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State v. Clayton

Court of Appeals of Washington, Division 3

November 19, 2019



          KORSMO, J.

         Joseph Clayton Sr. appeals from three convictions for unlawful possession of a firearm, challenging the use under our Privacy Act of a police body camera recording. We affirm.


         The charges arose from a visit by law enforcement to a Spokane home. On the evening of October 7, 2016, multiple officers responded to the residence following a report of shots being fired. Mr. Clayton let officers in the residence and consented to a search. There were six people in the residence in addition to the officers who entered. Three officers had active body cameras recording the investigation, but none of the residents were advised of that fact.

         An officer discovered two revolvers in a dresser and also observed bullet holes in a couch, wall, and the floor. Upon learning that Mr. Clayton was ineligible to possess the revolvers, officers arrested him for unlawful possession of the weapons. The prosecutor charged two counts of unlawful possession of a firearm based on the October arrest.

         Clayton's girlfriend, Barbara Lawley, told officers that one month earlier, Clayton had fired a shot in the apartment that struck the couch on which she was sitting. Ultimately, the prosecutor charged Clayton with one count of second degree assault and one count of unlawful possession of a firearm for the September incident, as well as two counts of unlawful possession of a firearm for the two weapons recovered in October. The defense objected to the joinder of the September charges to the existing October counts, but the court permitted the amendment. The court also denied a motion to sever the counts at the conclusion of the State's case.

         After conducting a CrR 3.6 hearing on a defense motion to suppress the recordings, the court permitted the video evidence only to the point where the officer discovered the guns and arrested Clayton. Body camera footage from one of the officers was played for the jury at trial.

         Clayton testified at trial that an acquaintance, Jeff, had fired the shot at Lawley in June and that Clayton had momentarily possessed the weapon before returning it to the man. He also told jurors that he had purchased the two replica weapons for his mother at an estate sale because she collected old guns and wanted the weapons; he never owned or possessed them. During the instruction conference, the court declined to give the defense's request for a necessity instruction, ruling that the defense had failed to make the necessary showing to obtain the instruction.

         Defense counsel argued that his client had not assaulted Lawley and that her behavior in not immediately reporting to police and remaining with Clayton was inconsistent with her claim that he had shot at her a month earlier. He also argued that his client's momentary control over the weapons did not constitute dominion and control of them.

         The jury acquitted Clayton on the assault charge, but convicted him of all three unlawful possession charges. After the court imposed standard range sentences for the offenses, Mr. Clayton timely appealed to this court. A panel considered his appeal without hearing argument.


         Mr. Clayton raises three issues in his appeal. In order, we consider his contentions that the court erred in admitting the body camera evidence, in denying his motion to sever, and in refusing to instruct on necessity.

         Body Camera Recording

         Mr. Clayton argues that the police body camera recording was made in violation of the "Privacy Act," chapter 9.73 RCW, rendering the evidence inadmissible. Because the police interaction with Mr. Clayton and his family was not a private conversation, there was no error.

         The Privacy Act prohibits intercepting or recording a private communication unless all parties to the communication consent. RCW 9.73.030(1)(b). "Any information obtained in violation of RCW 9.73.030 . . . shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state." RCW 9.73.050. "Whether a conversation is private is a question of fact but may be decided as a question of law where . . . the facts are not meaningfully in dispute." State v. Modica, 164 Wn.2d 83, 87, 186 P.3d 1062 (2008).

         The Privacy Act does not define "private," but courts have previously found it means "'belonging to one's self . . . secret . . . intended only for the persons involved (a conversation) . . . holding a confidential relationship to something . . . a secret message: a private communication . . . secretly: not open or in public.'" State v. Clark, 129 Wn.2d 211, 225, 916 P.2d 384 (1996) (alterations in original) (quoting Kadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 189-90, 829 P.2d 1061 (1992)). A communication is private under the act when (1) the parties have a subjective expectation that it is private, and (2) that expectation is objectively reasonable. Modica, 164 Wn.2d at 88. Among other things, the subject matter of the calls, the location of the participants, the potential presence of third parties, and the roles of the participants are relevant to whether the call is private. Clark, 129 Wn.2d at 225-27.

         The legislature has crafted some specific provisions that address the recording of conversations involving law enforcement. Two of those provisions are of particular interest to this case. Law enforcement may record people who have been arrested upon (i) informing the person that a recording is being made, (ii) stating the time of the beginning and ending of the recording in the recording, and (iii) advising the person at the commencement of the recording of his or her constitutional rights. In addition, (iv) the recording may be used only for valid police or court activities. RCW 9.73.090(1)(b).[1]

         Vehicle mounted cameras may also make audio and visual recordings from video cameras mounted in police vehicles. RCW 9.73.090(1)(c).[2] Absent exigent circumstances, the person must be told that he or she is being recorded. Id. However, there is no requirement that the individual consent to the recording.

         Here, the trial court concluded that the investigation did not involve a private conversation and that the provisions of RCW 9.73.090(1)(b) did not apply until Mr. Clayton was arrested. Mr. Clayton argues on appeal that the conversations in his home were ...

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