State v. Smith
| Decision Date | 04 October 2016 |
| Docket Number | No. 47205–8–II,47205–8–II |
| Citation | 382 P.3d 721,196 Wash.App. 224 |
| Parties | State of Washington, Respondent, v. John Garrett Smith, Appellant. |
| Court | Washington Court of Appeals |
196 Wash.App. 224
382 P.3d 721
State of Washington, Respondent,
v.
John Garrett Smith, Appellant.
No. 47205–8–II
Court of Appeals of Washington, Division 2.
October 4, 2016
John Henry Browne, Colleen A. Hartl, Law Offices of John Henry Browne PS, 108 S. Washington St., Ste. 200, Seattle, WA, 98104–3414, Michael Terry Lee, Howd & Ludorf, LLC, 40 Washington St., Ste. 220, Wellesley, MA, 02481–1810, Suzanne Lee Elliott, Attorney at Law, Hoge Building, 705 2nd Ave., Ste. 1300, Seattle, WA, 98104–1797, for Appellant.
Aaron Bartlett, Attorney at Law, P.O. Box 5000, 1013 Franklin St., Vancouver, WA, 98666–5000, for Respondent.
PART PUBLISHED OPINION
Bjorgen, C.J.
Following a bench trial, the trial court found John Garrett Smith guilty of second degree attempted murder and second degree assault, each with a domestic violence sentencing enhancement. He appeals these convictions and the enhancements, arguing that the trial court erred when it ruled that a voice mail recording containing part of a domestic dispute between him and his spouse, Sheryl Smith, was admissible and not in violation of Washington's privacy act, RCW 9.73.030. He also raises myriad arguments in his statement of additional grounds (SAG).
¶2 In the published portion of this opinion, we hold that the trial court erred in admitting the voice mail recording because its contents contained a private conversation that was recorded without the parties' consent. Because the trial court specifically relied on that recording to find John1 guilty of second degree attempted murder, its erroneous admission was prejudicial to that conviction. However, the improper admission of the recording had no prejudicial effect on the second degree assault conviction. Accordingly, we reverse and remand John's second degree attempted murder conviction and affirm his second degree assault conviction.
In the unpublished portion of the opinion, we address and reject John's SAG claims.
FACTS
¶4 John and Sheryl married in 2011 and lived in Vancouver with Sheryl's daughter, Skylar Williams. On June 2, 2013, John and Sheryl were in their residence drinking. They became intoxicated and began to argue,
which prompted Williams to leave the house. While Sheryl and John were alone, John began to beat and strangle Sheryl, who lost consciousness due to the strangling.
¶5 Sometime during the attack, John used the residence's landline telephone to try to locate his cell phone. Unable to do so, he was unaware that his actions activated his cell phone's voice mail function, which started recording part of the dispute. In that recording, John is heard yelling insults at Sheryl and demands related to locating his cell phone. Sheryl responded to these statements by screaming unintelligibly or asking him to stop or leave her alone. At one point during the recording, Sheryl tells John to “[g]et away,” to which he responds, “No way. I will kill you.” Report of Proceedings (RP) at 241–43.
¶6 Shortly after the voice mail was recorded, John left the residence. Sheryl called 911 and reported that John had beaten her. During the 911 call, Williams returned home and saw that Sheryl's head was bloodied and swollen. Ly Rota Yong, a police officer with the Vancouver Police Department, arrived at the residence, and Sheryl was transported to the hospital. At some point after Williams arrived home, she retrieved John's cell phone and listened to the voice mail. At the hospital, Williams played the voice mail recording for Yong, who took the phone into possession.
¶7 John was later arrested and charged with first degree attempted murder (domestic violence), second degree attempted murder (domestic violence), first degree assault (domestic violence), and second degree assault (domestic violence).
Before trial, John moved to suppress the cell phone voice mail recording based on RCW 9.73.030. The trial court held a CrR 3.6 hearing, denied his motion, and entered findings of fact and conclusions of law. Pertinent to his assignments of error on this appeal, the trial court made the following conclusions of law:
7. RCW 9.73.030(1)(a) does not apply to this case because the people in the room where the recording took place, [Sheryl] and [John], were not attempting to communicate by electronic means. Neither party attempted to communicate by electronic means.
8. RCW 9.73.030(1)(b) applies when two people are having a private, non-electronic, conversation and a third party attempts to record or intercept that conversation.
9. RCW 9.73.030(1)(b) does not apply to this case because this information was recorded by [John]'s phone inadvertently. At the time this information was recorded, nobody was trying to intercept or record what was occurring.
....
11. At the time [Williams] discovered the phone and opened it, neither of the activities prohibited by RCW 9.73.030 were taking place. [Williams] was not violating that statute when she opened the phone and listened to its contents.
....
13. None of the information that was gathered up until the point that Officer Yong listened to the phone recording was gathered illegally.
Clerk's Papers (CP) at 92–93.
¶9 At John's bench trial, he, Sheryl, Williams, several police officers, and expert witnesses testified. The recorded voice mail, 911 phone calls, and photographs of Sheryl's injuries were admitted into evidence. The trial court entered findings of fact and conclusions of law, finding John guilty of second degree attempted murder and second degree assault,
both with domestic violence enhancements.2 The trial court found that the convictions merged, so it sentenced him only on the second degree attempted murder conviction.
¶10 John appeals.
ANALYSIS
I. PRIVACY ACT VIOLATION
1. Standard of Review and Legal Principles
¶11 John does not challenge any of the trial court's findings of fact related to the
CrR 3.6 hearing, and unchallenged findings are deemed verities on appeal. State v. O'Neill , 148 Wash.2d 564, 571, 62 P.3d 489 (2003). He does challenge several of the trial court's conclusions of law, which we review de novo. State v. Roden , 179 Wash.2d 893, 898, 321 P.3d 1183 (2014). We review conclusions of law to determine whether they are legally correct and whether they are supported by the findings. State v. Cole , 122 Wash.App. 319, 323, 93 P.3d 209 (2004) ; see McCleary v. State , 173 Wash.2d 477, 514, 269 P.3d 227 (2012).
¶12 Washington's privacy act, chapter 9.73 RCW, is “one of the most restrictive electronic surveillance laws ever promulgated,” significantly expanding the minimum standards of its federal counterpart and offering a greater degree of protection to Washington residents. Roden , 179 Wash.2d at 898, 321 P.3d 1183. RCW 9.73.030 provides in pertinent part,
(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, ... to intercept, or record any:
(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or
actuated, without first obtaining the consent of all the participants in the communication;
(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.
“Any information obtained in violation of RCW 9.73.030... shall be inadmissible in any civil or criminal case.” RCW 9.73.050.3
2. Private Communication
¶13 John assigns error to conclusion 7 from the trial court's CrR 3.6 ruling, in which it ruled that RCW 9.73.030(1)(a) did not apply. In this, the trial court was correct.
¶14 Unequivocally, RCW 9.73.030(1)(a) requires a “[p]rivate communication transmitted by telephone, telegraph, radio, or other device between two or more individuals.” (Emphasis added.); see also Roden , 179 Wash.2d at 898–900, 321 P.3d 1183 (text messages between two cell phones); State v. Christensen , 153 Wash.2d 186, 191–92, 102 P.3d 789 (2004) (telephone calls); State v. Townsend , 147 Wash.2d 666, 672, 57 P.3d 255 (2002) (e-mails, instant messaging). The unchallenged findings 1 and 2 and the evidence supporting them show that the voice mail feature recorded John and Sheryl communicating in person. They were not attempting to communicate through any device that would make the voice mail recording subject to RCW 9.73.030(1)(a). Accordingly, we hold that the trial court did not err in concluding that RCW 9.73.030(1)(a) was inapplicable.
3. Private Conversation
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