State v. Keyon D. Grant

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.
March 9, 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. 2020AP785-CR Cir. Ct. No. 2016CF4729

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEYON D. GRANT,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: T. CHRISTOPHER DEE, Judge. Affirmed.

Before Brash, P.J., Dugan and Donald, JJ.

¶1 BRASH, P.J. Keyon D. Grant appeals his judgment of conviction for
first-degree recklessly endangering safety and possession of a short-barreled
shotgun, as well as an order of the trial court denying his motion for postconviction
relief. Grant argues that he was denied his Sixth Amendment right to choose the
No. 2020AP785-CR

objective of his defense, pursuant to McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct.
1500 (2018), and is seeking a new trial.

¶2 The trial court held a postconviction hearing on this issue and
determined that the McCoy rule was not applicable; thus, there was no Sixth
Amendment violation. We affirm.

BACKGROUND

¶3 The charges against Grant stem from a shooting at McGovern Park,
located in the city of Milwaukee, in October 2016. Officers responding to the
shooting discovered the victim, D.P., suffering from a gunshot wound to the head.
D.P. identified Grant as the person who had driven him to McGovern Park and then
shot him with a sawed-off shotgun.

¶4 Grant was arrested and charged with attempted first-degree
intentional homicide. The State later added the charge of possession of a short-
barreled shotgun or rifle.

¶5 A jury trial was held in January 2018. D.P. testified that on the night
of the shooting, Grant picked him up at a gas station at approximately 8:30 p.m.
D.P. stated that Grant pulled up in a tan, four-door vehicle with two other people in
the car—a male and a female. D.P. asked Grant to give him a ride home.

¶6 Instead, D.P. testified that Grant drove him to McGovern Park. Grant
drove to a parking lot between a building and a pond; it was dark, and there was no
one else in the area. D.P. stated that Grant got out of the car and was talking on his
cell phone. D.P. also got out of the car, and saw that Grant was carrying a sawed-
off shotgun.

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¶7 D.P. testified that as he was turning to walk away, Grant shot him
from a couple feet away. D.P. said he had a short struggle with Grant, and then ran
into the bushes where he fell unconscious. D.P. testified that the shotgun blast tore
off part of his ear, fractured his skull, and left a bullet that remains embedded close
to his brain.

¶8 Talva McCall, the male passenger in the car, also testified. McCall
stated that he was also getting a ride home from Grant that night, but that Grant had
“unexpectedly” driven to McGovern Park. McCall said that both Grant and D.P.
got out of the car, but he and the female were talking inside the car so he was not
paying attention to them until he heard a shot. He saw a “big cloud of dust in the
air” and D.P. on the ground, and he heard D.P. say “why you do that to me[?]”
McCall testified that he and the female then fled the scene.

¶9 Although McCall did not see Grant shoot D.P., he knew Grant to have
a sawed-off shotgun. McCall testified that a few days after the shooting, a “girl”
gave a sawed-off shotgun to McCall, which McCall identified as belonging to Grant.
McCall stated he hid the shotgun at his parents’ house; he later told police where to
find it when he was arrested on a different matter.

¶10 Other evidence introduced at trial included surveillance video from
the gas station where D.P. was picked up. A tan Mazda, missing its front passenger-
side hubcap, is seen at the gas pump at the time D.P. said Grant picked him up there.
That vehicle was found to be registered to Grant. Additionally, the video shows the
driver of the vehicle wearing clothing that matched the description of Grant given
by D.P. on the night of the shooting. Other physical features of the driver as seen
in the video also match the description of Grant, such as hair and skin tone.
Moreover, D.P. is seen on the surveillance video getting into the tan vehicle.

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¶11 Surveillance video from McGovern Park was also admitted. A tan
Mazda missing the front passenger-side hubcap is seen pulling into the parking lot
at 9:14 p.m. That vehicle is seen leaving the park a few minutes later. A spent
shotgun shell casing was found in that area, which ballistics tests showed was fired
from the gun the police recovered at McCall’s parents’ house.

¶12 Grant chose not to testify, and the defense called no witnesses. During
closing arguments, counsel for Grant, Attorney Glenn Givens, stated that D.P. was
“the victim of an accident.” Attorney Givens noted that at the distance from which
D.P. claimed Grant shot him—approximately five feet—“you don’t miss,” and
therefore there was no intent to kill because if there had been, D.P. “would not be
here.” Attorney Givens had also suggested during his opening statement that the
shooting was unintentional.

¶13 After the jury left to start deliberating, Grant informed the trial court
that he was “very unhappy” with how Attorney Givens had proceeded. Grant stated
that he had told Attorney Givens that he “was not there” when D.P. was shot and
that he had never seen the gun. Grant therefore said that he was “not agreeing” with
Attorney Givens’ closing argument that “made it seem like [Grant] accidentally shot
[D.P.].” Grant further alleged that the witnesses, in particular McCall, had lied.

¶14 The jury returned a verdict convicting Grant of the lesser-included
charge of first-degree recklessly endangering safety as well as possession of a short-
barreled shotgun. Grant was sentenced to a total of seventeen years of
imprisonment, bifurcated as nine years and six months of initial confinement, and
seven years and six months of extended supervision.

¶15 After the McCoy decision was issued by the United States Supreme
Court, Grant filed a motion for postconviction relief seeking a new trial. Grant

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argued that he was denied his right to choose the objective of his defense, as
mandated in McCoy. See id., 138 S. Ct. at 1505. Grant filed an affidavit with his
motion, in which he averred that he had told Attorney Givens that he was not at the
park when D.P. was shot, and had “expected [his] defense at trial to be that [he] was
not present when the shooting occurred, and that the witnesses who said that [he]
was were not truthful.”

¶16 The trial court held an evidentiary hearing on the issue in November
2019. Attorney Givens testified at the hearing regarding how the defense strategy
for the case was developed. He stated that at his initial meeting with Grant, Grant
indicated that there was “nothing to worry about” because the male in the car was
his “brother” and he would not testify against Grant1; the female in the car was a
“dope addict” and she would not be found; and that Grant would be “out by May.”
In short, Grant did not believe that the State would be able to prove its case.

¶17 However, after McCall was arrested and said “some very negative
things” about Grant, Attorney Givens stated that he and Grant started having “some
serious conversations” about strategy for the case, and began going through
discovery. Attorney Givens’ description of those conversations was that Grant
made “different denials.” For example, Attorney Givens testified that he discussed
the surveillance video with Grant, who at first denied that the car in the video was
his. However, after Attorney Givens pointed out that Grant had been arrested in
Indiana in that car—Grant had been released from custody after the State could not
comply with his speedy trial demand—Grant admitted that it was his car. Based on

1
Although Grant referred to McCall as his brother, the two are not actually related.

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their discussions, Attorney Givens interpreted Grant comments as “clearly
admit[ing] being there[.]”

¶18 Attorney Givens further noted that Grant’s “take on the discovery”
was that no one had seen him “pull the trigger,” so they would not be able to testify
that he was the shooter. Thus, at that point in strategy development, Attorney
Givens understood that the trial strategy was not to argue that Grant was not at the
scene of the shooting, but rather that he was not the shooter. Indeed, Attorney
Givens stated that it appeared that Grant still did not believe that the witnesses would
“take the stand and testify against him.”

¶19 As the trial date got closer, Attorney Givens stated that he repeatedly
told Grant that he did not believe that Grant had intentionally tried to kill D.P.
However, he said that Grant did not “necessarily participate that much in the
discussions” and that he did not think Grant was “doing much listening”; instead,
Grant said that he wanted to “hear what [the witnesses are] going to say.” Thus,
Attorney Givens said that he proceeded to “pretty much develop[] [his] own
strategy,” as Grant was not “giving [Attorney Givens] a lot of input[.]” That strategy
was to “try[] to get this thing down to something less than attempted homicide.”
Attorney Givens testified that in his communications with Grant—which never
broke down throughout the proceedings, according to Attorney Givens—Grant
never stated that he did not want to proceed with that strategy.

¶20 In fact, Attorney Givens stated that Grant never indicated that he had
“changed his mind” regarding the theory of defense until the State had rested, and
they were discussing whether Grant would testify. Grant then told Attorney Givens
that he could not take the stand because “[he] wasn’t there.” However, Grant had
“sort of a smirk” on his face as he said this, such that Attorney Givens was not sure

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if he was serious, particularly given the timing of Grant’s statement at the end of the
trial—essentially too late to change strategy. Thus, Attorney Givens proceeded with
his closing argument that focused on the lack of intent.

¶21 Grant did not testify at the postconviction hearing.

¶22 The trial court denied Grant’s motion. It found Attorney Givens’
testimony to be credible, noting his extensive experience. The court acknowledged
a defendant’s “autonomy in choosing the strategy of completely denying
involvement in the charged crime or crimes,” pursuant to McCoy. However, the
court found that the McCoy case was not on point here due to the difference in the
“existence and timeliness of the defendants’ assertions that they wished to pursue”
such a defense.

¶23 The trial court explained that in McCoy, the defendant “had made
several assertions, prior to trial and prior to closing arguments, that he was not
involved in the crimes, that he was not there, and did not want to pursue trial
counsel’s ‘state of mind’ strategy.” See id., 138 S. Ct. at 1505. The trial court noted
that was not the case here, instead finding this case to be more in line with Florida v.
Nixon, 543 U.S. 175 (2004), where the defendant “was found to be largely
‘nonresponsive’ to discussions about trial strategy and did not complain until after
verdicts were reached.” Furthermore, the court observed that while Grant had
“[c]learly … objected on the record to the tactics of trial counsel after the case had
been argued and sent to the jury for deliberations” there was “[n]o other on-the-
record protestation by Grant[.]” As a result, the court found that there was no Sixth
Amendment violation in this case. See id. at 192.

¶24 Based on that analysis, the trial court declined to set aside the verdicts
and order a new trial for Grant. This appeal follows.

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No. 2020AP785-CR

DISCUSSION

¶25 Grant argues that he was denied his Sixth Amendment right to choose
the objective of his defense. This is a question of constitutional fact, the review of
which presents a mixed question of law and fact. State v. Martwick, 2000 WI 5,
¶16, 231 Wis. 2d 801, 604 N.W.2d 552. We will not reverse the trial court’s findings
of fact unless they are clearly erroneous; however, we review de novo the
application of constitutional principles to those facts. See State v. Eason, 2001 WI
98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625.

¶26 Grant asserts that the United States Supreme Court’s holding in
McCoy is applicable in this case.2 The issue in McCoy was whether trial counsel
can—over the objection of the defendant—concede that defendant’s guilt. See id.,
138 S. Ct. at 1505. The Court held that doing so is a violation of the Sixth
Amendment. Id.

¶27 The premise for the McCoy rule is that a defendant’s rights under the
Sixth Amendment to make “certain decisions regarding the exercise or waiver of
basic trial rights are of such moment that they cannot be made for the defendant by
a surrogate.” See Nixon, 543 U.S. at 187. These decisions include “whether to
plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an
appeal.” McCoy, 138 S. Ct. at 1508. The McCoy Court determined that

2
Although Grant’s trial was held prior to McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct.
1500 (2018), the rule adopted therein can be applied to this case retroactively. The McCoy rule is
one of criminal procedure, which, unlike a substantive rule, “‘do[es] not produce a class of persons
convicted of conduct the law does not make criminal’”; instead, a procedural rule “‘merely raise[s]
the possibility that someone convicted with use of the invalidated procedure might have been
acquitted otherwise.’” Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (citation omitted). In
Wisconsin, “new rules of criminal procedure are to be applied retroactively to all cases pending on
direct review or non-finalized cases still in the direct appeal pipeline.” State v. Lagundoye, 2004
WI 4, ¶12, 268 Wis. 2d 77, 674 N.W.2d 526 (emphasis added); see also State v. Chambers, 2021
WI 13, ¶21 n.7, __ Wis. 2d ___, ___ N.W.2d ___.

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No. 2020AP785-CR

“[a]utonomy to decide that the objective of the defense is to assert innocence” also
belongs in that category, as opposed to being in the realm of “[t]rial management,”
which is “the lawyer’s province[.]” Id. The Court explained that such decisions
“are not strategic choices about how best to achieve a client’s objectives; they are
choices about what the client’s objectives in fact are.” Id.

¶28 The McCoy Court reviewed trial counsel’s actions in a capital
case: the defendant was accused of committing three murders, for which the
government was seeking the death penalty. Id. at 1505. The defendant
“vociferously insisted” he had not committed the crimes, even though there was
“overwhelming” evidence to the contrary. Id. at 1505-06. Despite the defendant
maintaining his innocence throughout the trial, during the guilt phase of the trial,
trial counsel told the jury that the defendant had “committed three murders….
[H]e’s guilty.” Id. at 1505 (alterations in McCoy).

¶29 The Court recognized that the defendant in McCoy had “opposed [trial
counsel]’s assertion of his guilt at every opportunity, before and during trial, both
in conference with his lawyer and in open court.” Id. at 1509. Thus, trial counsel
knew of the defendant’s “complet[e] oppos[ition]” to a concession, because he
continued to “press[] [trial counsel] to pursue acquittal” throughout the proceedings
during the guilt phase of the case. Id. at 1506. In fact, the defendant “testified in
his own defense, maintaining his innocence and pressing an alibi difficult to
fathom.” Id. at 1507. Nevertheless, trial counsel conceded the defendant’s guilt in
both his opening statement and closing argument, characterizing the State’s
evidence as “unambiguous” that the defendant had committed the murders. Id. The
Court held that this was a violation of the defendant’s Sixth Amendment rights. Id.
at 1505.

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¶30 Still, the Court has also recognized that there are some situations in
which such participation by the defendant is not forthcoming, which the trial court
here recognized in citing Nixon. Nixon was also a capital case where trial counsel
conceded the defendant’s guilt during the guilt phase of the trial. Id., 543 U.S. at
178. The fact that distinguishes it from McCoy, however, was that when trial
counsel in Nixon tried to discuss this concession strategy with the defendant prior
to trial, he was “generally unresponsive” and “never verbally approved or protested”
the proposed strategy. Nixon, 543 U.S. at 181; see also McCoy, 138 S. Ct. at 1509.
In fact, the defendant in Nixon “complained about the admission of his guilt only
after trial.” McCoy, 138 S. Ct. at 1509. Under those circumstances, the Nixon court
held that trial counsel should not be “impeded by any blanket rule demanding the
defendant’s explicit consent.” Nixon, 543 U.S. at 192.

¶31 In discussing Nixon, the McCoy court explained that its rule was “not
to the contrary” of that holding:

If a client declines to participate in his defense, then an
attorney may permissibly guide the defense pursuant to the
strategy [he or] she believes to be in the defendant’s best
interest. Presented with express statements of the client’s
will to maintain innocence, however, counsel may not steer
the ship the other way.

McCoy, 138 S. Ct. at 1509. Thus, the McCoy rule recognizing the right “to insist
that counsel refrain from admitting guilt” is specific to circumstances in which the
defendant objects to trial counsel making a concession.3 Id. at 1505.

3
We note that the holding in Nixon appears to be specific to capital cases. See Florida v.
Nixon, 543 U.S. 175, 192 (2004). We further note that while the holding in McCoy was also made
specifically in the context of a capital murder case, see id., 138 S. Ct. at 1505, our supreme court
in Chambers assumed without deciding that the holding in McCoy “applies equally in non-capital
murder cases.” Chambers, 2021 WI 13, ¶18 n.5. We do the same here.

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¶32 We agree with the trial court that the facts of this case are not in
alignment with McCoy. Here, the factual findings of the trial court demonstrate that
Grant never made any protest regarding trial strategy throughout most of the
proceedings. See id.; see also State v. Chambers, 2021 WI 13, ¶20, __ Wis. 2d ___,
___ N.W.2d ___ (where our supreme court recently held that a defendant must
demonstrate both that he “expressly assert[ed]” that his defense objective was to
maintain his innocence, and that trial counsel “overrode” that objective by
conceding guilt, in order for a McCoy claim to succeed (quoting McCoy, 138 S. Ct.
at 1509; some bracketing and quotation marks omitted)). It was not until the end of
the trial, after he had heard all of the State’s evidence against him, that Grant
asserted his claim that Attorney Givens had gone against his wishes in seeking a
lesser offense. These findings are supported by the record, and therefore are not
clearly erroneous. See Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶11,
290 Wis. 2d 264, 714 N.W.2d 530.

¶33 Furthermore, the trial court’s findings establish that Grant failed to
fully participate in the development of his theory of defense, which is not the same
as objecting to it. See McCoy, 138 S. Ct. at 1509. Therefore, we conclude that the
McCoy rule does not apply here. See id. Accordingly, we affirm Grant’s judgment
of conviction as well as the trial court’s order denying his motion for a new trial.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

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