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(2016 – Unpublished)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,

 v.

Raymond L. Nieves,

 Defendant-Appellant.

FILED

JUN 29, 2017

Diane M. Fremgen

Clerk of Supreme Court

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1 State v. Nieves, No. 2014AP1623-CR, unpublished slip op.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

2

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.
No. 2014AP1623-CR

3

¶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. 
No. 2014AP1623-CR

4

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 
No. 2014AP1623-CR

5

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. 
No. 2014AP1623-CR

6

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.
No. 2014AP1623-CR

7

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. 
No. 2014AP1623-CR

8

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 
No. 2014AP1623-CR

9

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 selfincrimination 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."). 
No. 2014AP1623-CR

10

¶21 In Bruton, the defendant, Bruton, and his codefendant, 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 
No. 2014AP1623-CR

11

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. 
No. 2014AP1623-CR

12

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 
No. 2014AP1623-CR

13

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 crossexamination."). 
No. 2014AP1623-CR

14

¶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
No. 2014AP1623-CR

15

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."). 
No. 2014AP1623-CR

16

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 
No. 2014AP1623-CR

17

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."). 
No. 2014AP1623-CR

18

¶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 
No. 2014AP1623-CR

19

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 
No. 2014AP1623-CR

20

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; 
No. 2014AP1623-CR

21

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 
No. 2014AP1623-CR

22

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. 
No. 2014AP1623-CR

23

¶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 
No. 2014AP1623-CR

24

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).
No. 2014AP1623-CR

25

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)). 
No. 2014AP1623-CR

26

¶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.
No. 2014AP1623-CR

27

[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?
No. 2014AP1623-CR

28

[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?
No. 2014AP1623-CR

29

[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. 
No. 2014AP1623-CR

30

¶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)
No. 2014AP1623-CR

31

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. 
No. 2014AP1623-CR

32

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. 
No. 2014AP1623-CR

33

¶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. 
No. 2014AP1623-CR.awb

1

¶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 
No. 2014AP1623-CR.awb

2

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 
No. 2014AP1623-CR.awb

3

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 
No. 2014AP1623-CR.awb

4

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 
No. 2014AP1623-CR.awb

5

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.
No. 2014AP1623-CR.awb

6

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-ofcourt 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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