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State v. Smith

Supreme Court of Washington, En Banc

November 22, 2017


          MADSEN, J.

         This case concerns application of RCW 9.73.030 of the Washington privacy act to an inadvertent recording on a cell phone voice mail of a domestic violence assault. We hold that the recording here does not contain a "conversation" within the meaning of the privacy act. Further, even if the recorded verbal exchange here could be considered a private conversation within the privacy act, nevertheless an exception contained in the privacy act applies, rendering the recording admissible. We reverse the Court of Appeals to the extent it holds otherwise.


         John Garrett Smith and Sheryl Smith were married in 2011. On the evening of June 2, 2013, the Smiths engaged in an argument at their home that turned violent. Mr. Smith punched and strangled Mrs. Smith to the point of unconsciousness and then left their home. When Mrs. Smith regained consciousness, her eyes were black and swollen shut, her face was swollen and bleeding, and she had difficulty breathing.[1] Mrs. Smith was hospitalized for several days due to the severity of her injuries, which included a facial fracture and a concussion. For months after the assault, she suffered severe head pain, double vision, nausea, and vertigo.

I'm being strangled. Garrett's on top of me. My face is being punched. I feel like I'm in a very dark place inside of my head, and three punches, and I'm being called a fat bitch, and I thought I was going to die.

         2A Verbatim Report of Proceedings (VRP) at 238. Other evidence filled in Mrs. Smith's memory gaps, including her written statement, which was read into the record. Additionally, there was a recording made of the incident. During the incident, Mr. Smith used the home's landline cordless phone to dial his cell phone in an attempt to locate the cell phone. The cell phone's voice mail system recorded the incident because Mr. Smith left the landline open during his attempt to find his cell phone. This voice mail contained sounds of a woman screaming, a male claiming the woman brought the assault on herself, more screams from the female, name calling by the male, and the following exchange:

MALE: There, are you happy now?
(Woman screaming.)
MALE: You brought this shit on. I have never done this. You and your fucking Mexican. Fuckcocking three-timer. You're not going to get your (inaudible) three check.
WOMAN: Getaway.
MALE: No way. I will kill you.
WOMAN: I know.
[More female screaming and name calling by the male followed until the recording ended.]

         2A VRP at 241-43; 1 VRP at 70-71; Ex. 2; Clerk's Papers (CP) at 78-80.[2] At trial, the female in the recording was identified as Sheryl Smith and the male as the defendant, John Garrett Smith. Mr. Smith fled the scene without his cell phone after strangling Mrs. Smith to unconsciousness. The cell phone ended up in the possession of Skylar Williams, Mrs. Smith's daughter and Mr. Smith's stepdaughter, after Ms. Williams returned to the house and helped her mother complete a 911 call.

         On the 911 call, Mrs. Smith can be heard gasping and pleading for help. She reported being unable to see. Mrs. Smith explained to the 911 operator that she had been "beat to a pulp" by John Garrett Smith. 2A VRP at 188. Ms. Williams, who had just arrived home, then grabbed the phone and told the 911 operator that her mother's face is "like ten times the size of normal and gushing blood" and that "she can't open her eyes because her face is so swollen." 2A VRP at 190. Following the arrival of the police and paramedics, Mrs. Smith received medical care and was transferred to a hospital.

          While at the hospital, Ms. Williams looked at Mr. Smith's cell phone and saw a missed call and a voice mail from the family landline left around the time of the incident. She listened to the voice mail and then played it for an officer. The police, after hearing the voice mail, seized the cell phone and executed a search warrant on it. While at the hospital, Ms. Williams received multiple calls from Mr. Smith. During one of those calls, Mr. Smith indicated that he thought he should book a flight and leave town. Ms. Williams told him to meet her at the house instead, but her plan was to send the police to meet Mr. Smith.

         The police arrested Mr. Smith at the home. At that time, he denied any physical altercation with Mrs. Smith. But the next morning, Mr. Smith asked a detective, "Is she going to make it?" despite not receiving any information from the detective about Mrs. Smith's injuries. 2C VRP at 636.

         The State charged Mr. Smith with attempted first degree murder, attempted second degree murder, first degree assault, and second degree assault for the incident occurring with Mrs. Smith on June 2, 2013. Prior to trial, Mr. Smith filed a motion to suppress the audio recording found on his cell phone that captured part of the incident, including him threatening to kill his wife. Mr. Smith argued that Ms. Williams had unlawfully intercepted the recording pursuant to the privacy act, RCW 9.73.030, when she listened to the voice message left on his phone. The trial court denied the motion to suppress, ruling that Ms. Williams's conduct did not constitute an interception. The court also ruled that RCW 9.73.030(1)(b), which, as discussed below, prohibits the recording of private conversations without consent, did not apply because the information was inadvertently recorded, noting that "[a]t the time this information was recorded, nobody was trying to intercept or record what was occurring." CP at 92 (Conclusion of Law 9).

         The case proceeded to a bench trial. The trial court found Mr. Smith guilty of attempted second degree murder, second degree assault, and the related special allegations of domestic violence, but acquitted him of the remaining counts and the aggravator. Mr. Smith was sentenced to a standard range sentence of 144 months. He appealed, and his appellate argument focused on the denial of the motion to suppress; he continued to assert that the recording was unlawfully admitted because Ms. Williams had unlawfully intercepted it.

         The Court of Appeals reversed Mr. Smith's conviction for attempted second degree murder, holding that the trial court erred in denying the motion to suppress the recording of the incident because (1) the recording was of a "private conversation" and (2) Mr. Smith (the defendant) had unlawfully recorded the "private conversation, " despite the fact that the recording was made inadvertently. State v. Smith, 196 Wn.App. 224, 227, 237-38, 382 P.3d 721 (2016) (John Garrett Smith). The Court of Appeals rejected Mr. Smith's assertion that Ms. Williams had unlawfully intercepted the conversation, and decided the case on a different issue, that is, whether Mr. Smith's actions violated the privacy act. Id. at 236. The State sought and this court granted review on the issue of how the privacy act is to be properly applied in this case. State v. Smith, 187 Wn.2d 1025, 391 P.3d 447 (2017). Accordingly, the issue before this court is whether the voice mail recording is admissible in John Garrett Smith's criminal prosecution, either as falling outside of the Washington privacy act, RCW 9.73.030, or as falling within an exception noted in that statute.[3]


         Washington privacy act, chapter 9.73 RCW

         "As with all questions of law, questions of statutory interpretation are reviewed de novo." Berrocalv. Fernandez, 155 Wn.2d 585, 590, 121 P.3d 82 (2005); State v. Kipp, 179 Wn.2d 718, 726, 317 P.3d 1029 (2014). "Washington State's privacy act is considered one of the most restrictive in the nation." Kipp, 179 Wn.2d at 724 (citing State v. Townsend, \A1 Wn.2d 666, 672, 57 P.3d 255 (2002)). RCW 9.73.030(1)(b) provides in relevant part:

Except as otherwise provided in this chapter, it shall be unlawful for any individual. . . to . . . record any:
[p]rivate conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.

         "Evidence obtained in violation of the act is inadmissible for any purpose at trial. RCW 9.73.050." Kipp, 179 Wn.2d at 724 Nevertheless, the above noted statute provides an exception. RCW 9.73.030(2) provides in relevant part, "Notwithstanding subsection (1) of this section, . . . conversations (a) of an emergency nature, ... or (b) which convey threats of. . . bodily harm . . . may be recorded with the consent of one party to the conversation."


         The trial court ruled that RCW 9.73.030(1)(b) did not apply because the recording was inadvertent and therefore outside the protection of the privacy act. The Court of Appeals held that whether Mr. Smith recorded himself "inadvertently or purposely ... is beside the point[ because] the statute requires no specific mental state for a person to improperly record a conversation." John Garrett Smith, 196 Wn.App. at 237. The Court of Appeals is correct that "nothing in the plain language of RCW 9.73.030 imposes [a specific mental state]." Id. The Court of Appeals held that the trial court erred by concluding that Mr. Smith's inadvertence in recording the private conversation removed his actions from the reach of the privacy act. Id.

         The State complains that by logical extension, the Court of Appeals' decision turns the privacy act into a strict liability statute and may result in absurd consequences, such as ...

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