Man Can’t Toss Assault Recording He Accidentally Created

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By Jordan S. Rubin

A man who accidentally recorded himself viciously beating his wife can’t suppress the recording, the Washington state Supreme Court held.

The recording wasn’t a “conversation” under state privacy law and, even if it was a private conversation, he consented to it, the court said ( State v. Smith , 2017 BL 419812, Wash., No. 93923-3, 11/22/17 ).

John Garrett Smith was convicted of attempted second-degree murder and other crimes stemming from his domestic assault of Sheryl Smith.

Evidence included a recording of the incident from a voicemail on his mobile phone, which he accidentally recorded when he used the home’s landline in an attempt to find it.

The trial court denied Smith’s motion to suppress and he was convicted after trial.

But the appeals court reversed his conviction and 12-month sentence, reasoning that Smith had recorded a private conversation, even if inadvertently.

The appeals court was wrong, the state high court said in an opinion by Justice Barbara A. Madsen.

It was a violent assault, not a conversation, that was primarily recorded, the court said. Plus, Smith consented to the recording, it said. It’s his own fault that he dialed his phone to look for it, it said.

Justices Charles W. Johnson, Susan Owens, and Charles K. Wiggins joined the opinion.Justices Steven C. Gonzalez and Sheryl Gordon McCloud concurred separately.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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