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Et tu, Bruton? SCOW says Confrontation Clause doesn’t bar admission of co-defendant’s inculpatory statements to fellow inmate

State v. Raymond L. Nieves, 2017 WI 69, 6/29/17, reversing an unpublished court of appeals opinion, 2014AP1623-CR; case activity (including briefs)

Forget the old saws that “appellate courts decide cases on the narrowest possible grounds,” “appellate courts should not reach constitutional issues when another issue is dispositive,” and “the supreme court should not decide issues forfeited in the court of appeals.” They don’t constrain SCOW here. Indeed, the majority opinion rushes past the plain language of §971.12(3) in order to decide a major Confrontation Clause issue and to reverse a big defense win in the court of appeals.

We’re going to consider this opinion in reverse, starting with A.W. Bradley’s dissent, just to show you how easily this case could have been resolved. Bradley (joined by Abrahamson) says this case begins and ends with § 971.12(3), which provides:

The district attorney shall advise the court prior to trial if the district attorney intends to use the statement of a co-defendant which implicates another defendant in the crime charged. Thereupon, the judge shall grant a severance as to any such defendant.

Nieves and a co-defendant, Maldonado, were charged with multiple crimes including 1st degree intentional homicide. At trial, the State planned to call an inmate who would testify that Maldonado told him that Maldonado and Nieves committed the homicide at issue. Naturally, Nieves’ lawyer moved to sever the two trials. Following the plain language of said statute above, A.W. Bradley (and the court of appeals) said that the trial court should have severed the trial of Nieves and Maldonado. End of story.

But why waste a perfectly good inculpatory statement on one defendant if you can use it against two? That may have been the majority’s thinking when it embraced the big constitutional issue that the State forgot to brief in the court of appeals. Here’s the condensed version of the majority’s opinion:

  • Under the 6th and 5th Amendments, a criminal defendant has both the right to confront witnesses who testify against  him and the right to remain silent, or not incriminate himself.
  • An out-of-court statement made by a co-defendant that inculpates the defendant cannot be introduced at trial when the co-defendant does not take the stand. Otherwise, the defendant would be denied his right to confront the co-defendant/witness. Bruton v. U.S., 391 U.S. 123 (1968). Op. ¶23.
  • Crawford v. Washington, 541 U.S. 36 (2004) “insinuated” that the Confrontation Clause applies only to “testimonial” statements. Op. ¶29.  Subsequent cases have directly held that the Confrontation Clause applies only to testimonial statements. See Davis v. Washington, 547 U.S. 813, 823 (2006); Michigan v. Bryant, 562 U.S. 344, 359 (2011). Op. ¶29.
  • Due to Crawford et al., the Bruton doctrine applies only where a non-testifying co-defendant makes a “testimonial” statements. Op. ¶33.
  • To determine whether a statement is testimonial or nontestimonial, the trial court must examine the circumstances in which it was made. Statements made to persons who are not law enforcement officers are not likely to be “testimonial.” Ditto with respect to statements made in an “informal setting.” Op. ¶¶41-44.
  • In this case, Maldonado made several statements that inculpated him and Nieves to a fellow inmate while they were at the Milwaukee County Criminal Justice Facility. Maldonado was not talking to an officer. The setting, at least to SCOW’s mind, was “informal.” The conversation was “casual.” Thus, Maldonado’s statements were not “testimonial,” and, says SCOW, the admission of them at trial did not violate Nieves’ Confrontation Clause rights.  Op. ¶¶46-51.

So what about the trial court’s violation of § 971.12(3)? Harmless error, of course. Op. ¶¶52-61. Back to Bruton. It was decided before Crawford. However, SCOTUS has never addressed whether Crawford limits the Bruton doctrine to testimonial statements. For an entertaining analysis of  Crawford‘s fallout read Bill Tyroler’s post on Michigan v. Bryant here. If you want to know what Bill and other big brains think about Crawford‘s impact on Bruton specifically, read the comment section of this post on the Confrontation Blog.

Note that SCOTUS has never held that an inculpatory statement by one inmate to another is “non-testimonial.” The plurality opinion in Dutton v. Evans, 400 U.S. 74, 87-89 (1970) did hold that view. But, as On Point readers know, a plurality opinion is not a majority opinion.

Bottom line: This case wants a cert petition.

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