Attempted Murder Conviction Reversed Because Voicemail Argument was Inadmissible Evidence

State of Washington v. Smith (2016)

by David S. Marshall

Reviewing John Garrett Smith’s conviction for second degree attempted murder (domestic violence), the Washington State Court of Appeals has determined that a voicemail recording containing an argument between Mr. Smith and his wife could not be used as evidence at trial. The appellate court held that Washington’s Privacy Act, RCW 9.73.030, prohibited admitting the voicemail. in evidence.

Mr. Smith and his wife got into an argument after both had been drinking heavily in their home in Vancouver, Washington. The argument became violent, and Mr. Smith began to beat and strangle Mrs. Smith. At some point during these events, Mr. Smith used the home landline telephone to try to locate his cell phone. Though he did not locate his cell phone, he did unknowingly activate his cell phone’s voicemail function, which began recording part of the dispute. The recording captures both individuals yelling at each other, and Mr. Smith’s saying to his wife, “I will kill you.”

Mr. Smith left the home, and Mrs. Smith went to the hospital. Her daughter retrieved Mr. Smith’s cell phone, listened to the voicemail recording, and played it for police interviewing her mother at the hospital. Mr. Smith was later arrested and charged in Clark County Superior Court with second degree attempted murder (domestic violence) and second degree assault (domestic violence).

Mr. Smith moved before his trial to suppress the voicemail recording based on RCW 9.73.030, which protects recordings of “any . . . private conversation, by any device electronic or otherwise designed to record or transmit such conversation . . . without first obtaining the consent of all the persons engaged in the conversation.” Information obtained in violation of this law is not inadmissible in any civil or criminal case. RCW 9.73.050.

The trial court denied Mr. Smith’s motion. It found that “RCW 9.73.030(1)(b) does not apply to this case because this information was recorded . . . inadvertently. At the time this information was recorded, nobody was trying to intercept or record what was occurring.”

The appellate court disagreed. It found that the voicemail was protected under the Privacy Act because it was clearly a private conversation, recorded without the parties’ consent, as defined by the plain language of the law. Since the trial court relied on the voicemail to find Mr. Smith guilty, this erroneous admission made it more likely to convict Mr. Smith. Accordingly, the Court of Appeals reversed the conviction.