State Of Washington, V. Morris Kamara
Published Opinion (2023)
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Rule of Law:
Under Washington’s privacy act, RCW 9.73.030, recordings of sounds that do not constitute an "oral exchange, discourse, or discussion" — such as the sounds of an assault, including crying and pleas to stop — are not considered a "private conversation" and are therefore admissible in court.
Facts:
- Morris Kamara and B.T. met at a mutual friend’s birthday party in July 2019, and Kamara later persistently asked B.T. to meet despite her being in a relationship.
- On August 30, 2019, B.T. agreed to meet Kamara and got into his car, after which Kamara immediately drove her to his apartment.
- At Kamara's apartment, he offered B.T. wine and began making physical advances toward her.
- While in Kamara's bathroom, B.T. activated a recording app on her phone and then switched to a different app without stopping the recording.
- B.T. repeatedly told Kamara "no" and not to touch her, but Kamara moved closer, made sexual remarks, and insisted she stay.
- Kamara forced B.T. into his bedroom, pinned her to the bed, pulled down her pants, and raped her while she cried and repeatedly told him "no" and "I don’t want to do this."
- After the initial assault, Kamara returned and started touching B.T. again, at which point she no longer fought him.
- Once home, B.T. discovered the audio recording on her cell phone, which had died during her time at Kamara's apartment, and later emailed it to Officer Hong.
Procedural Posture:
- Morris Kamara was arrested and charged with rape in the second degree.
- Before trial, Kamara filed a motion under CrR 3.6 in the state trial court to suppress the audio recording, arguing it violated Washington’s privacy act.
- The State sought to admit only the portion of the recording that captured the rape.
- The trial court analyzed the audio recording, issued detailed findings, and concluded that the last nine minutes of the recording did not constitute a "conversation" under the privacy act and thus were admissible.
- At trial, Kamara maintained his objection to the admissibility of the recording but argued that if the proposed excerpt was admitted, the entire recording should be played for the jury under the rule of completeness.
- The entire recording was played for the jury.
- The jury found Kamara guilty of rape in the second degree.
- Kamara appealed his conviction to the Washington Court of Appeals.
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Issue:
Does the Washington privacy act, RCW 9.73.030, prohibit the admission of an audio recording of a sexual assault that primarily contains sounds of the assault, crying, and pleas to stop, but not an "oral exchange, discourse, or discussion"?
Opinions:
Majority - Mann, J.
No, the Washington privacy act does not prohibit the admission of an audio recording of a sexual assault that primarily contains sounds of the assault, crying, and pleas to stop, because such a recording does not constitute a "private conversation" as defined by the act. The court affirmed the trial court's decision, finding that the last nine minutes of the recording were not a "conversation" but rather documented an act of sexual assault. Citing State v. David Smith and State v. John Smith, the court reiterated that "conversation" in the context of the privacy act means an "oral exchange, discourse, or discussion." The court observed that sounds of an assaultive act are not a conversation protected by the act, making a recording of such noise admissible. The court performed a de novo review of the recording and agreed with the trial court's conclusion, noting that B.T.'s cries, pleas to stop, and Kamara's laughter, without an "exchange of ideas and words," did not constitute a conversation. The court rejected Kamara's argument that David Smith should not be relied upon due to its "bizarre facts," asserting that it remains binding precedent and was affirmed by John Smith, where eight justices agreed that certain sounds do not constitute conversation. The court also accepted Kamara's concession at oral argument that segregating parts of the recording into conversational and non-conversational elements was acceptable.
Analysis:
This case reinforces the narrow interpretation of "private conversation" under Washington's privacy act, particularly in the context of violent crimes. By explicitly stating that sounds of a sexual assault, including crying and pleas, do not constitute a "conversation," the ruling clarifies that recordings of such events are generally admissible. This precedent will likely make it easier for prosecutors to introduce audio evidence of assaults, reducing the likelihood of such evidence being suppressed under the privacy act. It underscores the judiciary's approach to balance privacy rights with the need for evidence in criminal prosecutions, particularly when the recorded event is a violent crime rather than a consensual discussion.
