Opinion
No. 58377-8-I.
November 13, 2007.
The jury convicted Michael Watkins of three counts of witness tampering and two counts of violation of a no contact order. Watkins contends Washington's privacy act, Chapter 9.73 RCW, requires suppression of the recorded telephone conversations he made to his wife from jail. The exact same argument was considered and rejected in State v. Modica. Because there is no reasonable expectation of privacy in the recorded conversations Watkins made while in jail and the additional grounds he raises are without merit, we affirm.
136 Wn. App. 434, 149 P.3d 446 (2006).
In May 2005, Seattle Municipal Court issued a no contact order prohibiting Michael Watkins from having any contact with his wife, Natisha Phelps. The no contact order prohibited Watkins from having any contact with Natisha, "in person, by telephone or letter, through an intermediary, or in any other way. . . ." The order also stated, "You can be arrested even if any person protected by the order invites or allows you to violate the order's prohibitions."
At trial, Natisha insisted on being referred to as Ms. Watkins, not Ms. Phelps. Accordingly, we will not refer to her by Ms. Phelps but will refer to her by her first name.
As of July 4, 2005, there were a number of domestic violence charges involving Natisha that were pending against Watkins. In one instance, Watkins allegedly struck Natisha in the mouth while she was holding their baby inside of a church bathroom. In a telephone call to Natisha, Watkins expressed concern about spending time in prison if he was convicted of some of these pending domestic violence charges.
While incarcerated at the King County Jail, Watkins made several phone calls to Natisha. At the beginning of each call, a recorded message announced the following:
This is a collect call from an inmate at the King County Detention Facility. This call will be recorded and subject to monitoring at any time. To accept the charges, dial three. To decline the charges, dial nine or hang up now.
Clerk's Papers at 54 (Finding of Fact I. C).
In response to the recorded message, Natisha dialed three and agreed to accept the charges. In the recorded telephone calls, Watkins urged Natisha to change her testimony so that he would not be found guilty of the pending charges. For example, he stated, "So whatever you can do, man, to get these, this, make this look differently, that's what you gotta do, man."
In August and September 2005, Watkins started calling Natisha by using a third party to initiate a three-way call with her. During these calls, Watkins again asked Natisha to change her testimony regarding the pending charges against him. For example, he stated, "[Y]ou got to change up the story and make it seem like something happened, but not what they say happened."
During some of the conversations with Natisha, Watkins expressed concern about calling her from jail because he thought the calls were being recorded. For example, he said, "They could be recording all this," and, "I can't keep calling so much . . . [j]ust using your number regardless of who's doing three-way."
As a result of the recorded calls, the State also charged Watkins with four counts of tampering with a witness — domestic violence, one count of intimidating a witness — domestic violence, and two counts of domestic violence misdemeanor violation of a court order. Before trial, Watkins moved to suppress the recorded conversations under Washington's privacy act, chapter 9.73 RCW. The trial court denied the motion.
A jury found Watkins guilty of three of the witness tampering counts and both counts of violation of the no contact order but not guilty of one witness tampering count or the witness intimidation count. At sentencing, there was no dispute that Watkins' offender score was eight. The court sentenced Watkins to serve the three counts of tampering with a witness concurrently with each other but consecutive to the two misdemeanor convictions of violating the no contact order. Watkins appeals.
ADMISSIBILITY OF RECORDED CONVERSATIONS
Watkins argues that because the recorded telephone conversations are inadmissible under Washington's privacy act, the trial court erred in denying his motion to suppress. We disagree.
Washington's privacy act prohibits intercepting or recording a "private communication" of a telephone conversation unless all parties to the communication consent. But a party is deemed to consent if he or she knows that the communication is going to be recorded. A communication is private under the act when (1) the parties have a subjective expectation that it is private, and (2) that expectation is objectively reasonable. Whether a communication is private may be determined as a matter of law if the material facts are not in dispute. A recording obtained in violation of the act is inadmissible in any civil or criminal case. We review issues of law de novo.
State v. Townsend, 147 Wn.2d 666, 675, 57 P.3d 255 (2002).
State v. Christensen, 153 Wn.2d 186, 193, 102 P.3d 789 (2004).
Id. at 192.
RCW 9.73.050.
State v. Ammons, 136 Wn.2d 453, 456, 963 P.2d 812 (1998).
Our decision in this case is controlled by State v. Modica. In Modica, an inmate in the King County Jail made phone calls that were recorded and admitted against him on charges of assault and tampering with a witness. Before Modica made each call, a recorded message informed him that the call would be recorded. The call recipient also heard the recorded message, and was required to push the number three on his or her phone in order to accept the call. This Court held that the privacy act did not apply to the recording because the conversations were not private and also held that Modica and the recipient of the calls consented to the recording.
Id. at 438.
Id. at 439.
Id. at 447.
Even if Modica is controlling, Watkins argues that this case is factually distinguishable. Watkins argues that his case is different because his expectation of privacy in his telephone conversations was stronger than in Modica. Watkins contends he expressed doubt several times during the calls that the calls were being recorded and the conversations were of a more personal nature.
Watkins' attempt to distinguish Modica is unpersuasive. The court in Modica did not rely on the nature of the conversations in reaching its decision. Rather, the court concluded that a telephone conversation made from jail is not "private" if a recorded message informs both parties that the conversation will be recorded. First, inmates have a lowered expectation of privacy than free citizens. Second, any subjective expectation of privacy in such a call would not be objectively reasonable because of the warning that the call would be recorded. Also, the court held that a person is deemed to have consented to the recording if he or she continues with the call despite the warning that it will be recorded. As in Modica, the privacy act did not apply to the recorded telephone conversations that Watkins made to Natisha from jail.
Id. at 448.
Id. at 449.
Id.
STATEMENT OF ADDITIONAL GROUNDS
In his statement of additional grounds for review, Watkins raises several additional issues, which we conclude are without merit.
First, Watkins asserts that the recorded conversations were not properly authenticated at trial and that the witness who attempted to lay the foundation for their admissibility gave improper opinion testimony by suggesting the calls were made by Watkins. Because Watkins did not object to admission of the recordings, he cannot challenge their admission for the first time on appeal.
See RAP 2.5(a).
Citing State v. Brown, Watkins next argues that the trial court erred in determining that the three witness tampering counts did not constitute the same criminal conduct for purposes of sentencing. We disagree. Because the three instances of witness tampering occurred on three different dates, the tampering counts do not encompass the same criminal conduct and his attorney's concession that his offender score was eight was correct.
100 Wn. App. 104, 995 P.2d 1278 (2000), rev'd in part on other grounds by 147 Wn.2d 330, 58 P.3d 889 (2002).
See Brown, 100 Wn. App. at 112 (A finding of "same criminal conduct" requires that, among other things, the crimes were committed at the same time and place.)
Similarly, Watkins contends that the trial court erred in considering his juvenile adjudications in determining his offender score for sentencing. To support his argument, he relies on an unpublished case, which in turn relies on authority that has since been superseded by the 2002 amendments to the Sentencing Reform Act. In State v. Varga, our supreme court clarified that the 2002 amendments allow consideration of previously washed out juvenile adjudications as long as the crime being sentenced was committed after the effective date of the amendments on June 13, 2002. Because Watkins committed his crimes after the 2002 amendments went into effect, his reliance on Watkins and Smith is misplaced.
See State v. Watkins, No. 49016-8-I, 2002 WL 1019521, at *4 (Wn.App. May 20, 2002) (unpublished) (citing State v. Smith, 144 Wn.2d 665, 30 P.3d 1245 (2001) (1997 and 2000 Sentencing Reform Act amendments did not apply retroactively to allow previous washed out juvenile adjudications to be considered in offender score calculations), superseded by statute as stated in State v. Varga, 151 Wn.2d 179, 193, 86 P.3d 139 (2004)).
151 Wn.2d 179, 191, 86 P.3d 139 (2004).
Watkins also argues that the trial court erred in allowing evidence of his prior bad acts and that offering such evidence constituted prosecutorial misconduct. The trial court admitted evidence of acts of domestic violence by Watkins against Natisha during the State's examination. The court concluded that proof of these acts was relevant under ER 404(b) for several reasons — (1) because Watkins and Natisha referred to these incidents in their telephone conversations, they were relevant to identify Watkins in the recordings; (2) to prove that Watkins attempted to prevent Natisha from testifying against him in pending proceedings; and (3) to rebut Natisha's testimony at trial that the acts did not occur. The court balanced the probative value and prejudicial effect of each prior act, concluding that the relevance substantially outweighed the prejudicial effect.
See Report of Proceedings (Mar. 23, 2006) at 92-93 (discussing State v. Grant, 83 Wn. App. 98, 920 P.2d 609 (1996); State v. Nelson, 131 Wn. App. 108, 125 P.3d 1008, review denied, 157 Wn.2d 1025 (2006)).
The trial court did not abuse its discretion in admitting the evidence. In addition, the court instructed the jury that the prior acts were not evidence of Watkins' guilt in this case. Watkins also argues there is insufficient evidence that he made a threat to his victim or an explicit request to lie or withhold testimony. But the jury acquitted Watkins on the only charge requiring proof that he made a threat, the witness intimidation charge. And while the witness tampering charges required proof that he explicitly requested the witness to lie or withhold information, the record amply supports the jury verdict that Watkins was guilty and made such requests on three separate occasions. Although the call log allowed the jury to match the dates with the recorded calls, while not made part of the record on appeal, was admitted as evidence at trial. Based on our review of the record, we conclude that sufficient evidence supports the three witness tampering charges.
See State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994) (jury is presumed to follow instructions).
E.g., Exhibit 1, the July 6, 2005 recording — "So whatever you can do, man, to get these, this, make this look differently, that's what you gotta do, man."; Exhibit 8, the Aug. 21, 2005 recording — "Man, you gotta just let them people know, yeah, we having problems in our marriage and stuff like that, but he ain't doing all the stuff that I said he did man."; Exhibit 9, the Aug. 27, 2005 recording — "[Y]ou got to change up the story and make it seem like something happened, but not what they say happened."
In a number of other arguments, Watkins raises several additional issues, including violation of his right to have the jury make a fair determination of the facts, the right to a fair trial, and the right to effective assistance of counsel. Because these arguments are not supported by any specific argument or facts from the record, we cannot review them.
See RAP 10.10(c) (We will not consider an argument made in a statement of additional grounds for review "if it does not inform the court of the nature and occurrence of alleged errors.").
We affirm Watkins' conviction and the felony judgment and sentence.