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Witness – Impeachment — Pending Charge — Accomplice

State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove


¶44. The State charged Gundy as an accomplice to Ross’s criminal activity. Gundy was arrested in Maryland, and brought back to Milwaukee where he was held in custody. Ross contends that pursuant to a plea agreement, Gundy was released from custody, and secured leniency in return for his testimony against Ross. Ross argues that he should have been allowed to make inquiry about Gundy’s release from custody as a possible motive for false testimony. If that were the case, indeed Ross’s counsel would have been entitled to question Gundy about his release from custody. The error of this contention, however, as pointed out by the trial court, is that Gundy had secured his release before a plea agreement had been reached.

¶45. Thus, a reasonable basis existed to limit the scope of cross-examination. Furthermore, Ross was able to cross-examine Gundy about the benefits of his plea bargain-namely, that as a result of his agreement to testify, Gundy’s potential incarceration had been reduced from thirty-five years to ten years, and that if convicted, the State would recommend straight probation without any jail time. From this review, we conclude that a reasonable basis existed for the trial court to limit the scope of factors that may have motivated Gundy’s decision to testify against Ross.


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