State v. Abbott

1

STATE OF WASHINGTON, Respondent, v. MICHAEL S. ABBOTT, Appellant.

No. 83558-1-I

Court of Appeals of Washington, Division 1

April 10, 2023

UNPUBLISHED OPINION

CHUNG J.

The State charged Michael Abbott with assault in the second degree and tampering with a witness, both with domestic violence designations, based on an incident in which he beat strangled, and threatened to kill his girlfriend, Elizabeth Pyper. Pyper made an audio recording as the altercation occurred. Abbott contends the trial court violated the Washington Privacy Act by admitting Pyper's audio recording of the assault. He also challenges the trial court's failure to dismiss his case for discovery violations, and he raises confrontation clause violations based on the trial court's denial of his request to admit certain impeachment evidence. We affirm.

FACTS

Michael Abbott called 911 to report that his girlfriend, Elizabeth Pyper, had assaulted him and refused to leave his home. Responding officers noted the odor of alcohol on Abbott. Initially, the officers detained Pyper in handcuffs. Pyper told the officers that Abbott came home intoxicated, spit on her, pulled her hair, and kicked her in the ribs. She also reported that Abbott strangled her. One of the officers noted redness turning to bruising on Pyper's neck. The officers called the fire department, and firefighter Patrick Boltz evaluated her injuries two separate times that evening.

While speaking with the police, Pyper revealed that she had recorded the altercation on her phone. After listening to the audio recording, the officers arrested Abbott for assault in the fourth degree. Officers then transported Abbott to jail. Detective Christopher Edwards conducted an investigation into Pyper's allegations. Shortly after, the State charged Abbott with one count of assault in the second degree with a domestic violence designation.

Abbott called Pyper from jail multiple times. During one of the phone calls, Abbott told Pyper to come to his arraignment to say, "they scared [her] and they made [her] angry and they threatened [her] with jail so [she] lied." Pyper understood Abbott to be requesting she recant her statements to the police.

The State subsequently amended the charging document to include one count of tampering with a witness with a domestic violence designation. A jury convicted Abbott on both second degree assault and witness tampering and returned a special verdict that Abbott and Pyper were intimate partners for both convictions. The judge imposed a standard range sentence of ten months incarceration.

On appeal, Abbott raises challenges to several evidentiary decisions by the trial court. He also argues that cumulative error requires reversal.

DISCUSSION

I. Admission of Evidence as an Exception to the Washington Privacy Act

Abbott claims the trial court improperly admitted the audio recording under the threat exception to the Washington Privacy Act (WPA) ch. 9.73 RCW. The WPA prohibits the recording of a "[p]rivate conversation . . . without first obtaining the consent of all the persons engaged in the conversation." RCW 9.73.030(1)(b). Generally information obtained in violation of RCW 9.73.030 is inadmissible in a civil or criminal case. RCW 9.73.050. However, conversations "which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands" may be recorded with the consent of one party to the conversation. RCW 9.73.030(2)(b).

We review alleged violations of the WPA de novo. State v. Bilgi, 19 Wn.App. 2d 845, 855, 496 P.3d 1230 (2021). "[S]ince whether the 'facts' are encompassed by the statutory protections presents a question regarding statutory interpretation, de novo review is the appropriate standard of review." State v. Kipp, 179 Wn.2d 718, 728, 317 P.3d 1029 (2014).

Neither party disputes that Pyper made the recording without consent from Abbott. Abbott contends the recording was inadmissible for two reasons: first, because it did not convey a true threat of bodily harm and second, because several of the statements were made in his private conversation with his mother, which Pyper recorded without his or the mother's consent.

A. True Threat

Abbott argues that the only statement he made directly to Pyper, that he "should end [her]. . . life now," was not a true threat trigging the WPA exception allowing one-party consent. The concept of a "true threat" arises from criminal cases due to the possible criminalization of otherwise constitutionally protected speech. See, e.g., State v. Johnson, 156 Wn.2d 355, 362-64, 127 P.3d 707 (2006) (limiting bomb threat statute, RCW 9.61.160(1), to true threats as it would otherwise criminalize protected speech). In such cases, courts have held a "true threat" is a statement" 'in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of an intention to inflict bodily harm upon or to take the life of [another individual].'" Johnson, 156 Wn.2d at 361 (quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990)). Whether a statement is a true threat is determined under an objective standard focusing on the speaker. Johnson.156 Wn.2d at 361.

The cases Abbott cites in support of his "true threat" argument discuss the requirement of a "true threat" in criminal cases; neither case addresses the WPA and its threat exception. See Johnson, 156 Wn.2d at 362-64 (addressing bomb threat statute, RCW 9.61.160(1)); State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004) (addressing criminal harassment statute, RCW 9A.46.020(1)(a)(i)). Abbott does not provide legal support for his claim that RCW 9.73.030(2)(b) applies exclusively to "true threats." Where no authorities are cited in support of a proposition, the court "may assume that counsel, after diligent search, has found none." DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). Without such authority, we decline to interpret the word "threat" in the WPA to require a "true threat" as defined by caselaw interpreting criminal statutes.

While we decline to conclude the WPA exception requires a true threat, Abbott's statements clearly reach that threshold. Abbott yelled at Pyper that he "should end [her] fucking life now." When his mother attempted to intervene, he continued to make statements proposing violent acts toward Pyper, saying he was "about to stomp her fucking head in," and "about to just kill her and fucking bury her." Pyper testified that the threats occurred in the context of a violent physical altercation, during which Abbott wrapped his arm around her neck from behind and pulled her out of chair. He tightened his grip and she could not breathe. He also kicked her in her ribs and back. A reasonable person in Abbott's position would foresee that threats, made while kicking and strangling Pyper, would be interpreted as a serious expression of his intent to inflict bodily harm on her. The statements constituted true threats. See State v. Kohonen, 192 Wn.App. 567, 575-76, 370 P.3d 16 (2016).

Here, regardless of whether the statute's exception is limited to a true threat, the trial court properly admitted the audio recording under RCW 9.73.030(2)(b) because Abbott's recorded statements conveyed threats of bodily harm and thus could be lawfully recorded with the consent of only one party to the conversation.

B. Private Conversation

Abbott claims that Pyper was not a participant in his private conversation with his mother where he said he was "about to stomp [Pyper's] . . . head in" and that he was "about to just kill her and ... bury her." According to Abbott, these recorded statements should have been excluded because neither he nor his mother consented to recording. We disagree.

The WPA protects only private conversations. RCW 9.73.030; Kadoranian by Peach v. Bellingham Police Dep't, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992). For the purposes of the WPA, "[a] communication is private (1) when parties manifest a subjective intention that it be private and (2) where that expectation is reasonable." Kipp, 179 Wn.2d at 729. Factors bearing on reasonableness of the expectation of privacy for a conversation include duration, subject matter, location, presence of third parties, and the role of the nonconsenting party and relationship to the consenting party. Id. "Generally, where another person is present, a party to the communication has no expectation of privacy." State v. Babcock, 168 Wn.App. 598, 607, 279 P.3d 890 (2012).

Here, Pyper's trial testimony and the audio recording confirmed that Abbott's statements to his mother were made in Pyper's immediate presence. The exchange was not a private conversation between Abbott and his mother.

Instead, the transcribed recording shows an altercation between Abbott and Pyper, with his mother interjecting:

MALE SPEAKER [Abbott]: I'm about to fucking kill her -

FEMALE SPEAKER [Pyper]: [INAUDIBLE].

SECOND FEMALE [Mother]: No.

MALE SPEAKER: -- and bury her out back.

SECOND FEMALE: No. Leave her alone.

FEMALE SPEAKER: No (crying).

SECOND FEMALE: Leave her alone. Leave her alone. Stop.

Given Pyper's presence and direct involvement in the exchange, Abbott has no reasonable expectation of privacy in the statements he made to his mother. The statements were not part of a private conversation and, therefore, were not subject to the protections of the WPA.

II. Expert Evidence Relating to Strangulation

Abbott argues the trial court erred by allowing "expert testimony" from firefighter Patrick Boltz^[1] and Detective Christopher Edwards because the State failed to properly disclose their expert testimony as required by CrR 4.7(a)(2)(ii).^[2]As a result of this discovery...