Markis Antwuan Watts v. State of Alabama (Appeal from Lee Circuit: CC-21-90.70)

Rel: December 15, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________

CR-2023-0338
_________________________

Markis Antwuan Watts

v.

State of Alabama

Appeal from Lee Circuit Court
(CC-21-90.70)

COLE, Judge.

Markis Antwuan Watts appeals the Lee Circuit Court's judgment

revoking his probation for having committed two new criminal offenses

-- namely, discharging a firearm into an occupied vehicle, a violation of §

13A-11-61(b), Ala. Code 1975, and first-degree assault, a violation of §
CR-2023-0338

13A-6-20, Ala. Code 1975. On appeal, Watts argues that the circuit court

erred when it revoked his probation because, he says, "the State failed to

present sufficient nonhearsay evidence connecting Watts to the alleged

violation of his probation." (Watts's brief, p. 7.) The State concedes that

the "vast majority of [its] evidence was comprised of hearsay," and it

admits that "the nonhearsay evidence by itself does not prove that Watts

committed those offenses," but it argues that this Court should affirm the

circuit court's judgment because the nonhearsay evidence was "sufficient

to connect" Watts to the new offenses. (State's brief, pp. 16-17.) We agree

with Watts.

Facts and Procedural History

On April 28, 2021, Watts pleaded guilty to first-degree promoting

prison contraband, a violation of § 13A-10-36, Ala. Code 1975. The circuit

court sentenced Watts to 15 years' imprisonment, split to serve 1 year

imprisonment followed by 2 years of probation. (C. 4.) While he was on

probation, a warrant was issued for Watts's arrest because he had

allegedly violated his probation. (C. 5-6.) On March 3, 2023, Watts was

arrested on the warrant, and he was given notice that he was alleged to

have violated his probation by committing the offenses of discharging a

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firearm into an occupied vehicle and first-degree assault. (C. 8.) The

circuit court set Watts's probation-revocation hearing for May 3, 2023.

At the revocation hearing, Watts, who was represented by counsel,

denied the allegations that he had committed the two new offenses. (R.

2.) Thereafter, the State presented evidence from one witness, Det.

Timothy Huffman of the Montgomery Police Department, to prove its

claim that Watts had violated his probation.

Det. Huffman's testimony established the following: On November

3, 2022, he was assigned to investigate a shooting that had occurred on

Winona Avenue in Montgomery, in which "Mr. Kennebrew" 1 was shot in

the left eye while sitting in his car in front of Brittney Fuller's home. (R.

7-8.) According to Det. Huffman, the shooting occurred at around 5:00

a.m. Det. Stewart2 was the first officer to respond to the scene, and he

also went to the hospital to talk to Kennebrew and Fuller. (R. 8.) Det.

Huffman said that, when he responded to the scene of the shooting, he

collected three 9 mm shell casings near where Kennebrew had been

parked. Fuller, who was Watts's ex-girlfriend, was taken to the detective

1Kennebrew's first name does not appear in the record on appeal.

2Det. Stewart's first name does not appear in the record on appeal.

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division of the Montgomery Police Department for questioning.

According to Det. Huffman, Fuller witnessed the shooting and told him

the following:

"She stated that Mr. Watts -- earlier that morning
between two and three in the morning, Mr. Watts kept
sending her text messages and actually calling her, actually
trying to get in her house, but she stated that she didn't want
him in her residence. And then she said apparently he just
showed up to her house banging on the front causing her
blinds to fall down and her to see him. She told him that she
was not going to let him in; she stated that he -- he stated that
he was going to kick in her front door, shoot through her house
and crash out on her."

(R. 12.) Fuller also told him that Watts had come to her house in a "black

Lincoln vehicle" but had eventually left. Fuller said that, while she was

interacting with Watts, she was also on the telephone with Kennebrew.

(C. 12-13.) Fuller then told Det. Huffman:

"After that, she stated that [Watts] actually left and she
continued on the phone with [Kennebrew]. She stated that
she told [Kennebrew], hey, look; don't come over here right
now because, you know, he is making threats. So then she
stated that the victim, which is Mr. Kennebrew, he pulled up
in his vehicle, actually on the same street, but actually on the
side of the street. Her house is on the other side.

"So he parked on the other side of the street. And he
just waited there for like three seconds and then he pulled off.
When he pulled off, he saw the black Lincoln car come back to
the residence. And he stated that he circled [the] block, and

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when he came back, he stated that the Lincoln Town Car was
gone from the residence. So that's when he parked on the side.

"Now, as far as Ms. Fuller, she stated that she saw Mr.
Kennebrew parked on the side of the street and then she saw
the black Lincoln Town Car that Mr. Watts was driving come
back and pull beside her residence. She stated that Mr. Watts
got out -- got out on the passenger's side of the Lincoln and
she stated that a white U-Haul pulled up in between the black
Lincoln Town Car. You have the black Lincoln Town Car, you
have the white U-Haul truck, and then you have the victim's
vehicle parked. She stated that Mr. Watts got out of the car
and was talking to somebody in the truck, and then she stated
that she told the driver to unlock the back driver's side door.
She stated that once he got to the driver's side door, he opened
it.

"The white U-Haul truck pulled off and she stated[] that
she actually saw Mr. Watts hanging out of the back
passenger's side of the Lincoln Town Car shooting at Mr.
Kennebrew's vehicle and then actually pulling off from
Winona Avenue to -- that's Federal Drive, and then that's
when she ran outside to see the victim, Mr. Kennebrew, and
that's when they went to the hospital."

(R. 14-15.) Det. Huffman said that Fuller also identified Watts as the

shooter in a photo lineup that he had prepared for her. (R. 23.)

Det. Huffman said that the physical evidence that he collected at

the scene corroborated Fuller's account of what she said had happened.

Additionally, Det. Huffman said that he saw the bullet holes in

Kennebrew's windshield and that he viewed the text messages that

Fuller said were sent by Watts. However, Det. Huffman did not testify

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about the content of those text messages other than stating that Watts

and Fuller were "arguing back and forth." (R. 24.)

Det. Huffman testified that, on November 14, 2022, the United

States Marshals Service apprehended Watts at the Red Lyons

Apartments in Montgomery. At that time, Watts was served with the

arrest warrants for discharging a firearm into an occupied vehicle and

first-degree assault. (R. 17.) Det. Huffman said that he searched the

black Mercedes vehicle that Watts was driving the day he was

apprehended, but he found no firearms. (R. 17.) Det. Huffman said that,

after he advised Watts of his Miranda 3 rights, Watts exercised his right

to remain silent.

On cross-examination, the following exchange occurred between

Det. Huffman and Watts's counsel:

"[Watts's counsel]: Okay. The testimony that you're
giving today that would identify Mr. Watts as the person who
was there who did this is based on statements that other
people have told you; correct?

"[Det. Huffman]: Yes.

"[Watts's counsel]: The bullets, for instance, did you go
out and find those casings yourself?

3Miranda v. Arizona, 384 U.S. 436 (1966).

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"[Det. Huffman]: Yes.

"[Watts's counsel]: Okay. And there is nothing about --
you haven't done anything about those casings, testing or
anything, that would independently tell you that those
casings belonged to Mr. Watts?

"[Det. Huffman]: Correct.

"[Watts's counsel]: Okay. So any information that you
have given the Judge that would identify Mr. Watts as the
person who was there, the person who shot this firearm is
based on statements that other people have told you?

"[Det. Huffman]: That's it. Just based on other -- just
based on Ms. Fuller and Mr. Kennebrew. Also I did -- I think
I did a photo [template] of Mr. Watts or -- I think I did a photo
[template] for a lineup with Mr. Watts in which Ms. Fuller
identified him actually as the one who was shooting.

"....

"[Watts's counsel]: And you witnessed her identify him
in the six pack, but once again, --

"....

"[Watts's counsel]: -- you're telling us based on what
someone else indicated to you?

"[Det. Huffman]: Correct."

(R. 22-23.)

At the close of the evidence, Watts argued that the evidence was

insufficient to revoke his probation for committing the two new offenses

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of discharging a firearm into an occupied vehicle and first-degree assault

because, he said, "the only evidence that we have before us today that

Mr. Watts is the person who fired that weapon[] is hearsay testimony.

We don't have any substantive evidence that he is the person that fired

that weapon." (R. 27-28.) The circuit court rejected Watts's argument,

explaining:

"And part -- part of what is -- was hearsay, but there was
also -- the bullet casings were found consistent and
corroborating the witnesses' testimony and the photo lineup
identifying [Watts]. Although, it was her -- he was there for
the identification of the witness. And the text messages also
corroborated.

Although, they might be considered hearsay or they are,
in fact, hearsay. But he reviewed the text messages that were
consistent with [Watts's] being there. So it corroborated -- it's
not the uncorroborated testimony of one person. It's
corroborated by those facts."

(R. 28.)

Thereafter, the circuit court revoked Watts's probation, finding that

it was reasonably satisfied that Watts had violated his probation by

committing two new offenses. (R. 30-31.) The circuit court memorialized

its decision in a written order. (C. 12.) This appeal follows.

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Discussion

On appeal, Watts argues that the State's evidence was insufficient

to revoke his probation for committing two new offenses because, he says,

there was no nonhearsay evidence presented at the revocation hearing

that connected him to the crimes. As noted above, the State

acknowledges the dearth of nonhearsay evidence presented at Watts's

revocation hearing but asserts that the nonhearsay evidence that was

presented was sufficient to connect Watts to the new offenses.

In Walker v. State, 294 So. 3d 825 (Ala. Crim. App. 2019), this Court

addressed what must be shown to revoke a person's probation when, as

is the case here, the evidence presented at a probation-revocation hearing

consists of a mixture of hearsay and nonhearsay evidence:

"To determine whether the evidence presented at a
probation-revocation hearing is sufficient to revoke a
defendant's probation for committing a new offense, the
Alabama Supreme Court has set out the following standard:

" ' " ' "Probation or
suspension of sentence
comes as an act of grace to
one convicted of, or pleading
guilty to, a crime. A
proceeding to revoke
probation is not a criminal
prosecution, and we have no
statute requiring a formal

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trial. Upon a hearing of this
character, the court is not
bound by strict rules of
evidence, and the alleged
violation of a valid condition
of probation need not be
proven beyond a reasonable
doubt." ' "

" ' "Martin v. State, 46 Ala. App. 310,
312, 241 So. 2d 339, 341 (Ala. Crim.
App. 1970) (quoting State v. Duncan,
270 N.C. 241, 154 S.E.2d 53 (1967)
(citation omitted)). Under that
standard, the trial court need 'only be
reasonably satisfied from the evidence
that the probationer has violated the
conditions of his probation.' Armstrong
v. State, 294 Ala. 100, 103, 312 So. 2d
620, 623 (1975). Absent a clear abuse
of discretion, a reviewing court will not
disturb the trial court's conclusions.
See Moore v. State, 432 So. 2d 552, 553
(Ala. Crim. App. 1983), and Wright v.
State, 349 So. 2d 124, 125 (Ala. Crim.
App. 1977)."

" 'Ex parte J.J.D., 778 So. 2d [240] at 242 [(Ala.
2000)]. See Rule 27.6(d)(1), Ala. R. Crim. P.
(providing that at a revocation hearing the "court
may receive any reliable, relevant evidence not
legally privileged, including hearsay," and the
court must be reasonably satisfied from the
evidence that a violation of probation occurred
before revoking probation). Whether to admit
hearsay evidence at a probation-revocation
hearing is within the discretion of the court.

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Puckett v. State, 680 So. 2d 980, 981 (Ala. Crim.
App. 1996). However,

" ' "[i]t is well settled that hearsay
evidence may not form the sole basis for
revoking an individual's probation. See
Clayton v. State, 669 So. 2d 220, 222
(Ala. Cr. App. 1995); Chasteen v. State,
652 So. 2d 319, 320 (Ala. Cr. App.
1994); and Mallette v. State, 572 So. 2d
1316, 1317 (Ala. Cr. App. 1990). 'The
use of hearsay as the sole means of
proving a violation of a condition of
probation denies a probationer the
right to confront and to cross-examine
the persons originating the information
that forms the basis of the revocation.'
Clayton, 669 So. 2d at 222."

" 'Goodgain v. State, 755 So. 2d 591, 592 (Ala.
Crim. App. 1999).

" 'To summarize, at a probation-revocation
hearing a circuit court must examine the facts and
circumstances supporting each alleged violation of
probation. The court may consider both hearsay
and nonhearsay evidence in making its
determination. The hearsay evidence, however,
must be reliable,2 and it cannot be the sole
evidence supporting the revocation of probation.
Thus, a circuit court must assess the credibility of
the particular witnesses at the probation-
revocation hearing, the reliability of the available
evidence, and the totality of the evidence in each
individual case to determine whether it is
reasonably satisfied that the probationer has
violated a term of his or her probation and that
revocation is proper. Moreover, an appellate court

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will disturb a circuit court's decision only if the
record establishes that the circuit court exceeded
the scope of its discretion.

" '_______________

" '2Cf. Hampton v. State, 203 P.3d 179, 185
(Okla. Crim. App. 2009) ("[W]e conclude that the
due process confrontation requirement applicable
to revocation[] matters will generally be satisfied
when a trial court determines that proffered
hearsay bears substantial guarantees of
trustworthiness or otherwise has sufficient indicia
of reliability.").'

"Sams v. State, 48 So. 3d 665, 667-68 (Ala. 2010).

"Recently, in Ex parte Dunn, 163 So. 3d 1003 (Ala.
2014), the Supreme Court refined this standard, explaining
that, when the State presents a mixture of hearsay and
nonhearsay evidence to show that a defendant violated his
probation by committing a new offense, the circuit court
cannot revoke a defendant's probation for that violation
unless the nonhearsay evidence connects the defendant to the
alleged offense. In that case, the Supreme Court reversed this
Court's decision upholding the circuit court's revocation of
Dunn's probation for committing a new offense because 'the
State [had] not corroborated by nonhearsay evidence the
hearsay evidence connecting the pants, and by extension
Dunn, to the burglary.' 163 So. 3d at 1006. See also Wright
v. State, 292 So. 3d 1136, 1139 (Ala. Crim. App. 2019)
(reversing the circuit court's revocation of Wright's probation
for committing a new offense because the nonhearsay
evidence that Wright was merely present at a party at the
time a shooting occurred did not sufficiently connect him to
the alleged murder); and Miller v. State, 273 So. 3d 921, 925
(Ala. Crim. App. 2018) (reversing the circuit court's revocation
of Miller's probation because 'the State failed to present any

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nonhearsay evidence indicating that Miller had, in fact,
committed the alleged arson').

"In sum, Sams and Dunn establish that hearsay is
admissible at a probation-revocation hearing to show that a
defendant committed a new offense and that the circuit court
can rely on hearsay to revoke a defendant's probation. But
those cases warn that hearsay cannot serve as the sole basis
for revoking a defendant's probation, and instruct that,
although the State does not have to prove every element of the
alleged new offense with nonhearsay evidence, the State must
present sufficient nonhearsay evidence connecting the
defendant to the commission of the alleged new offense."

294 So. 3d at 831-32 (footnote omitted). Having set out the appropriate

standard under which to review this case, we now consider whether the

circuit court properly revoked Watts's probation for committing the new

offenses of discharging a firearm into an occupied vehicle and first-degree

assault.

There is no question that the State's evidence (both hearsay and

nonhearsay) was sufficient to establish that, on November 3, 2022, a

firearm was discharged into a vehicle occupied by Kennebrew, see § 13A-

11-61, and that Kennebrew was a victim of a first-degree assault, see §

13A-6-20. What we must resolve here, however, is not whether the State

presented sufficient evidence that those offenses had been committed,

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but whether the State presented sufficient nonhearsay evidence to

establish that Watts is the individual who committed the offenses.

Here, the only nonhearsay evidence the State presented at Watts's

probation-revocation hearing was Det. Huffman's testimony that he

collected 9 mm shell casings from the crime scene, that he saw bullet

holes in Kennebrew's windshield, that he saw Kennebrew's injury, that

he found nothing when he searched Watts's vehicle, and that Watts

exercised his right to remain silent when Det. Huffman attempted to

question him. Although the circuit court correctly found that this

nonhearsay testimony "corroborated" the hearsay testimony that

Kennebrew was shot while he sat in his car outside of Fuller's home, this

nonhearsay evidence does not connect Watts to those crimes. Thus, the

evidence presented at Watts's probation-revocation hearing was

insufficient to revoke Watts's probation.

Conclusion

Because the State failed to present sufficient nonhearsay evidence

connecting Watts to the alleged violations of his probation, the circuit

court erred in revoking his probation. Accordingly, this Court reverses

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the circuit court's judgment revoking Watts's probation and remands this

case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Windom, P.J., and Kellum, McCool, and Minor, JJ., concur.

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