Miller v. State

• Decision Date: 27 March 1998
• Docket Number: No. 96-89,96-89
• Citation: 955 P.2d 892
• Parties: James Dean MILLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 892

955 P.2d 892

James Dean MILLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 96-89.

Supreme Court of Wyoming.

March 27, 1998

Sylvia Lee Hackl, State Public Defender, PDP; Deborah Cornia, Assistant Public Defender, Megan L. Hayes (argued), Laramie, for Appellant.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director PAP; Joseph W. Cole, Student Intern (argued), for Appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.

THOMAS, Justice.

The policy issue presented by this case is whether Wyoming is to adopt the unilateral theory or the bilateral theory of the crime of conspiracy. James Dean Miller (Miller) contends that regardless of the resolution of the policy question he was entitled to have the jury at his trial for conspiracy to commit the crime of kidnaping, in violation of WYO. STAT. §§ 6-1-303(a) and 6-2-201(a) (1988), instructed on the bilateral theory of conspiracy. He argues that, since the bilateral theory was given to the jury in his first trial, the bilateral theory became the law of the case, which should have been followed when the conviction at his first trial was reversed, and the case was remanded for a new trial. Collateral issues are presented concerning the sufficiency of the evidence to establish the crime of conspiracy under the bilateral theory and prosecutorial misconduct. We hold that Wyoming follows the majority of states in applying the unilateral theory to the crime of conspiracy, and the district court correctly instructed the jury on that theory in Miller's second trial. The record is sufficient to support the conviction of conspiracy to commit kidnaping, and no prosecutorial misconduct occurred that was prejudicial to Miller. The Judgment and Sentence entered in the district court is affirmed.

In the Brief of Appellant, Miller presents the issues in this way:

I. Whether the trial court erred in failing to adhere to the law of the case established in the defendant's first trial, and in adopting a new and conflicting theory of conspiracy at the defendant's retrial.

II. Whether there was sufficient evidence of a conspiracy to kidnap between the defendant and Ingersoll.

III. Whether the trial court erred in refusing to grant a mistrial after the prosecutor engaged in misconduct by making prejudicial statements regarding the defendant in the prosecution's closing rebuttal arguments.

The Brief of Appellee defines the three issues in this way:

I. Does the law of the case doctrine require that a trial court, upon reversal and remand for a new trial by an appellate court, give the same jury instructions at the second trial as were given at the first trial?

II. Did the State present sufficient evidence of a conspiracy to commit kidnapping involving appellant and Steven Ingersoll?

III. Did the district court properly refuse Appellant's Motion for a new trial after objection was made to the prosecutor's closing argument?

Miller's case comes before this Court for the second time. In Miller v. State, 904 P.2d 344 (Wyo.1995) (Miller I ), Miller's conviction for conspiracy to commit the crime of kidnaping was reversed, and the case was remanded for a new trial. At the first trial, the district court instructed the jury on the bilateral theory of conspiracy. One ground for the reversal was instructional error relative to the role of Powell, an individual who had become an informant for the Wyoming Division of Criminal Investigation (DCI). A second ground for the reversal was the failure to grant a mistrial when a potential juror announced that he harbored bias against Miller because he believed Miller to have been implicated in the theft of a horse from him.

Relative to the instructional error, we ruled that, on the instructions given to the jury, Powell could not be a co-conspirator after he became a government agent. We also held that the jury was not adequately instructed with respect to that distinction, leaving open the possibility that the jury found a conspiracy between Miller and Powell after Powell became a government agent. In the course of our first opinion, the Court did not articulate the proposition that the bilateral theory of conspiracy was the law of the case. We spoke to law of the case only with respect to the instruction that advised the jury that there could be no conspiracy with a government agent. By analogy the comment could be extended to other instructions given to the jury, but we carefully articulated the proposition that the instruction was the law of the case only for purposes of that appeal.

Miller I relates the factual background leading to the charges. As reported in Miller I and substantiated in this record, Miller was confined in the minimum security wing of the Wyoming State Penitentiary at Rawlins. There he became acquainted with Steven Ingersoll (Ingersoll), another inmate. Ingersoll told Miller that he had access to some firearms, and Miller endeavored to arrange to purchase weapons from him. The first opinion of the Court discusses Miller's explanation of his involvement by pointing out that he wanted to report Ingersoll's furnishing of the weapons to achieve a reduction of his sentence. Miller previously had turned in weapons at the penitentiary, and his cooperation with the State in that and other ways had caused several officials to recommend that he be granted a sentence reduction.

Ingersoll contacted his friend, James Stacy Powell (Powell), in Sheridan to see if Powell could get the firearms. Powell said that he could, and their arrangement called for the weapons to be delivered to Rawlins. Powell then would be paid $2,500. Miller's plans expanded beyond the weapons transaction, however, and he decided to pay Powell to "watch somebody." That proposal developed into a scheme for Powell to kidnap Miller's ex-wife and children.

Miller offered to let Ingersoll escape from prison with him in exchange for Ingersoll's help with the kidnaping. Ingersoll again contacted Powell by telephone and asked Powell if he would be interested in the kidnaping, advising him that it would pay $50,000. Following a series of phone calls, Powell advised DCI of this plan, and, that same day, a DCI agent went to Powell's home and arranged to record future phone calls that Powell received from Ingersoll and Miller. Several such calls were recorded between July 14 and July 21 of 1993.

The parties are in accord that the recordings of the telephone conversations with Powell were made while he was acting as a government agent and under the direction of law enforcement officers. Neither party disputes the fact that during these conversations Powell and Miller discussed the floor plan of Miller's ex-wife's home; the place where the hostages would be held; the method of financing the kidnaping; and the possibility that Miller's niece or Miller's brother would help in the abduction. During this same time frame, Ingersoll mailed floor plans to Powell, doing this for Miller who was unable to find a stamp.

On September 13, 1993, Miller was charged with conspiring to kidnap his ex-wife. He initially was tried in Sheridan County and convicted. The jury instructions at the first trial adopted the bilateral theory of conspiracy. The jury also was advised by those instructions that a government agent cannot be a co-conspirator. Following a reversal by this Court and a remand of the case for a new trial, Miller was tried again in February of 1996. At the second trial, the district court, relying on public policy reasons, adopted the unilateral theory of conspiracy and so instructed the jury. Miller made an appropriate objection to that instruction. The district court rejected an instruction proposed by Miller that a government agent could not be a co-conspirator on the ground that the instruction would simply confuse the jury. Miller again was convicted and sentenced to a term of seven to fourteen years in the Wyoming State Penitentiary. Miller now appeals from that conviction.

If accepted, Miller's argument that the bilateral theory of conspiracy had become the law of this case would be dispositive. If the district court was required to instruct on the bilateral theory of conspiracy, it obviously did not do so. We hold, however, that the bilateral theory of conspiracy did not become the law of the case for purposes of the second trial. Miller's claim is refuted by the rules applicable to new trials generally, which also reach the situation in which a case is reversed on appeal and remanded for a new trial.

It is accepted law in the jurisdictions where there has been occasion to consider the question in the last thirty years that when a new trial is granted in a criminal case, the case is tried de novo and rulings made in connection with the first trial are not binding in the second trial. U.S. v. Akers, 702 F.2d 1145, 1148, 226 U.S.App.D.C. 408 (1983); State v. Darwin, 161 Conn. 413, 288 A.2d 422, 425-26 (1971); Bell v. State, 650 So.2d 1032, 1034 (Fla.App.1995); People v. Brown, 222 Ill.App.3d 703, 165 Ill.Dec. 176, 183, 584 N.E.2d 355, 362 (1991), appeal denied, 144 Ill.2d 636, 169 Ill.Dec. 145, 591 N.E.2d 25 (1992); State v. Osburn, 216 Kan. 638, 533 P.2d 1229, 1233 (1975); Hobbs v. State, 231 Md. 533, 191 A.2d 238 (1963); State v. Cooper, 140 N.J.Super. 28, 354 A.2d 713 (1976), rev'd by, 165 N.J.Super. 57, 397 A.2d 702, 706 (1979), cert. granted, 81 N.J. 56, 404 A.2d 1155 (1979), appeal and cert. dismissed by, 81 N.J. 261, 405 A.2d 806, (1979) (plea of guilty was entered prior to ruling); Com. v. Hart, 479 Pa. 84, 387 A.2d 845, 847 (1978); State v. Squires, 248 S.C. 239, 149 S.E.2d 601, 605-06 (1966); State v. Kinsey, 7 Wash.App. 773, 502 P.2d 470, 471 (1972). Unless specific direction is encompassed in the ruling of the appellate court, the remand...