State v. Keimonte Antonie Wilson, Sr. , 376 Wis. 2d 92 ( 2017 )

2017 WI 63SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP671-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Keimonte Antonie Wilson, Sr.,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 371 Wis. 2d 564, 884 N.W.2d 534(2016 – Unpublished)
OPINION FILED: June 22, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 17, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: William S. Pocan
JUSTICES:
CONCURRED:
DISSENTED: ZIEGLER, J. dissents, joined by GABLEMAN, J.
NOT PARTICIPATING:
ATTORNEYS:
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.
2017 WI 63NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP671-CR
(L.C. No. 2013CF2103)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin
Plaintiff-Respondent,
FILED
v. JUN 22, 2017
Keimonte Antonie Wilson, Sr., Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 ANN 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.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
1
State v. Wilson, No. 2015AP671-CR, unpublished slip op.
(Wis. Ct. App. July 6, 2016) (affirming judgment and order
entered by the circuit court for Milwaukee County, William S.
Pocan, J., presiding).
No. 2015AP671-CR
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
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
No. 2015AP671-CR
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
3
We need not determine whether Wilson received ineffective
assistance of counsel because Wilson prevailed on his statutory
interpretation argument. As Wilson's counsel explained at oral
argument, his ineffective assistance of counsel claim was raised
as an alternative argument if the court did not address the
merits of Wilson's statutory claim. Because we determine that
Wilson properly subpoenaed the witness and thus remand for an
evidentiary hearing, we do not address the merits of Wilson's
ineffective assistance of counsel claim.
3
No. 2015AP671-CR
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
4
No. 2015AP671-CR
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:
4
In this case there is no dispute that the witness received
notice of the hearing. At oral argument it was underscored that
we need not address any concerns that may arise if a witness
does not receive notice.
5
No. 2015AP671-CR
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
6
No. 2015AP671-CR
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
7
No. 2015AP671-CR
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
8
No. 2015AP671-CR
sources may be consulted to confirm a plain meaning
interpretation. Kalal, 271 Wis. 2d 633, ¶51.
III
¶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:
9
No. 2015AP671-CR
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
a summons on a defendant. Section 801.11 states:
10
No. 2015AP671-CR
A court of this state having jurisdiction of the
subject matter and grounds for personal jurisdiction
as provided in s. 801.05 may exercise personal
jurisdiction over a defendant by service of a summons
as follows:
(1) NATURAL PERSON. Except as provided in sub. (2)
upon a natural person:
(a) By personally serving the summons upon
the defendant either within or without this
state.
(b) If with reasonable diligence the
defendant cannot be served under par. (a),
then by leaving a copy of the summons at the
defendant's usual place of abode:
1. In the presence of some competent
member of the family at least 14 years
of age, who shall be informed of the
contents thereof;
1m. In the presence of a competent
adult, currently residing in the abode
of the defendant, who shall be informed
of the contents of the summons; or
2. Pursuant to the law for the
substituted service of summons or like
process upon defendants in actions
brought in courts of general
jurisdiction of the state in which
service is made.
. . .
When read together with Wis. Stat. § 805.07, these two rules of
civil procedure instruct that substituted service may be used to
serve a subpoena only if after reasonable diligence a witness
cannot be personally served.
IV
¶30 As Kalal instructs, we begin our statutory
interpretation with the language of the statute. 271
11
No. 2015AP671-CR
Wis. 2d 633, ¶45. We focus first on Wis. Stat. § 972.11(1),
which is part of the criminal procedure statutes. It initially
provides that "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." However, it subsequently references Chapter 885,
which governs the service of subpoenas. Section 972.11(1)
expressly provides that "Chapter[s] 885 to 895 . . . shall apply
in all criminal proceedings." Therein lies the rub. Which part
of Wis. Stat. § 972.11 directs our inquiry? The answer will
determine whether reasonable diligence was required here.
¶31 The State points initially to Wis. Stat. § 972.11,
emphasizing the portion of its text that sets forth the general
premise that the rules of practice in civil actions shall be
applicable in criminal proceedings unless context clearly
requires otherwise.
¶32 It asserts that the civil statutes Wis. Stat.
§§ 805.07(5) and 801.11 control here and that their context does
not require a different construction. The State explains that
although Wis. Stat. § 801.11(1)(b) is the statute governing the
service of a summons in civil actions, its procedure for
substituted service is incorporated by Wis. Stat. § 805.07(5) as
the procedure for serving a subpoena in a civil action. See
Wis. Stat. § 805.07(5) ("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) . . . .").
12
No. 2015AP671-CR
¶33 In a civil action, a subpoena may be left at a
witness's residence only if, with "reasonable diligence" the
defendant cannot be personally served. Wis. Stat.
§ 801.11(1)(b). In such a case, it may be left with a competent
family member at least 14 years of age or in the presence of a
competent adult currently residing in the abode of the
defendant. Wis. Stat. § 801.11(1)(b)1.-1m. Accordingly, the
State maintains that the subpoena was not properly served
because Wilson did not satisfy the reasonable diligence
requirements when he used substituted service after only one
attempt at personal service.
¶34 Admittedly, Wis. Stat. § 972.11(1) points us in two
different directions. On the one hand, the rules of civil
procedure are applicable generally to criminal proceedings
unless the context of a section or rule requires a different
construction. The application of the rules of civil procedure
mandates reasonable diligence for substituted service of a
subpoena. On the other hand, Chapter 885 is to apply in all
criminal proceedings and within that chapter lies Wis. Stat.
§ 885.03 that sets forth three manners for service of a subpoena
that do not include the reasonable diligence mandate.
¶35 We find guidance in this court's prior instruction
that "where a specific statutory provision leads in one
direction and a general statutory provision in another, the
specific statutory provision controls." Marder, 286
Wis. 2d 252, ¶23, 706 N.W.2d 110 (citation omitted); see also
13
No. 2015AP671-CR
State v. Schaefer, 2008 WI 25, ¶47, 308 Wis. 2d 279, 746
N.W.2d 457.
¶36 Because Wis. Stat. § 972.11(1) explicitly references
Chapter 885, it is the more specific textual provision. In
contrast, the rules of civil procedure are only generally
applied to criminal cases through Wis. Stat. § 972.11(1). Thus,
service of a witness subpoena in a criminal proceeding is
controlled by Wis. Stat. § 885.03, rather than by the rules of
civil procedure.
¶37 The plain language of Wis. Stat. § 885.03 sets forth
the procedures for serving a subpoena on a witness in a criminal
proceeding. It provides only that "[a]ny 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." Wis. Stat. § 885.03.
¶38 We turn next to the legislative history of the civil
and criminal subpoena statutes to confirm our plain meaning
interpretation of the statute. Kalal, 271 Wis. 2d 633, ¶51.
More specifically, we observe that when the civil subpoena
statutes were amended to incorporate a "reasonable diligence"
requirement, the criminal subpoena statutes remained unchanged.
¶39 In the 1970s, as part of a revision to Wisconsin's
civil procedure code, the legislature enacted Wis. Stat.
§ 805.07(5), which incorporates Wis. Stat. § 801.11(1)(b) and
its "reasonable diligence" standard. See Wis. Stat. § 805.07(5)
(1975-76) (effective Jan. 1, 1976); Rules of Civil Procedure
Committee 1970-1978.
14
No. 2015AP671-CR
¶40 At the time that Wis. Stat. § 805.07(5) was enacted,
the legislature did not alter Wis. Stat. § 885.03. If the
legislature intended Wis. Stat. § 805.07(5) to apply to criminal
proceedings, it could have repealed Wis. Stat. § 885.03 and thus
removed the option of service by leaving a copy of the subpoena
at the witness's abode. It did not. Alternatively, at the time
that Wis. Stat. § 805.07(5) was enacted, it could have amended
Wis. Stat. § 885.03 to include a "reasonable diligence"
requirement or to include a reference to Wis. Stat. §§ 805.07 or
801.11. It did neither. In 1993, the legislature last took the
opportunity to amend Wis. Stat. § 885.03 and there yet remains
no reference to either reasonable diligence or Wis. Stat.
§ 801.11(1).5
¶41 In contrast, in 2010 when it amended Chapter 968,
which governs the commencement of criminal proceedings, the
legislature specifically referenced Wis. Stat. § 801.11. In
amending the chapter, it created Wis. Stat. § 968.375(5)
(governing subpoenas and warrants for records or communications
of customers of an electronic communication service or remote
computing service provider). It provides that "[a] subpoena or
warrant issued under this section may be served in the manner
provided for serving a summons under s. 801.11(5) . . ." Wis.
Stat. § 968.375(5).
5
The 1993 amendment changed the statute to make it gender
neutral, but otherwise did not alter the statute.
15
No. 2015AP671-CR
¶42 If Wis. Stat. § 801.11 already applied to criminal
cases, it would be unnecessary to specifically reference this
civil statute in Wis. Stat. § 968.375(5). We should not
interpret a statute in a way that renders a portion of it
superfluous. Hutson v. State of Wis. Pers. Comm'n, 2003 WI 97,
¶49, 263 Wis. 2d 612, 665 N.W.2d 212 (quoting Kollasch v.
Adamany, 104 Wis. 2d 552, 563, 313 N.W.2d 47 (1981)) ("When
construing statutes, meaning should be given to every word,
clause and sentence in the statute, and a construction which
would make part of the statute superfluous should be avoided
wherever possible."). If we were to conclude that Wis. Stat.
§ 801.11 already applied to the service of a subpoena in all
criminal cases, the language incorporating it into Wis. Stat.
§ 968.375 would be rendered superfluous.
¶43 This court's decision in State v. Popenhagen, 2008 WI
55, 309 Wis. 2d 601, 749 N.W.2d 611, also informs our analysis.
In Popenhagen, the State obtained documents in a criminal case
with subpoenas issued pursuant to Wis. Stat. § 805.07. Id.,
¶¶7-8. The parties agreed that the State erred in issuing the
subpoenas pursuant to Wis. Stat. § 805.07 because it should have
followed the procedure set forth in the criminal statutes. Id.,
¶10.
¶44 The Popenhagen court determined that the documents
obtained with the subpoena must be suppressed because otherwise
the safeguards established by the criminal statutes regarding
the service of subpoenas would be rendered meaningless. Id.,
¶71. The concurrence in Popenhagen pointedly explained, "[t]he
16
No. 2015AP671-CR
criminal law has its own subpoena statutes . . . The Wisconsin
criminal code specifically provides that Chapter 885, Witnesses
and Oral Testimony, 'shall apply in all criminal proceedings.'"
Id., ¶¶138-39 (Ziegler, J., concurring) (quoting Wis. Stat.
§ 972.11(1)). Likewise, the Popenhagen concurrence correctly
observed that Wis. Stat. § 805.07 is "a civil subpoena statute
meant for civil litigants." Id., ¶141.
¶45 Our interpretation that Wis. Stat. § 885.03 provides
the procedure for serving a witness subpoena in a criminal case
appears to be well established. Indeed, the Wisconsin Criminal
Practice & Procedure Handbook, in both its first and second
editions, instructs that service of a subpoena may be
accomplished "simply by . . . leaving a copy of it at the
witness's residence." Christine M. Wiseman, Nicholas L.
Chiarkas, & Daniel D. Blinka, 9 Wis. Practice: Criminal
Practice and Procedure § 24.11 (1996); Christine M. Wiseman and
Michael Tobin, 9 Wis. Practice: Criminal Practice & Procedure
§ 24.13 (2016).
¶46 Thus, although both the civil and criminal procedures
statutes incorporate Wis. Stat. § 805.03, they do so
differently. In the civil context, Wis. Stat. § 885.03 is
modified by Wis. Stat. §§ 805.07 and 801.11 by providing for
substituted service premised on a reasonable diligence
requirement. However, in the criminal context, the procedures
set forth in Wis. Stat. § 885.03 are unaltered. It sets forth
three manners of service of a witness subpoena (by exhibiting
and reading it to the witness, giving the witness a copy, or by
17
No. 2015AP671-CR
leaving it at the witness's abode) and no reasonable diligence
is mandated. Accordingly, we determine that the procedures set
forth in Wis. Stat. § 885.03 govern the service of a witness in
a criminal proceeding.
¶47 This does not mean, however, that a party is precluded
from employing substituted service with reasonable diligence.
In many circumstances it may appear to be the prudent way to
proceed. However, the statute as written does not mandate it.6
¶48 We turn now to examine whether the service of the
subpoena in this case was done in accordance with Wis. Stat.
§ 885.03. It is undisputed that Wilson served the witness with
a subpoena by leaving it at the witness's abode with her
daughter. When the witness failed to appear to testify at the
hearing, defense counsel moved to adjourn the hearing in order
to resubpoena the witness. The State suggested, and defense
counsel agreed, that the court issue a body attachment.
¶49 After reviewing the subpoena, however, the circuit
court concluded that its 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 proceeded to ask defense counsel and the State
whether it was "wrong on the law" regarding service. Both
agreed that the court was correct that multiple attempts at
6
Additionally, we observe that a circuit court retains
discretion to issue a body attachment. Pursuant to Wis. Stat.
§ 885.11(2), for an attachment to issue there must have been an
"unexcused failure to appear."
18
No. 2015AP671-CR
personal service must be made before leaving a subpoena at a
witness's abode.
¶50 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." It denied both
the body attachment and refused to adjourn the hearing so that
the witness could be resubpoenaed. The circuit court erred,
because as set forth above, Wilson complied with Wis. Stat.
§ 885.03, which allows service of a subpoena on a witness in a
criminal case by leaving the subpoena at a witness's abode.
¶51 Finally, we pause briefly to discuss Wilson's
ineffective assistance of counsel claims. 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.7 He further contends
7
Wilson argues in his brief that if the court finds he
forfeited the argument that Brown was properly subpoenaed, it
should address his ineffective assistance of counsel claims.
(continued)
19
No. 2015AP671-CR
that at the suppression hearing he was prejudiced by the absence
of the testimony of a key witness.
¶52 In order to succeed on an ineffective assistance of
counsel claim, a defendant must show both: (1) that his
counsel's representation was deficient; and (2) that this
deficiency prejudiced him. Strickland v. Washington, 466 U.S.
668, 687 (1984). To show prejudice, a defendant must
demonstrate that there is "a reasonable probability that, but
Generally, issues not raised or considered by the circuit
court will not be considered for the first time on appeal.
State v. Holland Plastics Co., 111 Wis. 2d 497, 504, 331 N.W.2d
320 (1983). However, it is within this court's discretion to
disregard alleged forfeiture and consider the merits of any
issue because the rule of forfeiture is one of judicial
administration and not of power. See, e.g., State v. Beamon,
2013 WI 47, ¶49, 347 Wis. 2d 559, 830 N.W.2d 681; State ex rel.
Universal Processing Serv. of Wis., LLC v. Cir. Ct. of Milwaukee
Cty., 2017 WI 26, ¶53, 374 Wis. 2d 26, 892 N.W.2d 267 ("Rules of
forfeiture and waiver are rules of judicial administration, and
thus, a reviewing court may disregard a waiver or forfeiture and
address the merits of an unpreserved issue in an appropriate
case."); D.L. Anderson's Lakeside Leisure Co., Inc. v. Anderson,
2008 WI 126, ¶41, 314 Wis. 2d 560, 757 N.W.2d 803 (we may
address a forfeited issue at our discretion when we deem it
important).
Although trial counsel did not object to the circuit
court's ruling that Brown was not properly subpoenaed, we
decline to apply the forfeiture rule here. The dissent contends
that application of the forfeiture rule is appropriate to avoid
a strategy in which trial counsel fails to object for strategic
reasons. However, there is no evidence that counsel failed to
object for strategic reasons in this case.
Additionally, the argument raised on appeal has been
briefed and argued by both parties. Accordingly, we choose to
address Wilson's argument set forth above in order to clarify
the important issue of law that is presented in this case.
20
No. 2015AP671-CR
for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome." Id. at 694.
¶53 We need not determine whether Wilson received
ineffective assistance of counsel because Wilson prevailed on
his statutory interpretation argument. As Wilson's counsel
explained at oral argument, his ineffective assistance of
counsel claim was raised as an alternative argument if the court
did not address the merits of Wilson's claim. Because we
determine that Wilson properly subpoenaed the witness and remand
for an evidentiary hearing, we do not address Wilson's
ineffective assistance of counsel claim.
V
¶54 In sum, 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, which allows
service of a subpoena on a witness in a criminal case by leaving
the subpoena at a witness's abode. Because the subpoena was
properly served, we reverse the court of appeals and remand to
the circuit court for a continuance of the suppression hearing
so that Wilson may take the witness's testimony.
By the Court.—The decision of the court of appeals is
reversed and the cause is remanded to the circuit court.
21
No. 2015AP671-CR.akz
¶55 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). Even
if, as the court today concludes, the circuit court below erred
in its assessment of the validity of the subpoena of Jacqueline
Brown ("Brown"), Keimonte Antonie Wilson, Sr. ("Wilson") failed
to object to that error. Under well-established precedent,
Wilson therefore forfeited the right to direct review of the
alleged error and this court will only inquire into whether
Wilson's counsel was constitutionally ineffective in neglecting
to challenge the circuit court's ruling on the subpoena. See,
e.g., State v. Erickson, 227 Wis. 2d 758, 765-67, 596 N.W.2d 749(1999).
¶56 Unfortunately, I must dissent because the court
deviates from this "normal procedure in criminal cases,"
analyzing Wilson's claim on the merits without adequate
justification. Id. I would adhere to precedent and analyze
whether Wilson received the effective assistance of counsel. I
conclude that Wilson's ineffective assistance of counsel claim
fails because he has not demonstrated that he was prejudiced by
his counsel's performance. Suppression would have occurred with
or without Brown's testimony, and the decision of the court of
appeals should be affirmed. Accordingly, I respectfully
dissent.
I
¶57 This case arose following an incident on May 2 or 3,
2013,1 in Milwaukee, Wisconsin, during which Wilson was seen
1
There is a discrepancy in the record regarding the date of
the incident.
1
No. 2015AP671-CR.akz
exiting an alleged "known and active drug house" and was
searched by a Milwaukee police officer; the officer found
suspected crack cocaine on his person. On May 8, 2013, a
criminal complaint was filed against Wilson in Milwaukee County
circuit court charging him with one count of possession with
intent to deliver a controlled substance (cocaine) in the amount
of between 5 to 15 grams, second and subsequent offense, in
violation of Wis. Stat. § 961.41(1m)(cm)2. See also Wis. Stat.
§ 961.48(1)(b).
¶58 On June 24, 2013, Wilson filed a motion to suppress
evidence of the crime. On December 3, 2013, a hearing was held
on the motion. The first to testify was Officer William
Savagian ("Officer Savagian") of the Milwaukee Police
Department. Officer Savagian testified that on May 2, 2013, at
about 7:00 p.m., he and his two partners——one male, one female——
were in the area of West Meinecke Avenue and North 18th Street
in the City of Milwaukee. Officer Savagian had worked in this
particular area for over seven years. Officer Savagian was
parked on the street "to conduct followup on a reckless
endangering safety complaint" when he saw Wilson exit a red
sport utility vehicle ("SUV") and walk into the back yard of a
"known and active drug house." The SUV was "more or less parked
behind the house in . . . what almost was like a vacant field."
There was a sign in the field that read "no parking, dumping or
trespassing."
¶59 Officer Savagian lost sight of Wilson for "not more
than 15, 20 seconds," after which he saw Wilson walk back to his
2
No. 2015AP671-CR.akz
vehicle and reenter it. At that time Officer Savagian and one
of his partners, Officer James Hunter ("Officer Hunter"), were
already in the process of approaching the SUV.2 According to
Officer Savagian, his speed was a "normal walk" and the
officers' guns were not drawn. Officer Savagian walked up to
the driver's side door, which Wilson opened. Officer Hunter
went to the passenger side of the vehicle. There was one
additional individual in the front passenger seat.
¶60 Officer Savagian testified that he believed he would
have identified himself as a police officer. He then asked
Wilson if he had any drugs or firearms on his person. Wilson
responded in the negative, exited the vehicle without being
asked, stuck his arms out "like an airplane" and told Officer
Savagian he could search Wilson.3 Officer Savagian stated that
Wilson was "shaking" and his eyes "became real wide," "[w]ider
than I guess normal people -- or someone that is scared would
look."
2
Officer Savagian was not aware of the position of the
third, female officer at this point in time.
3
Officer Savagian testified, "I don't know if that was his
exact words, but it was -- him stepping out with his arms raised
was implied." Pressed on this point on cross-examination,
Officer Savagian elaborated:
Yes, he did say I could search him. I don't know if
he -- what I meant to say, the exact wording of that,
but his arms extended obviously implies more of a
willingness to search and there was never a like,
["]hey, I don't want you to search me["] or any kind
of -- he never stopped the search either.
3
No. 2015AP671-CR.akz
¶61 Officer Savagian asked Wilson, "[']If I do search you,
am I going to find anything on you[?']" Wilson replied "no."
With his arms still out, Wilson informed Officer Savagian that
he was on probation. Officer Savagian asked whether it was "for
drugs or guns," and Wilson "indicated that it was for drugs."
Officer Savagian searched Wilson and found, among other things,
"a plastic sandwich bag" containing "three individually bagged
up . . . chunks of this white chunky substance"——"suspected
crack cocaine." Officer Savagian gave the substance to one of
his partners and told Wilson he was going to be handcuffed.
¶62 After Officer Savagian's testimony at the hearing, the
defense called Darryl Roberts ("Roberts"). Roberts testified
that Wilson was a friend of his as well as Roberts' sister's
boyfriend. On the date and at the time in question, Roberts was
sitting in the front passenger seat of a "truck" with Wilson.
Roberts denied that the lot was vacant, stating, "[i]t's our
yard."4 Wilson was "talking to [Roberts] about school." Wilson
received a call from his father and then stepped out of the
vehicle to go to his father's house. About five minutes later,
Wilson returned to the vehicle, whereupon three officers arrived
and ordered Wilson and Roberts out of the vehicle. In Roberts'
telling, two of the officers, both male, had "their guns out."
One of the male officers was on the driver's side of the vehicle
"pointing the gun at" Wilson. Roberts agreed that the officer
"had both hands on the gun" and the gun was "pointed out
4
Roberts testified that he lived on West Meinecke.
4
No. 2015AP671-CR.akz
directly in front of him." The other male officer "was coming
to the passenger side with his gun drawn telling [Roberts] to
get out of the car." That officer was holding his gun in the
same way as the other officer.
¶63 Wilson and Roberts exited the vehicle; Roberts
testified that the officer put his gun back into its holster,
"grabbed [his] arm" and then Roberts "stepped out." Without
being asked, Roberts was immediately searched. The officer
asked Roberts if he had "anything illegal on [him]," and Roberts
replied that he did not. Meanwhile the female officer was
"walking around the premises" and "[s]earching around the
truck."
¶64 After Roberts testified, Wilson's attorney explained
that one of the defense witnesses, Brown, had not "responded to
the subpoena by attending"; Brown was "at work" and "couldn't
find anybody to cover her shift." Wilson's attorney informed
the court:
[I]t's my understanding that if she were to testify,
she would be testifying that she was at the residence
at the time that the police came to the what is
essentially the back of her residence. It's my
understanding that she would testify that she observed
them with guns drawn approach the vehicle and take
both my client and her son, [Roberts], out of the
vehicle. And I don't want to presume too much on the
testimony, but it's my understanding that that is very
clearly what she would be testifying to.
¶65 Wilson's attorney stated that he was "wondering if the
Court may be willing to grant one adjournment for the taking of
[Brown's] testimony." The State took no position on the matter.
The circuit court commented:
5
No. 2015AP671-CR.akz
The issue is . . . do we need to have a body
attachment and have her brought to continue this
hearing. . . . [I]f I'm going to set another date,
she's going to be picked up with a warrant . . . . I'm
not going to set another date and then hope that this
time she decides to come.
¶66 In considering whether to issue a body attachment or
whether to proceed without Brown, the circuit court remarked
that the manner in which the officers approached the vehicle
seemed to be "the only key issue of all the testimony" thus far.
The State then took the position that the circuit court should
issue a body attachment. Wilson's attorney began to suggest
that perhaps the circuit court could call Brown to have her come
into court. The circuit court rejected this approach: "I don't
cajole witnesses to come to my court. There will be a body
attachment." Shortly thereafter Wilson's attorney stated,
"Judge, I hate to make the request, but I think that I have no
other choice but to ask that the Court issue a body attachment."
¶67 The circuit court asked to see the subpoena. However,
upon examination, the circuit court concluded that the subpoena
was not valid and that an attachment could not be issued after
all. The circuit court commented: "It looks like [the subpoena]
was only served once and it was served by substituted service,
and . . . under Wisconsin law, you have to attempt on a couple
of occasions and make reasonable efforts before you can serve by
substituted service." The circuit court then questioned
Wilson's attorney and received the following answer:
THE COURT: . . . [D]o you have -- do you believe
that I'm wrong on the law?
[WILSON'S ATTORNEY]: I don't have any reason to
challenge the court on the law.
6
No. 2015AP671-CR.akz
Consequently, the hearing proceeded without Brown's testimony.
¶68 Wilson testified next. Wilson stated that on May 2,
2013, at about 7:00 p.m. to 7:30 p.m., he was "parked in back of
[his] [girlfriend's] house -- mother's house" and that Roberts
was with him. Wilson denied being parked in the vacant lot.
Wilson left to urinate in his father's back yard and returned to
the vehicle "probably like less than a minute" later. Upon his
return, Wilson saw "three officers running up with their guns
pointed at -- in [his] direction." The officers were running at
a "medium jog," and all three officers had their guns out and
"pointed." According to Wilson, the female officer was running
behind the two male officers. One officer went to the driver's
side of the vehicle and another went to the passenger's side of
the vehicle. An officer told Wilson to get out of the truck.
Wilson testified that he did not at first realize that the
officers were officers because they were in plain clothes.
Wilson was scared and got out of the car because he thought the
officers were going to shoot and because he did not know what
was going on.
¶69 Once Wilson was out of the car, one of the officers
stated that the officers were "Milwaukee police." Wilson did
not offer to be searched, but an officer started patting him
down with one hand and with his gun out and pointed at Wilson in
the other hand. Wilson saw a bulletproof vest on the officer.
The officer asked Wilson where he was coming from, and Wilson
explained that he was coming from his father's house. The
officer asked whether Wilson was on probation, and Wilson
7
No. 2015AP671-CR.akz
explained that he was. When asked why he was on probation,
Wilson answered that he was on probation "for drugs." Wilson
testified that he stutters when is he is scared, and that he was
stuttering at the time. Wilson had his arms raised up in the
air (as opposed to "like an airplane") and felt he had "no
choice" but to let the officer reach into his pocket. Wilson
was eventually handcuffed. The officer never stated aloud that
he had found anything on Wilson's person. Besides this
testimony, evidence was introduced at the hearing that Wilson
had three prior convictions.
¶70 The State called Officer Hunter as a rebuttal witness.
Officer Hunter's testimony was similar to Officer Savagian's
except that Officer Hunter testified that Wilson was away from
his vehicle for approximately, and no more than, ten minutes and
that Officer Griffin walked toward the vehicle with Officer
Savagian and Officer Hunter. The following exchange occurred
during Officer Hunter's testimony:
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: Officer Griffin?
A: No.
. . . .
Q: At any point of time in this encounter with
either [Roberts] . . . or Mr. Wilson did any of the
officers have their guns out?
8
No. 2015AP671-CR.akz
A: No.
¶71 Finally, the State called Officer Savagian back to the
stand. The following exchange occurred:
Q: At any point in time during the apprehension
of Mr. Wilson, either before, during or after the
apprehension of Mr. Wilson, did you draw your service
weapon?
A: I did not.
Q: Did you see either Officer Griffin or Officer
Hunter draw their weapons?
A: I did not.
Q: On that day . . . do you recall whether or
not you were wearing a [bulletproof] vest?
A: I was not. . . .
Q: Have you conducted a -- in your career as a
Milwaukee police officer, have you ever conducted a
search of a person by holding a gun in your hand and
searching with your other hand?
A: I have; however, it's only under the most
like high intense moments. Maybe you are making an
entry on a warrant and someone runs at you and you
just pat him down. It's -- it's under the most duress
situation you could be in. It's not ideal at all.
On cross-examination, Officer Savagian agreed that he did not
actually know whether Officer Griffin drew her gun or not since
she was not in his line of vision after the three exited their
vehicle, but added that "she wasn't anywhere around" Officer
Savagian and Officer Hunter.
¶72 The circuit court denied Wilson's motion to suppress,
concluding that the officers' interaction was supported by
reasonable suspicion and that the search of Wilson was
consensual. The court explained that it had had "the
9
No. 2015AP671-CR.akz
opportunity to hear the testimony and assess the demeanor
and . . . believability of the witnesses." It concluded that
"regarding this gun situation" it found "the officers' testimony
to be much more credible and believable than Mr. Wilson and
Mr. Roberts. [Es]pecially given the inconsistencies between the
testimony of Mr. Wilson and Mr. Roberts."
¶73 The court stated that it found Officer Savagian to be
a "very credible witness." With regard to the search of Wilson,
the court noted that Officer Savagian had testified that
searching with a gun in one hand was reserved for a "very
unusual high stress situation," and that although "high stress
is a relative term," "for police officers doing this sort of
work every day, this is hardly a high stress time what was
described to me here." Additionally, while Officer Savagian
"testified with a detailed recollection of what was said and
what was offered" at the time of the search, Wilson simply
testified "that he did not offer to let the officers search
him."
¶74 The court also found Officer Hunter to be "very
believable," "very calm as he testified," and "very clear that
none of the officers had their guns drawn": "Not only what he
was saying, but basically the way he was saying it led me to
believe that he was true -- that he was telling the truth. And
he was not in the courtroom when the other witnesses were
testifying regarding the guns."
¶75 The court found less credible a number of other
aspects of the testimony of Roberts and Wilson, such as the way
10
No. 2015AP671-CR.akz
the officers were allegedly carrying their guns, the account of
Roberts being pulled out of the car, and the notion that Officer
Griffin would have approached the SUV with her gun pointed while
behind the other two officers. The court also noted that
Roberts was "very specific that only two of the officers had
their guns out." The court stated:
At the end of the day, I find Officer Savagian's
explanation much more credible as to -- rather than
this sort of A-Team paramilitary attack on the car by
three officers, especially with the third officer
basically having her gun at her colleague's heads
which I didn't find to be credible . . . .
The court observed that "under these circumstances, there was no
testimony really other than Mr. Wilson who unfortunately has
been convicted of a crime three times, so his credibility is
somewhat at issue. Plus he has a vested interest in this case."
¶76 The court also remarked that it did not "see at the
end of the day how [Brown's testimony] would have assisted the
Court or assisted Mr. Wilson with his motion." The court
explained that while "it would be one thing if both Mr. Roberts
and Mr. Wilson had testified totally consistently," they had not
done so. Consequently, Brown would either have been "backing
one or the other or maybe providing yet an additional
explanation."
¶77 On December 23, 2013, Wilson pleaded guilty to one
count of possession with intent to deliver a controlled
substance (cocaine) in the amount of greater than 5 to 15 grams.5
A judgment of conviction was entered, and the circuit court
5
The second and subsequent enhancer was dropped.
11
No. 2015AP671-CR.akz
sentenced Wilson to three years of initial confinement and two
years of extended supervision.
¶78 On January 6, 2015, Wilson filed a motion for
postconviction relief. On March 12, 2015, the circuit court
denied the motion. On April 1, 2015, Wilson filed a notice of
appeal. On July 6, 2016, the court of appeals affirmed the
judgment of conviction and the circuit court's order denying
Wilson's motion for postconviction relief. State v. Wilson, No.
2015AP671-CR, unpublished slip op. (Wis. Ct. App. July 6, 2016)
(per curiam). On August 4, 2016, Wilson filed a petition for
review in this court. On October 11, 2016, this court granted
the petition.
II
¶79 The issues raised on this appeal pertain to the
circuit court's ruling that the subpoena of Brown was not valid.
But Wilson's attorney was asked by the circuit court point-blank
if he wished to object to the circuit court's ruling on the
subpoena, and the attorney declined to do so. "The absence of
any objection warrants that we follow 'the normal procedure in
criminal cases,' which 'is to address waiver within the rubric
of the ineffective assistance of counsel.'" State v. Carprue,
2004 WI 111, ¶47, 274 Wis. 2d 656, 683 N.W.2d 31 (quoting
Erickson, 227 Wis. 2d at 766).
¶80 Put differently, the court today validates Wilson's
approach of: (1) consenting to the circuit court's ruling on the
subpoena at the suppression hearing; (2) waiting to see if he
succeeded on his motion to suppress; and (3) only after losing
12
No. 2015AP671-CR.akz
that motion, objecting to the court's ruling on the subpoena.
See, e.g., Erickson, 227 Wis. 2d at 766 ("If the waiver rule did
not exist, a party could decline to object for strategic reasons
and raise the error only when that party needed an advantage at
some point in the trial."); State v. Caban, 210 Wis. 2d 597,
600, 611, 563 N.W.2d 501 (1997) (defendant waived issue of
probable cause to search a vehicle by failing to raise the issue
before the circuit court). On the other hand, Wilson is not
without a remedy. He possesses state and federal constitutional
rights to the effective assistance of counsel and may challenge
the performance of his attorney in failing to object to the
court's ruling on the subpoena. See, e.g., State v. Thiel, 2003
WI 111, ¶18, 264 Wis. 2d 571, 665 N.W.2d 305 (citing U.S. Const.
amends. VI, XIV; Wis. Const. art. I, § 7); Erickson, 227
Wis. 2d at 766. I now conduct our well-established ineffective
assistance inquiry, and conclude that Wilson's ineffective
assistance of counsel claim fails because he was not prejudiced
by his counsel's performance.
III
¶81 "Whether a convicted defendant received ineffective
assistance of counsel is a two-part inquiry. First, the
defendant must prove that counsel's performance was deficient.
Second, if counsel's performance was deficient, the defendant
must prove that the deficiency prejudiced the defense." State
v. Carter, 2010 WI 40, ¶21, 324 Wis. 2d 640, 782 N.W.2d 695(citations omitted). Relevant to this case, "there is no reason
for a court deciding an ineffective assistance claim to approach
13
No. 2015AP671-CR.akz
the inquiry in the same order or even to address both components
of the inquiry if the defendant makes an insufficient showing on
one." Strickland v. Washington, 466 U.S. 668, 697 (1984).
¶82 Assuming that, as the court today holds, the circuit
court below erred in its assessment of the validity of the
subpoena under review, I conclude that it is unnecessary to
determine whether Wilson's attorney performed deficiently in
failing to object to the court's ruling. This is so because
even if the attorney performed deficiently, that deficiency did
not prejudice Wilson.
¶83 To show prejudice Wilson must establish that "there is
a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Carter, 324 Wis. 2d 640, ¶37 (quoting Strickland, 466 U.S. at
694). Wilson must "offer more than rank speculation to satisfy
the prejudice prong." Erickson, 227 Wis. 2d at 744. He cannot
meet this burden.
¶84 The circuit court made clear that it found Officer
Savagian and Officer Hunter to be highly credible witnesses and
found their "testimony to be much more credible and believable
than Mr. Wilson and Mr. Roberts." The circuit court was aware
that Brown would likely testify that she saw the police officers
approach the SUV with guns drawn and take Wilson and Roberts out
of the car, but this did not change its findings at the
conclusion of the suppression hearing. The circuit court simply
did not consider a "sort of A-Team paramilitary attack on the
car" likely under the circumstances.
14
No. 2015AP671-CR.akz
¶85 Additionally, as the circuit court noted, Wilson and
Roberts were not consistent in their testimony. Thus, had Brown
testified, her testimony likely would have been inconsistent
with either Wilson's account, Roberts' account, or both. For
example, Wilson testified that all three officers had their guns
drawn as they approached the SUV, while Roberts was "very
specific that only two of the officers had their guns out."
Perhaps Brown would have testified that two officers had drawn
their guns. Perhaps Brown would have testified that three
officers had drawn their guns. Or perhaps Brown would have
provided a new version of events. Regardless, nothing but "rank
speculation" supports the conclusion that Brown would have
provided an account so credible——despite being inconsistent with
either Wilson's testimony, Roberts' testimony, or both——that the
circuit court would have immediately dismissed the testimony of
Officer Savagian and Officer Hunter and suppressed the
challenged evidence. Indeed, this would be highly unlikely: on
top of the circuit court's extensive findings regarding the
relative credibility of Officer Savagian, Officer Hunter,
Roberts, and Wilson, Brown would have been starting at a
disadvantage from a credibility perspective; as Roberts' mother,
she obviously had an interest in the case.
¶86 Thus, assuming the circuit court should have obtained
Brown's testimony and that Wilson's attorney was deficient in
failing to object to the circuit court's actions, Wilson has not
shown that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
15
No. 2015AP671-CR.akz
would have been different." Carter, 324 Wis. 2d 640, ¶37
(quoting Strickland, 466 U.S. at 694). His ineffective
assistance claim fails.
IV
¶87 Even if, as the court today concludes, the circuit
court below erred in its assessment of the validity of the
subpoena of Brown, Wilson failed to object to that error. Under
well-established precedent, Wilson therefore forfeited the right
to direct review of the alleged error and this court will only
inquire into whether Wilson's counsel was constitutionally
ineffective in neglecting to challenge the circuit court's
ruling on the subpoena. See, e.g., Erickson, 227 Wis. 2d at
765-67.
¶88 Unfortunately, I must dissent because the court
deviates from this "normal procedure in criminal cases,"
analyzing Wilson's claim on the merits without adequate
justification. Id. I would adhere to precedent and analyze
whether Wilson received the effective assistance of counsel. I
conclude that Wilson's ineffective assistance of counsel claim
fails because he has not demonstrated that he was prejudiced by
his counsel's performance. Suppression would have occurred with
or without Brown's testimony, and the decision of the court of
appeals should be affirmed. Accordingly, I respectfully
dissent.
¶89 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this opinion.
16
No. 2015AP671-CR.akz
1