Caffrey v. Solem

400 N.W.2d 281, 1987 S.D. LEXIS 222

• Court: South Dakota Supreme Court
• Decided: February 4, 1987
• Docket: 15305
• Status: Published

Opinions

MORGAN, Justice.

Timothy Sean Caffrey (Caffrey) appeals from an order denying his application for a writ of habeas corpus. We affirm.

On November 2, 1981, a Bennett County jury found Caffrey guilty of first-degree murder. He was sentenced to life imprisonment. On December 9, 1981, Caffrey’s court-appointed attorney, Stanley Whiting (Whiting) perfected an appeal to the Supreme Court. Two months later, Whiting was appointed state’s attorney for Todd County, an unorganized county adjoining Bennett County. On September 9, 1982, Whiting presented Caffrey’s oral argument to this court which reversed Caffrey’s conviction and remanded for new trial. State v. Caffrey, 332 N.W.2d 269 (S.D.1983).

On June 21, 1983, Caffrey appeared before Judge Heck who advised him of Whiting’s status as Todd County state’s attorney and offered to appoint different counsel. Caffrey decided to have Whiting continue to represent him. Pursuant to a plea bargain, he then pled guilty to first-degree manslaughter. He was sentenced to life imprisonment. In 1986, Caffrey petitioned for a writ of habeas corpus claiming the existence of a conflict of interest between Whiting’s duties as state’s attorney in one county and defense attorney in another. The trial court denied the writ; this appeal followed.

Caffrey concedes that he is unable to show any specific evidence of conflict or prejudice arising from the fact that his defense attorney became the state’s attorney in another county. Rather, he asserts that prejudice occurs as a matter of law when a state’s attorney is appointed to represent a defendant in a criminal case in a neighboring county. Caffrey is asking this court to adopt a per se rule prohibiting a prosecutor from acting as defense counsel.

We considered this precise issue in Starnes v. Erickson, 85 S.D. 489, 186 N.W.2d 502 (1971). We recognized the ethical considerations and questions of constitutional rights involved where a state’s attorney undertakes to act as a defense attorney and cautioned that “... it is doubtful that a court should appoint a lawyer who is state’s attorney in another county of the state to represent an indigent defendant in a criminal proceeding.” 85 S.D. at 499, 186 N.W.2d at 507. We also said, however, that

[w]e are not prepared at this time to state as a general proposition that there is inherently an actual conflict of interest in all situations in which a state’s attorney acts as defense attorney in a criminal case in a state court outside his own county. We believe that these cases must be decided on an ad hoc basis in the light of the entire record.

85 S.D. at 498, 186 N.W.2d at 507.

We find no reason to deviate from the position set forth in Starnes, supra. Caf-frey’s complaint is theoretical, not factual. The status of his attorney and his right to a different attorney were explained to him by the trial court. It was Caffrey’s decision to keep Whiting as counsel. Whether we view that decision as a waiver of any conflict of interest or as an attempt to build error into the record, Caffrey cannot now be heard to complain. Accordingly, we affirm the order denying Caffrey’s application for a writ of habeas corpus.

WUEST, C.J., SABERS, J., and FOSHEIM, Retired Justice, concur. HENDERSON, J., concurs specially. MILLER, J., not having been a member of the court at the time this action was submitted to the court, did not participate.