State v. Grant

397 Wis.2d 244

959 N.W.2d 92 (Table)

2021 WI App 27

STATE of Wisconsin, Plaintiff-Respondent, v. Keyon D. GRANT, ^† Defendant-Appellant.

Appeal No. 2020AP785-CR

Court of Appeals of Wisconsin.

March 9, 2021

BRASH, P.J.

¶1 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 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.

¶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.

¶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 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 Grant ¹ ; 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 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 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...