John Garrett Smith did not intend to record himself on his cellphone as he threatened to kill his wife, but a judge used the voice mail to convict him of attempted murder. Now his conviction has been overturned after the Washington Court of Appeals ruled that using the recording violates the state’s privacy act.
The ruling was made public Tuesday after the higher court reviewed the Vancouver man’s case.
Smith, 48, has been serving a 12-year sentence for convictions of attempted second-degree murder and second-degree assault — each carried sentencing enhancements. The energy entrepreneur was found guilty by Clark County Superior Court Judge Robert Lewis following a three-day bench trial in December 2014.
Smith, who goes by his middle name of Garrett, attacked his wife during a drunken argument June 2, 2013, inside their home overlooking the Columbia River.
The case initially appeared to be a severe domestic assault in which Smith repeatedly punched his wife, Sheryl Smith, in the face and strangled her.
However, the voice mail accidentally left on Garrett Smith’s cellphone prompted the prosecution to pursue an attempted murder charge. In the recording, Smith told his wife, “I will kill you.”
Smith maintains that although he said it he never intended to kill his wife.
The appeals court determined that the voice mail should not have been admitted as evidence in Smith’s trial because it contained a private conversation that was recorded without the couple’s consent. The court found that Smith recorded the private conversation in violation of Washington’s privacy act, even if it was inadvertently.
In Washington, all parties must consent before a conversation can be recorded.
Because Lewis relied on the recording to find Smith guilty of attempted murder, that conviction was overturned.
“We respectfully disagree with the Court of Appeals’ decision and will be seeking a review through the Supreme Court,” Clark County Prosecuting Attorney Tony Golik said Tuesday afternoon.
Smith had raised the same privacy issue before his trial in Superior Court, but Lewis ruled the Smiths were not attempting to communicate by electronic means; a third party was not recording their conversation; the conversation was recorded inadvertently, and no one was trying to intercept or record it; and Sheryl Smith’s daughter did not violate the privacy statute when she found the recording and listened to it.
The appeals court upheld Garrett Smith’s assault conviction and rejected all of his other claims.
Smith is currently being held at the Clallam Bay Corrections Center near Port Angeles.
Efforts to reach Seattle attorney John Henry Browne, lead counsel on Smith’s appeal, were unsuccessful.
