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SCOW clarifies subpoena requirements for criminal cases

State v. Keimonte Antoine Wilson, Sr., 2017 WI 63, 6/22/17, reversing a per curiam court of appeals decision; case activity (including briefs)

The supreme court holds that the provisions of § 885.03 govern service of a subpoenas in criminal cases, not the provisions of § 805.07.

Wilson’s trial lawyer served a subpoena on a witness for a suppression hearing by leaving a copy of the subpoena with the witness’s daughter at the witness’s home. The witness didn’t appear for the hearing. Relying on the substitute service requirements under § 805.07(5), which incorporates by reference § 801.11(1)(b)’s “reasonable diligence” requirement, the circuit court held the subpoena wasn’t properly served because substitute service isn’t allowed only after several attempts at personal service, and here there was only a single attempt. Because the subpoena wasn’t properly served, the court refused to issue a body attachment for the witness, and it denied Wilson’s suppression motion without hearing from the witness. (¶6-15).

The supreme court agrees with Wilson that while § 972.11(1) says civil rules of procedure generally apply, the statute’s more specific reference to ch. 885 controls:

¶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 [v. Bd. of Regents of Univ. of Wis., 2005 WI 159], 286 Wis. 2d 252, ¶23, 706 N.W.2d 110 (citation omitted); see also 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.

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¶46     …[A]lthough 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 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.

Because Wilson’s witness was properly served, the case is remanded to the circuit court for a continuation of the suppression hearing so Wilson can present her testimony. (¶54).

The court also relies on the legislature’s specific adoption of a “reasonable diligence” requirement in § 968.375(5), which would be unnecessary if that was already applicable under § 972.11(1) (¶¶38-42), and cites supporting language from State v. Popenhagen, 2008 WI 55, ¶¶138-41, 309 Wis. 2d 601, 749 N.W.2d 611 (Ziegler, J., concurring) (noting the criminal code has its own subpoena statute and characterizing § 805.07 as a “civil subpoena statute meant for civil litigants”) and the Wisconsin Practice Series treatise on criminal law. (¶¶43-45).

A dissent (Ziegler, joined by Gableman) says Wilson’s trial lawyer forfeited this issue by agreeing with the circuit court that it couldn’t issue a body attachment because the subpoena wasn’t properly served. Wilson made an ineffective assistance claim on appeal to avoid the effects of forfeiture, but the dissent concludes that claim fails: Wilson can’t establish prejudice because, based on the offer of proof about what the witness would say, the circuit court would still have denied the suppression motion. (¶¶55-89).

Finally, the fact that § 885.03 controls criminal case subpoenas doesn’t mean a party is precluded from using substituted service only after reasonable diligence. Even though it’s not mandated, “[i]n many circumstances it may appear to be the prudent way to proceed.” (¶47).

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