State v. Alijouwon T. Watkins

2021 WI App 37COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2019AP1996-CR
†Petition for Review filed
Complete Title of Case:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ALIJOUWON T. WATKINS,
DEFENDANT-APPELLANT.†
Opinion Filed: May 27, 2021
Submitted on Briefs: December 10, 2020
JUDGES: Fitzpatrick, P.J., Kloppenburg, and Nashold, JJ.
Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Thomas B. Aquino, assistant state public defender of Madison.
Respondent
ATTORNEYS: 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.
2021 WI App 37COURT 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.
May 27, 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. 2019AP1996-CR Cir. Ct. No. 2016CF1270
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ALIJOUWON T. WATKINS,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for Dane
County: JOSANN M. REYNOLDS, Judge. Affirmed.
Before Fitzpatrick, P.J., Kloppenburg, and Nashold, JJ.
¶1 KLOPPENBURG, J. 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
No. 2019AP1996-CR
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 6091
For ease of reading, we will refer to James’s post-trial arrests and convictions as his
“post-trial arrests.”
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
No. 2019AP1996-CR
(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
3
We, like the parties, refer to Officer E.M. by her initials as a victim of some of the crimes
at issue, pursuant to WIS. STAT. RULE 809.86(4).
3
No. 2019AP1996-CR
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.
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No. 2019AP1996-CR
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.
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No. 2019AP1996-CR
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
6
No. 2019AP1996-CR
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.”
¶14 While in the Dane County Jail in 2016, James fabricated stories about
his connections with organized crime and his military background. James also lied
to law enforcement about being a Marine and suffering from post-traumatic stress
syndrome (PTSD) from his military service. James stated during his testimony that
he had seven prior convictions.
¶15 In response to James’s testimony, Watkins presented testimony from
multiple inmates regarding James’s fabrications while in the Dane County Jail in
May and June 2016. The inmates testified that: James was “sneaky” and
“untruthful”; nothing James said, and nothing James said under oath, could be
believed; James was “dishonest” and “conniving”; James was “not trustworthy” and
fabricated stories about his membership in the Army, the Marines, the Vice Lords
criminal gang, and the Italian mob. Watkins also presented testimony from law
enforcement officers that in May and June 2016 James lied to them about his
background.
¶16 The State presented, among other exhibits, a recording of Watkins’s
phone call to the undercover officer in which he requested help fixing his car and
stated that James’s wife would provide payment and a form signed by Watkins
requesting release of jail funds to James’s wife.
¶17 During closing arguments, defense counsel drew the jury’s attention
to the above-described testimony about James being a “liar.” The circuit court gave
the jury a limiting instruction regarding James’s testimony:
You have heard testimony from Damian James who stated
that he was involved in the crime charged against the
7
No. 2019AP1996-CR
defendant. You should consider this testimony with caution
and great care, giving it the weight you believe it is entitled
to receive. You should not base a verdict of guilty upon it
alone, unless after consideration of all the evidence you are
satisfied beyond a reasonable doubt that the defendant is
guilty.
¶18 On May 5, 2017, the jury found Watkins guilty of three of the eight
assault-related crimes and all three of the conspiracy-related crimes.
¶19 Following Watkins’s trial, in June 2017 and in July 2018, James was
twice arrested and convicted, upon James’s guilty pleas, for impersonating a law
enforcement officer. Watkins filed a postconviction motion seeking a new trial on
the conspiracy-related crimes based on newly-discovered evidence, proffering
James’s above-described post-trial arrests as the newly-discovered evidence. The
circuit court denied Watkins’s motion in a written decision and order. This appeal
follows.
DISCUSSION
¶20 Watkins argues that the circuit court erred in (1) joining the assault-
related crimes and the conspiracy-related crimes for trial; and (2) denying Watkins’s
motion for a new trial on the conspiracy-related crimes based on what Watkins
argues is newly-discovered evidence of James’s post-trial arrests for impersonating
a police officer. We conclude that Watkins fails to show either that joinder was
unauthorized by the joinder statute or that the circuit court erred in denying
Watkins’s motion for a new trial based on the purported newly-discovered evidence.
I. Joinder
¶21 We first summarize the standard of review and general legal
principles governing decisions on joinder. We next explain why we conclude that
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No. 2019AP1996-CR
joinder was proper here. Finally, we address and reject Watkins’s arguments to the
contrary.
A. Standard of Review and General Legal Principles
¶22 We review de novo a circuit court’s decision on joinder under
Wisconsin’s joinder statute, WIS. STAT. § 971.12. Salinas, 369 Wis. 2d 9, ¶30
(“joinder is a question of law that we review de novo”). That statute provides, in
pertinent part:
(1) Joinder of crimes. Two or more crimes may be
charged in the same complaint, information or indictment in
a separate count for each crime if the crimes charged,
whether felonies or misdemeanors, or both, are of the same
or similar character or are based on the same act or
transaction or on 2 or more acts or transactions connected
together or constituting parts of a common scheme or plan.
When a misdemeanor is joined with a felony, the trial shall
be in the court with jurisdiction to try the felony.
….
(3) Relief from prejudicial joinder. If it appears that
a defendant or the state is prejudiced by a joinder of crimes
or of defendants in a complaint, information or indictment or
by such joinder for trial together, the court may order
separate trials of counts, grant a severance of defendants or
provide whatever other relief justice requires. The district
attorney shall advise the court prior to trial if the district
attorney intends to use the statement of a codefendant which
implicates another defendant in the crime charged.
Thereupon, the judge shall grant a severance as to any such
defendant.
WIS. STAT. § 971.12(1)-(3).
¶23 We construe WIS. STAT. § 971.12(1) “broadly in favor of the initial
joinder.” State v. Locke, 177 Wis. 2d 590, 596, 502 N.W.2d. 891 (Ct. App. 1993).
“The purpose of the joinder provisions is to promote economy and efficiency in
judicial administration and to avoid a multiplicity of trials ….” State v. Leach, 124
9
No. 2019AP1996-CR
Wis. 2d 648, 671, 370 N.W.2d 240 (1985) (quoted source and punctuation marks
omitted); Salinas, 369 Wis. 2d 9, ¶43.
¶24 By its plain language, WIS. STAT. § 971.12(1) permits joinder of
charged crimes that are “of the same or similar character” or that are “connected
together.” For separate crimes to be “of the same or similar character,” the crimes
must be “the same type of offenses occurring over a relatively short period of time
and the evidence as to each must overlap.” State v. Linton, 2010 WI App 129, ¶14,
329 Wis. 2d 687, 791 N.W.2d 222. To determine whether crimes are “connected
together,”
we look to a variety of factors, including but not limited to:
(1) are the charges closely related; (2) are there common
factors of substantial importance; (3) did one charge arise
out of the investigation of the other; (4) are the crimes close
in time or close in location, or do the crimes involve the same
victims; (5) are the crimes similar in manner, scheme or
plan; (6) was one crime committed to prevent punishment
for another; and (7) would joinder serve the goals and
purposes of § 971.12.
Salinas, 369 Wis. 2d 9, ¶43.
¶25 Pertinent here, our supreme court has repeatedly held that separate
crimes are “connected together” when the defendant “arguably engaged in one
crime to prevent disclosure [of] and punishment for another.” Id., ¶38. In Peters v.
State, 70 Wis. 2d 22, 233 N.W.2d 420 (1975) (disapproved of on other grounds by
State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990)), our supreme court
ruled that the crimes of burglary and obstruction of an officer were properly joined
where the crime of obstruction was charged based on the defendant’s fabricated alibi
in relation to the burglary, writing: “The two crimes charged here, ‘burglary’ and
‘obstructing an officer,’ are ‘connected together’ since the charge of obstructing an
officer is based upon an alibi defense to the charge of burglarizing the tavern.”
10
No. 2019AP1996-CR
Peters, 70 Wis. 2d at 29. In State v. Bettinger, 100 Wis. 2d 691, 303 N.W.2d 585(1981), the court held that a sexual offense crime and an attempted bribery crime
were “connected together” because the latter crime was charged based on the
defendant’s attempt to bribe the victim to drop the sexual offense charges. Id. at
693-95. In Salinas, the court held that sexual assault crimes and witness
intimidation crimes were “connected together” where the latter crimes were charged
based on the defendant’s intimidation of the sexual assault victim and her mother.
Salinas, 369 Wis. 2d 9, ¶44.
B. Analysis
¶26 Here, the criminal complaints allege in pertinent part that: (1) in 2015
Watkins assaulted his girlfriend; Officer E.M. responded to investigate and arrest
Watkins for that assault; and Watkins resisted arrest, causing substantial bodily
harm to E.M., and escaped; and (2) in 2016 Watkins solicited E.M.’s killing to
prevent her from testifying about the 2015 assaults and solicited a witness to testify
falsely about those assaults because he thought E.M.’s testimony was the “only
thing” that would cause him to “do the time” for the assault-related crimes.
¶27 Thus, as alleged in the criminal complaints, two of the eight assault-
related crimes (escape and resisting an officer causing substantially bodily harm)
and all three of the conspiracy-related crimes involve the same victim (Officer
E.M.), all eleven charges involve the same perpetrator (Watkins), and the
conspiracy-related crimes were committed to prevent punishment for all of the
assault-related crimes. Accordingly, both sets of crimes are “connected together”
under WIS. STAT. § 971.12(1).
¶28 In addition, to the extent that the conspiracy-related crimes arise from
Watkins’s efforts to prevent Officer E.M. from testifying about the assault-related
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No. 2019AP1996-CR
crimes and to solicit false testimony on the assault-related crimes, the facts of the
assault-related crimes are necessary to provide context for the conspiracy-related
crimes. Thus, consolidating both sets of crimes for trial serves the purposes of the
joinder statute in that it promotes efficiency in judicial administration and avoids
multiple trials of the same defendant on overlapping facts. Id., ¶43.
¶29 Accordingly, we conclude that the two sets of crimes were properly
joined under WIS. STAT. § 971.12(1).
¶30 We now address in turn Watkins’s two arguments to the contrary:
(1) the two sets of crimes are not “connected together” within the meaning of WIS.
STAT. § 971.12(1); and (2) even if joinder was proper under § 971.12(1), the circuit
court should have severed the two sets of crimes under § 971.12(3) because joinder
was prejudicial.4
¶31 Watkins first argues that the crimes are not “connected together”
because: (1) “the State cannot point to any evidence that the purpose of E.M.’s
[killing] was to avoid punishment on the Assault charges”; (2) the two sets of
crimes, arising “eleven months apart,” were not “close in time”; and (3) the
4
In his initial appellate brief, Watkins argues that joinder was improper because the two
sets of crimes are not of the “same or similar character.” Our conclusion that joinder was proper
because the two sets of crimes are “connected together” is dispositive and, therefore, we need not
address this argument. See State v. Salinas, 2016 WI 44, ¶34, 369 Wis. 2d 9, 879 N.W.2d 609 (we
may uphold joinder “based solely on the ‘connected together’ language in WIS. STAT.
§ 971.12(1)”); Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842
N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the parties when
one issue is dispositive.”). Only in his reply brief does Watkins address the “connected together”
basis for joinder under the statute, indicating that he had not addressed that basis in his initial
appellate brief because the State relied in the circuit court on the “same or similar character”
language in the statute and only on appeal argued joinder based on the statutory “connected
together” language. For the sake of completeness, we proceed pursuant to our de novo review to
address Watkins’s argument in his reply brief that the charged crimes are not “connected together.”
12
No. 2019AP1996-CR
conspiracy-related crimes did not arise out of investigation of the assault-related
crimes. This argument fails for at least the following reasons.
¶32 We begin by noting that Watkins’s argument does not address three
of the four bases for our conclusion that the two sets of charges are “connected
together,” namely, that the two sets of charges involve the same victim and the same
perpetrator and joinder serves the goals and purposes of the statute. While Watkins
briefly states why the State’s contentions that joinder serves the goals and purposes
of the statute (contentions that we do not adopt) fail, he does not affirmatively
explain why joinder does not serve the statute’s goals and purposes. Watkins’s
argument addresses only the fourth basis for our conclusion, that as alleged in the
criminal complaint Watkins committed the conspiracy-related crimes to escape
punishment for the assault-related crimes. We now explain why this argument lacks
merit.
¶33 As stated, Watkins argues that “the State cannot point to any evidence
that the purpose of E.M.’s [killing] was to avoid punishment on the Assault
charges.” Leaving aside that this assertion misrepresents the evidence, the focus of
our inquiry is on the crimes alleged in the criminal complaint, not the evidence
presented at trial. See WIS. STAT. § 971.12(1) (dealing with joinder of crimes in the
same complaint). As shown above, those allegations suffice to support the
determination that Watkins at least “arguably engaged in” the conspiracy-related
crimes “to prevent disclosure [of] and punishment for” the assault-related crimes.
Salinas, 369 Wis. 2d 9, ¶38.
¶34 Watkins’s reference to the eleven-month gap between the two sets of
crimes fares no better. He cites no case law supporting the proposition that the
passage of months alone suffices to preclude joinder absent consideration of other
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No. 2019AP1996-CR
factors such as those we have considered above. On the contrary, our supreme court
has held that incidents separated by six months, as in Salinas, 369 Wis. 2d 9, ¶¶11-
14 (describing witness intimidation occurring in the six months following report of
sexual assault), and even two years, as in Bettinger, 100 Wis. 2d at 693-94(describing June 1978 sexual assault connected to June 1980 attempted bribery),
may be “connected together.”
¶35 Watkins’s assertion that the conspiracy-related crimes did not arise
out of investigation of the assault-related crimes is similarly inapposite because the
question of whether one crime arose “out of the investigation of the other” is merely
one in a non-exhaustive list of factors for the “connected together” analysis; as we
have explained, the crimes in this case were connected together based on other
factors. See Salinas, 369 Wis. 2d 9, ¶43 (listing non-exhaustive factors courts
consider in determining whether crimes are “connected together” for purposes of
joinder).
¶36 Watkins next argues that, even if the statutory criteria for joinder were
met, Watkins was entitled to severance of the crimes under WIS. STAT. § 971.12(3)
because he was substantially prejudiced by joinder. Specifically, Watkins argues
that the State’s relatively weak case for the conspiracy-related crimes was bolstered
by the State’s relatively strong case for the assault-related crimes and that the sheer
number of the combined crimes prejudiced the jury against Watkins. As we now
explain, Watkins fails to show the potential for prejudice necessary to warrant
severance.
¶37 As a preliminary matter, the State argues that Watkins’s prejudice
argument is not properly before us because Watkins never moved the circuit court
to sever the crimes. See Salinas, 369 Wis. 2d 9, ¶49 (“Failing to make a severance
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No. 2019AP1996-CR
motion, regardless of the reason, however, results in this issue not being ripe for our
consideration.”). Watkins counters that his objection to the State’s motion for
joinder, which referenced severance based on prejudice, sufficed to preserve the
issue of prejudice for appeal. We need not decide this dispute because we conclude
that, under controlling case law, Watkins fails to show the prejudice necessary to
warrant severance.
¶38 Under the joinder statute, if “it appears that a defendant … is
prejudiced by a joinder of crimes … the court may order separate trials of counts.”
WIS. STAT. § 971.12(3). “In evaluating the potential for prejudice, courts have
recognized that, when evidence of the counts sought to be severed would be
admissible in separate trials, the risk of prejudice arising because of joinder is
generally not significant.” Locke, 177 Wis. 2d at 597. As our supreme court
explained in Bettinger, when one crime is commissioned in order to prevent
punishment for a prior crime, evidence of the prior crime is admissible as “other
acts” evidence to prove motive in a trial for the later crime, and evidence of the later
crime is admissible as “other acts” evidence to prove consciousness of guilt in a trial
for the prior crime. Bettinger, 100 Wis. 2d at 697-98 (evidence of sexual assault
admissible to show motive for bribery and evidence of bribery admissible to
demonstrate consciousness of guilt for sexual assault).5 See also Peters, 70 Wis. 2d
at 30 (evidence of burglary admissible to show motive for obstruction and evidence
of obstruction admissible to show consciousness of guilt for burglary).
¶39 Here, evidence of the assault-related crimes would be admissible to
show motive in a trial on the conspiracy-related crimes and evidence of the
5
Though not admissible to show the defendant’s character, evidence of other acts is
admissible under WIS. STAT. § 904.04(2) if it is offered as “proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
15
No. 2019AP1996-CR
conspiracy-related crimes would be admissible to show consciousness of guilt in a
trial on the assault-related crimes. Therefore, Watkins cannot show prejudice from
joinder of the crimes. Accordingly, his prejudice argument fails.
¶40 In sum, we conclude that Watkins fails to show that the circuit court
erred in joining the two sets of crimes for trial.
II. Newly Discovered Evidence
¶41 Watkins argues that James’s post-trial arrests for impersonating an
officer constitute newly-discovered evidence entitling Watkins to a new trial. We
first explain the general legal principles and standard of review governing the circuit
court’s decision on a motion for a new trial based on newly-discovered evidence.
We next provide additional pertinent background regarding the circuit court’s denial
of Watkins’s postconviction motion. We then explain why we agree with the circuit
court that James’s post-trial arrests are not newly-discovered evidence justifying a
new trial and why we reject Watkins’s argument to the contrary.
A. General Legal Principles and Standard of Review
¶42 “In order to set aside a judgment of conviction based on newly-
discovered evidence, the newly-discovered evidence must be sufficient to establish
that a defendant’s conviction was a ‘manifest injustice.’” Plude, 310 Wis. 2d 28,
¶32 (quoted source omitted). Our supreme court has set forth a two-step process for
determining whether such a manifest injustice exists: first, the defendant must prove
by clear and convincing evidence that the proffered evidence is in fact “newly-
discovered evidence;” second, if the defendant meets that burden, the circuit court
must determine that, had a jury heard the newly-discovered evidence, it would have
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No. 2019AP1996-CR
had a reasonable doubt as to the defendant’s guilt. Id., ¶¶32-33; State v. McAlister,
2018 WI 34, ¶¶31-32, 380 Wis. 2d 684, 911 N.W.2d 77.
¶43 The first step is completed when the defendant proves by clear and
convincing evidence that: “(1) the evidence was discovered after conviction; (2) the
defendant was not negligent in seeking the evidence; (3) the evidence is material to
an issue in the case; and (4) the evidence is not merely cumulative.”6 Plude, 310
Wis. 2d 28, ¶32 (citing State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707(1997)); McAlister, 380 Wis. 2d 684, ¶31. The circuit court then moves to the
second step and determines whether “a reasonable probability of a different outcome
exists,” that is, “whether a jury would find that the newly-discovered evidence had
a sufficient impact on other evidence presented at trial that a jury would have a
reasonable doubt as to the defendant's guilt.”7 Plude, 310 Wis. 2d 28, ¶¶32-33.
¶44 We review the circuit court’s decision on whether to grant a new trial
based on newly-discovered evidence for an erroneous exercise of discretion. State
v. Avery, 2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60; McCallum, 208
Wis. 2d at 474. However, whether a reasonable probability exists that, had the jury
heard the newly-discovered evidence, it would have had a reasonable doubt as to
the defendant’s guilt is a question of law that we review de novo. Plude, 310
Wis. 2d 28, ¶33; McAlister, 380 Wis. 2d 684, ¶36 (whether a jury considering the
6
We follow the parties’ lead and refer to these four criteria as the “four Plude criteria.
State v. Plude, 2008 WI 58, 310 Wis. 2d 28, 750 N.W.2d 42. The statute lists these same four
prerequisites using slightly different language, requiring that the evidence “has come to the moving
party’s notice after trial,” that “failure to discover the evidence earlier did not arise from lack of
diligence” and that “the evidence is material and not cumulative.” WIS. STAT. § 805.15(3)(a)-(d).
The parties do not identify any difference that matters between the language in the statute and in
Plude.
7
For ease of reading, we refer to this part of the analysis as the “fifth Plude requirement.”
17
No. 2019AP1996-CR
old and new evidence would have a reasonable doubt as to the defendant’s guilt is
a legal determination).
B. Additional Background
¶45 Before the circuit court, Watkins argued that James’s post-trial arrests
were newly-discovered evidence justifying a new trial because they were
“additional evidence of his untrustworthiness” that “would have tipped the scales in
Watkins’s favor.” The State opposed the motion, arguing that Watkins’s proffered
newly-discovered evidence “did not exist at the time of trial” and that, “at the time
James testified, he had not even committed the crimes with which [Watkins] wished
to impeach [James].” The State conceded that the first three Plude criteria had
“technically” been met and focused the bulk of its argument on the fourth criterion,
that the evidence not be merely cumulative.
¶46 The circuit court determined that evidence of James’s post-trial arrests
does not satisfy the four Plude criteria because it: (1) is not “newly-discovered”
evidence but rather is “an entirely new set of purported facts”; (2) has “no relation
to the charges or verdict and … did not stem from any actions or testimony that
occurred during the trial”; and (3) is cumulative to evidence presented at trial
regarding James’s untrustworthy and dishonest character. The court also
determined that Watkins failed to satisfy the fifth Plude requirement, that the
evidence would have created reasonable doubt as to Watkins’s guilt. The court
observed, “Criminal trials often rely on testimony from witnesses that engage in
criminal activities themselves, and the judicial system could not function if every
conviction were subject to re-litigation once a witness engaged in new criminal
activity following his or her testimony.”
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No. 2019AP1996-CR
C. Analysis
¶47 As we now explain, Watkins fails to show that the circuit court
erroneously exercised its discretion in denying his motion for a new trial based on
evidence of James’s post-trial arrests, because he fails to satisfy the first step of the
Plude analysis—that the evidence of James’s post-trial arrests is in fact “newly-
discovered evidence.” Plude, 310 Wis. 2d 28, ¶32.
¶48 The four Plude criteria that comprise the first step of the Plude
analysis, by their terms, assume that the proffered evidence is of a fact that was true
at or before the time of trial. See, e.g., McCallum, 208 Wis. 2d at 478, 484(statement of victim, made after conviction of defendant for sexual assault, satisfied
four criteria for newly-discovered evidence where statement concerned victim’s
statements at trial that led to conviction); Plude, 310 Wis. 2d 28, ¶¶34, 37, 41
(evidence that expert witness was not a clinical professor satisfied the four criteria
for proving newly-discovered evidence where such evidence showed that witness
lied under oath in the trial leading to conviction). Here, in contrast, the facts of
James’s post-trial arrests did not exist at or before trial.
¶49 The proposition that newly-discovered evidence must generally be of
a fact that is true at the time of trial is bolstered by case law from the federal courts,
whose analysis of newly-discovered evidence “requires proof of criteria nearly
identical to that provided by Wisconsin law ….” State v. Jackson, 188 Wis. 2d 187,
198 n.3, 525 N.W.2d 739. Most notably, the Seventh Circuit addressed the issue of
post-trial events in United States v. Bolden, 355 F.2d 453, 461 (7th Cir. 1965), cert.
denied, 384 U.S. 1012, a case with many parallels to the case at bar. In Bolden, the
defendant moved for a new trial based on newly-discovered evidence consisting of
the fact that a key government witness was, after trial, convicted of a counterfeiting
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No. 2019AP1996-CR
charge. Id. The court explained that the government witness’s conviction “was not
evidence that was in existence at the time of the defendant’s trial and therefore did
not constitute evidence upon which a new trial could be based,” and that, moreover,
the subsequent conviction “was merely cumulative and impeaching.” Id. See also
United States v. Lafayette, 983 F.2d 1102, 1105 (D.C. Cir. 1993) (“In general, to
justify a new trial, ‘newly-discovered evidence’ must have been in existence at the
time of trial. Events and transactions occurring after the trial obviously could not
have been the subject of testimony at the trial.”) (evidence that police officers who
testified at defendant’s trial later committed misconduct was not newly-discovered
evidence). Other state courts addressing this issue pursuant to language virtually
identical to Wisconsin’s newly-discovered evidence rule are in accord. See, e.g.,
State v. Bordelon, 37 So.3d 480, 487 (La. Ct. App. 2010) (evidence of victim’s
criminal behavior three years after trial was not newly-discovered evidence and
“could not possibly have been introduced at trial because it had not yet occurred”);
State v. Bartel, 953 N.W.2d 224, 233 (Neb. 2021) (“Whereas an object is new at the
moment that it begins to exist, it is newly-discovered once it is ‘revealed’ or ‘found
out’ to have previously been in existence.”) (order that was not entered until eight
months after jury verdict was not newly-discovered evidence); People v. Rogers,
___ N.W.2d ___, 2020 WL 7409615, at *8-9 (Mich. Ct. App. 2020) (evidence that,
after defendant was convicted of sexually assaulting victim, victim made false
allegations of sexual assault against adoptive father and brother could not “have
conceivably been the subject of testimony at trial” because the allegations occurred
after trial).
¶50 Having established that evidence of facts that did not exist at the time
of trial will not support in these circumstances a new trial based on newly-
discovered evidence, we need not individually analyze each of the four Plude
20
No. 2019AP1996-CR
criteria. However, for the sake of completeness and to refute Watkins’s argument
on the issue, we further explain why Watkins is unable to satisfy his burden for even
the first of those criteria, that the evidence was discovered after conviction. Plude,
310 Wis. 2d 28, ¶32. See McAlister, 380 Wis. 2d 684, ¶¶50-51 (court’s conclusion
that one of the four Plude criteria is not met is sufficient to affirm denial of motion
for new trial based on newly-discovered evidence). Simply put, it is a fallacy to
characterize James’s 2017 and 2018 arrests as “discovered after conviction,”
McCallum, 208 Wis. 2d at 473, or as coming to Watkins’s “notice after trial,” WIS.
STAT. § 805.15(3)(a), because James’s post-trial arrests, rather than being
“discovered” or “noticed” after trial, simply happened after trial. The circuit court
implicitly addressed this issue when it determined that James’s arrests were “not
newly-discovered” but were instead “an entirely new set of purported facts.”
¶51 Events occurring post-conviction such as the development of new
technology or a new scientific consensus can sometimes be considered the discovery
of new evidence, but the new technology or new scientific consensus must relate to
evidence that existed at the time of trial. See, e.g., State v. Vollbrecht, 2012 WI
App 90, ¶¶12, 15, 20, 37, 344 Wis. 2d 69, 820 N.W.2d 443 (evidence comprising
DNA analysis made possible by new technology was newly-discovered where the
analyzed biological material existed at time of trial); Avery, 345 Wis. 2d 407, ¶¶5-
7, 31, (evidence comprising enhanced video analysis made possible by new
technology was newly-discovered where video tape and the events it depicted were
in existence at time of trial); State v. Edmunds, 2008 WI App 33, ¶15, 308 Wis. 2d
374, 746 N.W.2d 590 (evidence comprising new medical consensus regarding
Sudden Infant Death Syndrome was newly-discovered where it related to child’s
injuries and symptoms that were in existence at time of trial). Here, Watkins does
not present new evidence of pre-existing but previously undiscoverable arrests but,
21
No. 2019AP1996-CR
rather, presents evidence of arrests that occurred after the trial ended. Watkins has
not proven by clear and convincing evidence that James’s arrests were “discovered
after conviction” within the meaning of the applicable law.
¶52 Watkins argues that, by stating that newly-discovered evidence must
“stem from the actions or testimony that occurred during trial,” the circuit court
failed to apply the Plude test, “made up its own criteria” for newly-discovered
evidence, “categorically reject[ed] ‘subsequent arrests’ as ever being ‘newly
discovered evidence,’” and applied an incorrect legal standard to newly-discovered
evidence, thereby misusing its discretion. This argument fails because, as shown
above, the circuit court did properly apply the Plude test to the evidence of James’s
post-trial arrests and explained why that evidence fails the test. The court
specifically contrasted new, unrelated crimes such as those here with the post-trial
discovery of crimes that existed at the time of trial, such as a witness’s perjury before
or during trial. Watkins fails to show that the court applied the incorrect legal
standard.
CONCLUSION
¶53 For the reasons stated, we conclude that Watkins fails to show that the
circuit court erred in joining the assault-related crimes and the conspiracy-related
crimes for trial or in denying his motion for a new trial based on newly-discovered
evidence. Accordingly, we affirm.
By the Court.—Judgment and order affirmed.
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