The right of an accused in a criminal action to the assistance of counsel is guaranteed under Article VI, Section 7 of the South Dakota Constitution. This means adequate and effective assistance of counsel. State v. Pieschke, 262 N.W.2d 40 (S.D. 1978); State v. Goode, 84 S.D. 369, 171 N.W.2d 733 (1969). The right follows the Sixth Amendment standards under the United States Constitution.McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
In past examinations of assertions that a defendant was denied a fair trial due to ineffective counsel this court has made it clear that attorneys are presumed competent and that parties alleging incompetence have a heavy burden in establishing ineffective assistance of counsel. State v. McBride, 296 N.W.2d 551 (S.D. 1980); Brim v. State, 290 N.W.2d 680 (S.D. 1980); State v. Pieschke, 262 N.W.2d 40 (S.D. 1978); State v. Roth, 84 S.D. 44, 166 N.W.2d 564 (1969). This court will not second guess the tactical decisions of trial attorneys nor substitute our own theoretical judgment for that of defense attorneys who have dealt with appellants in an attorney-client relationship.
We examine the incompetence issue from the perspective that an attorney is presumed competent and the party alleging incompetency has a heavy burden of establishing inadequate assistance of counsel. State v. Tchida, 347 N.W.2d 338 (S.D. 1984); Grooms v. State, 320 N.W.2d 149 (S.D. 1982); State v. McBride, 296 N.W.2d 551 (S.D. 1980); State v. Pieschke, 262 N.W.2d 40 (S.D. 1978). In making this review it is not our function to second-guess the tactical decisions of the trial attorney.
We examine these contentions from the perspective that an attorney is presumed competent and the party alleging incompetency has a heavy burden of establishing ineffective assistance of counsel. Jibben v. State, 343 N.W.2d 788 (S.D. 1984); Grooms v. State, 320 N.W.2d 149 (S.D. 1982); State v. McBride, 296 N.W.2d 551 (S.D. 1980); State v. Pieschke, 262 N.W.2d 40 (S.D. 1978). The test is whether defense counsel exercised "the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances."
The right to assistance of counsel guaranteed by Article VI, Β§ 7 of the South Dakota Constitution and by the Sixth Amendment to the United States Constitution means adequate and effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Grooms v. State, 320 N.W.2d 149 (S.D. 1982); State v. McBride, 296 N.W.2d 551 (S.D. 1980); State v. Pieschke, 262 N.W.2d 40 (S.D. 1978). In reviewing a claim of ineffective assistance of counsel, we begin with two premises: (1) an attorney is presumed competent, and (2) the party alleging incompetence has a heavy burden in establishing ineffective assistance.
Additionally, the petitioner attempting to show ineffective counsel must also demonstrate that he was prejudiced by the alleged ineffective assistance. State v. Pieschke, 262 N.W.2d 40 (S.D. 1978). 338 N.W.2d at 677 (footnote omitted).
Additionally, the petitioner attempting to show ineffective counsel must also demonstrate that he was prejudiced by the alleged ineffective assistance. State v. Pieschke, 262 N.W.2d 40 (S.D. 1978). The Sixth Amendment to the United States Constitution states, "In all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for this defense.
We begin with two premises in reviewing appellant's contention that he was denied a fair trial due to ineffective counsel: (1) an attorney is presumed competent, and (2) the party alleging incompetence has a heavy burden in establishing ineffective assistance of counsel. State v. McBride, 296 N.W.2d 551 (S.D. 1980); Brim v. State, 290 N.W.2d 680 (S.D. 1980); State v. Pieschke, 262 N.W.2d 40 (S.D. 1978); State v. Roth, 84 S.D. 44, 166 N.W.2d 564 (1969). This court's function is not to second guess the tactical decisions of the trial attorney and we will not substitute our own theoretical judgment for that of the defense counsel who has dealt with appellant in an attorney-client relationship.
[ΒΆ 25.] A defendant's right to counsel "does not contemplate that an accused may take charge of the case after an attorney has been appointed, or dictate its course, or make counsel's educated judgment the pawn of an unreasonable and obdurate malefactor." State v. Pieschke, 262 N.W.2d 40, 46 (S.D. 1978). Moreover, any problems with communication were due to Talarico's refusal to cooperate with his attorney.
Courts that have found the use of restraints necessary for security reasons include: Wilson v. McCarthy, 770 F.2d 1482 (9th Cir. 1985); United States v. Fountain, 768 F.2d 790 (7th Cir. 1985) ; Woods v. State, 846 S.W.2d 186 (Ark.App. 1993); People v. Allen, 42 Cal.3d 1222, 232 Cal.Rptr. 849 (1986); State v. Mills, 789 P.2d 530 (Idaho Ct.App. 1990) ; People v. Robinson, 92 Ill. App.3d 972, 416 N.E.2d 793 (1981); Parker v. State, 567 N.E.2d 105 (Ind.Ct.App. 1991); Commonwealth v. Brown, 305 N.E.2d 830 (Mass. 1973); Commonwealth v. Ladetto, 230 N.E.2d 914 (Mass. 1967); State v. O'Neal, 718 S.W.2d 498 (Mo. 1986); State v. Cleveland, 583 S.W.2d 263 (Mo.Ct.App. 1982); People v. LaBoy, 458 N.Y.S.2d (1983); DeLeon v. State, 758 S.W.2d 621 (Tex.Crim.App. 1988); Payne v. Commonwealth, 357 S.E.2d 500 (Va. 1987).See State v. Pieschke, 262 N.W.2d 40 (S.D. 1978) (defendant failed to make timely request that witnesses not be forced to wear restraints).See People v. Mixon, 502 N.Y.S.2d 299 (1986) (reversal of conviction due to trial judge failing to state on the record its reason for requiring witness be shackled); State v. Simmons, 614 P.2d 1316 (Wash.App. 1980) (reversing pretrial ruling that witnesses be shackled because trial court failed to give reasons for requiring shackles).