COURT OF APPEALS

DECISION

DATED AND FILED

March 9, 2021

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. 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

2

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 shortbarreled 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 sawedoff shotgun. 
No. 2020AP785-CR

3

¶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 passengerside 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. 
No. 2020AP785-CR

4

¶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 shortbarreled 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 
No. 2020AP785-CR

5

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. 
No. 2020AP785-CR

6

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 
No. 2020AP785-CR

7

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-therecord 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.
No. 2020AP785-CR

8

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 ___.
No. 2020AP785-CR

9

“[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.
No. 2020AP785-CR

10

¶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.
No. 2020AP785-CR

11

¶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.