State v. Garry Lee Hughes

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.
March 18, 2026
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. 2022AP954-CR Cir. Ct. No. 2017CF594

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GARRY LEE HUGHES,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
DAVID A. FEISS, Judge. Affirmed.

Before White, C.J., Donald, and Geenen, 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).
No. 2022AP954

¶1 PER CURIAM. Gary Lee Hughes, pro se, appeals from an order of
the circuit court denying his postconviction motion. Hughes argues that the circuit
court erred by denying his motion without a holding a hearing and that his trial
counsel was ineffective. For the following reasons, we affirm.

BACKGROUND

¶2 In 2016, Adam1 was driving in Milwaukee when a vehicle, later
determined to be driven by Hughes, nearly hit him. As both vehicles approached a
red light, Hughes pulled up beside Adam where they exchanged words before
Hughes fired multiple shots at Adam and drove off.

¶3 Hughes was charged with and pled not guilty to a total of four
counts, all with habitual criminality enhancements: endangering safety by use of a
dangerous weapon contrary to WIS. STAT. § 941.20(3)(a)1., first degree recklessly
endangering safety while using a dangerous weapon contrary to WIS. STAT.
§ 941.30(1), possession of a firearm by a felon contrary to WIS. STAT.
§ 941.29(1m)(a), and possession of a firearm by an adjudicated delinquent
contrary to § 941.29(1m)(bm).

¶4 The case proceeded to a jury trial held over six days.2 At trial, the
State presented cell tower records placing Hughes in the area of the shooting, jail
phone calls made by Hughes, and a forensic analysis of the firearm. Furthermore,

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2023-24), we use the
pseudonym “Adam” to refer to the victim. All references to the Wisconsin Statutes are to the
2023-24 version.
2
The Honorable Frederick C. Rosa presided over the trial, the Honorable T. Christopher
Dee presided over the sentencing, and the Honorable David A. Feiss decided the postconviction
motion. For ease of reference, we refer to all three judges as the circuit court.

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Adam testified that the man who shot at him was a “Black man,” “[l]ight skinned,
redhead dreadhead, tattoos on his face,” and then identified Hughes in court as the
shooter.

¶5 The State also presented limited testimony from the detective who
administered the photo array to Adam from which Adam identified Hughes as the
shooter. During the detective’s testimony, Hughes’ trial counsel requested a side
bar and objected to allowing the detective to testify that Adam chose Hughes in
the photo array. Counsel argued that the detective’s testimony about the array was
hearsay since Adam was not previously questioned about the photo array and no
other evidence, like a signed photo or form indicating Adam had completed the
photo array, was presented to the jury. The circuit court agreed and allowed the
detective to testify generally about the photo array procedure, that Adam was
shown a photo of a specific suspect, and that he selected a photo, but not which
photo Adam selected.

¶6 Additionally, DNA evidence recovered from multiple parts of the
firearm was presented at trial. The forensic scientist who performed the DNA
analysis testified that at least three individuals’ DNA was on the weapon and that
she was unable to determine whether Hughes’ DNA was present because some
samples were not suitable for DNA comparison. She was able to exclude Hughes
as the source of the major DNA profile on the firearm, but not from the minor
profiles that lacked the amount of genetic information necessary for testing.

¶7 The jury found Hughes guilty as charged. The circuit court
sentenced Hughes to three consecutive sentences totaling 24 years, bifurcated into
16 years of initial confinement and 8 years of extended supervision, and a 4-year
sentence to be served concurrently.

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No. 2022AP954

¶8 Hughes, pro se, moved for postconviction relief arguing that there
was insufficient evidence to convict him and that his trial counsel was ineffective.
In a written decision, the court found that the evidence the State presented through
“testimony ranging from eyewitness accounts, identification evidence, firearm and
toolmark evidence, and cell tower records establishing the defendant’s location” in
relation to the victim, Adam, was sufficient to support the jury’s verdicts.

¶9 The circuit court also rejected Hughes’ claims that trial counsel was
ineffective for failing to introduce evidence that his DNA was excluded as a match
for the DNA on the firearm and for failing to object to the detective’s testimony
about the photo array. The court explained that the DNA evidence was introduced
at trial and Hughes’ argument was based on a mistaken belief that the DNA report
exonerated him when it did not. Similarly, the court found that Hughes’ photo
array misidentification argument “rest[ed] on a complete misunderstanding of the
way in which photo arrays are conducted.” The court then denied Hughes’ motion
without a hearing.

¶10 Hughes appeals.

DISCUSSION

¶11 On appeal Hughes argues the circuit court erred by not holding a
hearing on his postconviction motion. We disagree, and we conclude that the
circuit court properly denied Hughes’ motion.

¶12 In reviewing Hughes’ postconviction motion, we must first
“determine whether the motion on its face alleges sufficient material facts that, if
true, would entitle the defendant to relief.” State v. Ruffin, 2022 WI 34, ¶27, 401
Wis. 2d 619, 974 N.W.2d 432. The circuit court has the discretion to grant or

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No. 2022AP954

deny a hearing “if the motion does not raise facts sufficient to entitle the movant to
relief, or presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief[.]” State v. Allen, 2004 WI
106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. We review the circuit court’s grant or
denial of a hearing for an erroneous exercise of discretion. Id.

¶13 In his postconviction motion, Hughes argues his trial counsel was
ineffective for failing to challenge the photo array law enforcement showed to the
victim, Adam, and failing to challenge the DNA evidence recovered from the
firearm.3 We conclude that the circuit court properly denied Hughes’ motion
without a hearing because the record conclusively demonstrates that Hughes
cannot show that his counsel was ineffective.

¶14 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of
counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334.
A defendant must establish two elements to demonstrate that he received
ineffective assistance of counsel: (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). If the defendant fails to establish one
element, we need not address the other. Id. at 697.

3
Hughes raised several other arguments in his postconviction motion before the circuit
court that he did not renew on appeal, including that trial counsel was ineffective for failing to
move to suppress the firearm, for failing to impeach Adam, and for failing to object to the joinder
for trial of this case with another case in which Hughes was ultimately acquitted of all charges.
We deem those arguments abandoned and do not address them further. See A.O. Smith Corp. v.
Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in
the trial court, but not raised on appeal, is deemed abandoned.”).

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No. 2022AP954

¶15 “Whether counsel was ineffective is a mixed question of fact and
law.” Balliette, 336 Wis. 2d 358, ¶19. We will not disturb the circuit court’s
factual findings unless they are clearly erroneous and we independently review the
legal question of whether there was ineffective assistance of counsel. Id.

¶16 First, Hughes argues that his attorney should have challenged the
photo array the police administered to Adam because it was suggestive, unreliable,
and ultimately allowed the police, instead of Adam, to identify Hughes as the
perpetrator. Although Hughes states the photo array was suggestive, Hughes does
not identify any aspects of the photo array that were suggestive and nothing in the
record indicates that it was. See State v. Mosley, 102 Wis. 2d 636, 652, 307
N.W.2d 200 (1981) (“Suggestiveness in photographic arrays may arise in several
ways[:] the manner in which the photos are presented or displayed, the words or
actions of the law enforcement official overseeing the viewing, or some aspect of
the photographs themselves.”).

¶17 Instead, Hughes argues that there was no separate form of
verification that Adam chose Hughes’ photo in the photo array which allowed the
detective to swap which photo Adam picked without Adam’s input. We disagree.

¶18 Hughes focuses on the fact that the folder and photo numbers were
different and that Adam identified which folder contained Hughes’ photo. As the
circuit court explained, Hughes’ “entire argument about the photo
array/identification evidence rests on a complete misunderstanding of the way in
which photo arrays are conducted.” Photos are not shown to witnesses in the
order of their number, but are instead placed in separately numbered folders and
shuffled. The limited information concerning the photo array in the record does
not support that any identification error occurred, so Hughes cannot show that trial

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No. 2022AP954

counsel was deficient. See State v. Counihan, 2020 WI 12, ¶51 n.15, 390 Wis. 2d
172, 938 N.W.2d 530 (“The failure to raise a meritless objection does not
constitute deficient performance.”).

¶19 Regardless, even if we assume there was an error in the photo array
identification process, there is no support in the record for Hughes’ speculation
that the detective lied about which photo Adam picked. Furthermore, Adam gave
a detailed description of the man who shot at him and identified that man as
Hughes in court which further supports that even if the alleged error occurred it
did not result in any prejudice to Hughes.

¶20 Next, Hughes argues on appeal that the prosecutor improperly
commented on the DNA evidence in his closing statement by telling the jury that
the DNA analyst “couldn’t say that [Hughes’] DNA was on the gun” because
“[t]here’s at least two more people who touched that gun. She just didn’t have
enough human DNA, enough cells to make any comparison.”

¶21 The State argues that Hughes forfeited this argument by failing to
raise it before the circuit court. We agree that Hughes failed to preserve this
argument. “Issues that are not preserved at the circuit court, even alleged
constitutional errors, generally will not be considered on appeal.” State v.
Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727. However, we also
observe that Hughes’ claim fails because it appears to be based on a
misunderstanding of the DNA analyst’s testimony and the DNA report.

¶22 While testifying, the DNA analyst agreed that she was unable to
determine with certainty whether Hughes’ DNA was on the firearm because only
one of the samples recovered was suitable for DNA comparison and there were
other samples that contained other individuals’ DNA. It was not improper for the

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No. 2022AP954

prosecutor to highlight for the jury that the DNA evidence presented did not rule
out whether Hughes’ DNA was on the firearm. See State v. Mayo, 2007 WI 78,
¶43, 301 Wis. 2d 642, 734 N.W.2d 115 (“[A] prosecutor may comment on the
evidence, argue to a conclusion from the evidence, and may state that the evidence
convinces him or her and should convince the jury.”) Therefore, Hughes’ trial
counsel was not deficient for failing to make a meritless objection to the
prosecutor’s statement. See Counihan, 390 Wis. 2d 172, ¶51 n.15.

¶23 Finally, Hughes contends that due to the errors he alleged
concerning the photo array and the prosecutor’s statement on the DNA evidence
there was insufficient evidence to convict him so trial counsel was ineffective for
failing to object to the sufficiency of the evidence and that these cumulative errors
were prejudicial to Hughes and warrant relief. These arguments are premised on
the success of Hughes’ prior arguments that we rejected above, and therefore, they
also fail. See id.

CONCLUSION

¶24 We conclude that the record conclusively demonstrates that Hughes
is not entitled to relief, therefore the circuit court did not err by denying his
postconviction motion without a hearing. Accordingly, we affirm

By the Court.—Order affirmed.

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

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