recommended for publication in the official reports.
from an order of the Cir. Ct. No. 2013CF3283 for Milwaukee
County: Jeffrey A. Conen, Judge.
Kessler, P.J., Brennan and Brash, JJ.
J. Mickey L.
Miller appeals a nonfinal order of the trial court denying
his motion to dismiss the armed robbery and false
imprisonment charges against him. Miller was previously
granted a mistrial, without prejudice, after the existence of
an additional photo array was discovered during his trial.
That additional photo array contained the picture of an
individual that police believed could have been the
perpetrator, but the victim eliminated him as a suspect.
The existence of that additional photo array was unknown to
either party prior to trial; however, its discovery directly
impacted Miller's primary theory of defense, which
revolved around the identification of the other suspect.
Furthermore, the State was unable to immediately obtain
information regarding the additional photo array. As a
result, the trial court granted the defense's request for
After an investigation relating to the additional photo
array, the State sought to reschedule the trial. Miller,
however, filed a motion to dismiss on the grounds that a new
trial would subject him to double jeopardy. The State argues
that the law relating to double jeopardy does not prevent the
commencement of a new trial after a mistrial is requested by
the defendant unless the mistrial was granted because of
prosecutorial overreaching. The State contends that the
elements required to prove prosecutorial overreaching are not
present in this case. We agree and affirm.
The charges against Miller stem from an incident reported to
police on February 23, 2013, by the victim, R.H. R.H. stated
that she had just finished shopping at a Walgreens on Martin
Luther King Drive in Milwaukee when she was approached by an
African-American male wearing a "green Army type
jacket" just outside the door. The suspect told R.H.
that he "wanted the money out of her purse." R.H.
gave the suspect her wallet, which also contained her debit
The suspect, who had a black handgun, then forced R.H. to
drive her car, a blue Kia, to an alley behind an apartment
building, where he demanded that she give him anything else
of value in her car or purse. The suspect then got into the
driver's seat of the car and drove to a gas station,
where he forced R.H. to withdraw money from an ATM using her
debit card. R.H. withdrew $200, which she told the suspect
was the limit that she could withdraw that day. They returned
to R.H.'s car, with the suspect again getting into the
driver's seat. He told R.H. they were going to use her
other credit cards to withdraw more money. He also threatened
to harm R.H. and her family if she did not cooperate.
When the suspect stopped at an intersection, R.H. jumped out
of the passenger door. She fell to the ground and dropped her
purse, but immediately got up and ran to the closest police
station to report the crime. While R.H. was giving her
statement to police, a witness walked into the police station
with R.H.'s purse. The witness explained that she had
seen R.H. "roll" out of a car, drop her purse, and
run to the police station. The witness then observed the car
make a left turn and continue traveling down Locust Street.
Additionally, around this same time, officers conducting an
unrelated traffic stop in the area observed a blue Kia
driving at a high rate of speed, and recovered it-abandoned-a
short time later.
During the investigation of this incident, officers observed
an individual wearing a jacket that was identical to the one
worn by the suspect. That individual was stopped and
identified as J.M. J.M. stated that he had gotten the jacket
from the home of his sister, T.M. Police then discovered that
T.M. had another brother-Miller-and that Miller matched the
description of the suspect provided by R.H. Furthermore,
police reviewed the surveillance video from the gas station
where the suspect had forced R.H. to withdraw cash from the
ATM, and Miller matched the photo taken from that
Miller was arrested. A photo array was conducted, and R.H.
positively identified Miller as her assailant. Miller was
charged with armed robbery and false imprisonment.
The matter proceeded to trial in August 2014. During the
opening statement by Miller's trial counsel, he told the
jury that when police had initially reviewed the surveillance
video from the gas station, they thought the suspect was
J.M., an individual known to them through previous contacts.
Counsel stated that police had shown R.H. only ...