State v. Watkins

• Decision Date: 27 May 2021
• Docket Number: Appeal No. 2019AP1996-CR
• Citation: 961 N.W.2d 884,2021 WI App 37
• Court: Wisconsin Court of Appeals
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Alijouwon T. WATKINS, Defendant-Appellant.

961 N.W.2d 884

2021 WI App 37

STATE of Wisconsin, Plaintiff-Respondent,

v.Alijouwon T. WATKINS, Defendant-Appellant.^†

Appeal No. 2019AP1996-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: December 10, 2020

Opinion Filed: May 27, 2021

On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas B. Aquino, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sara Lynn Shaeffer, assistant attorney general, and Joshua L. Kaul, attorney general.

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

KLOPPENBURG, J.

¶1 Alijouwon T. Watkins was convicted of multiple charges, referred to in this opinion as the "assault-related crimes," that arose from a domestic violence incident in 2015 between Watkins and his girlfriend and from Watkins's ensuing altercation with two police officers who responded to the domestic violence call. Watkins was also convicted of three additional charges, referred to in this opinion as the "conspiracy-related crimes," that arose from events occurring in 2016 in which Watkins, while incarcerated in the Dane County Jail, solicited false testimony regarding the assault-related crimes and conspired to kill one of the police officers who responded to that incident so that she could not testify as to those crimes.

¶2 On appeal, Watkins argues that he is entitled to a new trial on both the assault-related crimes and the conspiracy-related crimes because the circuit court improperly joined the two sets of crimes for trial. In the alternative, Watkins argues that, based on new information relating to Damian James, who testified at trial as a "key witness" for the State regarding the conspiracy-related crimes, he is entitled to a new trial on the conspiracy-related crimes based on newly-discovered evidence. Specifically, Watkins cites as newly-discovered evidence James's post-trial arrests and convictions for impersonating a police officer.¹

¶3 We conclude that Watkins's joinder argument fails because the assault-related crimes and the conspiracy-related crimes are "connected together" in that the conspiracy-related crimes were arguably committed to avoid conviction on the assault-related crimes. See WIS. STAT. § 971.12(1) (2019-20)² ("Two or more crimes may be charged in the same complaint ... if the crimes charged ... are based on the same act or transaction or on 2 or more acts or transactions connected together ...."); State v. Salinas , 2016 WI 44, ¶38, 369 Wis. 2d 9, 879 N.W.2d 609 (separate crimes are "connected together" for purposes of joinder when the defendant "arguably engaged in one crime to prevent disclosure and punishment for another"). We also conclude that Watkins's newly-discovered evidence argument fails because evidence of James's post-trial arrests does not satisfy the requirements for newly-discovered evidence in that the facts of James's post-trial arrests did not exist at the time of Watkins's trial. Therefore, evidence of those facts could not possibly have been heard by the jury at trial so as to have created reasonable doubt as to Watkins's guilt. See State v. Plude , 2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42 (to succeed on a motion for a new trial based on newly-discovered evidence, a reasonable probability must exist that "had the jury heard the newly-discovered evidence, it would have had a reasonable doubt as to the defendant's guilt."); WIS. STAT. § 805.15(3) (describing requirements for new trial based on newly-discovered evidence). Accordingly, we affirm.

BACKGROUND

¶4 The following facts are undisputed for purposes of this appeal. In June 2015, police responded to a domestic violence incident involving Watkins and his girlfriend. Officer E.M.,³ responding to the incident with another officer, attempted to arrest Watkins and met with Watkins's resistance. E.M. sustained a concussion in the course of her attempt to arrest Watkins before he escaped. Watkins was subsequently arrested, brought to the Dane County Jail, and charged with eight counts related to the June 2015 events referenced above: misdemeanor battery, disorderly conduct, criminal damage to property, felony intimidation of a victim, felony intimidation of a witness, attempted battery of a peace officer, resisting an officer causing substantial bodily harm to the officer, and escape.

¶5 Watkins was subsequently charged with three additional counts related to his communications while in the Dane County Jail in 2016: conspiracy to commit first-degree homicide, felony intimidation of a witness, and solicitation of perjury. Before Watkins's scheduled trial date on the assault-related crimes, the State moved to join the two sets of crimes for trial. The circuit court granted the motion over Watkins's objection. The trial on all crimes took place in May 2017.

¶6 Damian James testified at trial regarding the conspiracy-related crimes. We relate James's testimony at trial in some detail, as follows.

¶7 In May 2016, James was twice arrested and placed in the same cell pod with Watkins. While in jail, James told "stories" that he "was associated with Italian organized crime" and James believed that Watkins believed James to be "associated with organized crime."

¶8 On May 27, 2016, James found a note under his cell door. The unsigned note reads:

DJ

Bro, I heard that you may know people who will do my friend a favor. He will pay whatever to have two pigs in Madison slaughtered and the bitch who called them on him. They say he battered two pigs and his ex. He will work for you until his debt is pay [sic] off. He already tried someone else, but they was all talk. Let me know if you can help. This is no joke. This is real.

Please flush this.

P.S. If you can't help, can you point me in the direction of who can? Someone say they will do it, but we want to be sure it is done for real.

With all respect.

¶9 James did not know at the time who wrote the note and responded by writing his own note requesting that the writer of the original note "come and talk." James placed his note on the television stand in the common area of the cell pod. James did not see who took the note he wrote, but he received another note the next day (May 28), which reads: "Bro, he just scared to approach you so he asked me to. This is not a setup. I swear on my life."

¶10 James came to believe that Watkins was the author of the notes because of a previous conversation between James and Watkins. That conversation arose when Officer E.M. appeared on television and Watkins, appearing agitated, said, "That's the bitch right there. That's the bitch that arrested me. I want that bitch dead. That's the bitch that arrested me."

¶11 James met with law enforcement on May 28, 2016, gave them the two notes, and told them where he "thought that [the notes] came from." James told law enforcement that he would be "willing to cooperate" in further investigation of the notes. From that time through June 6, 2018, James wore an "electronic listening device," also referred to as a "recording device" or "wire," to record conversations with Watkins and provided information to law enforcement about his communications with Watkins. During that period, James and Watkins exchanged notes by flinging them into one another's cells. James, on his own initiative and "without instruction" by law enforcement, wrote a note to Watkins that reads:

Bro, we need to know what you want done about this cop. We can throw money at her, but it can backfire. She can turn it in and get you another case or we can just deal with this bitch directly. This way we will both have dirt on each other so we would never have to worry about the two of us turning on each other. Plus, if she is gone, so is her testimony. It's up to you, little bro. Let me know, though, because I have to talk to my uncle.

Watkins replied, writing, "I need her gone." James then wrote to Watkins, "I need her name, age, full description, shift, hours and area that she works in. You need to understand that if I do this, there is no going back. We are in this for life," and Watkins replied with a note detailing the areas in which Officer E.M. usually patrolled and her name, height, date of birth, and physical description.

¶12 Watkins subsequently asked James if he "knew of anybody who would come and say that they witnessed this arrest," referring to the attempted arrest of Watkins by Officer E.M. and another officer in June 2015. The two men formed a plan that James's "significant other's sister" would "come and testify and say that she witnessed the arrest and that there was no resisting going on and that [the officers] lied, stuff like that." Watkins then wrote to James a note detailing how James's significant other's sister should testify:

I was leaving Leopold Park on [T]raceway when I seen 2 police officers approach a black male he place his hands behind his back that's when the taller female grab the young man hair and tried to force him to the ground he then stood up and was walking to the two females. 3 secs later he was taze by both female officers one in the back and one in the chest the black male stood in place that's when the taller female with blonde hair began to throw kicks and punches at the male the smaller officer still has his right arm pinned down they push him to a mailbox that's when the male was able to run.

¶13 Law enforcement asked James to wear a "wire" and discuss with Watkins payment for the "hit," referring to the killing of Officer E.M. to prevent her from testifying at Watkins's trial regarding the assault-related crimes. At law enforcement's instruction, James wrote Watkins a note providing a phone number that was ostensibly for a "hitter" who would carry out the killing of Officer E.M., and instructing Watkins to "just tell him that this is about the work you need done on your car." In fact, James knew that the phone number would reach an undercover officer who had established "car parts" as the code for a "hit...