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  • WisBar News
    September 05, 2013

    Preliminary Exam Testimony Not Allowed, Murder Conviction Reversed

    Sept. 5, 2013 – A state appeals court has reversed defendant Raphfeal Myrick’s murder conviction because the state used Myrick’s preliminary examination testimony against a co-defendant in its case-in-chief against Myrick, a violation of evidence rules.

    Myrick was cooperating with the state when he testified, in a preliminary examination, against a co-defendant also accused of killing two victims. But Myrick stopped cooperating, and the state used that testimony to convict Myrick of first-degree murder.

    In State v. Myrick, 2012AP2513 (Sept. 4, 2013), a three-judge panel for the District I Court of Appeals reversed Myrick’s conviction for first-degree intentional homicide because Wisconsin law prohibited the state from using Myrick’s testimony.

    Wis. section 904.10, in relevant part, determines that evidence of “an offer to the court or prosecuting attorney to plead guilty or no contest,” later withdrawn, “is not admissible in any civil or criminal proceeding against the person who made the plea or offer.”

    Further, “evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible.”

    Facing murder charges, Myrick was seeking a reduction of his charges and a lighter sentence, which the state was prepared to offer in exchange for his cooperation. The state wanted Myrick’s testimony against another accused killer, Justin Winston.

    Thus, in a preliminary hearing against Winston, Myrick said he shot at Harris but missed. He also testified that Winston ultimately killed a victim with an AK47. After this hearing though, Myrick stopped cooperating with the state in Winston’s case.

    Thus, the state proceeded against Myrick with a first-degree intentional homicide charge. The trial court allowed the prosecutor to read to the jury Myrick’s preliminary examination testimony, noting that Myrick “had a plea agreement to testify.”

    Myrick was ultimately convicted, but appealed the conviction on the grounds that his preliminary examination testimony was inadmissible in the case against him.

    Analyzing five different cases involving section 904.10, the appeals panel agreed with Myrick that his preliminary examination testimony was out-of-bounds.

    “Myrick’s preliminary-examination testimony … was ‘in connection’ with the plea bargaining process, and was, therefore, protected by Wis. Stat. Rule 904.10,” wrote Judge Ralph Adam Fine, distinguishing the 1985 case of State v. Nash.

    In Nash, the defendant Nash pleaded guilty to murder, but the guilty plea was withdrawn after a federal court vacated the conviction. Under the plea agreement, Nash had testified in other trials against other defendants. But now the state was free to try him.

    The state used Nash’s prior testimony to impeach him.

    Nash does not apply here because, unlike the situation in Nash, Myrick’s plea bargaining relationship with the State was ongoing and still in flux when he testified at Winston’s preliminary examination,” Judge Fine explained.

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