State of New Hampshire v. Matthew Clark

1. Did the Trial Court commit plain error, err as a matter of law, and engage in an unsustainable use of discretion in making a finding that the recording was not subject to suppression under RSA 570-A:6?

2. Did the trial court err as a matter of law in making a finding of law that the recording was misdemeanor and not felony conduct?

3. Did the Trial Court err as a matter of law when it determined that only felony conduct is subject to suppression under RSA 570-A:6?

The Defendant stands accused of one Felony count of Domestic Violence – Criminal Threatening with a Deadly Weapon.

This Appeal follows a follows the Superior Court’s ruling on a Motion to Suppress initiated by the Defense on November 9, 2022 (App. 1) K.C., the Defendant’s wife, stands to be the State’s key witness in this case, and a necessary witness for its prosecution. Several months after the Defendant’s alleged conduct, Karianne Clark is alleged to have recorded a phone conversation between herself and the Defendant where he made inculpatory statements. The affidavit for the Defendant’s arrest alludes to this recording and relies upon it quite heavily in establishing probable cause. From the State’s pleadings in this matter it is clear that the audio recording and/or testimony regarding the same was presented to the Grand Jury. (App. 3) The audio recording was made in New Hampshire and is therefore governed by N.H. RSA 570-A. This recording was gained without the Defendant’s consent or knowledge and this was confirmed by K.C under oath at a March 16, 2022 hearing on a Domestic Violence Petition. (App. 3) The State made no argument that K.C. had recorded the Defendant without his consent but rather argued that K.C.’s violation of RSA 570-A only represented a misdemeanor and that therefore under their interpretation of the Statute, suppression was not applicable. The Superior Court denied the Defendant’s Motion to Suppress relying on State v. Ruggiero, 163 N.H. 129 (2011). (App. 23) This appeal followed.

The Appellant appeals the decision of the trial court arguing that the trial court erred as a matter of law in several respects.

First, the court erred as a matter of law in finding that the Court’s holding in Ruggiero was that only felony level conduct was subject to suppression under 570-A:6. State v. Ruggiero, 163 N.H. 129, 35 A.3d 616 (2011). Ruggiero was a narrow ruling based on the facts that none of the alleged conduct had actually occurred in New Hampshire. The Court in Ruggiero did not go so far as to hold that only Felony violations of RSA 570-A necessitated suppression. The Appellant also contends the trial court committed plain error in its interpretation of RSA 570-A:2, I-a. The Court reasoned that because I-a does not contain a clause that would penalize someone for disclosing an illegally obtained recording, the exclusionary provision of RSA 570-A:6 does not apply. The Appellant contends that if the recording falls under I-a, it does not preclude it from falling under 570-A:6.

The Appellant contends that the Court erred in determining that the alleged recording falls under RSA 570-A:I-a, and even if the conduct did fall under that paragraph, the act of disclosure removes it from paragraph I-a and places it in the arena of 570-A:2, 1. The Appellant contends that the plain language of RSA 570-A:I-a is, at best, ambiguous, and partially void for vagueness. When read in its entirety, the paragraph suggests if one party consents to the recording the conduct is a misdemeanor, but it is predicated by the phrase, “except as otherwise stated in this chapter or without the consent of all parties to the communication.” N.H. RSA 570-A:I-a (2016). This presents two ideas that cannot be held at the same time.

The Superior Court decision relies on the New Hampshire Supreme Court’s decision in Ruggiero. 163 N.H. 129 (2011). One matter at issue in that case was whether to admit audio/visual recordings and whether there had been a violation 570-A:6. Id. at 133-34. The Defendant in that case contacted the victim by phone and by text messages. Id. at 131-132. The Court ultimately determined that there was no violation of the New Hampshire wiretapping statute, but not because the recording party was one party to the conversation. Id. 134-35. “At the time the defendant made the phone calls, she was a California resident. Moreover, none of the calls to [the other party] originated in New Hampshire. Finally, the calls were intercepted in South Carolina, not New Hampshire... Because disclosure of the recordings did not violate RSA chapter 570-A, the exclusionary rule of RSA 570-A:6 in inapplicable.”

The New Hampshire Supreme Court’s Opinion was not that 570-A:6 did not apply to telecommunications recorded with the consent of only one party, only that the New Hampshire statute did not apply to that case because none of the conduct took place in New Hampshire. It was a very narrow ruling.

For our purposes, it will be helpful to define specific terms. According to N.H. RSA § 570- A:1, I defines “Telecommunication” as: “the transfer of any form of information in whole or in part through the facilities of a communications common carrier.” 570-A:1, II defines “Oral Communication” as: “any verbal communication uttered by a person who has a reasonable expectation that the communication is not subject to interception, under circumstances justifying such expectation.” 570-A:1, III defines “Intercept” as: “the aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of any electronic, mechanical, or other device.” Importantly, 570-A:1, V defines “Person” to mean: any employee, agent of the state or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.” (emphasis added). N.H. RSA § 570-A:2, I states in pertinent part: “A person is guilty of a class B Felony if, except as otherwise specifically provided in this chapter or without the consent of all parties to the communication, the person… (c)Willfully discloses, or endeavors to disclose, to any other person the contents of any telecommunication or oral communication, knowing or having reason to know that the information was obtained through the interception of a telecommunication or oral communication in violation of this paragraph (emphasis added); or (d)Willfully uses, or endeavors to use, the contents of any telecommunication or oral communication, knowing or having reason to know that the information was obtained through the interception of a telecommunication or oral communication in violation of this paragraph.

(emphasis added).

N.H. RSA § 570-A:2, I-a provides: “A person is guilty of a misdemeanor if, except as specifically provided in this chapter or without the consent of all parties to the communication, the person knowingly intercepts a telecommunication or oral communication when the person is a party to the communication or with the prior consent of one of the parties to the communication, but without the approval required by RSA 570-A:2, II(d), ” (emphasis added). Finally, the exclusionary clause in RSA 570-A:6 reads:

“Whenever any telecommunication or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a subdivision thereof, if the disclosure of that information would be in violation of this chapter.” (emphasis added).

The only parts of the chapter that list disclosure, or a like word, as a violation of the chapter are paragraph I, subparagraphs (c) and (d). The Superior Court has reasoned that if the conduct falls under I-a, 570-A:6 does not apply because I-a does not include disclosure as a violation.

The Court is the final arbiter of the legislature’s intent as it comes to the words expressed in a statute as a whole. State v. McCarthy, 150 N.H. 389, 390 (2003). The Court will construe provisions of the criminal code in fair import of their terms and in order to promote justice. State v. Candello, 172 N.H. 800, 801 (2020). They begin by looking at the plain language of the statute. Id. The Court will determine the legislature’s intent from the way the statute was written and will not add language or consider what the legislature might have said. State v. Proctor, 171 N.H. 800, 805 (2019). The Court gives effect to all words in a statute and assumes the legislature did not use superfluous or redundant words. Id. The statute is interpreted in the context of its overall scheme and not in isolation. Id.

As stated, I-a does not mention the act of using or disclosing which is what has led the Superior Courts to determine that RSA 570-A:6 does not apply. However, the statute is ambiguous. It states, “except as specifically provided in this chapter or without the consent of all parties to the communication, ” (emphasis added), but the statute goes on to say it is a misdemeanor if the person is a party to the conversation or if they have the permission of one of the parties, but, impliedly, not the others. The statute contradicts its own limiting provision. And if just having one party’s consent was the bar, there would be no need to include the provision about having the consent of all parties.

Additionally, the phrasing, “without the consent of all parties to the communication, ” is echoed in paragraph I. The overall statutory scheme indicates the legislature’s intention that when all parties are not consenting parties to a recorded conversation, the conduct falls under paragraph I, and suppression was appropriate.

Taken from a different perspective, the misdemeanor in paragraph I-a of RSA 570-A is the act of intercepting alone. It also makes specific mention of a separate paragraph allowing one-party recordings with the permission of the Attorney General or a County Attorney’s Office under certain circumstances. This suggests that this provision is partly put in place to allow for law enforcement to engage in this practice but also to discourage private citizens from engaging in these acts. For example, Mrs. X uses an application on her cell phone to capture a recording of a telephone conversation between herself and Mr. Y without Mr. Y’s knowledge. Mr. Y later learns of this and reports it to the police. Mrs. X is in violation of I-a; a simple misdemeanor. If we apply the scenario to the one at hand, the alleged victim records a telecommunication using an application on her phone. Mr. Clark allegedly makes inculpatory statements not knowing he is being recorded. This is a violation of I-a. However, as the statute is phrased, by disclosing this interception to the police, who should qualify as “any other person, ” the alleged victim is removing the conduct from paragraph I-a and placing it in I(c). This is both “specifically provided in [the] chapter, ” and it was done “without the consent of all parties to the communication.” The Superior Court’s interpretation that only felony conduct is subject to suppression could be correct, but fail to recognize that K.C’s conduct implicates a felony violation of the statute, in that the conduct becomes felonious once a communication that is intercepted without the consent of all parties gets disclosed to another, which includes agents of the state according to statutory definitions.

In accord with the foregoing, this Court should remand this case to the Strafford Superior for suppression of the audio recording and any testimony relating to the same along with dismissal of the indictment against the Defendant as this evidence was inappropriately presented to the grand jury in violation of RSA 570-A:6.

Counsel for Appellant Matthew Clark requests the opportunity for fifteen (15) minutes for oral argument before a full panel of justices.

I hereby certify a copy of the foregoing has been delivered through the electronic filing system on November 1 2023, to the Appellee’s Counsel

I hereby certify a copy of the decision appealed is included in the Appendix included with this brief.

Pursuant to Rule 26(7), I hereby certify that this Brief contains less than 9, 500 words, which complies with rule 16(11).