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State v. Raphfeal Lyfold Myrick, 2012AP2513-CR, petition for review granted

Review of a published court of appeals decision; case activity

Issues (composed by On Point): 

Wis. Stat. § 904.10 provides that evidence of statements that a person made in court in connection with an offer to the prosecuting attorney to plead guilty or no contest to the crime charged or any other crime is not admissible in any criminal proceedings against the person who made the offer.  The questions here seem to be whether Myrick made an offer to plead guilty or no contest and,  if so, whether the statements he sought to exclude were connected to any such offer.

Myrick was convicted of 1st-degree intentional homicide.  Pursuant to an offer from the DA, Myrick testified against a co-actor in a separate prosecution.  In return, the DA “agreed” to amend the charge against him to felony murder with an underlying charge of armed robbery and recommend a period of 12-13 years of initial confinement in prison. As promised, Myrick testified at the preliminary hearing against his co-actor but then stopped cooperating.  The DA used Myrick’s testimony against him at Myrick’s own trial claiming that Myrick never made an offer to plead guilty.   According to the State’s court of appeals’ brief, the DA did not offer to negotiate a plea, he only offered to make an offer to negotiate a plea after Myrick testified.  Think “an offer to offer” or a “proposal to propose, maybe” or a futures option.  Presumably SCOW will interpret §904.10 and apply it to the offer made here.  As noted in our prior post, there are 5 cases applying the statute.  The one the circuit court relied on, State v. Nash, 123 Wis. 2d 154, 366 N.W.2d 146 (Ct. App. 1985) seems distinguishable in that testimony used to impeach the defendant in that case was given after the plea negotiation process had ended.  Here, notes the court of appeals, Myrick’s testimony was given during the plea-bargaining process.

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