State v. Delaney K. Watt

COURT 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.
December 10, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP1178-CR Cir. Ct. No. 2019CF131

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DELANEY K. WATT,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Fond du Lac County: PETER L. GRIMM and LAURA J. LAVEY, Judges.
Affirmed.

Before Neubauer, P.J., Gundrum, and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP1178-CR

¶1 PER CURIAM. Delaney K. Watt appeals from a judgment
convicting him of a dozen criminal offenses and an order denying his
postconviction motion.1 Watt argues that the circuit court erroneously exercised
its discretion in denying trial counsel’s motion to withdraw from representing
Watt and erred in denying Watt’s various pretrial suppression motions. He also
argues that trial counsel rendered ineffective assistance in failing to investigate
and pursue various defenses. For the reasons that follow, we affirm.

BACKGROUND

¶2 Watt was charged with multiple serious offenses after a shooting in
Fond du Lac County. Police responded to a call in the parking lot of an apartment
complex where they found a man and a woman with serious gunshot wounds.
Witnesses reported that a black or gold car entered the parking lot, stopped, and a
man exited, running toward the apartment building while firing a pistol at
individuals near the entry door.

¶3 An anonymous tip to the police identified Watt as the shooter,
claiming Watt had been in a fight earlier that day with Allen, who was in the
group by the entry door.2 Officers sought to search the apartment Watt shared
with his girlfriend, Danella Thurman. In a phone conversation with Thurman, a
detective requested that Thurman leave work and meet police at the apartment.
Once there, Thurman unlocked the door and officers followed her inside. Officers

1
The Honorable Peter L. Grimm presided over the jury trial and sentencing hearing;
Judge Grimm also entered the judgment of conviction. The Honorable Laura J. Lavey presided
over the postconviction evidentiary hearings.
2
We use the pseudonyms offered by the parties to protect the victims’ privacy. We use
the pseudonyms Allen, John, and Susan for the victims in this case.

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No. 2024AP1178-CR

claimed Thurman invited them in by saying something like “Let’s go in.” Once
inside, police smelled marijuana, halted their conversation, and left to obtain a
search warrant. Upon returning with a warrant, police searched the apartment and
found marijuana, drug paraphernalia, and a box for a .40 caliber Glock handgun.
They also discovered packaging materials for cocaine and crack cocaine, along
with additional drug paraphernalia. Both Watt and Thurman left their fingerprints
on several of the illicit items found during the search.

¶4 Less than two weeks before the scheduled jury trial, trial counsel
moved to withdraw from the case at Watt’s insistence. The circuit court denied
the motion after a thorough inquiry into the reason for the request, which was
primarily the fact that counsel refused to file certain pretrial motions. It was
satisfied that the perceived conflict could be rectified by litigating the motions that
Watt wanted counsel to litigate. Consequently, Watt’s trial counsel filed all such
motions. The court denied Watt’s pretrial motions after a hearing.

¶5 A jury found Watt guilty of the following charges after a five-day
trial: first-degree recklessly endangering the safety of Allen while using a
dangerous weapon; causing first-degree reckless injury to John while using a
dangerous weapon; first-degree recklessly endangering John’s safety while using a
dangerous weapon; causing first-degree reckless injury to Susan while using a
dangerous weapon; first-degree recklessly endangering Susan’s safety while using
a dangerous weapon; possession of a firearm by a convicted felon; endangering
safety by the reckless use of a firearm; possession of a controlled substance
(THC); maintaining a drug house while using a dangerous weapon, as party to the
crime (PTAC); possession with intent to deliver cocaine in an amount greater than
40 grams while using a dangerous weapon, PTAC; possession with intent to
deliver THC in an amount greater than 200 grams but less than 1,000 grams while

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No. 2024AP1178-CR

using a dangerous weapon, PTAC; and obstructing an officer. The jury found
Watt not guilty of two counts of aggravated battery.

¶6 The circuit court sentenced Watt to 95 1/2 years of initial
confinement, followed by 65 years of extended supervision. Watt filed a
postconviction motion arguing that his trial counsel had a conflict of interest given
his alleged dishonesty to Watt and the court regarding filing the motions. Watt
also asserted that counsel was ineffective for his failures to investigate Watt’s alibi
witness, and the identity of an unknown individual on a bike purportedly
discussing having a gun and a crossbow near the scene of the shooting. He argued
that counsel’s dishonesty and the resulting breakdown in trust created a conflict
that impaired his defense. Additionally, Watt identified the individual on the bike
as Donald Davis, Jr., and argued that Davis had both motive and opportunity to
commit the shooting, which trial counsel failed to investigate or present. The
postconviction court denied Watt’s motion. Watt appeals.

¶7 We include additional facts below as necessary to the discussion.

DISCUSSION

Denial of Trial Counsel’s Motion to Withdraw

¶8 Watt’s first assertion on appeal is that the circuit court erroneously
exercised its discretion in denying his trial counsel’s motion to withdraw from
representation. He argues that “[t]he facts demonstrate a complete breakdown in
communication and trust between Mr. Watt and [trial counsel], warranting court
intervention to protect Mr. Watt’s Sixth Amendment right to effective assistance
of counsel.” Watt requested that the court appoint him substitute counsel.

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No. 2024AP1178-CR

¶9 The United States and Wisconsin Constitutions guarantee criminal
defendants the right to the effective assistance of counsel, and that right includes
representation that is “free from conflicts of interest.” State v. Street, 202 Wis. 2d
533, 541, 551 N.W.2d 830 (Ct. App. 1996). We review the denial of a motion to
withdraw and substitute counsel for an erroneous exercise of discretion while
considering a number of factors, including:

(1) the adequacy of the court’s inquiry into the defendant’s
complaint; (2) the timeliness of the motion; and (3) whether
the alleged conflict between the defendant and the attorney
was so great that it likely resulted in a total lack of
communication that prevented an adequate defense and
frustrated a fair presentation of the case.

State v. Jones, 2010 WI 72, ¶25, 326 Wis. 2d 380, 797 N.W.2d 378 (quoting State
v. Lomax, 146 Wis. 2d 356, 359, 432 N.W.2d 89 (1988)). “A discretionary
determination ‘must be the product of a rational mental process by which the facts
of record and law relied upon are stated and are considered together for the
purpose of achieving a reasoned and reasonable determination.’” Lomax, 146
Wis. 2d at 359 (citation omitted).

¶10 To require the appointment of new counsel, Watt must show good
cause such as a complete breakdown in communications, an actual conflict of
interest, “or an irreconcilable conflict which could lead to an unjust verdict.” See
State v. Darby, 2009 WI App 50, ¶29, 317 Wis. 2d 478, 766 N.W.2d 770. Mere
disagreement over trial strategy does not constitute good cause to require the
circuit court to permit counsel to withdraw. Id. Finally, our supreme court has
held that eleventh-hour requests are considered a delaying tactic. Lomax, 146
Wis. 2d at 361-62.

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No. 2024AP1178-CR

¶11 Watt’s mother retained trial counsel in June 2019. In May 2020, the
circuit court scheduled a jury trial to begin on April 12, 2021. At a pretrial hearing
two weeks before the scheduled trial, counsel stated that Watt wanted him to
withdraw. Counsel explained that Watt wanted him to file suppression motions
that counsel thought lacked merit. However, counsel and Watt eventually agreed
at the hearing to try to reconcile their differences and, if that effort failed, counsel
would file a formal motion to withdraw. He did so two days later, just twelve days
before trial.

¶12 The circuit court held a hearing on the withdrawal motion, which
was prompted by trial counsel’s refusal to litigate four suppression motions that
Watt wanted him to pursue. Counsel had advised Watt from the onset of his
representation that the motions were meritless, but had apparently told Watt he
would file the motions nonetheless. Counsel later told Watt he had filed the
motions, though he did not actually file them. After discovering that the
suppression motions had not been filed, Watt sent a letter to the court in July 2020,
stating that he wanted counsel to withdraw because counsel would not file his
motions. Neither Watt nor trial counsel further pursued withdrawal at that time.

¶13 At the hearing on the withdrawal motion, Watt said he had not
sought to remove counsel at the two court hearings held in July 2020, or any other
pretrial proceeding, because counsel had promised to file the motions Watt
desired. But less than two weeks before the jury trial, Watt requested “court
appointed counsel to replace [trial counsel] as soon as possible.” To resolve the
dispute, the circuit court allowed trial counsel to file Watt’s motions and
subsequently litigate them at a suppression hearing before trial. Despite this
apparent resolution, Watt stated he no longer had confidence in counsel’s ability to

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No. 2024AP1178-CR

argue the motions, and he hoped his next lawyer would protect his constitutional
rights and pursue his motions.

¶14 The circuit court denied the motion to withdraw. It explained to
Watt that counsel decides what motions to file and not to file because a lawyer is
ethically bound not to pursue frivolous motions. The court opined that the next
lawyer would likely arrive at the same conclusion and that if the motions are
meritless, then no constitutional rights are unprotected. The court also found
“undue delay” in waiting until twelve days before trial to file the motion,
determining that granting the motion would necessarily delay the jury trial at “a
great inconvenience to the parties, the victims, the State, the public.” The court
summed up by finding “[t]his case is old.”

¶15 In the end, the circuit court found that mere disagreement over
strategy in terms of whether to file motions was not good cause to justify
withdrawal of counsel at the last minute. Watt was “not able to show the [c]ourt
why the next lawyer would be any different.” The court explained that its
“concern is that the next lawyer will have the same legal conclusions, won’t file
the motions, and it will be the same issue again over and over that Mr. Watt’s not
happy because the lawyer is not filing those motions.”

¶16 Here, the circuit court made an adequate inquiry into the bases of the
motion: Watt alleged a general lack of communication between him and his
attorney, and his attorney denied any general lack of communication, instead
indicating that Watt’s primary complaint regarding trial counsel was counsel’s
unwillingness to file motions he deemed meritless. The court conducted a lengthy
hearing, including taking testimony from trial counsel and Watt. It ultimately
concluded that Watt was not entitled to new counsel.

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No. 2024AP1178-CR

¶17 Based on our thorough review of the record and arguments, we
conclude that the circuit court properly exercised its discretion to deny the motion
for counsel to withdraw. The balance of Watt’s right to counsel against society’s
interest in proceeding to trial did not weigh in favor of appointing Watt new
counsel on the eve of the scheduled trial. See Lomax, 146 Wis. 2d at 360 (holding
court must “balance[] the defendant’s constitutional right to counsel against
societal interest in the prompt and efficient administration of justice”).

¶18 In addition to his arguments addressed above, Watt also maintains
on appeal that trial counsel had an actual conflict of interest and, as such, could
not represent Watt. The circuit court explicitly rejected Watt’s repeated insistence
on an actual conflict, and the record conclusively shows no actual conflict—trial
counsel zealously and effectively represented Watt before and at trial free from
any conflict of interest.

¶19 As noted, after the circuit court denied trial counsel’s withdrawal
motion, counsel agreed to file and litigate the suppression motions. Counsel
vigorously advocated to suppress evidence on Watt’s behalf. Moreover, counsel
convinced the jury to find Watt guilty of the lesser-included offense of recklessly
endangering the safety of the first shooting victim rather than the greater offense
of attempted first-degree intentional homicide, and to find Watt not guilty of two
counts of aggravated battery.

¶20 After an exhaustive inquiry into Watt’s reasons for wanting his
counsel to withdraw and new counsel appointed, the circuit court determined that
Watt’s motion was untimely and filed at least partially as a delay tactic. A court’s
“decision to not permit an indigent defendant to get a new lawyer will not be
overturned when the [r]ecord is devoid of evidence ‘of a conflict that made

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No. 2024AP1178-CR

counsel’s continued representation untenable.’” State v. Boyd, 2011 WI App 25,
¶13, 331 Wis. 2d 697, 797 N.W.2d 546 (citation omitted). Here, the record is
replete with evidence that there was no insurmountable breakdown in
communication between Watt and his counsel. To the contrary, the court
explicitly found “there hasn’t been the requisite showing to the degree necessary
that the communication would lead to an unjust result, unfair trial, or inadequate
presentation of the evidence because the lawyer[ is] in charge of trial strategy.”

¶21 Based on the foregoing discussion, we conclude that the circuit court
considered the proper factors in relation to the facts of record and reached a
reasoned and reasonable conclusion. See id. Accordingly, the court acted within
its discretion in denying the motion to withdraw and appoint new counsel. Watt is
not entitled to a new trial on this basis.

Denial of Watt’s Motions to Suppress

¶22 Watt next argues that the circuit court erred in denying each of his
motions to suppress. As noted above, trial counsel ultimately did file and litigate
the motions. The court began the suppression hearing the day after counsel filed
the motions and completed it on the first day of trial.

¶23 At the start of the suppression hearing, Watt moved to discharge trial
counsel because he would not subpoena certain witnesses for the hearing. The
first such witness was Watt’s probation officer. The prosecutor explained that this
witness was not needed because the State was not relying on the apprehension
request issued by Watt’s probation officer as the basis for his arrest. Another
witness Watt wanted subpoenaed was his girlfriend, Danella Thurman. Police had
searched Thurman’s residence, which Watt frequently stayed at, pursuant to a
warrant that they sought after seeing contraband items in plain sight upon

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No. 2024AP1178-CR

consensual entry into the residence. The prosecutor explained that Thurman had
been charged as Watt’s co-defendant and her attorney had refused to let her be
served, further advising her to plead the Fifth Amendment and remain silent if
called to testify.

¶24 The circuit court heard testimony and argument regarding the
legality of Watt’s arrest during a traffic stop the day after the shooting. The court
found that police had probable cause to arrest Watt without a warrant. The
hearing continued with testimony and argument regarding whether police violated
Watt’s Miranda3 rights during a custodial interrogation, thereby rendering any
derivative evidence inadmissible. As background, approximately 30 minutes into
the interview, Watt stated, “[j]ust take me to the County” or “I’m ready to go to
the County.” He repeated it twice more later on. Watt did not say he wanted to
stop the interview. He continued talking. Moreover, 2 hours and 25 minutes after
the interview began, Watt was taken to the county jail as soon as he made it clear
he wanted to stop talking. Watt did not testify at the suppression hearing to
dispute any of this. Based on the evidence before it, the court found that police
did not violate Miranda and Watt did not unequivocally invoke his right to
silence, but it agreed to review the recording of the interview before making a
final decision. The court reaffirmed its ruling on the first day of trial.

¶25 Watt also brought a motion through counsel alleging that the
criminal complaint contained materially false statements and a detective at the
preliminary hearing had made false statements. Watt argued that dismissal of the
complaint is the proper remedy. The circuit court heard the motion on the first day

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

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No. 2024AP1178-CR

of the trial and denied it after finding that there were no materially false
statements.

¶26 Finally, the circuit court heard testimony and argument in support of
Watt’s motion to suppress evidence because the search of Thurman’s residence
was unlawful. Watt sought the suppression of Thurman’s testimony after the State
granted her use immunity. The court denied the motion after finding that Thurman
had invited police into her home and police discovered the incriminating evidence
in plain view as the basis for a warrant to search the home later.

¶27 An order granting or denying a suppression motion presents a
question of constitutional fact. State v. Howes, 2017 WI 18, ¶17, 373 Wis. 2d
468, 893 N.W.2d 812. “A question of constitutional fact is a mixed question of
law and fact to which we apply a two-step standard of review.” State v.
Tomaszewski, 2010 WI App 51, ¶5, 324 Wis. 2d 433, 782 N.W.2d 725 (citation
omitted). “We review the circuit court’s findings of historical fact under the
clearly erroneous standard, and we review independently the application of those
facts to constitutional principles.” Id.

¶28 Based on our review of the record and the circuit court’s findings,
we conclude that the court properly denied Watt’s pretrial motions challenging his
arrest, his statement to police, and the search of his girlfriend’s apartment. There
was no merit to any of the motions. The court found the police had both
reasonable suspicion and probable cause to arrest Watt the day after the shooting
when he was driving the distinctive car the shooter had driven.

¶29 We further uphold the findings that Watt did not unequivocally
invoke his right to silence when questioned by police and there was no Miranda
violation. Watt’s girlfriend invited police into the apartment she shared with Watt

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No. 2024AP1178-CR

to speak with them. Once inside, police lawfully saw incriminating evidence in
plain view that provided probable cause for a search warrant. The search
produced incriminating evidence of drug and weapons offenses, and Watt was
charged accordingly. For all the foregoing reasons, the circuit court did not err in
denying the suppression motions.

Ineffective Assistance of Trial Counsel

¶30 The final set of arguments advanced by Watt relate to instances in
which he alleges that trial counsel rendered ineffective assistance. He first argues
that counsel was deficient because, on the circuit court’s order, counsel continued
to represent Watt despite having “an actual conflict of interest.” We concluded
above that Watt failed to show that counsel had an actual conflict of interest such
that withdrawal shortly before trial was warranted. For that reason, we do not
address this argument further.

¶31 Watt’s next argument in support of his claim that trial counsel
rendered ineffective assistance is based on Watt’s belief that counsel should have
further investigated and introduced at trial evidence pertaining to Watt’s alibi and
to a possible third-party perpetrator in support of a Denny4 motion. Over the
course of two days, the postconviction court held an evidentiary hearing on Watt’s
ineffective assistance claims. See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d
905 (Ct. App. 1979).

¶32 “Whether counsel was ineffective is a mixed question of fact and
law.” State v. Balliette, 2011 WI 79, ¶19, 336 Wis. 2d 358, 805 N.W.2d 334.

4
State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984).

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No. 2024AP1178-CR

“The factual circumstances of the case and trial counsel’s conduct and strategy are
findings of fact, which will not be overturned unless clearly erroneous; whether
counsel’s conduct constitutes ineffective assistance is a question of law, which we
review” independently. State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431,
904 N.W.2d 93. To prove a claim of ineffective assistance of counsel, the
defendant must satisfy two tests: first, that counsel’s performance was deficient;
and second, that counsel’s deficient performance was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). “If the defendant fails to satisfy either
prong, we need not consider the other.” Breitzman, 378 Wis. 2d 431, ¶37.

¶33 Based on our examination of the record and the circuit court’s
findings from the Machner hearing on the alibi claim, we conclude that trial
counsel’s performance was not deficient because it was objectively reasonable.
“Counsel’s conduct is constitutionally deficient if it falls below an objective
standard of reasonableness.” State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571,
665 N.W.2d 305. “The reasonableness of counsel’s conduct must be evaluated
‘on the facts of the particular case, viewed as of the time of counsel’s conduct.’”
Balliette, 336 Wis. 2d 358, ¶23 (quoting Strickland, 466 U.S. at 690).

¶34 Here, Watt argues that the alibi defense was not investigated, but the
record reflects that trial counsel spoke to Watt’s purported alibi witness, Lionel
Armstrong, and Armstrong did not provide an alibi. Armstrong could only state
that he was with Watt on the day of the shooting—he was not with him that night,
when the shooting happened. Trial counsel also listened to a jail call in which
Watt tried to coerce Armstrong into providing a false alibi but Armstrong would
not acquiesce to Watt’s coercion.

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No. 2024AP1178-CR

¶35 We first conclude that Watt has not demonstrated that trial counsel’s
performance was deficient in his investigation of an alibi defense. The record
reflects that trial counsel spoke to Watt’s purported alibi witness and concluded
that he was not useful to Watt’s defense because he could not place Watt away
from the crime. Because Watt has failed to make a showing of deficient
performance, we will not engage in a prejudice analysis on his alibi argument. See
Breitzman, 378 Wis. 2d 431, ¶37.

¶36 Watt next argues that trial counsel was ineffective in its failure to
investigate and introduce a Denny defense. Watt believes that the evidence
satisfies the third-party perpetrator test by showing there was a legitimate
tendency that a man named Donald Davis was the actual perpetrator of the
shootings. Watt suggests that the earlier altercation involving Allen and Davis,
referenced in the Background section, proves motive. However, even if we
assume without deciding that motive has been shown, Watt’s argument fails under
the analyses of both opportunity and direct connection.

¶37 The opportunity test “asks whether the alleged third-party
perpetrator could have committed the crime in question. This often, but not
always, amounts to a showing that the defendant was at the crime scene or known
to be in the vicinity when the crime was committed.” State v. Wilson, 2015 WI
48, ¶65, 362 Wis. 2d 193, 864 N.W.2d 52. Watt’s claim fails because he does not
allege material facts to support that Davis was present at the site of the shooting.

¶38 Counsel had no basis for presenting the third-party perpetrator
theory because there was no legitimate tendency that the man on the bike, even if
it was Davis, was the gunman for one obvious reason: the shooter arrived and fled
down the alley in a black Chevy Malibu. He was not on a bike. Watt conceded

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No. 2024AP1178-CR

postconviction that the surveillance video shows the gunman arriving and fleeing
the scene in a car; not on a bike.

¶39 The man on the bike was never identified, and Davis had not yet
been found when the parties briefed this appeal. Watt can only speculate that the
man on the bike was Davis and that Davis was the gunman. He offers no evidence
to support that speculation. The drunk man on the bike did not brag that he shot
anyone; he bragged only that he had a Glock and a crossbow. As of the time of
briefing, it remains uncertain who the drunk man on the bike was and, even if it
was Davis, he cannot be located. The facts that the gunman arrived and fled the
scene in a Chevy Malibu, not on a bike, cuts heavily against offering Davis as a
potential perpetrator.

¶40 We conclude that Watt has failed to show that there is a legitimate
tendency that a third-party perpetrator committed the shooting. Accordingly, we
conclude that Watt failed to show that trial counsel was ineffective for not
pursuing a Denny defense. Therefore, the postconviction court did not err in
denying Watt’s motion. See Thiel, 264 Wis. 2d 571.

CONCLUSION

¶41 Upon the foregoing reasons, we affirm the judgment of conviction
and the order denying postconviction relief. We defer to the circuit court’s factual
findings as to each issue Watt raises and conclude that the court did not
erroneously exercise its discretion in denying the eleventh-hour motion for trial
counsel to withdraw. We further conclude that the court did not err in denying the
various suppression motions and related motion, nor did it err in concluding that
Watt did not receive ineffective assistance of trial counsel.

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No. 2024AP1178-CR

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2023-24).

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