State v. Nieves

• Citation: 897 N.W.2d 363,376 Wis.2d 300,2017 WI 69
• Decision Date: 29 June 2017
• Docket Number: No. 2014AP1623-CR,2014AP1623-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Raymond L. NIEVES, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

376 Wis.2d 300

897 N.W.2d 363

2017 WI 69

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,

v.Raymond L. NIEVES, Defendant-Appellant.

No. 2014AP1623-CR

Supreme Court of Wisconsin.

Oral Argument: January 19, 2017

Opinion Filed: June 29, 2017

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.

PATIENCE DRAKE ROGGENSACK, C.J.

¶1 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 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 codefendant, 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, 88 S.Ct. 1620, 20 L.Ed.2d 476 (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, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and its progeny limited the application of the Bruton doctrine to instances in which a codefendant's statements are testimonial. Therefore, Bruton is not violated by the admission of a non-testifying codefendant'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.

¶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 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 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 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, 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 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 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 ...