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Postconviction Motioned Denied – Due Process Violation

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Nestor Luis Vega

Case No.: 2021AP126-CR

Officials: Blanchard, P.J., Fitzpatrick, and Nashold, JJ.

Focus: Postconviction Motioned Denied – Due Process Violation

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 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.

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.

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

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.

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Derek A Hawkins is Corporate Counsel, at Salesforce.

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