91 Wash. 301, 588 P.2d 1320 (1978)
On the afternoon of August 11, 1972, Yvonne Wanrow's two children were staying at the home of her friend Shirley Hooper.1 Wanrow's son returned and told Hooper that a man had tried to pull him off his bicycle and drag him into a house.2 Hooper's seven-year-old daughter then identified William Wesler as the man who had previously molested her, causing a rash diagnosed as venereal disease.3
Wesler appeared at the Hooper house door stating he had not touched the child.4 Hooper's landlord Joseph Fah informed her that Wesler had tried to molest another boy and had been committed to Eastern State Hospital for the mentally ill.5 Police arrived but stated they could not arrest Wesler until Monday morning and suggested Hooper swear out a warrant.6
That evening Hooper called Wanrow and asked her to spend the night, relating the day's events.7 Wanrow arrived after 6 p.m. carrying a pistol in her handbag.8 The two women, fearing to stay alone, called Wanrow's sister and brother-in-law Angie and Chuck Michel to join them.9 The four adults stayed awake watching for prowlers with eight children in the house.10 Around 5 a.m. Chuck Michel went to Wesler's house with a baseball bat.11 Wesler, David Kelly, and Michel then went to the Hooper house, where Wesler entered alone.12
Wesler, a large intoxicated man, entered the home and refused to leave despite being told to do so.13 Shouting and confusion followed as a child awoke crying.14 Wesler approached the child saying words to the effect of "My what a cute little boy."15 Hooper screamed for Wesler to get out.16 Wanrow, a five-foot-four-inch woman with a broken leg using a crutch, went to the front door to call for Michel.17 Upon turning around she found Wesler standing directly behind her and shot him in a reflex action.18 Hooper immediately called police on the Spokane crime check emergency number stating a man had broken in and her girlfriend had shot him; the entire conversation was tape recorded.19
Wanrow was convicted by a jury of second-degree murder and first-degree assault.20 Over defense objection the tape was admitted into evidence.21 After the jury requested and heard the tape again during deliberations it returned a guilty verdict.22 The Court of Appeals reversed the conviction on the ground that the tape was inadmissible.23 The Supreme Court of Washington granted review.24
Whether the tape recording of the defendant's conversation with the police operator was admissible under RCW 9.73.090(1) despite the provisions of RCW 9.73.030 and RCW 9.73.050?25
RCW 9.73.030(1) makes it unlawful to record a private communication without the consent of all participants.26 RCW 9.73.050 renders information obtained in violation of that section inadmissible in any civil or criminal case.27 RCW 9.73.090(1) creates a narrow exception permitting police to record incoming emergency calls solely for the purpose of verifying the accuracy of reception; the exception does not authorize use of such recordings in judicial proceedings.28
No. The conversation between Wanrow and the police operator constituted a private communication because it was an incoming telephone call to a police station.29 The recording occurred without Wanrow's consent and was replayed for the jury during deliberations, a purpose distinct from verification of accuracy.30 The statutory language limits the exception strictly to verification, as shown by the contrast with RCW 9.73.090(2), which expressly permits court use of arrest recordings under specified safeguards.31
Admission of the tape was prejudicial. The jury remained deadlocked until the tape was replayed in the jury room; forty-five minutes after hearing it again, the jury returned its guilty verdict on both counts.32
The tape recording was inadmissible, and its erroneous admission requires reversal of the conviction.33
Related opinions on this issue
Justice Wright concurred in the result reached by the majority for only one of the reasons stated therein.34 Were it not for the language of the statute, RCW 9.73.030 through .090, he would agree that the telephone call here is not a private conversation.35 A careful reading of the statute, however, compels a different result.36
The legislature clearly intended to classify such telephone calls as private conversations, otherwise the exception contained in RCW 9.73.090(1) would be meaningless and surplusage.37 Based upon the clear legislative intent and upon the reasoning fully set out in the opinion as to that one issue, he concurred in the result.38
Joined by Stafford, C.j., And Rosellini, J.
Justice Hamilton dissented, contending that the opening clause of RCW 9.73.090 waives the exclusionary rule of RCW 9.73.050 whenever the purpose of the recording is verification of emergency information.39 He argued that the majority's interpretation completely ignores the first portion of RCW 9.73.090, which opens with a waiver of RCW 9.73.030 through RCW 9.73.080.40
Interpreting the words "for the purpose and only for the purpose of verifying the accuracy of reception of emergency calls" as reinstating the exclusionary rule renders void and superfluous the waiver language.41
He maintained that once the proper purpose is established, the recording becomes admissible in judicial proceedings.42
Whether the trial court's self-defense instruction limiting the jury to consideration of acts and circumstances occurring at or immediately before the killing was erroneous?43
The justification of self-defense must be evaluated in light of all facts and circumstances known to the defendant, including those known substantially before the killing.44 Prior events are essential to illustrate the defendant's motives and good faith and to allow the jury to stand in the defendant's shoes.45
Yes. Instruction No. 10 directed the jury to consider only acts and circumstances occurring at or immediately before the killing.46 This limitation excluded Wanrow's knowledge, acquired hours earlier through Hooper, of Wesler's alleged molestation of Hooper's daughter, his prior commitment to Eastern State Hospital, the police refusal to arrest him on the spot, and the recent prowling and screen-slashing incidents at the Hooper house.47 Those earlier facts were indispensable to evaluating the reasonableness of Wanrow's apprehension.48
The error is presumed prejudicial under the rule that an error in an instruction given for the party who prevailed is presumed prejudicial unless the record affirmatively shows harmlessness.49 The record demonstrates the limitation was crucial because Wanrow's perception rested on events spanning hours and years.50
The self-defense instruction was erroneous and requires reversal of the conviction.51
Related opinions on this issue
Joined by Stafford, C.j., And Rosellini, J.
Justice Hamilton dissented on the instructions issue, maintaining that any deficiency in instruction No. 10 was cured by instruction No. 12, which told the jury to consider the words and actions of the deceased prior to the homicide together with any and all factors bearing on the determination.52 He argued that instructions must be considered as a whole and if, when so considered, they properly state the law, they are sufficient.53
In his view, the instructions were not so prejudicial as to require a new trial for the defendant.54
Whether the self-defense instruction improperly imposed an objective standard of reasonableness and used masculine gender language that prejudiced the defendant?55
A defendant's conduct in self-defense is judged by the condition appearing to her at the time, based on her own perceptions as a reasonably cautious person in her situation, not by an objective standard detached from her circumstances.56 Instructions must account for the defendant's individual physical characteristics and the effects of historical sex discrimination to afford equal protection.57
Yes. The second paragraph of instruction No. 10 repeatedly used masculine pronouns and required the defendant to have reasonable grounds to believe she faced imminent death or great bodily harm before using a deadly weapon.58 This formulation imposed an objective standard and suggested that Wanrow, a five-foot-four-inch woman with a broken leg and crutch, must repel an assault by a six-foot-two-inch intoxicated man without weapons unless a detached jury would find her perception objectively reasonable.59
The instruction violated equal protection by failing to direct the jury to judge Wanrow's actions in light of her own perceptions, including those shaped by physical handicaps that are the product of sex discrimination.60 The defendant was entitled to have her conduct measured by the same subjective standard applicable to male defendants.61
The self-defense instruction was erroneous, inconsistent with other instructions, and prejudicial, warranting reversal.62