July 14, 2017 – The Wisconsin Supreme Court recently reversed an appeals court decision that granted a new murder trial to Raymond Nieves, concluding a joint trial did not violate his rights despite a jailhouse informant’s testimony about the co-defendant.

Raymond Nieves and a co-defendant, Johnny Maldonado, were convicted of killing someone, and trying to kill another, to keep them quiet about a different murder.

Nieves had attempted to sever the trial, unsuccessfully, based on his right to confront witnesses. He could not cross-examine Maldonado if Maldonado was a co-defendant.  

And he argued that a statement by one “Boogie Man” – who told a testifying witness that Nieves and Maldonado were planning to kill him – was inadmissible hearsay.

A state appeals court granted Nieves a new trial, concluding that the trial court should have severed the trial and excluded the hearsay statements.

But in State v. Nieves, 2017 WI 69 (June 29, 2017), the supreme court (5-2) reversed, ruling it was not necessary to sever the trial and the hearsay statement was harmless. But it remanded the case to address Nieves’ ineffective assistance of counsel claim. 

The Witnesses

The jury heard from two key witnesses. One was a surviving victim, David, who testified that Maldonado and Nieves lured him and another man, Buckle, to a Milwaukee alley.

His testimony suggested that Maldonado tried to shoot him in the head but missed. The other man, nicknamed Buckle, did not escape. He was shot and killed in the alley.

The surviving witness also told the jury that Nieves, Maldonado, and the victim who was killed were gang members involved in a shooting against a rival gang. After the shooting, which took place in Illinois, they fled to Nieves’ house in Kenosha.

A fellow nicknamed “Boogie Man” came by the house, as David told the story, and told David that Nieves and Maldonado were planning to kill him. That was just before the two defendants took David and the other victim to the alley in Milwaukee.

A jailhouse informant named Trinidad also testified that Maldonado told him, while housed in the county jail, that Maldonado killed Buckle and tried to kill David to silence them about the gang shooting. Nieves told Trinidad that “he got his guy.”

The jury found Nieves guilty. He filed a motion, arguing the trial judge should have severed the trial when requested and allowed inadmissible hearsay.

Separate Trials Not Necessary

Joint trials can violate the constitutional right of defendants to confront the witnesses against them, and the right against self-incrimination. These rights sometimes collide.

“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,” Chief Justice Patience Roggensack explained.

So Nieves said he had a right to cross-examine Maldonado, alleged to have made incriminating statements to the jail informant, but Maldonado did not have to testify. In that case, Nieves argued, constitutional law required that the cases be severed.

That was the crux in Bruton v. United States, 391 U.S. 123 (1968), a case in which two defendants were jointly tried for armed postal robbery. One of them confessed to a postal inspector, and said he had an accomplice but would not name the accomplice.

The confessing co-defendant, Evans, refused to testify at trial but his confession was introduced as evidence. The trial judge told the jury that the confession could only be used against Evans, not the other co-defendant, Bruton.

But the U.S Supreme Court ruled that Bruton’s Sixth Amendment rights were violated by allowing the jury to hear the confession, including the implication that he had an accomplice, because Bruton could not cross-examine Evans about the confession.

In Nieves, the state appeals court relied on Bruton to determine that the trial should have been severed and Nieves was entitled to a new trial.

But, as the majority noted, “since Bruton was decided, the Supreme Court has manifestly changed the framework under which we analyze the Confrontation Clause, which limits the application of the Clause to testimonial statements.”

The majority noted that the Sixth Amendment is not violated in this type of situation if the out-of-court-statements at issue are not “testimonial.” And the majority ruled that Maldonado’s statements to the fellow inmate, Trinidad, were not testimonial.

“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,” Chief Justice Roggensack explained.

So Nieves’ Sixth Amendment right was not violated. But under Wis. Stat. section 971.12(3), a trial judge may sever a trial “[i]f it appears that a defendant or the state is prejudiced by a joinder of crimes or of defendants in a complaint. …”

But the majority concluded that any prejudice was harmless error because of the overwhelming evidence against Nieves, even without Trinidad’s testimony.

“We need not examine whether our conclusion that Nieves’ Confrontation Clause rights were not violated forecloses Nieves’ argument under § 971.12(3),” Chief Justice Roggensack wrote. “Instead, even assuming that § 971.12(3) had been violated, we conclude that the putative error was harmless.”

What About Hearsay?

Recall that David, the surviving witness, testified that “Boogie Man” told him that Maldonado and Nieves were planning to kill him. The jury heard that.

Nieves argued that Boogie Man’s statement was inadmissible hearsay, and the trial judge committed reversible error in allowing the witness to say it.

The state conceded that this statement was inadmissible hearsay and was improperly admitted, but argued that it was harmless error.

“We agree that the admission of the statement, while in error, was harmless as it did not affect the substantial rights of Nieves,” the chief justice wrote.

The majority reinstated Nieves’ conviction but remanded the case to the court of appeals to consider Nieves’ ineffective assistance of counsel claim. Nieves raised that issue but the appeals court did not consider it, ruling on other grounds.

Dissent

Justice Ann Walsh Bradley dissented, joined by Justice Shirley Abrahamson, focusing on the second sentence of Wis. Stat. section 971.13(2).

That sentence states: “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.” Under this sentence, a severed trial was required, the dissent argued.

“This language is not confusing,” Justice A.W. Bradley wrote. “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.”

The dissenters said the majority embarked on a journey that was not necessary, given the plain language of the statute. “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,” Justice A.W. Bradley wrote.