Wow! District 1 is really on a roll. Twice in less than one week they’ve reversed a conviction for first-degree murder. Last Friday it was State v. Wilson, 2011AP1803, a summary reversal and hence not summarized by On Point. Wednesday, it was State v. Myrick, the subject of today’s post.
The State charged Myrick with first-degree homicide as a party to a crime in the death of Marquise Harris and with possession of a firearm by a felon. It offered to negotiate a deal with Myrick if he cooperated in the prosecution of several cases against another person involved in the murder, Justin Winston. The details of the offer are set forth in the decision at ¶2. Pursuant to the offer, Myrick testified at Winston’s preliminary examination, but then stopped cooperating. The State proceeded to use Myrick’s testimony from the preliminary hearing for Winston in its case-in-chief against Myrick at his murder trial. The issue is whether Wis. Stat. Rule 904.10 prohibited the State from doing so. The trial court, citing State v. Nash, 123 Wis. 2d 154, 366 N.W.2d 146 (Ct. App. 1985), found no problem with the State’s tactic, but the court of appeals did and thus reversed.
Section 904.10 says “[e]vidence of statements made in court . . . in connection with” “an offer to …[the]prosecuting attorney to plead guilty or no contest to the crime charged or to any other crime” “is not admissible in any … criminal proceeding against the person who made the offer.” According to the court, Myrick’s “offer” to the prosecuting attorney was implicit in the prosecutor’s letter to Myrick. That is, if Myrick complied with the State’s request, he would receive a reduced charge and a lenient sentencing recommendation. Id., ¶7. Furthermore Nash is distinguishable. “Nash gave the testimony that the State used to impeach him after the plea bargaining process had ended.” Id., ¶8v. Here, “Myrick’s plea-bargaining relationship with the State was ongoing and still in flux when he testified at Winston’s preliminary examination.” Thus, Myrick’s testimony was protected by 904.10. Id., ¶9.
For the curious, the court of appeals walked through 5 published Wisconsin decisions applying 904.10 and 2 federal decisions to support its distinction between testimony given during plea negotiations versus testimony given after negotiations have ended. Part of the problem stems from the prosecutor’s letter, which the court saw as an ongoing offer to negotiate rather than as a plea bargain. To a commercial litigator the letter does look an awful lot like an “agreement to agree,” which is unenforceable under Wisconsin law. Dairyland Greyhound Park, Inc. v. Doyle, 295 Wis. 2d 1, ¶83, 719 N.W.2d 408 (2006). But the enforceability of the agreement is not at issue here. The State drafted it, and thus couldn’t have wriggled out of it anyway.