State v. O'BRIEN

• Decision Date: 29 June 2001
• Docket Number: No. 98-261-C.A.,98-261-C.A.
• Citation: 774 A.2d 89
• Parties: STATE v. Jeffrey O'BRIEN.
• Court: Rhode Island Supreme Court

774 A.2d 89

STATE v. Jeffrey O'BRIEN.

No. 98-261-C.A.

Supreme Court of Rhode Island.

June 29, 2001.

Present LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Robert B. Mann, Providence, for Plaintiff.

Aaron L. Weisman, Providence, for Defendant.

OPINION

FLANDERS, Justice.

"Sex, lies, and videotape" are the stuff of this appeal.¹ A college student arranged to have one of his fraternity brothers hide in the closet of his bedroom at the fraternity house in the wee hours of the morning and secretly videotape him and his girlfriend, who also was a student at the college (hereinafter, the victim), while they were having sex on his bed. While they were romping in the buff, the victim suddenly spied the lens of the video camera peeking out from behind the closet drapes. Needless to say, despite the defendant's attempts to dissuade the victim from investigating further, this video game was over. As a result, both the defendant and his closet cinematographer soon found themselves facing the criminal charges that are the subject of this appeal.

Facts and Travel

During the early morning hours of May 11, 1996, defendant, Jeffrey O'Brien, a member and resident of the University of Rhode Island's Alpha Epsilon Pi fraternity, informed three of his fraternity brothers, including codefendant Jordan Smith, that the victim would be coming to the fraternity to havesex with him. The brothers asked him whether they could watch. To their evident amazement, defendant responded in the affirmative. He instructed them to retrieve the video camera belonging to another one of their fraternity brothers, and then he installed Smith in the closet of his single room at the fraternity to prepare for the videotaping. Pushing aside clothing and placing a chair in this secret lair, defendant secured Smith in the closet and then closed the closet curtain to conceal him and the video camera from view.

There sat Smith, waiting in the closet for approximately a half hour, until defendant finally reentered his room with the unsuspecting victim in tow. Smith activated the camera when he saw the couple move from defendant's couch onto the bed, where they then began to remove their clothing. The videotaping continued for some time, zooming in and out for close-ups of the activity on the bed. Eventually, the victim lifted up her head during the couple's lovemaking and suddenly observed "a camera lens coming from [the] closet" and a "bluish light coming from the camera itself." She screamed "Oh, my God, somebody is taping us!" The defendant, however, calmly told her that she was crazy, that she was seeing things, that she didn't know what she was talking about, and that he had thought she was "cool." Unpersuaded, the victim wrapped a blanket around herself, repeatedly told defendant that "I saw what I saw," and asked what they were going to do about it. When it became evident that defendant was not going to do anything, the victim herself got off the bed, walked to the closet, and pulled the curtain open. There sat Smith, whom she knew from the fraternity, squatting on a chair with the video camera in his hand. She asked Smith "how [he] could * * * do this," called him "sick," and then asked him for the camera so she could remove the tape from it. But Smith refused to give it to her, so she struggled with him before gaining possession of it, after which Smith left defendant's room.

The victim then told defendant that "we have to get this tape [out of the video camera]." He responded that "You can't get the tape out of that kind of camera." The victim, however, simply pressed the eject button, and the tape plopped right out into her hand. She then asked defendant whether he knew anything about the videotaping in advance. Lying, he responded in the negative. Although she was initially suspicious of his answer, his actions — running frantically around the room repeatedly denying any prior knowledge, "crying a bit," grabbing a bottle of whisky and taking a swig, stating that he could not "believe this happened to us," and asking why he "would * * * want [his] white ass on tape" — convinced her of his sincerity. She remained in defendant's room until approximately 5:30 that morning. When she left, defendant scampered upstairs to Smith's room and told him that "he still had sex with [the victim]" but that, as hard as he had tried, he was still unsuccessful in getting the videotape back from her.

Later that morning, at around noon time, the victim was sitting in her room at the apartment she shared with another student, crying to herself about the above-described incident. Her roommate had just returned from her morning job and found the victim bawling away. Eventually, the victim told her roommate about the videotaping. Just as they finished their conversation, Smith appeared at their apartment door. His fraternity brothers had sent him over to retrieve the tape; so when he spoke to the victim, he did so on the pretense of wanting to apologize to her for the events of the previous evening. During their conversation, however, as soon as he glimpsed the videotape on her desk, Smith snatched it and made a mad dash for the door. But before he could get away, both the victim and her roommate grabbed him and managed to retrieve the tape. During their scuffle, however, Smith was able to partially damage the videotape by smashing it against his leg and ripping the tape.

Eventually, Smith left their apartment, but he returned shortly thereafter and spoke again with the two women. During this discussion, he finally told the victim that, notwithstanding defendant's protestations of innocence, defendant in fact knew about the videotaping in advance. And, despite the victim's promise not to confront defendant with this information, she and her roommate wasted little time in marching over to the fraternity house and doing just that. Nevertheless, defendant still continued to deny that he had any previous knowledge of the videotaping and insisted that in any event it was "no big deal." The next day, when the victim returned to the fraternity house, Smith told her that because he had damaged the videotape, she would not be able to do anything about the incident. Undeterred, the victim then contacted a local video shop and arranged for the videotape to be restored and repaired.

Ultimately, both defendant and Smith were indicted for conspiring to unlawfully intercept an oral communication in violation of G.L.1956 § 11-1-6, and for intercepting an oral communication in violation of G.L.1956 (1994 Reenactment) § 11-35-21(a)(1) and (c)(3).² Smith pled nolo contendere to the charges in the indictment, receiving an eighteen-month suspended and probationary sentence. But defendant opted for a trial before a Superior Court trial justice and a jury, who proceeded to find him guilty on both of the counts charged in the indictment. The court then sentenced defendant to a five-year suspended sentence with a concurrent probationary term. This appeal ensued, in which defendant has proffered a series of alternate takes on the trial justice's rulings. Below, we screen these arguments, frame-by-frame, and indicate why we leave them on the cutting-room floor.

I

Was the video camera's audio recorder an "intercepting device"?

At the close of all the evidence, defendant moved for a judgment of acquittal, arguing that the state had failed to prove that any oral communications between defendant and the victim had been intercepted with an intercepting device, as the applicable wiretapping statute required. A mere recording, he argued, was not an interception. He also objected to the trial justice's failure to instruct the jury that it had to find that defendant had procured an interception of an oral communication through the use of an intercepting device. The trial justice rejected these arguments. On appeal, defendant still contends that an interception of a communication is different from a mere recording of a communication, and that Rhode Island's wiretapping statute does not prohibit the mere surreptitious recording of private oral communications.

Pursuant to Rhode Island's wiretapping statute, § 11-35-21(a), one who "willfully intercepts, attempts to intercept, or procures any other person to intercept or attempt to intercept, any wire or oral communication * * * shall be imprisoned for not more than five (5) years." Under G.L.1956 (1994 Reenactment) § 12-5.1-1(5), "[t]he term "intercept" means to acquire aurally the contents of any wire or oral communications through the use of any intercepting device." (Emphasis added.) An "intercepting device" is defined by § 12-5.1-1(6) as "any device or apparatus which can be used to intercept wire or oral communications."³ (Emphasis added.) "Oral communications" are defined by § 12-5.1-1(8) as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying [such] expectation." (Emphasis added.)

The defendant argues that the audio recorder built into the video camera that Smith used was not an "intercepting device" as defined by § 12-5.1-1(5). Therefore, he suggests, he "procure[d] [no] other person to intercept or attempt to intercept, any wire or oral communication" that could have triggered a criminal violation of Rhode Island's wiretapping statute, § 11-35-21. Because the audio recorder was integrated into the video camera, it recorded only what already could be overheard by the hidden cameraman's invited naked ear. And because that audio recorder did not amplify the recorded sounds to make them more audible, defendant argues, it cannot be considered an "intercepting device."⁴

A preliminary draft of the federal wiretapping statute provided that "it shall not be unlawful for a party to any wire or oral communication or a person given prior authority by a party to a communication to intercept such communication." S.Rep. No. 90-1097, at 70...