#30305-a-MES 2024 S.D. 54
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CODY JAMES HEER, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
THE HONORABLE JON SOGN Judge
MARK KADI of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for defendant and appellant.
MARTY J. JACKLEY Attorney General
JENNIFER M. JORGENSON Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
CONSIDERED ON BRIEFS MARCH 19, 2024 OPINION FILED 09/04/24 #30305
SALTER, Justice
[¶1.] Cody Heer appeals from multiple drug-related convictions. Prior to
trial, Heer moved to represent himself. The circuit court granted Heer’s motion but
ordered his former court-appointed attorney to serve as standby counsel. Heer now
claims his Sixth Amendment right to self-representation was violated by the
appointment of standby counsel and by standby counsel’s presence at trial. Heer
also claims certain statements made by the prosecutor during closing argument
amounted to improper vouching, and although Heer failed to object, he claims the
alleged vouching was plain error. We affirm.
Factual and Procedural Background
[¶2.] On July 7, 2022, Cody Heer sold approximately one ounce of
methamphetamine to a confidential informant. Heer’s child was present during the
sale, which occurred at a Walmart parking lot in Sioux Falls.
[¶3.] A Minnehaha County grand jury returned a three-count indictment
charging Heer with distributing a controlled substance, possession of a controlled
substance, and causing a child to be present where methamphetamine is
distributed. The State also filed a part II habitual offender information alleging
Heer was previously convicted of five felonies.
[¶4.] Heer was initially represented by court-appointed attorney, Lyndee
Kamrath. At a pre-trial motions hearing, Heer orally moved to represent himself
after the circuit court denied Heer’s request to appoint substitute counsel. 1 After
1. After Kamrath indicated her willingness to continue to zealously represent Heer, the circuit court concluded Heer had not established good cause to (continued . . .) -1- #30305
explaining the consequences and disadvantages of self-representation and
establishing that Heer was knowingly and voluntarily waiving his right to court-
appointed counsel, the circuit court granted Heer’s motion. See Faretta v.
California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975); see also
State v. Van Sickle, 411 N.W.2d 665, 666 (S.D. 1987) (applying Faretta in
determining whether defendant’s right to counsel was voluntarily and knowingly
waived). 2
[¶5.] The circuit court discharged Kamrath as Heer’s attorney of record but
ordered that she remain as standby counsel, which the court explained to Heer in
the following terms:
Standby counsel means that she’s going to keep up to date on the file. She will be available to consult if that is what you decide to do. She does not represent you. She won’t be telling you what to do or how to do things, but if you change your mind about being represented or if you have specific questions, you can ask Ms. Kamrath about that; but again, she’s not your attorney, and she won’t be making efforts to defend you in this case except to the extent asked. Do you understand that?
________________________ (. . . continued) justify a change in court-appointed counsel, citing State v. Talarico, 2003 S.D. 41, 661 N.W.2d 11 and State v. Fender, 484 N.W.2d 307 (S.D. 1992). The court further concluded that such an appointment would disrupt the judicial process. Heer does not challenge the court’s denial of his request for substitute counsel on appeal.
2. The United States Supreme Court in Faretta v. California explained, “[a]lthough a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self- representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975) (citing Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242, 87 L. Ed. 268 (1942)).
-2- #30305
Heer voiced his understanding and expressed no objection.
[¶6.] Prior to commencement of the trial on February 7, 2023, the circuit
court confirmed Heer still wished to proceed pro se and also asked Heer how to
explain Kamrath’s presence to the jury:
The court: But let’s talk about how this is going to work. So Ms. Kamrath right now is sitting at the same table as you, but how would you like to have it handled when we have the jury in here? In other words, during jury selection I would introduce the people at your table and I can explain that you’re representing yourself, but you also have an attorney with you that doesn’t represent you in this matter, but is available to answer some of your questions. So I can explain that or we can have Ms. Kamrath sit in the gallery and during breaks you can consult with her. It really doesn’t matter to me how you want to handle that, but I ask you.
Heer: This is fine, your honor, if that’s all right.
The court: Is it ok if I introduce her to the jury and say you’re representing yourself, but Ms. Kamrath is an attorney that’s available to answer questions for you?
Heer: Yes, your honor.
[¶7.] During voir dire, Heer, Kamrath, the court, and the attorney for the
State each introduced themselves. The court also introduced the clerk, court
reporter, and bailiffs. Kamrath did not participate in the trial. Heer made an
opening statement and cross-examined the State’s witnesses. He made one motion
for a mistrial and a motion for judgment of acquittal after the State rested. Heer
settled jury instructions and gave a closing argument. He never objected or
suggested that Kamrath’s presence was interfering with his right to represent
himself, and the court later remarked, “[h]e did a nice job representing himself[.]”
-3- #30305
[¶8.] During the State’s closing argument, the prosecutor made several
statements that Heer did not object to, though he now claims they constituted
impermissible vouching. These are largely first-person statements made by the
prosecutor about the evidence, including the statement, “I think you can look at this
and believe that it was proven by both direct and indirect evidence combined.”
[¶9.] The jury found Heer guilty on all counts. The circuit court later
granted his request to have Kamrath reappointed for the part II information
proceeding at which Heer admitted that he had been convicted of the five felonies
listed in the part II information. For the distribution conviction, the court
sentenced him to fifteen years in prison, with five years suspended. The court did
not impose a sentence on the unauthorized possession charge and suspended a 180-
day jail sentence on the conviction of causing a child to be present where
methamphetamine was distributed.
[¶10.] With the assistance of different appointed counsel, Heer appeals. He
contends his Sixth Amendment right to self-representation was violated by the
circuit court’s appointment of standby counsel and by the extent of standby
counsel’s involvement in the case. Heer also argues that the State’s comments
during closing argument amount to plain error.
Analysis and Decision
The appointment of standby counsel
[¶11.] Ordinarily, “[a]ppeals asserting an infringement of a constitutional
right are reviewed de novo.” State v. Hirning, 2011 S.D. 59, ¶ 13, 804 N.W.2d 422,
426 (citing State v. Asmussen, 2006 S.D. 37, ¶ 11, 713 N.W.2d 580, 586). But where,
-4- #30305
as here, the defendant did not object, the error has not been preserved, and we
review the claim under the plain error doctrine. See State v. McMillen, 2019 S.D.
40, ¶ 13, 931 N.W.2d 725, 729 (applying plain error standard to defendant’s
forfeited double jeopardy argument).
[¶12.] “To establish plain error, an appellant must show ‘(1) error, (2) that is
plain, (3) affecting substantial rights; and only then may this Court exercise its
discretion to notice the error if, (4) it seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’” Id. (quoting State v. Bausch, 2017 S.D. 1,
¶ 27, 889 N.W.2d 404, 412). “Additionally, ‘with plain error analysis, the defendant
bears the burden of showing the error was prejudicial.’” Id. (citations omitted).
[¶13.] The Sixth Amendment guarantees a defendant the right to assistance
of counsel. It is a personal right that carries with it the corresponding right to
decline assistance through a volitional act of free will, even at the risk of potential
adverse consequences from self-representation. See Faretta, 422 U.S. at 833–34, 95
S. Ct. at 2540–41. 3 A state may not, therefore, compel a defendant to accept the
assistance of appointed counsel. See id.
[¶14.] However, “a State may—even over objection by the accused—appoint a
‘standby counsel’ to aid the accused if and when the accused requests help, and to
be available to represent the accused in the event that termination of the
defendant’s self-representation is necessary.” McKaskle v. Wiggins, 465 U.S. 168,
3. Article VI, § 7 of the South Dakota Constitution provides an accused with “the right to defend in person and by counsel” which we have interpreted as a separate right of self-representation. State v. Thomlinson, 78 S.D. 235, 237, 100 N.W.2d 121, 122 (1960); State v. Hauge, 2019 S.D. 45, ¶ 11, 932 N.W.2d 165, 169–70.
-5- #30305
176, 104 S. Ct. 944, 949–50, 79 L. Ed. 2d 122 (1984) (citing Faretta, 422 U.S. at 834
n.46, 95 S. Ct. at 2541 n.46; United States v. Dougherty, 473 F.2d 1113, 1124–26
(D.C. Ct. App. 1972)). In Wiggins, the United States Supreme Court reconciled
appointment of standby counsel with a defendant’s right to self-representation:
[B]oth Faretta’s logic and its citation of the Dougherty case indicate that no absolute bar on standby counsel’s unsolicited participation is appropriate or was intended. The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused’s best possible defense. Both of these objectives can be achieved without categorically silencing standby counsel.
Id.
[¶15.] Simply put, there is no error here. The circuit court’s appointment of
Kamrath as standby counsel was permissible and proper. There is no merit to
Heer’s claim that the appointment of standby counsel, alone, violated his
constitutional right to represent himself.
Standby counsel’s presence at trial
[¶16.] Heer’s related claim that Kamrath’s presence at trial was too
conspicuous is also unpreserved and subject to plain error review. 4 And, like the
appointment of standby counsel issue, we are unable to detect any error.
4. Because Heer affirmatively assented to Kamrath’s introduction to the jury and her presence at counsel table, a colorable argument exists that Heer actually waived—not merely forfeited—his argument about the extent of Kamrath’s involvement at trial. See United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993) (defining waiver as the “intentional relinquishment or abandonment of a known right”); see also United States v. Booker, 576 F.3d 506, 511 (8th Cir. 2009) (holding waiver where the “defense approved the procedure which appellant now attacks”). The State’s waiver argument is based on Heer’s failure to object—not waiver (continued . . .) -6- #30305
[¶17.] In State v. Banks, 387 N.W.2d 19 (S.D. 1986), we explained that pro se
defendants are allowed to maintain actual control over the case that is presented to
the jury. 387 N.W.2d at 25–26; see also Wiggins, 465 U.S. at 177, 104 S. Ct. at 950
(“In determining whether a defendant’s Faretta rights have been respected, the
primary focus must be on whether the defendant had a fair chance to present his
case in his own way.”). “Additionally, once a defendant has expressed his wish to
appear pro se, participation of counsel must be limited so as not to destroy the jury’s
perception that the defendant is representing himself.” Id.
[¶18.] Thus, the limitations on standby counsel’s participation in trial are
twofold: “First, the pro se defendant is entitled to preserve actual control over the
case he chooses to present to the jury.” Wiggins, 465 U.S. at 178, 104 S. Ct. at 951.
“If standby counsel’s participation over the defendant’s objection effectively allows
counsel to make or substantially interfere with any significant tactical decisions, or
to control the questioning of witnesses, or to speak instead of the defendant on any
matter of importance, the Faretta right is eroded.” Id.
[¶19.] “Second, participation by standby counsel without the defendant’s
consent should not be allowed to destroy the jury’s perception that the defendant is
representing himself. The defendant’s appearance in the status of one conducting
his own defense is important in a criminal trial, since the right to appear pro se
exists to affirm the accused’s individual dignity and autonomy.” Id.
________________________ (. . . continued) in the true sense—and, under the circumstances, we decline to consider the waiver issue further.
-7- #30305
[¶20.] Here, Kamrath did not exceed the limitations of permissible conduct
for standby counsel. It is true that she was seated at counsel table next to Heer
throughout the trial, but this was at Heer’s election. The circuit court specifically
gave Heer the choice of having Kamrath sit in the gallery or sit at counsel table.
Heer chose the latter. Heer cannot be heard to complain about a choice he made.
See Taylor Realty Co. v. Haberling, 365 N.W.2d 870, 874 (S.D. 1985) (“Plaintiff
cannot be heard to complain of matters to which he acquiesced.”). Further, the jury
was informed that Heer was representing himself and that Kamrath did not
represent Heer but was available to him to answer questions. This was sufficient to
dispel any notion that Heer was represented by Kamrath. See State v. Ralios, 2010
S.D. 43, ¶ 47, 783 N.W.2d 647, 660 (noting the general rule that presumes juries
follow a trial court’s instructions) (citing cases).
[¶21.] Heer also points to Kamrath’s introduction to the jury. Again,
however, the circuit court asked Heer if he was agreeable to Kamrath being
introduced to the jury, and he voiced no concern or objection. Nor did he object
during the time of her introduction. Again, Heer cannot complain about matters to
which he acquiesced. See Taylor, 365 N.W.2d at 874.
[¶22.] In any event, Kamrath’s presence at counsel table and introduction do
not amount to participation. In fact, Heer—and Heer alone—participated in his
defense at trial. Heer made pretrial motions, he selected his jury, he gave an
opening statement, he cross-examined witnesses, and he gave a closing argument.
Other than asking to approach the bench, which Heer does not mention, Kamrath
did not play a role in the trial at all. Kamrath did not “make or substantially
-8- #30305
interfere with any significant tactical decisions,” nor did she “control the
questioning of witnesses,” nor “speak instead of the defendant on any matter of
importance.” Wiggins, 465 U.S. at 178, 104 S. Ct. at 951. At all times, actual
control of the trial remained with Heer. Kamrath’s mere presence at counsel table
and introduction could not have “destroy[ed] the jury’s perception that the
defendant [was] representing himself.” Id. There is no merit to Heer’s claim that
his right to self-representation was denied. 5
Vouching
[¶23.] Heer acknowledges he did not object to certain statements during the
State’s closing argument that he alleges constituted improper vouching. However,
he claims the circuit court committed plain error by not intervening sua sponte.
[¶24.] In our view, there was no error, and Heer is unable to establish the
first prong of our plain error standard. “Improper vouching ‘invite[s] the jury to rely
on the government’s assessment that the witness is testifying truthfully.’” State v.
Snodgrass, 2020 S.D. 66, ¶ 45, 951 N.W.2d 792, 806 (quoting State v. Goodroad, 455
N.W.2d 591, 594 (S.D. 1990)). Thus, the “State may not improperly vouch for a
witness’s credibility by ‘tell[ing] the jury that [it] has confirmed a witness’s
credibility before using [the witness].’” Id. (quoting Goodroad, 455 N.W.2d at 594)
(alterations in original). “It is ‘the exclusive province of the jury to determine the
5. We agree, as Heer notes, that structural errors such as the denial of the right to self-representation do not require a showing of prejudice. See State v. Arguello, 2015 S.D. 103, ¶ 5, 873 N.W.2d 490, 493 (“Structural error requires reversal without a showing of prejudice.”). However, we conclude there was no deprivation of the right of self-representation at trial, and thus, no structural error. See id. ¶ 7 (“Because the error in this case does not fit the categorical framework, we conclude that no structural error occurred.”).
-9- #30305
credibility of a witness.’” Id. (quoting State v. McKinney, 2005 S.D. 73, ¶ 32, 699
N.W.2d 471, 481).
[¶25.] Nor can a prosecutor “plac[e] the prestige of the government behind
the witness and imply[ ] that the prosecutor knows what the truth is and thereby
assure[ ] its revelation.” State v. Nelson, 2022 S.D. 12, ¶ 38, 970 N.W.2d 814, 826
(quoting State v. Westerfield, 1997 S.D. 100, ¶ 12, 567 N.W.2d 863, 867). “If a
prosecutor conveys this message explicitly or implicitly, they are improperly
vouching.” Id. (citing Jenner v. Leapley, 521 N.W.2d 422, 427 (S.D. 1994)).
[¶26.] Heer identifies the following statements by the prosecutor as improper
vouching:
• “I think circumstantially there is no other basis for where that methamphetamine comes from, except from this defendant.”
• “I think you can also look at this and believe that it was proven both by direct and circumstantial evidence combined.”
• “I don’t think there is any doubt . . . so I don’t believe there is any issue who sold this. I think it is this defendant.”
• “I think if you look at the evidence I don’t believe there is any issue.”
[¶27.] None of these statements relate to any witness testimony, nor do they
explicitly or implicitly attempt to convey that the State has confirmed the veracity
of any witnesses’ testimony. In context, they are “fair characterizations of
uncontroverted evidence, rather than improper expressions of the prosecutor’s
personal opinion of [a witness’s] credibility.” United States v. Jones, 865 F.2d 188,
191 (8th Cir. 1989). Though these statements were made from a first-person point
-10- #30305
of view, they do not suggest “that the government has special knowledge of evidence
not presented to the jury” or carry “an implied guarantee of truthfulness, or
express[] a personal opinion about credibility.” United States v. Bentley, 561 F.3d
803, 812 (8th Cir. 2009).
[¶28.] As the Court in State v. Luster, 902 A.2d 636, 654 (Conn. 2006),
explained:
Although prosecutors generally should try to avoid using phrases that begin with the pronoun “I” such as “I think” or “I believe,” we recognize that the use of the word “I” is part of our everyday parlance and . . . because of established speech patterns, it cannot always easily be eliminated completely from extemporaneous elocution. Furthermore, “[t]he state’s attorney should not be put in the rhetorical straightjacket of always using the passive voice, or continually emphasizing that he is simply saying I submit to you that this is what the evidence shows.” Therefore, if it is clear that the prosecutor is arguing from the evidence presented at trial, instead of giving improper unsworn testimony with the suggestion of secret knowledge, his or her occasional use of the first person does not constitute misconduct.
(cleaned up). 6
[¶29.] Even if the State engaged in vouching, any error was not plain. An
error is “plain” when it is clear or obvious. See McMillen, 2019 S.D. 40, ¶ 13, 931
N.W.2d at 729–30. The “requirement that an error be ‘plain’ means that lower
court decisions that are questionable but not plainly wrong (at time of trial or at
6. The trial court is in the best position to regulate closing arguments and to determine whether the prosecutor has crossed the line into improper vouching. See Woolford v. State, 2023 WL 7272067, at *4 (Md. Ct. App. Nov. 3, 2023) (in determining whether prosecutor engaged in improper vouching, the court noted the trial court’s “broad discretion to regulate closing argument” and that “[g]enerally, the trial court is in the best position to determine whether counsel has stepped outside the bounds of propriety during closing argument.” (citations omitted)).
-11- #30305
time of appeal) fall outside the Rule’s scope.” Id. ¶ 23, 931 N.W.2d at 732 (citations
omitted). Heer has not provided us with any authorities showing that the State’s
comments during closing argument were “plainly wrong.”
[¶30.] Finally, even if the State’s comments constituted plain error, Heer has
not sustained his burden of demonstrating prejudice. “‘Prejudice’ in the context of
plain error requires a showing of a ‘reasonable probability’ that, but for the error,
the result of the proceeding would have been different.” State v. Townsend, 2021
S.D. 29, ¶ 31, 959 N.W.2d 605, 614 (quoting State v. Fifteen Impounded Cats, 2010
S.D. 50, ¶ 33, 785 N.W.2d 272, 283). However, Heer does not claim or provide any
support to indicate that the comments affected the jury’s verdict or that the result of
the trial would have been different. We conclude the result of Heer’s trial was
unaffected by the State’s comments.
[¶31.] Heer seems to view prejudice more generically and less as an outcome-
determinative standard, arguing that he was prejudiced by the very fact that the
circuit court did not intervene on his behalf. In addition to relying upon an
incorrect understanding of prejudice, this claim is unsustainable because it
disregards the neutral role of the court, which generally prevents judges from acting
on behalf of a party, even one who is representing himself. We have explained that
“parties who appear pro se may not capitalize on their unfamiliarity with the law;
they are bound by the same rules of evidence and procedure that bind attorneys and
a trial judge is not required to act as counsel for a litigant.” Oesterling v. Oesterling,
354 N.W.2d 735, 737 (S.D. 1984). For the reasons we have described above, the
-12- #30305
court was under no duty to intervene on Heer’s behalf during the State’s closing
argument.
[¶32.] Heer chose to proceed pro se and did so after specifically being
informed by the circuit court that he would be required to “adhere to various
technical rules” and that “the judge can’t give you legal advice on how to proceed,
and you’re going to have to comply with certain rules of the court just like an
attorney would need to comply.” The circuit court specifically referenced the need to
make objections. Heer voiced his understanding, declined the opportunity to visit
with standby counsel, and indicated he had no questions. “An unrepresented party
‘can claim no advantage from his [pro se] status.’” Webb v. Webb, 2012 S.D. 41,
¶ 14, 814 N.W.2d 818, 823; see also Zhang v. Rasmus, 2019 S.D. 46, ¶ 37, 932
N.W.2d 153, 164 (“[S]elf-represented litigants are otherwise held to the same
standard as attorneys, including the obligations to comply with rules of procedure
and evidence . . . [and] can claim no advantage from his pro se status.”).
[¶33.] Affirmed.
[¶34.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,
Justices, concur.
-13-