State v. Raphfeal Lyfold Myrick

2014 WI 55

SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2513-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Raphfeal Lyfold Myrick,
Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 351 Wis. 2d 32, 839 N.W.2d 129
(Ct. App. 2013 – Published)
PDC No: 2013 WI 123

OPINION FILED: July 10, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 9, 2014

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Rebecca F. Dallet

JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
DISSENTED: GABLEMAN, PROSSER, ZIEGLER, JJJ., dissent.
(Opinion filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Thomas J. Balistreri, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant, there was a brief and oral
argument by Steven W. Zaleski, Madison.

An amicus curiae brief and oral argument by Leon W. Todd,
assistant state public defender, with whom on the brief was
Kelli S. Thompson, state public defender, on behalf of the
Wisconsin State Public Defender.
 2014 WI 55
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2513-CR
(L.C. No. 2009CF3494)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner, FILED
v. JUL 10, 2014
Raphfeal Lyfold Myrick, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 PATIENCE DRAKE ROGGENSACK, J. We review a decision

of the court of appeals1 that reversed a judgment of conviction

entered by the Milwaukee County Circuit Court.2 Relevant to our
review, a jury convicted defendant Raphfeal Lyfold Myrick of

first-degree intentional homicide contrary to Wis. Stat.

1
State v. Myrick, 2013 WI App 123, 351 Wis. 2d 32, 839
N.W.2d 129.
2
The Honorable Rebecca F. Dallet presided.
 No. 2012AP2513-CR

§ 941.29(1) (2011-12).3 Myrick argues that the circuit court

improperly admitted incriminating statements he made during the

preliminary hearing for charges against Justin Winston. Myrick

claims that he made those statements in connection with an offer

to plead guilty, and therefore Wis. Stat. § 904.10, which

provides that "[e]vidence of statements made in court . . . in

connection with . . . an offer . . . to plead guilty . . . [are]

not admissible," prohibited their admission. The State counters

that § 904.10 does not apply because it was the prosecutor, not

Myrick, who made an offer; Myrick only "accepted the

prosecutor's offer to allow him to plead guilty."4

¶2 We conclude that Wis. Stat. § 904.10 prohibited the

use of Myrick's preliminary hearing testimony at trial. While

it is true that the prosecutor made the initial overture to

begin the plea bargaining process, Myrick offered to plead

guilty and testified at Winston's preliminary hearing in

connection with that offer. We reach this conclusion not out of

disregard for the distinction between offer and acceptance, but

3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.

The circuit court also entered a judgment on Myrick's
guilty plea for unlawfully possessing a firearm as a previously
convicted felon, which is not part of this review.
4
Oral argument at 9:30, available at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=8588 (last visited June 20, 2014).

The State phrases its position slightly differently in its
brief, contending that "Myrick accepted an offer to make an
offer to allow him to plead guilty."

2
 No. 2012AP2513-CR

because only a defendant can offer to plead guilty. We also

note that a defendant's offer to plead guilty does not need to

be express or explicit; it can be implied from words and

conduct. See State v. Norwood, 2005 WI App 218, ¶¶13, 20, 287

Wis. 2d 679, 706 N.W.2d 683; State v. Nicholson, 187 Wis. 2d

688, 698, 523 N.W.2d 573 (Ct. App. 1994). In addition to

reflecting the plain language of the statute, our conclusion is

consistent with the statute's purpose, which is to encourage

free and open discussion between prosecutor and defendant during

plea negotiations. See State v. Nash, 123 Wis. 2d 154, 159, 366

N.W.2d 146 (Ct. App. 1985). Accordingly, we affirm the decision

of the court of appeals.

I. BACKGROUND5

¶3 On July 26, 2009, Winston picked Myrick up from work

and decided to go look for a man called "Cooper," with whom

Myrick and Winston had a history of disagreements. When the two

arrived at Cooper's house, Winston got out of the car and went

inside while Myrick remained in the car. A short while later,
Winston came out holding a man with a shirt covering his face at

gunpoint. That man was not Cooper, but the murder victim,

Marquise Harris, who was a stranger to Myrick.

¶4 After attempting to tell Winston that he had the wrong

person, Myrick nonetheless opened the hatch of the vehicle so

that Winston was able to force Harris into the back, where

5
The following facts are taken from Myrick's testimony at
Winston's preliminary hearing, as well as Myrick's statements to
the prosecutor.

3
 No. 2012AP2513-CR

Winston continued to hold Harris at gunpoint. Following

Winston's directions, Myrick drove around for a while and ended

up in an alley. All three individuals got out of the car.

¶5 Winston handed Myrick a pistol and told Myrick to

shoot Harris. Myrick fired a shot that missed Harris and went

into a garage. Harris hit the ground, and Myrick jumped in the

passenger seat of the car. Winston, who was in the driver's

seat, noticed that Harris was not dead. Winston then fired

multiple shots from an assault rifle into Harris and sped off.

¶6 Police pulled Winston over minutes later for speeding,

at which point Winston fled on foot and Myrick got out of the

car, dropped a gun, and was arrested.

¶7 The State charged Myrick with first-degree intentional

homicide as a party to the crime. Myrick pled not guilty to the

homicide charge. The theory of his defense was that he did not

help Winston kill Harris; he attempted to hinder Winston by

intentionally missing when he shot at Harris.

¶8 On June 28, 2010, jury selection for Myrick's trial
began. Two days later, however, the court declared a mistrial.

It began voir dire for a new trial that same day, and set the

trial for July 6.

¶9 Before the second trial began, the State sent Myrick a

letter. It stated that if Myrick "debriefed" the State and

agreed to "testify truthfully whenever called upon by the State"

regarding Winston's criminal conduct, the State "w[ould] amend

the charge regarding the murder of Marquise Harris to one of
Felony Murder with an underlying charge of Armed Robbery." The
4
 No. 2012AP2513-CR

State was particularly interested in Myrick's cooperation

because it suspected that Winston had killed not only Harris,

but also Maurice Pulley, a witness for the State in a previous

trial. The letter went on to say, however, that "it w[ould] be

at the discretion of [the] district attorney's office . . . as

to whether the above negotiation will be conveyed to [Myrick] to

settle the . . . case short of trial."

¶10 The same day the State sent the letter, Myrick

debriefed the State, thereby implicating himself in Harris'

murder. When the parties appeared for trial on July 6, they

informed the court that a resolution had been reached, but no

plea was taken. Myrick proceeded to testify at Winston's

preliminary hearing, making additional incriminating statements

about his involvement in Harris' murder.

¶11 Myrick's cooperation ended after he read a newspaper

article that said Myrick shot Harris in the head. Myrick became

distrustful of the State, believing it had leaked false

information to the press. Because of his distrust, he refused
to testify at Winston's trial, thereby terminating plea

negotiations. Myrick subsequently went to trial on the homicide

charge.

¶12 At trial, the State sought to introduce Myrick's

testimony from Winston's preliminary hearing. Myrick objected,

arguing that admitting his testimony was improper because he

gave it in connection with an offer to plead guilty. See Wis.

Stat. § 904.10.

5
 No. 2012AP2513-CR

¶13 The circuit court overruled Myrick's objection,

concluding that the statute did not apply to Myrick's testimony

because he gave it after a plea agreement had been reached. See

Nash, 123 Wis. 2d at 159 (explaining that there is no need to

protect incriminating statements a defendant gives after a plea

agreement is finalized). The court of appeals reversed. It

concluded that the State's letter to Myrick "reflect[ed] an

ongoing plea-bargaining process" and that Myrick's testimony was

"part and parcel of Myrick's reciprocal offer to the State."

State v. Myrick, 2013 WI App 123, ¶¶2, 7, 351 Wis. 2d 32, 839

N.W.2d 129. We accepted the State's petition for review.

II. DISCUSSION

A. Standard of Review

¶14 The arguments in this case center around the circuit

court's discretionary decision to admit Myrick's preliminary

hearing testimony. "[W]e will uphold a circuit court's decision

to admit or exclude evidence if the circuit court examined the

relevant facts, applied a proper legal standard, and, using a
demonstrated rational process, reached a reasonable conclusion."

State v. Novy, 2013 WI 23, ¶36, 346 Wis. 2d 289, 827 N.W.2d 610.

In order to determine whether the circuit court applied the

proper legal standard, we must interpret Wis. Stat. § 904.10 and

apply that interpretation to the facts of this case.

"[S]tatutory interpretation and application . . . present

questions of law for our independent review, although we benefit

from the previous interpretations of the court of appeals and
the circuit court." Id., ¶21.
6
 No. 2012AP2513-CR

B. General Principles

¶15 Plea bargaining plays a central role in our criminal

justice system. Lafler v. Cooper, 566 U.S. _, 132 S. Ct. 1376,

1381 (2012) ("criminal justice today is for the most part a

system of pleas, not a system of trials"); Missouri v. Frye, 566

U.S. _, 132 S. Ct. 1399, 1407 (2012). This is so because

"[e]ffective criminal law administration would be difficult if a

large proportion of the charges were not disposed of by guilty

pleas." 2 McCormick on Evidence § 266, at 339 (Kenneth S. Broun

ed., 7th ed. 2013). Moreover, when properly administered, plea

bargaining may benefit the State, defendants and the public as a

whole. See Santobello v. New York, 404 U.S. 257, 261 (1971)

(discussing the "essential" and "highly desirable" implications

of plea bargaining); contra Lafler, 566 U.S. at _, 132 S. Ct. at

1397 (Scalia, J., dissenting) (discussing the "admirable belief

that the law is the law, and those who break it should pay the

penalty provided").

¶16 In order to promote "the desirable[,] or at least
necessary[,] process of plea bargaining," nearly every American

jurisdiction has adopted a rule excluding some "admissions made

in connection with plea negotiations that do not result in final

pleas of guilty." 1 McCormick on Evidence § 160, at 878

(Kenneth S. Broun ed., 7th ed. 2013); see David P. Leonard, The

New Wigmore: A Treatise on Evidence § 5.1, at 5:3. Those rules

have attempted to balance "the practical need to encourage

compromise through plea bargaining against the need for relevant
information in criminal cases." Leonard, supra, at 5:73. They
7
 No. 2012AP2513-CR

do so by excluding one or more of three types of incriminating

statements: (1) judicial confessions, which are incriminating

admissions made in court, such as a defendant's testimony in a

prior hearing or different proceeding; (2) guilty pleas and

"statements made in connection with [a defendant's] offer to and

acceptance by the trial court"; and (3) admissions made in

connection with plea bargaining, which usually take place during

negotiations with a prosecutor. 1 McCormick, supra, at 877-78.

¶17 This case requires us to determine whether the

Wisconsin rule, which excludes "[e]vidence of statements made in

court . . . in connection with . . . an offer . . . to plead

guilty," prohibits the use of incriminating testimony a

defendant gave in order to keep the possibility of a plea

bargain open. Wis. Stat. § 904.10.

¶18 We begin our interpretation with the plain language of

the statute. Wis. Indus. Energy Group, Inc. v. Pub. Serv.

Comm'n of Wis., 2012 WI 89, ¶15, 342 Wis. 2d 576, 819 N.W.2d

240; Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶20, 309
Wis. 2d 541, 749 N.W.2d 581. "If the meaning of the statute is

plain, we ordinarily stop the inquiry." State ex rel. Kalal v.

Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,

681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43,

236 Wis. 2d 211, 612 N.W.2d 659). We give statutory language

"its common, ordinary, and accepted meaning, except that

technical or specially-defined words or phrases are given their

technical or special definitional meaning." Id. And, because
"[c]ontext is important to meaning," we interpret statutory
8
 No. 2012AP2513-CR

language "in the context in which it is used; not in isolation

but as part of a whole . . . to avoid absurd or unreasonable

results." Id., ¶46. "Where statutory language is unambiguous,

there is no need to consult extrinsic sources of

interpretation." Id.

C. Wisconsin Stat. § 904.10

¶19 In order to "allow for free and open discussion

between the prosecution and defense during attempts to reach a

compromise" and "to promote the disposition of criminal cases by

compromise," Wis. Stat. § 904.10 excludes evidence of offers to

plead guilty. Nash, 123 Wis. 2d at 159. That statute provides

in full as follows:

Evidence of a plea of guilty, later withdrawn, or
a plea of no contest, or of an offer to the court or
prosecuting attorney to plead guilty or no contest to
the crime charged or any other crime, or in civil
forfeiture actions, is not admissible in any civil or
criminal proceeding against the person who made the
plea or offer or one liable for the person's conduct.
Evidence of statements made in court or to the
prosecuting attorney in connection with any of the
foregoing pleas or offers is not admissible.
§ 904.10. The statute "clearly and unambiguously indicates [an]

intent to prohibit for any purpose the use of statements made in

connection with a guilty plea, later withdrawn, at a subsequent

trial." See State v. Mason, 132 Wis. 2d 427, 433, 393 N.W.2d

102 (Ct. App. 1986).

¶20 In order to determine when a defendant made statements

in connection with an offer to plead guilty, the court of

9
 No. 2012AP2513-CR

appeals has adopted the following standard from the federal

system:

The trial court must . . . determine, first, whether
the accused exhibited an actual subjective expectation
to negotiate a plea at the time of the discussion,
and, second, whether the accused's expectation was
reasonable given the totality of the objective
circumstances.
Nicholson, 187 Wis. 2d at 698 (quoting United States v.

Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978)).6

¶21 This test recognizes that a defendant's offer need not

be express or explicit; it can be implied from a defendant's

words and conduct. See Norwood, 287 Wis. 2d 679, ¶20. For

instance, in Norwood, a defendant wrote a letter to the circuit

court judge in which he said that he wanted the judge to

6
See also United States v. Sayakhom, 186 F.3d 928, 935-36
(9th Cir. 1999) (adopting the Robertson test); United States v.
Posey, 611 F.2d 1389, 1390 (5th Cir. 1980) (same); United States
v. Kearns, 109 F. Supp. 2d 1309, 1315 (D. Kan. 2000) (same);
United States v. Melina, 868 F. Supp. 1178, 1181 (D. Minn. 1994)
(same).

The few courts that have questioned Robertson have done so
because it does not require negotiations to be with a
prosecutor. See United States v. Penta, 898 F.2d 815, 818 (1st
Cir. 1990) (concluding that the amended rule does not embrace
Robertson's two-tiered test because it encompasses situations
that are not true plea negotiations, such as those where the
government agent had "no authority to make a deal"); United
States v. Jasin, 215 F. Supp. 2d 552, 583-84 (E.D. Pa. 2002)
(noting that Robertson was decided under a former version of the
rule and that many courts have since held that statements to law
enforcement are not protected); but see United States v.
Guerrero, 847 F.2d 1363, 1367 (9th Cir. 1988) (applying
Robertson to the amended rule); United States v. Ceballos, 706
F.2d 1198, 1203 (11th Cir. 1983) (same). The text of the
Wisconsin rule, however, plainly requires that a defendant offer
to plead guilty to a prosecutor or the court.

10
 No. 2012AP2513-CR

sentence him and place him in a facility with the care of

"mental doctors" rather than go to trial. Id., ¶13. He wrote,

"I don't want the people involved in my case to have to go to

trial either. I know they are good people and should not have

to suffer for what I've caused to happen, which should not have

come into their lives." Id. Upon considering the totality of

the circumstances, and recognizing that "the only way he could

avoid trial was to enter a plea," the court of appeals held that

the letter was an offer to plead guilty or no contest, and

therefore inadmissible under Wis. Stat. § 904.10. Id., ¶20.

¶22 On the other hand, the Robertson test recognizes that

every confession is not an offer to plead guilty:

The offer by the defendant must, in some way, express
the hope that a concession to reduce the punishment
will come to pass. A silent hope, if uncommunicated,
gives the . . . prosecutor no chance to reject a
confession he did not seek . . . [therefore,] the
accused is required . . . to make manifest his
intention to seek a plea bargain before he takes the
route of self-incrimination.
United States v. Levy, 578 F.2d 896, 901 (2d Cir. 1978).

Similarly, Wis. Stat. § 904.10 will not prevent the admission of

a defendant's confession that was not made as part of plea

negotiations with the district attorney. Nicholson, 187 Wis. 2d

at 698.

D. Parties' Arguments

¶23 The State makes several arguments as to why Wis. Stat.

§ 904.10 does not prohibit the use of Myrick's preliminary
hearing testimony. Its main argument is that Myrick did not

11
 No. 2012AP2513-CR

make an offer of any kind; rather, he accepted the prosecutor's

offer to "allow him to plead guilty" at some point in the

future. Stated otherwise, the State says that the prosecutor

offered "to consider making an offer to allow Myrick to plead to

a reduced charge if Myrick complied with the conditions of the

prosecutor's initial offer." We reject this interpretation of

§ 904.10.

¶24 We begin with the observation that only a defendant

can offer to plead guilty. See Jones v. Barnes, 463 U.S. 745,

751 (1983). Neither counsel, nor the circuit court, and

certainly not the prosecutor, can plead guilty on a defendant's

behalf. Id. It makes sense, then, that Robertson does not

distinguish between a defendant's offer to plead guilty and a

defendant's actions taken in accord with a prosecutor's

suggested terms of a plea bargain. It also explains why the

State does not cite a single case outside of contract law, which

it concedes does not apply, in support of the idea that

statements a defendant makes while assenting to a prosecutor's
proposal are not related to a defendant's own offer to plead

guilty. Put simply, "[p]lea bargaining implies an offer to

plead guilty upon condition." Levy, 578 F.2d at 901.

¶25 Still, the State attempts to transform offering to

plead guilty into something that a prosecutor can do. The State

says that Wis. Stat. § 904.10 does not apply when, as here, a

prosecutor offers to allow the defendant to plead guilty. Not

only does this ignore the basic principle that a defendant can
plead guilty with or without the prosecutor's consent, but it
12
 No. 2012AP2513-CR

would require us to add the words "to allow" to the statute.

Because "[w]e decline to read into the statute words the

legislature did not see fit to write," we cannot accept the

State's interpretation. Dawson v. Town of Jackson, 2011 WI 77,

¶42, 336 Wis. 2d 318, 801 N.W.2d 316.

¶26 Additionally, the State's argument ignores the reality

of plea bargaining and is contrary to the purpose of the

statute. We agree with the following assessment of the office

of the Wisconsin State Public Defender, which filed an amicus

curiae brief in this case:

[P]lea bargaining does not begin in any uniform or
standard way. Some prosecutors make plea offers at
the outset of cases, others do not. Some prosecutors
put their offers in writing, others do not. Sometimes
defense attorneys begin the negotiations by proposing
a plea agreement to the prosecutor. These proposals
may be in writing, or they may not. Sometimes defense
attorneys initiate plea negotiations informally by
email or by asking the prosecutor something like, "is
there room for a deal here?" or "can we work something
out?" It all depends on the individual facts of a
case, the strengths and weaknesses of each side, what
a defendant wants, and the personalities and
strategies of the lawyers involved.

The State's interpretation does not fit in this
diverse world of plea bargaining. The statute's goal
is to encourage free and open negotiations in all
criminal cases. Yet under the State's theory, offers
to plead guilty and related statements would be
encouraged only if a defendant initiated the
negotiations, and discouraged if the State did so.
Prosecutors often make the initial plea offer. So why
should § 904.10 be construed to discourage
negotiations in those cases? What difference does it
make who starts the bargaining? The distinction is
completely arbitrary.
(citation omitted).

13
 No. 2012AP2513-CR

¶27 The State also attempts to define "offer" by reference

to the comparable federal rule. The State claims that by

protecting only offers to the prosecutor to plead guilty, the

drafters of the rule intended to protect a narrower swath of

statements than Fed. R. Evid. 410, which protects "statement[s]

made during plea discussions." Its position, the State says,

preserves this "carefully considered departure[]" from the

federal rule. See John A. Decker, A New Wisconsin Evidence

Code?, 56 Marq. L. Rev. xix, xxi (1973) ("In formulating the

Wisconsin rules, uniformity with the Proposed Federal Rules was

the overriding principle. . . . Changes from the federal rules

were proposed only in instances where legal tradition or

legislative enactment seemed substantially compelling or where

Wisconsin law was more advanced."). Again, we disagree.

¶28 Wisconsin Stat. § 904.10 was enacted in 1974. At that

time, no federal rule on the topic had been enacted. The

proposed federal rule, however, provided as follows:

Evidence of a plea of guilty, later withdrawn, or
a plea of nolo contendere, or of an offer to plead
guilty or nolo contendere to the crime charged or any
other crime, or of statements made in connection with
any of the foregoing pleas or offers, is not
admissible in any civil or criminal proceeding against
the person who made the plea or offer.
Proposed Rules of Evidence, Rule 410, 56 F.R.D. 183, 228-29

(1973).

¶29 Therefore, at the time the Wisconsin rule was enacted,

the proposed federal rule did not contain the language upon
which the State relies. Instead, it contained similar language

14
 No. 2012AP2513-CR

about a defendant's "offer to plead guilty," making the State's

comparison of the Wisconsin rule to the current federal rule

inapposite.

¶30 To be sure, the Wisconsin rule differed from the

proposed federal rule in important ways at that time. Relevant

for our purposes, the Wisconsin rule specified that a

defendant's offer must be to a court or prosecuting attorney.

Wis. Stat. § 904.10, Judicial Council Committee's Note——1974

("is narrowed to apply only to in-court proceedings or offers to

the court to plead guilty").7 The federal rule, by contrast,

originally contained no such limitation, and was interpreted by

some courts to apply to incriminating statements a defendant

made to a person other than the prosecutor. United States v.

Penta, 898 F.2d 815, 818 (1st Cir. 1990) ("The pre-amendment

language could incorrectly be interpreted to make 'an otherwise

voluntary admission to law enforcement officials inadmissible

merely because it was made in the hope of obtaining leniency by

a plea.'" (citation omitted)).8 Therefore, the change in the
federal rule from "offer to plead guilty" language to "plea

discussions with an attorney for the prosecuting authority," had

the effect of making the federal rule more similar to the

7
See also State v. Pischke, 198 Wis. 2d 257, 261-62, 542
N.W.2d 202 (Ct. App. 1995) (letter to a police offer not
protected because it was not an offer to a court or prosecutor).
8
E.g., United States v. Herman, 544 F.2d 791, 799 (5th Cir.
1977) (statement to postal inspector protected under the former
federal rule); United States v. Brooks, 536 F.2d 1137, 1138-39
(6th Cir. 1976) (same).

15
 No. 2012AP2513-CR

Wisconsin rule, which expressly provides that offers must be to

a court or prosecutor. See Fed. R. Evid. 410(a)(4); § 904.10;

Rachlin v. United States, 723 F.2d 1373, 1376 (8th Cir. 1983)

(amendment limited "the rule's application to plea negotiations

between the defendant or his attorney" and a prosecutor). As

such, we cannot conclude that the State's comparison to the

federal rule supports its argument.

¶31 Finally, the State argues that even if Myrick made an

offer, it was not an offer to plead guilty; rather, he offered

to debrief the State and testify. It is certainly true that not

every confession is an offer to plead guilty. For instance, in

Nicholson, the court of appeals held that a prosecutor's promise

to stand silent at sentencing in exchange for a truthful

statement was not a plea negotiation. Nicholson, 187 Wis. 2d at

698.9 However, Wis. Stat. § 904.10 excludes more than just

offers to plead guilty; it says that statements made "in

connection" with those offers are inadmissible as well. As we

explain in the following section, we have no trouble concluding

9
See also United States v. Morgan, 91 F.3d 1193, 1196 (8th
Cir. 1996) (defendant's unconditional cooperation, with no
discussion of a plea, in hopes of "bettering [his] situation
somewhere down the road" was not part of plea negotiations);
United States v. Levy, 578 F.2d 896, 901 (2d Cir. 1978)
(defendant's spontaneous and unsolicited cooperation that placed
no condition on his admissions was not part of plea
negotiations); State v. Crockett, 886 So. 2d 1139, 1148 (La. Ct.
App. 2004) (defendant's statements were not part of plea
negotiations when the prosecutor "stated on the record that no
deals were on the table nor would there ever be for the
foreseeable future").

16
 No. 2012AP2513-CR

that Myrick testified in connection with his offer to plead

guilty.

E. Application

¶32 We conclude Myrick testified at Winston's preliminary

hearing in connection with his offer to plead guilty that the

State had not then accepted. The prosecutor's letter discussed

"settlement short of trial," which the court of appeals has

previously held is an "implicit" way of discussing a plea.

Norwood, 287 Wis. 2d 679, ¶20 (defendant's letter to the court

that said he wanted to avoid trial and receive a sentence was an

offer to plead guilty). The prosecutor's letter said that if

Myrick debriefed the State and provided testimony when asked,

the State "w[ould] amend the charge regarding the murder of

Marquise Harris to one of Felony Murder with an underlying

charge of Armed Robbery" and "recommend a period of 12 to 13

years of initial confinement."

¶33 True to the public defender's description of plea

bargaining, the remainder of negotiations were not perfectly
memorialized in writing. We do know, however, that Myrick began

taking the steps the letter said were necessary to keep the

possibility of a plea agreement on the table by debriefing the

State on the same day the letter was dated. We also know that

when the parties appeared back in court four days later, the

prosecutor informed the circuit court that an agreement had been

reached and that Myrick "was willing to plead guilty to the

charge of felony murder." Finally, we know that after Myrick
testified at Winston's preliminary hearing, the parties
17
 No. 2012AP2513-CR

requested a date for entry of a plea. From these circumstances,

we conclude that Myrick exhibited a subjective expectation to

negotiate a plea, and that Myrick's expectation was objectively

reasonable. As a final matter, we note that an exception the

court of appeals recognized in Nash does not apply.

¶34 In Nash, the defendant testified at the trials of

other defendants as part of a plea bargain. Nash, 123 Wis. 2d

at 158. At the time Nash gave that testimony, "the plea

agreement had been reached" and there "was to be no more

negotiation." Id. at 159-60. A federal district court later

vacated Nash's conviction upon his habeas petition. Id. at 156.

Nash then stood trial and testified in his own defense. Id. at

158. The State used Nash's earlier testimony from the trials of

other defendants for impeachment purposes because his testimony

at his own trial was inconsistent with his testimony at the

other defendants' trials. Id.

¶35 The court of appeals upheld the use of Nash's prior

testimony. It concluded that Wis. Stat. § 904.10 does not
exclude statements a defendant makes after plea negotiations are

finalized. In so doing, the court of appeals adopted the

reasoning of two federal decisions, United States v. Stirling,

571 F.2d 708 (2d Cir. 1978) and United States v. Davis, 617 F.2d

677 (D.C. Cir. 1979). Id. at 159.

¶36 In Stirling, defendant Schulz entered into a written

plea agreement that required him to testify before a grand jury.

Stirling, 617 F.2d at 730. Schulz testified as required, but
after testifying, withdrew from the plea agreement and went to
18
 No. 2012AP2513-CR

trial, where his grand jury testimony was used against him. Id.

The United States Court of Appeals for the Second Circuit

affirmed the use of the testimony. It concluded that there was

no need to exclude Schulz's statements because he made them

"after formalization of a negotiated plea agreement." Id. at

731.

¶37 Davis adopted the reasoning of Stirling. In Davis,

the defendant gave incriminating grand jury testimony "after

formalization of a plea agreement but before the defendant ha[d]

entered his plea." Davis, 617 F.2d at 684. The United States

Court of Appeals for the District of Columbia Circuit held that

the district court properly admitted the statements because the

testimony came after "all negotiations." Id. at 685.10 As with

Stirling, the court reasoned that "[e]xcluding testimony made

after and pursuant to the agreement would not serve the purpose

of encouraging compromise." Id.

¶38 Myrick's testimony does not come within exceptions

recognized in Nash, Stirling, or Davis because negotiations were
ongoing when Myrick testified at Winston's preliminary hearing.

The State's letter to Myrick unequivocally informed Myrick that

the State reserved discretion to refuse to amend the charge or

recommend 12 to 13 years initial confinement. It stated that

"it will be at the discretion of [the] district attorney's

10
See also United States v. Watkins, 85 F.3d 498, 500 (10th
Cir. 1996) ("both the language of, and the policy underlying
[the rule] verify that once a plea agreement is reached,
statements made thereafter are not entitled to the exclusionary
protection of the Rule").

19
 No. 2012AP2513-CR

office as represented by the parties named above as to whether

the above negotiation will be conveyed to you to settle the

above-captioned case short of trial." Additionally, it

characterized Myrick's testimony against Winston as "part of

this negotiation" and said that it would amend the charge and

recommend a reduced sentence "[s]hould we ultimately reach a

negotiation."

¶39 The State never amended the charge, and Myrick never

entered a plea. Nor did the parties formalize an agreement, as

in Stirling and Davis.

¶40 Moreover, Myrick's obligations under the district

attorney's written proposal were not limited to testifying at

Winston's preliminary hearing for the Harris murder. The

proposal required Myrick to "testify truthfully whenever called

upon by the State." This presumably referred to Winston's trial

for the murder of Harris. It also could have referred to the

prosecution of Winston for the murder of Maurice Pulley,

referenced above. There is no indication that Myrick had given
that testimony at the time of his preliminary hearing testimony

against Winston.

¶41 For these reasons, we conclude that there remained an

incentive to protect Myrick's testimony given at the preliminary

hearing.

III. CONCLUSION

¶42 We conclude that Wis. Stat. § 904.10 prohibited the

use of Myrick's preliminary hearing testimony at trial. While
it is true that the prosecutor made the initial overture to
20
 No. 2012AP2513-CR

begin the plea bargaining process, Myrick offered to plead

guilty and testified at the preliminary hearing in connection

with that offer. We reach this conclusion not out of disregard

for the distinction between offer and acceptance, but because

only a defendant can offer to plead guilty. We also note that a

defendant's offer to plead guilty does not need to be express or

explicit; it can be implied from conduct. See Norwood, 287

Wis. 2d 679, ¶¶13, 20; Nicholson, 187 Wis. 2d at 698. In

addition to reflecting the plain language of the statute, our

conclusion is consistent with the statute's purpose, which is to

encourage free and open discussion between prosecutor and

defendant during plea negotiations. See Nash, 123 Wis. 2d at

159. Accordingly, we affirm the decision of the court of

appeals.

By the Court.—The decision of the court of appeals is

affirmed.

21
 No. 2012AP2513-CR.ssa

¶43 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I would

read the Wisconsin rule regarding the admissibility of defendant

statements made in connection with plea bargaining1 the same as

the federal rule2 rather than continue to split hairs over the

distinction between Wisconsin's "offer" rule and the federal

"discussions" rule. In my view, once plea negotiations have

started, all statements made in connection with the negotiations

should be excluded at trial, even if the negotiations break

down.3

¶44 Other states with similar textual discrepancies

between the federal and state rule have adopted the federal

test.4 I espouse a similar approach.

¶45 For the foregoing reasons, I write separately.

1
Wis. Stat. § 904.10.
2
Fed. R. Evid. 410.
3
See United States v. Olson, 450 F.3d 655, 681 (7th Cir.
2006) ("Statements made in the course of plea discussions with a
prosecutor generally are inadmissible under Federal Rule of
Criminal Procedure 11(f) and Federal Rule of Evidence 410.").
4
See, e.g., People v. Tanner, 45 Cal. App. 3d 345, 351-52
(4th Dist. 1975) (construing the evidentiary rule to cover
"admissions made in the course of bona fide plea bargaining
negotiations" despite limited statutory text); State v. Lavoie,
551 A.2d 106, 108 (Me. 1988) ("Whether a statement ought to be
excluded under [Maine Rule of Evidence] 410 depends on whether
the discussion in which the statement was uttered may properly
be characterized as a plea negotiation.") (quoting State v.
Little, 527 A.2d 754, 756 (Me. 1987)).

1
 No. 2012AP2513-CR.mjg

¶46 MICHAEL J. GABLEMAN, J. (dissenting). I agree with

the majority that Myrick made an offer to the State to plead

guilty. However, unlike the majority, I believe that the

exception in State v. Nash, 123 Wis. 2d 154, 366 N.W.2d 146 (Ct.

App. 1985), applies to this case because a final plea agreement

was reached. As a result, Myrick's testimony was properly

introduced at trial.

¶47 The established rule from Nash is that Wis. Stat.

§ 904.10 does not bar testimony given after a plea agreement has

been finalized. The majority maintains that Nash does not apply

in this case because "negotiations were ongoing when Myrick

testified at Winston's preliminary hearing."1 However, the

majority also goes on to observe that "the prosecutor informed

the circuit court that an agreement had been reached"2 over a

month prior to Myrick's testimony at Winston's preliminary

hearing. These two statements cannot be reconciled. Put

simply, the majority cannot have its cake and eat it, too——

either the plea negotiations were ongoing or negotiations were
concluded. The majority errs when it concludes that plea

negotiations were ongoing at the time Myrick gave his testimony

when, in fact, those negotiations had concluded. The State

described its arrangement with Myrick as a "plea agreement" on

numerous occasions. Moreover, a significant portion of Myrick's

brief to this court is devoted to arguing that a plea agreement

1
Majority op., ¶38.
2
Majority op., ¶33.

1
 No. 2012AP2513-CR.mjg

existed. I would therefore hold that Myrick's testimony was

properly admitted pursuant to the long-established rule in Nash.

I. DISCUSSION

¶48 In Nash, the defendant provided testimony against

others pursuant to a plea agreement with the State. 123

Wis. 2d at 149-50, 160. Nash later withdrew from his agreement

and decided to proceed to trial, and his earlier testimony was

admitted against him. Id. at 158. Nash argued that his

testimony was inadmissible under Wis. Stat. § 904.10 because it

was given "in connection with" his guilty plea, but the court of

appeals disagreed, concluding that Wis. Stat. § 904.10 does not

bar testimony provided after a plea agreement has been reached.

Id. at 158-60.

¶49 The court of appeals in Nash based its reasoning in

part on two federal cases, United States v. Stirling, 571 F.2d

708 (2d Cir. 1978), and United States v. Davis, 617 F.2d 677

(D.C. Cir. 1979). In these cases, the defendants entered into

plea agreements that required them to testify before grand
juries, and the defendants withdrew from the agreements after

testifying but before entering guilty pleas. Both Stirling and

Davis concluded that the statements were not barred by Fed. R.

Crim. P. 11(e)(6), which contained identical language to Fed. R.

Evid. 410. See Stirling, 571 F.2d at 730 n.17, 731-32; Davis,

617 F.2d at 682 n.13, 686. The federal courts reasoned that,

notwithstanding the fact that neither defendant had entered a

guilty plea, "exclusion of the grand jury testimony would not
serve the purpose of the rule because the testimony was given

2
 No. 2012AP2513-CR.mjg

after all of the negotiations had been completed and the plea

agreement was formalized." Nash, 123 Wis. 2d at 159.

¶50 In Nash, the court of appeals concluded that the

analysis in Stirling and Davis applies with equal force in

Wisconsin, reasoning that the purpose of Wis. Stat. § 904.10 "is

the same as the purpose of the federal rule——to promote the

disposition of criminal cases by compromise." Id. The court of

appeals explained that when a plea agreement has been reached,

there is "no more negotiation and, therefore, no more reason to

promote negotiation." Id. at 160. This is particularly true

when, like Myrick's testimony, the evidence in question is

testimony delivered under oath, because unlike statements made

in connection with plea negotiations, testimony given under oath

is presumed truthful. Id. We offer protection to defendants

during plea negotiations to incentivize truthfulness, but such

protection is unnecessary when the defendant voluntarily agrees

to testify under oath.

¶51 Like the defendants in Stirling, Davis, and Nash,
Myrick entered into a plea agreement that required him to

testify against another. Myrick later breached this agreement

and decided to go to trial, and like these other defendants, his

prior testimony was admitted against him. The purpose of Wis.

Stat. § 904.10 is not served by excluding Myrick's testimony,

because he had already formalized an agreement with the State

and agreed to plead guilty. Likewise, there was no need to

encourage Myrick to testify truthfully, because he had already

3
 No. 2012AP2513-CR.mjg

agreed to provide truthful testimony as part of his plea

agreement,3 and his testimony was delivered under oath.

¶52 The majority relies on the terms of the State's

proffer letter to argue that Myrick had not reached a formalized

plea agreement with the State when he testified at Winston's

preliminary hearing.4 To address this argument, we must look to

the terms of the State's proffer letter and the circumstances

surrounding Myrick's testimony at Winston's preliminary hearing.

¶53 On July 2, 2010, four days before Myrick's case was

scheduled for trial, the State sent Myrick a proffer letter with

"an offer of resolution." The letter explained that the State

sought "debriefing and testimony in any case involving criminal

conduct of Justin Winston." The letter proposed an agreement in

which Myrick testified against Winston "in exchange for" the

State's recommendation of a reduced sentence. According to the

terms of the letter, the State would remain free to pursue "any

or all investigative leads derived" from the debriefing, and

after the debriefing was concluded, "it will be at the
discretion of said district attorney's office . . . as to

whether the above negotiation will be conveyed to you to settle

the above-captioned case short of trial." The letter also

described Myrick's testimony against Winston as something that

3
The State's proffer letter to Myrick explained that if
Myrick debriefed the State and the State then decided to enter
into a plea agreement with Myrick, the State would recommend a
reduced sentence "in exchange for" Myrick's "truthful testimony"
against Winston.
4
See majority op., ¶38.

4
 No. 2012AP2513-CR.mjg

would occur "should we ultimately reach a negotiation in this

case."

¶54 Myrick provided the State's requested debriefing on

the same day the State sent its proffer letter. On July 6,

2010, the morning opening arguments were scheduled to begin in

Myrick's trial, the State informed the circuit court that a

"resolution had been reached" between the parties. In response,

the circuit court discharged the jury and scheduled the case for

a status hearing.

¶55 On August 13, 2010, Myrick testified against Winston

at Winston's preliminary hearing. Shortly thereafter, on

September 9, 2010, and February 24, 2011, the parties appeared

for status hearings before the circuit court and requested that

the case be set over pending Myrick's testimony at Winston's

trial. The parties then informed the circuit court on May 23,

2011, that they wished to schedule a date for entry of a plea

after Winston's trial had concluded. At the plea hearing two

months later, the parties told the circuit court that Myrick had
refused to testify in Winston's trial and, as a result, Myrick

would not be entering a plea and the parties would proceed to

trial.

¶56 The facts in this case clearly demonstrate that Myrick

had entered into a formalized plea agreement with the State that

required his testimony in Winston's trial. I agree with the

majority that there was no formal plea agreement when the State

wrote its letter; rather, the letter simply explained that the
State wished to debrief Myrick and, based on the information he

5
 No. 2012AP2513-CR.mjg

provided, it may choose to enter a plea agreement with him in

which he would testify against Winston "in exchange for" a

reduced sentence. This comports with common sense, as the State

would have no incentive to offer an agreement to Myrick until it

ascertained what Myrick knew and would be willing to testify to

under oath. Therefore, the State indicated in the letter that

"[a]fter the substance of the proffer/debriefing is conveyed to

the Milwaukee County District Attorney's Office . . . it will be

at the discretion of said district attorney's office . . . as to

whether the above negotiation will be conveyed to you to settle

the above-captioned case short of trial." The majority confuses

the negotiation process——which continued through Myrick's

debriefing——with the terms of Myrick's finalized plea agreement,

which included his testimony at Winston's preliminary hearing in

exchange for a reduced sentence.

¶57 In other words, the letter recited the terms of a

possible future plea agreement. Myrick would testify for the

State "should we ultimately reach a negotiation." (Emphasis
added). There is a difference between the process of

negotiation, which may or may not result in an agreement, and

reaching a negotiation, which is an agreement by another name.

Because the State ultimately "reach[ed] a negotiation" with

Myrick, Myrick in turn testified for the State.

¶58 Although there was no further written correspondence

between the State and Myrick, it is obvious that the State

ultimately opted to enter into a formalized plea agreement with
Myrick after his debriefing, because pursuant to the terms of

6
 No. 2012AP2513-CR.mjg

the proffer letter, Myrick later testified against Winston, and

the parties scheduled a date for entry of a plea. If there had

been no plea agreement, the parties would not have scheduled a

plea hearing, and Myrick would not have testified for the State.

As Myrick's brief to this court makes clear, even he agrees that

a plea agreement had been reached:

Why would Myrick, in the middle of a first degree
intentional homicide case and after exercising his
right to remain silent for over one year, make
incriminating statements in open court, unless he had
the benefit and security of a "plea agreement?"
A review of the record shows that the existence of a plea

agreement was never in doubt. For example, when the parties

argued before the circuit court as to whether Myrick's testimony

should be admitted, Myrick's counsel explained, "the only reason

[Myrick testified] was because of the agreement he made pursuant

to the proffer letter . . . ." Likewise, if the parties had not

reached an agreement, the State would not have informed the

circuit court on the morning of trial, after a jury had already

been selected, that "a resolution had been reached" between the

parties. Absent a plea agreement, the parties would have had no

apparent reason to delay scheduling a trial through two

subsequent status hearings and then specifically request a plea

hearing on a date following Winston's trial. Nor is it likely

that the circuit court would have discharged the jury and

scheduled a status hearing or agreed to schedule a plea hearing

without a finalized plea agreement.

¶59 The State also referred to the plea agreement between
the parties in describing what testimony it wished to read to

7
 No. 2012AP2513-CR.mjg

the jury: "Where I am gonna end is [line] 25, because then it

goes into the plea agreement and what the plea agreement was,

and that he had a plea agreement to testify." The circuit court

responded, "No, we're not getting into any plea agreement." The

State also asked Myrick's counsel if he wanted the jury to hear

that "[w]e would recommend 12 to 13 years and he was willing to

plead guilty to the charge of felony murder?" Myrick's counsel

replied, "I -- excise the portion about the plea deal, fine."

Later, the State claimed, "The jury will know the reason he is

giving testimony is pursuant to a proffer where he has a –

agreed to plead guilty to felony murder and do 13 years in

prison." In sum, upon review of the record and the parties'

briefs to this court, there is no question that Myrick's

testimony at the preliminary hearing was given pursuant to the

terms of a finalized plea agreement with the State.

¶60 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.5 This

position raises the obvious question: at what point, under the

majority's reasoning, would the parties' negotiations have

transformed into a plea agreement? The majority provides no

clear guidelines to indicate when the exception in Nash would

apply. Although the majority notes that "the State never

amended the charge, and Myrick never entered a plea,"6 this

5
See majority op. ¶¶32, 38.
6
Majority op. ¶39.

8
 No. 2012AP2513-CR.mjg

clearly cannot be the baseline for when a plea agreement has

been reached, because in both Stirling and Davis——the federal

cases relied upon in Nash——the defendants never entered a guilty

plea but still testified in accordance with a plea agreement.

It cannot be reasonably argued that a plea agreement exists only

once a defendant has formally entered a guilty plea. Entry of a

guilty plea is a condition of a plea agreement, but the

agreement must exist prior to the actual plea——otherwise, how

would the defendant know whether to plead? The majority is left

concluding that there was no plea agreement, without ever

indicating how to determine whether a plea agreement exists. In

this case, the State expressly referred to a plea agreement,

Myrick maintains there was a plea agreement, and the circuit

court believed there was a plea agreement. If this is not

enough to conclude there was an agreement, it is difficult to

fathom what is.

¶61 I also note that the majority's rationale may have

far-reaching practical implications for future cases. No great
imaginative leap is required to envision a scenario where the

State elicits testimony from a defendant pursuant to a proffer

letter like Myrick's, only to later claim that the parties never

reached an agreement and refuse to fulfill its end of the

bargain. If the majority is correct that no plea agreement

existed between the parties, nothing would have prevented the

State from refusing to recommend a reduced sentence even if

Myrick had testified at Winston's trial. This preposterous
result is the natural extension of the majority's reasoning, but

9
 No. 2012AP2513-CR.mjg

its unfairness is self-evident. Although this cannot possibly

be the law, the majority opinion does not merely invite such a

conclusion; the majority opinion would, in fact, require it.7

¶62 The established rule from Nash is that testimony

provided pursuant to the terms of a plea agreement is not barred

by Wis. Stat. § 904.10. The facts in this case——from the

State's proffer letter and the parties' statements to the

circuit court, to the circuit court's own comments and its

decision to discharge the jury and later schedule a plea

hearing——all unequivocally indicate that Myrick's testimony was

delivered as part of a finalized plea agreement with the State

and was admissible under Nash. For this reason, I respectfully

dissent from the majority opinion.

¶63 I am authorized to state that Justices DAVID T.

PROSSER and ANNETTE KINGSLAND ZIEGLER join this dissent.

7
Moreover, even if the majority is correct in its assertion
that Myrick's testimony should not have been admitted during the
State's case-in-chief, it is not at all clear that the testimony
will be inadmissible in Myrick's new trial following this
decision. The State's proffer letter clearly stated, "nothing
shall prevent the State . . . from using the substance of the
proffer/debriefing at sentencing, or for any purpose at trial
for impeachment or in rebuttal to testimony of your
client . . . ."

10
 No. 2012AP2513-CR.mjg

1