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State v. Wilson

Supreme Court of Wisconsin

June 22, 2017

State of Wisconsin Plaintiff-Respondent,
Keimonte Antonie Wilson, Sr., Defendant-Appellant-Petitioner.

          Submitted on Briefs: Oral Argument: February 17, 2 017

          REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 371 Wis.2d 564, 884 N.W.2d 534 (2016 - Unpublished)

         Circuit Milwaukee (L.C. No. 2013CF2103), William S. Pocan, Judge

          For 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 defender.

          For 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.


         ¶1 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.[1] 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.

         ¶2 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.

         ¶3 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.[2] Because we determine that the subpoena was properly served, we need not address the alternative argument asserting ineffective assistance of counsel.[3]

         ¶4 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

         ¶5 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 second offense.

         ¶6 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.

         ¶7 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.

         ¶8 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?
A: No.
Q: Did Officer Savagian have his weapon drawn did you see?
A: No.
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?
A: No.

         ¶9 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.

         ¶10 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.[4] 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.

         ¶11 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.

         ¶12 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.

         ¶13 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."

         ¶14 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 adjournment request.

         ¶15 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. . . .

         ¶16 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 suppress.

         ¶17 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.

         ¶18 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.

         ¶19 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

         ¶20 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.

         ¶21 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. Id.

         ¶22 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).

         ¶23 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, ¶51.


         ¶24 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.

         ¶25 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) .

         ¶26 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.

         ¶27 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.

         ¶28 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).

         ¶29 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 ...

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