Miller v. State
| Decision Date | 06 October 1995 |
| Docket Number | No. 94-283,94-283 |
| Citation | 904 P.2d 344 |
| Parties | James Dean MILLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia Hackl, State Public Defender; Deborah Cornia, Appellate Counsel; David Gosar, Assistant Public Defender, Cheyenne, for appellant.
William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Sr. Assistant Attorney General; Mary Beth Wolff, Sr. Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; John W. Osborne, Student Intern; Cassandra Stump Ando, Student Intern, Cheyenne, for appellee.
Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.
Appellant James Miller (Miller) appeals his conviction for conspiracy to kidnap alleging the trial court erred in refusing to grant a mistrial following prejudicial remarks by a potential juror, alleging plain error occurred when a police officer testified and expressed an opinion as to his guilt, and alleging three plain errors occurred in jury instructions.
We reverse and remand for a new trial.
Miller presents these issues:
ISSUE I
Was the jury improperly instructed when jury instruction no. 4 incorrectly set forth the elements of kidnapping?
ISSUE II
Were the jury instructions confusing and contradictory regarding who could properly be a party to this alleged conspiracy?
ISSUE III
Should a mistrial have been granted when a potential juror expressed his belief that Mr. Miller had committed an uncharged crime?
ISSUE IV
Did plain error occur when the chief investigative officer testified that the police stopped monitoring phone calls between Mr. Miller and Mr. Powell because they had collected sufficient evidence to support the conspiracy charge?
Appellee State rephrases the issues as:
I. Did jury instruction no. 4 sufficiently set forth the "object" crime of kidnapping?
II. Were jury instructions no. 3 and no. 9 confusing and contradictory, so they could not be consistently applied by the jury?
III. Did a prospective juror's answers during voir dire taint the jury and deprive appellant of a fair trial?
IV. Was Agent Hughes' testimony an opinion on the guilt of the appellant and did his testimony vouch for the credibility of other witnesses?
While serving a prison term, Miller and fellow inmate James Ingersoll began discussing kidnapping Miller's ex-wife and her three children. Ingersoll contacted Steven Stacy Powell and told him he and Miller planned to escape and kidnap a woman. After several weeks of receiving phone calls from Ingersoll concerning the plan to escape and kidnap a woman, Powell contacted Division of Criminal Investigation Agent Kevin Hughes. Powell consented to the recording of his phone calls by Hughes.
Between July 14, 1993, and July 21, 1993, several telephone calls from Miller to Powell were recorded, all regarding details of a plan to kidnap Miller's ex-wife and her children. Miller agreed to send Powell money and floor plans of his ex-wife's home. Later, these were mailed. Agent Hughes determined he had sufficient evidence to substantiate charges and discontinued recording phone calls on July 21, 1993. On July 22, 1993, Miller was interviewed by Agent Hughes and admitted he had told Powell he wanted to kidnap his ex-wife, had talked about it with Powell, and had entered into negotiations about it. Miller also admitted he promised to send Powell money and floor plans.
Miller explained his actions to Hughes as a ruse to gain a sentence reduction. During On May 9, 1994, Miller came to trial for conspiracy to commit kidnapping. During voir dire, a potential juror made statements before the entire panel concerning Miller's connection with the theft of the juror's horse. Based on that statement, Miller's counsel moved for a mistrial. The district court denied the motion. Trial proceeded and Miller was convicted and sentenced to seven to fourteen years on the charge. This appeal followed.
his time in prison, Miller had turned in weapons and cooperated with the state in other ways causing several officials to favorably recommend he be granted a sentence reduction. Miller believed Ingersoll was illegally selling guns and believed he would gain Ingersoll's trust by pretending to plot the kidnapping. Once Ingersoll trusted him, Miller believed Ingersoll would arrange for weapons to be brought to the penitentiary and Miller would then be able to turn them in to the prison administration and further increase his chances of a sentence reduction. At trial, the state theorized Miller needed guns to execute his escape from prison. After Ingersoll agreed to help him escape, Miller then began to plot the kidnapping of his ex-wife and children.
Jury Instructions
In a conspiracy prosecution, the jury must determine whether the commission of a particular crime was the objective of the conspiracy. Since the object crime in this conspiracy prosecution was kidnapping, the court must give an instruction that defines the offense that is the subject of the conspiracy. United States v. Yasbin, 159 F.2d 705 (3d Cir.1947) (per curiam); see Burk v. State, 848 P.2d 225, 235 (Wyo.1993). Miller contends the jury was improperly instructed when jury instructions incorrectly set forth the elements of kidnapping. Since no objection was made at trial, we review under plain error.
The elements of the crime of conspiracy are:
A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime and one (1) or more of them does an overt act to effect the objective of the agreement.
WYO.STAT. § 6-1-303(a) (1988).
The kidnapping instruction stated:
The necessary elements of the crime of Kidnapping are:
1. The Defendant conspired to
2. Unlawfully remove another or confine another
3. With intent to hold for ransom or reward or use as a shield or hostage.
If you find from your consideration of all of the evidence that any of these elements have not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.
If on the other hand, you find from your consideration of all of the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the Defendant guilty.
WYO.STAT. § 6-2-201 (1988) defines the elements of kidnapping as follows:
(a) A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business or from the vicinity where he was at the time of the removal, or if he unlawfully confines another person, with the intent to:
(i) Hold for ransom or reward, or as a shield or hostage;
(ii) Facilitate the commission of a felony; or
(iii) Inflict bodily injury on or to terrorize the victim or another.
(b) A removal or confinement is unlawful if it is accomplished:
(i) By force, threat or deception; or
(ii) Without the consent of a parent, guardian or other person responsible for the general supervision of an individual who is under the age of fourteen (14) or who is adjudicated incompetent.
Miller complains the jury instruction did not properly set forth the elements of kidnapping since it referred to conspiracy Neither the state's research nor our own uncovered direct authority for this argument. The state analogizes this situation to an underlying crime instruction in a felony murder prosecution and cites to court decisions permitting less particularity when instructing about the underlying crime. However, the state does note that nonbinding model criminal jury instructions direct that the essential elements of the offense which were the object of the conspiracy be listed in the same manner as the crime charged. The better course is for the trial court to instruct the jury about the object crime in the same manner as it would instruct on the crime charged. This bright line course assures the law is accurately and completely declared in an instruction and will be consistently presented.
did not completely define the essential element of "removal" and did not provide the statutory definition of "unlawful removal or confinement." He asserts that in combination these errors confused the jury. Although agreeing that in Wyoming the trial judge must instruct the jury on the necessary elements of the crime charged, Vigil v. State, 859 P.2d 659, 662 (Wyo.1993), the state contends this applies only when describing the principal crime, conspiracy, since it is the crime charged and a less stringent rule applies when describing the object crime. If the object crime is described sufficiently to assure the accused a fair trial, the state argues no error should be found
Miller claims the faulty kidnapping instruction violated the rule of law that a jury must be instructed on the necessary elements of the crime charged and deprived him of his state and federal constitutional rights to due process, a fair trial, and a unanimous jury verdict. To demonstrate plain error
1) it must be clear from the record exactly what occurred at trial;
2) Miller must demonstrate the existence of a clear and unequivocal rule of law; and
3) the particular facts of the case must clearly and obviously, not just arguably, transgress that rule;
4) once this criteria is met, Miller must show that some substantial right of an accused has been adversely affected.
Vigil, 859 P.2d at 662. Even when constitutional error is alleged, each criterion must be satisfied or a claim for review under the plain-error doctrine will fail. Vigil, 859 P.2d at 662.
Our decision in Gore v. State, 627 P.2d 1384 (Wyo.1981), explained
that jury instructions are written with the particular facts and theories of each case in mind ... so that they help the jury develop a clear understanding of how the facts are to be determined under the applicable law of the case. The problems the jury may have with the applicable law will differ from case...
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