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Failure to protest defense strategy through “most” of trial doomed McCoy claim

State v. Kenyon D. Grant, 2020AP785, 3/9/21, District 1 (not recommended for publication); case activity (including briefs)

McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018) held that trial counsel cannot concede guilt over his client’s express objection. This would deny the client his 6th Amendment right to determine the objective of his defense and require an automatic new trial. Grant raised a McCoy claim in this case. It failed because trial counsel testified that Grant did not oppose his concession strategy and objected only after hearing the State’s evidence against him.

The State charged Grant with shooting D.P. According to his trial lawyer, Grant initially said that he was not at the scene of the crime. But then he appeared to shift his position to arguing that he was not the shooter.

Counsel proposed aiming for a conviction of something less than attempted homicide. He said that Grant never opposed the strategy, but he also didn’t provide much input into discussions.

Things did not go well at the trial. After the State rested, Grant chose not to testify. During jury deliberations, he told the court that he was “very unhappy” with counsel’s representation. He had wanted his lawyer to argue that he was not present when D.P. was shot.

In Florida v. Nixon, 543 U.S. 175 (2004), the defendant did not participate in the development of his defense but then complained about his lawyer’s decision to concede guilt after hearing the jury’s verdict. Nixon held that Strickland‘s ineffective assistance of counsel framework applied–which is to say that in this situation, the defendant must prove that he was prejudiced by his lawyer’s concession.

The court of appeals held that Nixon, not McCoy, controlled Grant’s case. Trial counsel testified that Grant did not provide a lot of input just before trial and did not oppose the concession strategy. In addition, Grant did not testify at trial or at his postconviction hearing. as Grant didn’t assert that his lawyer had gone against his wishes until he heard the evidence against him. That was too late for a McCoy claim. Opinion, ¶¶12-13, 32.

This is one of several recent cases raising a McCoy claim.  Thus far, none of have succeeded. Click here and here. Also, we still do not have an answer as to whether McCoy changed Wisconsin law (we think it did). SCOW is assuming without deciding that McCoy applies to non-capital cases. And we do not know whether McCoy applies on collateral review.  Click here.  Grant was convicted before SCOTUS decided McCoy, however he was still permitted to raise a McCoy claim during his direct appeal.  Opinion, ¶26 n.2



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