Circuit Court for Montgomery County Case #129068
Deborah S., Graeff, Alpert, Paul E. (Senior Judge, Specially
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.
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.
AND LEGAL PROCEEDINGS
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
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.
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.
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
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
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.
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
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
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."
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.
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
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.
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.
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.
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.
shall add facts in our discussion of the issues raised by
Exclusion of Cell Phone Recording
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.
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.
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.
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.
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
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.
Standards Governing Evidence Challenged Under the Maryland
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
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.
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
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").
"[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.
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.
Scope of Maryland Wiretap Act
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."
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
Seal, 447 Md. at 70-71 (citations omitted).
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
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
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
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.
"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 ...