State v. Miller, 98-2089-CR.

• Decision Date: 17 November 1999
• Docket Number: No. 98-2089-CR.,98-2089-CR.
• Citation: 231 Wis.2d 447,605 N.W.2d 567
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Earl L. MILLER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

231 Wis.2d 447

605 N.W.2d 567

STATE of Wisconsin, Plaintiff-Respondent, v. Earl L. MILLER, Defendant-Appellant.¹

No. 98-2089-CR.

Court of Appeals of Wisconsin.

Submitted on briefs July 30, 1999.

Decided November 17, 1999.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Eduardo M. Borda of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sandra L. Tarver, assistant attorney general, and James E. Doyle, attorney general.

Before Brown, P.J., Nettesheim and Snyder, JJ.

¶ 1. SNYDER, J.

Earl L. Miller appeals from his conviction for conspiracy to commit armed robbery with the threat of force contrary to §§ 939.31 and 943.32(2), STATS., kidnapping contrary to § 940.31(1)(a), STATS., and operating a vehicle without the owner's consent resulting in the death of another contrary to § 943.23(1r), STATS. Miller raises the following issues on appeal: (1) whether sufficient evidence was presented to show that his taking of the vehicle from the victim, Juan Bueno, was a substantial factor in causing Bueno's death; (2) whether the trial court erred in allowing evidence of Miller's flight from police after the court agreed that fleeing and eluding charges constituted a separate incident; (3) whether the court erred in refusing to instruct the jury regarding the testimony of a witness who was granted immunity; and (4) whether the court erred in admitting hearsay evidence indicating that Miller had shot Bueno.

¶ 2. First, we conclude that because the taking of Bueno's vehicle played a prominent role in, and set into motion events leading to, Bueno's death, there was sufficient evidence to establish that Miller's theft of the vehicle was a substantial factor in causing Bueno's death. Next, we are persuaded that the trial court properly ruled admissible evidence of Miller's flight from the police. As to the immunized witness jury instruction, case law shows that a cautionary instruction is inappropriate in the present case because the immunized witness testified on behalf of Miller, not the State. Finally, we conclude that the trial court properly admitted evidence of Miller's involvement under the prior consistent statement exception to the hearsay rule. We therefore affirm the judgments.

BACKGROUND

¶ 3. On February 25, 1997, Miller, Mecquon Goodwin and Jamal Cronin devised a plan to steal cocaine from Bueno during a purported drug transaction which was to occur the following day. On February 26, Bueno arrived at Goodwin's residence but did not have any drugs. As a result, Miller and Goodwin seized Bueno and drove off with him in his vehicle in order to obtain drugs from his residence. While Goodwin drove, Bueno sat in the front passenger seat and Miller sat behind him with a firearm. Some time later, Bueno attempted to escape from the vehicle and Miller shot him in the back. Bueno later died.

¶ 4. On March 1, 1997, in a separate incident, a city of Racine police officer observed a vehicle being driven without proper registration. While following the vehicle, the officer activated his lights and the car sped up and swerved into oncoming traffic to evade the officer. When the vehicle was forced to stop, the driver fled and the police apprehended him. The officers discovered the driver to be Miller.

¶ 5. The State initially charged Miller with the following counts relating to both the February 26 and March 1 incidents: first-degree intentional homicide, party to the crime of armed robbery with the threat of force, party to the crime of kidnapping, party to the crime of operating a vehicle without the owner's consent resulting in the death of another, fleeing and eluding an officer and first-degree recklessly endangering safety. On May 9, 1997, Miller moved the trial court to sever the fleeing and eluding and the first-degree recklessly endangering safety charges from the kidnapping and murder charges. The State agreed with Miller and the court ordered the charges severed. The State then amended the information to include charges of conspiracy to commit armed robbery with the threat of force, party to the crime of kidnapping and party to the crime of operating a vehicle without the owner's consent resulting in the death of another. ¶ 6. On June 24, 1997, a jury trial was commenced. Miller was subsequently found guilty of the charges set forth in the amended information. He now appeals. We will discuss additional facts as needed.

DISCUSSION

A. Substantial Factor Test

¶ 7. Miller contends that there was insufficient evidence to establish beyond a reasonable doubt that his taking of Bueno's vehicle was a "substantial factor" in causing Bueno's death pursuant to the charge of operating a vehicle without the owner's consent resulting in the death of another. We disagree with Miller because sufficient evidence was presented.

[1]

¶ 8. When a defendant challenges the sufficiency of the evidence supporting his or her conviction, this court may not reverse the conviction "unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752, 755 (1990). If there is any possibility that the fact finder could have reached the appropriate inferences from the evidence adduced at trial to find the requisite guilt, we may not overturn the verdict even if we are persuaded that the fact finder should not have found guilt based on the evidence presented. See id. at 507, 451 N.W.2d at 758.

¶ 9. Section 943.23, STATS., prohibits operating the vehicle of another without that person's consent. Miller was charged under subsecs. (1g) and (1r) of § 943.23. Subsection (1g) reads as follows:

Whoever, while possessing a dangerous weapon and by the use of, or the threat of the use of, force or the weapon against another, intentionally takes any vehicle without the consent of the owner is guilty of a Class B felony.

Under subsec. (1r), the penalty for violating subsec. (1g) is increased to a Class A felony if the person causes the death of another.

¶ 10. At trial, the jury was instructed in the following manner as to the penalty enhancer in subsec. (1r):

If you find the defendant guilty of aiding and abetting the taking of a vehicle by threat of force while armed with a dangerous weapon, you must answer the following question. Did the defendant cause the death of Juan Bueno? Before you may answer this question yes, you must be [certain] beyond a reasonable doubt that the defendant's taking of the vehicle was a substantial factor in causing the death of Juan Bueno. . . . [Emphasis added.]

This instruction is consistent with the suggested jury instruction for § 943.23(1r), STATS., found at WIS J I— CRIMINAL 1465, cmt. 6.

¶ 11. Two recent cases shape Wisconsin's jurisprudence regarding the definition of a "substantial factor" in the context of homicide. In State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (1994), our supreme court was asked to consider whether a defendant could be convicted of felony murder if one of his coactors was killed by the intended victim during an attempted robbery. In its discussion, the court ruled that the defendant was a substantial factor in the death of the coactor because he was the ringleader responsible for planning the details of the robbery. The court was not persuaded by the fact that the "immediate" cause of the coactor's death was the intended victim and that the defendant was not present when his coactor was shot and killed. See id. at 436, 516 N.W.2d at 404-05. In addressing causation, the court noted that a "`substantial factor' need not be the sole cause of death." Id.

¶ 12. In State v. Owen, 202 Wis. 2d 620, 551 N.W.2d 50 (Ct. App. 1996), the defendant was charged with recklessly causing great bodily harm to a child contrary to § 948.03(3)(a), STATS., when the defendant slapped the chest of a three-month-old child and the child later died. See Owen, 202 Wis. 2d at 627,

551 N.W.2d at 53. Upon review, we recognized that "[t]o establish causation, the State must prove beyond a reasonable doubt that [the defendant's] acts were a substantial factor in producing great bodily harm to [the child]." Id. at 631, 551 N.W.2d at 55. A "substantial factor," we determined, "need not be the sole or primary factor causing the great bodily harm." Id. We concluded that there was sufficient evidence to establish that the defendant's act of slapping the victim was a substantial factor in producing great bodily harm to the victim.

¶ 13. Miller contends that because a "substantial factor" means a primary or main reason, the Owen court's additional language that a substantial factor need not be a "primary factor" should be overruled. Miller suggests that the language in Owen would permit "completely attenuated events to satisfy the requirements of the causation element." We disagree.

¶ 14. We first consider the specific language used in Oimen and Owen. The Oimen court stated that a substantial factor need not be "the sole cause," and the Owen court added that a substantial factor need not be "the sole or primary factor." The holding in Owen is not inconsistent with Oimen; Owen merely adds the word "primary" to its discussion of a substantial factor. Both cases use a definite article in explaining that a substantial factor need not be limited to one sole or primary cause. In Oimen, the primary or, as the court put it, "immediate" cause of the coactor's death was gunfire from the intended victim. However, because the defendant played a significant role in directing the robbery and "set into motion the events that [led] to [the coactor's] death," he was nonetheless considered a substantial factor. Oimen, 184 Wis. 2d at 437,516 N.W.2d at 405. Our reading of Oimen and Owen convinces us that a substantial...