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Evidence — defendant’s testimony in other proceedings

By: WISCONSIN LAW JOURNAL STAFF//September 4, 2013//

Evidence — defendant’s testimony in other proceedings

By: WISCONSIN LAW JOURNAL STAFF//September 4, 2013//

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Wisconsin Court of Appeals

Criminal

Evidence — defendant’s testimony in other proceedings

It was error to admit the testimony of the defendant that he made against a co-conspirator as part of a later abandoned plea agreement.

“Although Myrick’s refusal to continue to cooperate with the State following his preliminary-examination testimony permitted the State to not make either the proposed reduction in the charge or the proposed sentencing recommendation, it did not make admissible that preliminary-examination testimony because, as we have seen, the plea-bargaining process was still ongoing. The State was not yet bound to give Myrick the charge or sentencing concessions. Indeed, Myrick gave the preliminary-examination testimony at a time when the parties could still have dickered over the sentencing recommendation and even the proposed charge concession because all of that would have depended on Myrick’s value to the State’s pursuit of Winston.  The trial court thus erred in allowing the State to use Myrick’s preliminary-examination testimony in its case-in-chief; as Norwood, 2005 WI App 218, ¶21, 287 Wis. 2d at 694, 706 N.W.2d at 691, indicates, WIS. STAT. RULE 904.10 trumps other evidence rules if they conflict.”

Reversed.

Recommended for publication in the official reports.

2012AP2513-CR State v. Myrick

Dist. I, Milwaukee County, Dallet, J., Fine, J.

Attorneys: For Appellant: Zaleski, Steven, Madison; For Respondent: Balistreri, Thomas J., Madison; Loebel, Karen A., Milwaukee

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