                                                        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                                     (2016 – Unpublished)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,                            FILED
       v.                                                             JUN 29, 2017
Raymond L. Nieves,                                                       Diane M. Fremgen
                                                                      Clerk of Supreme Court
               Defendant-Appellant.




       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



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.


                                               2
                                                                      No.    2014AP1623-CR



     ¶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.


                                             3
                                                            No.     2014AP1623-CR



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




                                     4
                                                         No.     2014AP1623-CR



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.


                                       5
                                                                 No.     2014AP1623-CR



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.


                                         6
                                                                  No.    2014AP1623-CR



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.


                                           7
                                                                     No.       2014AP1623-CR



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




                                           8
                                                              No.    2014AP1623-CR



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 self-

incrimination 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.").


                                        9
                                                                       No.      2014AP1623-CR



      ¶21   In     Bruton,      the        defendant,       Bruton,       and        his    co-

defendant, 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


                                             10
                                                                     No.   2014AP1623-CR



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.


                                             11
                                                                             No.       2014AP1623-CR



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


                                                   12
                                                                    No.        2014AP1623-CR



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 cross-

examination.").


                                            13
                                                                          No.       2014AP1623-CR



      ¶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


                                                14
                                                                  No.     2014AP1623-CR



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.").


                                           15
                                                                     No.     2014AP1623-CR



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


                                           16
                                                               No.     2014AP1623-CR



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.").


                                         17
                                                                           No.        2014AP1623-CR



      ¶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


                                               18
                                                                     No.     2014AP1623-CR



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


                                             19
                                                               No.     2014AP1623-CR



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;


                                         20
                                                                              No.    2014AP1623-CR



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




                                                 21
                                                                          No.     2014AP1623-CR



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.


                                             22
                                                                              No.     2014AP1623-CR



       ¶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


                                                  23
                                                                      No.        2014AP1623-CR



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).




                                                24
                                                                No.   2014AP1623-CR



            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)).


                                        25
                                                                       No.    2014AP1623-CR



    ¶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.


                                               26
                                                           No.   2014AP1623-CR


    [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?
                                     27
                                                              No.     2014AP1623-CR


    [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?

                                       28
                                                   No.   2014AP1623-CR


[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.



                            29
                                                                       No.    2014AP1623-CR



       ¶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)
                                             30
                                                               No.     2014AP1623-CR



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.


                                          31
                                                                    No.    2014AP1623-CR



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.


                                            32
                                                            No.    2014AP1623-CR



    ¶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.




                                   33
                                                            No.    2014AP1623-CR.awb


     ¶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

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                                                                   No.   2014AP1623-CR.awb


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

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                                                                  No.     2014AP1623-CR.awb


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
                                          3
                                                                           No.    2014AP1623-CR.awb


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

                                                  4
                                                           No.   2014AP1623-CR.awb


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.


                                        5
                                                                        No.    2014AP1623-CR.awb


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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                                                                No.   2014AP1623-CR.awb


       ¶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.




                                           7
                                                               No.   2014AP1623-CR.awb

    ¶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-of-
court 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

                                          8
                                                  No.   2014AP1623-CR.awb


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



                                 9
                                                                No.   2014AP1623-CR.awb


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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                                                              No.    2014AP1623-CR.awb


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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    No.   2014AP1623-CR.awb




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