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State v. Raymond L. Nieves, 2014AP1623-CR, petition for review granted 9/13/16

Review of an unpublished court of appeals opinion; case activity (including briefs)

Issues (composed by On Point)

Whether Nieves’s confrontation right was violated when the trial court permitted a witness to testify about a non-testifying co-defendant’s confession that, by implication, inculpated Nieves.

Whether a surviving victim’s testimony that someone had told him Nieves was planning to kill him was admissible to show how the victim “felt.”

Whether trial counsel was ineffective for failing to investigate an alibi evidence that could have placed Nieves in Illinois on the night of the shooting.

The above are the issues Nieves presented in the court of appeals; that court held in his favor as to the first two and so did not address the third. The supreme court has now granted the state’s petition for review, so all three issues may again be in play.

As explained in our post on the court of appeals’ decision, the facts related to the confrontation issue place this case in the gray area between Bruton v. U.S., 391 U.S. 123 (1968) (which holds that at a joint trial the confession of one defendant is inadmissible against the co-defendant unless the confessing defendant testifies and is subject to cross examination) and Richardson v. Marsh, 481 U.S. 200 (1987) (which holds that a non-testifying defendant’s written confession can be admitted if it is redacted to eliminate all references to his co-defendant). The witness at issue testified about co-defendant Maldonado’s confession, repeatedly using the word “they” and also tying Maldonado to a location associated with Nieves. Nieves had filed a pretrial motion to sever founded on precisely this possibility; the court of appeals agreed with Nieves that its denial was an error and that it was compounded by the failure to give a limiting instruction.

The court of appeals also found error in the admission of the surviving victim’s testimony that one “Boogie Man” had earlier informed him of a plot on his life by Nieves. The trial court held the evidence went to the victim’s state of mind, but as the court of appeals aptly noted, “[H]ow [the victim] felt about what a third party … told him about Nieves’s and Maldonado’s alleged plan to kill [him] is neither related nor relevant to whether Nieves committed the crimes charged.” (¶41). The testimony was thus irrelevant, and as such inadmissible whether hearsay or not. The court of appeals additionally held that, even if the testimony bore some relevance, it was substantially outweighed by unfair prejudice to Nieves. (¶42).

The final issue concerns Nieves’s claim that various telephone and pretrial monitoring records would have placed him out of state when the shooting occurred, and that trial counsel should have investigated this alibi. The circuit court denied the IAC claim without a hearing, and the court of appeals bypassed the issue. The parties’ briefs suggest a cluster of factual disputes regarding the strength of the potential defense that may well require an evidentiary hearing to sort out.

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