Opinion
No. 332625
07-18-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. HANS CHRISTIAN HEIM, Defendant-Appellant.
UNPUBLISHED Otsego Circuit Court
LC No. 15-005026-FC Before: SERVITTO, P.J., and MURRAY and BORRELLO, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of three counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (victim aged 13 to 15 years), and three counts of fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(a) (victim aged 13 to 15 years). The trial court sentenced defendant as a second habitual offender, MCL 769.10, to serve concurrent terms of 10 to 15 years' imprisonment for each count of CSC-III and 50 days for each count of CSC-IV. We affirm.
Defendant was in a boyfriend/girlfriend relationship with the victim's (KK) mother on and off between 2007 and 2013 and resided with them on and off during those time periods. Defendant and the victim's mother had a child together (JH) in 2008. In 2009, when JH was one year old, the victim's mother and defendant did not reside together so they made informal arrangements for JH to visit defendant at his residence. KK accompanied JH on these visits.
In 2013, the parties again resided at separate addresses and both children again visited with defendant at his residence. During one of these visits, when KK was 14 years old, defendant restrained her and digitally penetrated her vagina, and then undressed her and penetrated her vagina with his penis. KK testified that this happened over 20 times that year and the next; she was 14 and 15 years old at the time. Although KK did not initially report the assaults to her mother, she did tell several friends what was happening at the time. At some point when KK was 16, KK told her mother about the assaults. Her mother took KK to the local police station to report what had been happening. While at the station, KK asked an officer if they could call defendant in order to obtain what KK referred to as an "actual confession." The officer dialed into a server, then dialed defendant's phone number to initiate a three-way phone call between himself, defendant, and KK. The call was downloaded and copied to a CD. Over defendant's objection, the recording was admitted at trial and played for the jury.
At the conclusion of trial, defendant was convicted, as indicated above. This appeal followed.
On appeal, defendant argues that the trial court erred in admitting the telephone recording. According to defendant, the admission was a violation of Michigan's eavesdropping statute, MCL 750.539c, and his constitutional rights to privacy and to be free from unlawful searches and seizures. A trial court's decision regarding the admission of evidence is reviewed for an abuse of discretion. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). When the decision involves a preliminary question of law, such as whether a statute or rule of evidence precludes admissibility of the evidence, or when the decision involves a constitutional question, the issue is reviewed de novo. People v Washington, 468 Mich 667, 670-671; 664 NW2d 203 (2003); People v Beasley, 239 Mich App 548, 557; 609 NW2d 581 (2000).
However, "[f]or an issue to be preserved for appellate review, it must be raised, addressed, and decided by the lower court." People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). The objection must be "timely" and "stat[e] the specific ground of objection, if the specific ground was not apparent from the context." MRE 103(a)(1).
At trial, defendant objected to the admission of the recording because it was not "a proper recording." He argued the recording was made in violation of MCL 750.539c, and that there was a problem with the chain of evidence. As to the latter, he argued, "we haven't heard from the person who made this initial recording, when this was made, how long it sat around." The court overruled the objection, explaining that the technology used in this case was no different than a victim putting his or her phone on speakerphone or consenting to attaching something to the phone to tape the victim's half of the conversation, and therefore the consent of all parties in this context was not required.
MCL 750.539c provides as follows:
Any person who is present or who is not present during a private conversation and who wilfully 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.
As to the former objection, plaintiff and defendant disagreed on whether KK's consent to record the call was enough for the recording to be statutorily valid. In response to the court's question on whether the statute applied to the officer who orchestrated the call, defense counsel stated, "It's a violation of his privacy. It's not a properly recorded call. It's clearly an intrusion into his privacy." The court overruled the objection.
Because defendant did not object to the recording on Fourth Amendment grounds, the Fourth Amendment issue is unpreserved. People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004) ("An objection based on one ground is usually considered insufficient to preserve an appellate attack based on a different ground."). We review this unpreserved issue of constitutional error under the plain error rule. People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. at 763. Even where the three requirements of the rule have been shown, the reviewing court "should reverse only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings." Id. at 774.
The United States and Michigan Constitutions protect citizens against unreasonable search and seizure by the government. US Const, Am IV; Const 1963, art 1, § 11. "An expectation of privacy is legitimate only if the individual exhibited an actual, subjective expectation of privacy and that actual expectation is one that society recognizes as reasonable." People v Taylor, 253 Mich App 399, 404; 655 NW2d 291 (2002). "Whether the expectation exists, both subjectively and objectively, depends on the totality of the circumstances surrounding the intrusion." Id. at 405.
The amendment states as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The provision states as follows:
The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.
Defendant argues that People v Collins, 438 Mich 8; 475 NW2d 684 (1991), along with two US Supreme Court decisions unfavorable to defendant's position—United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971) and Hoffa v United States, 385 US 293; 87 S Ct 408; 17 L Ed 2d 374 (1966)—can be distinguished from this case because they involved the monitoring or recording of illegal conversations between persons who could turn on their co-conspirators to reveal information to the police. Defendant argues that because in his case the recorded conversation was between "two people on good terms," the holdings of these three cases should not apply.
In White, the Supreme Court considered whether government agents could testify to the contents of a conversation between the defendant and a government informant overheard by government agents monitoring the frequency of a radio transmitter carried by the government informant. White, 401 US at 746-747. The government informant was unavailable at trial, and the plaintiff sought to introduce the contents of the conversation through the government agents who monitored it. Id. at 747. The Court stated that, "[i]nescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize." Id. at 752. The Court held that while an informant's unavailability and inability to testify at trial may raise evidentiary problems, "they do not appear critical to deciding whether prior events invaded the defendant's Fourth Amendment rights." Id. at 754.
In Hoffa, the Supreme Court considered whether the Fourth Amendment protected statements made by the defendant and overheard by a government informant while in a hotel room. Hoffa, 385 US at 300-301. The Court acknowledged that while an individual has protection from unwarranted government intrusion, that interest did not apply under the facts of the case, which were that the informant was invited into the hotel room and each conversation he heard regarding illegal activities was either directed toward him or made by the defendant while knowingly in his presence. Id. at 302. The Court stated, "Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Id.
Both White and Hoffa involved conversations between persons regarding illegal activity, but nowhere in these cases do the Courts express that such a conversation must be had, or such a relationship must exist between conversants, in order for the conversation to be outside the zone in which one or more of the persons would have a reasonable expectation of privacy. Rather, the thrust of these cases is that a wrongdoer discussing illegal activities with another has no constitutionally protected expectation that the person to whom the wrongdoer confides will not reveal the illegal activities to the authorities.
Defendant goes on to argue that the method used to record the call in his case distinguishes it from Collins, which concluded that "warrantless participant monitoring" did not violate the defendant's reasonable expectation of privacy under Michigan and federal Constitutions, Collins, 438 Mich at 40, because the officer in his case was not a passive witness to the call. In Collins, the informant placed a telephone call to the defendant from a state police office, and the conversation was monitored and recorded by the police with the informant's consent. Id. at 12. In this case, the police officer dialed into a server, then dialed defendant's phone number to initiate a three-way call between the police, defendant, and the victim that was stored on a server, then downloaded and copied it to a CD.
As properly stated by the trial court in the case at hand, the resulting recording was fundamentally the same, regardless of the technology used to record it. The court likened the technology to the practice of a victim putting his or her phone on speaker or attaching something to the phone with the victim's consent in order to record the conversation. In each of these situations, as in the circumstances of the case at hand, once the call was placed the police monitored but did not participate in it. The technology by which it was overheard and recorded does not impact this pivotal factor.
Thus no error, plain or otherwise, is shown in the admission of the recording, and the fairness, integrity, or public reputation of the judicial proceedings were not compromised, Carines, 460 Mich at 774.
Further, the requisite prejudice is not shown. Defendant argues that the recorded call was the only piece of evidence that established that sexual activity occurred between KK and defendant as there was no physical evidence or testimony corroborating KK's account of the assaults. This is a challenge to KK's credibility, however, the assessment of which is best left in the hands of the fact-finder. People v Solloway, 316 Mich App 174, 181-182; 891 NW2d 255 (2016) ("[W]itness credibility is a question for the fact-finder, and this Court does not interfere with the fact-finder's role."). Additionally, there is evidence that KK told various acquaintances over time about the assaults. This evidence also undermines any conclusion that defendant is actually innocent. Carines, 460 Mich at 774.
Affirmed.
/s/ Deborah A. Servitto
/s/ Christopher M. Murray
/s/ Stephen L. Borrello