State v. Smith, 93923-3

Background

On June 2, 2013 John Garrett Smith assaulted his wife Sheryl; she was severely injured and hospitalized.
During the assault Smith used the home cordless phone to call his own cell phone; the cell phone’s voicemail inadvertently recorded the incident, capturing screams and verbal exchanges including Smith saying "I will kill you."
Skylar Williams (the victim’s daughter) heard the voicemail, played it for police, and the phone was seized; the recording was admitted at trial over Smith’s suppression motion.
Smith was convicted of attempted second-degree murder and related assault counts; the Court of Appeals reversed based on the Washington privacy act (RCW chapter 9.73) holding the recording was a "private conversation" unlawfully recorded.
The State sought review; the Washington Supreme Court considered (1) whether the voicemail is a "conversation" under the privacy act, (2) effect of inadvertent recording, and (3) applicability of the one-party consent/"threat" exception.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Smith)	Held
Whether the voicemail contains a "conversation" under RCW 9.73.030	The recording is primarily a victimization/assault recording, not a "conversation"	The recorded verbal exchanges (e.g., "I will kill you") are conversational and protected	The court held the recording is not a "conversation" under State v. Smith (1975) because it primarily captures violent assault sounds; alternatively, even if it were a conversation, exception applies
Whether inadvertent recording removes statutory coverage	State: inadvertence does not remove coverage but here other bases make it admissible	Smith: recording was inadvertent so should fall outside the Act’s reach	The court agreed inadvertence does not avoid the Act generally, but found other grounds for admissibility in this case
Whether Smith impliedly consented to voicemail recording (Townsend analysis)	State: Smith called his phone and risked triggering voicemail; as a phone user he impliedly consented	Smith: no consent from victim and recording was private/inadvertent	The court held Smith impliedly consented by intentionally calling his cell phone to locate it; thus one-party consent exists
Whether the one-party consent "threat" exception (RCW 9.73.030(2)) applies	State: Smith’s recorded threat is admissible under the statute with one-party consent	Smith: recording of a private conversation (if any) was unlawfully obtained and inadmissible	The court held the threat exception applies: recorded threats of bodily harm are admissible with one-party consent, so the voicemail was admissible

Key Cases Cited

State v. Smith, 85 Wn.2d 840 (1975) (recording of violent encounter containing screams and some words did not constitute a "private conversation")
State v. Townsend, 147 Wn.2d 666 (2002) (party may impliedly consent to recording based on technology and user knowledge)
State v. Kipp, 179 Wn.2d 718 (2014) (framework for determining whether a communication is "private")
State v. Williams, 94 Wn.2d 531 (1980) (privacy act interpreted to broadly protect private conversations from dissemination)
State v. Fjermestad, 114 Wn.2d 828 (1990) (statutory interpretation principles; avoid absurd results)