Sep 2011

Michigan Supreme Court is at it Again in a Sex Crimes Case – This Time: Jury Instruction

The Michigan Supreme Court is at it again in a sex crimes case. Despite agreeing that a defendant’s jury was given improper jury instructions, the Supreme Court recently used a “legal technicality” (failure of the defendant’s lawyer to object to the improper jury instructions at trial) to affirm his conviction.

The Michigan Supreme Court reinstated a conviction for “accosting a minor for immoral purposes” despite acknowledging the trial judge’s “constitutional error” in “misinforming” the jury about the elements of the crime. All seven justices agreed the defendant was not entitled to relief, and five justices held that since the defendant’s attorney did not expressly object to the erroneous instructions at trial, the defendant waived any right to appellate review of his conviction.

The defendant, Edward Kowalski, entered an Internet chat room and engaged in several conversations with a person he thought was a 15-year-old girl but in reality was an undercover police officer. Kowalski initially attempted to speak with the “underage girl” over the phone, but when he was rebuffed he confined himself to “highly sexualized online chats.” Kowalski did not ask to meet or have physical sex with the “underage girl,” nor did he exchange any obscene photographs over the Internet with her. Nevertheless, prosecutors charged Kowalski with “accosting a minor for immoral purposes or encouraging a minor to commit an immoral act” (MCL 750.145a) and “using a computer or the Internet to accomplish the same” (MCL 750.145d).

At trial, the court instructed the jury that a conviction for “accosting a minor” required, among other elements, finding beyond a reasonable doubt that Kowalski “did encourage” a person he believed to be a minor “to engage in” an “act of sexual intercourse or an act of gross indecency or other acts of delinquency or depravity.” Notably, the jury was not instructed to determine whether Kowalski had the specific criminal intent to violate the law. Kowalski’s trial attorney did not object to these instructions.

The jury convicted Kowalski on both charges. Kowalski asked for an acquittal or a new trial based on “insufficient evidence” to support a finding of specific criminal intent. The trial judge denied the motion. On appeal, the Court of Appeals agreed with Kowalski that the jury instructions improperly omitted the requirement to find specific criminal intent but nonetheless determined there was sufficient evidence to support the conviction.

The Michigan Supreme Court also affirmed. Justice Mary Beth Kelly, writing for the Court, agreed with the Court of Appeals that the trial court partially misinformed the jury about the elements of the crime. MCL 750.145a allows for conviction in two scenarios: Where the defendant “accosted, enticed, or solicited” a minor into committing an illegal act or where the defendant merely “encouraged” a minor to do the same. The trial court “erroneously omitted the actus reus element” of the “accosted, enticed or solicited” prong. “However,” Justice Kelly said, “because defense counsel here explicitly and repeatedly approved the instruction, defendant has waived the error.” And even if Kowalski hadn’t waived the error, his “substantial rights” were unaffected because the evidence at trial “related to the missing element was overwhelming and contested,” specifically the Internet chats.

Justice Michael F. Cavanaugh, joined by Justice Marilyn Kelly, wrote separately to note that while precedent compelled him to reached the same conclusion as the rest of the Court — that Kowalski was not entitled to relief from his conviction — he would not “hastily presume that a waiver [of error] occurred simply because defense counsel stated on more than one occasion that he had no objection to the waiver.”

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