#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
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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 . . .)
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explaining the consequences and disadvantages of self-representation and 

establishing that Heer was knowingly and voluntarily waiving his right to courtappointed 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 selfrepresentation, 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)).
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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[.]”
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[¶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, 
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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.
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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 . . .)
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[¶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.
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[¶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 
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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.”).
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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 
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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)).
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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 outcomedeterminative 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 
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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.