State v. Smith, 43253

• Decision Date: 25 September 1975
• Docket Number: No. 43253,43253
• Citation: 85 Wn.2d 840,540 P.2d 424
• Parties: The STATE of Washington, Repondent, v. David T. SMITH, Appellant.
• Court: Washington Supreme Court

Page 840

85 Wn.2d 840

540 P.2d 424

The STATE of Washington, Repondent, v. David T. SMITH, Appellant.

No. 43253.

Supreme Court of Washington, En Banc.

Sept. 25, 1975.

Rehearing Denied Dec. 3, 1975.

Lanning, Mahoney & Bryan, Robert S. Bryan, Seattle, for appellant.

Christopher T. Bayley, Prosecuting Atty., Michael P. Ruark, Sr., Deputy Pros. Atty., Seattle, for respondent.

HAMILTON, Associate Justice.

Appellant was convicted by a jury of murder in the first degree. He seeks a new trial on grounds that a tape recording was improperly admitted and improperly played for the jury during deliberations, that certain testimony was inadmissible hearsay, and that the trial court erred in refusing to subpoena a witness on the issue of the authenticity of the tape recording. We affirm the conviction.

Appellant was a burglary detective with the Seattle Police Department. In 1973, he arrested Nicholas Kyreacos on suspicion of credit card forgery. He testified that Kyreacos made several threats against him at that time and thereafter. Shortly before Kyreacos was scheduled to be tried on the forgery charge, the complaining witness in that case, one Branko Ellich, Kyreacos' co-worker at a Seattle restaurant, was shot and killed. Kyreacos became a suspect in that murder.

After the Ellich murder, appellant borrowed, from fellow officer Detective Hortin, a 945 caliber automatic weapon, specifically requesting one which could not be traced. Appellant told Detective Hortin 'that he was going to have a girl, or had had a girl call Kyreacos, and that he wouldn't have to worry about Nick anymore.'

On November 19, 1973, at 3:20 p.m., the receptionist at Kyreacos' place of work received a telephone call from an unidentified woman who asked for Kyreacos. At the time Kyreacos was not present. On November 20, the same person called again. This time Kyreacos was present and accepted the call, and was apparently disturbed by it. A cocktail waitress at the restaurant, Mrs. Gwen Wesselius, later testified over objection that, within minutes after the call, Kyreacos told her that the caller had claimed to have information about Branko Ellich and wanted to meet Kyreacos in an alley between 6 and 6:15 p.m. that evening. Kyreacos told Mrs. Wesslius he intended to keep the appointment. The alley to which he was directed is immediately behind a mortgage company, where appellant was employed in an off-duty job escorting employees to their cars in the parking lot behind the building.

Kyreacos next went to his attorney's office. From there he called the Seattle Police Department, and was told that police protection could not be provided. He then purchased a small tape recorder, receiving instructions in its operation by way of demonstration on a store model.

He asked his next-door neighbor, Mike Premel, to accompany him downtown. On the way, he showed Premel a switchblade knife, a toy pistol and a set of walkie-talkies. He also displayed for Premel the new tape recorder, which he concealed under his clothing, attaching the microphone to his shirt. He parked near the alley in question, gave Premel a walkie-talkie, took the other, and proceeded toward the alley. Premel remained near the car. The walkie-talkies did not work. Kyreacos walked into the alley, where appellant was sitting in his truck. The shooting events occurred, and Kyreacos was killed, shot four times by a police .38 and once by a .45. Appellant was wounded twice by the .45. Appellant gave a statement to the investigating police officers in which he consistently referred to the weapons as 'his gun' and 'my gun.' Before Kyreacos' body was moved from the scene, police officers discovered a half-smoked cigarette in Kyreacos' right hand. The tape recording was discovered during an autopsy in the medical examiner's office. The microphone was recovered from Kyreacos' clothing in a damaged but operative condition.

The tape was found to contain an apparently complete recording of the shooting events which resulted in Kyreacos' death. That recording was inconsistent with the version of the facts given to the police by appellant, whose story was essentially as follows:

He had been working off duty at the mortgage company, and was sitting in his parked truck in the alley behind the building when Kyreacos entered the alley. Appellant asked Kyreacos what Kyreacos was doing there, and Kyreacos replied that he was looking for appellant. Appellant though Kyreacos was armed and therefore drew his gun, jumped out of his truck, and chased Kyreacos down the alley. He fired a shot at Kyreacos, and chased Kyreacos around the corner onto the Pike Street sidewalk, where appellant shouted to Kyreacos to stop. Kyreacos stopped. Appellant didn't frisk Kyreacos because he had heard something drop during the chase and assumed it was Kyreacos' gun. Appellant grabbed Kyreacos by the arm and led him back into the alley and put him up against his truck, in a 'frisk' position. Kyreacos then pulled a .45 caliber pistol from inside his own clothing and started firing. Appellant also fired, emptying his police .38, then dropped his gun and started to struggle with Kyreacos over Kyreacos' weapon, which discharged several other times, wounding appellant. Kyreacos was wounded several times and finally ceased struggling, and appellant asked a passerby to call the police.

At trial, appellant's testimony was substantially similar to his statement, except that he acknowledged the .45 caliber weapon to be his and testified that Kyreacos reached into appellant's clothing for the weapon.

The tape contradicts appellant's statements in several material respects. The tape begins with remarks by Kyreacos, introducing Mike Premel and stating his destination. The two men discuss the walkietalkies and other arrangements, and Kyreacos starts toward the designated alley. As he walks he narrates, describing the scene around him and describing with particular care each person in the vicinity. Remarking, 'Everything looks quite normal,' he says he is turning into the upper part of the alley. Then, suddenly are heard the sounds of running footsteps and shouting, the words 'Hey!' and 'Hold it!', Kyreacos saying 'Dave Smith,' and a sound resembling a gunshot. The running stops, and Smith tells Kyreacos to turn around. Kyreacos asks, 'What's the deal?' Smith replies, 'You know what the deal is. I'll tell you one thing baby, you have had it.'

Several more words are exchanged, not all of which are clearly intelligible, about whether Smith has 'a charge.' Then Kyreacos asks, 'If you wanted me, why didn't you come to see me?' Smith replies, 'I'll tell you why.' A moment later, another shot is heard. The quality of the recording becomes 'tinny.' (There was expert testimony that this shot damaged the microphone.) Then Kyreacos, screaming, repeatedly begs for his life. More shots are fired. There is a slight pause, two more shots are heard, then certain unclar sounds, then silence. After a period of nearly complete silence, a voice is heard to say, 'We've already called the police.' Another voice says, 'Hey, I think this guy's dead, man.' Afterward, the tape records police sirens and the sounds of the officers investigating.

The tape was played for the jury, over objection, twice during the trial and once during jury deliberations at the request of the jury. The procedure for playing the tape during deliberations involved the presence of the judge, the jury, the bailiff, the court reporter, and the clerk, who operated the tape recorder. Counsel and the defendant were not permitted to be present. The tape was first played the sixth day of the trial; that evening a Seattle television station broadcast a copy of the tape over the air. Defense motions to call the broadcaster to testify as to the origin of the station's copy of the tape were denied. Error is assigned to admission of the tape, to the procedure for playing the tape to the jury during deliberations, to denial of the subpoena of the broadcaster, and to the admission of the allegedly hearsay testimony of Mrs. Wesselius.

I.

Initially, we must decide whether the tape recording was properly admitted into evidence and played for the jury. Appellant contends that the tape was made in violation of RCW 9.73.030(2), ¹ and that RCW 9.73.050 ² therefore renders it inadmissible. The Washington statute is somewhat unusual in prohibiting the interception of communications without the consent of All participating parties. (Analysis based solely on the Fourth Amendment has repeatedly resulted in a construction which permits 'participant monitoring,' or interception where one party consents. See Greenawalt, The Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring with the Consent of a Participant in a Conversation, 68 Columbia L.Rev. 189 (1968).)

Our statutes have not before been considered by this court. The Court of Appeals, Division One, did consider RCW 9.73 in State v. Grant, 9 Wash.App. 260, 511 P.2d 1013 (1973). Appellant seeks to rely on Grant in support of his position that the tape was inadmissible. In Grant, the Court of Appeals excluded a tape recording of a statement made to an interrogating police officer, but admitted the officer's testimony as to the statement. The facts of Grant are almost classically within the statutory prohibition. None of the participants were aware of the surreptitious recording device, and the material recorded was clearly 'private conversation' within the simple meaning of that term. However, the special circumstances of the present case compel us to arrive at a different result. We are convinced that the events here involved do not comprise 'private conversation' within the meaning of the statute. Gunfire, running, shouting, and Kyreacos' screams do not constitute 'conversation' within that term's ordinary connotation of oral exchange, discourse, or discussion. We do not attempt a definitive construction of the term 'private...