COURT OF APPEALS DECISION DATED AND FILED November 12, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. John Edward Egerson, II,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. John Egerson, pro se,
appeals a judgment of conviction for three counts of false imprisonment and one
count each of armed burglary, battery, theft of moveable property, and
mistreatment of animals, all as party to a crime and as a repeater. Egerson argues the circuit court erred by
admitting telephone conversations recorded without his consent in
Background
¶2 This case arises out of Egerson’s participation in a home burglary
in the Town of
¶3 Egerson filed a motion to prohibit the State from introducing
the recordings at trial, arguing the conversations were not admissible as
evidence under
Discussion
¶4 Whether evidence should be suppressed is a question of
constitutional fact. State
v. Knapp, 2005 WI 127, ¶19, 285
¶5 The manner and method of obtaining evidence is governed by
the law of the jurisdiction where it is secured. State v. Townsend, 2008 WI App 20,
¶7, 307
1. Recording Under
¶6 Egerson argues the recordings were obtained illegally because
Michigan’s eavesdropping statute does not permit an individual to record his or
her phone conversations unless all parties to the conversation consent or law
enforcement is involved. He further
argues detective O’Neil was not authorized to act as a law enforcement officer
in
¶7 As the State correctly points out, however, the Michigan
Court of Appeals has held that the eavesdropping statute[3]
“unambiguously excludes participant recording from the definition of
eavesdropping by limiting the subject conversation to ‘the private discourse of
others.’” Sullivan v. Gray, 324
N.W.2d 58, 60 (Mich. Ct. App. 1982) (quoted source omitted). Thus,
2. Admissibility
under
¶8 The admissibility of the recordings is governed by the
WESCL. See State v. Maloney, 2005 WI 74, ¶¶34-35, 281
(2) It is not unlawful under ss. 968.28 to 968.37:
….
(b) For a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the communication.
(c) For a person not acting under color of law to intercept a wire, electronic or oral communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act.
Wis. Stat. § 968.31(2)(b)-(c).
¶9 Egerson argues the WESCL required Sadowski to act under the
color of law,[4]
which she did not do because detective O’Neil was not authorized to act as a
law enforcement officer in
¶10 While Wis. Stat. § 968.31(2)(b)
permits one-party consent recordings when a person acts under the color of law,
§ 968.31(2)(c) requires only that the conversations not be intercepted “for the
purpose of committing any criminal or tortious act … or for the purpose of
committing any other injurious act.” There
is no evidence Sadowski committed or intended to commit a crime by recording
her conversations. The only question,
then, is whether she acted to commit “any other injurious act.” Our supreme court has resolved this issue,
holding that an individual who assists the police in collecting evidence does
not commit an injurious act for the purposes of § 968.31(2)(c). Maloney, 281
¶11 In Maloney, Tracy Hellenbrand, the girlfriend of a man under
investigation for his wife’s murder, “offered to wear a concealed recording
device … to prove Maloney’s innocence.”
¶12 Like Hellenbrand, Sadowski consented to the interception of her
conversations and did not do so for the purpose of committing an illegal act. Although Hellenbrand, unlike Sadowski, consented
to prove the innocence rather than the guilt of another party, Maloney
does not require this distinction. Rather,
the Maloney
court held simply that an individual who voluntarily aids the authorities in a
lawful investigation does not commit an injurious act against the investigated
person simply by participation in the investigation. Maloney, 281
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2]
Although we agree with the circuit court that the recordings were lawfully
obtained, we take a different route to that conclusion. Accordingly, we need not address whether
O’Neil was authorized to assist Sadowski in recording the conversations in
[3] Michigan Comp. Laws § 750.539c (2004), provides: “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.” Section 750.539a(2) defines “eavesdrop” or “eavesdropping” as follows: “‘Eavesdrop’ or ‘eavesdropping’ means to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse….”
[4] Egerson relies exclusively on our unpublished decision in State v. Duchow, No. 2005AP2175-CR, unpublished slip op. (WI App April 3, 2007), which carries no precedential authority. Wis. Stat. Rule 809.23(3). Moreover, the dispositive issue for the court of appeals was that the recording had not been obtained in cooperation with a law enforcement investigation, which is not the case here. The supreme court later reversed the decision on other grounds. State v. Duchow, 2008 WI 57, ¶2, n.4, 749 N.W.2d 913.