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§ 943.23(1r), Carjacking: Operating Vehicle Without Owner’s Consent Resulting in Death — Sufficiency of Evidence, Causation

State v. Earl L. Miller, 231 Wis.2d 447, 605 N.W.2d 567 (Ct. App. 1999)
For Miller: Eduardo M. Borda

Issue: Whether an act may satisfy the “substantial factor” test for causation element if it merely plays a prominent rather than lone role in the proscribed result.

Holding: Causation is satisfied by any significant, not necessarily the sole, factor resulting in death.

Miller was convicted of operating a vehicle without owner’s consent resulting in death (carjacking), § 943.23(1r). Miller was trying to burn a dealer in a drug deal – Miller and others seized the victim and drove off in the victim’s car in order to get drugs from his residence. When the victim tried to escape from the car, Miller shot and killed him. Did Miller’s taking the vehicle “cause” the death? Yes. Causation requires only a “substantial factor,” which prior case law says need not be the sole, immediate, or even primary cause of death. ¶¶11-12. “Thus, we conclude that a substantial factor contemplates not only the immediate or primary cause, but other significant factors that led to the ultimate result.” ¶14. Though the court doesn’t say so explicitly, this is the familiar “but-for” test: if Miller hadn’t taken the car, the victim wouldn’t have been shot, trying to escape. ¶15. This is so, even granting that the focus of the event was obtaining drugs not stealing the car: “The vehicle, however, was an integral instrument in the commission of [the] kidnapping,” and its taking therefore “played a prominent role in [the] death.” ¶16. The court cautions that peripheral or completely attenuated events won’t suffice. ¶17.

Note: This result shows the difficulty in challenging causation. Another way of looking at this case is to ask whether the victim’s attempted escape was an intervening circumstance which amounted to an independent cause. The answer to that question is undoubtedly no, especially after State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (1994): acts taken by a victim in direct response to an assault will rarely if ever break a causal connection, even when the victim himself becomes violent. Besides, it a bit hard to argue attenuation when you yourself shoot the victim. The question might have been a bit closer if the issue were codefendant ptac liability for Miller’s act, though even then the outcome probably wouldn’t be different – see State v. Glenn, 199 Wis.2d 575, 545 N.W.2d 230 (1996). Why charge carjacking, instead of first-degree intentional homicide? Probably because carjacking/causing-death (also a Class A felony) doesn’t require proof of that nettlesome element of intent.


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