any court proceeding." Id. See CJP § 10-405 ("no part of the contents of the communication . . . may be received in evidence in any trial").

         Because "[a] communication that is intercepted unlawfully under the Wiretap Act may not be received in evidence at trial[, ]" we conduct a de novo review to determine whether the trial court was legally correct in its interpretation of that law. Boston, 235 Md.App. at 145. See Seal, 447 Md. at 70. In doing so, "[w]e give no deference . . . to the question of whether, based on the facts, the trial court's decision was in accordance with the law." Seal, 447 Md. at 70.

         B. Appellant's Challenges

         Appellant argues that that the trial court erred in excluding Ashley B.'s recording of her conversation with B.B. because that recording "was outside the reach of Maryland's wiretap statute." In support, appellant maintains that (1) the statute does not apply to a parent's surreptitious audio recording of a private conversation with her child, using a standard app on a cell phone; (2) even if the wiretap act applies to a parent's recording of her child, the recording by Ashley B. is admissible under the doctrine of vicarious consent; (3) exclusion was an unwarranted and excessive remedy for any violation of the wiretap act; and (4) the recording is otherwise admissible as impeachment evidence under Md. Rule 5-806. We shall address - and reject - each of appellant's contentions in turn.

         1. Scope of Maryland Wiretap Act

         Appellant argues that "[n]othing suggests that the General Assembly intended to preclude the type of recording at issue here, concluding otherwise would lead to absurd results, and any ambiguity must be resolved in [his] favor." In his view, "it is absurd to contend that the General Assembly intended for the wiretap statute to cover recordings made by a parent of her child within the privacy of their home."

         When interpreting the Maryland Wiretap Act, our

goal is "to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied." We must begin with the well-established canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. If the language is clear and unambiguous on its face, that is the end of our inquiry. If, however, the language is ambiguous, we move on to examine case law, the structure of the statute, statutory purpose, and legislative history to aid us in ascertaining the intent of the General Assembly. Additionally, statutes "should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory."

Seal, 447 Md. at 70-71 (citations omitted).

         Subject to exceptions not pertinent here, CJP § 10-402(a)(1) makes it "unlawful for any person to . . . [w]illfully intercept . . . any . . . oral . . . communication[.]" Appellant tacitly concedes that the conversation between Ashley B. and her daughter qualifies as an oral communication but contends that the recording itself was not an unlawful interception because of the electronic device used to make it. Specifically, appellant relies on the definition of "intercept" as "the aural or other acquisition of the contents of any . . . oral communication through the use of any electronic, mechanical, or other device[, ]" CJP § 10-401(10) (emphasis added), which in turn is defined as

any device or electronic communication other than:
Any telephone or telegraph instrument, equipment or other facility for the transmission of electronic communications, or any component thereof, (a) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business[.]

CJP § 10-401(8)(i) (emphasis added). In appellant's view, "[i]t is difficult to conceive of how Ms. B.'s use of a pre-installed 'app' on her cell phone, to record a conversation with her daughter in the privacy of their home, is anything other than 'ordinary' use of the device."

         We disagree. To the contrary, we find it difficult to conceive how the use of a cell phone by a private citizen to secretly record a face-to-face oral conversation without the consent of all participants is anything other than a presumptive violation of Maryland's wiretap law.

         The "ordinary course" language that appellant has "cherry-picked" out of the definition of "electronic, mechanical, or other device" does not apply in this scenario. This is the so-called "extension line" exemption that is designed to ensure that recording on a "landline" phone "in the ordinary course of business, " from an extension phone, does not qualify as interception of an oral communication. See generally Adams v. State, 289 Md. 221, 227-29 (1981) (holding that a telephone extension is not an "electronic, mechanical, or other device" when used to intercept oral communications). Using a recording app installed on a cellular phone to record a face-to-face personal conversation is not ...


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