State v. Heer

#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-