State v. Oimen

184 Wis. 2d 423 (1994)

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Nature of the Case

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Facts

D, Shawn Murphy McGinnis, and David Hall made plans to rob Tom Stoker, a 'bookie' who had large sums of money at his house. D gave his compatriots all the information they needed. D had placed bets with Stoker on numerous occasions. D told them that Stoker was a quiet person who was 'meek and mild' and did not carry a gun. D stated that Stoker could have up to $200,000 in the house but would not report a theft because the money was gained illegally. D drew a diagram of the layout of Stoker's house and where the money was likely to be. D added that Stoker would turn over his money if the two men merely threatened to destroy the computer Stoker used to keep track of point spreads. D did not want to go into the house himself because Stoker knew him. McGinnis borrowed a pellet gun or a BB gun. The gun looked real. The three men drove to Stoker's house and parked down the street. Hall and McGinnis went up to the house and D remained in Hall's pickup. McGinnis carried the BB gun. Hall carried a pool cue butt, a small billy club, and a pocket knife. McGinnis cut Stoker's phone lines. Stoker was calling his daughter when the phone line went dead. Stoker laid his Winchester 308 automatic hunting rifle out in the bedroom and walked through the house to look out the windows. In the kitchen, he turned on the porch light and pulled aside curtains on a window in the kitchen door. He did not open the door. McGinnis and Hall were standing right outside this door, with masks covering their heads. McGinnis was pointing the BB gun about four inches from Stoker's head, yelled something such as, 'We want your money, you bookie.' Stoker testified that the gun looked like a large handgun. Stoker ran back to his bedroom, grabbed the rifle, and loaded it. McGinnis broke down the kitchen door and the two men ran into the house. While Stoker was loading his gun McGinnis was standing down the hall in the bathroom doorway, pointing a gun straight at Stoker. Stoker pointed his gun at McGinnis. McGinnis said, 'He's got a gun.' Hall and McGinnis turned and began to run. Stoker reached the kitchen and testified that McGinnis pointed his gun at Stoker, who responded by firing his rifle. The shot hit McGinnis. Hall helped McGinnis toward the road, he heard his pick-up startup. He left McGinnis and discovered that D was not there and had driven away. Hall went back to where McGinnis lay but when he heard police sirens he ran off. McGinnis died. Hall turned state’s evidence. D was charged with attempted armed robbery, felony murder, and armed burglary, as a party to the crime on each count. On the felony murder charge, the court instructed the jury that D would be guilty if D caused the death of Shawn Murphy McGinnis while attempting to commit the crime of armed robbery. During deliberations, the jury asked a number of questions on the felony murder charge pursuant to the relation of cause and effect, a substantial factor in causing death, and a dictionary definition of substantial. The court gave the following response: “1) The exact language of Section 940.03 is contained in the jury instruction. The statute states: Whoever causes the death of another human being while committing or attempting to commit the crime of armed robbery is guilty of felony murder. 2) There may be more than one cause of death. The act of one person alone might produce it, or the acts of two or more persons might jointly produce it. Questions about the connection between the felony and death caused are best resolved by referring to the words of the statute and asking: Did the commission of the felony cause the death. If this causal connection does exist, the killing may take place at some time before or after the commission or the attempt to commit the underlying felony.” D was found guilty and appealed. The court of appeals affirmed because D was convicted as a party to the crime and it was immaterial that D was not in the house when McGinnis was shot. The court of appeals concluded that, because the D's acts were a substantial factor in producing McGinnis' death, it was immaterial whether the D, an accomplice, or the victim directly committed the fatal act. D appealed.