IN RE: THE MATTER OF THE ISSUANCE OF A SUMMONS COMPELLING AN ESSENTIAL WITNESS TO APPEAR AND TESTIFY IN THE STATE OF MINNESOTA IN RE: THE MATTER OF THE ISSUANCE OF A SUMMONS COMPELLING AN ESSENTIAL WITNESS TO APPEAR AND TESTIFY IN THE STATE OF MINNESOTA
CONSIDERED ON BRIEFS JANUARY 8, 2018
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT MOODY
COUNTY, SOUTH DAKOTA THE HONORABLE PATRICK T. PARDY Judge
UNGER Flandreau, South Dakota Attorney for Appellants, M.M.W.
& William Joseph Wilkie.
J. JACKLEY Attorney General CRAIG M. EICHSTADT Assistant
Attorney General Pierre, South Dakota Attorneys for Appellee,
State of South Dakota.
Appellant William Joseph Wilkie (Wilkie) and his
granddaughter, Appellant M.M.W., each appeal the entry of a
circuit court order in two separate proceedings. The orders
summon Wilkie and M.M.W. to appear and testify in an
out-of-state criminal proceeding in Clay County, Minnesota.
We consolidate the cases for resolution of their appeals.
Wilkie and M.M.W. claim their rights as victims were violated
because they were not advised of their right to counsel
during the circuit court proceedings. They also claim the
circuit court erred in issuing the orders. We affirm the
order pertaining to Wilkie and reverse and remand the order
pertaining to M.M.W.
Dustin James Wilkie (Dustin), Wilkie's son and
M.M.W.'s father, was charged with domestic assault of
M.M.W. in Minnesota. M.M.W. immediately called her
grandfather after the alleged assault to report the incident.
M.M.W. subsequently moved to South Dakota to live with
Wilkie. The State of Minnesota sought to summon Wilkie and
M.M.W. as witnesses at Dustin's trial.
On April 26, 2017, a judge of the Seventh Judicial District
of the State of Minnesota issued two certificates declaring
Wilkie and M.M.W. necessary and material witnesses in the
prosecution of the criminal action against Dustin. The
certificates also stated there were no known hardships for
either witness to testify. The certificates were supported by
affidavits submitted by the Clay County, Minnesota
prosecuting attorney, setting forth the facts in support of
the request to summon the testimony of Wilkie and M.M.W. The
certificates directed Wilkie and M.M.W. to be available to
testify for one to three days in May of 2017 in Moorhead,
Minnesota, an approximate three-hour drive from Flandreau,
South Dakota, where Wilkie and M.M.W. were living.
The Minnesota certificates were issued in conformity with the
Uniform Act to Secure the Attendance of Witnesses from
Without a State in Criminal Proceedings (Uniform Act),
codified at SDCL 23A-14-14 through SDCL 23A-14-24. Upon
receipt of the Minnesota certificates, the Moody County
State's Attorney filed a motion requesting the South
Dakota circuit court to enter an order summoning Wilkie and
M.M.W. to appear and testify in the Minnesota criminal
proceeding. Pursuant to SDCL 23A-14-15 and SDCL
23A-14-16,  the circuit court ordered Wilkie and
M.M.W. to attend a hearing in Flandreau on May 8, 2017, to
show cause why they should not be ordered to attend and
testify in the Minnesota criminal case. On the date of the
hearing, Wilkie and M.M.W. mistakenly drove to Moorhead,
Minnesota, believing the hearing would be held there. By the
time the mistake was realized, it was impossible for the pair
to travel back to Flandreau in time for the hearing. The
circuit court allowed Wilkie to voice his objections to the
State's motion over the telephone.
Wilkie and M.M.W. were unrepresented by counsel at the
hearing, and the circuit court did not advise or discuss
consultation with an attorney. Wilkie represented over the
phone that M.M.W. had "a rough year in the past
year" and was seeing a counselor. Wilkie also stated
that he did not want M.M.W. to have to relive the incident by
testifying and that it was "starting to cost [Wilkie] a
lot of money to go back-and-forth." The circuit court
stated that it had reviewed a letter from M.M.W.'s
counselor dated May 5, 2017.
The court determined that Wilkie had failed to show a
personal hardship. As to M.M.W., the court noted the severity
of the underlying charges against M.M.W.'s father and the
belief that the State of Minnesota could implement procedures
to protect M.M.W. upon her request. The circuit court entered
orders directing both Wilkie and M.M.W. to appear and testify
as witnesses at the Minnesota trial.
Wilkie and M.M.W. raise two issues for our review:
1. Whether Wilkie and M.M.W.'s rights as victims were
violated by not being advised of their right to counsel.
2. Whether the circuit court erred in issuing an order for
Wilkie and M.M.W. to appear and testify in Minnesota criminal