Evidence — statements in connection with plea

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Wisconsin Supreme Court

Criminal

Evidence — statements in connection with plea

Where the defendant made incriminating statements at a preliminary hearing in connection with an offer to plead guilty, the statements are inadmissible against him.

“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 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.”

Affirmed.

2012AP2513-CR State v. Myrick

Roggensack, J.

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