finding that a tape recording did not intercept a private conversation under § 9.73.030(1) because the sounds of gunfire, running, and shouting were not an oral exchange, discourse, or discussion
How later courts described this case
- finding that a tape recording did not intercept a private conversation under § 9.73.030(1) because the sounds of gunfire, running, and shouting were not an oral exchange, discourse, or discussion
- where counsel given prior notice of communication and proceedings recorded, "at least a possibility of prejudice must be shown"
- csriticizing court's exclusion of counsel during replaying of tapes for jury, even though counsel were given opportunity to comment and proceedings were recorded
- “We are convinced that the events here involved do not comprise ‘private conversation’ within the meaning of the statute. Gunfire, running, shouting, and … screams do not constitute ‘conversation’ within that term’s ordinary connotation of oral exchange, discourse, or discussion.”
Written by the judges who cited it.
The opinion
Utter, J.
(dissenting) — Although I sympathize with the majority’s dilemma, I cannot join in its approval of the admission of the tape recording of the brutal events that produced this case. I cannot imagine what would constitute a “private conversation” within the meaning of RCW 9.73.030 (2) if the series of questions and answers recorded on this tape and related in the majority opinion does not, and I cannot agree that the fact that some sounds on the tape were not “conversation” places the entire tape outside the statutory prohibition of recording without consent. I believe that the admission of all of this recording was therefore clearly prohibited by RCW 9.73.050.
It may seem incredible that evidence as plainly probative as this tape recording would be unusable in a criminal trial; but modern rules of evidence are riddled with rules that exclude from court otherwise useful information in order to promote some collateral policy of the law. The provisions of RCW 9.73 embody such a policy, and by their plain language they should apply here.
It is always difficult to reverse criminal convictions because evidence that clearly demonstrates guilt was improperly received. The reluctance to apply the law and the *858 temptation to carve out exceptions to it are particularly strong when the rules requiring exclusion are court-made and. the judiciary feels itself in opposition to the other branches of government in enforcing its policies. See State v. Shoemaker, 85 Wn.2d 207, 215 , 533 P.2d 128 (1975) (Utter., J., dissenting). But here we have an exclusionary rule created by the legislature, designed to implement its policy decisions. Even if we believe that the particular application of the legislative rule would be unjust or unwise in this case, we are bound to enforce the plain language of the statutes. Although the facts of this case are difficult in this respect, I cannot join in the majority’s decision to place it outside the law as a unique and unjustified exception. It seems to me that the statute as written, forces us to hold that the verbal exchanges between the defendant and his victim were indeed a “private conversation,” making the recording of them inadmissible under the wording of RCW 9.73, and I would reverse the trial court.
Petition for rehearing denied December 3, 1975.