State v. Raymond L. Nieves

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(2016 – Unpublished)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State v. Nieves, No. 2014AP1623-CR, unpublished slip op.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. § 972.12(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, ¶24, 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, 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. § 972.12(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 (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. § 917.12(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. § 917.12(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. § 17.12(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, 412, 864

N.W.2d 827, 844 (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,

¶42, 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, 481 U.S. at 170 (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 v. New York, 481

U.S. 186 (1987), 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.

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¶100 Due to the nature of the testimony and the failure of

the court to give a limiting curative instruction, I determine

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. § 917.12(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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