State v. Nestor Luis Vega

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 23, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP126-CR Cir. Ct. No. 2016CF296

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NESTOR LUIS VEGA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Portage County: ROBERT J. SHANNON, Judge. Reversed and cause remanded
with directions.

Before Blanchard, P.J., Fitzpatrick, and Nashold, JJ.

¶1 FITZPATRICK, J. Nestor Luis Vega was arrested after an
informant told law enforcement officers that he purchased heroin from Vega on
five separate occasions. Vega was charged with: five counts of delivery of
No. 2021AP126-CR

heroin; felony possession of tetrahydrocannabinol (THC); maintaining a drug
trafficking place; and two counts of felony bail jumping. Vega pled no contest to
possession of THC and the bail jumping charges, and the case proceeded to trial in
the Portage County Circuit Court on the remaining charges.

¶2 At trial, the State sought to prove that Vega sold heroin to the
informant during each of five controlled purchases. In support, the State presented
testimony from the informant and two officers involved with organizing the
alleged controlled purchases. Vega testified in his own defense and asserted that
he had never sold heroin and indicated that the informant was not telling the truth.
On cross-examination, the prosecutor asked Vega three questions regarding
Vega’s exercise of his right to remain silent after his arrest, including Vega’s
decision not to provide his exculpatory version of events to the police. The circuit
court overruled Vega’s objection to these questions, and the prosecutor proceeded
to ask another three questions on the same subject. The jury found Vega guilty on
all counts.

¶3 Vega filed a postconviction motion seeking a new trial on the ground
that his constitutional rights were violated because the prosecutor questioned him
at trial about his exercise of his right to remain silent after he had been arrested
and was read the Miranda1 warnings. The circuit court denied Vega’s motion,
stating that the questions did not violate Vega’s constitutional rights and, even if
those questions did, the error was harmless because the jury would have found

1
Miranda v. Arizona, 384 U.S. 436, 479 (1966) (holding that a person taken into
custody “must be warned prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the right to the presence of
an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires”).

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No. 2021AP126-CR

Vega guilty absent the questions. Vega appeals his judgment of conviction and
the circuit court’s order denying his postconviction motion.

¶4 For the following reasons, we conclude that Vega is entitled to a new
trial. First, the prosecutor’s questions regarding Vega’s exercise of his
constitutional right after he was arrested violated Vega’s due process rights.
Second, those constitutionally prohibited questions were not harmless error
because the State has not met its burden to prove beyond a reasonable doubt that
those questions did not contribute to the jury’s verdict. Accordingly, we reverse
Vega’s judgment of conviction with respect to the counts relating to delivery of
heroin and maintaining a drug trafficking place and the circuit court’s order
denying Vega’s postconviction motion, and remand this matter for a new trial.

BACKGROUND

¶5 As noted, and as pertinent to this appeal, Vega was charged with five
counts of delivery of heroin and maintaining a drug trafficking place, and the case
proceeded to trial on those charges.

I. Trial Evidence.

¶6 The State presented testimony from two law enforcement officers
with the Stevens Point Police Department which we now summarize. The officers
testified that police asked Michael Gershon, an informant, to attempt to purchase
heroin from Vega and he agreed to do so on five separate occasions over the
course of ten days. Prior to each occasion, Gershon called Vega to set up a
meeting, and law enforcement did not record or listen in on any of those calls.

¶7 Also prior to each occasion, the officers provided Gershon with
prerecorded money and searched him in an attempt to ensure that he was not

3
No. 2021AP126-CR

carrying any other money, controlled substances, or weapons. Gershon was not
searched under his clothing or asked to remove his shoes during each search. On
each occasion, the police fitted Gershon with a recording device to record
Gershon’s interactions with Vega. The officers then drove Gershon to a location,
usually Vega’s residence. During each occasion, Gershon walked from the
officer’s vehicle, met with Vega out of sight of the police, then walked back to a
predetermined location and gave heroin to the officers that Gershon said he had
just purchased from Vega. Each package of heroin that Gershon handed over to
the officers was described as being the size of a “big kernel of corn” or “half of the
size of a marble.” A controlled substance analyst from the Wisconsin State Crime
Lab testified at trial that the substances delivered by Gershon to the officers
contained heroin. The State did not test the heroin packages delivered by Gershon
to the police for Vega’s fingerprints or DNA.

¶8 Five days after the final time Gershon met with Vega, officers
stopped Vega’s vehicle, placed him under arrest, read the Miranda warnings to
Vega, and searched Vega and his vehicle. The police also obtained a warrant to
search his residence, and the search of the residence was conducted on the same
day Vega was arrested and his vehicle was searched. The officers discovered
marijuana and marijuana-related items during these searches, but did not find
heroin or other evidence indicating the sale or distribution of controlled
substances. None of the pre-recorded money that the officers gave to Gershon was
recovered in the searches.

¶9 Pertinent to this appeal, Gershon testified that one reason he began
working as an informant was because he was being investigated for theft and
needed to buy back stolen items that he had sold to Vega. Gershon agreed to
conduct controlled purchases of heroin from Vega in exchange for law

4
No. 2021AP126-CR

enforcement providing the funds for Gershon to purchase the stolen items from
Vega.

¶10 During Gershon’s testimony, the prosecutor played audio recordings
of each meeting—as well as some video recordings that were taken from outside
of Vega’s residence—and asked Gershon to describe the events that were
occurring on the recordings. The voices of Gershon, Vega, and the officers could
be heard at times on the audio recordings, but the voices were usually muffled.2
Gershon testified to his recollection and interpretation of the recorded
conversations with Vega. However, the audio recordings played for the jury did
not contain any intelligible dialogue between Gershon and Vega that referenced
heroin. Further, while the video recordings showed Gershon approaching Vega’s
residence, none of those recordings depicted an exchange of money or heroin
between Vega and Gershon.

¶11 Vega called Naila Santiago, his long-term girlfriend, as a witness.
Santiago testified that she did not allow heroin in the home she shared with Vega
and had never seen Vega possess or sell heroin. She also stated that Gershon
would occasionally visit the house and play video games with Vega, but she
admitted that she could not remember every time Gershon had come to the house
and was not always aware of what Gershon and Vega were doing when Gershon
visited.

2
The State, in briefing in this court, mentions that the audio recordings of the alleged
transactions between Gershon and Vega were played for the jury. However, the State does not
attempt to quote from those audio recordings and, instead, the State relies on Gershon’s
recollections and his interpretations of the recordings. We observe that the circuit court, outside
the presence of the jury, stated that the audio recordings were “virtually unintelligible from my
perspective, which is exactly the same perspective as this jury has.”

5
No. 2021AP126-CR

¶12 Vega testified in his own defense. On direct examination, Vega
testified that he had never possessed or sold heroin and denied giving heroin to
Gershon on the dates of the alleged controlled buys. Vega testified that Gershon
was a friend who sometimes visited Vega’s residence to smoke marijuana and play
video games. Vega further testified that he had met with Gershon on each of the
days that Gershon said he bought heroin from Vega. According to Vega, the
purpose of each of these visits was not for Gershon to purchase heroin from Vega.
Rather, the purposes were for Gershon to pay Vega for both a tool set and other
property, and for Gershon to look for cigarettes and a food stamp card that
Gershon said he dropped at Vega’s residence.

¶13 On cross-examination, the prosecutor asked Vega a series of
questions regarding his exercise of his right to remain silent after his arrest. The
following exchange occurred during this line of questioning:

[Prosecutor]. Now, I’m assuming that on June 27th
or into the early morning hours of June 28th when you
were taken into custody Detective Schultz must have
approached you to talk about what was going on, right?

[Vega]. On the 27th?

[Prosecutor]. After the traffic stop when you were
arrested.

[Vega]. No. He came by -- He -- He read me my
rights and told me that I was being arrested for five
controlled buys.

[Prosecutor]. All right. So I’m assuming at some
point -- Okay. So did he tell you the reason for you being
placed under arrest was for selling heroin?

[Vega]. Correct.

[Prosecutor]. All right. And I’m assuming, based
on your testimony here today, that that was a shock to you?

[Vega]. Yes, it was.

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No. 2021AP126-CR

[Prosecutor]. And I’m assuming because of what
your testimony is here today that you didn’t sell heroin; you
would have wanted to tell the detective that you didn’t sell
heroin?

[Vega]. Correct. But I also have the right to remain
silent.

[Prosecutor]. But you didn’t -- So you didn’t make
any effort to talk to the detective about the fact that you
were innocent of these charges?

[Vega]. No.

[Prosecutor]. And you didn’t take any opportunity
after that point to contact Detective Schultz to explain
Mr. Gershon’s presence at your residence on those five
occasions?

¶14 At this point, Vega’s attorney objected, and a sidebar discussion was
held between both counsel and the circuit court. Vega’s attorney explained during
the sidebar that he was objecting to the prosecutor’s “continued questions about
exercising the right to remain silent.” The prosecutor responded that the
questioning was not a comment on Vega’s exercise of his right to remain silent.
Instead, the prosecutor argued that the questioning was proper because “a
defendant at any point in time once they invoke [the right to remain silent] can
always take it back and choose to make comments.” The circuit court agreed with
the State’s position and overruled the objection.

¶15 After the sidebar, the prosecutor continued this line of questioning:

[Prosecutor]. So, again, Mr. Vega, you have
recounted for the jury here today your explanation of the
five times when Mr. Gershon was at your residence and
what those were for. I’m assuming you knew this same
information back on June 28th when all of this happened
and you were arrested.

[Vega]. On the 27th, you mean?

[Prosecutor]. Right.

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No. 2021AP126-CR

[Vega]. Well, I don’t know what he all meant when
he said I had five control buys. I didn’t know what that
was for.

[Prosecutor]. That’s not my question. My question
is what you told us today I’m assuming you knew back on
June 27th, correct?

[Vega]. Correct.

[Prosecutor]. All right. So if you knew it on
June 27th -- I understand that day you chose not to talk
with the officers, but even after that point you never made
any effort to contact the police to talk about what happened
from your point of view?

[Vega]. If I wouldn’t have known what it’s about,
what am I going to talk about?

[Prosecutor]. You never made any attempt after
June 28th to talk with law enforcement to share this
information with them that you shared with the jury here
today?

[Vega]. No.

[Prosecutor]. And I’m assuming you had the
opportunity to do so. You just chose not to.

[Vega]. That’s one of my rights.

¶16 The jury found Vega guilty of five counts of delivery of heroin and
one count of maintaining a drug trafficking place.

II. Postconviction Proceedings.

¶17 Vega filed a postconviction motion seeking a new trial on the ground
that the circuit court erred in allowing the prosecutor to question him about his
decision not to speak with the police after he had been arrested and read the

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No. 2021AP126-CR

Miranda warnings.3 The circuit court held a hearing and denied Vega’s motion.
The court concluded that the prosecutor’s questions regarding Vega’s post-arrest
silence were proper because those questions were aimed at impeaching Vega’s
testimony that he did not know he was being arrested for the sale of heroin. The
circuit court also reasoned that, even if the prosecutor’s questions violated Vega’s
constitutional rights, the court would still deny Vega’s motion because there was
no reasonable possibility that those questions contributed to the jury’s decision.

¶18 Vega appeals the judgment of conviction regarding the convictions
for delivery of heroin and maintaining a drug trafficking place 4 and the circuit
court order denying his postconviction motion.

¶19 We mention other material facts in the following discussion.

DISCUSSION

¶20 We begin by addressing Vega’s argument that the circuit court erred
in permitting the prosecutor to question Vega regarding his exercise of his right to
remain silent after his arrest.

3
Vega also argued in his postconviction motion that, if the State would argue that
Vega’s trial counsel did not timely object to these questions, then his trial counsel provided
constitutionally ineffective assistance by failing to timely object to the State’s questioning on this
subject. The State does not argue on appeal, and did not argue in the circuit court, that Vega’s
counsel failed to properly preserve an objection to the State’s line of questioning. Accordingly,
we do not consider Vega’s contentions regarding ineffective assistance of counsel.
4
Vega does not request a new trial on his convictions for bail jumping or possession of
THC.

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No. 2021AP126-CR

I. The Prosecutor’s Questioning Regarding Vega’s Exercise of His
Constitutional Right.

A. Standard of Review and Governing Principles.

¶21 This appeal requires us to determine whether the prosecutor’s
questioning regarding Vega’s exercise of his right to remain silent after his arrest
and receipt of Miranda warnings violated Vega’s due process rights under the
Fourteenth Amendment to the United States Constitution. See State v. Brecht,
143 Wis. 2d 297, 316, 421 N.W.2d 96 (1988) (citing Doyle v. Ohio, 426 U.S. 610
(1976)). “The application of constitutional principles to undisputed facts presents
a question of law, which we review de novo.” State v. Cockrell, 2007 WI App
217, ¶14, 306 Wis. 2d 52, 741 N.W.2d 267.

¶22 “It is well established that it is fundamentally unfair and a violation
of a defendant’s constitutional right to due process to use a defendant’s silence
after receipt of Miranda warnings for impeachment purposes at trial.” Brecht,
143 Wis. 2d at 316.5 The basis for this rule is twofold. First, “because an
arrestee’s silence following Miranda warnings may be nothing more than his or
her exercise of Miranda rights, post-Miranda silence is insolubly ambiguous.”
Id. (citing Doyle, 426 U.S. at 617-18); Reichhoff v. State, 76 Wis. 2d 375, 382,
251 N.W.2d 470 (1977) (noting that in-custody silence is “so ambiguous that it is
of little probative force” (citation omitted)). “Second, and more important, it

5
“[I]n Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 71 L.Ed. 2d 490 (1982), the
Court held that [Doyle v. Ohio, 426 U.S. 610 (1976)] applied only where the person had been
given Miranda warnings, not to post-arrest silence where no Miranda warnings had been given.”
State v. Cockrell, 2007 WI App 217, ¶15 n.4, 306 Wis. 2d 52, 741 N.W.2d 267; see also State v.
Brecht, 143 Wis. 2d 297, 316, 421 N.W.2d 96 (1988).

10
No. 2021AP126-CR

would be fundamentally unfair to allow an arrestee’s silence to be used to impeach
an explanation subsequently offered at trial after he or she has been impliedly
assured, by Miranda warnings, that silence will carry no penalty.” Brecht, 143
Wis. 2d at 316 (citing Doyle, 426 U.S. at 617-18).

¶23 The facts of this case are very similar to the facts presented in Doyle.
There, Doyle was arrested for selling marijuana to an informant during a
controlled purchase and was read the Miranda warnings at the time of his arrest.
Doyle, 426 U.S. at 611-12. At trial, Doyle testified that he had been framed by the
informant. Id. at 612-13. On cross-examination, the prosecutor asked Doyle why
he had remained silent after his arrest and had not informed the officers that he
was allegedly framed by the informant. Id. at 614 n.5. His counsel’s objections
were overruled, and Doyle was convicted. Id. at 614. On appeal, the Supreme
Court held that the prosecutor’s use of Doyle’s silence to impeach his exculpatory
account violated the Due Process Clause of the Fourteenth Amendment. Id. at
619. The Court provided further reasoning and stated:

[W]hile it is true that the Miranda warnings contain no
express assurance that the silence will carry no penalty,
such assurance is implicit to any person who receives the
warnings. In such circumstances, it would be
fundamentally unfair and a deprivation of due process to
allow the arrested person’s silence to be used to impeach an
explanation subsequently offered at trial.…

… “[I]t does not comport with due process to
permit the prosecution during the trial to call attention to
[the defendant’s] silence at the time of arrest and to insist
that because he did not speak about the facts of the case at
that time, as he was told he need not do, an unfavorable
inference might be drawn as to the truth of his trial
testimony.”

Doyle, 426 U.S. at 618-19 (citations and footnote omitted).

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No. 2021AP126-CR

B. The Prosecutor’s Questions Violated Vega’s Due Process Rights.

¶24 The circuit court erred in allowing the prosecutor’s questioning of
Vega regarding his exercise of his right to remain silent after his arrest and receipt
of Miranda warnings because the questions violated his due process rights under
the Fourteenth Amendment. To repeat, Vega was arrested, read the Miranda
warnings, and charged with selling heroin to an informant. Like the prosecutor in
Doyle, the prosecutor here asked Vega during cross-examination why he made no
effort to inform the officers of his version of events. The State attempted to use
Vega’s exercise of his right to remain silent to draw an unfavorable inference as to
the truth of Vega’s trial testimony giving an exculpatory version of events, even
though Vega had been “impliedly assured, by Miranda warnings, that silence will
carry no penalty.” See Brecht, 143 Wis. 2d at 316 (citing Doyle, 426 U.S. at 617-
18). We follow the Supreme Court’s reasoning in Doyle, and our supreme court’s
reasoning in Brecht, and conclude that the prosecutor’s questioning and the circuit
court’s ruling constituted error that violated Vega’s due process rights under the
Fourteenth Amendment.6

II. Harmless Error.

¶25 The State contends that Vega is not entitled to a new trial because
the improper questioning of Vega during cross-examination, and the circuit court’s

6
We note that the State does not expressly concede that the questioning of Vega, and the
circuit court’s ruling, violated Vega’s constitutional rights. Nonetheless, in briefing in this court,
the State does not attempt to refute Vega’s argument that there was error. Therefore, even
beyond the substantive analysis we have provided in the text, we further interpret the State to
concede error. State v. Moore, 2002 WI App 245, ¶13, 257 Wis. 2d 670, 653 N.W.2d 276
(holding that the State “tacitly admits error” when it fails to respond to the defendant’s argument).

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No. 2021AP126-CR

ruling, were harmless error. We begin our analysis of this issue by setting forth
our standard of review and governing principles regarding harmless error.

A. Standard of Review and Governing Principles.

¶26 Even if a court concludes that a prosecutor’s questions regarding a
defendant’s post-arrest, post-Miranda exercise of the right to remain silent were
allowed in error, the court need not grant a new trial if it concludes that the error is
harmless. Id. at 317-18. In criminal cases, “[t]he defendant has the initial burden
of proving an error occurred, after which the State must prove the error was
harmless.” State v. Sherman, 2008 WI App 57, ¶8, 310 Wis. 2d 248, 750 N.W.2d
500. Whether an error is harmless presents a question of law for our independent
review. State v. Beamon, 2013 WI 47, ¶19, 347 Wis. 2d 559, 830 N.W.2d 681.7

¶27 Wisconsin’s harmless error rule is codified in WIS. STAT. § 805.18
(2019-20)8 and is made applicable to criminal proceedings by WIS. STAT.
§ 972.11(1). Sherman, 310 Wis. 2d 248, ¶8. Under this rule, “error is harmless if
7
The State does not dispute Vega’s contention that the remedy in these circumstances, if
the error is not harmless, is vacation of the convictions for delivery of heroin and maintaining a
drug trafficking place and a new trial on those counts.
8
WISCONSIN STAT. § 805.18(2) states, in full:

No judgment shall be reversed or set aside or new trial
granted in any action or proceeding on the ground of selection or
misdirection of the jury, or the improper admission of evidence,
or for error as to any matter of pleading or procedure, unless in
the opinion of the court to which the application is made, after an
examination of the entire action or proceeding, it shall appear
that the error complained of has affected the substantial rights of
the party seeking to reverse or set aside the judgment, or to
secure a new trial.

All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP126-CR

the beneficiary of the error proves ‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’” State v. Martin, 2012
WI 96, ¶45, 343 Wis. 2d 278, 816 N.W.2d 270 (quoting State v. Mayo, 2007 WI
78, ¶47, 301 Wis. 2d 642, 734 N.W.2d 115). Stated otherwise, this court “must be
satisfied, beyond a reasonable doubt, not that the jury could have convicted the
defendant (i.e., sufficient evidence existed to convict the defendant), but rather
that the jury would have arrived at the same verdict had the error not occurred.”
Martin, 343 Wis. 2d 278, ¶45 (citations omitted).

¶28 Several non-exhaustive factors assist in our analysis of whether an
error is harmless: (1) the frequency of the error; (2) the importance of the
erroneously admitted evidence; (3) the presence or absence of evidence
corroborating or contradicting the erroneously admitted evidence; (4) whether the
erroneously admitted evidence duplicates untainted evidence; (5) the nature of the
defense; (6) the nature of the State’s case; and (7) the overall strength of the
State’s case. Id., ¶46.

B. Harmless Error Factors.

¶29 We continue our analysis by next considering the relevant harmless
error factors.9

9
As noted, the list of harmless error factors set forth by our supreme court includes
seven factors. State v. Martin, 2012 WI 96, ¶46, 343 Wis. 2d 278, 816 N.W.2d 270. However,
we follow the lead of the parties and do not address the factors regarding “the presence or
absence of evidence corroborating or contradicting the erroneously admitted evidence” or
“whether the erroneously admitted evidence duplicates untainted evidence” because those factors
are not relevant in this context.

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No. 2021AP126-CR

1. Frequency of the Error.

¶30 The first factor we consider in our harmless error analysis is the
frequency of the error. See id. When analyzing this factor in the context of
unconstitutional references to a defendant’s exercise of the right to remain silent,
our supreme court often looks to the following facts about the proceedings: the
number of references made by the prosecution; the relative isolation or
concentration of the individual references; and whether the prosecution made a
reference during closing arguments. See, e.g., Reichhoff, 76 Wis. 2d at 381
(holding that the prosecutor’s comments on a defendant’s exercise of the right to
remain silent were prejudicial partially because the prosecution asked two
witnesses five different questions and commented “at some length” at two
different points during closing arguments); Brecht, 143 Wis. 2d at 317-18; State v.
Sorenson, 143 Wis. 2d 226, 263-64, 421 N.W.2d 77 (1988). Here, the State
contends that the prosecutor “asked a few questions” on this topic and “moved
on.” We disagree.

¶31 The prosecutor asked the constitutionally prohibited questions on the
final day of the three-day trial shortly before closing arguments. During this line
of questioning, the prosecutor asked Vega six separate questions that directly
addressed Vega’s post-arrest, post-Miranda exercise of his right to remain silent,
and Vega answered each question. The prosecutor also asked several questions
during that exchange regarding necessary background for the questions that
directly violated Vega’s due process rights. On the other hand, the prosecutor did
not make any further reference to Vega’s silence during closing arguments.

¶32 The frequency of the error under the first factor weighs slightly in
favor of prejudicial error. In a concentrated line of six questions, combined with

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No. 2021AP126-CR

other background-related questions, the prosecutor directly asked Vega why he
chose to remain silent after his arrest. The State contends that this factor weighs in
favor of harmless error because the prosecution did not return to the topic after this
line of questioning. The State’s discrete point that the prosecutor avoided the
topic during closing arguments weighs modestly in favor of harmless error.
Nonetheless, on balance and based on the number and concentration of the State’s
questions, along with the point in the trial during which the multiple questions
occurred, we conclude that the first factor weighs slightly in favor of prejudicial
error.

2. The Importance of the Erroneously Admitted Evidence and
the Nature of the Defense.10

¶33 We next consider the factor of the importance of the erroneously
admitted questions and answers regarding Vega’s exercise of his right to remain
silent. See Martin, 343 Wis. 2d 278, ¶46. When considering this factor, courts
often emphasize the pertinence of the erroneously admitted evidence to the
elements of the crimes charged and the importance of the evidence to the State’s
case. Id., ¶¶48-52; State v. Jorgensen, 2008 WI 60, ¶47, 310 Wis. 2d 138, 754
N.W.2d 77. We also examine the importance of those questions within the
framework of the nature of Vega’s defense. See Martin, 343 Wis. 2d 278, ¶46.

¶34 Vega argues that the prosecutor’s questions were not harmless
because Vega’s credibility was central to his defense. According to Vega, the

10
For clarity, we analyze together the factors regarding the importance of the
erroneously admitted evidence and the nature of the defense. We do the same later in this opinion
regarding the factors concerning the strength and nature of the State’s case.

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No. 2021AP126-CR

jury’s verdict “rested entirely” on evaluating Vega’s credibility, which had been
unconstitutionally impugned by the prosecutor’s questions about Vega’s exercise
of his right to remain silent.

¶35 Vega testified at trial that he had not sold heroin to anyone,
including Gershon. During closing argument, Vega set forth his defense that
Gershon was untrustworthy and had lied to the police by sneaking heroin past the
officers’ initial search and pocketing the recorded money that was meant to be
given to Vega. In support of his defense, Vega relied in part on the following
undisputed facts: Gershon was a heroin user at the time of these events; the
amount of heroin produced by Gershon to the officers was about the size of a large
kernel of corn; the police officers did not search under Gershon’s clothes before
Gershon met with Vega; the officers did not record or listen to the phone calls
between Vega and Gershon that set up the meetings; the audio recordings of the
transactions did not reference heroin;11 the video recordings did not depict, nor did
police observe, an exchange of money or heroin; the State did not present evidence
that Vega’s fingerprints or his DNA were found on the heroin packages; and no
heroin or recorded money was recovered during the officers’ search of Vega’s
vehicle and residence done a few days after the alleged final transaction of the five
charged transactions which occurred over the course of ten days.

¶36 If the jury found Vega credible, then the jury would have believed
that Vega did not deliver heroin to Gershon and would have found reasonable

11
We repeat that the State does not quote from those audio recordings and, instead, relies
on Gershon’s recollections and his interpretations of the recordings. The circuit court, without
the jury present, stated that the audio recordings were “virtually unintelligible from my
perspective, which is exactly the same perspective as this jury has.”

17
No. 2021AP126-CR

doubt in the State’s case and reached a different verdict. However, the State’s
constitutionally prohibited questions impugned Vega’s credibility by purporting to
give the jury a reason to believe that Vega had fabricated his version of events
based on his exercise of a constitutional right. Cf. Reichhoff, 76 Wis. 2d at 381-
82 (holding that erroneous references to the defendant’s exercise of the right to
remain silent “cast doubt on the defendant’s credibility” because those references
suggested that “the defendant must have had something to hide and was really
guilty because he did not protest his innocence at arrest”); Brecht, 143 Wis. 2d at
318 (stating that references to a defendant’s post-arrest, post-Miranda exercise of
the right to remain silent “have a high potential for prejudice”). Indeed, the State
now concedes the importance of the jury’s assessment of the credibility of Vega
and of Gershon by stating in briefing in this court: “Ultimately, the verdicts were
the result of the jury weighing the relative credibility of Gershon’s story and
Vega’s story.”

¶37 Accordingly, these factors weigh strongly against the State’s
assertion of harmless error. We now consider, and reject, the State’s arguments to
the contrary.

¶38 The State argues that the questions about Vega’s exercise of his right
to remain silent were not “central” to its case because the prosecutor did not return
to the topic after the questions were asked and answered. Although the State did
not explicitly return to the topic in its closing arguments, the prosecutor’s
questions on cross-examination were more than “benign” comments. See
Jorgensen, 310 Wis. 2d 138, ¶47 (evidence is not “benign” and harmless if it is
“directly pertinent to the State’s case”). The prosecutor asked a series of six
separate questions directly addressing Vega’s exercise of his right to remain silent
that the prosecutor clearly wanted the jury to believe were highly relevant to the

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No. 2021AP126-CR

State’s case and Vega’s defense. Helping to highlight the point was that, in
response to these questions, Vega was forced into the position of twice asserting
before the jury that he had a right to remain silent: “Correct. But I also have the
right to remain silent.” “That’s one of my rights.” This line of questioning by the
prosecutor “[did] not occur in a brief moment” and was not “glossed over as
seemingly irrelevant.” See id.

¶39 The State also argues that there was harmless error because Vega’s
version of events is “simply beyond belief.” The State argues that Vega’s story
“makes no sense” because the jury would have to believe that: Gershon was
willing to risk trafficking heroin to the police in order to pay back Vega for the
stolen goods and escape a theft charge; five times Gershon retrieved heroin
concealed in his clothes while wearing a recording device; and Gershon did not
use the heroin for himself or sell it to another person to pay back Vega. We
disagree for several reasons. First, it is important to our analysis that it is the State
that must establish, beyond a reasonable doubt, “that the jury would have arrived
at the same verdict had the error not occurred.” Martin, 343 Wis. 2d 278, ¶45
(citations and emphasis omitted). Second, Vega’s exculpatory version of events is
not wholly inconsistent with the facts of the case. Indeed, in its argument that
Vega’s story is “beyond belief,” the State does not point to any facts that directly
contradict Vega’s version of events other than Gershon’s testimony. Third, there
are undisputed material facts that support Vega’s exculpatory statements to the
jury that we again summarize: the amount of heroin produced by Gershon to law
enforcement was very small in size and the officers did not search under
Gershon’s clothes before Gershon met with Vega; the officers did not record or
listen to phone calls between Vega and Gershon before the meetings; the audio
recordings of the transactions were unintelligible and the State relied on Gershon’s

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No. 2021AP126-CR

recollection and interpretations of the recordings; there was no video recording of
an exchange of money or heroin between Gershon and Vega, and the police did
not observe such an exchange; the State did not present evidence that Vega’s
fingerprints or DNA were on the heroin packages; and no heroin or recorded
money was recovered during the officers’ search of Vega’s vehicle and residence
although the searches were done only a few days after the final alleged transaction
and the transactions occurred over the course of ten days. Fourth, the State’s main
contention is that a jury would likely not believe that Gershon had sufficient
motivation to frame Vega. Thus, the State’s contention necessarily assumes that
the strength of Vega’s defense depended on the jury’s consideration of Vega’s
credibility as compared to Gershon’s. For those reasons, the State has not
established its assertion made in this court that Vega’s defense was beyond belief
such that the prosecutor’s constitutionally prohibited questions were harmless
error.

¶40 The State further argues “the mere fact that an alleged error
pertained to witness credibility does not mean that such an error cannot be
harmless.” The State cites as support our supreme court’s decision in State v.
Hunt, 2014 WI 102, 360 Wis. 2d 576, 851 N.W.2d 434. In that case, the circuit
court erroneously excluded a witness’s testimony that would have corroborated the
defendant’s theory of defense and lent credibility to the defendant’s version of
events. Id., ¶25. Although the case “largely turn[ed] on credibility
determinations,” our supreme court stated that the exclusion of the witness’s
testimony was harmless error because another witness’s testimony “functionally
served the same purpose by corroborating [the defendant’s] version of events.”
Id., ¶¶28, 30. The State also cites as support this court’s decision in State v.
Moore, 2002 WI App 245, 257 Wis. 2d 670, 653 N.W.2d 276. There, the circuit

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No. 2021AP126-CR

court erroneously admitted character evidence that improperly bolstered a
witness’s credibility. Moore, 257 Wis. 2d 670, ¶15. Although the defendant
argued that the State’s case hinged on the witness’s credibility, this court stated
that the circuit court’s decision to admit the character evidence was harmless error
because the defendant’s theory of defense was “farfetched.” Id., ¶¶17-18.

¶41 We reject the State’s reliance on those opinions for two reasons.
First, the general principle relied on by the State that an error related to credibility
has the potential to be harmless does not alter our conclusions already stated.
Second, as we now describe, the reasoning in both Hunt and Moore is not of
assistance to our analysis of the facts in this case. The State does not explain how
the analysis in Hunt regarding the exclusion of testimony that was harmless
because other evidence “functionally served the same purpose” is applicable to the
analysis in this case concerning the testimony the jury heard that should have been
excluded but was not. Hunt, 360 Wis. 2d 576, ¶30. In Moore, the erroneously
admitted evidence was harmless error because the defendant’s version of events
which alleged that an informant framed Moore was, under any reasonable view of
the evidence, completely implausible. Moore, 257 Wis. 2d 670, ¶¶17-18. This
court came to that conclusion based on Moore’s theory of defense that could not
account for these undisputed facts, among others: A police officer saw Moore
retrieve from a garage a bag that, a few moments later, the informant delivered to
police with a one-pound brick of marijuana in it; police could hear Moore
speaking to the informant through a transmitter given to the informant by police
except during the time Moore left his house to go into his garage to retrieve the
bag; a search of the same garage owned by Moore found Moore’s car parked in
that garage with marijuana particles in his car and on the hood of the car; and,
through a separate transmission of a conversation between Moore and the

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No. 2021AP126-CR

informant, police heard Moore state information about where he had placed
marijuana and related materials, and those materials were found at that place when
police executed a search warrant. Id., ¶¶5-6, 9-10, 18. Unlike the “farfetched”
assertions in Moore, and for the reasons already discussed, the State has not met
its burden to show that the erroneously admitted questions in this case did not
contribute to the jury’s verdict. See Martin, 343 Wis. 2d 278, ¶45.

3. The Strength and Nature of the State’s Case.

¶42 The final relevant factors that we consider are the strength and
nature of the State’s case. See id., ¶46. The State argues that, even if the
prosecutor had not explicitly addressed Vega’s exercise of his right to remain
silent, the jury still would have convicted Vega because the State had a strong case
against Vega. We now summarize the evidence and argument presented by the
State.

¶43 Elaborating on our summaries of the trial evidence above, the State
presented testimony from two law enforcement officers who were involved in
arranging the meetings between Vega and Gershon. The State also presented
testimony from Gershon that Vega had sold Gershon heroin in exchange for the
pre-recorded “buy” money. After Vega presented his case to the jury, the
prosecution called Gershon to the stand on rebuttal, and he denied many of the
events that Vega described during his testimony. During closing argument, the
prosecutor emphasized that the jury must assess the credibility of Gershon and
Vega. The prosecutor argued that the jury should not believe Vega’s version of
events because the evidence established that Gershon’s version of events was
credible and Vega’s version was not.

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No. 2021AP126-CR

¶44 The factor regarding the strength of the State’s case weighs in favor
of a conclusion of harmless error. Gershon’s testimony, which was in respects
corroborated by other testimony and physical evidence, if believed by the jury,
indicates that Vega sold heroin to Gershon on each of the five occasions.

¶45 Nonetheless, the other factor—the nature of the State’s case—
weighs in favor of the conclusion that the error was not harmless. To prove its
case beyond a reasonable doubt, the State was required to convince the jury that
Vega’s exculpatory version of events was wrong. As explained in detail earlier,
the jury’s determination of the truthfulness of Vega’s version of events depended
in large part on whether the jury found Vega to be credible. It then follows that
the prosecutor directly impugning Vega’s credibility by violating Vega’s due
process rights was a material aspect of the State’s burden to prove the elements of
the crimes beyond a reasonable doubt. Therefore, we conclude that the nature of
the State’s case weighs against a conclusion of harmless error.

C. There Was No Harmless Error.

¶46 Based on our review of the relevant harmless error factors, and for
the reasons we now summarize, we conclude that the State has failed to fulfill its
burden to prove beyond a reasonable doubt that the jury would have found Vega
guilty absent the erroneously admitted questions. See id., ¶¶45-46. The error was
at least slightly in the “frequent” category because the prosecutor asked six
questions in a concentrated line of questioning that violated Vega’s constitutional
right to due process.

¶47 Further, the erroneously admitted questions were highly relevant to
the nature of Vega’s defense that he had never sold heroin to Gershon. Vega
wanted the jury to find him credible and believe his version of events over the

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No. 2021AP126-CR

State’s version of events. However, the prosecutor’s questions regarding his
exercise of his right to remain silent after arrest undermined in the jury’s eyes the
truthfulness of Vega’s version of events by suggesting that Vega was not a
credible source of information. Thus, the jury’s decision regarding Vega’s
defense was affected by the prosecutor’s questions.

¶48 Similarly, the constitutionally prohibited questions were relevant and
important to the nature of the State’s case. It was important for the State to
discredit Vega’s theory of defense in order to prove its case beyond a reasonable
doubt. If the jury had found that Vega was a credible source of information, then
the jury could have reasonably believed his exculpatory version of events and
found that the State had not proved its case beyond a reasonable doubt. As a
result, the prosecutor’s questions helped sway the jury in favor of the State’s
version of events.

¶49 Therefore, Vega is entitled to a new trial on the charges of delivery
of heroin and maintaining a drug trafficking place because the prosecutor’s
questions regarding Vega’s exercise of his right to remain silent after his arrest
and receipt of Miranda warnings violated Vega’s due process rights, and the
State’s constitutionally prohibited questions and the circuit court’s ruling do not
constitute harmless error.

CONCLUSION

¶50 For the foregoing reasons, the judgment of conviction is reversed
regarding the convictions for delivery of heroin and maintaining a drug trafficking
place, the order of the circuit court is reversed, and this matter is remanded for a
new trial.

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No. 2021AP126-CR

By the Court.—Judgment and order reversed and cause remanded
with directions.

Not recommended for publication in the official reports.

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