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Thomas v. United States

Court of Appeals of Columbia District

October 12, 2017

David Thomas, Appellant,
United States, Appellee.

          Argued April 20, 2017

         Appeal from the Superior Court of the District of Columbia (DVM-150I-I5) (Hon. Jose M. Lopez, Motions Judge) (Hon. Robert E. Morin, Trial Judge.

          Fletcher P. Thompson for appellant.

          Valinda Jones, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Marisa S. West, Assistant United States Attorneys, were on the brief, for appellee.

          Before McLEESE, Associate Judge, and WASHING ION and FARRELL, Senior Judges.

          Washington, Senior Judge

         David Thomas ("appellant") was found guilty of attempted voyeurism for photographing his sexual partner while she slept nude next to him and without her consent. Appellant sent the photograph to an unknown number of 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 recording, and therefore, the trial court erred in denying his motion to suppress. We affirm.


         In April of 2013, appellant and the victim, J.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. Unbeknownst to J.P., appellant photographed her exposed back and buttocks while she slept. This photograph, which was introduced into evidence, depicted J.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 father, which visibly displayed the victim's name in large letters, the Greek letters identifying her sorority, and a message from her family; 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.

         J.P. first became aware of the photograph's 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 later, J.P. received a text message from a sorority sister that included a screenshot of the photograph. Now that she possessed a copy of the photograph, J.P. promptly filed a police report.

         In December of 2014, J.P. met with Detective Wilfred Yulfo 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 District and in Detective Yulfo's presence. J.P. consented to the conversation being recorded. Appellant, however, was on a train traveling from New York to D.C. at the time of the phone conversation and indicated at the end of the conversation that he was in Maryland. During the conversation, J.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 Privacy, [1] subsequently amended to attempted voyeurism. Appellant moved to suppress the phone recording on the grounds that appellant was in Maryland at the time of the call, where ordinarily two-party consent is required to intercept a phone conversation. On December 7, 2015, Judge Jose M. Lopez denied appellant's motion to suppress, and appellant was found guilty of attempted voyeurism based on the photograph, J.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 of community service. Appellant now challenges his conviction arguing that Judge Lopez erred in denying his motion to suppress.


         The issue before this court concerns the legality and admissibility of the intercepted audio recording. More 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. In this case, appellant argues that a Maryland 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 District, even though District of Columbia law is less restrictive. In essence appellant argues that D.C. Code § 23-551 (b)(1), the District of Columbia statute that authorizes the suppression of "unlawfully intercepted" communications, must be interpreted in light of Maryland law because he was in Maryland at the time the communication was intercepted. Appellant concedes that the intercept would have been lawful under District of Columbia law if both parties had been in the District; however, he contends ...

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