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SCOW: State can’t use defendant’s incriminating statements made as part of on-going, State-initiated, plea negotiations

State v. Rafeal Lyfold Myrick, 2014 WI 55, 7/10/14, affirming a published court of appeals decision; majority opinion by Justice Roggensack; case activity

When does negotiation become agreement? In State v. Myrick, the Wisconsin Supreme Court’s resolution of this question was critical in determining whether the State could use incriminating statements that the defendant had made at a co-defendant’s preliminary hearing. The issue arose because the plea negotiations (one theory) or the plea agreement (alternate theory) fell apart, leading to the defendant’s trial on the original homicide charge.  On Point’s Special Guest Michael Tobin, Deputy SPD, offers his take on the issues.

Before Myrick’s trial (second trial, actually, following a mistrial the previous week), the State sent him a letter stating that if he “debriefed” the State and testified truthfully against his co-defendant, the State would reduce the charge against Myrick from first-degree intentional homicide to felony murder. Myrick promptly provided information to the State, and on the day of Myrick’s scheduled trial, the parties advised the court that they had reached a resolution. No plea was entered, but the trial did not proceed. The parties apparently anticipated that Myrick would enter a plea to the reduced charge after he had provided the testimony sought by the State.

The agreement (or, spoiler alert, the negotiations) fell apart when Myrick, having testified against the co-defendant at the preliminary hearing, subsequently refused to testify at the co-defendant’s trial. When Myrick subsequently went to trial, the circuit court overruled his objection to the State’s use of his incriminating statements made as part of the earlier testimony. The circuit court relied on case law holding that a defendant’s prior testimony is admissible if the testimony occurred after the plea agreement was finalized.

The court of appeals reversed Myrick’s conviction, holding that Myrick’s testimony was part of an “ongoing plea-bargaining process.” The Wisconsin Supreme Court accepted the State’s petition for review.

The framework for analysis is section 904.10, Stats., which prohibits the use at trial of statements made in court in connection with an offer to plead guilty. The Wisconsin Supreme Court ruled by a 4-3 majority, authored by Justice Roggensack, that the testimony from the preliminary hearing was inadmissible.  The majority comprised a three-justice opinion written by Justice Roggensack and a brief concurrence by Chief Justice Abrahamson.  The majority concluded that the defendant provided the testimony as part of ongoing plea negotiations that the State had initiated. The plea agreement had not yet been finalized, Justice Roggensack noted, because Myrick had not entered a guilty plea and because the agreement had never been formalized. Also, the State’s letter seeking cooperation stated that Myrick’s helpful testimony would be “part of this negotiation.”

The three dissenting justices concluded that the parties had reached a final agreement before Myrick testified at the co-defendant’s preliminary hearing. Under this interpretation, Myrick did not simply break off negotiations when he refused to testify at the co-defendant’s trial: he breached the agreement already reached. Therefore, the dissenters argued that the earlier testimony was admissible. Justice Gableman’s opinion emphasized that the parties called off Myrick’s jury trial and informed the court that “a resolution had been reached” (the court then scheduled a status hearing).

Interestingly, the State argued a different theory for admissibility: that Myrick’s statements were not in connection with an “offer” to plead guilty, but merely reflected his acceptance of an invitation to plead guilty to a reduced charge. In rejecting this argument, Justice Roggensack relied heavily on the State Public Defender’s amicus brief, which described the diverse ways in which plea negotiations occur. Either party may initiate discussions, and the level of formality ranges from formal proposals to informal inquiries about the other party’s willingness to negotiate. Justice Roggensack’s opinion agreed with the amicus that the purpose of section 904.10, to promote candid discussions during negotiations, would be frustrated if the statute applied only when the defendant initiated the negotiations.

Attorney Steven Zaleski represented Myrick before the Wisconsin Supreme Court, and Assistant State Public Defender (ASPD) Leon Todd submitted an amicus brief and participated in the oral argument. Congratulations to attorneys Zaleski and Todd on this successful result.

Final thoughts, with benefit of hindsight: because the decision was close (4-3) and because the main opinions were fact-intensive, defense attorneys at the trial-court level may want to seek stipulations that their clients are providing statements as part of ongoing negotiations. Conversely, until the client is prepared to enter a plea on the record, defense attorneys should be wary of allowing clients to make any potentially inculpatory statements that may arguably follow the parties having reached a final agreement (such as written, signed plea agreement).

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