Submitted on Briefs: Oral Argument: February 17, 2 017
OF A DECISION OF THE COURT OF APPEALS Reported at 371 Wis.2d
564, 884 N.W.2d 534 (2016 - Unpublished)
Milwaukee (L.C. No. 2013CF2103), William S. Pocan, Judge
the defendant-appellant-petitioner, there were briefs and
oral argument by Kaitlin A. Lamb, assistant state public
defender, and Jorge R. Fragoso, assistant State public
the plaintiff-respondent there was a brief by Christopher G.
Wren, assistant attorney general, and Brad D. Schimel,
attorney general, and an oral argument by Jason A. Gorn,
assistant attorney general.
WALSH BRADLEY, J.
Petitioner, Keimonte Antonie Wilson, Sr.
("Wilson"), seeks review of a court of appeals
decision affirming a circuit court judgment of conviction and
order denying his postconviction motion. The court of
appeals determined that the circuit court correctly
interpreted the statutory procedure for subpoenaing witnesses
in a criminal case. Additionally, it concluded that Wilson
did not receive ineffective assistance of counsel because he
was not prejudiced by the failure to obtain a witness's
testimony at a suppression hearing.
Wilson requests that this court reverse the court of
appeals' decision and remand for an evidentiary hearing
to take testimony on a material issue of fact from a key
witness who failed to appear at the suppression hearing. He
contends that the court of appeals erred in concluding that
the witness was improperly served a subpoena. In the
alternative, Wilson asserts that his trial counsel was
ineffective for failing to argue that the service of the
subpoena was proper, or alternatively, for failing to
properly subpoena the witness.
Contrary to the court of appeals, we conclude that the
circuit court erred in determining that Wilson improperly
served a subpoena on the witness. Wilson complied with
Wis.Stat. § 885.03 (2013-14), which allows service of a
subpoena on a witness in a criminal case by leaving the
subpoena at a witness's abode. Because we determine that
the subpoena was properly served, we need not address the
alternative argument asserting ineffective assistance of
Accordingly, we reverse the court of appeals and remand to
the circuit court for a continuance of the suppression
hearing so that Wilson may present the testimony of the
witness who failed to appear. I
The initial material facts of this case are not in dispute.
Wilson was charged with one count of possession with intent
to deliver between five and fifteen grams of cocaine as a
According to the complaint, police officers observed a truck
parked in a vacant lot near a "No Trespassing"
sign. They saw Wilson get out of the truck and walk towards a
known drug house. When Wilson reappeared and walked back
towards the truck, he was approached by three officers. He
allegedly consented to a search of his person, which resulted
in the officers finding cocaine and cash.
Wilson filed a suppression motion, contending that there was
no basis for the stop and that he had not consented to the
search. Accordingly, he argued that the evidence obtained
from the search (three plastic bags allegedly containing
cocaine and $449 in cash) must be suppressed. During the
suppression hearing, a factual issue arose regarding whether
the police officers had their guns drawn when they approached
the truck and searched Wilson.
The police officers testified that that their guns were not
drawn. For example, Officer Hunter testified:
Q: At any point in time prior to approaching the parked truck
did you have your weapon drawn?
Q: Did Officer Savagian have his weapon drawn did you see?
Q: At any point of time in this encounter with either Darryl,
the front seat passenger, or Mr. Wilson did any of the
officers have their guns out?
The defense called a witness who disputed the officers'
account of events. Darryl Roberts, who was sitting in the
truck with Wilson, testified that two " [o]fficers
arrive[d] with their guns out." Roberts further
testified that one officer opened the door, grabbed his arm,
pulled him out of the truck and immediately searched him.
A second defense witness, Jacqueline Brown, failed to appear
to testify at the hearing. Wilson's trial counsel
observed that the affidavit of service indicated that Brown
had been served by leaving a copy of the subpoena with her
daughter at their residence. He proffered that if she were
present, Brown would testify that she observed the officers
with guns drawn approach the vehicle and take both Wilson and
Roberts out of the vehicle.
As his counsel further explained, Brown received the subpoena
and had notice of the hearing, but was unable to leave work
to attend the hearing:
She indicated to me she was at work and she was unable to get
someone to cover her shift. The witness who did show up [Ms.
Brown's son Darryl Roberts] brought us a letter from [Ms.
Brown] indicating that she wasn't going to be able to
attend today. My impression is, is that she's a necessary
witness since there's some dispute here as to the
conditions surrounding the stop. We do have a proper
subpoena. I have an affidavit of service.
After Brown failed to appear at the hearing, defense counsel
moved to adjourn the hearing in order to resubpoena Brown or
proposed that Brown testify by phone. The State objected to
having Brown testify by phone and instead suggested a body
attachment. Defense counsel agreed with the State that a body
attachment should be ordered.
The circuit court acknowledged that testimony regarding
whether the officers had their guns drawn "does seem to
be the issue in this case." It stated: As a practical
matter if they came to the vehicle with guns ablaze, then we
have a different issue because then the people in the car
could have felt they were under arrest or-and didn't have
any choice other than to be searched. So it's a key
issue. It would seem to me it's the only key issue of all
the testimony I've heard here today .... Although Brown
would have offered testimony on this key issue, the circuit
court concluded that "the problem that I have here is
that this is not a valid subpoena and I could not issue a
body attachment based on this subpoena."
According to the circuit court, the service of the
subpoena-an apparent single attempt that used substituted
service-was inadequate. It reasoned that "you have to
attempt on a couple of occasions and make reasonable efforts
before you can serve by substitute service." The circuit
court asked defense counsel and the State whether it was
"wrong on the law" regarding service and both
agreed that multiple attempts at personal service need to be
made before substituted service may be used. Consequently,
the circuit denied both the body attachment and the
The hearing continued without testimony from Brown. Wilson
testified in his own defense that three officers ran up with
their guns drawn:
[The officer] had his gun and then he just start patting on
me. And I'm looking dead at the gun. I'm
like-'cause I'm scared. I'm like, oh, man,
what's going on. . . .
However, the circuit court concluded that the police
officers' testimony was more credible than was the
testimony of Roberts and Wilson. It addressed the absence of
Brown's testimony, concluding that even if she had
testified, this likely would not have assisted the court in
its ruling on the motion because Roberts' and
Wilson's testimony was inconsistent. The circuit court
further determined there was reasonable suspicion to stop and
consent to the search. It denied Wilson's motion to
Wilson subsequently pleaded guilty to one count of possession
with intent to deliver between five and fifteen grams of
cocaine. In exchange for Wilson's plea, the State dropped
the repeater charge. The circuit court sentenced Wilson to
five years of imprisonment.
Wilson filed a postconviction motion, arguing that the
circuit court erroneously determined that service of the
subpoena was inadequate. Additionally, he asserted that he
received ineffective assistance of counsel because trial
counsel failed to make an argument that the subpoena was
properly served. In the alternative, he advances that if it
is determined that the witness was improperly served, then
trial counsel was ineffective for failing to ensure that
service of the subpoena was properly executed.
The circuit court denied Wilson's postconviction motion
without a hearing. The court of appeals affirmed the circuit
court's judgment and order, concluding that the circuit
court "properly interpreted the subpoena rules and that
no prejudice has been shown from the failure to obtain the
witness's testimony." State v. Wilson, No.
2015AP671-CR, unpublished slip op., ¶1 (Wis. Ct. App.
July 6, 2016). II
We are asked to determine whether Wilson complied with the
statutory procedure for serving a subpoena on a witness in a
criminal case. Accordingly, we are called upon to interpret
and apply relevant statutes. The interpretation of a statute
presents a question of law that we decide independently of
the decisions rendered by the circuit court and the court of
appeals. State v. Harrison, 2015 WI 5, ¶37, 360
Wis.2d 246, 858 N.W.2d 372.
Statutory interpretation begins with the language of the
statute. State ex rel. Kalal v. Cir. Ct. for Dane
Cty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d
110. We give statutory language its common, ordinary and
accepted meaning, except that technical or specially-defined
words are given their technical or special definitions.
Statutory language is interpreted in the context in which it
is used, in relation to the language of surrounding or
closely-related statutes. Id., ¶46. Generally,
"where a specific statutory provision leads in one
direction and a general statutory provision in another, the
specific statutory provision controls." Marder v.
Bd. of Regents of Univ. of Wis. Sys., 2005 WI 159,
¶23, 286 Wis.2d 252, 706 N.W.2d 110 (citation omitted).
If the meaning of a statute is clear, we may end our
analysis. However, legislative history and other
authoritative sources may be consulted to confirm a plain
meaning interpretation. Kalal, 271 Wis.2d 633,
At issue in this case is the procedure for service of a
subpoena on a witness in a criminal case. The parties present
for our examination four Wisconsin statutes addressing the
requirements for service of subpoenas. We begin by setting
forth the four statutes and then examine how the statutes
interface one with the other.
Wilson focuses our attention and relies on two statutes,
Wis.Stat. §§ 972.11 and 885.03. Chapter 972 Wis.
Stats. is entitled Criminal Trials and within that chapter
Wilson points to Wis.Stat. § 972.11 (Evidence and
practice; civil rules applicable) . It states that Chapter
885 shall apply in all criminal proceedings:
(1) Except as provided in subs. (2) to (4), the rules of
evidence and practice in civil actions shall be applicable in
all criminal proceedings unless the context of a section or
rule manifestly requires a different construction. . . .
Chapters 885 to 895, except ss. 804.02 to 804.07 and 887.23
to 887.26, shall apply in all criminal proceedings.
Wis. Stat. § 972.11(1) .
Accordingly, we turn next to the second statute Wilson
advances. It is located in Chapter 885 ("Witnesses and
Oral Testimony"), a Chapter apart from either the
criminal or civil rules of procedure. Within the Chapter lies
Wis.Stat. § 885.03 (Service of Subpoena), which provides
three methods for serving a subpoena, including by leaving a
copy at the witness's abode: Any subpoena may be served
by any person by exhibiting and reading it to the witness, or
by giving the witness a copy thereof, or by leaving such copy
at the witness's abode.
The State on the other hand asks us to focus primarily on two
statutes that are set forth in the civil rules of procedure,
Wis.Stat. §§ 805.07 and 801.11. The former also
incorporates Chapter 885.
Wisconsin Stat. § 805.07 (Subpoena) states that a
subpoena generally may be served in accordance with Chapter
885. However, by reference to Wis.Stat. § 801.11(1) (b),
it excepts from that general premise the manner in which
substituted personal service of a witness subpoena must be
accomplished. Wis.Stat. § 805.07 provides:
(1) Issuance and service. Subpoenas shall be issued and
served in accordance with ch. 885. A subpoena may also be
issued by any attorney of record in a civil action or special
proceeding to compel attendance of witnesses for deposition,
hearing or trial in the action or special proceeding.
(5) substituted service. A subpoena may be served in the
manner provided in s. 885.03 except that substituted personal
service may be made only as provided in s. 801.11(1) (b) and
except that officers, directors, and managing agents of
public or private corporations or limited liability companies
subpoenaed in their official capacity may be served as
provided in s. 801.11(5)(a).
Pursuant to the rules of civil procedure, Wis.Stat. §
801.11 ("Personal jurisdiction, manner of serving
summons for") sets forth the manner for substituted
personal service of ...