                                                                       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
