April 20, 2017
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.
McLEESE, Associate Judge, and WASHING ION and FARRELL, Senior
Washington, Senior Judge
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.
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.
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.
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).
August 12, 2015, appellant was charged by information with
one count of Voyeurism Privacy,  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.
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 ...