State v. Miller, No. 2007AP1052-CR.

CourtCourt of Appeals of Wisconsin
Writing for the CourtHigginbotham
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. James D. MILLER, Defendant-Respondent.
Decision Date02 July 2009
Docket NumberNo. 2007AP1052-CR.
772 N.W.2d 188
2009 WI App 111
STATE of Wisconsin, Plaintiff-Appellant,
v.
James D. MILLER, Defendant-Respondent.
No. 2007AP1052-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs November 2, 2007.
Opinion Filed July 2, 2009.

[772 N.W.2d 191]

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of William C. Wolford, assistant attorney general, and J.B. Van Hollen, attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of James D. Miller, pro se.

Before HIGGINBOTHAM, P.J., DYKMAN and VERGERONT, JJ.

¶ 1 HIGGINBOTHAM, P.J.


The State appeals an order vacating James D. Miller's judgment of conviction for first-degree reckless injury while armed with a dangerous weapon, in violation of WIS. STAT. § 940.23(1) (2005-06),1 and aggravated battery while armed with a dangerous weapon, in violation of WIS. STAT. § 940.19(5). Because we conclude that the evidence was insufficient to convict Miller of first-degree reckless injury, we affirm the trial court's order vacating his conviction on this charge and remand for the trial court to enter a judgment of acquittal. However, we reverse the trial court's decision vacating Miller's conviction for aggravated battery. Accordingly, we modify the trial court's order, and, as modified, affirm in part and reverse in part and remand with directions.

BACKGROUND

¶ 2 The following facts are taken from trial testimony. One night in January 1999, Calvin Nakai was with two of his cousins at Ella's Bar in Stevens Point. Nakai became intoxicated after drinking many beers and tequila shots. At bar time, Nakai argued with his cousins, who left the bar without him. He received a ride from three people he did not know. The driver stopped at a nearby gas station, and Nakai waited in the car as the others went inside. Nakai testified that he does not remember much of anything that occurred after the gas station.

¶ 3 Inside the gas station, a man and a woman with the group that had given Nakai a ride met James Miller while standing in line. Miller was on his way home from a bar, where he consumed between five and seven beers in the course of four hours. Miller invited the couple back to his trailer for a quick beer. They accepted, and informed Miller that they had another person with them whom they had picked up at the bar. Miller said that was fine, and that he would see them there.

772 N.W.2d 192

¶ 4 When Miller and his guests met at the trailer, Miller's roommate, Russell Simonis; Russell's cousins, John Simonis and Corey Kesy; and a friend, Josh Lewer, were asleep in the living room. Russell, John and Corey quickly retired to Russell's bedroom. Josh stayed in the living room and slept on the sofa. Miller offered his guests a beer. After about ten minutes, the people Miller met at the convenience store left, leaving Nakai behind with Miller.

¶ 5 Miller and Nakai sat in the living room and talked. Nakai commented on a picture of Miller in uniform, and Miller informed Nakai that he was in the army reserve. Nakai told Miller that he was a marine in the special forces. Nakai, who is Native American, complained about the treatment of Native Americans by whites, and argued that whites should give back the land that was stolen from his ancestors. Miller testified that he just listened to Nakai for some time, but eventually told Nakai that he did not believe that he should be held responsible for what happened to Nakai's ancestors. Nakai responded by drawing closer to Miller and speaking more loudly. Miller told Nakai to settle down, but Nakai grew more argumentative. After about forty-five minutes, Nakai became angry and slapped Miller across the face. Miller testified he pretended this did not happen because he did not want the conflict to escalate. Miller started agreeing with Nakai and tried to change the subject.

¶ 6 But Nakai returned to the topic of Native American grievances, and remained agitated. At one point, Nakai picked up a large screwdriver, and, rolling it in his hand, said to Miller, "Do you know what I could do with this?" Miller responded: "You could probably kill me with it, but you are not going to because you are my friend." Nakai eventually put the screwdriver down.

¶ 7 Miller offered to drive Nakai home, and went out to warm up his car. For the next twenty minutes, Miller tried to persuade Nakai to accept the ride. Nakai refused, insisting that Miller's trailer was his home because it was on land stolen from his ancestors, and slapped Miller again. Miller turned off the car, and offered Nakai a blanket and a pillow so he could sleep on the floor. Nakai told Miller he did not want to go to sleep, and they were going to do what he wanted.

¶ 8 Nakai told Miller he was "going to get [Miller's] little sister" and started walking down the hallway toward the bedrooms.2 Nakai entered Miller's roommate's bedroom where Russell Simonis and his cousins, John Simonis and Cory Kesy were sleeping. Russell woke up when Nakai entered the room and, taking cues from Miller who was standing behind Nakai, offered Nakai his bed to sleep in. Nakai yelled at Russell, "Do you know who I am?" Russell responded that he did not, and Nakai smacked him across the face. Russell testified that Nakai said that he was the "Alpha" and the "Omega" and was "quoting the Bible a lot, talking about the beginning and the end." When Russell announced that he needed to use the bathroom, Nakai blocked the doorway and refused to let him pass. Miller testified that Nakai was "pretty much out of control ... getting more and more violent and going off babbling about crazy things." Miller went to the kitchen and called 911 for help.

¶ 9 Miller told the dispatcher to send at least one officer because Nakai was a big man and was acting crazy. Miller cut the 911 call short after he heard Russell cry "ow, ow!" Miller walked toward the bedrooms

772 N.W.2d 193

and saw Nakai standing over Russell, who was curled up in a ball on the hallway floor. When Russell attempted to get to his feet, Nakai hit him across the back of the head. Raising his voice for the first time, Miller yelled that the police were on the way and ordered Nakai to leave the home. Nakai started shoving Miller, who retreated from the hallway to the kitchen. Nakai followed, and smacked Miller across the face for a third time. Miller continued to demand that Nakai leave the home. By this time, Russell and John were in the kitchen as well, and Nakai declared that this was his place and ordered the three men to sit where he told them to. The men refused and told Nakai to leave. Nakai picked up a guitar from the floor and smashed it against an upholstered chair, cracking its neck.

¶ 10 Nakai charged at Miller, swinging his fists. Nakai and Miller exchanged a few quick blows. Nakai and Miller separated, and Nakai grabbed the screwdriver that he had picked up earlier that night. Nakai moved a step or two closer to Miller and, holding the screwdriver in the air, said: "Do you know what I can do with this?" Miller responded that he could probably kill him, and Nakai agreed that he could. Miller moved back behind the kitchen island where Russell and John were standing. Miller testified that he was afraid for his life, in part because he had heard that marines in the special forces are trained to use everyday objects as lethal weapons.

¶ 11 Miller decided to get a shotgun from his bedroom. He announced that he had to go to the bathroom and that he would be right back. He backpedalled away from Nakai then took off down the hallway, leaving Nakai with Russell and John. Miller pulled a shotgun off a rack in his bedroom and loaded it with three or four shells. He testified that, at this point, he had not yet decided to shoot Nakai. He said he figured that the gun was the only option to defend himself and Russell and John. He testified that it seemed like twenty or thirty minutes had passed since he had called 911, even though it had in fact been no more than seven or eight minutes.

¶ 12 Miller was gone from the kitchen for approximately thirty to sixty seconds. Miller walked down the hallway toward the kitchen carrying the shotgun. He saw Nakai holding the screwdriver over his head and speaking loudly. Miller could not see Russell or John, and did not know where Corey or Josh were.3 Miller pumped the shotgun, a sound John testified that he heard in the kitchen. Miller trained the gun on Nakai and yelled: "Get the hell out of here!" Nakai looked at Miller but did not appear to react to the gun or move toward the door. Miller waited three or four seconds, then, aiming for Nakai's left thigh, fired a single shot which entered Nakai's left hip, dropping him to the floor.

¶ 13 Miller testified that his purpose in shooting Nakai was "to stop him," and to prevent him from stabbing Russell and John. While Miller admitted that he intended to shoot Nakai, he testified that he was aiming at Nakai's thigh and not his hip when he fired the shot. Miller kept the gun pointed at Nakai and ran toward the wounded man, ordering him to get out of his house. Miller testified that he believed that Nakai was still a threat.

¶ 14 Miller called 911 again about one minute after the shooting. While talking to the dispatcher, Miller yelled at Russell to keep an eye on Nakai, who was now on

772 N.W.2d 194

the front porch. Miller testified that he called 911 the second time because it seemed like the police should have responded to the first 911 call by then, and because Nakai was bleeding heavily and needed help. Miller was still on the phone with the dispatcher when officers arrived at the trailer. Deputy Sheriff Ronald Ryskoski testified that Miller asked him at the scene if Nakai was going to be all right. Miller admitted to officers that Nakai had not attempted to stab him or Russell or John with the screwdriver, and that Nakai was not standing close enough to stab him when he fired the shot.

¶ 15 Miller...

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24 practice notes
  • State v. Johnson, Appeal No. 2018AP2318-CR
    • United States
    • Court of Appeals of Wisconsin
    • July 8, 2020
    ...613 N.W.2d 170 (quoting Edmunds , 229 Wis. 2d at 77, 598 N.W.2d 290 ).¶38 In State v. Miller , 2009 WI App 111, ¶40, 320 Wis. 2d 724, 772 N.W.2d 188, the court specifically addressed self-defense within the context of the utter disregard standard:While the jury rejected Miller's claim of se......
  • Brunton v. Nuvell Credit Corp., No. 2007AP1253.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 24, 2010
    ...Ndina, the court concluded that forfeit was the more appropriate term); State v. Miller, 2009 WI App 111, ¶ 22 n. 8, 320 Wis.2d 724, 772 N.W.2d 188 (noting that the parties use the term waiver to describe the failure to timely raise a defense, but, citing Ndina, concluded that forfeiture wa......
  • State v. Johnson, 2018AP2318-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 2021
    ...of mind which has no regard for the moral or social duties of a human being.’ " State v. Miller, 2009 WI App 111, ¶33, 320 Wis. 2d 724, 772 N.W.2d 188 (quoting Wagner v. State, 76 Wis. 2d 30, 45, 250 N.W.2d 331 (1977) ). Utter disregard for human life is interpreted "consistent[ly] with pre......
  • State v. Johnson, No. 2018AP2318-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 2021
    ...of mind which has no regard for the moral or social duties of a human being.'" State v. Miller, 2009 WI App 111, ¶33, 320 Wis. 2d 724, 772 N.W.2d 188 (quoting Wagner v. State, 76 Wis. 2d 30, 45, 250 N.W.2d 331 (1977)). Utter disregard for human life is interpreted "consistent[ly] with previ......
  • Request a trial to view additional results
25 cases
  • State v. Johnson, Appeal No. 2018AP2318-CR
    • United States
    • Court of Appeals of Wisconsin
    • July 8, 2020
    ...613 N.W.2d 170 (quoting Edmunds , 229 Wis. 2d at 77, 598 N.W.2d 290 ).¶38 In State v. Miller , 2009 WI App 111, ¶40, 320 Wis. 2d 724, 772 N.W.2d 188, the court specifically addressed self-defense within the context of the utter disregard standard:While the jury rejected Miller's claim of se......
  • Brunton v. Nuvell Credit Corp., No. 2007AP1253.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 24, 2010
    ...Ndina, the court concluded that forfeit was the more appropriate term); State v. Miller, 2009 WI App 111, ¶ 22 n. 8, 320 Wis.2d 724, 772 N.W.2d 188 (noting that the parties use the term waiver to describe the failure to timely raise a defense, but, citing Ndina, concluded that forfeiture wa......
  • State v. Johnson, 2018AP2318-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 2021
    ...of mind which has no regard for the moral or social duties of a human being.’ " State v. Miller, 2009 WI App 111, ¶33, 320 Wis. 2d 724, 772 N.W.2d 188 (quoting Wagner v. State, 76 Wis. 2d 30, 45, 250 N.W.2d 331 (1977) ). Utter disregard for human life is interpreted "consistent[ly] with pre......
  • State v. Johnson, No. 2018AP2318-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 2021
    ...of mind which has no regard for the moral or social duties of a human being.'" State v. Miller, 2009 WI App 111, ¶33, 320 Wis. 2d 724, 772 N.W.2d 188 (quoting Wagner v. State, 76 Wis. 2d 30, 45, 250 N.W.2d 331 (1977)). Utter disregard for human life is interpreted "consistent[ly] with previ......
  • Request a trial to view additional results

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