2017 WI 69
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1623-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Raymond L. Nieves,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 370 Wis. 2d 260, 881 N.W. 2d 358
(2016 – Unpublished)
OPINION FILED: June 29, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 19, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Richard J. Sankovitz and Jeffrey A. Wagner
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Misha Tseytlin, solicitor general, with whom on the
briefs were Brad D. Schimel, attorney general, and Daniel P.
Lennington, deputy solicitor general, and an oral argument by
Daniel P. Lennington.
For the defendant-appellant, there was a brief filed by
John J. Grau and Grau Law Office, Waukesha, and an oral argument
by John J. Grau.
2017 WI 69
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1623-CR
(L.C. No. 2010CF5111)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. JUN 29, 2017
Raymond L. Nieves, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. The decision
of the court of appeals is reversed and cause remanded to the
court of appeals.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review a decision
of the court of appeals1 vacating the judgment of conviction of
Raymond Nieves (Nieves) and remanding for a new trial. Nieves
was convicted of first-degree intentional homicide, as a party
to the crime and with the use of a dangerous weapon2 and
1
State v. Nieves, No. 2014AP1623-CR, unpublished slip op.
(Wis. Ct. App. Apr. 5, 2016).
2
See Wis. Stat. § 940.01(1)(a) (2009-10); § 939.50(3)(a);
(continued)
No. 2014AP1623-CR
attempted first-degree intentional homicide, as a party to the
crime and with the use of a dangerous weapon.3 Nieves' argument
on appeal is two-fold. First, Nieves argues the circuit court
erred when it denied his pretrial motion to sever his trial from
the trial of his co-defendant, Johnny Maldonado (Maldonado).
Nieves contends the circuit court's failure to sever the trials
and the subsequent admission of Maldonado's inculpatory
statements violated his rights under Bruton v. United States,
391 U.S. 123 (1968) and Wis. Stat. § 971.12(3) (2009-10).4
Second, Nieves contends that the circuit court erred in
admitting the statement of "Boogie Man" because it was
inadmissible hearsay.
¶2 We conclude that Crawford v. Washington, 541 U.S. 36
(2004) and its progeny limited the application of the Bruton
doctrine to instances in which a co-defendant's statements are
testimonial. Therefore, Bruton is not violated by the admission
of a non-testifying co-defendant's statements that are
nontestimonial. In the present case, Maldonado's statements
were nontestimonial, and therefore Nieves' confrontation rights
were not violated. Accordingly, the circuit court did not err
in denying Nieves' motion to sever the trials.
§ 939.05; and § 939.63(1)(b).
3
See Wis. Stat. § 940.01(1)(a) (2009-10); § 939.50(3)(a);
§ 939.32; § 939.05; and § 939.63(1)(b).
4
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
No. 2014AP1623-CR
¶3 Moreover, even if Wis. Stat. § 971.12(3) had been
violated, we conclude that any error was harmless. Likewise,
the admission of the hearsay statement of "Boogie Man" during
David's5 testimony was also harmless. Each alleged error was
inconsequential when viewed in light of the subsequent testimony
of David, the surviving victim.
¶4 Accordingly, we reverse the decision of the court of
appeals, reinstate Nieves' judgment of conviction, and remand to
the court of appeals for consideration of Nieves' ineffective
assistance of counsel claim.6
I. BACKGROUND
¶5 On October 9, 2010, the State filed a criminal
complaint charging Nieves and Maldonado with first-degree
intentional homicide, as a party to the crime and with the use
of a dangerous weapon, and attempted first-degree intentional
homicide, as a party to the crime and with the use of a
dangerous weapon. The complaint alleged that Nieves and
Maldonado were involved in a shooting that resulted in the death
of Spencer Buckle (Buckle) as well as injuries to David.
¶6 The State sought to try Nieves and Maldonado jointly.
Nieves filed a motion to sever the trials. The State planned to
present the testimony of Ramon Trinidad (Trinidad), a fellow
5
David is a pseudonym for the surviving victim. See Wis.
Stat. § 809.19(1)(g).
6
Nieves' ineffective assistance of counsel claim was raised
but not addressed by the court of appeals.
3
No. 2014AP1623-CR
inmate of both Nieves and Maldonado at the Milwaukee County
Criminal Justice Facility. The crux of Trinidad's testimony was
statements made to him by Maldonado that inculpated Maldonado
and, arguably, Nieves. This testimony, Nieves maintained, would
violate his rights under Bruton. However, the State represented
to the court that it could present the testimony in such a way
that Trinidad's testimony would inculpate only Maldonado, not
Nieves. Accordingly, the circuit court denied Nieves' motion to
sever the joint trial.
¶7 At trial, the State presented a number of witnesses
that testified to Nieves' involvement in the homicide and
attempted homicide. One of these witnesses was the surviving
victim, David.
¶8 David provided an extensive account of the crimes for
which Nieves was charged. Specifically, David testified to the
following. Nieves, Maldonado, Buckle, and an individual
nicknamed "Fat Boy" were involved in a shooting in Waukegan,
Illinois. Each of these men was a member of the Maniac Latin
Disciples gang, and the shooting was retaliatory and against a
different gang, the Latin Kings. Following the shooting in
Waukegan, Nieves, Maldonado, Buckle, and David dropped off "Fat
Boy" and then fled to Nieves' house in Kenosha, Wisconsin. It
was during this time that "Boogie Man" visited the home at which
they were staying. "Boogie Man" told David that Nieves and
4
No. 2014AP1623-CR
Maldonado were planning to kill him.7 While at Nieves' home in
Kenosha, Nieves did not allow David to communicate with anyone.
¶9 David testified that Nieves and Maldonado took him and
Buckle to an alley under the guise of moving to a new home in
which they could hide. The four men exited the car when they
arrived at the new hiding place and began to walk into an alley.
It was then that David testified he heard a gunshot and saw a
light flash. He saw Buckle fall to the ground. David heard
more gun shots and saw more flashes and threw himself to the
ground in an effort to play dead. From his position on the
ground, David testified that he saw the tennis shoes Maldonado
had been wearing move directly in front of him. David then
heard additional gunshots and felt a bullet pass through the
hood of his sweatshirt. The gunshots narrowly missed his head,
but one of his hands was grazed. Before David heard the
gunshots, he had not seen any one else in the alley.
¶10 Trinidad, the jailhouse informant, also testified at
the trial.8 Specifically, he testified to conversations he had
with both Nieves and Maldonado while they were in jail. With
respect to Nieves, Trinidad's testimony was brief. Trinidad
7
Defense counsel objected to this testimony and argued it
was inadmissible hearsay. The objection was overruled. This
portion of David's testimony is provided more fully later in our
opinion.
8
Trinidad testified he received leniency in his own case in
exchange for his testimony. However, this exchange occurred
after Trinidad brought the statements to law enforcement's
attention.
5
No. 2014AP1623-CR
testified that Nieves, in reference to David, had indicated
"[h]e got his guy."
¶11 However, the information conveyed to Trinidad by
Maldonado was much more extensive.9 Trinidad testified that
Maldonado indicated he had killed Buckle and tried to kill David
in order to ensure that they did not speak to police regarding
the homicide in Waukegan.10 At trial, Trinidad relayed several
details of the crime, including where Nieves, Maldonado, and the
others were staying before the homicide. Finally, Trinidad
testified that Maldonado told him: "They brought them to a dark
alley, if I'm not mistaken, and laid them on the ground. And
then when he shot, he shot through the hoody. He thought he
killed the victim, but it turned out to be that he played dead
on him."
¶12 The jury found Nieves guilty on both counts for which
he was charged. Nieves filed a postconviction motion and
argued, in relevant part, that the circuit court erred in
denying his motion to sever his trial from Maldonado's trial
pursuant to Bruton, and that the circuit court erred in
admitting the hearsay testimony of "Boogie Man." On June 24,
9
If other prisoners were around, Maldonado spoke to
Trinidad in Spanish to prevent them from understanding their
conversations.
10
When testifying as to what Maldonado had told him,
Trinidad used the term "they" instead of referring to Nieves
directly.
6
No. 2014AP1623-CR
2014, the circuit court entered an order denying Nieves'
postconviction motion.
¶13 Nieves appealed the judgment of conviction as well as
the circuit court's denial of his postconviction motion. The
court of appeals reversed, and in doing so, vacated Nieves'
judgment of conviction. The court of appeals concluded that the
circuit court erred in failing to sever Nieves' trial from that
of Maldonado, thereby leading to a violation of Nieves' rights
under Wis. Stat. § 971.12(3) and Bruton.11
¶14 We granted the State's petition for review, in part,
to address the applicability of the Bruton doctrine to
nontestimonial statements in light of the Supreme Court's
decision in Crawford. We now reverse the decision of the court
of appeals.
II. DISCUSSION
A. Standard of Review
¶15 We must determine whether Nieves' Confrontation Clause
rights were violated by the circuit court's failure to sever
Nieves' trial from that of Maldonado. The decision on whether
to sever a trial of two defendants is a discretionary matter for
the circuit court. State v. Shears, 68 Wis. 2d 217, 234, 229
N.W.2d 103 (1975). However, whether a defendant's Sixth
11
The court of appeals did not address the impact of the
Supreme Court's decision in Crawford v. Washington, 541 U.S. 36
(2004) on the Bruton doctrine as the State had not argued it.
The State first raised the issue in a motion for reconsideration
following the court of appeals' decision.
7
No. 2014AP1623-CR
Amendment Confrontation Clause rights were violated by the
admission of evidence at a joint trial "is a question of
constitutional law subject to independent review." State v.
Mattox, 2017 WI 9, ¶19, 373 Wis. 2d 122, 890 N.W.2d 256 (citing
State v. Williams, 2002 WI 58, ¶7, 253 Wis. 2d 99, 644 N.W.2d
919). "We generally apply United States Supreme Court
precedents when interpreting" the Sixth Amendment and the
analogous Article 1, Section 7 of the Wisconsin Constitution.
State v. Jensen, 2007 WI 26, ¶13, 299 Wis. 2d 267, 727 N.W.2d
518 (2007).
¶16 Moreover, we must also determine if the circuit court
erred in admitting the statements of Ramon Trinidad or "Boogie
Man." "We review a circuit court's decision to admit or exclude
evidence under an erroneous exercise of discretion standard."
Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629
N.W.2d 698 (citing Morden v. Continental AG, 2000 WI 51, ¶81,
235 Wis. 2d 325, 611 N.W.2d 659).
¶17 "An erroneous exercise of discretion in admitting or
excluding evidence does not necessarily lead to a new trial.
[We] must conduct a harmless error analysis to determine whether
the error 'affected the substantial rights of the party.' If
the error did not affect the substantial rights of the party,
the error is considered harmless." Id., ¶30; see also Wis.
Stat. § 805.10. "An error affects the substantial rights of a
party if there is a reasonable probability of a different
8
No. 2014AP1623-CR
outcome." State v. Kleser, 2010 WI 88, ¶94, 328 Wis. 2d 42, 786
N.W.2d 144.
B. The Bruton Doctrine
¶18 "Both the Sixth Amendment to the United States
Constitution and the Wisconsin Constitution guarantee a criminal
defendant the right to confront witnesses who testify against
the defendant at trial." State v. Mattox, 373 Wis. 2d 122, ¶20;
see also U.S. Const. amend. VI; Wis. Const. art. 1, § 7.
¶19 In contrast, "[t]he privilege, or right, to remain
silent afforded by the Fifth Amendment comes into play when a
defendant is compelled to give testimony that is incriminating."
State v. Sahs, 2013 WI 51, ¶97, 347 Wis. 2d 641, 832 N.W.2d 80
(Roggensack, J., concurring) (citing Minnesota v. Murphy, 465
U.S. 420, 426 (1984)).
¶20 The right of confrontation and the right against self-
incrimination do not always co-exist gracefully. A defendant
tried jointly with a co-defendant has a Sixth Amendment right to
confront a testimonial, out-of-court statement of a co-defendant
who, in turn, has a Fifth Amendment right not to testify. It is
this tension that the Supreme Court sought to address in Bruton
v. United States, 391 U.S. 123 (1968). See State v. Avery, 215
Wis. 2d 45, 51, 571 N.W.2d 907 (Ct. App. 1997) ("The Court [in
Bruton] explained that although the defendant would have the
Sixth Amendment right to cross-examine the codefendant, the
exercise of that right would be impossible at a joint trial
because the codefendant could not be compelled to testify.").
9
No. 2014AP1623-CR
¶21 In Bruton, the defendant, Bruton, and his co-
defendant, Evans, were tried jointly for armed postal robbery.
Bruton, 391 U.S. at 124. Evans confessed to a postal inspector
that Evans and Bruton had committed the crime for which they
were charged. Id. "The postal inspector obtained the oral
confession, and another in which Evans admitted he had an
accomplice whom he would not name, in the course of two
interrogations of Evans at the city jail in St. Louis, Missouri,
where Evans was held in custody on state criminal charges." Id.
¶22 At trial, Evans' confession was introduced. Id.
However, Evans exercised his right not to testify at the trial.
Id. The trial court instructed the jury that Evans' confession
could be considered evidence only against Evans; the jury was
not to consider the confession as evidence against Bruton. Id.
at 124-25. The trial court reasoned that the limiting
instruction sufficiently protected Bruton's rights under the
Confrontation Clause.
¶23 The Supreme Court rejected the trial court's
supposition that a limiting instruction sufficiently alleviated
any constitutional problem that resulted from admitting Evans'
confession. Id. at 137. The Court said that an out-of-court
statement made by a co-defendant that inculpates a defendant
cannot be introduced at trial when the co-defendant does not
take the stand. Id. at 126; see also Richardson v. Marsh, 481
U.S. 200, 206 (1987) (reasoning "where two defendants are tried
jointly, the pretrial confession of one cannot be admitted
10
No. 2014AP1623-CR
against the other unless the confessing defendant takes the
stand"). The introduction of such statements, the Court held,
violates the defendant's rights under the Confrontation Clause.12
Id. (holding, the "admission of Evans' confession in this joint
trial violated petitioner's right of cross-examination secured
by the Confrontation Clause of the Sixth Amendment."); see also
id. at 137 ("Despite the concededly clear instructions to the
jury to disregard Evans' inadmissible hearsay evidence
inculpating petitioner, in the context of a joint trial we
cannot accept limiting instructions as an adequate substitute
for petitioner's constitutional right of cross-examination.").
¶24 The court of appeals in the present case concluded
that the introduction of Maldonado's statements inculpating
Nieves presented a paradigmatic Confrontation Clause violation
under the Bruton doctrine. However, since Bruton was decided,
the Supreme Court has manifestly changed the framework under
12
The Supreme Court has since limited the Bruton doctrine
in certain ways. For example, in Richardson v. Marsh, the Court
concluded that a redacted confession that did not reference a
co-defendant fell outside the scope of the Confrontation Clause.
481 U.S. 200, 210 (1987); see also Gray v. Maryland, 523 U.S.
185, 195 (1998) ("We concede that Richardson placed outside the
scope of Bruton's rule those statements that incriminate
inferentially.").
In the present case, the State argues that Trinidad's
testimony, on its face, does not directly inculpate Nieves.
Therefore, the State contends, the testimony falls outside the
scope of Bruton. Because we conclude that a Bruton violation
must involve a testimonial statement, and, as we explain below,
the statement at issue in this case was nontestimonial, we need
not address this issue.
11
No. 2014AP1623-CR
which we analyze the Confrontation Clause, which limits the
application of the Clause to testimonial statements.
C. Crawford and Its Progeny
¶25 The Supreme Court's Confrontation Clause jurisprudence
at the time Bruton was decided bears little resemblance to the
Supreme Court's contemporary Confrontation Clause jurisprudence.
When Bruton was decided, the Supreme Court evaluated the
Confrontation Clause under the analytical framework set forth in
Ohio v. Roberts, 448 U.S. 56 (1980). The touchstone of the
Confrontation Clause under Roberts was the nebulous notion of
"reliability." See Crawford, 541 U.S. at 63 ("Reliability is an
amorphous, if not entirely subjective, concept."). Under
Roberts, "an unavailable witness's out-of-court statement
[could] be admitted so long as it has adequate indicia of
reliability——i.e., falls within a 'firmly rooted hearsay
exception' or bears 'particularized guarantees of
trustworthiness.'" Id. at 42 (quoting Roberts, 448 U.S. at 66).
¶26 However, in Crawford v. Washington, the Supreme Court
repudiated Roberts and fundamentally altered the way in which
courts analyze the Confrontation Clause. See Ohio v. Clark, 135
S. Ct. 2173, 2184 (2015) (Scalia, J., concurring) (referring to
Crawford as a "categorical overruling" and a "thorough
repudiation" of the Ohio v. Roberts line of Confrontation Clause
cases). The Supreme Court reasoned that "[l]eaving the
regulation of out-of-court statements to the law of evidence
would render the Confrontation Clause powerless to prevent even
12
No. 2014AP1623-CR
the most flagrant inquisitorial practices." Crawford, 541 U.S.
at 51. Therefore, the Court in Crawford rejected the basic
tenet of Roberts; reliability cannot be, and is not, the
touchstone of the Confrontation Clause. In so doing, the Court
re-focused its analysis of the Confrontation Clause on the text
of the Sixth Amendment.
¶27 "The Sixth Amendment's Confrontation Clause provides
that, '[i]n all criminal prosecutions, the accused shall enjoy
the right ... to be confronted with the witnesses against him.'"
Id. at 42. The Clause "applies to 'witnesses' against the
accused——in other words, those who 'bear testimony.'" Id. at 51
(quoting 2 N. Webster, An American Dictionary of the English
Language (1828)). As such, the Court reasoned, "[t]he
constitutional text, like the history underlying the common-law
right of confrontation, thus reflects an especially acute
concern with a specific type of out-of-court statement." Id.
¶28 Accordingly, the Court in Crawford "held a defendant's
right to confrontation is violated if the trial court receives
into evidence out-of-court statements by someone who does not
testify at the trial if those statements are 'testimonial' and
the defendant has not had 'a prior opportunity' to cross-examine
the out-of-court declarant." Mattox, 2017 WI 9, ¶24; see also
Crawford, 541 U.S. at 68 ("Where testimonial evidence is at
issue, however, the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-
examination.").
13
No. 2014AP1623-CR
¶29 The Court in Crawford did not directly address the
application of the Confrontation Clause to nontestimonial
statements. However, subsequent Supreme Court cases have seized
on what Crawford insinuated; the Confrontation Clause applies
only to testimonial statements. See Davis v. Washington, 547
U.S. 813, 823 (2006). It follows that the Confrontation Clause
does not apply to nontestimonial statements. Id.; see also
Michigan v. Bryant, 562 U.S. 344, 359 (2011) (reasoning "the
admissibility of a [non-testimonial] statement is the concern of
state and federal rules of evidence, not the Confrontation
Clause"); Whorton v. Bockting, 549 U.S. 406, 420 (2007) ("Under
Crawford, on the other hand, the Confrontation Clause has no
application to [non-testimonial] statements . . . .").
¶30 Consequently, as a threshold matter, a defendant
cannot show that his or her rights under the Confrontation
Clause were violated before first showing that the allegedly
impermissible statements were testimonial.
D. Reconciling Bruton and Crawford
¶31 Indisputably, Crawford engendered a seismic shift in
how courts analyze the Confrontation Clause. However, we must
determine whether, as a result of this doctrinal shift, the
Bruton doctrine was limited to cases in which a non-testifying
co-defendant's statement was testimonial.
¶32 Both Bruton and Crawford are, fundamentally,
Confrontation Clause cases. Crawford and its progeny illuminate
the scope of the Confrontation Clause, whereas Bruton
14
No. 2014AP1623-CR
illustrates a specific type of Confrontation Clause violation.
"[B]ecause Bruton is no more than a by-product of the
Confrontation Clause, the Court's holdings in Davis and Crawford
likewise limit Bruton to testimonial statements." U.S. v.
Berrios, 676 F.3d 118, 128 (3d Cir. 2012). And, as a result,
"we are obliged to 'view Bruton through the lens of Crawford'
and, in doing so, we consider 'whether the challenged statement
is testimonial.'" United States v. Clark, 717 F.3d 790, 816
(10th Cir. 2013) (quoting United States v. Figueroa-Cartagena,
612 F.3d 69, 85 (1st Cir. 2010)).
¶33 We are not the first state to conclude that Crawford
limited the application of the Bruton doctrine to testimonial
statements. For example, a majority of the justices of the
Supreme Court of Washington13 reached the same conclusion in
State v. Wilcoxon, 373 P.3d 224 (Wash. 2016). The court
reasoned that, after Crawford, "the scope of the confrontation
right encompasses only testimonial statements. Its protections
13
The decision we cite was that of a plurality of the
court. However, the concurring justice agreed with the
plurality as to the issues relevant to our decision. See State
v. Wilcoxon, 373 P.3d 224, 231 (Wash. 2016) (Gonzalez, J.,
concurring) ("I agree with the lead opinion that Bruton and the
confrontation clause did not apply to the out-of-court
statements at issue before us. A threshold question in
determining when the confrontation clause applies is whether the
out-of-court statement was procured by the government. We
should treat statements that were not procured by the government
as presumptively nontestimonial. Thus, their admissibility
should be governed by the rules of evidence, not the
confrontation clause.").
15
No. 2014AP1623-CR
simply do not apply to nontestimonial statements, whether in the
context of a single defendant like in Crawford or codefendants
like in Bruton." Id. at 229. Accordingly, the court held "that
when an out-of-court statement made by a nontestifying
codefendant is nontestimonial, Bruton is inapplicable because
such statements are outside the scope of the confrontation
clause." Id.; see also Burnside v. State, 352 P.3d 627, 643
(Nev. 2015) (reasoning, "if the challenged out-of-court
statement by a nontestifying codefendant is not testimonial,
then Bruton has no application because the Confrontation Clause
has no application."); Thomas v. United States, 978 A.2d 1211,
1224–25 (D.C. 2009) (same); State v. Gurule, 303 P.3d 838, 848
(N.M. 2013) (same).
¶34 Our reasoning is also in accord with the majority of
federal circuit courts that have addressed the issue. These
courts all followed the logic we employ in the present case:
Crawford altered the scope of the Confrontation Clause, which,
in turn, limited the application of the Bruton doctrine. United
States v. Berrios, 676 F.3d 118, 128 (3d Cir. 2012) ("Any
protection provided by Bruton is therefore only afforded to the
same extent as the Confrontation Clause, which requires that the
challenged statement qualify as testimonial."); United States v.
Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010) ("It is
. . . necessary to view Bruton through the lens of Crawford and
Davis."); United States v. Wilson, 605 F.3d 985, 1017 (D.C. Cir.
2010) ("The appellants have no Bruton claim, however, because
16
No. 2014AP1623-CR
Franklin's concessions through counsel do not implicate the
Confrontation Clause."); United States v. Johnson, 581 F.3d 320,
326 (6th Cir. 2009) ("Because it is premised on the
Confrontation Clause, the Bruton rule, like the Confrontation
Clause itself, does not apply to nontestimonial statements.");
United States v. Spotted Elk, 548 F.3d 641, 662 (8th Cir. 2008)
(Bruton does not apply to nontestimonial statements); Clark, 717
F.3d at 816 (same).
¶35 Therefore, the Bruton doctrine was limited by
Crawford. And, as a result, a defendant has a viable Bruton
claim only insofar as the inculpatory statements at issue are
testimonial under Crawford and its progeny.14
E. Confrontation Clause, Application
1. Definition of Testimonial
¶36 We must analyze whether the statements at issue in the
present case were testimonial. If not, then the Confrontation
Clause does not apply, and Nieves does not have a viable claim
under Bruton. We again look to Crawford and its progeny, this
time to determine the scope of "testimonial."
14
For an extensive discussion of the effect Crawford had on
Bruton see John M. Leventhal, Is Bruton on Life Support in the
Aftermath of Crawford v. Washington?, 43 Am. J. Crim. L. 1, 17
(2015) ("Now that non-testimonial statements are no longer
subject to Confrontation Clause scrutiny, and post-Crawford
decisions have not applied Bruton to non-testimonial statements,
defendants must look to other avenues in an attempt to prevent a
non-testifying co-defendant's incriminating statement made to a
civilian from being admitted.").
17
No. 2014AP1623-CR
¶37 The Court in Crawford explained that testimony, at the
time the Sixth Amendment was passed, was defined as "'[a] solemn
declaration or affirmation made for the purpose of establishing
or proving some fact.' [2 N. Webster, An American Dictionary of
the English Language (1828)]. An accuser who makes a formal
statement to government officers bears testimony in a sense that
a person who makes a casual remark to an acquaintance does not."
Crawford, 541 U.S. at 51. "Statements taken by police officers
in the course of interrogations are also testimonial under even
a narrow standard." Id. at 52. Despite this discussion, the
Court in Crawford did not purport to provide a complete
definition of "testimonial." Id. Subsequent cases, however,
have provided further guidance as to the types of statements
that fall within the contours of the Confrontation Clause.
¶38 As with Crawford, the Supreme Court in Davis v.
Washington, 126 S. Ct. 2266 (2006) addressed the definition of
testimonial in the context of a statement given to a law
enforcement officer. The Court adopted a "primary purpose" test
for analyzing whether a statement is testimonial. Davis, 547
U.S. at 822. "Statements are nontestimonial when made in the
course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency." Id.
Statements may be "testimonial when the circumstances
objectively indicate that there is no such ongoing emergency,
and that the primary purpose of the interrogation is to
18
No. 2014AP1623-CR
establish or prove past events potentially relevant to later
criminal prosecution." Id.
¶39 Subsequently, in Michigan v. Bryant, the Court
"reiterated [its] view in Davis that, when 'the primary purpose
of an interrogation is to respond to an 'ongoing emergency,' its
purpose is not to create a record for trial and thus is not
within the scope of the [Confrontation] Clause.'" Clark, 135
S. Ct. at 2180 (quoting Bryant, 562 U.S. at 358). However, the
Court clarified that "'the existence vel non of an ongoing
emergency is not the touchstone of the testimonial inquiry.'
Rather, the existence of an emergency is just one factor when
determining the primary purpose of an interrogation." Bryant,
562 U.S. at 374.
¶40 In its most recent Confrontation Clause case, Ohio v.
Clark, the Supreme Court was "presented [with a] question [it
had] repeatedly reserved: whether statements to persons other
than law enforcement officers are subject to the Confrontation
Clause." Clark, 135 S. Ct. at 2181. The Court acknowledged the
applicability of the primary purpose test in such cases: "In
the end, the question is whether, in light of all the
circumstances, viewed objectively, the 'primary purpose' of the
conversation was to 'creat[e] an out-of-court substitute for
trial testimony.'" Id. at 2180 (quoting Bryant, 562 U.S. at
358). However, the Court cautioned that even though "statements
to individuals who are not law enforcement officers could
conceivably raise confrontation concerns . . . such statements
19
No. 2014AP1623-CR
are much less likely to be testimonial than statements to law
enforcement officers." Id. at 2181.
¶41 Moreover, the Supreme Court in Clark explained that
the formality of the setting in which the statements were given
is relevant to whether the statements were "made with the
primary purpose of creating evidence for [the defendant's]
prosecution." Id. at 2176. "A 'formal station-house
interrogation,' like the questioning in Crawford, is more likely
to provoke testimonial statements, while less formal questioning
is less likely to reflect a primary purpose aimed at obtaining
testimonial evidence against the accused." Id. at 2180 (quoting
Bryant, 562 U.S. at 366); see also Jensen, 299 Wis. 2d 267, ¶33
("In essence, we conclude that Julie's statements were
informally made to her neighbor and her son's teacher and not
under circumstances which would lead an objective witness to
reasonably conclude they would be available at a later trial,
and as such are nontestimonial.").
¶42 Therefore, statements given in an informal setting are
significantly less likely to be testimonial. See United States
v. Castro-Davis, 612 F.3d 53, 65 (1st Cir. 2010) (concluding
statements were nontestimonial because the defendant "did not
make the statements to a police officer, during the course of an
interrogation, or in a structured setting designed to elicit
responses that intended to be used to prosecute him."); United
States v. Smalls, 605 F.3d 765, 780 (10th Cir. 2010) ("Cook in
no sense intended to bear testimony against Defendant Smalls;
20
No. 2014AP1623-CR
Cook in no manner sought to establish facts for use in a
criminal investigation or prosecution.").
¶43 The context in which a statement is made is also
significant in determining whether a statement is testimonial.
Clark, 135 S. Ct. at 2182. And, "part of that context is the
questioner's identity." Id. "Statements made to someone who is
not principally charged with uncovering and prosecuting criminal
behavior are significantly less likely to be testimonial than
statements given to law enforcement officers." Id.
¶44 For this reason, statements to non-law enforcement
individuals are unlikely to be testimonial, id., as are
statements made unwittingly to non-law enforcement personnel
acting as an informant for law enforcement. Davis, 547 U.S. at
825 ("statements made unwittingly to a Government informant" are
"clearly nontestimonial"); see also United States v. Dale, 614
F.3d 942, 956 (8th Cir. 2010) (statements made to an individual
wearing a wire to record conversation for the police were not
testimonial); United States v. Udeozor, 515 F.3d 260, 270 (4th
Cir. 2008) ("Because [the declarant] plainly did not think he
was giving any sort of testimony when making his statements to
the victim during the recorded telephone calls, the admission of
these two taped conversations into evidence did not violate [the
defendant's] rights under the Confrontation Clause."); United
States v. Watson, 525 F.3d 583, 589 (7th Cir. 2008) ("A
statement unwittingly made to a confidential informant and
21
No. 2014AP1623-CR
recorded by the government is not 'testimonial' for
Confrontation Clause purposes.").
¶45 Therefore, under the Supreme Court's analysis,
statements between certain types of individuals are highly
unlikely to be testimonial. For example, the Supreme Court
indicated that the statements in Dutton v. Evans, 400 U.S. 74,
87-89 (1970) (plurality opinion), were "clearly nontestimonial"
because the "statements [were] from one prisoner to another."
Davis, 547 U.S. at 825; see also United States v. Pelletier, 666
F.3d 1, 9 (1st Cir. 2011) ("Although we have not previously had
occasion to apply Davis to the situation presented here——
statements made by one inmate to another——we have little
difficulty holding that such statements are not testimonial.");
Smalls, 605 F.3d at 778 ("[Declarant's] recorded statement to
CI, known to [declarant] only as a fellow inmate, is
unquestionably nontestimonial.").
2. Maldonado's Statements
¶46 In the present case, Maldonado made several statements
to a fellow inmate, Trinidad, that implicated him and arguably
Nieves in the crime for which they were charged.15 Trinidad
testified that the conversation between him and Maldonado
occurred while both were housed at the Milwaukee County Criminal
Justice Facility.
15
We are assuming for purposes of this analysis that the
testimony implicated Nieves under Bruton. However, we reiterate
that we are not deciding whether this would have been a Bruton
violation if not for Crawford.
22
No. 2014AP1623-CR
¶47 Manifestly, these statements were not taken in what
can be considered a formal setting. The statements were made in
a jail and were the product of the casual conversations of two
inmates. There is nothing to suggest that an objective observer
would believe that these statements would later be used at
trial.
¶48 The context of the statements, including to whom the
statements were made, also suggests that the statements are
nontestimonial. Maldonado was speaking to a fellow inmate; he
was not conversing with a law enforcement officer or anyone that
he would have reason to suspect would later use the testimony at
a trial. The statements at issue were the result of a
conversation between two inmates——the type of statement that the
Supreme Court and other courts have categorized as unequivocally
nontestimonial.
¶49 Notably, Maldonado's statements inculpated himself as
well. Trinidad testified that Maldonado spoke to him about his
role in the homicide and the attempted homicide——not just the
role of Nieves or other individuals. An objective observer
would, therefore, be unlikely to consider these statements to
have been made with the primary purpose of creating evidence for
trial. See United States v. Volpendesto, 746 F.3d 273, 289-90
(7th Cir. 2014) ("Instead, we evaluate their conversation
objectively. And from an objective perspective, [the]
conversation looks like a casual, confidential discussion
between co-conspirators. Because the statements in question
23
No. 2014AP1623-CR
were not testimonial, their admission did not implicate the
Confrontation Clause."). After all, these conversations created
evidence that could be, and ultimately was, used at trial
against Maldonado. See Smalls, 605 F.3d at 779 ("Cook did not
make his statement to CI for the 'primary purpose' of
establishing or proving facts relevant to a criminal
prosecution" because "Cook would not have shared what he did had
he known the Government was recording his statement or that his
cellmate was a CI.").
¶50 There is no indication these statements were made for
the primary purpose of creating evidence for Nieves'
prosecution. Instead, Maldonado simply trusted the wrong
person; he confided in a jailhouse informant.
¶51 Consequently, we see no reason to depart from the
Supreme Court's acknowledgement in Davis that the statements in
Dutton were "clearly non-testimonial" because they were
statements between inmates. The statements in the present case
display none of the formalistic characteristics that have come
to define the contours of testimonial hearsay. "Certainly, the
statements in this case are nothing like the notorious use of ex
parte examination in Sir Walter Raleigh's trial for treason,
which [the Supreme Court has] frequently identified as 'the
principal evil at which the Confrontation Clause was directed.'"
Clark, 135 S. Ct. at 2182 (quoting Crawford, 541 U.S. at 50).
24
No. 2014AP1623-CR
F. Alleged Violation of Wis. Stat. § 971.12(3)
¶52 Nieves argues that the circuit court violated Wis.
Stat. § 971.12(3) by declining to sever his and Maldonado's
trials and admitting the testimony of Trinidad.16 We need not
examine whether our conclusion that Nieves' Confrontation Clause
rights were not violated forecloses Nieves' argument under
§ 971.12(3).17 Instead, even assuming that § 971.12(3) had been
violated, we conclude that the putative error was harmless. The
overwhelming evidence the State presented at trial of Nieves'
guilt leads us to conclude that he would have been found guilty
of the crimes for which he was convicted even if the circuit
court had excluded Trinidad's testimony.
16
Wisconsin Stat. § 971.12(3) provides, in relevant part, a
"district attorney shall advise the court prior to trial if the
district attorney intends to use the statement of a codefendant
which implicates another defendant in the crime charged.
Thereupon, the judge shall grant a severance as to any such
defendant." Wis. Stat. § 971.12(3).
17
Nothing in this opinion should be construed so as to cast
doubt on our cases that hold Wis. Stat. § 971.12(3) is a
mechanism for enforcing Bruton v. United States, 391 U.S. 123
(1968), and therefore, does not "require[] severance of
defendants in all instances in which law enforcement authorities
possess a statement by a codefendant implicating another
defendant. We do not believe such an argument would be viable.
The legislative committee note indicates that the statute is
intended to provide a mechanism to insure compliance with
Bruton. As we have stated, compliance may be had with Bruton by
effectively excising any reference implicating a codefendant and
by instructing the jury as to the limited purpose for which the
evidence is admitted. If this is done, the statement no longer
'implicates another defendant' and therefore does not fall
within the prohibition of the statute." Pohl v. State, 96
Wis. 2d 290, 301, 291 N.W.2d 554 (1980) (quoting Cranmore v.
State, 85 Wis. 2d 722, 747, 271 N.W.2d 402 (Ct. App. 1978)).
25
No. 2014AP1623-CR
¶53 The crux of the State's case was the testimony of the
surviving victim, David, who testified at length as to the
particulars of the crime and Nieves' involvement. David's
testimony was salient; it was detailed, direct evidence of
Nieves' involvement in the crimes for which he was convicted.
¶54 David explained the events leading up to the crimes at
issue in this case. Specifically, David described how he,
Buckle, Maldonado, Nieves, and others were involved in a
homicide that occurred in Waukegan, Illinois. He testified:
[State]: Okay. South Park and Water. So they come
over, and do you or does anyone else in your
presence explain what happened?
[David]: To what happened when they shot at us?
[State]: Yes
[David]: Told Raymond Nieves what happened and he
told us we had to go do what we had to do to
get revenge.
. . . .
[State]: And after Raymond [Nieves] had this
conversation with you guys, it's like, okay,
we've got to get back, what happened next?
[David]: We drove down to Woodard Park which is A
Street.
[State]: When you say 'we', who went?
[David]: Raymond Nieves and Maldonado, Spencer, Fat
Boy and me.
. . . .
[State]: And who got out of the car?
[David]: Me, Fat Boy, Maldonado and Buckle.
26
No. 2014AP1623-CR
[State]: And does some shooting take place at these
guys at the basketball court that you
thought were Latin Kings?
[David]: Yes.
. . . .
[David]: We ran back to the truck, me, Spencer, Fat
Boy, and Maldonado.
[State]: And where was Mr. Nieves?
[David]: He was in the truck, driver's side. He was
the driver.
David testified that he later discovered an individual had been
killed in this shooting. And, following the Waukegan homicide,
David, Buckle, Nieves, and Maldonado traveled to Kenosha and hid
at the home of one of Nieves' relatives.
¶55 David revealed Nieves and Maldonado's fear that one of
the participants in the Waukegan homicide would cooperate with
police. This testimony provided support for the State's theory
of Nieves and Maldonado's motive as the State contended that
this fear provided the impetus for the homicide and attempted
homicide in this case.
¶56 Importantly, David then explained the events on the
day the crimes at issue in the present case were committed. He
began by relaying that Nieves and Maldonado all got into a
vehicle purportedly to travel to a new place at which they could
hide.
[State]: Did there actually come a point in time you
actually got into a vehicle with Schotee?
[David]: Yes.
[State]: And did anyone else go with you?
27
No. 2014AP1623-CR
[David]: Raymond Nieves, Johnny Maldonado, and
Spencer Buckle.
. . . .
[State]: Okay. Did you stay in the car once the SUV
stopped?
[David]: No, we didn't stay in the car.
[State]: What happened next?
[David]: Raymond Nieves and Maldonado and Buckle and
I got off the car.
¶57 David then explained, in detail, the specifics of the
crimes for which Nieves was eventually convicted. David
testified:
[State]: What happens next. You stop there, they're
on the other side of the alley, what
happens?
[David]: I seen Maldonado goes up to, like, it looked
like a garage to me. It was, like, a
garage. I don't know if he's pretending to
use a washroom or doing something. But, I
don't know, Raymond Nieves was, like,
there's somebody running behind you all. As
we turning, I just see Spencer —— I hear a
gunshot, I see a flash, and I see Spencer
Buckle fall to the ground.
[State]: And who are the only four people in the
alley at that point in time?
[David]: Raymond Nieves, Johnny Maldonado, Spencer
Buckle and me.
[State]: Did you see any person running down the
alley when Nieves said this?
[David]: No.
[State]: How close to Mr. Buckle were you at that
point in time when you say you heard
gunshots?
28
No. 2014AP1623-CR
[David]: At arms reach.
[State]: And where was Mr. Nieves?
[David]: Right next to Buckle.
[State]: And did you know where Mr. Maldonado was at
that point in time?
[David]: He ended up behind me. It happened so fast.
[State]: And as these shots were being —— going,
fired, and you saw Mr. Buckle falling, what
did you do?
[David]: As I was turning to see, facing toward
Nieves, I heard more shots and seen flashes
coming my way. So I threw myself on the
ground as I was shot, like, when I really
was not shot, I threw myself on the ground
and played dead. That's when I seen Johnny
Maldonado's black tennis shoes come up.
. . . .
[State]: And what happened next?
[David]: I felt like something pressed, like a gun
pressed in the back of my head.
[State]: And then what happened?
[David]: I just heard shots being fired towards my
head, and I could feel the wind of the
bullets passing through my head and I felt
the burn where I got grazed at from my left
hand.
[State]: So you were shot or felt something graze
your left hand?
[David]: Yes.
[State]: And based upon the noise and sounds, you
believed it to be what?
[David]: Gunshots.
29
No. 2014AP1623-CR
¶58 David's testimony was powerful; it provided the jury
with direct evidence of the crimes for which Nieves was
convicted. One of these crimes, of course, was the attempted
homicide of David, who positively identified Nieves as one of
the perpetrators.
¶59 In contrast, the testimony of Trinidad was much more
limited than that of David, and therefore, it did not provide
evidence for any aspect of the crime that the jury did not
otherwise hear in more detail from David.
¶60 Accordingly, the circuit court's failure to exclude
Trinidad's testimony did "not affect the substantial rights of"
Nieves. See Wis. Stat. § 805.18(1). David, the surviving
victim, explained both the events leading up to the homicide as
well as the particulars of the crime. David testified that
Nieves brought Buckle and him into an alley, where they fatally
shot Buckle and where they shot and wounded him. As a result,
the evidence against Nieves was such that he would have been
convicted without the testimony of Trinidad.
¶61 Finally, we note that the primary harm Wis. Stat.
§ 971.12(3) is designed to prevent is the harm that results from
a violation of an individual's Confrontation Clause rights.18
18
We do not address cases that examine the potential
prejudicial effect of a Confrontation Cause violation because we
concluded that no such violation occurred in this case. See,
e.g., Cruz v. New York, 481 U.S. 186, 191 (1987) (reasoning
"'devastating' practical effect was one of the factors that
Bruton considered in assessing whether the Confrontation Clause
might sometimes require departure from the general rule that
jury instructions suffice to exclude improper testimony");
(continued)
30
No. 2014AP1623-CR
See generally Pohl v. State, 96 Wis. 2d 290, 301, 291 N.W.2d 554
(1980). However, as discussed above, Nieves' Confrontation
Clause rights were not violated.
G. Admission of Hearsay
¶62 At trial, David testified that a man named "Boogie
Man" told him that Nieves and Maldonado were planning to kill
him. Specifically, in reference to "Boogie Man," David
testified as follows:
[State]: So what was said that made you concerned?
[David]: He said that they were planning on killing
me, that Raymond Nieves and Maldonado were
planning on killing me.
¶63 On appeal, the State concedes that the statement was
improperly admitted; however, the State contends that it was
harmless error to admit it. We agree that the admission of the
statement, while in error, was harmless as it did not affect the
substantial rights of Nieves.
¶64 The statement of "Boogie Man" preceded David's
extensive and detailed account of the homicide and attempted
homicide. We need not rehash David's testimony at length. It
suffices to note that David testified that Nieves and Maldonado
Richardson v. Marsh, 481 U.S. 200, 211 (1987) ("We hold that the
Confrontation Clause is not violated by the admission of a
nontestifying codefendant's confession with a proper limiting
instruction when, as here, the confession is redacted to
eliminate not only the defendant's name, but any reference to
his or her existence."). Therefore, the harm to which these
cases refer is not relevant to our harmless error analysis.
31
No. 2014AP1623-CR
brought him and Buckle into an alley, where they fatally shot
Buckle and where they wounded him.
¶65 The single statement by "Boogie Man" to David that
Nieves and Maldonado planned to kill him, when viewed in
context, contributed little to David's testimony. Any error
that resulted from the admission of this statement was
alleviated when David explained how Nieves and Maldonado fatally
shot Buckle and attempted to fatally shoot him.
¶66 As a result, the circuit court's decision to admit the
testimony, while it may have been error, was harmless.
III. CONCLUSION
¶67 In light of the foregoing, we conclude that Crawford
and its progeny limited the application of the Bruton doctrine
to instances in which a co-defendant's statements are
testimonial. Therefore, Bruton is not violated by the admission
of a non-testifying co-defendant's statements that are
nontestimonial. In the present case, Maldonado's statements
were nontestimonial, and therefore Nieves' confrontation rights
were not violated. Accordingly, the circuit court did not err
in denying Nieves' motion to sever the trials.
¶68 Moreover, even assuming that Wis. Stat. § 971.12(3)
had been violated, we conclude that any error was harmless.
Likewise, the admission of the hearsay statement of "Boogie Man"
during David's testimony was also harmless. Each alleged error
was inconsequential when viewed in light of the subsequent
testimony of David, the surviving victim.
32
No. 2014AP1623-CR
¶69 Accordingly, we reverse the decision of the court of
appeals, reinstate Nieves' judgment of conviction, and remand to
the court of appeals for consideration of Nieves' ineffective
assistance of counsel claim.
By the Court.—The decision of the court of appeals is
reversed, and the cause remanded to the court of appeals.
33
No. 2014AP1623-CR.awb
¶70 ANN WALSH BRADLEY, J. (dissenting). In no uncertain
terms, the legislature enacted a statute mandating that a judge
"shall grant a severance" where statements of one defendant will
implicate the other in the crime charged:
The district attorney shall advise the court prior to
trial if the district attorney intends to use the
statement of a codefendant which implicates another
defendant in the crime charged. Thereupon, the judge
shall grant a severance as to any such defendant.
Wis. Stat. § 971.12(3) (emphasis added).
¶71 This language is not confusing. It does not suggest
multiple meanings that could render it ambiguous. Yet, the
majority presents no analysis of the actual language of the
statute, let alone an analysis that would lead to a conclusion
that it is inapplicable.
¶72 When faced with the question of whether a trial should
be severed when a codefendant's inculpatory statement will be
introduced, the court's analysis need go no further than Wis.
Stat. § 971.12(3). It plainly provides the answer: yes,
severance shall be granted.
¶73 Instead, of applying the plain language of the
statute, the majority embarks on a journey that takes us through
unsettled territory, analyzing whether the United States Supreme
Court in Crawford v. Washington, 541 U.S. 36 (2004), intended to
limit Bruton v. United States, 391 U.S. 123 (1968). Resolution
of this case does not require such a complex analytical
exercise.
¶74 This approach disregards the unambiguous language of
the statute, violates a bedrock principle of review that should
1
No. 2014AP1623-CR.awb
guide appellate courts and fails to recognize the nuances in
Confrontation Clause jurisprudence.
¶75 Honoring the language chosen by the legislature, I
take an approach at odds with that of the majority. Because I
determine, based on the plain meaning of the text, that the
circuit court erred in failing to sever the trials and that the
error was not harmless, I respectfully dissent.
I
¶76 In State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004
WI 58, ¶4, 271 Wis. 2d 633, 681 N.W.2d 110, this court set forth
a framework for statutory interpretation, which has since served
to guide our analyses in cases involving statutory
interpretation. It instructs that "statutory interpretation
'begins with the language of the statute. If the meaning of the
statute is plain, we ordinarily stop the inquiry.'" Id., ¶45
(quoting Seider v. O'Connell, 2000 WI 77, Wis. 2d 473, 232, 613
N.W.2d 591).
¶77 The court provided strong justification for this rule.
Focusing on the different roles of the judiciary and the
legislature, it explained that the judiciary has a "solemn
obligation . . . to faithfully give effect to the laws enacted
by the legislature . . . ." Id., ¶44. Courts are to give
deference to the policy choices made by the legislature, and
deference "requires that statutory interpretation focus
primarily on the language of the statute." Id.
¶78 As further justification for focusing on the plain
language of the statute, Kalal explained that ultimately, "[i]t
2
No. 2014AP1623-CR.awb
is the enacted law, not the unenacted intent, that is binding on
the public." Id., ¶46.
¶79 Here, the language is unambiguous. Wisconsin Stat.
§ 971.12(3) mandates that a judge shall grant a severance where
statements of one defendant will implicate the other in the
crime charged:
The district attorney shall advise the court
prior to trial if the district attorney
intends to use the statement of a
codefendant which implicates another
defendant in the crime charged. Thereupon,
the judge shall grant a severance as to any
such defendant.
Wis. Stat. § 971.12(3) (emphasis added).
¶80 Despite the statute's clear answer to the question
before us, the majority barely references it. Indeed, its sole
reference to Wis. Stat. § 971.12(3) is relegated to a footnote
where it asserts that severance is not required where a
codefendant's statement does not implicate a defendant——an
assertion that is not at issue in this case and against which no
one is arguing. Majority op., ¶52 n.17.
¶81 Nowhere in the majority opinion is the actual language
of the statute analyzed. Instead, it bypasses a Kalal analysis
entirely. In so doing, the majority fails to give deference to
the legislature as required.
II
¶82 Not only does the majority fail to defer to the plain
language of the statute, it also violates a longstanding
principle of appellate court practice by conducting an
unnecessary constitutional analysis. This court has repeatedly
3
No. 2014AP1623-CR.awb
stated that appellate courts should decide cases on the
narrowest grounds possible. Md. Arms Ltd. P'ship v. Connell,
2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 ("[A]n appellate
court should decide cases on the narrowest possible grounds.");
Ehlinger v. Hauser, 2010 WI 54, ¶66, 325 Wis. 2d 287, 785
N.W.2d 328 ("Typically, an appellate court should decide cases
on the narrowest possible grounds."); State v. Castillo, 213
Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (same).
¶83 Thus, when a question presented can be answered by
statute, we typically leave interpretation of federal and state
constitutional provisions for another day. See, e.g., State v.
Popenhagen, 2008 WI 55, ¶5, 309 Wis. 2d 601, 749 N.W.2d 611
("Because we affirm the circuit court's order on statutory
grounds, we leave the interpretation of the federal and state
constitutional provisions . . . for another case in which these
issues are determinative."); HSBC Realty Credit Corp. v. City of
Glendale (In re City of Glendale Cmty. Dev. Auth. Condemnation
Award), 2007 WI 94, ¶14 n.7, 303 Wis. 2d 1, 735 N.W.2d 77
("Because we decide this case on statutory grounds, we do not
address the parties' arguments concerning . . . the
constitutional right to interest on a condemnation award."); see
also Castillo, 213 Wis. 2d at 492 ("a court will not reach
constitutional issues where the resolution of other issues
disposes of an appeal.").
¶84 As discussed above, the question before us can be
easily addressed by a plain language interpretation of Wis.
Stat. § 971.12(3). Therefore, resorting to a complex
4
No. 2014AP1623-CR.awb
constitutional analysis is unnecessary.1 Yet, the majority
disregards our well established practice of deciding issues
narrowly. Instead, it delves into an analysis of the impact
that Crawford had on Bruton. Such an exercise in constitutional
analysis is not needed to resolve this case.
III
¶85 Not only is a constitutional analysis unnecessary, the
one conducted by the majority is also unconvincing. After
asserting that Crawford shifted the focus of a Confrontation
Clause away from reliability and onto the testimonial nature of
statement, it concludes that because Bruton is a by-product of
the Confrontation Clause, Crawford's holding necessarily limits
Bruton to testimonial statements. Majority op., ¶32.
¶86 To support this conclusion, the majority quotes from
the lead opinion in State v. Wilcoxon, 373 P.3d 224 (2016),
which stated "the scope of the confrontation right encompasses
only testimonial statements . . . whether in the context of a
1
Resorting to the constitutional analysis is also
questionable because such an analysis likely has been forfeited
here. As the court of appeals observed, it appears that the
State did not raise the Crawford issue before the circuit court
and the State "explicitly acknowledged that it had forfeited its
argument concerning Crawford by failing to raise it on
appeal. . . ." State v. Nieves, No. 2014AP1623-CR, unpublished
slip op., ¶12 n.6 (Wis. Ct. App. Apr. 5, 2016).
After the State lost in the court of appeals, it raised the
issue for the first time on a motion for reconsideration, which
it also lost. If the majority is going to now take up and run
with the State's new Crawford issue, it should at least
acknowledge and address Nieves' argument that this court, like
the court of appeals, should consider the issue long since
forfeited.
5
No. 2014AP1623-CR.awb
single defendant like in Crawford or codefendants like in
Bruton." Majority op., ¶33. This analysis overlooks the
complexities in Confrontation Clause jurisprudence.
¶87 More persuasive is the analysis presented in the
dissent of State v. Wilcoxon, 373 P.3d 224, 232 (2016) (Madsen,
C.J., dissenting). As Chief Justice Madsen observes, Bruton and
Crawford address different concerns. Id., ¶¶48, 54-55. Where
Crawford dealt with the initial admissibility of hearsay (and
thus its discussion of reliability), Bruton dealt with the
prejudice created by placing inadmissible hearsay before a jury.
Id. Crawford did not touch upon prejudice, indeed it did not
even mention Bruton. Id., ¶¶50, 53. Thus, forcing Bruton
through the lens of Crawford is a poor fit. Id., ¶56. The
majority's attempt to do so misses the nuance in the Supreme
Court's Confrontation Clause jurisprudence.
IV
¶88 Contrary to the majority, I conclude, as did the court
of appeals, that Wis. Stat. § 971.12(3) decides the question
before us. When a prosecutor plans to use an inculpatory
statement of a co-defendant, "the judge shall grant a severance
as to any such defendant." Wis. Stat. § 971.12(3) (emphasis
added).
¶89 The only issues remaining after reading this plain
statutory language are whether the co-defendant's statements
were inculpatory and, if so, whether the circuit court's failure
to sever the trials constituted harmless error.
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¶90 First, I consider whether the co-defendant's
statements were inculpatory. These statements were entered into
the record through the testimony of a state's witness at the
joint trial. As they illustrate, on multiple occasion the
witness used the pronoun "they" when describing the actions
Maldonado took with Nieves:
[State]: And did [Mr. Maldonado], in fact, talk about
how that happened and what Mr. Maldonado's involvement
was with either of these two shorties?
[Witness]: They told them to come party or celebrate
to Wisconsin. And they came to Kenosha, and then from
Kenosha they came to Milwaukee.
[State]: By "they," you mean Mr. Maldonado and the
shorties?
[Witness]: Yes.
[State]: And after leaving Kenosha, they were going
to go to Milwaukee, and what happened once they got to
Milwaukee according to Mr. Maldonado?
[Witness]: They brought them to a dark alley, if I'm
not mistaken, and laid them on the ground. And then
when he shot, he shot through the hoody. He thought
he killed the victim, but it turned out to be that he
played dead on him.
(emphasis added). Although the witness at times used the term
"they" to describe the "two shorties," it is obvious that twice
the word "they" was used to reference Maldonado and Nieves.
When the witness stated "they told them" and "they brought
them," it would be illogical to conclude that the "two shorties"
were telling and bringing themselves.
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¶91 The witness later referenced Nieves by name,
reinforcing the implication that his prior testimony referred to
both Nieves and Maldonado:
[State]: Did he talk about, when he spoke of the
period of time they were in Kenosha, where they were
at where he was at with the shorties in Kenosha?
[Witness]: I believe Mr. Nieves's mom's house or his
baby mamma house.
¶92 On cross-examination, the following exchange between
the witness and Maldonado's attorney further emphasized that the
"they" referred to both Nieves and the co-defendant:
[Attorney]: Okay. You are testifying today that Mr.
Maldonado told you that once they brought these other
two guys from Waukegan, that they laid on the ground
in the alley and then shot them; is that your
testimony?
[Witness]: Yes.
(Emphasis added). Given the totality of the witness's
testimony, the most reasonable conclusion for the jury to reach
was that Maldonado told the witness about how he and Nieves
committed the crime. Accordingly, I conclude that these out-of-
court statements by Maldonado implicated Nieves in the crime and
must be considered inculpatory.
¶93 Second, I consider whether admission of these
inculpatory statements in violation of Wis. Stat. § 971.12(3)
constituted harmless error. Such a determination requires an
inquiry into "whether it was beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained."
State v. Moore, 2015 WI 54, ¶94, 363 Wis. 2d 376, 864
N.W.2d 827, (quoting State v. Magett, 2014 WI 67, ¶29, 355
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Wis. 2d 617, 850 N.W.2d 42). The State bears the burden of
proving the error was harmless. State v. Harris, 2008 WI 15,
¶113, 307 Wis. 2d 555, 745 N.W.2d 397.
¶94 Given the typically damning nature of a co-defendant's
inculpatory confession, the State's burden is difficult to meet.
As Bruton describes, such statements can be devastating. 391
U.S. at 136; see also Cruz v. New York, 481 U.S. 186, 170
(1987), (referring to the "devastating practical effects" of a
co-defendant's inculpatory statements). Even when a jury is
properly instructed to disregard such statements, it is unlikely
such confessions will be ignored. Bruton, 391 U.S. at 129.
¶95 The potency and prejudicial effect in a joint trial of
a confession by a non-testifying co-defendant that is admissible
against him but inadmissible and incriminating against the other
defendant cannot be minimized. Justice Frankfurter warned that
the government gets the benefit of the inadmissible testimony
influencing the jury "which, as a matter of law, they should not
consider but which they cannot put out of their minds." Delli
Paoli v. United States, 352 U.S. 232, 248 (1957) (Frankfurter,
J., dissenting). Contrary to the majority in Delli, Justice
Frankfurter thought that the prejudice could not be cured by a
limiting instruction. Id. at 247.
¶96 The prophylactic effect of a limiting instruction in
similar situations was the focus of later cases. In Richardson
v. Marsh, 481 U.S. 200, 211 (1987), the Court held that when a
codefendant's confession is redacted to eliminate any reference
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to the other defendant's existence, then a limiting instruction
will suffice.
¶97 Subsequently, the Court in Cruz, determined that a
limiting instruction was insufficient to cure the harm. It held
that where a nontestifying co-defendant's confession
incriminating another defendant is not directly admissible
against that defendant, then the risk of harm in a joint trial
is too great "even if the jury is instructed not to consider it
against the defendant . . . ." Id. at 193.
¶98 Here, we need not consider whether the harmful effect
of this evidence can be sufficiently ameliorated by a limiting
instruction, because no limiting instruction was given. The
jury was never told to disregard Maldonado's out-of-court
statements implicating Nieves or told that those incriminating
statements could not be used against Nieves. Likewise, we need
not analyze whether the redactions were sufficient, because
there were no redactions.
¶99 The State relies on the victim's testimony that Nieves
and Maldonado brought him to an alley and shot him. Yet, it is
unclear how much weight the jury would have given it. His story
had changed several times during his interviews with police.
Further, portions of his testimony were inconsistent, giving
rise to the likelihood that Maldonado's corroborating statements
added critical weight to the witness's testimony and contributed
to Nieves' conviction.
¶100 Due to the nature of the testimony and the failure of
the court to give a limiting curative instruction, I determine
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that the State fails to meet it burden because it cannot
demonstrate beyond a reasonable doubt that the error was
harmless.
¶101 In sum, I conclude that the question before us is
answered by the plain language of Wis. Stat. § 971.12(3) that
mandates severance. Because the circuit court violated that
statute and that error was not harmless, I would affirm the
court of appeals decision.
¶102 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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