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Washington v. Wanrow

January 7, 1977


En Banc. Utter, J. Hunter, Brachtenbach, and Horowitz, JJ., concur. Wright, J., concurs by separate opinion; Hamilton, J., Stafford, C.j., and Rosellini, J., dissent by separate opinion; Dolliver, J., did not participate in the disposition of this case.

Author: Utter

Yvonne Wanrow was convicted by a jury of second-degree murder and first-degree assault. She appealed her conviction to the Court of Appeals. The Court of Appeals reversed and remanded the case with instructions to omit a tape recording made by the Spokane Police Department of an emergency telephone call, on the basis that RCW 9.73.050 and RCW 9.73.090 which authorize the recording of such a call create an absolute bar to its admission into evidence. State v. Wanrow, 14 Wash. App. 115, 538 P.2d 849 (1975). We granted review and affirm the Court of Appeals.

We order a reversal of the conviction on two grounds. The first is the ground stated by the Court of Appeals regarding the erroneous admission of the tape recording. The second ground is error committed by the trial court in improperly instructing the jury on the law of self-defense as it related to the defendant.

On the afternoon of August 11, 1972, defendant's (respondent's) two children were staying at the home of Ms. Hooper, a friend of defendant. Defendant's son was playing in the neighborhood and came back to Ms. Hooper's house and told her that a man tried to pull him off his bicycle and drag him into a house. Some months earlier, Ms. Hooper's 7-year-old daughter had developed a rash on her body which was diagnosed as venereal disease. Ms. Hooper had been unable to persuade her daughter to tell her who had molested her. It was not until the night of the shooting that Ms. Hooper discovered it was William Wesler (decedent) who allegedly had violated her daughter. A few minutes after the defendant's son related his story to

Ms. Hooper about the man who tried to detain him, Mr. Wesler appeared on the porch of the Hooper house and stated through the door, "I didn't touch the kid, I didn't touch the kid." At that moment, the Hooper girl, seeing Wesler at the door, indicated to her mother that Wesler was the man who had molested her. Joseph Fah, Ms. Hooper's landlord, saw Wesler as he was leaving and informed Shirley Hooper that Wesler had tried to molest a young boy who had earlier lived in the same house, and that Wesler had previously been committed to the Eastern State Hospital for the mentally ill. Immediately after this revelation from Mr. Fah, Ms. Hooper called the police who, upon their arrival at the Hooper residence, were informed of all the events which had transpired that day. Ms. Hooper requested that Wesler be arrested then and there, but the police stated, "We can't, until Monday morning." Ms. Hooper was urged by the police officer to go to the police station Monday morning and "swear out a warrant." Ms. Hooper's landlord, who was present during the conversation, suggested that Ms. Hooper get a baseball bat located at the corner of the house and "conk him over the head" should Wesler try to enter the house uninvited during the weekend. To this suggestion, the policeman replied, "Yes, but wait until he gets in the house." (A week before this incident Shirley Hooper had noticed someone prowling around her house at night. Two days before the shooting someone had attempted to get into Ms. Hooper's bedroom and had slashed the window screen. She suspected that such person was Wesler.)

That evening, Ms. Hooper called the defendant and asked her to spend the night with her in the Hooper house. At that time she related to Ms. Wanrow the facts we have previously set forth. The defendant arrived sometime after 6 p.m. with a pistol in her handbag. The two women ultimately determined that they were too afraid to stay alone and decided to ask some friends to come over for added protection. The two women then called the defendant's sister and brother-in-law, Angie and Chuck Michel. The four

adults did not go to bed that evening, but remained awake talking and watching for any possible prowlers. There were eight young children in the house with them. At around 5 a.m., Chuck Michel, without the knowledge of the women in the house, went to Wesler's house, carrying a baseball bat. Upon arriving at the Wesler residence, Mr. Michel accused Wesler of molesting little children. Mr. Wesler then suggested that they go over to the Hooper residence and get the whole thing straightened out. Another man, one David Kelly, was also present, and together the three men went over to the Hooper house. Mr. Michel and Mr. Kelly remained outside while Wesler entered the residence.

The testimony as to what next took place is considerably less precise. It appears that Wesler, a large man who was visibly intoxicated, entered the home and when told to leave declined to do so. A good deal of shouting and confusion then arose, and a young child, asleep on the couch, awoke crying. The testimony indicates that Wesler then approached this child, stating, "My what a cute little boy," or words to that effect, and that the child's mother, Ms. Michel, stepped between Wesler and the child. By this time Hooper was screaming for Wesler to get out. Ms. Wanrow, a 5-foot 4-inch woman who at the time had a broken leg and was using a crutch, testified that she then went to the front door to enlist the aid of Chuck Michel. She stated that she shouted for him and, upon turning around to reenter the living room, found Wesler standing directly behind her. She testified to being gravely startled by this situation and to having then shot Wesler in what amounted to a reflex action.

After Wesler was shot, Ms. Hooper called the police via a Spokane crime check emergency phone number, stating, "There's a guy broke in, and my girlfriend shot him." The defendant later took the phone and engaged in a conversation with the police operator. The entire conversation was tape recorded.

At trial, over defense counsel's objection, the tape was admitted into evidence. After presentation of the evidence,

the jury was instructed on the law and commenced deliberations. Deliberations progressed for a time, and the jurors requested to hear the tape again. The request was granted. Not long after reviewing the tape, the jury reached its verdict of guilty as to both counts. The State, on review, asserts that no reversible error was committed in admitting the tape recording.

RCW 9.73.030(1) provides that it is unlawful for a political subdivision of the state, among others, to record a "private communication" between two or more individuals without first obtaining the consent of all participants.*fn1 RCW 9.73.050 makes any information obtained in violation of RCW 9.73.030 inadmissible in a civil or criminal case.*fn2 RCW 9.73.090(1) creates an exception to these general rules. It allows police personnel to record incoming telephone calls for the purpose of verifying the accuracy of reception of emergency calls.*fn3

[1, 2] It is clear that, whatever its meaning in other contexts, the term "private communication" in RCW

9.73.030(1) encompasses an incoming telephone call to a police station and thus includes the respondent's conversation with the police operator. While no definition of the phrase is contained in the privacy statutes, reference to other parts of the statutory scheme demonstrate the legislature's intent in using that term. Words in a statute take their meaning from the context in which they are used. State ex rel. Kadow v. Board of Adjustment, 77 Wash. 2d 587, 591, 464 P.2d 418 (1970).

[3, 4] In RCW 9.73.090(1) the legislature excluded certain "incoming telephone calls to police and fire stations" from the operation of RCW 9.73.030. There would be no purpose in enacting this exclusion unless the legislature believed such communications were otherwise within the scope of the section. It is presumed that the legislature does not engage in unnecessary or meaningless acts. Knowles v. Holly, 82 Wash. 2d 694, 513 P.2d 18 (1973). Consequently, to interpret the privacy statute so that no portion of it is superfluous or insignificant, see Snow's Mobile Homes, Inc. v. Morgan, 80 Wash. 2d 283, 288, 494 P.2d 216 (1972), we must conclude that such telephone calls would fall within RCW 9.73.030(1) but for their exclusion by RCW 9.73.090.

This analysis is identical to that employed by this court on previous occasions. In Monroe Calculating Mach. Co. v. Department of Labor & Indus., 11 Wash. 2d 636, 643-44, 120 P.2d 466 (1941), the scope of the statutory phrase "power-driven machinery" was at issue. A proviso excluded specified machines from the meaning of the term. The court concluded "[t]he legislature must have assumed that the items listed in the proviso were otherwise included within the scope of the enumerated extrahazardous employments, making these exceptions necessary in order to prevent these particular activities from coming within the act." Similarly, in Roza Irrigation Dist. v. State, 80 Wash. 2d 633, 641, 497 P.2d 166 (1972), we stated, "[l]ogically . . . a term which is restricted by an exception must have been used with the understanding that it was broad enough to include the exception, else engrafting the exception would have been an

unnecessary and meaningless act." These cases reassert the principle most clearly enunciated in McKenzie v. Mukilteo Water Dist., 4 Wash. 2d 103, 114, 102 P.2d 251 (1940), wherein this court observed:

"Most frequently perhaps a proviso is intended to restrain the preceding provisions and to except something that would otherwise have been within the act. Where this is the purpose of a proviso, the general language of the main provisions is to be construed as covering the matters contained in the proviso had those provisions stood alone." 25 R. C. L. 987, § 233.

"It has not been an unfrequent mode of legislation to frame an act with general language in the enacting clause, and to restrict its operation by a proviso. . . . Provisos and exceptions are similar; intended to restrain the enacting clause; to except something which would otherwise be within it, or in some manner to modify it. . . . The exception of a particular thing from the operation of the general words of a statute shows that in the opinion of the law-maker the thing excepted would be within the general words had not the exception been made." 2 Lewis' Sutherland Statutory Construction (2d ed.), 670, § 351.

See, also, Black on Interpretation of Laws (2d ed.), 430, § 129.

Employing the same logic here, the term "private communication" in RCW 9.73.030(1) must have been used by the legislature in a sense which encompasses "incoming telephone calls to police and fire stations." (RCW 9.73.090(1).) See State v. Grant, 9 Wash. App. 260, 511 P.2d 1013 (1973). Thus, under RCW 9.73.030, the recording of respondent's conversation by the police without first obtaining her consent was unlawful and, under RCW 9.73.050, is inadmissible in court unless it falls within an exception to these provisions.

The exceptions provided by the legislature relevant to the issue under consideration are set forth in RCW 9.73.090 which reads as follows:

The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police and fire personnel in the following instances:

(1) Recording incoming telephone calls to police and fire stations for the purpose and only for the purpose of verifying the accuracy of reception of emergency calls.

(2) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following:

(a) the arrested person shall be informed that such recording is being made and the statement so informing him shall be included in the recording,

(b) the recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof,

(c) at the commencement of the recording the arrested person shall be fully informed of his constitutional rights, and such statements informing ...

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