State of New Hampshire v. Matthew Clark

II. Whether suppression of audio recordings that violate RSA 570 -A is only appropriate when there is a felony violation of the statute. (Id.) 1

III. Whether the alleged victim’s violation of RSA 570-A rose to a felony violation of the statute upon her disclosure of this audio to law enforcement. (Def.’s Assented To Motion To Add Issue at 1.)

The defendant is charged with felony-level Criminal Threatening with a Deadly Weapon. (Def.’s Appendix (“Appx.”) at 23.) He moved to suppress an audio recording under RSA 570-A:6 that the alleged victim, K.C., made of an oral communication between the two of them without the defendant’s consent. The State objected. The superior court resolved the motion without a hearing. It ruled that RSA 570-A:6 did not require exclusion of the recording from trial. The defendant moved for reconsideration. The superior court denied the motion. Approximately six months later, the defendant sought an interlocutory appeal on certain legal questions, which the superior court approved, and which this Court subsequently accepted.

“K.C., the alleged victim, recorded a conversation between herself and [the defendant] wherein [the defendant] made potentially incriminating statements.” (Def.’s Appx. at 23.) “Specifically, K.C. asked the defendant why he ‘did it, ’ to which [the defendant] stated he was drunk and realized the following morning what he had done.” (Id.) “At the time, [the defendant] did not consent to, and was unaware that he was being recorded.” (Id.) “On or about March 7, 2022, K.C. reported the incident giving rise to the charges to law enforcement.” (Id.) “During that conversation, she played the recording for the officers and provided them with a copy of it.” (Id.)

(Id.)

The State objected to the defendant’s motion to suppress. The State argued that RSA 570-A:6 prohibits an intercepted oral communication from being received in evidence at trial only if the subsequent disclosure of that information would be in violation of RSA chapter 570-A. (Def.’s Appx. at 6.)

(emphasis added). The State asserted that “before evidence of an intercepted communication is excluded, it must be shown not that the interception was illegal but that the disclosure of the intercepted communication is illegal under RSA 570-A.” (Id. ¶ 21.)

The superior court agreed with the State. It found that a “disclosure of an unlawful recording is a violation of the statu[t]e only when the unlawful recording is a felony offense.” (Def.’s Appx. at 24.) It observed that a felony violation occurs when a person acts “without the consent of all parties to the communication.” (Id. at 25.) The superior court also noted that a person commits a misdemeanor violation if “they ‘knowingly intercept[] a telecommunication when the person is a party to the communication...” (Id. (quoting RSA 570-A:2, I-a) (emphasis in the superior court order)). The superior court therefore concluded that “[b]ecause K.C. was a party to the recorded conversations, she did not commit a felony violation under RSA 570- A:2, but, rather, a misdemeanor violation under RSA 570-A:2, I-a.” (Id.) The superior court observed that other superior courts had reached similar conclusions. (Id. n. 1.) The superior court therefore denied the motion to suppress.

The defendant moved for reconsideration. (Def.’s Appx. at 27-28.) He re- asserted that RSA 570-A:6 makes exclusion of an audio recording mandatory when any violation of RSA chapter 570-A occurs. (Id. at 27, ¶¶ 2, 7.) The State did not file an objection. The superior court denied the motion for reconsideration explaining that it had addressed the legal issue raised therein in its original order. (Id. at 27.)

Like the defendant’s motion to reconsider, these certified legal questions essentially accept the superior court’s conclusion that the audio recording at issue constitutes a misdemeanor violation under RSA 570-A:2, I-a, but maintain that RSA 570-A:6 requires the suppression of even misdemeanor-level audio recordings. The superior court certified these specific questions of law for interlocutory review.

After this Court accepted the interlocutory appeal, the defendant moved to add a third issue: 3. Whether the alleged victim[’]s violation of RSA 570 -A rose to a felony violation of the statute upon her disclosure of this audio to law enforcement. (Def.’s Assented To Motion To Add Issue at 1.)

Based on the record the defendant has provided, it does not appear that this issue was ever raised with the superior court. This issue does not appear in the defendant’s motion to suppress, (State’s Add. at 25-26), or in the defendant’s motion for reconsideration, (Def.’s Appx. at 27). The State assented to the motion to add issue while preserving for briefing all substantive and procedural objections it may have to it. (Def.’s Assented To Motion To Add Issue at 1.)

The only issues appropriately before this Court and preserved for review are the two questions of the law contained in the interlocutory appeal statement. The superior court reviewed, approved, and certified those questions of law for transfer to this Court pursuant to Supreme Court Rule 8. The record does not reveal that the issue the defendant subsequently added to this appeal by motion was ever presented to the superior court in the first instance for review and resolution. That newly added issue is also materially different from the questions of law the superior court certified and transferred for review. This Court should therefore decline to reach that additional issue. The first and second questions presented in the defendant’s brief were also not preserved for review below. This first question presented in the defendant’s brief is far broader than the first question of law presented in the interlocutory appeal statement and invokes concepts of plain error and an unjustifiable use of discretion that do not appear to have been presented to the superior court in the first instance for resolution. The second question presented in the defendant’s brief was not in the interlocutory appeal statement and conflicts with the factual predicate on which the original certified questions of law are based by inviting this Court to review the superior court’s conclusion that the audio recording amounted to misdemeanor-level conduct under RSA chapter 570-A.

Accordingly, this Court should limit the first question presented for review in the defendant’s brief to the scope of the first question of law contained in the interlocutory appeal statement and should decline to reach the second question presented in the defendant’s brief because the record on appeal does not reveal that it was ever presented to the superior court for review and resolution.

The third question presented for review in the defendant’s brief is sufficiently analogous to the second question of law certified and transferred by the superior court.

The superior court correctly concluded that the audio recording should not be suppressed under RSA 570-A:6. RSA 570-A:6 prohibits an intercepted oral communication from being “received in evidence in any trial..., if the disclosure of that information would be in violation of this chapter.” (emphasis added). RSA 570-A:2, I, the felony-level violation provision of the statutory chapter, is the only provision in RSA chapter 570-A that prohibits the disclosure of an intercepted oral communication. RSA 570-A:2, I makes the disclosure of such an interception a felony only when the disclosed audio recording violates another provision of paragraph I. RSA 570-A:2, I(c)-(d). The defendant did not prove or otherwise show below that the victim’s interception of his oral communication violated a provision of RSA 570-A:2, I, as a matter of law or fact. The superior court therefore correctly concluded that the audio recording was not excludable from evidence under RSA 570-A:6. Its decision should be affirmed.

“It is a long-standing rule that parties may not have judicial review of matters not raised in the forum of trial.” Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). “This rule, grounded in common sense and judicial economy, gives the trial court an opportunity to consider alleged errors and to take remedial measures when necessary....” State v. McAdams, 134 N.H. 445, 447 (1991) (internal quotations and citations omitted). “It is the burden of the appealing party... to provide this court with a record sufficient to decide h[is] issues on appeal, as well as to demonstrate that []he raised h[is] issues before the trial court.” Bean, 151 N.H. at 250.

These rules are particularly persuasive in the interlocutory appeal context because the case has not yet ended. Thus, the trial court still has an opportunity to pass on issues that were not initially raised and may revisit its interlocutory orders. See State v. Poirier, 136 N.H. 477, 479-80 (1992) (holding that the trial court has discretion to reconsider interlocutory rulings and therefore could reconsider its preliminary decision granting the defendant’s motion in limine). And this Court generally declines to address issues that exceed the scope of the questions presented in the interlocutory appeal statement. See, e.g., State v. Hess Corp., 159 N.H. 256, 260 (2009); Everitt v. GE, 156 N.H. 202, 207-08 (2007). Three of the questions the defendant seeks to have this Court review exceed the scope of the questions presented in the interlocutory appeal statement, and the record on appeal does not reveal that the defendant raised these issues with the superior court prior to raising them with this Court.

The defendant’s Assented To Motion To Add Issue adds an issue that was never raised with, addressed by, or resolved by the superior court. This Court should therefore decline to address it.

The first question presented in the defendant’s brief is far broader than the first question of law presented in the interlocutory appeal statement. Specifically, the first question presented in the interlocutory appeal statement accepts the superior court’s conclusion that the audio recording in this case constitutes only a misdemeanor violation of RSA chapter 570-A. The first question presented in the defendant’s brief, however, is not so limited and invokes concepts of plain error and an unjustifiable use of discretion in “finding” generally that the audio recording “was not subject to suppression under RSA 570-A:6.” This Court should therefore limit the first question presented in the defendant’s brief to the first, narrower question of law presented in the interlocutory appeal statement.

The second question presented in the defendant’s brief is not in the interlocutory appeal statement and conflicts with the factual predicate on which the original certified questions of law are based. Specifically, the second question presented in the defendant’s brief invites this Court to review and overturn the superior court’s conclusion that the audio recording constituted misdemeanor-level conduct under RSA chapter 570-A. The questions of law certified and transferred for review by the superior court accept as a factual premise that the audio recording at issue constitutes solely misdemeanor-level conduct, and the record provided on appeal does not reveal that the defendant ever argued to the superior court that the audio recording actually constituted felony-level conduct under RSA chapter 570-A. This Court should therefore decline to reach the second question presented in the defendant’s brief as being beyond the scope of the questions of law contained in the interlocutory appeal statement.

Accordingly, this Court should limit its review in this case solely to the two questions of law contained in the interlocutory appeal statement and find all of the other issues the defendant attempts to raise not preserved and therefore beyond the scope of this interlocutory appeal.

“Whether RSA chapter 570-A precludes disclosure of the contents of an intercepted communication presents an issue of statutory interpretation.” State v. McLeod, 165 N.H. 42, 59 (2013). “In matters of statutory interpretation, ” this Court is “the final arbiter of legislative intent as expressed in the words of the statute considered as a whole.” Id. This Court “first examine[s] the language of the statute and ascribe[s] the plain and ordinary meanings to the words used.” Id. at 59-60. It “interpret[s] statutes in the context of the overall statutory scheme and not in isolation.” Id. at 60. “If the statute’s language is clear and unambiguous, ” this Court “do[es] not look beyond the language of the statute to discern legislative intent.” Id.

RSA 570-A:6 prohibits an intercepted oral communication from being “received in evidence in any trial..., if the disclosure of that information would be in violation of this chapter.” (emphasis added). RSA 570-A:2, I, the felony- level violation provision of the statutory chapter, is the only provision in RSA chapter 570-A that prohibits the disclosure of an intercepted oral communication. RSA 570-A:2, I makes the disclosure of such an interception a felony only when the disclosed audio recording violates another provision of paragraph I, RSA 570-A:2, I(c)-(d), and, even then, only when the disclosure is done “willfully.”

The only provision of RSA 570-A:2, I that prohibits the interception of an oral communication is RSA 570-A:2, I(a). It provides in full as follows:

RSA 570-A:2, I-a is the more specific statute addressing what happens if a person knowingly intercepts an oral communication to which the person is a party. See State v. Cheney, 165 N.H. 677, 683 (2013) (“To the extent two statutes conflict, the more specific statute controls over the general statute.”). It provides in full as follows: I-a. A person is guilty of a misdemeanor if, except as otherwise specifically provided in this chapter or without 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).

RSA 570-A:2, I-a’s prohibition specifically applies to a situation, like the situation presented in this case, where one of the parties to the oral communication has consented to its interception by knowingly recording it. And RSA 570-A:2, I-a does not contain a prohibition on subsequent disclosure of such an interception.

Under this statutory regime, the superior court correctly found the audio recording in this case to constitute a misdemeanor-level violation of RSA 570- A:2, I-a, as opposed to a felony-level violation of RSA 570-A:2, I. The alleged victim recorded the conversation between her and the defendant while she was a party to it. She therefore consented to its interception. See, e.g., State v. Moscone, 161 N.H. 355, 363-64 (2011) (holding that party to a conversation implicitly consents to its recording when the party utilizes technology to engage in the conversation that the party knows records the conversation); State v. Lott, 152 N.H. 436, 438 (2005) (same); Fischer v. Hooper, 143 N.H. 585, 597 (1999) (holding that trial court’s jury instruction that “[c]onsent may be express or it may be implied from the conduct of the person under all the surrounding circumstances” “fairly covered the issue of consent”). The alleged victim’s conduct therefore falls squarely within RSA 570-A:2, I-a’s specific prohibition, and her conduct is excepted from RSA 570-A:2, I because the consequence for that conduct is “otherwise specifically provided” for in RSA chapter 570-A. Accordingly, the superior court correctly ruled that RSA 570-A:6 did not preclude it from receiving the audio recording into evidence at the trial of this matter.

In urging a different result, the defendant asserts that RSA 570-A:2, I-a is ambiguous. (Def.’s Brief at 8). He avers that the statute contradicts itself because the phrase “without the consent of all parties to the communication” as used in it conflicts with the remainder of the prohibition. He asserts that “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.” Id. The defendant’s arguments are incorrect.

RSA 570-A:2, I-a provides that “[a] person is guilty of a misdemeanor if, except as otherwise specifically provided in this chapter or without consent of all parties to the communication, the person knowingly intercepts a... oral communication when the person is a party to the communication..., but without the approval required by RSA 570-A:2, II(d).” The phrase “except as otherwise specifically provided in this chapter” removes the type of specific conduct at issue in this case from the scope of RSA 570-A:2, I, and places that conduct in RSA 570-A:2, I-a, the more specific prohibition for this type of one- party consent circumstance. The phrase “without consent of all parties to the communication” does not operate as a bar in either statute; it simply makes clear that you do not proceed to the substantive prohibition unless you lack the consent of all the parties. Consequently, RSA 570-A:2, I-a does not contradict itself—the language related to having the “consent of all the parties” describes circumstances in which no violation of the paragraph occurs, and the language related to a person intercepting a communication to which they were party describes specific circumstances in which a violation of the paragraph does occur.

I(a).

For the first time on appeal, the defendant asserts that “by disclosing this interception to the police... the alleged victim is removing the conduct from [RSA 570-A:2, I-a] and placing it in [RSA 570-A:2, I(c)].” (Def.’s Brief at 9). As explained in Section I above, the defendant did not preserve this argument in the trial court, and the issue is not contained in the interlocutory appeal statement. The defendant has also not developed this argument in any meaningful way in his brief. As explained earlier, to establish a violation of RSA 570-A:2, I(c), a defendant must show that the interception violates “this paragraph, ” meaning RSA 570-A:2, I. The defendant fails to explain how an interception that only violates a different paragraph of the statute, in this case RSA 570-A:2, I-a, could ever establish a violation RSA 570-A:2, I(c) under the plain text of that statute. For these reasons alone, this Court should decline to reach this issue.

This Court should also decline to reach this issue because it is irrelevant to whether RSA 570-A:6 precludes the audio recording from being received into evidence at trial. RSA 570-A:6 prohibits an intercepted oral communication from being “received in evidence in any trial..., if the disclosure of that information would be in violation of this chapter.” The “disclosure” that RSA 570-A:6 concerns is the disclosure to the trial court, not a disclosure to law enforcement, and the alleged victim will not be the person attempting to enter the audio recording into evidence at trial. Consequently, whether the alleged victim’s disclosure of the audio recording to law enforcement constitutes a felony-level violation of RSA 570-A:2, I(c) is irrelevant to whether RSA 570- A:6 prohibits the trial court from receiving the audio recording into evidence at trial.

Finally, if the Court chooses to address this issue in further detail on the merits, it should be rejected for the same reasons the State has set forth in Section II above. As a matter of statutory interpretation, the alleged victim’s disclosure of the audio recording to law enforcement does not violate RSA 570- A:2, I(c) because the recording’s interception amounts to a violation of a different statutory paragraph, RSA 570-A:2, I-a.

Even if the audio recording in this case could somehow fall within RSA 570-A:2, I(c), no factual record exists showing that the alleged victim “willfully” intercepted the oral communication. Under RSA 570-A:2, I, “willfully” means that “the defendant must act with an intentional or reckless disregard for the lawfulness of his conduct.” Fischer v. Hooper, 143 N.H. 585, 589 (1999). In other words, a person “has not violated RSA 570-A:2, I, if he has a good faith belief that [his] conduct was lawful.” Id. (internal quotations omitted). Absent a factual record establishing that the alleged victim intercepted the audio recording “willfully, ” a disclosure violation under RSA 570-A:2, I cannot be established. And absent a disclosure violation under RSA 570-A:2, I, RSA 570-A:6 is not implicated. Consequently, even if the audio recording in this case fell within RSA 570-A:2, I, the appropriate remedy in this case would be to reverse and remand for the trial court to determine as a factual matter whether a violation of RSA 570-A:2, I actually occurred.

This Court should limit its review in this matter to the questions of law presented in the interlocutory appeal statement and find all other issues not preserved. This Court should also find that RSA 570-A:6 does not preclude audio recordings that fall within RSA 570-A:2, I-a from being received into evidence at trial because the disclosure of such audio recordings to the trial court would not violate a provision of RSA chapter 570-A. Accordingly, this Court should affirm the superior court’s decision below and remand the matter for further proceedings. If, however, this Court concludes that the audio recording in this case falls within RSA 570 -A:2, I, this Court should reverse the superior court’s order and remand the matter for the trial court to determine as a factual matter whether a violation of RSA 570-A:2, I has actually occurred.

I, Anthony J. Galdieri, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 3, 962 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

December 14, 2023 /s/ Anthony J. Galdieri Anthony J. Galdieri

I, Anthony J. Galdieri, hereby certify that a copy of the State’s brief shall be served on Leif A. Becker, Esq., counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system. December 14, 2023 /s/ Anthony J. Galdieri Anthony J. Galdieri