State v. Clark

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
Case No. 2023-0451
Citation: State v. Clark, 2024 N.H. 64

THE STATE OF NEW HAMPSHIRE

v.

MATTHEW CLARK

Argued: February 13, 2024
Opinion Issued: November 13, 2024

John M. Formella, attorney general (Anthony J. Galdieri, solicitor
general, on the brief and orally), for the State.

Becker Legal, PLLC, of Portsmouth (Leif A. Becker on the brief and
orally), for the defendant.

BASSETT, J.

¶1 In this interlocutory appeal, the defendant, Matthew Clark,
challenges an order of the Superior Court (Howard, J.) denying his motion to
suppress an audio recording made by the complainant without the defendant’s
consent. See Sup. Ct. R. 8. We conclude that suppression under RSA 570-A:6
(2001) is required only when there has been a felony violation of the
Wiretapping and Eavesdropping Law, RSA chapter 570-A, and remand for
further proceedings consistent with this opinion. See RSA ch. 570-A (2001 &
Supp. 2023).

¶2 We accept the statement of the case and facts as presented in the
interlocutory appeal statement and rely upon the suppression record for
additional facts as necessary. See In the Matter of Liquidation of Home Ins.
Co., 175 N.H. 363, 364 (2022). The defendant is charged with a felony count of
criminal threatening with a deadly weapon. See RSA 631:4, II (2016). The
complainant recorded a conversation between herself and the defendant in
which the defendant made potentially incriminating statements regarding the
alleged crime. The defendant was unaware that he was being recorded and did
not consent to being recorded. The complainant later reported the incident
giving rise to the charges to law enforcement, played the recording for the
officers, and gave them a copy of it.

¶3 The defendant moved to suppress the recording, arguing that it must
be excluded because it was made without his consent in violation of RSA
chapter 570-A. He asserted that RSA 570-A:6 prevents any recording made in
violation of any provision of RSA chapter 570-A from being received as evidence
at trial. The State objected.

¶4 The trial court denied the defendant’s motion to suppress. The trial
court concluded that “disclosure of an unlawful recording is a violation of the
[Wiretapping and Eavesdropping Law] only when the unlawful recording is a
felony offense.” See RSA 570-A:2, I (2001) (laying out conduct constituting
felony violation). The trial court determined that here, because the
complainant was a party to the communication, her interception of the
communication constituted only a misdemeanor violation under RSA 570-A:2,
I-a. See RSA 570-A:2, I-a (2001) (laying out conduct constituting misdemeanor
violation); see also RSA 570-A:1, III (2001) (defining intercept as, in part, the
recording of an oral communication). Accordingly, the trial court concluded
that because the complainant’s recording of the conversation constituted only a
misdemeanor violation of the Wiretapping and Eavesdropping Law, “disclosure
of that information would” not “be in violation of” RSA chapter 570-A. RSA
570-A:6. It therefore ruled that RSA 570-A:6 did not require suppression of the
recording.

¶5 The defendant moved for reconsideration, reasserting his argument
that RSA 570-A:6 requires suppression whenever an oral communication has
been intercepted in violation of any provision of RSA chapter 570-A. The trial
court denied the defendant’s motion and certified the following interlocutory
questions to this court:

[(1)] Whether the Trial Court erred as a matter of law when it failed to
suppress the audio recording which was recorded in violation of RSA

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 570-A when the recording only represented a misdemeanor violation of
RSA 570-A?

[(2)] Whether suppression of audio recordings that violate RSA 570-A is
only appropriate when there is a felony violation of the statute?

After we accepted the interlocutory appeal, we granted the defendant’s motion
to add a third question: Whether the complainant’s violation of RSA chapter
570-A rose to a felony violation of the chapter upon her disclosure of the
recording to law enforcement.1 We hold that suppression is required under
RSA 570-A:6 only when the information sought to be entered into evidence is
part of, or derived from, a communication intercepted in violation of the felony
provision of the Wiretapping and Eavesdropping Law.

¶6 When reviewing a trial court’s ruling on a motion to suppress, we
accept the trial court’s factual findings unless they lack support in the record
or are clearly erroneous, and we review its legal conclusions de novo. State v.
Minson, 173 N.H. 501, 504 (2020). Addressing the interlocutory questions
presents an issue of statutory interpretation. When interpreting statutory
language, we first examine the language of the statute and ascribe the plain
and ordinary meanings to the words used. State v. McLeod, 165 N.H. 42, 59-
60 (2013). We interpret 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, we do not look beyond the language of the statute to discern
legislative intent. Id.

¶7 We begin with the first and second questions. The defendant argues
that both misdemeanor and felony violations of the Wiretapping and
Eavesdropping Law require suppression under RSA 570-A:6 and, therefore,
that the trial court erred when it failed to suppress the recording at issue in
this case. We disagree.

¶8 RSA 570-A:6 provides that:

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 evidence in any trial . . .
before any court, [or] grand jury . . . if the disclosure of that information
would be in violation of this chapter.

1 To the extent the defendant’s brief raises issues beyond the scope of these three interlocutory

questions, we decline to address them. See State v. Hess Corp., 159 N.H. 256, 260 (2009).

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RSA 570-A:6 (emphasis added). The plain language of RSA 570-A:6 provides
that no intercepted communication may be received in evidence if the
disclosure of the communication violates the chapter. See id.

¶9 RSA 570-A:2, I, which lays out the elements of a felony offense, is
the only provision of RSA chapter 570-A that prohibits disclosure of an
intercepted communication. See generally RSA ch. 570-A. RSA 570-A:2, I,
provides that:

I. 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:

(a) Wilfully intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept, any telecommunication
or oral communication; [or]

...

(c) Wilfully 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;

....

RSA 570-A:2, I (emphases added). The prohibition on disclosure of intercepted
communications contained in RSA 570-A:2, I, applies only to a communication
intercepted in violation of “this paragraph,” meaning the felony offense
paragraph, RSA 570-A:2, I. RSA 570-A:2, I(c) (emphasis added); see State v.
Czekalski, 169 N.H. 732, 738-39 (2017) (holding that “this paragraph” in RSA
chapter 570-A means the specific roman numeral paragraph in which the
phrase appears). Therefore, the interception of a communication must violate
RSA 570-A:2, I, in order for the disclosure of that communication to constitute
a violation of the chapter that would require suppression under RSA 570-A:6.

¶10 The defendant argues to the contrary that the statute is ambiguous
because the “limiting provision” contained in RSA 570-A:2, I-a, which sets out
the elements of the misdemeanor offense, contradicts itself and that the
“overall statutory scheme indicates the legislature’s” intent that a one-party
recording is always a felony that requires suppression. We disagree.

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 [¶11] 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 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 (emphasis added). When read in its entirety,
RSA 570-A:2, I-a is neither ambiguous nor contradictory: in the absence of
certain enumerated circumstances, it is a misdemeanor for a person to
knowingly engage in one-party recording.2 See RSA 570-A:2, II (Supp. 2023)
(listing circumstances under which it is lawful to intercept a communication
without the consent of all parties). When RSA 570-A:2, I-a is read in
conjunction with the felony provision, it is clear that the legislature’s intent is
for a one-party recording where a person knowingly intercepted a
communication to be a misdemeanor violation, not a felony. RSA 570-A:2, I-a
specifically classifies the knowing one-party interception of a communication
as a misdemeanor. See RSA 570-A:2, I-a. By contrast, RSA 570-A:2, I,
requires a willful mens rea in order for a one-party interception of a
communication to be a felony. RSA 570-A:2, I; see also State v. Mueller, 166
N.H. 65, 68-69 (2014) (stating that misdemeanor and felony violations of RSA
chapter 570-A require proof of different mental states). We therefore reject the
defendant’s statutory construction argument that all one-party interceptions
are felonies, and that suppression is required.

¶12 Finally, the defendant also argues that, even if the trial court
correctly interpreted the relevant provisions of the Wiretapping and
Eavesdropping Law, the trial court erred in how it applied the relevant
provisions to the facts of this case. The defendant argues that the trial court
erred when it determined that the complainant’s recording of the conversation
constituted a misdemeanor violation and when it “fail[ed] to recognize that” the
subsequent disclosure of the one-party recording to the police constituted a
felony violation of the Wiretapping and Eavesdropping Law. See RSA 570-A:2,
I(c). Given that the defendant did not raise this argument in the trial court and
we have clarified that a one-party recording of a communication can be either a
misdemeanor or a felony depending upon the person’s mental state, we
conclude that a remand is necessary to allow the trial court to address this
issue in the first instance. See State v. Girard, 173 N.H. 619, 630 (2020)

2 A one-party recording is made by a party to the communication “without consent of all parties to

the communication.” RSA 570-A:2, I-a; see also State v. MacMillan, 152 N.H. 67, 68, 72-73
(2005) (describing detective’s preservation of internet private messages he was a party to without
the knowledge of the other party as a “one-party interception”).

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(remanding for trial court to consider issue after we clarified applicable law on
appeal).

¶13 In sum, we hold that suppression of a communication under RSA
570-A:6 is required only when the interception of the communication is a
felony violation of the Wiretapping and Eavesdropping Law. We remand to the
trial court for further proceedings consistent with this opinion.

Remanded.

MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred;
HANTZ MARCONI, J., sat for oral argument but did not participate in the final
vote.

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