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COA approves joinder of counts, holds evidence can’t be “newly discovered” if it’s new

State v. Alijouwon T. Watkins, 2019AP1996-CR, 5/27/21, District 4 (recommended for publication); case activity (including briefs)

The state charged Watkins with several crimes stemming from a domestic violence call: these included escape and battery to one of the police officers who arrested him. While Watkins was in jail, the state charged him with three more crimes related to his alleged attempts to secure perjured testimony about the earlier incident and, the state said, have the arresting officer/alleged victim killed.

The state moved to join all the counts. Watkins objected, but the circuit court concluded joinder was proper. On appeal, Watkins first argues that the two alleged incidents weren’t “connected together” as the statute requires. See Wis. Stat. § 971.12(1). The court of appeals disagrees. It notes that State v. Salinas, 2016 WI 44, ¶38, 369 Wis. 2d 9, 879 N.W.2 609, contains a non-exhaustive list of “factors” to consider in assessing connectedness. Among them are whether the alleged offenses have the same perpetrator, whether they have the same victim, and whether “one crime [was] committed to prevent punishment for another.” The court of appeals holds that these factors provide enough of a connection for joinder here.

The court also rejects Watkins’s argument that joinder prejudiced him, and thus was barred by the statute. See Wis. Stat. § 971.12(3). It points to State v. Bettinger, 100 Wis. 2d 691, 303 N.W.2d 585 (1981), for the proposition that the evidence as to each incident would be admissible in a trial of the other, because “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.” (¶38). Since separate trials wouldn’t have prevented the juries from knowing about all the incidents, the court says, there can be no prejudice.

Watkins’s other claim concerns the jailhouse informant who played a major role in the alleged schemes to murder the officer and solicit false testimony from a different witness. This man, James, was a crucial witness for the state; he had worked with jail staff to arranged the faux “hitman” Watkins supposedly asked to carry out the killing. There was substantial evidence that James is not an honest person: he’s been convicted seven times and other inmates testified he’d falsely claimed to have been “in the Army, the Marines, the Vice Lords criminal gang, and the Italian mob.” (¶15).

After Watkins’s trial, James was twice convicted of impersonating a police officer: he had a fake badge and fake pistol; he used these items in once instance to attempt to defraud a bank. Watkins argues these incidents were newly discovered evidence of James’s propensity to concoct dishonest schemes for his own benefit–the same sort of scheme Watkins said James ran on him, by framing him for a murder conspiracy in order to secure his own release for cooperating with authorities.

The state’s sole argument is that James’s new convictions were cumulative of the other evidence of his untrustworthiness. The court of appeals, though, takes it upon itself to break new legal ground. Though neither party argued the point, it holds that things that happen after trial can’t be said to have been “discovered after conviction” as the test for newly-discovered evidence requires. (¶¶49-50, citing State v. Plude, 2008 WI 58, 310 Wis. 2d 28, 750 N.W.2d 42). The court allows that sometimes, post-trial technological or scientific developments can be newly discovered, but says “the new technology or new scientific consensus must relate to evidence that existed at the time of trial.” (¶¶51).

The court’s reasoning here is far from airtight. Consider one example it gives: a new medical consensus that raises new doubts that a defendant caused the injuries to a victim. It is true that the injuries that are subjected to this new analysis existed at the time of trial, and the new medical knowledge casts them in a new light. But can we not say, just as reasonably, that James’s penchant for dishonesty was also a fact known at the time of trial, and his post-trial escapades simply cast that dishonesty in a new light (by showing its sophistication and extremity)? What’s the logical difference? Perhaps briefing on the point would have led the court to a more robust analysis.

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