APPEAL from a judgment and an order of the circuit court for Milwaukee County: Cir. Ct. No. 2010CF5111, RICHARD J. SANKOVITZ and JEFFREY A. WAGNER, Judges.
Before Curley, P.J., Kessler and Brash, JJ.
¶1 Raymond L. Nieves appeals a judgment of conviction for first-degree intentional homicide, as a party to a crime and with the use of a dangerous weapon, contrary to Wis.Stat. §§ 940.01(1)(a), 939.50(3)(a), 939.05, and 939.63(1)(b) (2009-10),  and attempted first-degree intentional homicide, as a party to a crime and with the use of a dangerous weapon, contrary to Wis.Stat. §§ 940.01(1)(a), 939.50(3)(a), 939.32, 939.05, and 939.63(1)(b) (2009-10). Nieves also appeals the order denying his postconviction motion. On appeal, Nieves argues that: (1) the court erred when it denied, without a hearing, his postconviction motion asserting that his trial counsel was ineffective for failing to sufficiently investigate and present an alibi defense; (2) the trial court erred when it denied his pretrial severance motion; and (3) the trial court improperly admitted unreliable and prejudicial hearsay testimony at trial. Because we agree that the trial court erred in denying Nieves's motion to sever, and admitted unreliable and prejudicial hearsay testimony, we reverse and remand for a new trial.
¶2 This appeal arises from Nieves's convictions related to the April 11, 2009 shootings of victims Spencer Buckle and David. Buckle was killed and David was injured but survived.
¶3 A criminal complaint was filed on October 9, 2010, charging Nieves and his co-defendant, Johnny Maldonado, with first-degree intentional homicide, as a party to a crime and with the use of a dangerous weapon, and attempted first- degree intentional homicide, as a party to a crime and with the use of a dangerous weapon. The complaint alleged that on or about Saturday, April 11, 2009, Nieves and Maldonado were involved in a shooting in an alley near West Windlake Avenue in the City of Milwaukee that resulted in the death of Spencer Buckle and nonfatal injuries to David. Per the complaint, David told police officers that prior to the shootings, he and Buckle had been with Nieves and Maldonado, who had suggested they drive to Milwaukee to hang out with other Maniac Latin Disciple gang members. According to David, when they arrived in Milwaukee, he, Buckle, Nieves, and Maldonado exited the vehicle and began walking in an alley. David described to officers that while they were walking in the alley, he heard a gunshot and saw Buckle fall to the ground and that he then dropped to the ground and played dead when he heard more gunshots. David said that after falling to the ground, he felt a pain in his left hand and he realized he had been shot, and he also felt air pass through his hoodie as bullets went past his head. David told the officers that Nieves had shot Buckle and that he had been shot at by Maldonado.
¶4 Nieves and Maldonado were tried together as codefendants before a jury in March 2012. David testified at trial. According to his testimony, he, Buckle, Nieves, and Maldonado were affiliated with the Maniac Latin Disciple gang, and he also provided extensive testimony regarding the shootings that resulted in Buckle's death and his injuries. The trial court also allowed David to testify, over Nieves's objection, about a conversation he had prior to the shootings with an individual identified only as "Boogie Man." According to David, "Boogie Man" had told him that Nieves and Maldonado were planning to kill him.
¶5 Ramon Trinidad, a "jailhouse snitch, " also testified at trial. Trinidad spent time in jail with Nieves and Maldonado, and he testified as to conversations he had with both Nieves and Maldonado in which they each commented on their respective involvement in the shootings. The testimony at issue involves Trinidad's testimony as to conversations he had with Nieves's codefendant, Maldonado, concerning the alleged homicide of Buckle and the attempted homicide of David. Generally, Trinidad's testimony about what Maldonado told him used plural pronouns such as "they, " suggesting that Maldonado had told him that there was at least one other individual involved in the shootings.
¶6 The jury returned guilty verdicts on both counts. Nieves thereafter filed a postconviction motion on December 12, 2013, in which he argued that: (1) the trial court had erred in failing to grant his motion to sever his trial from Maldonado's as required by Bruton; (2) the trial court erred in allowing David to testify about what "Boogie Man" told him because it was inadmissible hearsay; and (3) he had ineffective assistance of trial counsel. An order denying Nieves's postconviction motion was entered on June 24, 2014. Nieves appeals the judgment of conviction and the order denying his post conviction motion.
¶7 Additional facts are developed below.
¶8 Nieves appeals the judgment of conviction entered against him on the intentional homicide and attempted intentional homicide charges, as well as the order denying his postconviction motion. On appeal, Nieves raises the same arguments raised in his postconviction motion: (1) his trial counsel was ineffective and that he was entitled to a hearing on his ineffective assistance of counsel claim; (2) he is entitled to a new trial because the trial court erred in denying his motion to sever his trial from his codefendant's trial; and (3) the trial court erroneously admitted hearsay evidence at trial. Because we agree that the trial court should have severed the cases, we begin by addressing that issue. See State v. Rushing, 197 Wis.2d 631, 641, 541 N.W.2d 155 (Ct. App. 1995) (appellate court will decide case on narrowest possible ground).
I. The trial court erred in denying Nieves's motion to sever.
¶9 Wisconsin Stat. § 971.12 governs joinder of defendants for trial. Defendants may be charged in the same complaint, information, or indictment based on participation in the same criminal act, see § 971.12(2), and "[i]f it appears that a defendant … is prejudiced by … such joinder for trial together, the court may … grant a severance of defendants or provide whatever other relief justice requires." Sec. 971.12(3). Importantly, "[t]he 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." Id.
¶10 The decision to sever codefendants in a joint trial is normally within the trial court's discretion. Cranmore v. State, 85 Wis.2d 722, 755, 271 N.W.2d 402 (Ct. App. 1978). We generally review the trial court's denial of a motion to sever under the erroneous exercise of discretion standard. See id. The exercise of discretion cannot be based on an erroneous view of the law, see State v. Martinez, 150 Wis.2d 62, 71, 440 N.W.2d 783 (1989), and what constitutes an erroneous exercise of discretion depends upon the facts of each case, see State v. Brown, 114 Wis.2d 554, 559, 338 N.W.2d 857 (Ct. App. 1983). Moreover, whether the trial court's admission of evidence violates a defendant's confrontation rights is a question of law. See State v. Manuel, 2005 WI 75, ¶25, 281 Wis.2d 554, 697 N.W.2d 811. Nieves further argues that the trial court failed to recognize that aspects of Trinidad's testimony violated his confrontation rights, which is a question of law that we review de novo. See id.
¶11 The Confrontation Clause of the Sixth Amendment grants criminal defendants the right to confront witnesses brought against them and is applicable to the states via the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965); see also Manuel, 281 Wis.2d 554, ¶36. Article I, § 7 of the Wisconsin Constitution also guarantees this right. See Manuel, 281 Wis.2d 554, ¶36. This guarantee includes the right to cross-examine the prosecution's witnesses. See Wis. Const. art. I, § 7; see also Pointer, 380 U.S. at 404. As such, in the context of a joint trial, the confession of one defendant is inadmissible against the other unless the confessing defendant testifies and is subject to cross-examination. See Bruton v. United States, 391 U.S. 123, 126, 137 (1968). Wisconsin Stat. § 971.12(3) provides a mechanism for complying with the Bruton requirement in the Wisconsin Statutes. See State v. King, 205 Wis.2d 81, 97, 555 N.W.2d 189 (Ct. App. 1996).
¶12 Two United States Supreme Court cases are particularly relevant to our analysis: Bruton, 391 U.S. 123, and Richardson v. Marsh, 481 U.S. 200 (1987). In Bruton, the Supreme Court held that a defendant's Confrontation Clause rights are violated when the confession of a codefendant that explicitly implicates the other defendant in the commission of a crime is admitted at their joint trial and the confessing codefendant does not testify. Id., 391 U.S. at 135-36. The Bruton court also concluded that a limiting instruction under such circumstances is insufficient to cure the confrontation violation. See id. at 137.
¶13 There are limited exceptions to Bruton. See Richardson, 481 U.S. at 211. In Richardson, the prosecution introduced at trial a nontestifying codefendant's written confession that had been redacted to eliminate all references to the petitioner. Id., 481 U.S. at 203-05. The Supreme Court affirmed the confession's admission, explaining 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." Id. at 211 (emphasis added).
¶14 Prior to trial in this case, Nieves filed a motion to sever on the grounds that a State witness, Ramon Trinidad, intended to testify about a confession Maldonado allegedly made to him concerning his (Maldonado's) involvement in the shootings of Buckle and David. Based on written statements of what Trinidad disclosed to the State, portions of Maldonado's alleged confession mentioned, or at least implicitly referenced, Nieves. The trial court held a motion hearing, and the State argued that severance was unnecessary because it could couch its questions of Trinidad concerning his conversation with Maldonado in a manner that would preclude any mention of Nieves. Nieves's trial counsel disagreed, pointing to multiple instances in Trinidad's statements where Maldonado referred to what "they" had been doing leading up to the shootings, including Maldonado's statement "that they were either at Nieves's mother's house or Nieves's baby mama's house in Kenosha."
¶15 The trial court disagreed that Maldonado's alleged statement about having been at Nieves's mother's or "baby mama's" house implicated Nieves contrary to Bruton, even if that statement did implicate Nieves. The trial court went on to state that if it followed Nieves's argument, it would
set a precedent that any time two co-defendants are step-by-step involved in the same crime, they could never be tried together because the coincidence of their steps, the comparison of their two steps tends to be reinforced if each were involved, because they took the same steps at the same time.
But that's not the law. The law about severing cases has to do with when one codefendant makes a statement against the other codefendant. And that's not the case here.
All Maldonado is saying is where he was. That's not saying Mr. Nieves was there. That's not saying Mr. Nieves was involved in the crime.
¶16 Trial counsel then pointed out instances in Trinidad's statement where Maldonado allegedly referred to "they" or to Nieves, and the trial court indicated that the State could simply ask Trinidad "what Mr. Maldonado said about what Mr. Maldonado did." After trial counsel attempted to point to more specific comments that Maldonado allegedly made about Nieves's involvement, the trial court cut counsel off and stated, without further argument, that it was denying Nieves's motion to sever and that Nieves could later "raise additional reasons why [the court] should sever [the trials] that aren't resolved by the proposal … to confine … questions to the informant to conversations that involve the defendant against whom those statements would be admissible as the statements of party opponent."
¶17 Nieves renewed his request to sever his trial from Maldonado's at the conclusion of voir dire. The trial court denied that request, stating that it was "satisfied with the State's offer to make sure they are not going to use the testimony against Mr. Maldonado against ...