In State v. Smith, the WA Supreme Court held that the accidental recording of a domestic violence confrontation between the defendant and his wife was admissible at trial and did not violate the defendant’s rights under the Washington Privacy Act.
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. 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 and name calling by the male.
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.
The Motion to Suppress & Trial
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 Washington Privacy Act, 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 Washington’s Privacy Act, which prohibits the recording of private conversations without consent, did not apply because the information was accidentally recorded.
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 trial court’s denial of the motion to suppress. Smith 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 had unlawfully recorded the “private conversation,” despite the fact that the recording was made inadvertently. 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. The State sought review on the issue of how the privacy act is to be properly applied in this case.
Whether the voice mail recording is admissible in Mr. Smith’s criminal prosecution.
COURT’S ANALYSIS & CONCLUSIONS
The WA Supreme Court reverse the Court of Appeals and reinstated Mr. Smith’s attempted second degree murder conviction.
The Court reasoned that accidental, inadvertent recording on a cell phone voice mail of a domestic violence assault did not contain a “conversation” within the meaning of the privacy act, where the recorded verbal exchange consisted mostly of 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 man stating he will kill the woman when she told him to get away. Furthermore, the owner of the cell phone was deemed to have consented to the voice mail recording due to his familiarity with that function.
The lead opinion was authored by Justice Madsen and signed by Justices Wiggins, Johnson and Owens. Justice González concurred in the result on the grounds that the defendant cannot invade his own privacy and cannot object about a recording he made being used against himself. Justice Gordon McCloud authored a separate concurring opinion, which was signed by Justices Stephens, Yu, and Fairhurst, in which she stated that the verbal exchange on the recording constitutes a “private” conversation which was solely admissible pursuant to statute.
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