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State v. Miller

Court of Appeals of Wisconsin, District I

January 29, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Mickey L. Miller, Defendant-Appellant.

         Not recommended for publication in the official reports.

          APPEAL from an order of the Cir. Ct. No. 2013CF3283 for Milwaukee County: Jeffrey A. Conen, Judge.

          Before Kessler, P.J., Brennan and Brash, JJ.

          BRASH, J. Mickey L.

         ¶1 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.

         ¶2 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 a mistrial.

         ¶3 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.

         Background

         ¶4 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 card.

         ¶5 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.

         ¶6 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.

         ¶7 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 surveillance camera.

         ¶8 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.

         ¶9 The matter proceeded to trial in August 2014.[1] 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 ...


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