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State v. J.K.T.

Court of Appeals of Washington, Division 1

December 30, 2019

STATE OF WASHINGTON, Respondent,
v.
J.K.T., Appellant.

          DWYER, J.

         Juvenile J.K.T. was convicted of multiple counts of murder in the first degree for his participation, allegedly with his older brothers James and Jerome, in a 2016 shooting in the homeless encampment known as "The Jungle." J.K.T. appeals, contending that the trial court erred by ruling admissible a one-party consent recording of J.K.T. and his brothers discussing the shooting and by excluding hearsay statements that J.K.T. sought to admit in his defense. J.K.T. asserts that the recording of him and his brothers was obtained in violation of Washington's privacy act, chapter 9.73 RCW, and that it should have been excluded. He further asserts that the trial court improperly excluded exculpatory hearsay statements made against penal interest, thereby denying him the right to present a defense. There being no error in the trial court rulings, we affirm.

         I

         On January 26, 2016, five males wearing masks and dark clothing entered a section of the homeless encampment known as "The Jungle," located beneath a freeway in Seattle near the intersection of Interstates 5 and 90. The section of encampment they entered was occupied at the time by many people, including Phat Nguyen, Amy Jo Shinault, Tracy Bauer, Jeanine Brooks, and James Tran. Two of the masked individuals had guns and began shooting the occupants of the encampment, killing both Tran and Brooks. The masked attackers also shot Nguyen, Shinault, and Bauer. They survived.

         The next day, Foa'l Tautolo, known as "Lucky," contacted the police, claiming to have information about the shootings. Lucky and his cousin, known as "Reno," went to the Seattle Police Department's headquarters to be interviewed. Lucky informed the police that his nephew, James, had called him and admitted to participating in the shooting because he needed money. Lucky also informed the police that he had, in the previous few days, seen his nephew with a .45 caliber handgun.[1] Lucky believed that James would be willing to discuss the shootings with him and Reno again in person.

         The lead detective in the case, James Cooper, then prepared an application for a judicial authorization to make a one-party consent recording of James. In the application, Detective Cooper included the information he had received from Lucky regarding James admitting to the shooting and sought authorization to record him speaking about the shootings with Lucky. The application also noted that James and his family were known to have been "staying near/under 4th Ave South and Edgar Martinez Way."[2] The application further stated that the conversations it sought authorization to record were "expected to occur somewhere in or around Seattle in one of the many homeless camps in the area. Because James, his brothers and their families are homeless and move around, it is impossible to predict where the conversation may take place[.] Investigators do believe they will remain in the area, and within King County."

         The authorization order was signed by a King County superior court judge. The order stated that there was probable cause to believe that James had committed murder in the second degree and assault in the first degree.

         The next day, Lucky and Reno were wired and dropped off near James's encampment on 4th Avenue South in Seattle. Lucky had arranged, over the telephone, to meet James at James's encampment near "the stadium."[3] The recording occurred near an underpass across the street from what Lucky referred to as "like a Goodwill, but it's not a Goodwill."[4] James, Jerome, and J.K.T. were present during the conversation and made statements leading officers to believe that they all actively participated in the shooting.

         J.K.T. was subsequently charged with felony murder in the first degree predicated on robbery and assault. J.K.T. moved to suppress the one-party consent recording in which he and his brothers discussed the shooting, arguing that it was obtained in violation of Washington's privacy act. The trial court denied the motion. J.K.T. subsequently and unsuccessfully sought to exclude James's and Jerome's statements in the recording on the grounds that they were inadmissible hearsay and violated his right, guaranteed by the Sixth Amendment to the United States Constitution, to confront the witnesses against him.[5]

         During his bench trial, J.K.T. sought to offer into evidence that which he asserted constituted exculpatory hearsay statements made by others against their penal interest. Specifically, he sought to admit the hearsay statements of two individuals, known as Ace and Francis, who had purportedly informed one of the shooting victims, Bauer, that they, and not J.K.T. and his brothers, were active participants in the shooting. The trial court concluded that these statements were insufficiently reliable to warrant their admission into evidence.

         The juvenile court found J.K.T. guilty of two counts of murder in the first degree and three counts of assault in the first degree. The court imposed a manifest injustice disposition that rendered J.K.T. into the custody of the juvenile rehabilitation authority until he is 20 years old. Treatment-related supervision is to follow his release.

         J.K.T. appeals.

         II

         J.K.T. primarily contends that his conviction must be reversed because the trial court erroneously admitted into evidence the one-party consent recording of him and his brothers discussing the shooting. This is so, J.K.T. asserts, because (1) the recording was obtained in violation of Washington's privacy act, and (2) admission of the recorded statements of J.K.T.'s brothers violated J.K.T.'s right to confront the witnesses against him as guaranteed by article I, section 22 of the Washington Constitution, a contention raised for the first time on appeal. We disagree.

         A

         J.K.T. contends that the one-party consent recording showing J.K.T. and his brothers discussing the shooting was obtained in violation of the privacy act because (1) the application for the authorization to record without the consent of all parties to the conversation does not establish probable cause that J.K.T. had committed a crime, and (2) the application for the order authorizing the recording and the order authorizing the recording did not set forth a specific enough place as to where the recording would occur so as to satisfy the requirements of the privacy act.

         We review the meaning of a statute de novo. State v. Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001). Our "fundamental objective is to ascertain and carry out the Legislature's intent, and if the statute's meaning is plain on its face, then [we] must give effect to that plain meaning as an expression of legislative intent." Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). When interpreting a provision of our state's code, the provision is to "be liberally construed, and shall not be limited by any rule of strict construction." RCW 1.12.010. Where a statute does not define a term, we may look to dictionary definitions to assist in determining the plain meaning of a statute. LaCoursiere v. Camwest Dev., Inc., 181 Wn.2d 734, 741-42, 339 P.3d 963 (2014).

         Washington's privacy act protects the privacy rights of individuals and is one of the most restrictive electronic surveillance laws in the country. State v. Roden, 179 Wn.2d 893, 898, 321 P.3d 1183 (2014). The act generally prohibits the admission at trial of recorded conversations or communications obtained without the consent of all parties to the conversation. RCW 9.73.030; Roden, 179 Wn.2d at 898. "Failure to suppress evidence obtained in violation of the act is prejudicial unless, within reasonable probability, the erroneous admission of the evidence did not materially affect the outcome of the trial. State v. Christensen, 153 Wn.2d 186, 200, 102 P.3d 789 (2004) (citing State v. Porter, 98 Wn.App. 631, 638, 990 P.2d 460 (1999)).

         RCW 9.73.090, however, sets forth exceptions to the general rule prohibiting the recording of conversations or communications without the consent of all parties. One such exception is that

[i]t shall not be unlawful for a law enforcement officer acting in the performance of the officer's official duties to intercept, record, or disclose an oral communication or conversation where the officer is a party to the communication or conversation or one of the parties to the communication or conversation has given prior consent to the interception, recording, or disclosure: PROVIDED, That prior to the interception, transmission, or recording the officer shall obtain written or telephonic authorization from a judge or magistrate, who shall approve the interception, recording, or disclosure of communications or conversations with a nonconsenting party for a reasonable and specified period of time, if there is probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony.

RCW 9.73.090(2).

         RCW 9.73.090(2) further states that "[a]ny recording or interception of a communication or conversation incident to a lawfully recorded or intercepted communication or conversation pursuant to this subsection shall be lawful and may be divulged."

         An application for an order authorizing a one-party consent recording must comply with the requirements set forth in RCW 9.73.130. State v. D.J.W., 76 Wn.App. 135, 144-45, 882 P.2d 1199 (1994), aff'd, 129 Wn.2d 211, 916 P.2d 384 (1996). These statutory safeguards protect against "unfettered discretion in the hands of the recording party and against the issuance of authorizations to record in the absence of proper circumstances." D.J.W., 76 Wn.App. at 145. An order based on a faulty application, not in compliance with RCW 9.73.130, is unlawful, and any recording authorized by such an order is inadmissible as evidence. State v. Kichinko, 26 Wn.App. 304, 310-11, 613 P.2d 792 (1980). The following information must be included in an application for an order authorizing a one-party consent recording:

(1) The authority of the applicant to make such application;
(2) The identity and qualifications of the investigative or law enforcement officers or agency for whom the authority to record a communication or conversation is sought and the identity of whoever authorized the application;
(3) A particular statement of the facts relied upon by the applicant to justify his or her belief that an authorization should be issued, including:
(a) The identity of the particular person, if known, committing the offense and whose communications or conversations are to be recorded;
(b) The details as to the particular offense that has been, is being, or is about to be committed;
(c) The particular type of communication or conversation to be recorded and a showing that there is probable cause to believe such communication will be communicated on the wire communication facility involved or at the particular place where the oral communication is to be recorded;
(d) The character and location of the particular wire communication facilities involved or the particular place where the oral communication is to be recorded;
(e) A statement of the period of time for which the recording is required to be maintained, if the character of the investigation is such that the authorization for recording should not automatically terminate when the described type of communication or conversation has been first obtained, a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
(f) A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ;
(4) Where the application is for the renewal or extension of an authorization, a particular statement of facts showing the results thus far obtained from the recording, or a reasonable explanation of the failure to obtain such results;
(5) A complete statement of the facts concerning all previous applications, known to the individual authorizing and to the individual making the application, made to any court for authorization to record a wire or oral communication involving any of the same facilities or places specified in the application or involving any person whose communication is to be intercepted, and the action taken by the court on each application; and
(6) Such additional testimony or documentary evidence in support of the application as ...

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