Double Jeopardy – Photo Array

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mickey L. Miller

Case No.: 2017AP2323-CR

Officials: Kessler, P.J., Brennan and Brash, JJ.

Focus: Double Jeopardy – Photo Array

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 a mistrial.

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.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.