Application of Trevithick
| Decision Date | 18 November 1964 |
| Docket Number | No. 10171,10171 |
| Citation | 131 N.W.2d 440,81 S.D. 121 |
| Parties | Application of Thomas W. TREVITHICK for a writ of habeas corpus. |
| Court | South Dakota Supreme Court |
Davenport, Evans, Hurwitz & Smith, and Carleton R. Hoy, Sioux Falls, for appellant.
Frank L. Farrar, Atty. Gen., Walter Weygint, Asst. Atty. Gen., Pierre, J. A. Lammers, State's Atty., Madison, and Roger A. Schiager, Deputy State's Atty., Sioux Falls, for respondent.
Petitioner was charged with the crime of kidnapping. He defended himself and was convicted. He now seeks release from the State Penitentiary in this habeas corpus proceeding claiming a denial of due process of law in violation of both the State and Federal Constitutions. The question presented is whether petitioner waived his right of counsel.
In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the United States Supreme Court expressly overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, and held the Sixth Amendment right of an accused, in all criminal prosecutions, to have assistance of counsel, extended to and was obligatory upon the states through the Due Process Clause of the Fourteenth Amendment. See Anno. 9 L.Ed.2d 1260. However, as pointed out in the recent case of State v. Erickson, S.D., 129 N.W.2d 712, the decision in Gideon v. Wainwright currently has little impact on criminal procedures in this state as South Dakota has long recognized and honored an accused's constitutional and statutory right to counsel.
Although right to counsel is fundamental in nature and guaranteed by both State and Federal Constitutions it, nevertheless, is a personal right which may be waived. State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130. Neither constitution contains an inexorable command that every accused have the assistance of counsel in every case, State ex rel. Baker v. Jameson, 72 S.D. 638, 38 N.W.2d 441, and it is not within the province of a court to require an unwilling defendant to be represented by unwanted counsel. State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121. In the absence of unusual circumstances an accused who is sui juris and mentally competent has the right to defend himself in a criminal case without aid of counsel. See Anno. 77 A.L.R.2d 1233. To be binding, however, waiver of counsel must be made voluntarily and intelligently by a competent mind, State v. Haas, 69 S.D. 204, 8 N.W.2d 569, or as indicated in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, it must be 'intelligently and understandingly' done. The determination of whether there has been a valid waiver depends upon the particular facts and circumstances surrounding each case, including the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.
It appears from the record in this case that after petitioner was apprehended in Sioux Falls he was returned to Madison and taken before a Justice of the Peace on November 27, 1961. The Justice Docket shows 'the complaint was read to the defendant and he was advised of his rights under the statute.' Petitioner waived a preliminary hearing and was bound over to circuit court to answer for the crime of kidnapping. On February 26, 1962, an information was filed in the Circuit Court of Lake County where petitioner was arraigned and interrogated with respect to counsel as follows:
On March 2, 1962, the defendant appeared before the court and the following record was made:
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United States ex rel. Miner v. Erickson
...78 S.D. 431, 104 N.W.2d 45 (1960); State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715 (1964); In re Trevithick, 81 S.D. 121, 131 N.W.2d 440, 441 (1964); State ex rel. Pekarek v. Erickson, 155 N.W.2d 313, 314 (S.D.1967); State v. Buffalo Chief, 155 N.W.2d 914, 917 n. 1 (S.D.19......
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Application of Trevithick
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