Facts
- James Oimen, Shawn Murphy McGinnis, and David Hall planned to rob Tom Stoker, a bookie believed to keep large sums of cash at his home.
- Oimen supplied detailed information about Stoker’s house, including a diagram and where money was likely kept.
- On January 2, 1989, McGinnis and Hall went to Stoker’s property armed (including a BB gun); Oimen waited nearby in a pickup truck as the planned getaway driver.
- Stoker, suspecting trouble, armed himself with a rifle and shot and killed McGinnis during the attempted robbery.
- The State charged Oimen as a party to a crime with attempted armed robbery and felony murder predicated on the attempted armed robbery (among other charges).
- A jury convicted Oimen of felony murder and attempted armed robbery as a party to a crime; the circuit court denied his motion to dismiss the felony-murder charge.
Issues
- Whether Wisconsin’s felony-murder statute, Wis. Stat. § 940.03, applies when the person killed is a co-felon and the fatal shot is fired by the intended victim of the underlying felony.
- Whether the trial court erroneously instructed the jury on the temporal element of felony murder by allowing a killing occurring “at some time after” the underlying felony, effectively including immediate flight within “while committing or attempting to commit.”
Decision
- The Wisconsin Supreme Court affirmed the convictions.
- The court held § 940.03 applies when a co-felon is killed by the intended victim, if the defendant’s conduct is a substantial factor in causing the death during the commission or attempted commission of an enumerated felony.
- The court held the challenged instruction was not erroneous because “while committing or attempting to commit” includes immediate flight, and the instruction (read as a whole and applied to the evidence) did not mislead the jury.
Legal Principles
- Under Wis. Stat. § 940.03, the State must prove (1) the defendant caused the death under Wisconsin’s substantial-factor causation standard, and (2) the death occurred while the defendant was committing or attempting to commit an enumerated felony.
- Felony-murder liability under § 940.03 is not limited by the identity of the shooter; a defendant may be liable even when the intended victim kills a co-felon.
- A defendant’s conduct need not be the sole cause of death; intervening defensive acts by the intended victim do not necessarily break causation where the lethal response is a foreseeable result of an armed felony attempt.
- “While committing or attempting to commit” in § 940.03 includes the period of immediate flight from the felony.
- Party-to-a-crime participation (including aiding, abetting, or conspiring) can satisfy felony-murder causation when the participant’s actions substantially contribute to the confrontation producing the death.
Conclusion
The court interpreted Wisconsin’s felony-murder statute to permit conviction when an intended victim kills a co-felon during an attempted enumerated felony, so long as the defendant’s conduct was a substantial factor in causing the death, and it approved an instruction treating immediate flight as within the statute’s temporal scope.