State v. Keyon Malik McEachin

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.
September 6, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP1792-CR Cir. Ct. No. 2020CF890

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEYON MALIK MCEACHIN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: KARL HANSON, Judge. Affirmed.

Before Kloppenburg, P.J., Graham, 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. Keyon McEachin appeals a judgment of conviction
and an order denying his motion for postconviction relief. The issue is whether his
No. 2023AP1792-CR

trial counsel was ineffective by not presenting expert testimony and other evidence
at trial to create reasonable doubt about whether the object McEachin was seen
possessing was truly a “firearm” that was operated by force of gunpowder. We
conclude that counsel was not ineffective and, therefore, we affirm.

¶2 After a jury trial, McEachin was convicted of one count of being a
felon in possession of a firearm and two felony counts of bail jumping as a repeater.
Described broadly, the evidence was that witnesses saw McEachin with the alleged
firearm during a confrontation. However, the alleged firearm itself was not
presented as evidence at trial, and the State presented no testimony based on a close
physical inspection of the object.

¶3 The jury was instructed that, to qualify as a “firearm” for purposes of
the possession charge, the object must be “a weapon which acts by the force of
gunpowder.” At trial, McEachin argued to the jury that the State failed to prove that
the object he was holding was operated by force of gun powder. The argument was
based on the vague descriptions of the object that were given by witnesses.
McEachin asked a police officer who testified whether it was true, based on those
descriptions, that “there’s no way for you to tell if, for instance, the gun was fake or
if the gun was real, right?” The officer replied: “Correct.”

¶4 McEachin’s postconviction motion alleged that his trial counsel was
ineffective by not presenting expert testimony and photographic evidence to explain
to the jury how difficult it is to see, without careful examination, the difference
between weapons operated by gun powder and weapons that are operated by air but
are deliberately made to resemble firearms. The circuit court held an evidentiary
hearing and denied the motion.

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No. 2023AP1792-CR

¶5 McEachin renews his ineffective assistance argument on appeal. To
establish ineffective assistance of counsel a defendant must show that counsel’s
performance was deficient and that such performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). We affirm the circuit court’s
findings of fact unless they are clearly erroneous, but the determination of deficient
performance and prejudice are questions of law that we review without deference
to the circuit court. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711
(1985). We need not address both components of the analysis if the defendant
makes an inadequate showing on one. Strickland, 466 U.S. at 697.

¶6 We conclude that trial counsel’s performance was not deficient here.
We do not disagree with the general theme of McEachin’s argument, which is that
his defense at trial would likely have been more persuasive with the additional
expert and photographic evidence that he now presents. However, the more narrow
question before us is whether counsel fell below an objective standard of
reasonableness by not taking the steps to add that higher degree of persuasion to the
defense, above and beyond what counsel was able to present with the existing
evidence and argument. More specifically, the test is “whether counsel’s assistance
was reasonable considering all the circumstances.” Id. at 688. We “determine
whether, in light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance.” Id. at 690.

¶7 As we described above, McEachin’s attorney was aware that a defense
could be made based on the difficulty that the State had in proving that the object
was operated by force of gun powder, because of what was apparently the physical
unavailability of the actual object that McEachin was holding. Based on that
awareness, counsel developed the trial record with evidence that allowed him to

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No. 2023AP1792-CR

make this argument to the jury, and he did so. This is not a case where a theory of
defense was entirely overlooked and not presented at all.

¶8 Although more could have been done, it was within the wide range of
professional competence for counsel to believe that the testimony of the officer
would be adequate to present this defense. It is not necessary that counsel have
presented “the best defense that might have been presented.” State v. Williquette,
180 Wis. 2d 589, 605, 510 N.W.2d 708 (Ct. App. 1993), aff’d, 190 Wis. 2d 677,
526 N.W.2d 144 (1995). “Counsel need not be perfect, indeed not even very good,
to be constitutionally adequate.” Id. (quoted source omitted).

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

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