State v. Keimonte Antonie Wilson, Sr.

2017 WI 63

SUPREME 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(2016 – Unpublished)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 63
NOTICE
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State v. Wilson, No. 2015AP671-CR, unpublished slip op.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