Eavesdropping: Any person who
is present or who is not present during a private conversation and who
willfully uses any device to eavesdrop upon the conversation without the
consent of all parties thereto, or who knowingly aids, employs or procures
another person to do the same in violation of this section, is guilty of a
felony punishable by imprisonment in a state prison for not more than 2 years or
by a fine of not more than $2,000.00, or both. (MCL 750.539c)
Kevin Clark and Erica Kosinski had
a child together. Their tumultuous relationship ended in a child custody
dispute. During that time, Clark found listening devices and GPS tracking
devices concealed in the child’s clothing during his parenting time. He found
what he described as some type of spy chip in the tongue of the child’s shoe,
which he took to the police who told him it was a sound activated recorder. The
sounds on the recorder were unintelligible and Erica denied any involvement so
the matter was dropped.
However, a month later Erica testified
in a family court parenting time hearing that, concerned Kevin was abusing the
child, she directed a tailor to put a recorder in her child’s jacket. That
information was given to the detective who re-opened the case and she was later
charged with eavesdropping. Following a jury trial, she was convicted. She appeals
the conviction in People v Kosinski,No.332560.
The Michigan Court of Appeals
(MCOA) upheld the conviction in an unpublished opinion.
Kosinski raised several issues on
the appeal.
Sufficiency of the evidence:
To
convict defendant of eavesdropping under MCL 750.539c the prosecution must
prove that defendant willfully used a device to eavesdrop upon a private
conversation without the consent of the parties to that conversation.
“Eavesdrop” or “eavesdropping” is defined as “to overhear, record or transmit
any of a private conversation without permission of all persons engaged in the
discourse. According to the Supreme Court, “private conversation means a
conversation that a person reasonably expects to be free from casual or hostile
intrusion or surveillance.”
Although
recognizing there were inconsistencies in the testimony regarding the recording
device, the defendant did admit to placing a recorder in the child’s jacket,
thus the court held that a “rational jury could reasonably infer that the
defendant placed a recorder on the child.”
Defense of Duress
Kosinski contends
that the trial court’s refusal to instruct the jury on the defense of
duress deprived her of a fair
trial. Specifically, defendant claimed that her fear that Clark was
abusing the child during parenting
visits compelled her to place the recording device in the
child’s clothing in order to record
the abuse.
Duress, a
common-law affirmative defense, is established when there is threatening
conduct creating a fear of present, imminent bodily harm causing the defendant
to commit an act to avoid the threatened harm.
The
MCOA upheld the lower court’s denial of the jury instruction stating “There is
no evidence to show how defendant’s act of concealing a recording device on the
child’s clothing during his visits with Clark could have directly prevented or
avoided any present, imminent, or impending abuse.”
Perjured
Testimony
Kosinski
claimed that Clark perjured himself during trial when he testified under
oath that he did not enter a no
contest plea to poisoning the child during child protective
proceeding involving the child,
rather, Clark testified that he pled to failure to protect the child while in the care of Kosinski. Kosinski
contended that this statement was false because the transcript of the child protective
proceeding shows that Clark pled no contest to failure to protect the child based on his own conduct.
The
appellate court found no error stating “At the outset, defendant does not
explain how the prosecution knowingly presented the alleged false testimony,
nor is it clear from the record that the prosecution actually knew that Clark’s
testimony was false.” And, the court didn’t believe that the challenged
testimony affected the judgment of the jury.
Admission
of prior testimony
Kosinski argued
that the trial court erred in allowing the admission of the prior testimony she
gave at the custody proceeding. She claimed that her prior testimony was
obtained in violation of her Fifth Amendment right against self-incrimination,
and thus, should not have been admitted in her criminal trial. The appellate
court disagreed.
While
agreeing that her testimony during the prior custody hearing was incriminating,
the court noted that she was entitled to assert her Fifth Amendment right
against self-incrimination during the custody proceeding in regards to the questions
tending to incriminate her. Kosinski didn’t assert those rights at the hearing
and thus they were lost. Furthermore, because Kosinski was not testifying as a
criminal in the parenting time hearing, she was not entitled to advice
regarding the Fifth Amendment right against self-incrimination.
Finally, Kosinski argued ineffective
assistance of counsel and that her conviction should be reversed based on the
cumulative effect of the errors, which she said deprived her of a fair trial.
As to ineffective assistance of counsel claim, the court, after reviewing her
complaints found that there was no ineffective assistance.
The
MCOA explained their opinion on cumulative error as follows:
“The cumulative effect of several
errors can constitute sufficient prejudice to warrant
reversal even when any one of the
errors alone would not merit reversal . . . .” People v Dobek, 274 Mich App 58, 106; 732 NW2d 546 (2007). However,
only actual errors are combined to determine the cumulative effect. People v
Bahoda, 448 Mich 261, 292 n 64; 531 NW2d 659 (1995). Because we found that
there were no actual errors, defendant’s argument for reversal based on the
cumulative effect of the alleged errors necessarily fails.
The lower court opinion was
affirmed.
Labels: Child custody, duress, eavesdropping, family law appeal, GPS tracking devices, ineffective assistance of counsel, MCL 750.539c, parenting time, recorder, self-incrimination, spy chip
