July 14, 2014 – The Wisconsin Supreme Court has upheld the reversal of Raphfeal Myrick’s conviction for first-degree intentional homicide as a party to the crime because his preliminary hearing testimony against someone else was wrongly used against him.

Myrick had agreed to cooperate with the state when he testified against co-defendant Justin Winston in a preliminary exam. The state had sent Myrick a letter suggesting a plea agreement could be reached if Myrick testified against the co-defendant.

In the examination, Myrick said he shot at the murder victim but missed and co-defendant Winston was actually the killer. Myrick made other incriminating statements implicating himself as a party to the murder but not admitting that he killed the victim.

After the hearing, though, Myrick stopped cooperating with the prosecution against Winston. Thus, the prosecutor proceeded with murder charges against Myrick.

At trial, the prosecutor was allowed to read Myrick’s preliminary exam testimony. The trial court noted that a plea agreement was in place when Myrick testified. Ultimately, a jury convicted Myrick of first-degree intentional homicide as a party to the crime.

On appeal, Myrick argued that the testimony should have been excluded from his trial under Wis. Stat. section 904.10, which says statements made in connection with plea offers are not admissible in a subsequent trial against the person who made them.

The trial court had overruled Myrick’s objection to the preliminary exam testimony, but the state appeals court reversed. In State v. Myrick, 2014 WI 55 (July 10, 2014), a supreme court majority (4-3) affirmed the appeals court, reversing the conviction.

The state argued that Myrick did not offer to plead guilty, so his testimony was still admissible. That is, the state said Myrick accepted the state’s offer to allow him to plead guilty. This was an interpretation the supreme court majority refused to accept.

“We begin with observation that only a defendant can offer to plead guilty,” wrote Justice Patience Roggensack for the majority. “Neither counsel, nor the circuit court, and certainly not the prosecutor, can plead guilty on a defendant’s behalf.”

The court also rejected the state’s argument that Myrick did not offer to plead guilty; Myrick merely offered to “debrief” the state and to testify at the preliminary hearing.

But the supreme court majority explained that Myrick’s conduct, to testify at the preliminary exam, exhibited an intention to plea and he was taking the steps necessary.

“From these circumstances, we conclude that Myrick exhibited a subjective expectation to negotiate a plea, and that Myrick’s expectation was reasonable,” wrote Justice Roggensack, noting that a defendant’s offer to plead guilty can be implied from conduct.

Concurrence and Dissent

Chief Justice Shirley Abrahamson concurred with the lead opinion but wrote separately to say that Wisconsin should simply follow the federal rule on this issue.

“In my view, once plea negotiations have started, all statements made in connection with the negotiations would be excluded at trial, even if the negotiations break down,” wrote the chief justice, citing Federal Rule of Evidence 410.

Justice Michael Gableman dissented, joined by Justices David Prosser and Annette Ziegler. The dissent agreed that Myrick made an offer to plead guilty but argued that an exception applied and Myrick’s preliminary testimony was properly admitted.

The majority cited State v. Nash, 123 Wis. 2d 154, 366 N.W.2d 146 (Ct. App 1985) for the proposition that Wis. Stat. section 904.10 “does not bar testimony given after a plea agreement has been finalized.”

It said an agreement was reached in Myrick’s case, even though Myrick later withdrew the plea. That is, plea negotiations were done when he testified in the preliminary exam.

“The majority’s position is that, while Myrick made an offer to plead guilty, that offer never materialized into a formal plea agreement and remained in the negotiation phase at the time Myrick testified at the preliminary hearing,” Justice Gableman wrote.

“This position raises the obvious question: at what point, under the majority’s reasoning, would the parties’ negotiations have transformed into a plea agreement?”