#26388-a-LSW
2013 S.D. 36
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
DONALD LOREN ANDERSON, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
DAVISON COUNTY, SOUTH DAKOTA
****
THE HONORABLE SEAN M. O’BRIEN
Retired Judge
****
MARTY J. JACKLEY
Attorney General
BETHANNA M. FEIST
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
DOUGLAS N. PAPENDICK of
Stiles & Papendick
Mitchell, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON FEBRUARY 12, 2013
OPINION FILED 05/08/13
#26388
WILBUR, Justice
[¶1.] Donald Anderson was convicted by a jury of sexual contact with a child
under the age of sixteen, in violation of SDCL 22-22-7. Anderson appeals arguing
that his arraignment was inadequate. Additionally, he appeals the trial court’s
denial of his motion for a new trial. We affirm.
FACTS AND PROCEDURAL HISTORY
[¶2.] On May 12, 2011, Anderson was arrested on the charge of sexual
contact with a child under the age of sixteen, in violation of SDCL 22-22-7. As
indicated by an initial appearance form, Anderson appeared on May 13, 2011,
before a clerk magistrate where he was advised of his rights. The initial
appearance form indicated that Anderson was advised of the charge against him;
the maximum penalty; the right to remain silent; the right to defend himself in
person or through an attorney; the right to counsel; the right to a speedy trial; the
presumption of innocence; and the State’s burden of proof. The form asked, “Do you
understand the rights that have just been explained to you?” and the clerk
magistrate marked “Yes” after Anderson confirmed he understood his rights. The
clerk magistrate signed the form. On June 10, 2011, a grand jury indicted
Anderson on the same offense.
[¶3.] On July 12, 2011, Anderson filed a “Written Arraignment and Plea of
Not Guilty” form (written arraignment form) with the trial court. The written
arraignment form contained the name, address, and phone number for counsel
-1-
#26388
representing Anderson; 1 Anderson’s age, birthdate, educational background, and
personal contact information; an acknowledgement of Anderson’s proficiency in the
English language; an advisement of the right to an arraignment in open court and a
waiver of that right; a statement that Anderson had received a copy of the
indictment; notice of the crime with which he was charged; an acknowledgement of
his name; an acknowledgment of his plea of not guilty; and a demand for a speedy
trial. Anderson and his counsel signed the document.
[¶4.] A hearing took place on July 12, 2011, concerning Anderson’s written
arraignment form and plea of not guilty. The trial court asked Anderson, who
appeared in person, if he had the opportunity to review the written arraignment
form and whether he had signed the form. Anderson replied affirmatively to both
questions. The trial court then asked Anderson if he wished to plead not guilty.
Anderson again replied affirmatively.
[¶5.] The grand jury amended the indictment on July 22, 2011. Anderson
filed a second written arraignment form containing the same language and answers
as the first written arraignment form. A second arraignment hearing was held on
August 9, 2011, at which Anderson personally appeared. A similar colloquy
between the court and Anderson took place regarding the second written
arraignment form.
[¶6.] A jury trial was held on December 6, 2011. At trial, the 13-year-old
victim testified, without objection, as to the sexual contact incident that occurred on
May 11, 2011. The jury convicted Anderson of sexual contact with a child under the
1. Anderson’s appellate counsel did not represent him at the trial level.
-2-
#26388
age of sixteen, in violation of SDCL 22-22-7. The trial court sentenced Anderson to
10 years in the penitentiary and required him to register as a sex offender.
[¶7.] On February 23, 2012, Anderson filed a motion for a new trial based on
the trial court’s failure to enter a specific finding that the minor victim was a
competent witness. The trial court denied this motion, determining that Anderson
did not object to the competency of the child victim’s testimony at trial.
[¶8.] Anderson appeals the following issues:
1. Whether Anderson’s arraignment was inadequate.
2. Whether the trial court abused its discretion in denying
Anderson’s motion for new trial.
ANALYSIS AND DECISION
[¶9.] 1. Whether Anderson’s arraignment was inadequate.
[¶10.] In citing to SDCL 23A-7-1 (Rule 10) and SDCL 23A-7-4 (Rule 11(c)),
Anderson argues that his arraignment was inadequate. He contends that he was
not arraigned in open court or read the indictment. See SDCL 23A-7-1 (Rule 10).
Anderson further asserts that he was not advised of his Boykin rights. See Boykin
v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969);
Nachtigall v. Erickson, 85 S.D. 122, 126-28, 178 N.W.2d 198, 200-01 (1970)
(applying Boykin to South Dakota). Specifically, he asserts that he should have
been advised of the nature of the charge against him; the maximum possible
penalty provided by law as well as the consequences of being convicted as a sex
offender; the presumption of innocence; the State’s burden of proof; and the
privilege against compulsory self-incrimination.
-3-
#26388
[¶11.] “Appeals asserting an infringement of a constitutional right are
reviewed under the de novo standard of review.” State v. Miller, 2006 S.D. 54, ¶ 11,
717 N.W.2d 614, 618. “A direct appeal from a conviction must be afforded greater
scrutiny than a collateral challenge by habeas corpus action.” Id. “Thus, on a direct
appeal from a conviction the defendant is entitled to all presumptions and
protections possible under our constitution.” Id.
[¶12.] SDCL 23A-7-1 (Rule 10) governs the procedure for arraignments in
South Dakota:
An arraignment shall be conducted in open court, except that an
arraignment for a Class 2 misdemeanor may be conducted in
chambers, and shall consist of reading the indictment,
information, or complaint, as is applicable, to the defendant or
stating to him the substance of the charge and calling on him to
plead thereto.
A defendant must be informed that if the name in the
indictment, information, or complaint is not his true name, he
must then declare his true name or be proceeded against by the
name given in the indictment, information, or complaint. If he
gives no other name, the court may proceed accordingly. If he
alleges that another name is his true name, he shall be
proceeded against pursuant to § 23A-6-20. He shall be given a
copy of the indictment, information, or complaint, as is
applicable, before he is called upon to plead.
“Due process of law . . . does not require the state to adopt any particular form of
procedure [for an arraignment], so long as it appears that the accused has had
sufficient notice of the accusation and an adequate opportunity to defend himself in
the prosecution.” State v. Mitchell, 491 N.W.2d 438, 444 (S.D. 1992) (emphasis
omitted) (quoting State v. Winters, 414 N.W.2d 1, 2 (S.D. 1987)).
[¶13.] “[T]he Due Process Clause safeguards against an involuntary and
unknowing waiver of three important federal rights via a plea of guilty or plea of
-4-
#26388
nolo contendere, 1) the privilege against compulsory self-incrimination, 2) the right
to a speedy trial, and 3) the right to confront one’s accusers.” Miller, 2006 S.D. 54, ¶
14, 717 N.W.2d at 618 (citing Boykin, 395 U.S. at 243, 89 S. Ct. at 1712) (emphasis
added). “To ensure that guilty pleas and pleas of nolo contendere are voluntary and
knowing and to safeguard against violations of a defendant’s right to due process,
Rule 11 of the Federal Rules of Criminal Procedure was enacted.” Id. ¶ 17
(emphasis added). “However, the procedure embodied in Rule 11 is not mandated
by the United States Constitution.” Id. South Dakota’s version of Rule 11 of the
Federal Rules of Criminal Procedure is SDCL 23A-7-4 (Rule 11(c)). See SDCL 23A-
7-4 (Rule 11(c)) (stating “[b]efore accepting a plea of guilty or nolo contendere a
court must . . . ”) (emphasis added). “[T]he advisement of the[ ] rights and penalties
under Rule 11 is applicable only when a defendant intends to enter a plea of guilty
or nolo contendere.” Miller, 2006 S.D. 54, ¶ 17, 717 N.W.2d at 620 (emphasis
added). “A defendant who elects to plead not guilty and proceed to trial is not
provided the same procedural safeguards under Rule 11 as a defendant who pleads
guilty or nolo contendere.” Id.
[¶14.] Initially, we note that SDCL 23A-7-1 (Rule 10) does not explicitly
provide for a written form of arraignment in lieu of arraigning a defendant in open
court. SDCL 23A-7-1 (Rule 10) makes it clear that “[a]n arraignment shall be
conducted in open court[.]” Thus, trial courts are well-advised to conduct formal
arraignments in open court.
[¶15.] Here, however, Anderson had sufficient notice of the charge against
him and an adequate opportunity to defend himself in the prosecution. Anderson,
-5-
#26388
who was represented by counsel, voluntarily waived his right to an open court
arraignment by signing the written arraignment form. 2 And when he submitted his
written arraignment form, Anderson appeared in open court. Additionally, the
written arraignment form stated that Anderson received a copy of the indictment
that charged him with sexual contact with a child under the age of sixteen, in
violation of SDCL 22-22-7. Anderson also acknowledged his name on the
indictment. The written arraignment form stated that Anderson had been advised
of and understood that he may plead guilty, not guilty, or nolo contendere.
Anderson acknowledged he had sufficient time to discuss his case with his attorney
and waived further time to enter a plea. He pleaded not guilty to the charge stated
in the written arraignment form and demanded a speedy trial. Furthermore,
Anderson was not entitled to an advisement of rights under Boykin or under SDCL
23A-7-4 (Rule 11(c)) because he pleaded not guilty and exercised his rights
accordingly. Therefore, because Anderson had sufficient notice of the charge
against him, pleaded not guilty, exercised his rights, and had an adequate
opportunity to defend himself at trial, there was no error.
[¶16.] 2. Whether the trial court abused its discretion in denying
Anderson’s motion for new trial.
[¶17.] Anderson argues that the trial court abused its discretion in denying
Anderson’s motion for a new trial because it failed to enter a specific finding that
2. The written arraignment form, which Anderson completed twice, provided, “I
have been advised by the above-named attorney and understand that I have
a right to arraignment in open court, and I hereby voluntarily waive that
right, choosing instead to sign this Written Arraignment and Plea of Not
Guilty.”
-6-
#26388
the minor victim was a competent witness. We review the denial of a motion for a
new trial under an abuse of discretion standard. State v. Hannemann, 2012 S.D.
79, ¶ 10 n.*, 823 N.W.2d 357, 360 n.*.
[¶18.] Generally, “[e]very person is competent to be a witness except as
otherwise provided in chapters 19-9 to 19-18, inclusive.” SDCL 19-14-1 (Rule 601).
And, “[t]here is no general rule regarding a child’s inherent reliability nor is there
any arbitrary age at which a child is deemed competent to testify.” State v.
Carothers, 2006 S.D. 100, ¶ 12, 724 N.W.2d 610, 616. Further, “[an] objection to a
child’s competency is waived if not raised at the trial.” 2 Wharton’s Criminal
Evidence § 7:16 (15th ed. 2012).
[¶19.] Here, the record demonstrates that the minor victim testified without
objection by Anderson before or during trial. Anderson waited over two months
after trial to make his motion for a new trial on the basis that the trial court failed
to enter a specific finding as to the competency of the minor victim. Further,
neither our statutes nor case law require the trial court to make specific competency
findings unless the competency of the witness is challenged. Because there was no
objection as to the minor victim’s competency as a witness before or during trial, the
trial court was left with the general rule that every person is competent to be a
witness unless otherwise provided by statute. Thus, this issue is waived.
CONCLUSION
[¶20.] The trial court adequately arraigned Anderson. Additionally, because
Anderson did not object to the minor victim’s competency before or during trial, this
issue is waived. We affirm.
-7-
#26388
[¶21.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
SEVERSON, Justices, concur.
-8-