A defendant has the right to confront witnesses against him or her, as guaranteed by the Sixth Amendment to the United Stated Constitution as well as the Wisconsin Constitution. State v. Nieves , 2017 WI 69, ¶18, 376 Wis. 2d 300, 897 N.W.2d 363. "[W]hether the admission of evidence violates a defendant’s right to confrontation is a question of law subject to independent appellate review."
This court ordered a new trial, but the Wisconsin Supreme Court reversed, reinstated the judgment of conviction, and remanded the case to this court for consideration of an ineffective assistance claim.SeeState v. Nieves , 2017 WI 69, ¶¶1, 4, 376 Wis. 2d 300, 897 N.W.2d 363. The supreme court considered several issues in Nieves , two of which are relevant to this appeal.
Id. at *4 (citing State v. Nieves, 897 N.W.2d 363, 369 (Wis. 2017)). Still, however, “as demonstrated by Davis, a defendant also has a constitutional right against self-incrimination afforded by the Fifth Amendment.”
Whether the admission of a statement violates the defendant's Confrontation Clause right is "a question of constitutional law subject to independent review." State v. Nieves, 2017 WI 69, ¶ 15, 376 Wis. 2d 300, 897 N.W.2d 363 (citations omitted). " ‘We generally apply United States Supreme Court precedents when interpreting’ the Sixth Amendment and the analogous Article 1, Section 7 of the Wisconsin Constitution."
Post- Crawford , federal courts and state courts have consistently rejected claims that the admission of inmate to inmate or inmate to informant statements inculpating a defendant, whether recorded or not, violated his or her confrontation rights. See, e.g., United States v. Veloz , 948 F.3d 418, 430–32 (1st Cir.), cert. denied, ––– U.S. ––––, 141 S. Ct. 438, 208 L. Ed. 2d 133 (2020) ; United States v. Dargan , 738 F.3d 643, 650–51 (4th Cir. 2013) ; United States v. Dale , 614 F.3d 942, 954–56 (8th Cir. 2010), cert. denied, 563 U.S. 918, 131 S. Ct. 1814, 179 L. Ed. 2d 774 (2011), and cert. denied sub nom. Johnson v. United States , 563 U.S. 919, 131 S. Ct. 1814, 179 L. Ed. 2d 775 (2011) ; United States v. Smalls , 605 F.3d 765, 778 (10th Cir. 2010) ; People v. Arauz , 210 Cal. App. 4th 1394, 1402, 149 Cal. Rptr. 3d 211 (2012) ; State v. Nieves , 376 Wis. 2d 300, 326–27, 897 N.W.2d 363 (2017). Courts also have routinely held that statements made unwittingly to a government agent or an undercover officer, outside of the prison context, are nontestimonial. See, e.g., Brown v. Epps , 686 F.3d 281, 287 and n.35 (5th Cir. 2012) (citing cases reaching this conclusion).
"'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. Nieves, 2017 WI 69, ¶15, 376 Wis.2d 300, 897 N.W.2d 363 (quoting State v. Jensen, 2007 WI 26, ¶13, 299 Wis.2d 267, 727 N.W.2d 518). ¶ 45 Under the Confrontation Clause, out-of-court statements that are both hearsay and testimonial are not admissible against a criminal defendant unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness.
State v. Nieves, 2017 WI 69, ¶16, 376 Wis.2d 300, 897 N.W.2d 363. As long as the circuit court "examined the relevant facts, applied a proper legal standard, and, using a demonstrated rational process, reached a reasonable conclusion," we will not disturb its ruling.
Even after Bryant and Clark, we continue to cite Crawford and Davis in resolving whether an unavailable witness's statement is testimonial. See State v. Reinwand, 2019 WI 25, ¶¶19-22, 385 Wis. 2d 700, 924 N.W.2d 184; State v. Nieves, 2017 WI 69, ¶¶26-29, 376 Wis. 2d 300, 897 N.W.2d 363; State v. Zamzow, 2017 WI 29, ¶13, 374 Wis. 2d 220, 892 N.W.2d 367; State v. Mattox, 2017 WI 9, ¶¶24-25, 373 Wis. 2d 122, 890 N.W.2d 256. Even more to the point, on the limited occasions we have cited Bryant or Clark, we have interpreted them as continuing to apply the primary purpose test.
¶16 We review Hanson's claims that his Sixth Amendment right to confrontation was violated and that his trial counsel was ineffective. Whether a defendant's Sixth Amendment right to confrontation was violated is a " ‘question of constitutional law subject to independent review.’ " State v. Nieves, 2017 WI 69, ¶15, 376 Wis. 2d 300, 897 N.W.2d 363 (quoted source omitted). "We generally apply United States Supreme Court precedents when interpreting" the Sixth Amendment and the analogous Article I, Section 7 of the Wisconsin Constitution.
The harmless error doctrine instructs that in every stage of an action, courts shall disregard errors or defects that do not affect the substantial rights of the adverse party. WIS. STAT. § 805.18; State v. Nieves, 2017 WI 69, ¶60, 376 Wis.2d 300, 897 N.W.2d 363