On review of a per curiam opinion; case activity (including briefs)
Issues:
1. Which statute governs the service of a subpoena in a criminal case: §885.03 which provides that a subpoena may be left at a witness’s abode or §805.07 and §801.11 which require reasonable diligence to personally serve a witness before leaving the subpoena at her abode?
2. Whether trial counsel was ineffective for failing to argue that he had properly served the witness with a subpoena per §885.03? If not, then whether trial counsel was ineffective for failing to attempt to serve the witness personally before leaving the subpoena at her abode as required by §801.11.
Trial counsel served a subpoena upon a witness for suppression hearing by leaving a copy of it at with her daughter at their home. The witness did not appear for the hearing. The trial court noted that it could not issue a body attachment based on substitute service, and held that the subpoena was not properly served. The court of appeals affirmed and held that §805.07 and §801.11 apply to criminal cases. It did so even though §801.11 governs the service of a summons and complaint in a civil case, not service of a subpoena. Wilson argues that §885.03 controls criminal cases. See §972.11(1) (“Chapters 885 to 895 and 995 . . . . shall apply in all criminal proceedings.”) Not so long ago Justice Ziegler made the very same point in her concurrence to State v. Popenhagen, 2008 WI 55, 309 Wis. 2d 601, 749 N.W.2d 611. So there’s a good bet she voted to grant review and hopefully will side with Wilson in this case. According to Ziegler:
¶138 . . . . The State may not circumvent the criminal process by using civil subpoena statutes. The criminal law has its own subpoena statutes, which the State was required to use.
¶139 The Wisconsin criminal code specifically provides that chapter 885, Witnesses and Oral Testimony, “shall apply in all criminal proceedings.” Wis. Stat. § 972.11(1). As a result, any attorney, including the district attorney, may secure a witness to testify at a hearing. Wis. Stat. § 885.01. By virtue of Wis. Stat. §§ 885.01 and .02, an attorney, including a district attorney, may require a witness to bring documents with him or her to a scheduled hearing.
¶139 n. 3. Perhaps the argument in favor of allowing the State to use civil subpoena statutes arises out of Wis. Stat. § 972.11(1), which makes the rules of civil actions applicable to all criminal proceedings. However, this is impermissible when the “context of a section or rule manifestly requires a different construction.” Wis. Stat. § 972.11(1). A different construction is required in this case. The criminal law has its own subpoena statutes, and therefore, it does not need to rely on, nor should it rely on, civil subpoena statutes. See Wis. Stat. § 972.11(1) (stating chapter 885 shall apply to criminal proceedings); Wis. Stat. § 885.01 (providing subpoena power); Wis. Stat. § 968.135 (providing criminal investigative subpoena power).
I would respectfully propose that Popenhagen, in particular Justice Ziegler’s quoted concurrence, is inapplicable to this case; Wilson concerned proper service of process for a witness subpoena for testimony at a hearing–a subpoena just for documents to be sent to the police/DA (as an investigatory tool).
Popenhagen involved the prosecutor improperly using a civil subpoena to obtain incriminating documents from a bank.
As Justice Ziegler pointed out, there is a very specific *criminal* law and procedure for a DA to subpoena documents, one that involves the court and not just serving a subpoena on a witness:
Wis. Stat. § 968.135 Subpoena for documents (“Upon the request of the attorney general or a district attorney and upon a showing of probable cause under s. 968.12, **a court** shall issue a subpoena requiring the production of documents, as specified in s. 968.13 (2). The documents shall be returnable to the court which issued the subpoena.”).
Allowing either DAs or defense attorneys simply to drop off a witness subpoena at the witness’s place of abode opens a Pandora’s box of problems for everyone. Everyone is better served if there is actual personal service of process, or after reasonable and diligent efforts, substitute service.
Otherwise, there can be satellite litigation about
1. was the place in fact the “usual place of abode”?
2. where can the subpoena be just dropped off at the place of abode?–what happens if it is gone–blown away by wind, stolen, etc.?
2. was the witness even there at the time when the subpoena was dropped off (what about being on a short vacation, or at the hospital, out of town for work?)
The Ct App raises this question in ¶9 n.2:
“There is perhaps an inherent conflict, in WIS. STAT. § 805.07(5), between permitting service through the WIS. STAT. § 885.03 process that seemingly allows service of a subpoena simply by “leaving [a] copy at the witness’s abode” and imposing the stricter WIS. STAT. § 801.11 requirement of reasonable diligence if the subpoena will be left at the abode with another person. However, it is arguable that, given § 801.11(1)(b)1.-1m., to leave a copy of the subpoena under § 885.03 means leaving it with another person—i.e., substitute service. However, we need not resolve this discrepancy because Wilson did not simply leave the subpoena at Brown’s home; he served a substitute.”