State v. Oimen
| Decision Date | 30 December 1992 |
| Docket Number | No. 90-2927-CR,90-2927-CR |
| Citation | 174 Wis.2d 598,501 N.W.2d 469 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. James OIMEN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
James Oimen appeals from a judgment convicting him of felony murder, 940.03, Stats., attempted armed robbery, secs. 943.32(1)(b) and (2), and 939.32(1), Stats., and armed burglary, sec. 943.10(2)(a), Stats., all as a party to a crime, sec. 939.05, Stats., and from an order denying his motion for postconviction relief. 1 He is indigent and appears without counsel. We paraphrase his statement of the issues as follows: (1) whether the court of appeals, having failed to appoint new appellate counsel for him after granting his motion to disqualify his first appellate counsel, lacks jurisdiction to proceed; (2) whether he may be found guilty of felony murder under sec. 940.03, Stats., when the intended victim of the underlying felony killed Oimen's accomplice; (3) whether he was "constructively acquitted" because of the jury instructions; (4) whether the instructions were deficient; (5) whether defects in the jury selection process deprived Oimen of his right to a jury trial; and (6) whether he was convicted of a crime that was not charged. Because we find no merit in Oimen's contentions, we affirm.
The jury heard testimony that in late December 1988, Oimen, David Hall, and Shawn Murphy McGinnis discussed robbing Tom Stoker. 2 According to Hall, Oimen said that Stoker might have a couple of hundred thousand dollars at his house, that Stoker did not have a gun and was afraid, and that Hall should threaten to harm Stoker's computer room.
At approximately 11:45 p.m. on January 2, 1989, Hall and McGinnis drove to Stoker's home in Monona intending to burglarize it and rob him. Oimen stayed in a car near the house. Wearing ski masks, Hall and McGinnis cut the telephone lines to the house and went to the back porch. McGinnis carried a BB gun and Hall had a broken pool cue. Stoker saw them through a window. After McGinnis pointed the gun at him and demanded entry, Stoker ran to the interior of his house, McGinnis slammed against the door and opened it, and he and Hall entered. Hall fled when he saw that Stoker had a rifle. Stoker shot McGinnis, who stumbled outside and died later. Oimen drove off.
After we permitted Oimen's appellate counsel to withdraw, 3 we refused to appoint successor counsel after the state public defender's office declined to do so. 4 According to Oimen, the result is that we lack jurisdiction to decide his appeal.
The court of appeals has appellate jurisdiction as provided by law. Section 752.01(1), Stats. A final judgment or order of the circuit court is appealable to the court of appeals as a matter of right. Section 808.03(1), Stats. We obtained jurisdiction when Oimen timely filed an appeal from the judgment of conviction and order denying his postconviction motion. Rule 809.30(2)(i), Stats. Once a court has acquired jurisdiction, loss of that jurisdiction will not be presumed, absent an explicit statutory provision to that effect. Village of Elkhart Lake v. Borzyskowski, 123 Wis.2d 185, 193, 366 N.W.2d 506, 510 (Ct.App.1985). No statute supports Oimen's claim that we lost appellate jurisdiction by refusing to appoint successor appellate counsel for him.
We retain personal jurisdiction over Oimen. He cannot submit his appeal to this court, request affirmative relief from the court (such as appointment of counsel) and then argue that the court lacks personal jurisdiction over him. Artis-Wergin v. Artis-Wergin, 151 Wis.2d 445, 453, 444 N.W.2d 750, 753 (Ct.App.1989).
Nor did we err by denying Oimen's request for successor counsel. Oimen relied on a single reason when he moved the court of appeals to appoint a successor: that his appointed counsel had refused to raise on appeal certain claims Oimen wanted reviewed.
Because Wisconsin provides a right to appeal for those who can pay, Wisconsin cannot deny a right of appeal to those who cannot. Jones v. Barnes, 463 U.S. 745, 751 (1983). For that reason, Wisconsin must provide appellate counsel to represent an indigent such as Oimen. However, an indigent defendant has no constitutional right to compel appointed counsel to press claims which counsel rejects as a matter of professional judgment. Id. We need not appoint different counsel simply because counsel and the indigent defendant disagree on the best strategy to be employed in the case. State v. Robinson, 145 Wis.2d 273, 278, 426 N.W.2d 606, 609 (Ct.App.1988).
We conclude that we have jurisdiction to decide Oimen's appeal.
The felony murder statute, sec. 940.03, Stats., provides:
Whoever causes the death of another human being while committing or attempting to commit a crime specified in s. 940.225(1) or (2)(a), 943.02, 943.10(2) or 943.32(2) may be imprisoned for not more than 20 years in excess of the maximum period of imprisonment provided by law for that crime or attempt.
The attempted crime against Stoker was robbery by using or threatening use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe that it is a dangerous weapon. That crime is specified in sec. 943.32(2), Stats. The felony murder statute therefore applies.
Oimen claims that the felony murder statute does not apply to him because it was Stoker, the victim of the intended felony, who killed one of the two robbers and because Oimen was not present. However, Oimen was charged with and convicted of felony murder, party to the crime. A person is subject to prosecution if he commits a crime in this state. Section 939.03(1)(a), Stats. It is irrelevant that the person who is a party to a crime did not directly commit it. A person is concerned in the commission of the crime if he directly commits it, intentionally aids and abets its commission or is a party to a conspiracy to commit it. Section 939.05(2), Stats. "Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime" although he did not directly commit it. Section 939.05(1), Stats.
The jury having found that Oimen was a party to the crime, it is immaterial whether he was on or off the premises when his accomplice was shot. As a party to the crime, Oimen was concerned in its commission and may be convicted for its commission. Section 939.05(1), Stats.
Oimen argues that the plain language of the felony murder statute does not cover a situation in which a person sets up one of the crimes specified in sec. 940.03, Stats., dispatches his accomplices to commit it, and while they attempt to commit it, the intended victim kills an accomplice. We disagree.
A person is guilty of felony murder under sec. 940.03, Stats., if he "causes" the death of another while committing or attempting to commit one of the specified crimes. The statute does not exclude the situation in which someone other than a felon performs the act which directly causes a death. Nothing in the statute suggests that a person is guilty of felony murder only if that person or one of that person's accomplices kills another while committing or attempting to commit one of the specified crimes. The statute does not provide that it applies only when the defendant or one of the defendant's accomplices inflicts the fatal wound.
On the contrary, the felony murder statute applies to the person who "causes the death of another human being while committing or attempting to commit a crime specified" in the statute. Section 940.03, Stats. (emphasis added). "Cause" has a precise meaning in the case law of this state.
Ehlinger v. Sipes, 155 Wis.2d 1, 12-13, 454 N.W.2d 754, 758-59 (1990):
To establish causation in Wisconsin, the plaintiff bears the burden of proving that the defendant's negligence was a substantial factor in causing the plaintiff's harm. Merco Distg. Corp. v. Com'l. Police Alarm Co., 84 Wis.2d 455, 458, 267 N.W.2d 652 (1978). "The phrase 'substantial factor' denotes that the defendant's conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense." Id. at 458-49. The test has been described as one of significance rather than quantum. See Prosser, Law of Torts, sec. 41, at 240 n.29.... "There may be more than one substantial causative factor in any given case." Merco, 84 Wis.2d at 459. The defendant's negligent conduct need not be the sole or primary factor in causing the plaintiff's harm. Sumnicht v. Toyota Motor Sales, 121 Wis.2d 338, 351, 360 N.W.2d 2 (1984).
The same case law meaning of "cause" has been used when construing criminal statutes. In Hart v. State, 75 Wis.2d 371, 249 N.W.2d 810 (1977), one issue was how the victim's undisputed contributory negligence affected a defendant's criminal liability under sec. 940.08(1), Stats. (1973). The statute imposed a criminal penalty on the person who "causes the death of another human being by a high degree of negligence in the operation or handling of a vehicle." The Hart court said the issue was whether "the jury could have found that negligence of the defendant was nevertheless an operative factor having a substantial effect in producing the victim's death," and concluded that the evidence was sufficient. 75 Wis.2d at 398-99, 249 N.W.2d at 822.
The same point is made in Cranmore v. State, 85 Wis.2d 722, 271 N.W.2d 402 (Ct.App.1978). The facts in Cranmore were that a police officer was shot during a robbery and died after doctors removed his life-support equipment and kidneys, they having believed he was dead. The defendants were charged under sec. 940.01(1)...
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