COURT OF APPEALS

DECISION

DATED AND FILED

February 2, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2021AP1672-CR Cir. Ct. No. 2018CF511

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

GARY C. MAYS, JR.,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane

County: JOHN D. HYLAND, Judge. Affirmed. 

Before Kloppenburg, Fitzpatrick, and Nashold, 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). 

¶1 PER CURIAM. Gary Mays appeals a judgment of conviction for 

felony murder and an order denying his postconviction motion. Mays argues that 
No. 2021AP1672-CR

2

his two trial attorneys provided ineffective assistance of counsel by: (1) failing to 

object to a question and comment by the prosecutor asserting that Mays conspired 

with his attorneys to provide false testimony that fit the evidence; and (2) failing to 

withdraw so that they could be witnesses whose testimony could have rebutted the 

prosecutor’s assertion. Mays also argues that the circuit court erred by admitting 

evidence of gang activity and that we should exercise our discretion to order a new 

trial in the interest of justice. We reject each of Mays’s arguments, and we 

therefore affirm.

Background

¶2 According to the criminal complaint, Mays and two co-actors, 

Joshua McInnis and Travon Jackson, planned an armed robbery of K.M. that 

resulted in the shooting death of K.M.’s boyfriend, J.P. Jackson arranged to buy 

marijuana from K.M. and directed her to an apartment building where Mays and 

McInnis were waiting. After K.M. and J.P. drove to the apartment building, Mays 

and McInnis came out of the building and entered K.M.’s vehicle. McInnis 

displayed a gun and demanded the marijuana. Mays allegedly told McInnis to turn 

on the gun’s laser sight, grabbed J.P.’s pocket, and asked if there was anything 

inside. A fight ensued between J.P. and Mays and McInnis, and McInnis shot J.P. 

¶3 Mays’s case proceeded to trial. At a first trial, the jury was unable to 

reach a verdict, and the court declared a mistrial. At a second trial, the jury found 

Mays guilty of felony murder as party to the crime of attempted robbery. The 

testifying witnesses included K.M., McInnis, Jackson, and multiple police officers 

who had responded to the scene or had been involved in investigating the incident. 

¶4 When McInnis testified, he largely refused to answer the 

prosecutor’s questions. He repeatedly responded, “I got nothin’ to say,” and he 
No. 2021AP1672-CR

3

claimed that he did not know Mays and had never met Mays before. When 

Jackson testified, he admitted to setting up a drug deal with the intention of 

robbing K.M., but he claimed that the other two individuals involved in the plan to 

rob K.M. were someone named “Shawn” and someone else whose name he did 

not know. 

¶5 The circuit court allowed the State to present evidence that Mays, 

McInnis, and Jackson were members of the same gang. The court also allowed the 

State to present expert testimony through a police officer describing gang structure 

and activities. The prosecution proffered the evidence to explain why McInnis 

and Jackson would lie in their testimony and refuse to implicate Mays. Mays 

objected to the admission of this gang-related evidence, arguing that its probative 

value was outweighed by the risk of unfair prejudice. 

¶6 Mays testified in his defense. He admitted that he was involved with 

McInnis and Jackson in a drug deal and that he and McInnis entered K.M.’s 

vehicle to transact the deal. Mays also provided detailed testimony relating to the 

circumstances surrounding the incident. He denied that he was aware of any plan 

to rob K.M., that he was aware that McInnis had a gun, or that he participated in 

an attempt to rob K.M. or J.P. 

¶7 In an effort to impeach Mays, the State argued that Mays made up a 

story to fit the evidence after he had reviewed the discovery in his case. As part of 

this effort, the prosecutor posed a question to Mays in which the prosecutor asked 

Mays whether Mays and his attorneys had “worked out some story that got you 

out of this”: 

Q Isn’t it true that you took all the pieces of this 

investigation, everything that the police did, all 600, 700 

pages of reports, 21 disks, half of which are your friends 
No. 2021AP1672-CR

4

and family confessing that you were involved in this 

robbery, you took all of those pieces of information and 

with your lawyers worked out some story that got you out 

of this? Isn’t that true?

A No.

During closing arguments, the State returned to the same theme and made the 

following comment in its rebuttal argument: “So does Gary Mays’s story fit 

today? Yeah. I sure as hell expect it would, or his attorneys probably aren’t doing 

their job.” 

¶8 After his conviction and sentencing, Mays filed a postconviction 

motion claiming ineffective assistance of counsel and seeking a new trial. The 

circuit court held a Machner1 hearing at which Mays’s two trial attorneys 

testified. The court denied Mays’s motion. 

¶9 We reference additional facts as needed in our discussion below.

Discussion

A. Ineffective Assistance of Counsel

¶10 We begin with Mays’s argument that trial counsel was ineffective by 

failing to object to the assertions that Mays conspired with his attorneys to provide 

false testimony and by failing to withdraw so that they could be witnesses whose 

testimony could have rebutted the prosecutor’s assertion. To demonstrate 

ineffective assistance of counsel, a defendant must establish both (1) that counsel’s 

performance was deficient; and (2) that the deficient performance prejudiced the 

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We need not 

 

1

 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
No. 2021AP1672-CR

5

address both prongs of this test if the defendant makes an insufficient showing on 

one prong. See id. at 697. 

¶11 To establish deficient performance, “the defendant must show that 

counsel’s representation fell below an objective standard of reasonableness.” Id.

at 688. “This requires showing that counsel made errors so serious that counsel 

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.” Id. at 687. The court “must indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Id. at 689.

¶12 To establish prejudice, the defendant must show that there is “a 

reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different.” Id. at 694. “A reasonable probability 

is a probability sufficient to undermine confidence in the outcome.” Id. “It is not 

enough for the defendant to show that the errors had some conceivable effect on 

the outcome of the proceeding.” Id. at 693.

¶13 “[O]ur review of an ineffective-assistance-of-counsel claim presents 

mixed questions of law and fact.” State v. Ward, 2011 WI App 151, ¶9, 337 

Wis. 2d 655, 807 N.W.2d 23. “A circuit court’s findings of fact will not be 

disturbed unless they are clearly erroneous.” Id. “Its legal conclusions as to 

whether the lawyer’s performance was deficient and, if so, prejudicial, are 

questions of law that we review de novo.” Id. 

¶14 Here, Mays does not develop an argument that the circuit court made 

erroneous factual findings. He does, however, contend that the court erred in its 

legal conclusions relating to whether trial counsel was ineffective, both in failing 

to object and in failing to withdraw. We address each in turn.
No. 2021AP1672-CR

6

1. Counsel’s Failure to Object

¶15 Mays first argues that trial counsel provided ineffective assistance by 

failing to object to the prosecutor’s question and comment in closing argument in 

which the prosecutor asserted that Mays conspired with counsel to provide false 

testimony. He argues that the prosecutor’s assertion was not supported by any 

evidence and was improper argument, and that counsel’s failure to object to this 

assertion was objectively unreasonable. Mays argues that the prosecutor’s 

assertion, if true, would have involved multiple ethical violations by counsel, was 

highly prejudicial, and could not help but affect the fundamental fairness of his 

trial. 

¶16 The State contends that counsel’s failure to object to the prosecutor’s 

question and comment was not deficient performance. The State bases this 

argument primarily on its disagreement with Mays over the characterization of the 

prosecutor’s question and comment. According to the State, the question and 

comment are not reasonably read, in context, as asserting misconduct by counsel. 

The State also argues that, even if counsel performed deficiently by failing to 

object to the prosecutor’s question and comment, Mays cannot show prejudice 

given all of the incriminating evidence against Mays. 

¶17 We conclude that Mays fails to show that he was prejudiced by the 

prosecutor’s question and comment. Given the substantial evidence against Mays, 

we are confident that the result would have been the same even if counsel had 

made a successful objection. We now summarize some of the most pertinent 

evidence.

¶18 First, K.M.’s testimony implicated Mays as a knowing participant in 

the attempted robbery. For example, K.M. testified that, as McInnis pulled a gun 
No. 2021AP1672-CR

7

and demanded the marijuana, Mays told McInnis to “turn the beam on it,” after 

which McInnis pointed a laser sight at J.P.’s head. K.M. also testified that, after 

J.P. exited the vehicle, Mays and McInnis both exited the vehicle and began 

“stomping” J.P. while he was on the ground. 

¶19 Second, within a short time after the incident, K.M., McInnis, and 

Jackson all provided largely consistent statements to police that implicated Mays. 

Those statements, when contrasted with Mays’s testimony, were powerful 

evidence that Mays was lying when he denied any involvement in an attempt to 

rob K.M. As the circuit court explained:

The problem for Mays is that all of the other 

witnesses made statements that were nearly identical, and 

made them within days of the crime. They lacked the 

opportunity to compare notes or line up stories. From the 

Court’s viewpoint, it is less that Mays had access to all the 

discovery and could shape a story to fit the evidence. It is 

more that three others essentially told the same story and 

they told it independent of each other and within days of 

the event. That was the strength of the State’s case. 

¶20 Third, there was additional evidence to corroborate K.M.’s, 

Jackson’s, and McInnis’s statements incriminating Mays. For example, police 

found a gun with a laser sight in Mays’s home near his personal documents, and 

the color of the laser sight matched K.M.’s description of the laser as green. There 

was also evidence that, shortly after the incident, Jackson sent Mays text 

messages, including a message telling Mays to “play dumb” if arrested. 

¶21 Fourth, the jury heard evidence that McInnis had previously testified 

against Mays. This included testimony by McInnis that McInnis had shown Mays 

the gun ahead of time, that they never intended to pay K.M. for the marijuana, and 

that Mays had “patted” J.P.’s pockets to try to obtain money from J.P. 
No. 2021AP1672-CR

8

¶22 Finally, the jury was shown a Facebook Live video that Mays had

streamed from counsel’s office—apparently without counsel’s knowledge—as 

Mays watched McInnis’s and Jackson’s videotaped confessions implicating Mays. 

In the Facebook Live video, Mays can be seen providing real time commentary on 

their confessions, sometimes mocking them or laughing. At one point in the 

video, Mays comments that McInnis was “spilling the beans.” The Facebook Live 

video further undermined Mays’s credibility in the eyes of the jury. As the circuit 

court found in its postconviction ruling, the video was a “self-inflicted wound to 

[Mays’s] defense.” 

¶23 In sum, the jury heard ample evidence pointing to Mays’s guilt, and 

it had ample reason to doubt Mays’s credibility, regardless of any assertion by the 

prosecutor that Mays conspired with counsel to fabricate false testimony. 

Accordingly, we are not persuaded by Mays’s argument that he was prejudiced by 

such an assertion. 

2. Counsel’s Failure to Withdraw

¶24 Mays next argues that trial counsel provided ineffective assistance 

by failing to withdraw so that they could be witnesses whose testimony could have 

rebutted the prosecutor’s assertion that Mays conspired with counsel to provide 

false testimony. Mays points out that one of his attorneys testified at the Machner

hearing that Mays’s trial testimony consisted of the same story that Mays had been 

telling counsel from the time counsel first started representing him. Mays argues 

that the only way to buttress his testimony was for counsel to testify and that, 

without counsel’s testimony, he was prejudiced. 

¶25 The State argues that counsel’s failure to withdraw was neither 

deficient performance nor prejudicial. As to deficient performance, the State 
No. 2021AP1672-CR

9

argues that Mays fails to show that counsel’s failure to withdraw fell outside the 

wide range of competent assistance. Rather, the State argues, counsel’s failure to 

withdraw to testify as witnesses fell within prevailing professional norms. See

Strickland, 466 U.S. at 688 (“The proper measure of attorney performance 

remains simply reasonableness under prevailing professional norms.”). As to 

prejudice, the State argues that testimony from counsel was not reasonably likely 

to have produced a different result. 

¶26 We agree with the State that Mays has not shown that counsel 

performed deficiently by failing to withdraw. We are not persuaded by Mays’s 

argument to the contrary for two main reasons. 

¶27 First, Mays points to no settled law supporting the view that it is 

objectively unreasonable for a defense attorney to decline to withdraw when the 

attorney could testify to information that could rebut the State’s case. “In order to 

constitute deficient performance, the law must be settled in the area in which trial 

counsel was allegedly ineffective.” State v. Hanson, 2019 WI 63, ¶28, 387 Wis. 

2d 233, 928 N.W.2d 607. Mays relies on State v. Foy, 206 Wis. 2d 629, 557 

N.W.2d 494 (Ct. App. 1996), to argue that counsel should have withdrawn so that 

counsel could testify. In Foy, this court concluded that there is not an absolute 

prohibition on counsel testifying in a client’s case and that the circuit court has 

discretion to allow counsel’s testimony “when justice requires.” Id. at 643-44. 

However, the court in Foy did not address whether or under what circumstances 
No. 2021AP1672-CR

10

counsel performs deficiently by failing to withdraw to testify on the client’s 

behalf.2 

¶28 Second, counsel’s testimony at the Machner hearing supports the 

conclusion that counsel acted within prevailing professional norms by not

withdrawing to testify on Mays’s behalf. Although one of Mays’s attorneys 

testified that she eventually came to believe that she should have withdrawn to be 

a witness, that same attorney also testified that, during her thirty-four years with 

the public defender’s office, she was not aware of any instance in which a defense 

attorney had withdrawn from a case to testify. Mays’s other attorney similarly 

testified that he was not aware of any instance in which a defense attorney had 

withdrawn to testify at a client’s trial. 

B. Evidence of Gang Activity

¶29 Mays next argues that the circuit court erroneously exercised its 

discretion by admitting evidence of gang activity. According to Mays, the circuit 

court should have excluded the evidence of gang activity because its probative 

value was substantially outweighed by the risk of unfair prejudice. Under WIS.

STAT. § 904.03,3relevant evidence “may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the 

 

2

 The circuit court made several factual findings in support of its legal conclusion that 

Mays’s counsel did not perform deficiently by failing to withdraw under the circumstances of this 

case. The court’s findings included that Mays “was better served by having two attorneys who 

had tried the case once already,” and that the jury had “no perceivable reason not to trust 

[Mays’s] attorneys because they acquitted themselves professionally and with exceeding 

competence during the trial.” Mays does not demonstrate that these findings are clearly 

erroneous.

3

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2021AP1672-CR

11

issues, or misleading the jury, or by considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence.” Sec. 904.03.

¶30 As mentioned above, the gang-related evidence included evidence 

that Mays, McInnis, and Jackson were members of the same gang. It also

included expert testimony describing gang structure and activities. The 

prosecution used the evidence to explain why McInnis and Jackson would lie in 

their testimony and refuse to implicate Mays. 

¶31 Mays does not dispute that evidence of a witness’s gang affiliation 

may be admitted to demonstrate bias or motive to lie. See State v. Long, 2002 WI 

App 114, ¶17, 255 Wis. 2d 729, 647 N.W.2d 884. He argues, however, that such 

evidence generally carries a high risk of unfair prejudice. “[E]vidence of a 

person’s gang ties may imply that the person is of questionable character and 

perhaps that the person has engaged in prior bad acts, if not criminal conduct.” Id. 

Mays contends that the probative value of the gang-related evidence in this case 

was low because the robbery of K.M. was not gang-related and because the 

evidence was unnecessary for the State to show that McInnis and Jackson had a 

motive to lie. Mays argues that the low probative value of the evidence was far 

outweighed by the risk of prejudice. He argues that the prosecution used the 

evidence to appeal to the jury’s emotions by portraying Mays, McInnis, and 

Jackson as bad actors to be feared, and that the evidence pervaded the trial. 

¶32 The State argues that the circuit court reasonably exercised its 

discretion to admit the gang-related evidence. In the alternative, the State argues 

that any error in admitting the evidence was harmless. For the reasons that follow, 
No. 2021AP1672-CR

12

we agree with the State that the court reasonably exercised its discretion to admit 

the evidence.4 

¶33 Circuit courts have broad discretion to decide whether the probative 

value of evidence is or is not outweighed by the risk of unfair prejudice. 

Nowatske v. Osterloh, 201 Wis. 2d 497, 503, 549 N.W.2d 256 (Ct. App. 1996). 

We will uphold the court’s exercise of discretion “unless it can be said that no 

reasonable judge, acting on the same facts and underlying law, could reach the 

same conclusion.” State v. Jeske, 197 Wis. 2d 905, 913, 541 N.W.2d 225 (Ct. 

App. 1995). 

¶34 Here, we agree with the State that the circuit court could reasonably 

conclude that the gang-related evidence was highly probative insofar as it helped 

explain McInnis’s and Jackson’s trial testimony. As the State asserts, the gangrelated evidence was “highly probative in making sense of McInnis’s and 

Jackson’s bizarre trial testimony, especially in contrast with their earlier 

statements to police” in which they had implicated Mays. 

¶35 The circuit court could also reasonably conclude that the risk of 

unfair prejudice posed by the gang-related evidence was relatively low because 

other evidence already reflected poorly on Mays’s, Jackson’s, and McInnis’s 

 

4

 We note that the State’s harmless error argument contradicts at least part of the State’s 

argument that the circuit court reasonably exercised its discretion. In its harmless error argument, 

the State contends that, even without the gang-related evidence, no reasonable jury would have 

believed McInnis’s and Jackson’s incredible attempts to recant their accusations against Mays. 

However, as we discuss in the text, the State also argues that the court reasonably admitted the 

gang-related evidence because the evidence was “highly probative” in explaining why McInnis 

and Jackson would recant. In other words, the State’s harmless error argument attributes little 

value to the gang-related evidence while the State’s argument that the court reasonably admitted 

the evidence attributes significant value to the same evidence. 
No. 2021AP1672-CR

13

characters and highlighted their prior bad acts.5 This included evidence that Mays, 

McInnis, and Jackson had previously committed so many robberies that others had 

stopped agreeing to sell them marijuana. Mays also admitted that he had a prior 

conviction. Finally, as previously noted, the Facebook Live video reflected poorly 

on Mays’s character. 

C. New Trial in the Interest of Justice

¶36 We turn finally to Mays’s argument that we should exercise our 

discretionary authority to order a new trial in the interest of justice pursuant to 

WIS. STAT. § 752.35.6 “We exercise our authority to reverse in the interest of 

justice under ... § 752.35 sparingly and only in the most exceptional cases.” State 

v. Schutte, 2006 WI App 135, ¶62, 295 Wis. 2d 256, 720 N.W.2d 469. Mays does 

not persuade us that this is one of those cases.

¶37 Mays argues that trial counsel’s deficiencies, when combined with 

the State’s assertion that Mays conspired with counsel to present false testimony, 

and with the gang-related evidence, prevented the jury from being presented with 

 

5

 Mays does not argue that any of this other evidence was improperly admitted.

6

 WISCONSIN STAT. § 752.35 provides:

In an appeal to the court of appeals, if it appears from the 

record that the real controversy has not been fully tried, or that it 

is probable that justice has for any reason miscarried, the court 

may reverse the judgment or order appealed from, regardless of 

whether the proper motion or objection appears in the record and 

may direct the entry of the proper judgment or remit the case to 

the trial court for entry of the proper judgment or for a new trial, 

and direct the making of such amendments in the pleadings and 

the adoption of such procedure in that court, not inconsistent 

with statutes or rules, as are necessary to accomplish the ends of 

justice.
No. 2021AP1672-CR

14

a fair, two-sided case. Mays argues that the real controversy—whether he was 

knowingly involved in an attempted robbery—was not fully tried. He argues that 

his trial instead focused on whether he conspired with his attorneys to present false 

testimony and on irrelevant and inflammatory evidence of gang activity.

¶38 We reject these arguments and, instead, agree with the State that the 

real controversy was fully tried. As the State argues, the jury was presented with 

testimony and statements from K.M., McInnis, Jackson, and Mays, along with 

testimony from several other witnesses, all directed at the central issue of whether 

Mays knowingly participated in the attempted robbery of K.M. Further, the gangrelated evidence was not a distraction from the real controversy and was instead 

relevant evidence for the reasons already explained. 

Conclusion

¶39 For the foregoing reasons, the judgment and order of the circuit 

court are affirmed.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.