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Washington’s Electronic Surveillance Leads to Reversal of Attempted Murder Conviction

On Behalf of | Nov 30, 2016 | Assault

In an important new ruling from the Washington Court of Appeals that shows just how broad the state’s electronic surveillance law is, the appeals court threw out an attempted murder conviction against a husband whose threats to kill his wife were accidentally recorded on a cell phone’s voicemail application. Even though no third person was involved in secretly recording the exchange, the fact was that neither the husband nor the wife had consented to being recorded, which triggered the electronic surveillance law and made the recording inadmissible in the husband’s trial.

John and Sheryl Smith were a married couple living in Vancouver who, on a June day in 2013, got involved in a drunken argument. The drunken argument devolved into a violent encounter, with the husband beating and strangling the wife to the point of unconsciousness.

At some point in the melee, the husband decided he needed to find his cell phone immediately. To do so, he grabbed a landline phone and dialed. He still couldn’t find the phone, but the man nevertheless didn’t hang up the house phone. This meant that, unbeknownst to the husband, the cell phone picked up, and the voicemail application engaged, leaving the two phones to record the events inside the home.

While the cell phone was recording and the fight continued, the wife told the husband to get away from her. He responded with, “No way… I will kill you.” Soon after that, the husband left. The wife called 911 and reported the attack. A little while later, the wife’s daughter arrived at the home and found the cell phone and the recording, which she handed over to the police.

In addition to charging the man with assault (domestic violence), the state also brought a charge of attempted murder (domestic violence). Before the trial started, the husband asked the judge not to allow the voicemail recording into evidence. The trial court refused, concluding that, since no third party was intentionally trying to eavesdrop on and electronically record the exchange between the husband and the wife, the recording was not obtained illegally, and there was no legal barrier to the police accepting it from the wife’s daughter and the state using it in its case.

At the end of the trial, the court found the husband guilty of assault and attempted murder. The husband appealed his attempted murder conviction, and he won. He won because Washington’s electronic surveillance law is, as the appeals court noted, “one of the most restrictive electronic surveillance laws” ever enacted. Under the parameters of Washington law, the screaming exchange between the husband and the wife, in which she told him to get away from her, he threatened “I will kill you,” and she replied “I know”, amounted to a private conservation that no one was allowed to record.

The state was wrong when it argued that the law only applied to private, non-electronic conversations intercepted and recorded by a third party. The law actually applies to any interception and recording of a private, non-electronic conversation without the participants’ consent, whether that recording is done by a third person or one of the conversation participants themselves, and whether the recording was accomplished via an intentional or accidental means.

Since the recording was admitted in the husband’s trial wrongfully and was critical to the state’s attempted murder case, the appeals court reversed that conviction but allowed the assault conviction to stand.

Each state has unique features within its laws that may, depending on the circumstances, potentially benefit you or a loved one who is standing trial. The key is to have experienced criminal counsel on your side who know how to ensure that you get a strong defense under Washington law. For a reliable defense against the charges facing you or a loved one, contact the Pierce County domestic violence attorneys at Smith & White, PLLC. Our attorneys have determinedly defended the rights of the accused for many years and are ready to help with your case too. The first consultation is free.