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State v. Nieves

Supreme Court of Wisconsin

June 29, 2017

State of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Raymond L. Nieves, Defendant-Appellant.

          Oral argument: January 19, 2017

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis.2d 260, 881 N.W.2d 358

         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.

         Circuit Court Milwaukee County L.C. No. 2010CF5111 Richard J. Sankovitz and Jeffrey A. Wagner Judge

          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.

          PATIENCE DRAKE ROGGENSACK, C.J.

         ¶1 We review a decision of the court of appeals[1] 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 weapon[2] and 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.

         ¶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's[5] 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 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 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 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, 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 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 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.").

         ¶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 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 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 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.") .

         ¶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 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 Washington[13] 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 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 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."

         ¶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 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 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; 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 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.

         ¶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 ...


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