State Of Washington v. John Smith
196 Wash. App. 224
| Wash. Ct. App. | 2016Background
- Domestic assault at the Smiths' home: John Smith beat and strangled his wife Sheryl; Sheryl lost consciousness. Their stepdaughter Skylar left the house, later returned, found Sheryl injured, retrieved John’s cell phone, and played a voicemail that had inadvertently recorded part of the in-person dispute.
- The voicemail captured verbal exchanges including John saying “I will kill you.” Police obtained the phone from Sheryl’s daughter and the recording was played for an officer and admitted at John’s bench trial.
- John was charged with first- and second-degree attempted murder and first- and second-degree assault, all domestic-violence enhanced; acquitted of first-degree counts; convicted of second-degree attempted murder and second-degree assault (merged for sentencing).
- Pretrial CrR 3.6 suppression motion argued the voicemail violated Washington’s privacy act (RCW 9.73.030); the trial court denied suppression, concluding the statute did not apply because the parties were communicating in person and the recording was inadvertent.
- On appeal the Court of Appeals held the voicemail recorded a private conversation in violation of RCW 9.73.030(1)(b) and was therefore inadmissible; admission was prejudicial to the attempted-murder conviction (trial court relied on the recording to find intent) but not prejudicial to the assault conviction, which was supported by other evidence.
Issues
| Issue | State's Argument | Smith's Argument | Held |
|---|---|---|---|
| Whether RCW 9.73.030(1)(a) covers the voicemail (private communication transmitted by device) | Statute inapplicable because the exchange was in-person, not transmitted by a device | Voicemail should be excluded under privacy act | Court: (a) inapplicable — in-person exchange is not a "private communication transmitted by telephone.." under (1)(a) |
| Whether voicemail contents constitute a "conversation" under RCW 9.73.030(1)(b) | Some parts might be non-conversational, but overall there is verbal exchange enough to be a conversation | The recording is a private conversational exchange and should be protected | Court: The recording contains verbal exchanges and responsive screams that together qualify as a "conversation" |
| Whether the conversation was "private" within RCW 9.73.030(1)(b) | The State argued context did not remove privacy; location and absence of third parties matter | Smith argued expectation of privacy existed (domestic dispute at home after stepdaughter left) | Court: Conversation was private — subjective intent and reasonable expectation of privacy present (home, married parties, third party absent) |
| Whether recording/interception violated RCW 9.73.030 (and whether inadvertent recording avoids statute) | State contended voicemail was recorded by Smith's phone but third party playing it did not record or intercept; inadvertence argued by trial court to avoid statute | Smith argued the recording was a prohibited interception/recording under the privacy act and inadvertence does not negate violation | Court: A party to a private conversation may record it; RCW 9.73.030 requires consent of all participants and imposes no mental-state exception — inadvertent recording still violates the statute when it captures a private conversation |
| Prejudice: whether erroneous admission required reversal of convictions | N/A | N/A | Court: Admission was prejudicial to second-degree attempted murder (trial court relied on recording to find intent to kill) and not prejudicial to second-degree assault (other corroborating evidence); attempted-murder conviction reversed and remanded; assault conviction affirmed |
Key Cases Cited
- State v. Roden, 179 Wn.2d 893 (Washington 2014) (discussing scope of Washington's privacy act and statutory interpretation)
- State v. Christensen, 153 Wn.2d 186 (Washington 2004) (admissibility and prejudice standards for evidence obtained in violation of RCW 9.73.030)
- State v. Smith, 85 Wn.2d 840 (Washington 1975) (tape-recording admission where recorded events were not a "conversation" under the statute; holding was fact-specific)
- State v. Townsend, 147 Wn.2d 666 (Washington 2002) (RCW 9.73.030(1)(a) applied to electronic communications such as e-mail/instant messages)
- State v. Kipp, 179 Wn.2d 718 (Washington 2014) (privacy analysis: subjective and reasonable expectation of privacy factors)
- State v. Caliguri, 99 Wn.2d 501 (Washington 1983) (exceptions to recording prohibition under RCW 9.73.030)
- Lewis v. Dep’t of Licensing, 157 Wn.2d 446 (Washington 2006) (statutory interpretation rejecting an inferred mental-state requirement for privacy-act violations)