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In re Issuance of A Summons Compelling an Essential Witness to Appear and Testify In State of Minnesota

Supreme Court of South Dakota

February 14, 2018

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

         APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT MOODY COUNTY, SOUTH DAKOTA THE HONORABLE PATRICK T. PARDY Judge

          JASON UNGER Flandreau, South Dakota Attorney for Appellants, M.M.W. & William Joseph Wilkie.

          MARTY J. JACKLEY Attorney General CRAIG M. EICHSTADT Assistant Attorney General Pierre, South Dakota Attorneys for Appellee, State of South Dakota.

          JENSEN, JUSTICE

         [¶1.] 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.

         Background

         [¶2.] 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.

         [¶3.] 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.

         [¶4.] 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[1] and SDCL 23A-14-16, [2] 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.

         [¶5.] 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.

         [¶6.] 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.

         [¶7.] 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 court.

         Analysis

         Ju ...


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