CLOYD JAMES HOLMES v. STATE OF MARYLAND
Court of Special Appeals, Alpert, April 5, 2018,
Wiretap (Maryland) – A parent does not give “vicarious consent” to record on behalf of a child when she secretly records a conversation with the child without good faith that it is in the child’s best interest.
Facts:
In February of 2016, BB (an 8-year-old child) reported that 1-2 months earlier Holmes came into her bedroom and touched and licked her vagina. She also claimed that Holmes tried to have her touch his penis and made statements consistent with Holmes trying to have sex with her.
Montgomery County Police were contacted and a detective interviewed BB along with the family members.
Believing that BB was lying, BB’s mother used her cellular phone to secretly record a conversation with BB. During that converstaion, BB allegedly 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.
Holmes was eventually charged with sexual child abuse and sex offense.
At trial, Holmes tried to introduce the video tape, arguing that BB’s mother gave “vicarious consent” on BB’s behalf to the recording. The State objected, arguing that the tape was the result of an illegal wiretap. The trial judge denied Holmes’ motion and did not allow the video into evidence.
Holmes took the stand and testified that he did not abuse BB and suggested that BB made up the story because at a Christmas party he told BB that if she took another piece of cake he would “drop kick it” out of her hand. He also suggested that BB’s family put her up to accusing him of abusing her.
A jury found Holmes guilty of sexual child abuse and 3rd-degree sex offense.
Holmes appealed, arguing primarily that the video recording between BB and her mother should have been allowed into evidence.
Held: The Court of Special Appeals held that the video was properly kept out of evidence as the result of an illegal wiretap.
Wiretap (State) – Maryland Wiretap Law is largely similar to Federal Wiretap Law. One of the most significant exceptions relates to who has to give consent in order to allow a recording.
Wiretap (State) – A wiretap “intercept” involves acquiring the contents of a wire, electronic, or oral communication using a device
From the Case: The child’s mother “intercepted” the conversation with her child when she used her cellular phone (a device) to record what they were saying (acquiring the contents) while they spoke (of an oral communication – people speaking with a reasonable expectation of privacy).
Wiretap (State) – Under Maryland Wiretap Law, all of the parties to the communication must have given prior consent in order for the communication to be recorded.
Vicarious Consent – Some jurisdictions have allowed a parent to give consent on behalf of their child in cases where the child does not know and did not consent to being recorded. This is known as “vicarious consent.” However, these cases also require that the parent “has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child.”
From the Case: The trial court heard evidence and concluded that the recording was not done to protect BB, but was instead done to protect Holmes. Therefore, the trial court “did not err or abuse its discretion in declining to apply the doctrine of vicarious consent.”