State v. Smith ( 2017 )

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■f^r SUSAN L. CARLSON
SUPREME GOURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 93923-3
Petitioner,
V. En Banc
JOHN GARRETT SMITH,
Respondent. Filed NQV 2 2
MADSEN, J.—This case concerns application ofRCW 9.73.030 of the
Washington privacy act to an inadvertent recording on a cell phone voice mail of a
domestic violence assault. We hold that the recording here does not contain a
"conversation" within the meaning of the privacy act. Further, even if the recorded
verbal exchange here could be considered a private conversation within the privacy act,
nevertheless an exception contained in the privacy act applies, rendering the recording
admissible. We reverse the Court of Appeals to the extent it holds otherwise.
FACTS
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. Mr.
Smith punched and strangled Mrs. Smith to the point of unconsciousness and then left
No". 93923-3
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.
Mrs. Smith's memory of the attack at the time oftrial was limited; she recalled:
I'm being strangled. Garrett's on top of me. My face is being punched. I
feel like I'm in a very dark place inside of my head, and three punches, and
I'm being called a fat bitch, and I thought I was going to die.
2A Verbatim Report of Proceedings(VRP)at 238. Other evidence filled in Mrs. Smith's
memory gaps, including her written statement, which was read into the record.
Additionally, there was a recording made of the incident. 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, name calling by the male, and the following exchange:
MALE: There, are you happy now?
(Woman screaming.)
MALE: You brought this shit on. I have never done this. You and your fucking
Mexican. Fuckcocking three-timer. You're not going to get your (inaudible)three
check.
'Photographs of Mrs. Smith's injuries that were taken on the night ofthe attack were later
admitted into evidence at Mr. Smith's trial.
No. 93925-3
WOMAN; Get away.
MALE: No way. I will kill you.
WOMAN: I know.
[More female screaming and name calling by the male followed until the
recording ended.]
2A VRP at 241-43; 1 VRP at 70-71; Ex. 2; Clerk's Papers(CP)at 78-80.^ At trial, the
female in the recording was identified as Sheryl Smith and the male as the defendant,
John Garrett Smith. Mr. Smith fled the scene without his cell phone after strangling Mrs.
Smith to unconsciousness. The cell phone ended up in the possession of Skylar
Williams, Mrs. Smith's daughter and Mr. Smith's stepdaughter, after Ms. Williams
returned to the house and helped her mother complete a 911 call.
On the 911 call, Mrs. Smith can be heard gasping and pleading for help. She
reported being unable to see. Mrs. Smith explained to the 911 operator that she had been
"beat to a pulp" by John Garrett Smith. 2A VRP at 188. Ms. Williams, who had just
arrived home,then grabbed the phone and told the 911 operator that her mother's face is
"like ten times the size of normal and gushing blood" and that "she can't open her eyes
because her face is so swollen." 2A VRP at 190. Following the arrival of the police and
paramedics, Mrs. Smith received medical care and was transferred to a hospital.
^ Multiple transcripts ofthe recording were admitted. Each transcript ofthe recording is slightly
different.
No. 93923-3
While at the hospital, Ms. Williams looked at Mr. Smith's cell phone and saw a
missed call and a voice mail from the family landline left around the time ofthe incident.
She listened to the voice mail and then played it for an officer. The police, after hearing
the voice mail, seized the cell phone and executed a search warrant on it. While at the
hospital, Ms. Williams received multiple calls from Mr. Smith. During one of those
calls, Mr. Smith indicated that he thought he should book a flight and leave town. Ms.
Williams told him to meet her at the house instead, but her plan was to send the police to
meet Mr. Smith.
The police arrested Mr. Smith at the home. At that time, he denied any physical
altercation with Mrs. Smith. But the next morning, Mr. Smith asked a detective,"Is she
going to make it?" despite not receiving any information from the detective about Mrs.
Smith's injuries. 2C VRP at 636.
The State charged Mr. Smith with attempted first degree murder, attempted second
degree murder, first degree assault, and second degree assault for the incident occurring
with Mrs. Smith on June 2, 2013. Prior to trial, Mr. Smith filed a motion to suppress the
audio recording found on his cell phone that captured part ofthe incident, including him
threatening to kill his wife. Mr. Smith argued that Ms. Williams had unlawfully
intercepted the recording pursuant to the privacy act, RCW 9.73.030, 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 RCW 9.73.030(l)(b), which, as discussed below, prohibits the recording of
private conversations without consent, did not apply because the information was
No. 93923-3
inadvertently recorded, noting that "[a]t the time this information was recorded, nobody
was trying to intercept or record what was occurring." CP at 92(Conclusion of Law 9).
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 denial ofthe motion to suppress; he
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 ofthe incident because(1)the recording was of a "private conversation" and
(2)Mr. Smith (the defendant) had unlawfully recorded the "private conversation," despite
the fact that the recording was made inadvertently. State v. Smith, 196 Wash. App. 224,
227, 237-38, 382 P.3d 721 (2016){John Garrett Smith). 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. Id. at 236. The State sought and this court granted review on the issue of
how the privacy act is to be properly applied in this case. State v. Smith, 187 Wash. 2d
1025, 391 P.3d 447(2017). Accordingly, the issue before this court is whether the voice
mail recording is admissible in John Garrett Smith's criminal prosecution, either as
No. 93923-3
falling outside of the Washington privacy act, RCW 9.73.030, or as falling within an
exception noted in that statute.^
ANALYSIS
Washington privacy act, chapter 9.73 RCW
"As with all questions oflaw, questions of statutory interpretation are reviewed de
novo." Berrocal v. Fernandez, 155 Wash. 2d 585, 590, 121 P.3d 82(2005); State v. Kipp,
179 Wash. 2d 718, 726, 317 P.3d 1029(2014). "Washington State's privacy act is
considered one of the most restrictive in the nation." Kipp, 179 Wash. 2d at 724 (citing
State V. Townsend, 147 Wash. 2d 666, 672, 57 P.3d 255 (2002)). RCW 9.73.030(l)(b)
provides in relevant part:
Except as otherwise provided in this chapter, it shall be unlawful for any
individual . . . to . . . record any:
[p]rivate 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.
"Evidence obtained in violation ofthe act is inadmissible for any purpose at trial. RCW
9.73.050." Kipp, 179 Wash. 2d at 724 Nevertheless, the above noted statute provides an
exception. RCW 9.73.030(2) provides in relevant part,"Notwithstanding subsection (1)
of this section,... conversations(a)of an emergency nature,... or(b) which convey
^ Respondent's pro se briefing does not address the issue for which this court granted review.
Respondent's supplemental brief focuses on a new argument, asserting that the recording was
fraudulently altered, and relies on facts outside the record. As for the privacy act, respondent
notes only that "[t]he debate over the minutia ofthe privacy act in this case is a red herring,"
deflecting attention from the "extensive fraud." Resp't's Br. at 14.
No. 93923-3
threats of.. . bodily harm . . . may be reeorded with the consent of one party to the
conversation."
Inadvertence
The trial court ruled that RCW 9.73.030(l)(b) did not apply because the recording
was inadvertent and therefore outside the protection of the privacy act. The Court of
Appeals held that whether Mr. Smith recorded himself"inadvertently or purposely ... is
beside the point[ because] the statute requires no specific mental state for a person to
improperly record a conversation." John Garrett Smith, 196 Wash. App. at 237. The Court
of Appeals is correct that "nothing in the plain language ofRCW 9.73.030 imposes [a
specific mental state]." Id. The Court of Appeals held that the trial court erred by
concluding that Mr. Smith's inadvertence in recording the private conversation removed
his actions from the reach of the privacy act. Id.
The State complains that by logical extension, the Court of Appeals' decision
turns the privacy act into a strict liability statute and may result in absurd consequences,
such as criminalizing the innocent(and common)conduct of pocket dialing.
Whenever faced with a question of statutory interpretation, we look to the plain
meaning of the words used in the statute. State v. Fjermestad, 114 Wash. 2d 828, 835, 791
P.2d 897(1990). A nontechnical statutory term may be given its dictionary meaning;
statutes should be construed to effect their purpose, and unlikely, absurd, or strained
consequences should be avoided. Id. This court has read RCW 9.73.030 and .050 to
"express[] a legislative intent to safeguard the private conversations of citizens from
dissemination in any way." Id. at 836. In the privacy act, "[t]he legislature intended to
No. 93923-3
establish protections for individuals' privacy and to require suppression of recordings of
even conversations relating to unlawful matters if the recordings were obtained in
violation of the statutory requirements." State v. Williams, 94 Wash. 2d 531, 548, 617 P.2d
1012(1980)(citing RCW 9.73.030,.050). Accordingly, the plain language of the act
confirms that even an inadvertent recording of a private conversation falls within the
purview ofthe act.
Conversation
Next, the Court of Appeals held that "John [Smith] recorded a private
conversation in violation ofRCW 9.73.030." John Garrett Smith, 196 Wash. App. at 232.
The State contends that "the recording is of[Sheryl] Smith being victimized." Suppl. Br.
of Pet'r at 11. Specifically, the State asserts that the content ofthe recording qualifies as
neither a conversation nor private. The State asserts that this case is "legally
indistinguishable" from this court's prior decision in State v. Smith, 85 Wash. 2d 840, 540
P.2d 424(1975){David Smith). Suppl. Br. ofPet'r at 10. There, a shooting victim
carried an actuated tape recorder to a meeting in an alley where he suspected potential
foul play. The encounter was recorded, and the recorder and recording were found on the
victim's body during the autopsy. The recording included sounds of running footsteps,
shouting, gunshots, some dialogue, screaming, more gunshots, silence, then an exchange
about whether the victim was dead, followed by police sirens, and finally officers
investigating. David Smith, 85 Wash. 2d at 844. This court determined that the recording
was admissible but limited its holding to the "bizarre facts" of the case. Id. at 846. This
court stated:
8
No. 93923-3
We are convinced that the events here involved do not comprise "private
conversation" within the meaning of the statute. Gunfire, running,
shouting, and [the victim's] 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
conversation" which would be applicable in all cases. We confine our
holding to the bizarre facts of this case, and find that the tape does not fall
within the statutory prohibition ofRCW 9.73.030, and thus its admission is
not prohibited by RCW 9.73.050.
Id. at 846-47.
The voice mail recording here is similar to the recording describing the shooting
homicide in David Smith. The recording contains shouting, screaming, and other sounds,
but it also contains brief oral exchanges between Mr. and Mrs. Smith in which Mr. Smith
tells his wife that he is going to kill her, and she responds,"I know." CP at 78. Because
the voice mail recording primarily contains the sounds of a violent assault being
committed, we hold that based on David Smith, the content of the voice mail recording
here is not of a "conversation" as contemplated by the privacy act.'' Therefore, the
'' Justice Gordon McCloud's concurrence contends that the presence of verbal exchanges in the
recording at issue here distinguishes this case from David Smith and that we improperly
"stretch[]" the analysis in the David Smith case by applying it here. Concurrence (Gordon
McCIoud, J.) at 3. But, as noted, verbal exchanges were also present in David Smith in the
recording between the victim and the assailant, as the following passage from that case attests.
This court described the content ofthe recording in David Smith as the victim, Nicholas
Kyreacos, entered the alley carrying the actuated tape recorder as follows:
[SJuddenly 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 miming stops, and [defendant] Smith tells Kyreacos to tum 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
.... 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.. . .
Then Kyreacos, screaming, repeatedly begs for his life. More shots are fired.
There is a slight pause, two more shots are heard, then certain unclear sounds,
then silence.
No. 9392^-3
recording "does not fall within the statutory prohibition ofRCW 9.73.030, and thus its
admission is not prohibited by RCW 9.73.050." David Smith, 85 Wash. 2d 846-47.^
Consent
The State also argues that the Court of Appeals erred in holding that the exception
found in RCW 9.73.030(2) does not apply because "neither John nor Sheryl [Smith]
consented to [the voice mail] recording." John Garrett Smith, 196 Wash. App. at 231 n.3.
We agree with the State.
In Townsend, 147 Wash. 2d at 676, this court held that in the context ofthe privacy
act, a person may impliedly consent to the recording within the meaning ofthe privacy
act in multiple ways. "A party is deemed to have consented to a communication being
recorded when another party has announced in an effective manner that the conversation
would be recorded." Id. at 675 (citing RCW 9.73.030(3)). Also,"a communicating party
will be deemed to have consented to having his or her communication recorded when the
party knows that the messages will be recorded." Id. at 675-76 (citing In re Marriage of
Farr, 87 Wash. App. 177, 184, 940 P.2d 679(1997), in which the Court of Appeals held
that a party had consented to the recording of his messages when he left the message on a
telephone answering machine).
In Townsend, police became aware of a man trying to make arrangements over the
Internet for sexual liaisons with adolescent girls. Police recorded and tracked defendant's
David Smith, 85 Wash. 2d at 844-45. The recording in David Smith and the voice mail recording
here contain the sounds of a violent assault being committed. Application of David Smith is
appropriate here.
^ Because we hold that the content ofthe recording is not a "conversation," we do not reach
whether that content is "private" for purposes of the privacy act, RCW 9.73.030(l)(b).
10
No. 93923-3
e-mail and ICQ ^ messages to a fictitious adolescent girl that police set up for the sting
operation. Id. at 670. This court held that although defendant did not explicitly announce
that he consented to the recording of his e-mail and ICQ messages to his fictitious target,
his consent to such recordings could be implied.
[B]ecause [defendant], as a user of e-mail had to understand that computers
are, among other things, a message recording device and that his e-mail
messages would be recorded on the computer of the person to whom the
message was sent, he is properly deemed to have consented to the recording
of those messages.
Id. at 676. This court noted that "the saving of messages is inherent in e-mail and ICQ
messaging" and that through his use of such systems, and thus concomitant familiarity,
defendant had impliedly consented to the recording ofsuch messages. Id. at 678.
[Defendant] was informed [in part] by his general understanding ofICQ
technology that the recording ofICQ messages by a recipient is a
possibility. Consequently, like other users ofICQ technology, he took a
risk that his messages might be recorded by the recipient. [Accordingly,]
under these circumstances [defendant] impliedly consented to the recording
of his ICQ messages.
Id. at 678-79.
Similarly here, Mr. Smith, as a user of his cell phone, would be familiar with its
voice mail function. His general familiarity is demonstrated by his attempt to call his cell
phone in order to locate it. But by doing so, he took the risk that his call would trigger
the recording (voice mail) function, and it did so. Under these circumstances, he is
deemed to have consented to the voice mail recording. Id. at 676; cf. Farr, 87 Wn. App.
^ ICQ is an Internet discussion software program that allows users to communicate via real time
live chat by typing on the keyboard. Townsend, 147 Wash. 2d at 670-71.
11
No. 93923-3
at 183 (defendant waived any statutory privacy right by leaving a message on an
answering machine).
As in Townsend, Mr. Smith impliedly consented to the recording. Such consent
triggers the threat exception to the privacy act. As noted, RCW 9.73.030(2) provides in
relevant part, "Notwithstanding subsection (1) of this section,... conversations . . .
which convey threats of.. . bodily harm . . . may be recorded with the consent of one
party to the conversation." Here, Mr. Smith's threat to kill Mrs. Smith falls within this
exception, and for that reason the voice mail recording was admissible at trial.
CONCLUSION
We hold that under the facts of this case, the voice mail recording does not contain
a "conversation" under David Smith and, thus, the voice mail recording's admission in
John Garrett Smith's criminal prosecution is not prohibited by the Washington privacy
act. Further, even if the voice mail recording concerned a private conversation under
RCW 9.73.030(l)(b), nevertheless, because Mr. Smith impliedly consented to the voice
mail recording, the threat exception provided in RCW 9.73.030(2) applies, rendering the
voice mail admissible. Accordingly, we reverse the Court of Appeals to the extent it
12
No. 93923-3
is at odds with this disposition and reinstate Joha Garrett Smith's attempted second
degree murder conviction.^
^ Shortly before consideration ofthis case, pro se respondent.John Garrett Smith filed three
motions in this court that were passed to the merits as follows: "MOTION FOR ORDER TO
VOID JUDGMENT AND TO DISMISS CASE WITH PREJUDICE AND TO RELEASE
FROM UNLAWFUL RESTRAINT ..."(filed Apr. 25, 2017); "Petition for Order to
IMMEDIATELY RELEASE Petitioner FROM FALSE IMPRISONMENT Unlawfully
Adjudicated Under Fraudulent Absence of Jurisdiction"(filed May 16, 2017); and "Petition for
Mandatory ORDER OF COMPLETE VITIATION OF CASE ON ACCOUNT OF TREASON"
(filed May 22, 2017). All ofrespondent's motions are based on the same fundamental argument.
He contends that the voice mail recording was fraudulent, faked, digitally synthesized, and/or
manufactured. This argument is newly raised and based on evidence outside the record,
primarily a forensic expert's analysis ofthe voice mail recording. This is the basis of all his
other assertions. He contends that because ofthe fraud, anyjudgment is void, rendering the
court(s) without jurisdiction, and all judicial officers who refuse to grant immediate vitiation of
the entire case and release him are committing treason. Because his motions rely on evidence
outside the record, his appropriate avenue for such arguments is a personal restraint petition. See
State V. McFarland, 127 Wash. 2d 322, 337-38, 899 P.2d 1251 (1995). In the present context, we
deny all three motions.
13
No. 93923-3
WE CONCUR:
W/u
(
14
State V. Smith
No. 93923-3
GonzAlez, J.(concurring in result)—^John Smith recorded himself
committing a crime. He now complains that the recording violated his privacy
rights. But John Smith cannot invade his own privacy. While others may object
under chapter 9.73 RCW if this recording is ever used against them, John Smith
cannot.
In any event, this case concerns the admissibility of evidence, not a
prosecution under the privacy act. Ch. 9.73 RCW. John Smith recorded himself.
He,therefore, consented to the recording at issue in this case. All members ofthis
court agree on this point and reverse the Court of Appeals' conclusion to the
contrary. John Smith set up the voice mail system, called his phone, and left a
message. Cf. In re Marriage ofFarr, 87 Wash. App. 177, 184, 940 P.2d 679(1997)
("An answering machine's only function is to record messages."). His consent to
State V. Smith, No. 93923-3 (Gonzalez, J., concurring in result)
the recording answers a threshold question that eliminates the need to interpret the
Privacy Act: Does the person who made a recording have standing to challenge
the admissibility of that recording under chapter 9.73 RCW? The answer to this
straightforward question is no, and we should end our review there.
"Generally, the privacy act is implicated when one party records a
conversation without the other party's consent." State v. Kipp, 179 Wash. 2d 718,
v724, 317 P.3d 1029(2014). Further,"[e]vidence obtained in violation ofthe act is
inadmissible for any purpose at trial." Id.(citing RCW 9.73.050)(emphasis
added).
Importantly, for purposes of our review, this is not a case where a third party
made a recording, where John Smith's recording was intercepted,^ or where a
device not known by the defendant to make recordings did so. See generally Kipp,
179 Wash. 2d at 723 (recording made without defendant's consent); State v. Williams,
94 Wash. 2d 531,617 P.2d 1012(1980)(recording intercepted by federal agents); Br.
of Amicus Wash. State Ass'n of Mun. Att'ys at 9(describing Amazon Echo case).
John Smith consented to the recording, so it was not "obtained" in violation ofthe
privacy act. RCW 9.73.050; see also State v. Townsend, 147 Wash. 2d 666, 675,57
'Because the Court of Appeals concluded that the recording was made in violation of the
privacy act, it declined to answer whether the recording was intercepted. State v. Smith, 196 Wn.
App. 224, 238 n.5, 382 P.3d 721 (2016). In fact, until we took review. Smith never argued that
he had unlawfully made the recording—his argument was limited to unlawful interception. See
Clerk's Papers at 4-12; Am. Appellant's Opening Br. at 6-11.
State V. Smith, No. 93923-3 (Gonzalez, J., concurring in result)
P.3d 255(2002)("a communicating party will be deemed to have consented to
having his or her communication recorded when the party knows that the messages
will be recorded").
John Smith has no right to challenge the admissibility of a recording made in
violation ofthe privacy act that he himself made. Ruling otherwise would have
absurd results. For example, it would allow someone to take a "selfie" recording
while committing a crime such as molestation or burglary and then exclude it at
trial for violation ofthe privacy act. Therefore, in this case, it is unnecessary to
determine whether the recording contained a private conversation. I concur in
result.
State V. Smith, No. 93923-3
-A7^1
State V. Smith (John Garrett), No. 93923-3
(Gordon McCloud, J., concurring)
No. 93923-3
GORDON McCLOUD, J. (concurring)—I agree with the lead opinion's
conclusion that the voice mail recording was admissible against John Garrett Smith.'
And I agree that the portion of the recording containing screams does not constitute
a "conversation"; following our precedent, and our common sense, screams can
certainly convey important information—^terror—but still do not constitute '"oral
exchange, discourse, or discussion.'" Lead opinion at 9 (quoting State v. Smith, 85
Wash. 2d 840, 846, 540 P.2d 424(1975){David T Smith)).
The portion of the recording containing the statement "No [w]ay .... I will
kill you" and related verbal statements, however, is very different. Clerk's Papers
(CP)at 78. That portion of the recording is a highly communicative and discursive
oral exchange; in fact, it constitutes an explicit verbal admission of the element of
intent to kill. It therefore constitutes "conversation" within the meaning of
'For clarity, I refer to John Garrett Smith and Sheryl Smith by their first names.
Additionally, while it seems as though John Garrett Smith may also be referred to as
"Garrett," see 2A Verbatim Report of Proceedings (RP)(Dec. 1, 2014) at 238,1 will use
"John." No disrespect intended.
1
State V, Smith (John Garrett), No. 93923-3
(Gordon McCloud, J., concurring)
Washington's privacy act, RCW 9.73.030. Further, under our precedent, it
constitutes a conversation that we must consider "private."
As the lead opinion concludes, however, there is a statutory exception to the
privacy act's rule of inadmissibility for just such explicit private threats of bodily
harm. Under RCW 9.73.030(2), they are admissible with one-party consent. And
John certainly consented—he initiated the recording himself by purposefully calling
his cell phone and letting it ring and answer, all in an attempt to find his cell phone.
I therefore respectfully concur.
Analysis
I. A critical portion ofthe recording contains a "conversation" within
the meaning of the privacy act
The lead opinion states that the recording presented in this case is not a
"conversation"—and therefore not covered by the privacy act—because it is legally
indistinguishable from the nonconversational recording at issue in David T Smith.
Lead opinion at 9.
As discussed above, that is certainly true ofthe recorded screams in this case.
As the court explained in David T Smith, "Gunfire, running, shouting, and
Kyreacos' screams do not constitute 'conversation' within that term's ordinary
connotation of oral exchange ...." 85 Wn.2d at 846(emphasis added).
State V. Smith (John Garrett), No. 93923-3
(Gordon McCloud, J., concurring)
But there is more to the recording in this case than just screams. As the Court
of Appeals stated, the recording in this case, unlike the recording in David T. Smith,
also includes "unmistakably verbal exchanges falling within the definition of
conversation." State v. Smith, 196 Wash. App. 224, 234, 382 P.3d 721 (2016)(John
Garrett Smith), review granted, 187 Wash. 2d 1025, 391 P.3d 447 (2017)(citing 2A
Verbatim Report of Proceedings (RP)(Dec. 1, 2014) at 241-43). In fact, those
"verbal exchanges" contain some of the most critical inculpatory material: John's
statement "I will kill you." CP at 86 (Findings of Fact (FF) 4.1). The trial court
explicitly found that this statement showed the intent necessary for attempted murder
in the second degree.^ Id. In holding that the recording is not a conversation, the
lead opinion stretches David T. Smith beyond its "bizarre facts" to a "conversation"
where its analysis was never intended to apply.^
^ Specifically, the trial court referenced the following portion of the conversation:
Sheryl: Get away!
{John]: No [w]ay .... I will kill you.
CP at 78. As noted by the lead opinion opinion, multiple transcripts of the recording were
admitted. See 1 RP (Nov. 24, 2014) at 70-71; CP at 78-80. Each transcript is slightly
different. Lead opinion at 3 n.2.
^ In David T. Smith, this court clearly made a very limited decision about what
constitutes a "private eonversation," stating,"We do not attempt a definitive construction
of the term 'private eonversation' which would be applieable in all cases. We confine our
holding to the bizarre faets of this ease, and find that the tape does not fall within the
State V. Smith (John Garrett), No. 93923-3
(Gordon McCloud, J., concurring)
II. That recorded "conversation" was also "private" and, hence, is covered
by the privacy act
Because the lead opinion concludes that the recording does not contain a
"conversation," it declines to analyze whether any such conversation was "private"
and, hence, subject to the mandates of the privacy act. RCW 9.73.030(l)(b); lead
opinion at 9 n.4. Because I conclude that a critical portion of the recording was a
conversation, I continue to the privacy analysis.
In State v. Kipp, we explained how to decide whether a conversation is
"private" within the meaning of the privacy act. 179 Wash. 2d 718, 317 P.3d 1029
(2014). We held, "A communication is private (1) when parties manifest a
subjective intention that it be private and (2) where that expectation is reasonable."
statutory prohibition of RCW 9.73.030, and thus its admission is not prohibited by RCW
9.73.050." 85 Wash. 2d at 846-47. Thus, this court specifically limited our holding to the
"bizarre facts" present in David T. Smith. Broader application of David T Smith, without
additional inquiry, goes beyond that very limited holding.
Additionally, while there were no direct witnesses to the murder in David T Smith,
defendant David Smith himself acknowledged that he had shot and killed Nicholas
Kyreacos. Id. at 843-44. The recording of the nonconversational material—specifically,
the "[gjunfire, running, shouting, and Kyreacos' screams," not the "oral exchange,
discourse, or discussion," id. at 846—^was thus the critical part of that recording, because
it countered David Smith's portrayal of the altercation. In this case, in contrast, John Smith
has denied any physical altercation. 2C RP (Dec. 2, 2014) at 636. While there are
similarities between the recordings in David T. Smith and John Garrett Smith, the "oral
exchange, discourse, or discussion" presented by the recording in John Garrett Smith is
the critical portion ofthe recording. Consistent with both our case law and the privacy act,
I would hold that this recording must be considered a conversation.
State V, Smith (John Garrett), No. 93923-3
(Gordon McCloud, J., concurring)
Id. at 729 (citing State v. Townsend, 147 Wash. 2d 666, 673, 57 P.3d 255 (2002)). We
continued that the proof of subjective intent need not be explicit. Id.
The conversation between Sheryl and John was "private" under this test. With
regard to the first part of the test, the subjective expectation of privacy, the facts of
Kipp are instructive. In Kipp, the court determined that the defendant subjectively
intended his conversation to be private because a family member left the room,
"evidencing his subjective intent that the conversation be between only him and his
brother-in-law." Id. at 730. Similarly, Skylar Williams—Sheryl's daughter, who
lived with John and Sheryl—left the residence prior to the recorded conversation.
CP at 84(FF 1.4). Using the analysis employed in Kipp, John's subjective intention
that the conversation be private can be inferred from Williams's departure, leaving
John and Sheryl alone in the house.
The next question under Kipp and Townsend is whether that subjective
expectation of privacy was reasonable. Under State v. Clark, we look at the duration
and subject matter ofthe communication,the location ofthe communication and the
presence or potential presence of third parties, and the role of the nonconsenting
party and his or her relationship to the consenting party to evaluate whether a
subjective expectation of privacy was reasonable. 129 Wash. 2d 211, 225-27,916 P.2d
State V. Smith (John Garrett), No. 93923-3
(Gordon McCloud, J., concurring)
384(1996). This test "calls for a case-by-case consideration of all the facts." Kipp,
179 Wn.2d at 729(citing State v. Faford, 128 Wn.2d 476,484,910 P.2d 447(1996)).
In this case, all of the facts weigh in favor of reasonableness. The recording
was not very long, but it included more than a "brief, routine conversation[]." Kipp,
179 Wash. 2d at 731 (citing Clark, 129 Wash. 2d at 231). Additionally, the subject matter
included a threat to kill. As in Kipp, "the subject matter of the conversation in this
case was not one that is normally intended to be public, demonstrating [a]reasonable
expectation of privacy." Id. Further, John and Sheryl were alone in a private
residence, a fact that weighs heavily in favor of concluding the conversation was
reasonably considered private. CP at 84 (FF 1.5); see Kipp, 179 Wash. 2d at 731. In
fact, a private home is normally afforded maximum privacy expectation. State v.
Hastings, 119 Wash. 2d 229, 232, 830 P.2d 658 (1992). Finally, C/arA: requires us to
look at the role of the nonconsenting party and his or her relationship to the
consenting party in determining reasonableness. Here, as in Kipp, "[t]he parties in
this case are not strangers or public officials; they are family." Kipp, 179 Wash. 2d at
732. John and Sheryl were,in fact, married. CP at 83(FF 1.1). That close relationship
also weighs in favor ofthe reasonableness ofthe expectation of privacy.
6
State V. Smith (John Garrett), No. 93923-3
(Gordon McCloud, J., concurring)
Based on Townsend, Kipp, and Clark, John had both a subjective and
reasonable expectation of privacy. His recorded "conversation" is therefore private
and hence covered by the privacy act.
III. John consented to the recording, triggering the privacy act's "threat"
exception to inadmissibility based on one-party consent
The privacy act, however, does not protect all truly private conversations. As
the lead opinion explains, RCW 9.73.030(2) states, "[Cjonversations . . . which
convey threats of.. . bodily harm . . . may be recorded with the consent of one party
to the conversation." John's statement "I will kill you" certainly seems to be just
such a threat. Accord lead opinion at 9-11.
The only remaining issue is whether "one party" gave "consent" to the
recording. I agree with the lead opinion that the answer is yes—John did. In
Townsend, this court held that a person may impliedly consent to a recording and
analyzed the potentially consenting person's understanding of the applicable
technology and knowledge that a recording might occur to determine whether such
consent could be inferred. 147 Wash. 2d at 678. John's general familiarity with cell
phone technology and purposeful use of the home phone to locate his cell phone
supports just such an inference of consent to the recording. CP at 91 (FF 2, 3). As
the lead opinion explains, this implied consent triggers the threat exception to the
State V. Smith (John Garrett), No. 93923-3
(Gordon McCloud, J., concurring)
privacy act, which allows for recordings ofsuch threats with the consent ofone party
to the conversation. RCW 9.73.030(2); lead opinion at 11.
John's threat to kill Sheryl falls within that exception. The recording was
therefore admissible.
Conclusion
John's cell phone recorded not just sounds but also a "conversation." That
conversation was "private" under RCW 9.73.030(l)(b). But that private
conversation also contained a "threat[] of. . . bodily harm" within the meaning of
RCW 9.73.030(2). And John, who called his own cell phone on purpose with the
intent to connect with that cell phone so he could find it, impliedly consented to the
cell phone predictably recording any message he left. The fact that he happened to
leave a message saying "I will kill you" does not change this. His threat to kill was
admissible under RCW 9.73.030(2).
For these reasons, I concur.
State V. Smith (John Garrett), No. 93923-3
(Gordon McCloud, J., concurring)
(to,.