April 5, 2016 – A state appeals court has ruled that Raymond Nieves is entitled to a new trial in a murder case​ because the trial court improperly denied a pretrial severance motion and improperly admitted unreliable and prejudicial hearsay testimony.

The state charged Nieves and co-defendant Johnny Maldonado with first-degree intentional homicide (and attempted homicide) as a party to a crime and with the use of a dangerous weapon. They were accused of shooting two victims in a Milwaukee alley.

One victim, David, survived. The other victim, Spencer Buckle, died. David told police that he and Buckle were with Nieves and Maldonado when they arrived in Milwaukee to hang out with other associates of a gang called the Maniac Latin Disciples.

They exited a vehicle and began walking through an alley when he heard a gunshot and saw Buckle drop to the ground. He said he played dead and heard more bullets whiz by his head, and took a bullet to the hand. David told police that Nieves shot Buckle and Maldonado shot him.

In 2012, Maldonado and Nieves stood trial together. David testified. He said all of them were associated with the Maniac Latin Disciples and recounted the 2009 shooting.

The trial court allowed David’s testimony about a conversation he had with an individual called “Boogie Man” prior to the shooting. He said Boogie Man told him that Maldonado and Nieves were going to kill him. A “jailhouse snitch” also testified.

The jailhouse informant said Nieves and Maldonado talked about the shooting while awaiting trial. The testimony, about his conversation with Maldonado, suggested that Maldonado did not act alone and another individual was involved.

Trinidad revealed a motive for murder. He said Maldonado told him that “they” had planned to kill two gang associates who could not be trusted to keep their mouths shut.

The jury convicted both defendants. Nieves filed a postconviction motion, arguing that the trial court committed error in refusing to sever his trial from Maldonado’s trial. He also said David’s testimony about Boogie Man was inadmissible hearsay, and his trial counsel was ineffective. He argued for a new trial but his motion was denied.

In State v. Nieves, 2014AP1623-CR (April 5, 2016), a three-judge panel for the District I Appeals Court reversed the conviction, concluding that Nieves is entitled to a new trial.

 

Failure to Sever

 

The panel ruled that Nieves’s trial should have been severed upon his motion, noting that a court’s decision to sever joint trials is usually discretionary but must be granted, under Wis. Stat. section 971.12(3), “if the district attorney intends to use the statement of a codefendant which implicates another defendant in the crime charged.”

This statute recognizes the defendant’s right to confront witnesses under the Sixth Amendment to the U.S. Constitution (the Confrontation Clause) and a U.S. Supreme Court’s ruling in Bruton v. United States, 391 U.S. 123 (1968).

“In Bruton, the Supreme Court held that a defendant’s Confrontation Clause rights are violated when the confession of a codefendant that explicitly implicates the other defendant in the commission of a crime is admitted at their joint trial and the confessing codefendant does not testify,” Appeals Court Judge Patricia Curley explained.

“Here, the State intended to call Trinidad as a witness to testify about the confession Maldonado allegedly made to him,” she wrote. “Those statements included generally indirect references to Nieves’s involvement in the shootings, primarily through Maldonado’s use of the word ‘they,’ meaning Maldonado and at least one other individual.”

The panel also noted that Maldonado referenced Nieves when telling Trinidad what “they” had been up to prior to the shootings, including where “they” had been located.

After Nieves lost his motion to sever, Trinidad testified at trial and repeatedly used the word “they” when recounting his discussions with Maldonado. Trinidad said “they” told the targets to come to Wisconsin, and “they” brought them to a dark alley.

He also said that Maldonado said “they” were at Nieves’s mom’s house or baby mama’s house with the targets, the “shorties,” before the shooting took place.

The trial court did not give a limiting instruction, explaining that the jury could only use Trinidad’s testimony concerning Maldonado’s statements against Maldonado.

The panel concluded that Nieves’s Confrontation Clause rights were violated because the trial court “did not appropriately consider the Bruton problem.”

“[I]t should have been clear to the trial court that any inadvertent reference to Nieves’s involvement or his existence during Trinidad’s testimony concerning Maldonado’s confession would give rise to a Bruton problem, and as Trinidad’s testimony reveals, that is exactly what happened,” Judge Curley explained.

Thus, the panel ruled that the trial court erred by failing to consider the Bruton implications of Trinidad’s testimony about Maldonado’s confession. And the panel ruled that the failure to sever Nieves’s trial was not a harmless error:

“While we agree with the State that David, the surviving victim, provided compelling testimony as to Nieves’s involvement in the crimes charged, we are not convinced that the State has established beyond a reasonable doubt that the error in failing to sever Nieves’s trial in no way contributed to the verdicts obtained against Nieves.”

 

Allowing Testimony About Boogie Man

 

The panel also ruled that the trial court erred in allowing David’s testimony about “Boogie Man,” who told him Nieves and Maldonado were planning to kill him.

Nieves’s trial counsel had objected to the testimony on hearsay grounds, but it was overruled. The trial court said the jury could hear it not for its truth, but to show the jury how David was feeling about the words that Boogie Man allegedly told him.

“We can think of no legitimate reason that the State sought to introduce ‘Boogie Man’s’ out-of-court statement other than to establish that Nieves intended to – and did – commit the crimes charged,” Judge Curley wrote.

The panel concluded that the trial court improperly admitted David’s testimony about what ‘Boogie Man’ told him, on hearsay grounds. And allowing it to show how David felt about Boogie Man’s statements would be inadmissible as irrelevant.

The court did not rule on whether Nieves’s trial counsel was ineffective. Nieves had alleged that his trial counsel did not properly investigate an alibi defense.