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.
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. 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.
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?
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.
MALE: No way. I will kill you.
WOMAN: I know.
[More female screaming and name calling by the male followed
until the recording ended.]
at 241-43; 1 VRP at 70-71; Ex. 2; Clerk's Papers (CP) at
78-80. 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.
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
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.
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.
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).
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.
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
privacy act, chapter 9.73 RCW
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.
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."
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.
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