argument: January 19, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis.2d
260, 881 N.W.2d 358
of a decision of the Court of Appeals. The decision of the
court of appeals is reversed and cause remanded to the court
Court Milwaukee County L.C. No. 2010CF5111 Richard J.
Sankovitz and Jeffrey A. Wagner Judge
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.
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.
We review a decision of the court of appeals 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 and attempted
first-degree intentional homicide, as a party to the crime
and with the use of a dangerous weapon. 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).Second, Nieves contends that the circuit
court erred in admitting the statement of "Boogie
Man" because it was inadmissible hearsay.
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.
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 testimony was also harmless. Each
alleged error was inconsequential when viewed in light of the
subsequent testimony of David, the surviving victim.
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.
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
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.
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
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. While at Nieves' home in
Kenosha, Nieves did not allow David to communicate with
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.
Trinidad, the jailhouse informant, also testified at the
trial. 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
However, the information conveyed to Trinidad by Maldonado
was much more extensive. 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. 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."
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.
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.
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.
Standard of Review
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).
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).
"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.
"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.
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)).
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.").
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.
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.
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.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.").
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
Crawford and Its Progeny
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).
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.
"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.
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
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 . . . .").
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.
Reconciling Bruton and Crawford
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.
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)).
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 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)
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).
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.
Confrontation Clause, Application
Definition of Testimonial
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."
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.
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
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.
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.
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
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.") .
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.
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
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
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. Trinidad testified that the conversation
between him and Maldonado occurred while both were housed at
the Milwaukee County Criminal Justice Facility.
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.
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 ...