Inadvertent voicemail recording ruled admissible in court

Vancouver man was fighting conviction for attempted murder, assault of wife

By Jessica Prokop, Columbian Courts Reporter

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A cellphone voicemail that inadvertently captured John Garrett Smith threatening to kill his wife is not protected under the state’s privacy act, the Washington Supreme Court ruled Tuesday. The decision reverses a state appeals court’s ruling that overturned Smith’s conviction for attempted murder.

The state’s highest court determined that the recording — which was relied upon to find Smith guilty during a December 2014 bench trial in Clark County Superior Court — does not contain a conversation within the meaning of the privacy act. And even if the recording was considered a private conversation, there’s an exception in the privacy act.

Smith, 49, of Vancouver has been serving a 12-year sentence for convictions of attempted second-degree murder and second-degree assault. Each conviction carries sentencing enhancements.

The energy entrepreneur, who goes by his middle name of Garrett, attacked his wife, Sheryl Smith, 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 Garrett Smith repeatedly punched his wife in the face and strangled her.

However, Sheryl Smith’s daughter later discovered a voicemail accidentally left on Garrett Smith’s cellphone during the attack and shared it with police. In the recording, he told his wife, “I will kill you.” That prompted the prosecution to pursue an attempted murder charge.

Smith argues that although he said it, he never intended to kill his wife.

In October 2016, the Washington Court of Appeals ruled that using the recording violates the state’s privacy act, because it contained a private conversation that was recorded without the couple’s consent — even if it was captured inadvertently. In Washington, all parties must consent before a conversation can be recorded.

For that reason, the recording should not have been admitted as evidence, the appeals court determined. And because the judge relied on the recording to find Smith guilty of attempted murder, his conviction was overturned. The appeals court upheld his assault conviction and rejected all of his other claims.

The Clark County Prosecuting Attorney’s Office sought review of the decision by the Supreme Court. And the latest ruling renders the recording admissible, and Smith’s attempted murder conviction stands.

“We thought all along it was a straightforward case with strong evidence. We were convinced from the beginning that (Clark County Superior Court Judge Robert Lewis) was correct in ruling that the recording was admissible,” Prosecuting Attorney Tony Golik said. “We respectfully disagreed with the (Washington) Court of Appeals’ analysis of that, and we are happy that the Supreme Court has reaffirmed the conviction in this case.”

It’s possible Smith, who represented himself in the Supreme Court matter, could pursue the issue in federal court. But Golik said he doesn’t anticipate the case going any further.

Smith is currently housed at the Stafford Creek Corrections Center in Aberdeen.

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