State v. Keimonte Antonie Wilson, Sr.
896 N.W.2d 682
Wis.2017Background
- Wilson was charged with possession with intent to deliver cocaine; he moved to suppress evidence claiming the stop/search was unlawful.
- At the suppression hearing officers testified their guns were not drawn; defense witnesses Roberts and Wilson testified officers had guns drawn; a third defense witness, Jacqueline Brown, was subpoenaed but did not appear.
- The affidavit of service showed Brown was served by leaving the subpoena at her residence with her daughter (substituted service).
- The circuit court refused to issue a body attachment and denied an adjournment, concluding the subpoena was invalid because substituted service required multiple personal-service attempts ("reasonable diligence").
- Wilson pleaded guilty after the suppression motion was denied, later appealed, and sought review arguing the subpoena service complied with Wis. Stat. § 885.03 or, alternatively, that counsel was ineffective for failing to preserve the service argument.
- The Wisconsin Supreme Court held the criminal subpoena service is governed by Wis. Stat. § 885.03 (which allows leaving a copy at the witness's abode) and remanded for a continuance so Brown’s testimony could be taken; the court did not decide the ineffective-assistance claim.
Issues
| Issue | Plaintiff's Argument (Wilson) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Validity of substituted service of criminal witness subpoena | Leaving a subpoena at witness's abode with a family member complies with Wis. Stat. § 885.03 | Civil rules (§§ 805.07, 801.11) require "reasonable diligence" before substituted service; that standard controls | Court held § 885.03 controls in criminal proceedings; substituted service by leaving copy at abode was valid |
| Whether civil "reasonable diligence" requirement applies in criminal subpoenas | § 972.11 incorporates Chapter 885 into criminal proceedings, so § 885.03 governs | Civil procedure provisions generally apply to criminal cases, so civil substituted-service limits should apply | Court held specific criminal statute (§ 885.03) controls over general civil rules; no statutory "reasonable diligence" required |
| Remedy for improper refusal to issue body attachment / adjourn suppression hearing | Erroneous refusal deprived Wilson of material witness testimony; case should be remanded for continuance to obtain testimony | Court discretion supported denial based on perceived invalid subpoena | Court reversed appellate ruling, remanded to circuit court to continue the suppression hearing so Brown may testify |
| Ineffective assistance of counsel for failing to challenge subpoena ruling | Alternatively argued that counsel was ineffective if subpoena was improperly served | State contended no prejudice shown; appellate court found no prejudice | Supreme Court did not reach Strickland merits because it resolved the statutory-service issue in Wilson's favor; dissent would have resolved forfeiture/ineffective-assistance and found no prejudice |
Key Cases Cited
- State v. Harrison, 360 Wis. 2d 246 (Wis. 2015) (standard of review for statutory interpretation)
- State ex rel. Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (Wis. 2004) (statutory interpretation principles)
- Marder v. Board of Regents of Univ. of Wis. Sys., 286 Wis. 2d 252 (Wis. 2005) (specific statutory provision controls over general)
- State v. Popenhagen, 309 Wis. 2d 601 (Wis. 2008) (criminal subpoenas governed by criminal statutes, not civil subpoena provisions)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective-assistance of counsel two-part test)
- State v. Erickson, 227 Wis. 2d 758 (Wis. Ct. App. 1999) (forfeiture and addressing waiver via ineffective-assistance framework)
- State v. Carter, 324 Wis. 2d 640 (Wis. 2010) (application of Strickland in Wisconsin)
- Hutson v. State of Wis. Pers. Comm'n, 263 Wis. 2d 612 (Wis. 2003) (avoidance of statutory superfluity)