Custody Dispute Ends Up in Eavesdropping Conviction

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, (Docket 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The Michigan Court of Appeals (MCOA) upheld the conviction in an unpublished opinion.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.