State v. Berget , 2014 S.D. 61 ( 2014 )

#26764-a-DG
2014 S.D. 61
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
RODNEY SCOTT BERGET, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE BRADLEY G. ZELL
Judge
****
MARTY J. JACKLEY
Attorney General
PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
JEFF LARSON
Sioux Falls, South Dakota
and
CHERI SCHARFFENBERG of
Olson, Waltner & Scharffenberg
Tea, South Dakota Attorneys for defendant
and appellant.
****
ARGUED ON MAY 27, 2014
OPINION FILED 08/13/14
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GILBERTSON, Chief Justice
[¶1.] A South Dakota circuit court sentenced Rodney Scott Berget to death
for the murder of corrections officer Ronald Johnson, a crime he committed while
incarcerated at the South Dakota State Penitentiary in Sioux Falls. On direct
appeal of that sentence, in State v. Berget (Berget I), this Court determined that the
circuit court may have improperly considered, for sentencing purposes, statements
made by Berget in a psychological evaluation procured to determine his competency
to stand trial. 2013 S.D. 1, ¶¶ 92, 119, 826 N.W.2d 1, 28, 37. We remanded
Berget’s death sentence for the limited purpose of resentencing “without the use of
or consideration of” the psychological evaluation unless Berget opted to call its
author to testify, and otherwise “on the existing record.” Id. ¶¶ 118, 120, 826
N.W.2d at 37. Berget now appeals the circuit court’s amended judgment of
conviction sentencing him to death. We affirm.
Background
[¶2.] The details of Berget’s crime and the procedural posture of his first
appeal are set out in Berget I, 2013 S.D. 1, ¶¶ 2-10, 826 N.W.2d at 8-10. This
appeal concerns the limited remand instructed in Berget I and proceedings
subsequent thereto. The relevant facts are provided below.
[¶3.] In Berget I, this Court affirmed Berget’s death sentence on eleven of
twelve issues. See id. ¶ 121, 826 N.W.2d at 37. The twelfth issue regarded the
circuit court’s potentially improper consideration of aggravating evidence in
rendering Berget’s death sentence. Id. ¶¶ 91-118, 826 N.W.2d at 28-37.
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Specifically, we noted that after the sentencing hearing, 1 when the circuit court
announced its sentence, the court indicated that it had considered Berget’s early
acceptance of responsibility for the murder of Ronald Johnson as mitigation. Id. ¶
92, 826 N.W.2d at 28. However, the circuit court then cited an admission Berget
gave during a psychiatric evaluation, which was contained in a report to determine
Berget’s fitness to stand trial. The evaluation had previously been sealed and was
not admitted as evidence in the sentencing hearing. Id. It contained Berget’s
admission to the psychiatrist, Dr. David Bean, that he pleaded guilty to Johnson’s
murder because he “wish[ed] it would be over.” Id. The circuit court stated that
this admission did not reflect the intentionality that made early acceptance a
mitigating factor. Id. On appeal, we agreed with Berget that the circuit court
might have committed prejudicial error by improperly considering this admission as
aggravating evidence. Id. ¶¶ 116-118, 826 N.W.2d at 36-37.
[¶4.] To address this error, this Court concluded its opinion with
instructions: “Pursuant to SDCL 23A-27A-13(2), we remand to the circuit court for
the purpose of conducting a sentencing without this error. Per this statute, it is to
be conducted on the existing record without reference to, or considering of, the
report of Dr. Bean.” 2 Id. ¶ 120, 826 N.W.2d at 37.
1. The sentencing court took the matter under advisement and pronounced its
initial sentence four days after the completion of the initial sentencing
hearing. There is no dispute Berget had an unrestricted opportunity to
present all mitigation evidence he desired the court to consider at the
sentencing hearing.
2. We also instructed that Berget could “opt[ ] to call Dr. Bean to testify.” Id. ¶
118, 826 N.W.2d at 37. This was the only new evidence—in addition to the
(continued . . .)
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[¶5.] On the day after this Court handed down its opinion and judgment, the
State filed a motion for a hearing consistent with the opinion of this Court. The
State acknowledged in its motion that it would not object to Berget introducing the
psychiatric report “with such supplemental direct and cross-examination testimony
of the psychiatrist as Berget might choose to place on the record.” Berget filed a
petition for rehearing on the appeal, which we subsequently denied by order entered
January 22, 2013.
[¶6.] A month after we handed down our opinion and judgment, Berget sent
a letter to the circuit court, pursuant to SDCL 15-12-21.1, requesting that it
disqualify itself from the remanded proceeding on grounds of judicial bias. In his
affidavit supporting recusal, Berget claimed three instances of bias: (1) the circuit
court had to find against Berget’s assertions of fact at sentencing or it would risk
contradicting its findings of fact and jeopardizing the death sentence in the case of
Berget’s co-defendant, Eric Robert, (2) the Supreme Court had found that the circuit
court committed error in its presentence hearing verdict, and (3) the circuit court
had rendered its sentencing decision “through legal analysis only.” The circuit court
denied Berget’s request for recusal on February 22, 2013. The Presiding Circuit
Judge of the Second Judicial Circuit entered an order on March 8, 2013, denying
Berget’s formal recusal request. The Presiding Judge based the order on Berget’s
waiver of his right to disqualify the circuit court, pursuant to SDCL 15-12-24, by
(. . . continued)
record at the time of sentencing and the arguments of counsel thereon—that
the circuit court could have considered for sentencing purposes on remand.
The transcript of the remand motions hearing indicates the circuit court
repeatedly inquired whether Berget wanted to exercise the option of calling
Dr. Bean to testify. Berget responded in the negative each time.
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him having already “submitted multiple arguments and proofs in support of
motions” to the court prior to his request for recusal.
[¶7.] Berget also filed a demand for a new sentencing hearing to introduce
new evidence. That evidence, allegedly obtainable only after his original
sentencing, showed that “Berget has established a meaningful relationship with his
son, his daughter-in-law, and his two grandchildren,” and that the relationship “has
made a positive impact on the lives of [Berget’s] family, even while [Berget is] in
prison for the rest of his life.” Berget argued, in spite of this Court’s clear directions
on remand, that the circuit court “ha[d] the inherent power to grant a new
[sentencing] hearing” and that his federal constitutional rights required it do so.
[¶8.] The circuit court held a motions hearing on Berget’s demand for a
hearing on April 16, 2013. Berget repeatedly declined the circuit court’s offer to
have Dr. Bean testify. He reasserted his federal constitutional law arguments and
contention that the circuit court had the authority to grant a new sentencing
hearing in the face of contrary remand directions by this Court. Berget further
argued that our remand instructions were improper because we could not rely on
SDCL 23A-27A-13(2) to justify our limited remand for resentencing and that our
directions on remand were otherwise unclear. Finally, Berget reinforced his
argument that his father-son relationship evidence was new and had not been
withheld for dilatory reasons. The circuit court rejected Berget’s arguments by
noting that our instructions on remand were clear, that as a circuit court it was
bound to limit its jurisdiction on remand to those instructions, and that a new
sentencing hearing would violate our directive. The circuit court declined to make a
ruling on Berget’s constitutional arguments because it determined that they were
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outside its limited remand jurisdiction. After considering Berget’s offer of proof—
and without further evidence to consider beyond the evidence, argument and
allocution it considered in Berget’s original sentencing—the circuit court
determined that another sentence hearing would serve no purpose given our
remand instructions, and it orally denied Berget’s demand for a new sentencing
hearing.
[¶9.] The circuit court entered a written order on May 7, 2013, denying
Berget’s motions for a sentencing hearing, to introduce new mitigation evidence,
and to disqualify itself. That same day, the court entered its amended presentence
hearing verdict. Thereafter, both the State and Berget submitted proposed findings
of fact and conclusions of law. After considering the proposed amended findings of
fact and conclusions of law from Berget and the State, and the objections thereto,
the circuit court notified the parties that it would adopt the State’s amended
findings and conclusions in the court’s e-mail of June 7, 2013. The court’s amended
findings of fact and conclusions of law were entered that day. The court entered an
amended judgment of conviction and sentence, and the death warrant, on June 24,
2013. Berget timely appealed. This Court entered an order for stay of execution on
August 7, 2013. 3
3. Because of the limited scope of remand and the clarity of the issues presented
by both parties, the Court originally anticipated considering this appeal on
the written arguments of counsel and without oral argument during its April
2014 Term. That determination is normally at the discretion of the Court.
See SDCL 15-26A-82. However, we received notice that the Legislature
placed an additional procedural requirement on the Court in cases where a
circuit court imposes capital punishment: “Both the defendant and the state
shall have the right . . . to present oral argument to the court.” SDCL 23A-
(continued . . .)
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Analysis
[¶10.] Berget now raises three issues in appealing his resentence on remand.
Berget’s first and second arguments derive from the circuit court’s denial of Berget’s
demand for a new sentencing hearing. He argues the court erred (1) by failing to
consider his newly discovered mitigation evidence in reimposing his death sentence
and (2) by preventing him from being present and being able to allocute when it
reimposed its sentence. Berget’s third argument is that the circuit court erred by
refusing to recuse itself from resentencing. In addition to Berget’s issues, SDCL
23A-27A-12 requires that this Court make three determinations whenever a circuit
court imposes the death penalty, specifically:
(1) Whether the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary
factor; and
(2) Whether the evidence supports the jury’s or judge’s
finding of a statutory aggravating circumstance as
enumerated in § 23A-27A-1; and
(3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
Id. 4
[¶11.] 1. Whether the circuit court was required to consider
Berget’s new mitigation evidence in its judgment upon
limited remand.
(. . . continued)
27A-11. Because Berget exercised that right, we heard oral argument in this
matter during the May 2014 Term.
4. Although these issues were addressed in the prior direct appeal, and SDCL
23A-27A-12 is silent as to whether they must be addressed on appeal of a
limited resentencing, we nevertheless address these questions after
analyzing the errors Berget advances on this appeal.
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[¶12.] As noted above, Berget made an offer of proof at the remand motions
hearing regarding the nature and scope of the alleged newly discovered mitigation
evidence of Berget’s positive relationship with his son and his son’s family. Berget
faults the circuit court’s exclusion of this evidence from its sentencing deliberation
by advancing two theories. First, Berget challenges both the “clarity” of this Court’s
instructions for a limited remand for resentencing in Berget I, 2013 S.D. 1, ¶¶ 118,
120, 826 N.W.2d at 37, and the statutory authority that we relied on, in part, to so
limit the scope of the limited resentencing, id. ¶ 120 (citing SDCL 23A-27A-13(2)).
Second, Berget asserts that even if there was statutory authority to support limiting
the scope of remand, that limitation on the admission of his new mitigation
evidence violated his Eighth and Fourteenth Amendment rights.
[¶13.] Upon review, “‘[a] [circuit] court’s evidentiary rulings are presumed
correct and will not be reversed unless there is a clear abuse of discretion.’” Wilcox
v. Vermeulen, 2010 S.D. 29, ¶ 7, 781 N.W.2d 464, 467 (quoting Thompson v.
Mehlhaff, 2005 S.D. 69, ¶ 21, 698 N.W.2d 512, 519-20). An abuse of discretion
occurs when the circuit court exercises its discretion “‘to an end or purpose not
justified by, and clearly against reason and evidence.’” St. John v. Peterson, 2011
S.D. 58, ¶ 10, 804 N.W.2d 71, 74 (quoting Mousseau v. Schwartz, 2008 S.D. 86, ¶ 10,
756 N.W.2d 345, 350). This Court, in turn, will not overturn the circuit court’s
abuse of discretion unless that “error is ‘demonstrated . . . [and] shown to be
prejudicial error.’” State v. Smith, 1999 S.D. 83, ¶ 39, 599 N.W.2d 344, 353
(alteration in original) (quoting State v. Spiry, 1996 S.D. 14, ¶ 11, 543 N.W.2d 260,
263). We, however, review de novo the circuit court’s application of the law
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underlying the circuit court’s exercise of discretion. See State v. Rolfe, 2013 S.D. 2,
¶ 15, 825 N.W.2d 901, 905.
[¶14.] a. This Court’s authority to direct a limited
resentencing upon remand.
[¶15.] Berget argues this Court’s remand instructions “somewhat perplexed”
the circuit court. Berget attests that this “confusion is understandable” because the
statute cited by the Court, SDCL 23A-27A-13(2), as additional authority for its
limited resentencing instruction, was not proper authority on that point. Instead,
noting the language of the statute, Berget believes this provision only authorizes a
limited resentencing when the Court remands a death sentence for proportionality
issues. Because this Court in Berget I affirmed each of the proportionality issues
therein argued by Berget, 2013 S.D. 1, ¶¶ 18-31, 826 N.W.2d at 11-14, he contends
that our limited remand and the subsequent limited resentencing violated state
law.
[¶16.] First, regarding Berget’s assertion of “confusion”—nowhere in the
transcript of the motions hearing or elsewhere on the record did the circuit court
express confusion with this Court’s instructions. As the hearing transcript
indicates, the court restated our directions, noted their clarity, and in the face of
Berget’s constitutional assertions, adhered to them. Only Berget’s oral argument
asserted any “confusion,” and did so as the basis of argument.
[¶17.] Whether or not this Court misconstrued SDCL 23A-27A-13 in citing it
as additional authority for its limited remand instructions is immaterial. This
Court has general statutory and constitutional authority to mandate the scope of
review on limited remand. As we recently noted in State v. Piper (Piper III), 2014
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S.D. 2, ¶ 9, 842 N.W.2d 338, 342, both SDCL 15-30-14 and 15-30-11 require the
lower court to enforce our explicit instructions on remand. “‘When the scope of
remand is limited, the entire case is not reopened, but rather, the lower tribunal is
only authorized to carry out the appellate court’s mandate.’” Piper III, 2014 S.D. 2,
¶ 11, 842 N.W.2d at 343 (quoting In re Conditional Use Permit Granted to Van
Zanten, 1999 S.D. 79, ¶ 13, 598 N.W.2d 861, 864).
[¶18.] Article V of the South Dakota Constitution requires this deference and
clear adherence to this Court’s remand instruction to constitutionally function.
Otherwise, each circuit court would become a supreme court unto itself. See Piper
III, 2014 S.D. 2, ¶ 10, 842 N.W.2d at 343 (“If the circuit court’s original jurisdiction
could spontaneously resurrect on remittal, the defined roles of our tiered judicial
system . . . and the judicial certainty and efficiency they foster would be nullified.”).
[¶19.] Given this binding authority, we conclude this Court had the ability
pursuant to state constitutional and statutory law to direct a limited resentencing
in Berget I and the circuit court was to follow, and did follow, our directions in
accordance with that authority.
[¶20.] b. The federal constitutionality of the limited
resentencing.
[¶21.] Berget contends the Eighth and Fourteenth Amendments nevertheless
override the Court’s authority to limit resentencing to exclude newly discovered
mitigation evidence. Because the Court’s authority to instruct a limited
resentencing in Berget I was derived from Article V of our state constitution and
from statute, Berget’s federal constitutional arguments are in essence challenges to
the constitutionality of these provisions as applied. His burden is thus:
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There is a strong presumption that the laws enacted by the
legislature are constitutional and the presumption is rebutted
only when it clearly, palpably and plainly appears that the
statute violates a provision of the constitution. Further, the
party challenging the constitutionality of a statute bears the
burden of proving beyond a reasonable doubt that the statute
violates a state or federal constitutional provision.
Vilhauer v. Horsemens’ Sports, Inc., 1999 S.D. 93, ¶ 16, 598 N.W.2d 525, 528
(quoting Green v. Siegel, Barnett & Schutz, 1996 S.D. 146, ¶ 7, 557 N.W.2d 396,
398). “‘A defendant cannot claim that a statute is unconstitutional in some of its
reaches if it is constitutional as applied to him.’” State v. Jensen, 2003 S.D. 55, ¶ 13,
662 N.W.2d 643, 648 (quoting City of Pierre v. Russell, 89 S.D. 70, 74, 228 N.W.2d
338, 341 (1975)). Berget, therefore, must establish beyond a reasonable doubt that
the narrow scope of our limited remand violated the United States Constitution.
We review this constitutional contention de novo. See Green, 1996 S.D. 146, ¶ 7,
557 N.W.2d at 398 (citing Kyllo v. Panzer, 535 N.W.2d 896, 897 (S.D. 1995)).
[¶22.] A proper analysis of Berget’s assertion of error requires a summary of
Supreme Court case law on the evolution of capital sentencing rights. The roots of
capital “mitigation evidence” are found in the Supreme Court case that
reestablished the death penalty as viable under the Eighth Amendment, Gregg v.
Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). The Court in Gregg
clarified that the prior case, which effectively abolished the death penalty
nationwide, Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346
(1972), did not hold that the death penalty was a per se violation of the Eighth
Amendment. 428 U.S. at 188, 96 S. Ct. at 2932. Instead, “Furman held that [the
death penalty] could not be imposed under sentencing procedures that created a
substantial risk that it would be inflicted in an arbitrary and capricious manner.”
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Id. To prevent this, the Court began by applying the common precept of sentencing
that in mitigation or aggravation, “‘justice generally requires . . . that there be
taken into account the circumstances of the offense together with the character and
propensities of the offender.’” Id. at 189, 96 S. Ct. at 2932 (quoting Pennsylvania ex
rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S. Ct. 59, 61, 82 L. Ed. 43 (1937)). The
Court then acknowledged that much of this evidence, although relevant for
sentencing purposes, would be properly excluded as prejudicial or irrelevant on the
question of guilt. Id. at 190, 96 S. Ct. at 2933. Because a jury “cannot be expected
to consider certain evidence before it on one issue, but not another,” id. at 190 n.40,
96 S. Ct. at 2933 n.40 (citations omitted), the Court suggested solving the challenge
through a bifurcated trial, wherein a determination of guilt occurs first, and then, if
the defendant is found guilty, a determination of whether a death sentence will
issue, see id. at 190-92, 96 S. Ct. at 2933-34.
[¶23.] Although Gregg provided a starting point on the definition of
admissible mitigation evidence, its common sentencing definition was soon
broadened. Because of the severity of the death penalty, a plurality of the United
States Supreme Court determined “the Eighth and Fourteenth Amendments
require that the sentencer, in all but the rarest kind of capital case, not be
precluded from considering, as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” See Lockett v. Ohio, 438 U.S.
586, 604, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 (1978) (second emphasis added)
(footnote omitted). The sentencing authority’s broad consideration of defendant-
specific characteristics was viewed as a bulwark against the arbitrary and
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capricious use of the death penalty and ensured that “the death penalty would be
imposed in a more consistent and rational manner.” Id. at 601, 98 S. Ct. at 2963
(citation omitted). Such liberality achieved this consistency by providing a
“meaningful basis for distinguishing the . . . cases in which [the death penalty] is
imposed from . . . the many cases in which it is not.” Id. (citing Gregg, 428 U.S. at
188, 96 S. Ct. at 2932). That plurality holding became the majority position in
Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). “By
holding that the sentence in capital cases must be permitted to consider any
relevant mitigating factor, the rule in Lockett recognizes that a consistency
produced by ignoring individual differences is a false consistency.” Id. at 112, 102
S. Ct. at 875 (adopting the plurality opinion in Lockett). Accordingly, at sentencing,
“virtually no limits are placed on the relevant mitigating evidence a capital
defendant may introduce concerning his own circumstances.” See Payne v.
Tennessee, 501 U.S. 808, 822, 111 S. Ct. 2597, 2607, 115 L. Ed. 2d 720 (1991).
[¶24.] The sentencing authority must then consider all of the relevant
mitigating evidence admitted at sentencing. “Just as the State may not by statute
preclude the sentencer from considering any mitigating factor, neither may the
sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.”
Eddings, 455 U.S. at 113-14, 102 S. Ct. at 876-77. “The sentencer, and the Court of
Criminal Appeals on review, may determine the weight to be given relevant
mitigating evidence. But they may not give it no weight by excluding such evidence
from their consideration.” Id. at 114-15, 102 S. Ct. at 877.
[¶25.] Berget argues this broad scope of relevant mitigating evidence requires
that we adopt his position. However, the concern in this case is narrower and
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regards a matter outside the bifurcated trial procedure established in Gregg to
which the requirements of a broad scope of relevant mitigating evidence and their
mandated consideration by the sentencing authority (Lockett and Eddings)
explicitly apply. The issue, rather, is whether the Eighth and Fourteenth
Amendments prohibit this Court from narrowing the circuit court’s jurisdiction,
upon a limited remand for resentencing in a capital case, such that the court could
not consider relevant evidence for mitigation purposes discoverable only after
remand. 5
[¶26.] Berget relies on Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669,
90 L. Ed. 2d 1, (1986), which held that new, relevant mitigating evidence may be
introduced at least through a capital defendant’s period of incarceration while
awaiting trial. In that case, Skipper and his former wife testified during the
sentencing phase that he had “conducted himself well during the 7½ months he
spent in jail between his arrest and trial” and had earned his high school diploma.
Id. at 3, 106 S. Ct. at 1670. He asserted that this behavior was indicative of his
future conduct in custody and that his sentence should therefore have been reduced
to life imprisonment. Id. In further support, Skipper sought to introduce testimony
from jailers and a “regular visitor” to the jail that he had “made a good adjustment,”
indicating his future adaptability to prison life. Id. The sentencing court ruled that
such evidence was irrelevant and therefore inadmissible, citing state case law that a
defendant’s ability to adjust to life behind bars could not be relevant to capital
5. The circuit court’s findings of fact and conclusions of law entered after its
original sentencing indicate that at that time it was known to Berget and the
circuit court that Berget had a son.
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sentencing. Id. The sentencing jury subsequently sentenced Skipper to death. Id.
On appeal, Skipper asserted that the sentencing court had committed constitutional
error, pursuant to Lockett and Eddings, by excluding the relevant, mitigating
testimony of the jailers and the visitor. Id.
[¶27.] The Supreme Court agreed with Skipper. While the Court admitted
that “any such inferences” arising out of the “good adjustment” testimony “would
not relate specifically to petitioner’s culpability for the crime he committed,” the
Court found that this testimony nevertheless provided mitigation inferences “in the
sense that [the inferences] might serve ‘as a basis for a sentence less than death.’”
Id. at 4-5, 106 S. Ct. at 1671 (quoting Lockett, 438 U.S. at 604, 98 S. Ct. at 2964).
The Court implied that this “basis for a sentence less than death” arose out of its
previous holding that “evidence that a defendant would in the future pose a danger
to the community if he were not executed may be treated as establishing an
‘aggravating factor’ for purposes of capital sentencing.” Id. (citing Jurek v. Texas,
428 U.S. 262, 275, 96 S. Ct. 2950, 2958, 49 L. Ed. 2d 929 (1976) (opinion of Stewart,
Powell, and Stevens, JJ.)). The Court reasoned that if evidence of a future danger
could always be admissible as aggravating evidence, then evidence indicating the
inverse—that a defendant “would not pose a danger if spared (but incarcerated)”—
was applicable to death penalty cases generally as a “potentially mitigating” factor.
Id. at 5. As such a factor, it “[could] not be excluded from the sentencer’s
consideration.” Id. The Court concluded, “‘any sentencing authority must predict a
convicted person’s probable future conduct when it engages in the process of
determining what punishment to impose.’” Id. at 5, 106 S. Ct. at 1671 (quoting
Jurek, 428 U.S. at 275, 96 S. Ct. at 2958). Because the sentencing court excluded
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the future conduct testimony of the jailers and visitor from the sentencing jury, the
Court determined the sentencing court had violated Skipper’s Eighth Amendment
right to present all mitigating evidence. See id. at 4, 106 S. Ct. at 1671.
[¶28.] Evidence of Berget’s newfound relationship with his son and his son’s
family conceivably could have been relevant evidence that Berget would not pose a
danger in prison if spared, particularly under Lockett’s broad instruction that “any
aspect of [the] defendant’s character . . . that the defendant proffers as a basis for a
sentence less than death” can be mitigating information. 438 U.S. at 604, 98 S. Ct.
at 2964-65. Taking Skipper and Lockett together, then, Berget’s relationship may
have been evidence the court could not have excluded from its consideration if
Berget offered it at any point prior to completion of the sentencing portion of the
trial. See Skipper, 476 U.S. at 5, 106 S. Ct. at 1671.
[¶29.] Berget’s constitutional argument, however, relies on extending the
window for unconstitutional exclusion of new mitigation evidence further, to include
mitigating information discoverable only after the original sentencing and offered
before resentencing. 6 To find authority supporting this proposition, Berget relies on
the Skipper Court’s instructions on remand. See id. at 8, 106 S. Ct. at 1673 (“The
resulting death sentence cannot stand, although the State is of course not precluded
from again seeking to impose the death sentence, provided that it does so through a
new sentencing hearing at which petitioner is permitted to present any and all
6. Berget does not dispute the State’s assertion, citing State v. Robert, 2012 S.D.
60, ¶ 20, 820 N.W.2d 136, 143 (citing Schriro v. Landrigan, 550 U.S. 465,
479, 127 S. Ct. 1933, 1942, 167 L. Ed. 2d 836 (2007)), that mitigation
information reasonably discoverable before sentencing is waived when a
capital defendant fails to present the evidence at sentencing.
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relevant mitigating evidence that is available.” (Emphasies added.)). The Court,
however, did not clarify whether it meant “all relevant mitigation evidence that is
available” on the existing record at the original sentencing or on the record that
could be developed up to resentencing.
[¶30.] Regardless of the Court’s intent, that instruction is not appropriate
authority to support Berget’s claim since his case is readily distinguishable. As
with all authoritative case precedent, the result in Skipper and “those portions of
the opinion necessary to that result” are binding. See Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 67, 116 S. Ct. 1114, 1129, 134 L. Ed. 2d 252 (1996). The
Skipper Court’s instruction of a new sentencing hearing was the necessary result of
the sentencing court’s error in excluding mitigation evidence from a sentencing
jury’s consideration, thereby tainting the subsequent sentencing hearing. A new,
full sentencing hearing was “necessary” because it would be required to probe the
value of the wrongly excluded testimony, since its contribution to the sentencing
authority’s weighing 7 of mitigating and aggravating factors was otherwise
undefined. Consequently, the sentencing authority could have given the wrongly
excluded mitigating factor such weight that it alone was grounds for a life sentence.
7. Our use of the word “weighing” in this context does not contradict the fact
that South Dakota is a non-weighing state. See State v. Rhines (Rhines II),
2000 S.D. 19, ¶¶ 52-53, 608 N.W.2d 303, 314. In describing the distinction
between weighing and non-weighing states, the Supreme Court has noted,
“[t]he terminology is somewhat misleading, since we have held that in all
capital cases the sentencer must be allowed to weigh the facts and
circumstances that arguably justify a death sentence against the defendant’s
mitigating evidence.” Brown v. Sanders, 546 U.S. 212, 216-17, 126 S. Ct. 884,
889, 163 L. Ed. 2d 723 (2006) (citing Eddings, 455 U.S. at 110, 102 S. Ct. at
874)
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[¶31.] In Berget’s case, the apparent error was very different. Unlike Lockett,
Eddings and Skipper, the circuit court here did not improperly exclude evidence
from the sentencing hearing, but only improperly considered evidence (if it did so at
all) after the hearing was completed, during its deliberation. See Berget I, 2013 S.D.
1, ¶ 119, 826 N.W.2d at 37. The sentencing hearing itself was not tainted because
Berget exercised the unrestricted opportunity to introduce all mitigating evidence
he desired. 8 Furthermore, once the Dr. Bean report was excluded, the remaining
8. Berget asserts that because the court received Dr. Bean’s report before the
sentencing hearing, its mere existence in the record in that phase of the
proceeding—albeit sealed throughout the hearing—was sufficient to taint the
entire sentencing phase. Objectively, however, there was no indication in the
hearing transcript or elsewhere that the court improperly considered Berget’s
admission to Dr. Bean or unsealed the report until its deliberation in drafting
its presentence hearing verdict. The report was not offered into evidence or
even mentioned at the sentencing hearing. See Berget I, 2013 S.D. 1, ¶ 94,
826 N.W.2d at 29. In order for the Court to adopt Berget’s argument, we
would need to speculate on the mental processes of the court, which we will
not do.
If the court erred, then, it did so by improper weighing of mitigation evidence.
See Berget I, 2013 S.D. 1, ¶ 118, 826 N.W.2d at 37. That error is an order of
magnitude lower than if the court had excluded mitigating evidence from its
consideration. The constitution clearly prohibits exclusion of relevant,
mitigating evidence obtained before sentencing in a capital decision. See
Lockett, 438 U.S. at 604, 98 S. Ct. at 2964-65. The necessary remedy for
violating this prohibition is remand to the circuit court for its consideration of
all relevant mitigating evidence. See Eddings, 455 U.S. at 117, 102 S. Ct. at
878. The same cannot be said for the improper consideration of aggravating
evidence. The constitution, in fact, permits an appellate court to reweigh the
proper evidence and impose the death penalty in response to an error in the
trial court’s weighing of the evidence. See Clemons v. Mississippi, 494 U.S.
738, 745, 110 S. Ct. 1441, 1446, 108 L. Ed. 2d 725 (1990); Spaziano v.
Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984) (approving a
state appellate court’s affirmance of a death conviction by reweighing the
aggravating and mitigating evidence after that court’s determination that an
aggravating circumstance was improperly submitted to the factfinder). This
is particularly true in non-weighing states. See Rhines II, 2000 S.D. 19, ¶ 54,
608 N.W.2d at 315 (quoting Stringer v. Black, 503 U.S. 222, 231-32, 112 S.
(continued . . .)
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evidence and factors in mitigation and aggravation remained unchanged from those
considered by the circuit court in the initial sentencing hearing. Therefore, we
determined that a limited resentencing on the prior record—that merely struck the
offensive evidence or permitted its elaboration by Berget through Dr. Bean—would
be sufficient to correct this error on remand. 9 In directing a limited remand, we
(. . . continued)
Ct. 1130, 1137, 117 L. Ed. 2d 367 (1992)) (“When the weighing process itself
has been skewed, . . . harmless-error analysis or reweighing at the trial or
appellate level suffices to guarantee that the defendant received an
individualized sentence.”). That authority is further described by the
Supreme Court:
If a person sentenced to death in fact killed, attempted to kill, or
intended to kill, the Eighth Amendment itself is not violated by
his or her execution regardless of who makes the determination
of the requisite culpability; by the same token, if a person
sentenced to death lacks the requisite culpability; the Eighth
Amendment violation can be adequately remedied by any court
that has the power to find the facts and vacate the sentence.
Cabana v. Bullock, 474 U.S. 376, 386, 106 S. Ct. 689, 697, 88 L. Ed. 2d 704
(1986), abrogated on other grounds by Pope v. Illinois, 481 U.S. 497, 107 S.
Ct. 1918, 95 L. Ed. 2d 439 (1987).
9. In the past, this Court has not hesitated to require a full sentencing hearing
on remand in a death penalty case when the nature of the error warranted
that outcome. For instance, in Piper II, 2009 S.D. 66, ¶ 21, 771 N.W.2d at
360, we vacated Piper’s death sentence and remanded the matter “for a new
sentencing proceeding” because Piper had not validly waived his
constitutional right to a jury in the sentencing phase. The constitutional
error in Piper II occurred before the sentencing hearing, and the nature of the
error affected the entire sentencing proceeding. In contrast, the error
prompting Berget’s limited resentencing occurred after the sentence hearing,
and did not taint the hearing. Again, only the circuit court’s possible
consideration of improper aggravating evidence may have needed correction,
requiring a limited remand, if any. See Clemons, 494 U.S. at 745, 110 S. Ct.
at 1446.
That potential error, and the limited remand we instructed to address it in
Berget I, stands in stark contrast to another case involving a remand for
(continued . . .)
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presume the circuit courts “know the law and [will] apply it in making [their]
decisions.” State v. Page, 2006 S.D. 2, ¶ 27, 709 N.W.2d 739, 754 (quoting Walton v.
Arizona, 497 U.S. 639, 653, 110 S. Ct. 3047, 3057, 111 L. Ed. 2d 511 (1990)). “We
have recognized [ ] that South Dakota law imposes no specific standard of proof in
regard to mitigation.” Id. ¶ 50, 709 N.W.2d at 758 (citing Rhines II, 2000 S.D. 19, ¶
39 n.9, 608 N.W.2d at 312 n.9). The limited resentencing consequently reflected our
preference, in this instance, not to reweigh the aggravating and mitigating evidence
without the offending concern ourselves, but to have the sentencing authority
(. . . continued)
sentencing, State v. Bult (Bult IV), 1996 S.D. 20, 544 N.W.2d 214. Bult IV
arose out of our repeated remands to the circuit court, after the court
continued to impose life sentences without the possibility of parole and in
spite of our repeat conclusions that that sentence constituted cruel and
unusual punishment. See State v. Bult (Bult III), 529 N.W.2d 197 (S.D.
1995); Bult v. Leapley (Bult II), 507 N.W.2d 325 (S.D. 1993). In Bult IV, we
established that “the court had an obligation” on remand from Bult III to
update the relevant evidence necessary to fashion a sentence, see Bult IV,
1996 S.D. 20, ¶ 12, 544 N.W.2d at 217, which included mitigating evidence.
However, Bult IV is clearly distinguishable from the present case. In Bult
III, we did not instruct a limited remand as we did in Berget I, but permitted
a full sentence hearing on remand because the nature of the error warranted
that type of remand. See Bult III, 529 N.W.2d at 200. Our opinion here does
not erode Bult IV’’s conclusion that at a full sentencing hearing on remand,
the defendant is entitled to the rights available at his or her original
sentencing. See 1996 S.D. 20, ¶¶ 8-14, 544 N.W.2d at 216-17. What Bult IV
did not do was establish a right to update one’s mitigation evidence on any
remand, or when directly contradicted by our remand instructions as Berget
seeks here. Bult IV, in fact, stands for the supremacy of our remand
authority, which we reassert here.
Multiple state supreme courts have affirmed similar limited remands of
capital sentences. See, e.g., Ex parte Slaton, 680 So. 2d 909, 922-23 (Ala.
1996), cert. denied, 519 U.S. 1079 (1997); People v. Lewis, 91 P.3d 928, 937
(Cal. 2004), cert. denied, 543 U.S. 1178 (2005); Crump v. State, 654 So. 2d
545, 548 (Fla. 1995) (per curiam).
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efficiently correct the limited error. Because of these substantial differences,
Skipper does not control Berget’s argument. 10
[¶32.] The Supreme Court has not determined, in Skipper or otherwise, that
a capital defendant has a categorical constitutional right to introduce new
mitigation evidence discovered after a sentencing hearing in which the defendant
was given the opportunity to present all mitigation evidence he desired. It has also
not determined whether a remand for a limited resentencing in a capital case that
effectively excludes such newly discovered mitigation evidence is constitutionally
invalid. On both issues, lower courts have attempted to fill that void. Berget and
the State each rely on different authorities reflecting a split in opinion.
[¶33.] Berget contends Davis v. Coyle (Davis V), 475 F.3d 761 (6th Cir. 2007),
provides persuasive authority. On an appeal of a denial of a petition for writ of
habeas corpus, Davis sought to challenge his Ohio death sentence. The Ohio
Supreme Court had affirmed Davis’s convictions but vacated his death sentence
because, as with Berget I, the sentencing authority (a three-judge panel) may have
considered improper aggravating factors in its sentence. Id. at 763. The sentencing
court, on remand for “a new sentencing trial” as instructed by the appellate court,
considered only the record of the trial and first sentencing proceeding. The court
refused to consider Davis’s motion to withdraw his jury waiver and to introduce new
mitigation testimony concerning his post-prison behavior and updated psychological
profile. Id. at 769. The Ohio Court of Appeals affirmed the court’s resentencing,
10. On a petition for rehearing in response to this Court’s opinion on direct
appeal, Berget offered this same argument, citing Skipper, to cast doubt on
the propriety of this Court’s limited remand. Thus, we have had two
occasions to analyze this argument.
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finding that “it is basic law that a reversal and remand to the trial court for further
proceedings has the effect of reinstating the cause in the trial court in status quo
ante.” Id. at 770 (quoting State v. Davis (Davis III), No. CA89-09-123, 1990 WL
165137, *2 (Ohio Ct. App. Oct. 29, 1990)). The appeals court further noted that
because the error requiring remand “‘occurred at the deliberative state of the
proceedings, after the evidence had been submitted to the court,’” the sentencing
court need not consider additional evidence. Id. The Ohio Supreme Court affirmed
on slightly different grounds, finding that unlike Skipper, Davis had the
opportunity to present all then-available mitigation evidence at his first sentencing
trial and was therefore not denied the “individual consideration of relevant
mitigating factors” that was the crux of Skipper, Eddings, and Lockett. Id. (quoting
State v. Davis (Davis IV), 584 N.E.2d 1192, 1195 (Ohio 1992)). Moreover, the Court
found that Skipper only applied to mitigation evidence of a good prison record
between a defendant’s arrest and trial, and not to post-trial prison behavior. Id. at
772 (citing Davis IV, 584 N.E.2d at 1195).
[¶34.] The Sixth Circuit rejected this collected reasoning. The court
primarily drew comparisons between Davis’s case on resentencing and Skipper at
sentencing—both prosecutors introduced evidence or argument of defendants’
dangerousness behind bars and both defendants faced “future dangerousness” as
the “central” aggravating factors in their sentences. Compare Skipper, 476 U.S. at
2, 3, 106 S. Ct. at 1670, with Davis V, 475 F.3d at 771-72. The court determined
that the only way to distinguish the two cases was that Skipper involved sentencing
and Davis’s case involved resentencing. See id. at 773. The court found that to be
an unreasonable basis for denying the application of Skipper to Davis’s case. Id.
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The Davis court also concluded that the Ninth and Eleventh Circuits already
supported the application of Skipper to resentencing. 11 Accordingly, the court found
that only a new, full resentencing hearing could permit the proper weighing of the
improperly excluded new mitigation testimony. Id. at 774-75.
[¶35.] The State, in contrast, cites the Ohio Supreme Court case of State v.
Roberts, 998 N.E.2d 1100 (Ohio 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1554
(2014). In Roberts, on direct appeal, the Court affirmed Roberts’s convictions of
aggravated murder and both aggravated circumstances therein, but remanded for
limited resentencing because the trial judge engaged in ex parte communications
with the prosecutor in drafting the sentencing opinion. Id. at 1104. The Court
11. Only one Ninth Circuit case cited in Davis V actually addresses whether new
mitigation evidence, constitutionally speaking, must be admitted at
resentencing after the defendant was given the opportunity to present all
mitigation evidence at his original sentencing. See 475 F.3d at 782 (Gibbons,
Cir. J., concurring) (noting only one case was so “on point”). That case is
Creech v. Arave, 947 F.2d 873, 881-82 (9th Cir. 1991), overruled on other
grounds, 507 U.S. 463, 113 S. Ct. 1534, 123 L. Ed. 2d 188 (1996). Creech
based its finding that Lockett, Eddings, and Skipper “required that a
defendant be allowed to offer such mitigating evidence at resentencing” on
the Idaho Supreme Court’s ruling in Sivak v. State, 731 P.2d 192, 197 (Idaho
1986). The Ninth Circuit justified its ruling by stating, “Like the Idaho
Supreme Court, we see no rational basis for distinguishing the evidence of a
defendant’s good conduct while awaiting trial and sentencing, and evidence of
a defendant’s good conduct pending review of a death sentence which is
vacated on appeal.” Creech, 947 F.2d at 881-82 (internal citations omitted).
The Idaho Supreme Court’s logic was that if the mitigating relevance of a
capital defendant’s prison behavior is to show “his probable future conduct at
the penitentiary, and hence, the appropriateness of the death penalty as
opposed to a life sentence[,]” then there is no qualitative difference between
pre-sentence and post-sentence prison conduct for mitigation purposes.
Sivak, 731 P.2d at 197-98. If anything, according to the Idaho Supreme
Court, defendant’s behavior in jail awaiting sentencing may be a less reliable
indicator of future conduct in the penitentiary than defendant’s actual
conduct at the penitentiary post-sentence, making this new post-sentence
mitigation evidence more reliable. Id.
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specified on remand that Roberts had a right to allocute and that the trial court was
to reweigh the evidence and “personally prepare an entirely new penalty opinion.”
Id. On remand, Roberts filed a motion to introduce new mitigation evidence,
including prison records, a disability claim file, an affidavit from Roberts’s
psychologist offering a preliminary diagnosis, and a letter about Roberts from her
son. Id. at 1104-05. That motion was denied. Id. at 1105. The trial court heard
Roberts’s allocution and sentenced her to death.
[¶36.] On appeal, the Court rejected Roberts’s assertion that the sentencing
court erred in precluding her from presenting new mitigating evidence on remand.
The Court distinguished Skipper, Lockett, and Eddings as inapplicable because
those cases “involved a situation where the capital sentencer was prohibited, in
some form or another, from considering relevant mitigating evidence at trial. . . .
[N]o relevant mitigating evidence was ever excluded from consideration during
[Roberts’s] penalty phase.’” Id. at 1107 (first two alterations in original) (quoting
State v. Chinn, 709 N.E.2d 1166, 1180-81 (Ohio 1999)). “In other words, neither
Lockett nor any of its progeny required the trial court to reopen the evidence after
an error-free evidentiary hearing had already taken place.” Id. at 1108 (citing
Chinn, 709 N.E.2d at 1180-81). Instead, the error in question occurred after the
evidentiary sentencing proceeding had closed; therefore, “the trial court was
required to proceed on remand from the point at which the error occurred[.]” Id. at
1110 (quoting Chinn, 709 N.E.2d at 1181). Otherwise, the Court would create an
unauthorized “right to update one’s mitigation. Such a right has no clear basis in
Lockett or its progeny.” Id. at 1108.
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[¶37.] Beyond an inability to reconcile Lockett, Eddings, and Skipper to this
alleged right to update one’s mitigation evidence, the Court rejected Roberts’s
argument as causing untenable results. The Court reasoned that:
Establishing a right to update mitigation could result in
arbitrary distinctions between similarly situated capital
defendants. A defendant who had an error-free mitigation
hearing could not update his mitigation—no matter how
compelling the new mitigation that might be available to him—
if the trial judge committed no error after the mitigation hearing
that called for the case to be remanded. But another defendant,
whose mitigation hearing was equally free of error, would have
the right to update his mitigation in the event that a
posthearing sentencing error took place that required a remand.
Id.
[¶38.] Both Davis V and Roberts provide reasoning for whether or not
Supreme Court precedent gives indirect authority that a court, on limited
resentencing, must consider new mitigation evidence. Two key factors, however,
point to Roberts being the persuasive authority.
[¶39.] First, the Sixth Circuit based its decision in Davis V on the salient
aggravating circumstance shared in both Davis and Skipper. “[T]he core of the
analysis in Skipper reflects the Court’s understanding that the right of a defendant
to present evidence of good behavior in prison is particularly relevant when a
prediction of future dangerousness figures centrally in a prosecutor’s plea for
imposition of the death penalty.” Davis V, 475 F.3d at 771 (emphasis added).
“Although there could conceivably be some question about the relevance of such
evidence in the abstract, the record in this case establishes without doubt that [the
newly discovered evidence on remand] was highly relevant to the single aggravating
factor relied upon by the state—that future dangerousness should keep Davis on
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death row.” Id. at 773 (emphasis added). Therefore, according to the court, Skipper
was substantively distinguishable from Davis’s situation “solely on the basis of
timing,” and it applied Skipper to require a full resentencing. See id.
[¶40.] In contrast, the two statutory aggravating circumstances under which
the court sentenced Berget to death did not relate to his future dangerousness per
se, but to the nature of the murder he committed. See SDCL 23A-27A-1(7), (8)
(“[t]he offense was committed against a[n] . . . employee of a corrections institution,”
and “[t]he offense was committed by a person in . . . the lawful custody of . . . a place
of lawful confinement”). These statutory aggravating circumstances do not include
future dangerousness as a consideration. Moreover, the circuit court considered
Berget’s future dangerousness as one among four other non-statutory aggravating
circumstances. The court’s original and amended presentence hearing verdicts
indicate the court also took into account: (1) the violent nature of Berget’s attack on
Johnson, (2) that a life sentence would have no deterrent effect on other inmates
similarly situated to Berget, (3) that Berget had a long criminal history of ever-
increasing violence outside of prison, and (4) that Berget showed a lack of remorse
to Johnson’s family. Berget’s future dangerousness undoubtedly played a role in
the court’s penalty analysis, but that aggravating concern did not predominate as it
did in Davis or Skipper. Since this “central role” is the basis of the Sixth Circuit’s
reasoning in Davis V, Berget’s reliance on that case is questionable.
[¶41.] Second, and most importantly, however, the negative consequences of
adopting Berget’s position, as noted in Roberts, make Roberts the persuasive
authority. For instance, as noted above, under SDCL 23A-27A-12(2) we are
statutorily charged with an independent determination of “whether the evidence
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supports . . . [a] judge’s finding of a statutory aggravating circumstance as
enumerated in § 23A-27A-1.” Because of this duty, were we to accept Berget’s
rationale that Skipper and Davis V require consideration of newly discovered post-
trial mitigation evidence in every capital case, this Court would open the door to
becoming the initial trier of fact for evidence never presented or considered by the
circuit court. Under Berget’s rationale, this Court, when presented with new post-
trial evidence upon appeal, “could be considered a ‘sentencer’ for Lockett purposes.”
See Roberts, 998 N.E.2d at 1108-09. This, again, would thwart the judicial economy
of our tiered judicial system. See Piper III, 2014 S.D. 2, ¶ 10, 842 N.W.2d at 343. It
would also no longer make the original sentencing proceeding the “main event” but
improperly relegate it to a mere “tryout on the road.” See Gregory v. Solem, 449
N.W.2d 827, 833 (S.D. 1989) (citing Wainwright v. Sykes, 433 U.S. 72, 90, 97 S. Ct.
2497, 2508, 53 L. Ed. 2d 594, 610 (1977)).
[¶42.] Additionally, the Roberts Court’s finding of arbitrary discrepancies
that may manifest between similarly situated capital defendants simply because of
a post-sentence error in deliberation is clearly applicable in this case. No
sentencing error existed in the case of Berget’s co-defendant, Eric Robert. See State
v. Robert, 2012 S.D. 60, 820 N.W.2d 136. Had Robert proceeded with his case and
tried to raise a similar argument of post-sentencing discovery of evidence he deemed
to be mitigating, under the rationale now advanced by Berget, Berget could obtain a
second sentencing hearing while Robert could not. Therefore, the circumstances of
their offenses and the individual “character and propensities” of each defendant—
the fundamental concerns of sentencing, see Gregg, 428 U.S. at 189, 96 S. Ct. at
2932 (citations omitted)—would not result in their distinct sentencing treatments;
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they would result from a potential, extraneous court error that occurred after
sentencing. That strikes at the heart of Lockett’s holding that the death penalty
should be imposed “in a more consistent and rational manner[,]” based on an
analysis of the fundamental concerns of sentencing. See Lockett, 438 U.S. at 601,
605, 98 S. Ct. at 2963, 2965.
[¶43.] It is that very interest in achieving a “more rational and equitable
administration of the death penalty” that the Supreme Court found to be the basis
for allowing states the “authority to set reasonable limits upon the evidence a
defendant can submit, and to control the manner in which it is submitted[,]”
including mitigation evidence, in capital cases. See Oregon v. Guzek, 546 U.S. 517,
526, 126 S. Ct. 1226, 1232, 163 L. Ed. 2d 1112 (2006). A reasonable limit is one that
we impose today that avoids the arbitrary outcomes and judicial inefficiency noted
in Roberts and reinforces an appellate court’s authority to instruct a limited
remand.
[¶44.] The Supreme Court’s ruling in Guzek is also instructive in a broader
sense. In Guzek, the issue relevant to this case was whether the Eighth and
Fourteenth Amendments granted Guzek the right to introduce new evidence of his
innocence at his sentencing hearing—namely, that he was not present at the scene
of the crime. Id. at 523, 126 S. Ct. at 1230. The Court rejected the Oregon Supreme
Court’s broadening of Lockett to provide an Eighth Amendment right for Guzek to
introduce newly discovered evidence of his innocence at a sentencing hearing. Id. at
523, 126 S. Ct. at 1230-31. The Court grounded its ruling on three conclusions.
First, the Court noted that, fundamentally, “evidentiary concerns” are different
between guilt and sentencing phases, with the former concern asking whether the
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defendant committed the crime and the latter asking how the act was committed.
Id. at 526, 126 S. Ct. at 1232. Second, the Court found that “the parties previously
litigated the issue to which the evidence is relevant—whether the defendant
committed the basic crime. The evidence thereby attacks a previously determined
matter in a proceeding at which, in principle, that matter is not at issue. The law
typically discourages collateral attacks of this kind.” Id. (citing Allen v. McCurry,
449 U.S. 90, 94, 101 S. Ct. 411, 415, 66 L. Ed. 2d 308 (1980)). Third, the Court
determined that any “negative impact of a rule restricting defendant’s ability to
introduce new alibi evidence is minimized by the fact that Oregon law gives the
defendant the right to present to the sentencing jury all the evidence of innocence
from the original trial regardless.” 12 Id. at 526-27, 126 S. Ct. at 1233 (citing Or.
Rev. Stat. § 138.012(2)(b) (2003)). The Court summarized its analysis by holding,
“The legitimacy of these trial management and evidentiary considerations” and the
“minimally adverse impact the restriction would have” on defendant’s ability to
present his case indicated the Eighth Amendment was not violated. Id. at 527, 126
S. Ct. at 1233.
12. This language is analogous to the Ohio Supreme Court’s logic in Roberts,
where it held:
This case . . . involves a proceeding on remand for the limited
purpose of correcting an error that occurred after the defendant
had had a full, unlimited opportunity to present mitigating
evidence to the sentencer.
In other words, neither Lockett nor any of its progeny required
the trial court to reopen the evidence after an error-free
evidentiary hearing had already taken place.
998 N.E.2d at 1108 (second emphasis added).
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[¶45.] Our balancing in this case and the balancing conducted by the
Supreme Court in Guzek to reject a broadening of Lockett are similar because both
defendants’ arguments implicated the same court management interest. Berget
seeking a new sentencing hearing by effectively invoking a “right to update one’s
mitigation” is akin to Guzek seeking to treat the sentencing hearing as a second
guilt trial by invoking a “right to reconsideration” of guilt at sentencing. See Guzek,
546 U.S. at 525, 126 S. Ct. at 1232 (citations omitted). If the Court were to adopt
Berget’s position, the Court would establish the incentive to turn a limited
resentencing into a full-fledged, second sentencing hearing by seeking out all newly
discoverable mitigation evidence conceivable, again no longer making the original
sentencing proceeding the “main event” but consigning it to a mere “tryout on the
road.” See Gregory, 449 N.W.2d at 833 (citation omitted). It is also more than
conceivable that Berget may claim new, positive relationships with family members,
fellow prisoners, or strangers for the remainder of his life if this Court permits each
assertion of a relationship to be grounds for a new sentencing hearing or grounds
for ignoring our limited remand instructions.
[¶46.] Accordingly, Lockett, Eddings, and Skipper are clearly distinguishable
from the present case. No binding authority requires under the Eighth Amendment
that a resentencing authority consider newly discovered, otherwise-admissible
mitigation evidence, when the defendant had a full and unrestricted opportunity to
present mitigation evidence at the initial sentencing. Given the negative
consequences articulated above, Guzek supports our instructions in Berget I. See
Guzek, 546 U.S. at 526, 126 S. Ct. at 1232. These negative consequences include
the lack of finality, the arbitrariness that a right to update his mitigation would
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inject into death penalty jurisprudence, and the destruction of the appellate two-
tiered judicial system and the competencies it fosters. Therefore, we follow Roberts,
998 N.E.2d at 1108-09, and decline to follow Davis V, 475 F.3d at 773, Creech, 947
F.2d at 881-82, and Sivak, 731 P.2d at 197-98. Preventing these discrepancies and
dysfunctions clearly is a rational basis for excluding newly discovered mitigation
evidence from the limited remand for resentencing in this case. Because Berget is
unable to present persuasive authority supporting his position, he has failed to
meet his onerous burden of proving beyond a reasonable doubt that this Court’s
statutory and state constitutional authority to order limited remand violated the
Eighth and Fourteenth Amendments in this case. Accordingly, the circuit court did
not commit legal error and abuse its discretion in following this Court’s instruction
on resentencing. 13
13. Berget’s constitutional claim is also subject to prejudicial or harmless error
analysis. See St. John, 2011 S.D. 58, ¶ 10, 804 N.W.2d at 74 (quoting Novak
v. McEldowney, 2002 S.D. 162, ¶ 7, 655 N.W.2d 909, 912) (“‘An evidentiary
ruling will not be overturned unless error is demonstrated and shown to be
prejudicial error.’”); Smith, 1999 S.D. 83, ¶ 39, 599 N.W.2d at 353; see also 18
U.S.C. § 3595(c)(2)(C) (“The court of appeals shall not reverse or vacate a
sentence of death on account of any error which can be harmless, including
any erroneous special finding of an aggravating factor, where the
Government establishes beyond a reasonable doubt that the error was
harmless.”); SDCL 23A-44-14 (“Any error, defect, irregularity, or variance
which does not affect substantial rights shall be disregarded.”); Sweet v. Delo,
125 F.3d 1144, 1158-59 (8th Cir. 1997) (citing Hitchcock v. Dugger, 481 U.S.
393, 399, 107 S. Ct. 1821, 1824-25, 95 L. Ed. 2d 347, and Skipper, 476 U.S. at
7-8, 106 S. Ct. at 1672-73) (applying harmless error analysis to a Lockett
error)); State v. Piper (Piper I), 2006 S.D. 1, ¶ 18, 709 N.W.2d 783, 794-95
(applying a prejudicial error analysis to a capital proceeding). “‘A
constitutional violation may constitute harmless error, and thus not require
reversal, if the court can declare beyond a reasonable doubt that the error
was harmless and did not contribute to the verdict obtained.’” State v.
Larson, 512 N.W.2d 732, 735 (S.D. 1994) (quoting State v. Schuster, 502
N.W.2d 565, 570-71 (S.D. 1993)). See also Chapman v. California, 386 U.S.
(continued . . .)
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(. . . continued)
18, 22, 24, 87 S. Ct. 824, 827, 828, 17 L. Ed. 2d 705 (1967) (articulating the
similar federal standard). This harmless error analysis is particularly salient
where, as here, there is “ample evidence relating to the circumstances of the
murder.” See State v. Rhines (Rhines I), 1996 S.D. 55, ¶ 101, 548 N.W.2d 415,
441. The State has the burden to prove harmless error. State v. Medicine
Eagle, 2013 S.D. 60, ¶ 60, 835 N.W.2d 886, 905 (citing State v. Nelson, 1998
S.D. 124, ¶ 8, 587 N.W.2d 439, 443).
The State has proven that the aggravating evidence against Berget is
overwhelming beyond a reasonable doubt, thereby negating any claim of
constitutional error. Out of all the remaining aggravating evidence—
including the brutal nature of the beating and suffocation of Ronald Johnson
in carrying out the attempted escape, Berget’s violent criminal history, and
the clear existence of the statutory aggravating circumstances of the killing
an employee of a corrections institution while Berget was lawfully confined,
SDCL 23A-27A-1(7), (8)—none of it would have been called into doubt or
otherwise eroded by Berget’s evidence of his relationship with his son and his
family. This new evidence could not reasonably expunge or mitigate the
circumstances of the murder. “The absence of any prejudice is particularly
apparent given the horrific nature of the crime.” McGehee v. Norris, 588 F.3d
1185, 1189 (8th Cir. 2009) (citation omitted) (applying harmless error
analysis to an alleged Lockett error). Additionally, as noted above, future
dangerousness was not the central concern of the sentencing authority. It is
even unclear how Berget’s relationship with his family will logically affect his
future dangerousness. It is also unclear how Berget’s relationship would
have resulted in a life sentence given the circuit court’s awareness of Berget’s
son and the testimony of Associate Warden Pontow that Berget could serve a
life sentence in administrative segregation to “diminish any serious threat of
future dangerousness.” See Hall v. Luebbers, 341 F.3d 706, 717 (8th Cir.
2003) (deeming the exclusion of mitigating evidence in a capital case
harmless error where it was cumulative).
Moreover, it is important to note that “South Dakota law does not require the
weighing of aggravating circumstances against mitigating factors[,]” and that
a sentencing authority, in the face of all manner of mitigating evidence, “need
only find one statutory aggravating factor beyond a reasonable doubt to
impose the death penalty.” Page, 2006 S.D. 2, ¶ 50, 709 N.W.2d at 758-59
(citing Rhines II, 2000 S.D. 19, ¶¶ 39 n.9, 53, 608 N.W.2d at 312 n.9, 314).
Therefore, “ample evidence” shows the exclusion of Berget’s relationship with
his son in the resentencing authority’s final consideration was a harmless
error beyond a reasonable doubt, if it was error at all. Because the circuit
court committed no prejudicial error, it did not abuse its discretion in
excluding this newly discovered evidence, and on these additional grounds,
(continued . . .)
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[¶47.] 2. Whether the circuit court’s resentencing procedure met
statutory and constitutional requirements concerning
Berget’s presence at components of the sentencing
process and allocution.
[¶48.] If the Court’s limited resentencing instructions pass constitutional
muster, Berget argues that the circuit court nevertheless erred by not having
granted him other rights available at sentencing generally—his rights to be
physically present in the courtroom and to allocute once more before resentencing.
These issues are questions of law and are therefore subject to de novo review. See
Pete Lien & Sons, Inc. v. City of Pierre, 1998 S.D. 38, ¶ 5, 577 N.W.2d 330, 331 (per
curiam).
[¶49.] a. The legality of the circuit court’s entry of its
sentence.
[¶50.] In support of this argument, Berget interprets a number of diverse
authorities from federal and state sources. Berget cites Article VI, § 7 of the South
Dakota Constitution, which provides, in pertinent part, that “[i]n all criminal
prosecutions the accused shall have the right to defend in person and by counsel; . . .
to meet the witnesses against him face to face . . . .” He goes on to reference SDCL
23A-39-1, which defines this right further by mandating that “[a] defendant shall be
present at his arraignment, at the time of his plea, at every stage of his trial
including the impaneling of the jury and the return of the verdict, and at the
imposition of sentence, except as provided by §§ 23A-39-2 and 23A-39-3.” Because
these last exceptions are not applicable, and because a defendant’s presence is
(. . . continued)
Berget’s constitutional argument fails. See Smith, 1999 S.D. 83, ¶ 39, 599
N.W.2d at 353.
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required “at every stage of his trial,” up to and including “the return of the verdict,”
Berget contends his state constitutional rights were violated by his absence when
the court reimposed its sentence. Berget argues that federal authority is also
persuasive on this issue because he believes that SDCL chapter 23A-39 was
modeled after Rule 43 of the Federal Rules of Criminal Procedure. Cf. Jacquot v.
Rozum, 2010 S.D. 84, ¶ 15, 790 N.W.2d 498, 503 (“This Court routinely looks to
other courts’ decisions for analytical assistance in interpreting a South Dakota rule
of civil procedure that is equivalent to a Federal Rule of Civil Procedure.”).
[¶51.] On this last point, Berget is incorrect. The federal rule and SDCL
chapter 23A-39, while containing some similarities, also contain numerous
differences of significance. For example, SDCL 23A-39-3 deals with appearances by
corporations faced with criminal prosecutions, a subject not addressed by the
federal rule. The source of SDCL 23A-39 traces its roots back to our earliest
criminal code while still a Territory. See Dakota Rev. Code Crim. P. §§ 237, 294
(1877). The current version was enacted as part of the general revision of our
Criminal Code in 1978, again with significant differences from the federal rule both
in subject matter and in phraseology. See 1978 S.D. Sess. Laws ch. 178, § 485.
Therefore, the persuasive authority of federal courts’ interpretations of Federal
Rule 43 language is negligible.
[¶52.] For case law interpreting SDCL 23A-39-1, Berget cites Kost v. State,
344 N.W.2d 83 (S.D. 1983). 14 In that case, Kost brought a second petition for
14. Kost also does not reference Federal Rule 43. Rather, it reviews our previous
case law, which goes back to 1904, and which interpreted Territorial criminal
(continued . . .)
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habeas corpus after having been found guilty by a jury of first-degree manslaughter
and sentenced to life imprisonment. Id. at 84. The sole issue was whether the trial
court denied Kost’s due process rights when Kost was not present at three
discussions in chambers, even though his attorney waived his right to be present
each time. Id. at 84. This Court began its discussion by noting that a criminal
defendant’s right to be present flows from state statutory and constitutional
authority, as well as the Sixth Amendment to the United States Constitution. Id.
(citations omitted). The scope of that due process right “requires the defendant ‘to
be present in his own person whenever his presence has a relation, reasonably
substantial, to the fulness [sic] of his opportunity to defend against the charge.’” Id.
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332, 78 L. Ed.
674, 678 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.
Ct. 1489, 12 L. Ed. 2d 653 (1964)). See also Kentucky v. Stincer, 482 U.S. 730, 745,
107 S. Ct. 2658, 2667, 96 L. Ed. 2d 631 (1987) (holding that the right to be present
is “not guaranteed when presence would be useless, or the benefit but a shadow”).
Accordingly, this Court determined that the constitutional and statutory right,
conditioned on Snyder, required that “[a] defendant must be present when his
presence is related to an opportunity to defend himself against the criminal charge.”
Kost, 344 N.W.2d at 86. This Court equated any other failure to be present, even
though it may violate the plain language of the statute, to be harmless error. Id. at
(. . . continued)
procedure. Kost, 344 N.W.2d at 85 (quoting State v. Swenson, 18 S.D. 196,
204-05, 99 N.W. 1114, 1116 (1904)).
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85-86 (citing State v. Rosales, 302 N.W.2d 804, 807 (S.D. 1981)). The circuit court’s
judgment was affirmed based on this harmless error analysis. Id. at 86.
[¶53.] Applying a similar analysis, Berget’s physical presence at resentencing
would have been “useless, or the benefit but a shadow” given our remand
instructions. The circuit court’s resentencing did not, and could not, depend on any
new evidence from Berget outside of calling Dr. Bean, which Berget declined to do
when offered by the circuit court. What remained was for the circuit court to
exercise its discretion in rendering its judgment on the same evidence and
argument that was presented at the initial sentencing hearing. Because of the
unique nature of the alleged error in Berget I, the circuit court only needed to
reconsider its findings of fact and conclusions of law by drafting amendments in
chambers, filing them with the Clerk of Courts, and serving copies on counsel. The
unique posture of the remand begs the question: what was to be gained by having
Berget physically present to watch the circuit court deliberate and hand these
documents to the clerk? See United States v. Burton, 543 F.3d 950, 953 (7th Cir.
2008) (“A criminal defendant has no right to be present in the judge’s chambers
when she writes her sentencing memorandum or files it with the clerk.”). Because
our instructions in Berget I so limited the jurisdiction of the circuit court on remand
and Berget had no right to be present in chambers while the circuit court
deliberated in reconsidering its sentence without reference to the Dr. Bean
admission, the circuit court committed no error in filing new sentencing findings
and conclusions outside Berget’s presence.
[¶54.] In spite of the distinction between our rules and the federal standard,
Berget argues that at least one court (federal) has categorically found due process
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objections to the absence of a defendant at resentencing, citing United States v.
Arrous, 320 F.3d 355, 359 (2d Cir. 2003). Arrous, however, engaged in the very
same harmless error analysis articulated above to find the defendant’s involuntary
absence harmless. Id. at 361-62. In explaining its holding further, the Second
Circuit Court of Appeals stated that “defendant’s presence would have made no
difference in the second sentencing. The decision whether to strike the restitution
order from the judgment or allow Arrous to withdraw his guilty plea was one that
rested solely within the discretion of the district court and did not depend on any
input from defendant.” Id. at 362. 15 Likewise, in drafting Berget’s resentencing,
the circuit court was required to consider the identical, preexisting evidence that
Berget and the State presented at the initial sentencing, including Berget’s prior
allocution and arguments of counsel. Again, the circuit court’s resentencing based
upon our limited remand did not, and could not, depend on any new evidence from
Berget outside of calling Dr. Bean, which Berget declined to do. What remained
was for the circuit court to exercise its discretion in rendering its judgment on the
15. Berget cites another Second Circuit case, United States v. DeMott, 513 F.3d
55 (2d Cir. 2008) (per curiam), for the proposition that it is per se prejudicial
(and not harmless) error for a court to impose a sentence on a defendant
when not in the defendant’s presence. Berget quotes language in DeMott that
appears to support this claim: “Since a new sentence was imposed out of the
presence of the defendant, his lawyer, and the prosecutor, we cannot
confidently decide there has been no harm.” See id. at 58. However, Berget
leaves out much of the court’s analysis, including its citation to Arrous and its
harmless error analysis. Id. (citing Arrous, 320 F.3d at 361) (“The denial of
this right is subject to harmless review, but such error is harmless only
where it is ‘unimportant and insignificant’ in the context of the case, such as
where . . . ‘defendant’s presence would not have affected the outcome.’”). The
DeMott court simply found that defendant’s presence at resentencing in that
case would have affected the outcome, see id., thereby distinguishing it from
Arrous and, per the analysis above, Berget’s resentencing.
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same evidence and argument that was presented at the initial sentencing hearing.
Berget is therefore left without any substantive grounds for asserting he was
prejudiced by his physical absence when the circuit court deliberated, filed the
sentencing documents with the clerk of courts, and mailed copies to counsel.
Accordingly, any error regarding Berget’s physical absence was harmless beyond a
reasonable doubt and did not contribute to the verdict obtained. See Larson, 512
N.W.2d at 735.
[¶55.] b. Berget’s claim for additional allocution.
[¶56.] Similarly, Berget contends that state and federal authority support his
right to allocute before resentencing, which was denied by the circuit court’s refusal
to conduct a formal resentencing hearing. To advance this contention, he relies on
SDCL 23A-27-1 and this Court’s ruling in State v. Garber, 2004 S.D. 2, 674 N.W.2d
320. The relevant language of SDCL 23A-27-1 is as follows:
Before imposing a sentence, a court may order a hearing in
mitigation or aggravation of punishment. . . . At such hearing,
the court shall allow the defense counsel an opportunity to
speak on behalf of the defendant and shall address the
defendant personally and ask him if he wishes to make a
statement in his own behalf and to present any information in
mitigation of punishment.
Id. On its face, this language describes the allocution right as arising out of a
sentencing hearing ordered by the court. As noted above, the circuit court did not
order a new sentencing hearing because it correctly found no basis for it on remand.
Berget’s right to allocute was not infringed at his original sentencing hearing, the
only sentencing hearing on the record. The plain language of the statute, therefore,
does not support Berget’s claim. Moreover, the only relevance of Garber to this
analysis is that it referenced in passing that SDCL 23A-27-1 provides a “right of
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allocution” and nothing more. See 2004 S.D. 2, ¶ 18, 674 N.W.2d at 325. Without
further interpretation, SDCL 23A-27-1 does not explicitly govern the type of limited
resentencing at issue here, nor does it describe the nature of the allocution right.
South Dakota case law appears to be silent in both respects.
[¶57.] Berget contends this Court may draw authority from federal case law
that purportedly establishes a defendant’s right to allocute at resentencing
generally. Federal case law provides that unlike the right to be present, “the right
of allocution is not a constitutional one. Rather, the right of allocution derives from
the Federal Rules of Criminal Procedure.” United States v. Patterson, 128 F.3d
1259, 1260 (8th Cir. 1997) (per curiam) (citations omitted). It has also been
described as a common law right that relates to a defendant’s constitutional right to
be present at sentencing. See Green v. United States, 365 U.S. 301, 304, 81 S. Ct.
653, 655, 5 L. Ed. 2d 670 (1961).
[¶58.] Berget relies on the unpublished opinion of United States v. Blake
(Blake II), No. 12-3176, 501 F. App’x 587, 588 (7th Cir. Feb. 26, 2013), for the
proposition that allocution is also a right provided at limited resentencing. Leading
up to the case, the Seventh Circuit had entered a limited remand for resentencing
in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621
(2005), and its repeal of the mandatory nature of the Federal Sentencing
Guidelines. See Blake II, 501 F. App’x at 588. The trial court then resentenced
Blake, but did not notify him of his ability to speak in his defense. Id. On appeal
from the remand, the Seventh Circuit entered a four-sentence unpublished opinion
that remanded Blake’s case for failure to allow allocution. See United States v.
Blake (Blake I), No. 06-3390, 227 F. App’x 506, 2007 WL 1875958 (7th Cir. June 11,
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2007). Both cases give little support for Berget’s argument. Blake I explicitly
stated only the court’s uncertainty whether the denial of Blake’s right of allocution
in that particular circumstance was harmless error. Id. at *1. Blake II merely
referenced back to Blake I. See Blake II, 501 F. App’x at 588.
[¶59.] In contrast, the Ninth Circuit, in its published opinion in United States
v. Silva, 472 F.3d 683 (9th Cir. 2007), directly addressed a defendant’s right to
allocute on limited remand. As with Blake, the Ninth Circuit in Silva had issued a
limited remand for resentencing Silva in the wake of Booker. Id. at 685. This
limited remand “require[d] the district court to make a subjective determination,
based upon a review of the record and the submissions of counsel, as to whether the
sentence would have been materially different under advisory Guidelines.” Id. The
court noted that because the court properly “evaluated the record, considered the
views of counsel, and concluded that he would have chosen the same sentence under
a discretionary regime[,]” Silva had “no right . . . even to be present during such a
limited inquiry, and so by necessary implication . . . [authority] does not support a
right to allocute therein.” Id. at 686. While the court acknowledged the federal
rulemaking and case law authority establishing allocution as a general, necessary
component of a criminal defendant’s due process rights, see id. at 686-87, it further
noted, “[W]e have decided that allocution is not always necessary in the case of
sentencing error.” Id. at 687. The court illustrated the limits of the allocution right
by harkening to its earlier opinion in United States v. Knows His Gun, 438 F.3d 913
(9th Cir. 2006). In Knows His Gun, the Ninth Circuit affirmed a sentence where the
trial court, on remand in light of Booker, failed to permit allocution. Id. at 920.
Recounted later in Silva, the Ninth Circuit noted that the key factor was Knows His
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Gun’s ability at his original sentencing to present all relevant evidence and to
allocute. See Silva, 472 F.3d at 687 (citing Knows His Gun, 438 F.3d at 919-20)
(“We affirmed . . . because the defendant had already had a chance to present non-
Guidelines evidence at the original sentencing and needed no further right to
allocute.”). The court then applied that rationale to Silva, and held that because the
limited remand “merely requires review of the record and the views of counsel, due
process does not require allocution.” Id. at 687-88.
[¶60.] The clear parallels between Berget’s case and Silva indicate that the
due process afforded to Berget on limited remand did not implicate Berget’s right to
allocution. Like the Ninth Circuit’s directive in Silva, we instructed on remand that
the circuit court was to conduct its review “on the existing record.” See Berget I,
2013 S.D. 1, ¶ 120, 826 N.W.2d at 37. Akin to Silva, we effectively tasked the lower
court with making “a subjective determination, based upon a review of the record
and the submissions of counsel, as to whether [Berget’s] sentence would have been
[] different” absent the improper consideration. See Silva, 472 F.3d at 685. The
circuit court then appropriately considered only the existing record, including the
prior allocution, and the views of counsel in making its decision. The circuit court
was not required to grant additional allocution because Berget was already given a
chance to submit all relevant evidence and to allocute at his sentencing hearing.
Silva provides that no due process right to allocute exists within the limited remand
framework we instructed in Berget I given the similarities of our instructions. This,
coupled with SDCL 23A-27-1’s plain language does not support Berget’s
interpretation. Berget offers no persuasive authority on which to base his
allocution right.
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[¶61.] Further, even if there were a right of allocution in this instance, any
failure of the circuit court to provide Berget this right was harmless error. See
United States v. Robertson, 537 F.3d 859, 863 & n.3 (8th Cir. 2008) (applying
harmless error analysis to an allocution error). Recognizing the similar nature of
the right to be present and the right to allocute (albeit the allocution right involves
a lesser, common law concern), see Silva, 472 F.3d at 686, a similar harmless error
framework may be applied. This Court’s instruction on remand narrowed the
circuit court’s consideration of new mitigating evidence. By this instruction,
Berget’s ability to re-allocute, after electing not to introduce Dr. Bean’s testimony,
became immaterial. With the removal of Dr. Bean’s report from consideration, the
evidence upon which Berget could allocute was the same evidence upon which he
allocuted at the initial sentencing hearing. Nothing changed. And because the
resentencing court indicated it would consider his prior allocution, Berget could not
have influenced the circuit court’s resentencing decision when all the court had to
consider was the preexisting record. Cf. Kost, 344 N.W.2d at 86 (“[Defendant’s]
absence from these discussions was not error because his presence was not
necessary to defend against the charges.”). As noted above, the language of SDCL
23A-37-1 does not provide a right of allocution at this limited resentencing, and
even if it did, the resulting error at Berget’s resentencing would be harmless beyond
a reasonable doubt because it could not, and would not, contribute to the sentence
rendered. See Larson, 512 N.W.2d at 735.
[¶62.] Therefore, Berget provides no persuasive authority to support a right
to allocution in the limited remand proceedings directed by Berget I. If the court
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erred in not providing for allocution, that error was harmless. Accordingly, his
claim fails.
[¶63.] 3. Whether the circuit court erred in not recusing itself
prior to resentencing.
[¶64.] Berget asserts the circuit court erred by denying his request that the
court recuse itself on limited remand, citing the court’s actual and implied judicial
bias. This argument stems from Berget’s allegation that the court simply recycled
its findings of fact and conclusions of law from those in the case of Berget’s co-
defendant, Eric Robert. In his initial brief, Berget characterized this allegation as
indicating the court gave his case little consideration, which in turn evidenced bias.
Berget now modifies this argument in his reply brief and in oral argument by
asserting that the court was “trying to be fair in a situation where no mortal could
be.” Berget further explains that the court was more inherently—rather than
intentionally—biased because it had to prejudge Berget’s case, having already
sentenced his co-defendant on similar findings of fact and conclusions of law.
Berget relates that for the court to change its findings from Robert’s case to Berget’s
case would be to “call the finality of the [Robert] decision . . . into question.”
[¶65.] Berget admits that SDCL 15-12-24 statutorily precluded his affidavit
for change of judge because he submitted argument to the circuit court—admitting
guilt and receiving sentence—prior to filing the affidavit. He bases the court’s duty
to recuse on a superseding, general constitutional right to a fair trial, citing Nelson,
1998 S.D. 124, ¶ 14, 587 N.W.2d at 445 (citations omitted) (outlining the scope of a
right to a fair trial), and Page, 2006 S.D. 2, ¶ 14, 709 N.W.2d at 749 (quoting State
v. Hoadley, 2002 S.D. 109, ¶ 32, 651 N.W.2d 249, 257) (“[A] defendant’s ‘opportunity
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to disqualify a judge is statutory, . . . and not a constitutional right, except as it may
be implicit in a right to a fair trial.’”).
[¶66.] This argument fails. Berget had argued on direct appeal that
similarities between the verdicts from his and Robert’s pre-sentencing hearing
indicate a violation of Berget’s right to an individualized sentencing determination
under Lockett. Berget I, 2013 S.D. 1, ¶¶ 53-54, 826 N.W.2d at 18-19. This Court
rejected that argument. We did so based on our finding that “Berget has not
‘presented any evidence to constitute a legitimate basis on which to call into
question the circuit judge’s impartiality. . . . Absent such a showing that a fair
judgment was impossible, it was not error for the circuit judge to sentence [Berget]
after sentencing his co-defendant [Robert].’” Id. ¶ 54, 826 N.W.2d at 18 (quoting
Page, 2006 S.D. 2, ¶ 17, 709 N.W.2d at 751). 16 This finding echoed our prior
holdings in Page, 2006 S.D. 2, ¶¶ 15-17, 709 N.W.2d at 750-51, and Hoadley, 2002
S.D. 109, ¶¶ 32-34, 651 N.W.2d at 257-58, that the mere fact the circuit court
previously sentenced a co-defendant to death does not show the judicial bias, or the
“deep-seated favoritism or antagonism,” that overrides the presumption against
recusal that the court was impartial. Berget’s attempt to distinguish this case from
Page and Hoadley fails. To accept Berget’s argument would prohibit the trying of
co-defendants by the same judge in all cases as a matter of law. Berget offers no
16. Rather, we explained that the similarity in the presentence verdicts’
recitation of facts was the logical and proper result of a court approaching a
joint murder by co-defendants. Id. ¶ 52. Here, that analysis also applies
with equal effect to Berget’s argument on the court’s amended findings of fact
and conclusions of law.
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legitimate indication of the court’s bias to modify our prior analysis. This argument
therefore fails.
[¶67.] 4. Whether Berget’s sentence was imposed under the
influence of passion, prejudice, or any other arbitrary
factor.
[¶68.] Our analysis of the record indicates no basis for finding Berget’s
sentence was imposed under the influence of passion, prejudice, or any other
arbitrary factor. See SDCL 23A-27A-12(1). The circuit court’s amended
presentence hearing verdict and amended findings of fact and conclusions of law
reflect the proper scope of analysis directed by this Court on limited remand. As
indicated above, Berget’s assertion of circuit court bias, actual and inherent, was
shown to have no merit on direct appeal and remains without merit. Berget I, 2013
S.D. 1, ¶ 54, 826 N.W.2d at 18-19. No improper considerations indicating passion,
prejudice, or arbitrariness were otherwise evident on direct appeal. Id. ¶ 13, 826
N.W.2d at 11. That continues to be the case here.
[¶69.] 5. Whether the evidence supports the circuit court’s finding
of statutory aggravating circumstances as enumerated in
SDCL 23A-27A-1.
[¶70.] We noted in Berget I that evidence introduced at Berget’s sentencing
hearing supported, beyond a reasonable doubt, the circuit court’s finding of two
statutory aggravating circumstances evident in Ronald Johnson’s murder. See id.
¶¶ 16-17, 826 N.W.2d at 11; see also SDCL 23A-27A-1(7) (“The offense was
committed against a law enforcement officer, employee of a corrections institution,
or firefighter while engaged in the performance of such person’s official duties[.]”);
23A-27A-1(8) (“The offense was committed by a person in, or who has escaped from,
the lawful custody of a law enforcement officer or place of lawful confinement[.]”).
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Since then, Berget has brought forth no evidence or argument to question those
holdings. Further inquiry is therefore unnecessary. The evidence supports the
circuit court’s finding of the two statutory aggravating circumstances.
[¶71.] 6. Whether Berget’s death sentence is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
[¶72.] Finally, because “[w]e strictly and purposely limited our remand
instructions in [Berget I] to correct the specific error that had occurred,” see Piper
III, 2014 S.D. 2, ¶ 12, 842 N.W.2d at 343, and because Berget acknowledges without
objection that all proportionality concerns raised in Berget I were addressed and
affirmed by our opinion, our prior proportionality analysis stands, see Berget I, 2013
S.D. 1, ¶¶ 18-31, 826 N.W.2d at 11-14. The record continues to provide no basis for
this Court to find Berget’s death sentence to be excessive or disproportionate. In
the absence of the Court’s instruction, the aggravating circumstances of Berget’s
crime and the remaining aggravating factors would nevertheless outweigh any
reasonable implications of Berget’s new relationship—no matter how positive—with
his son and his son’s family. We conclude that our prior proportionality analysis
remains valid and Berget’s death sentence is not excessive or disproportionate in
relation to similar cases where the death penalty was imposed.
Conclusion
[¶73.] This Court, pursuant to the South Dakota Constitution, possesses the
clear authority to direct the jurisdictional scope of a limited remand to the circuit
court, and our remand directions in Berget I did not infringe upon any of Berget’s
constitutional rights. The limited remand also did not implicate or otherwise
violate Berget’s rights to be present and to allocution. Finally, this Court previously
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rejected, in Berget I, Berget’s judicial bias argument, and he has provided no
additional, substantive argument in that regard on this appeal. We therefore affirm
his death sentence.
[¶74.] ZINTER and SEVERSON, Justices, and MILLER, Retired Justice,
concur.
[¶75.] KONENKAMP, Justice, dissents.
[¶76.] MILLER, Retired Justice, sitting for WILBUR, Justice, disqualified.
KONENKAMP, Justice (dissenting on Issue 1).
[¶77.] When a death sentence is reversed and remanded for resentencing,
and the sentencing court is thus required to determine anew whether to impose a
sentence of life or death, there is no rational basis to deny the defendant the
opportunity to present for the court’s deliberation any newly available mitigation
evidence. It makes no difference here whether our remand was limited. The
sentencing court was ordered to “conduct a sentencing without” the error in the
previous sentencing, and therefore, it had to reevaluate all the appropriate factors
and evidence, absent the erroneously considered matter. Federal constitutional law
and our own jurisprudence require that the sentencing court consider any new
mitigation evidence.
I.
[¶78.] Death is the ultimate penalty. It cannot be undone. It is thus an
“‘indispensable part of the process of inflicting the penalty of death’” that the
sentencing process “permit the consideration of the ‘character and record of the
individual offender and the circumstances of the particular offense[.]’” Lockett v.
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Ohio, 438 U.S. 586, 601, 98 S. Ct. 2954, 2963, 57 L. Ed. 2d 973 (1978) (quoting
Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d
944 (1976)); Skipper v. South Carolina, 476 U.S. 1, 4, 106 S. Ct. 1669, 1670-71, 90 L.
Ed. 2d 1 (1986). Yet, after today’s decision, courts will be required to ignore any
current mitigation evidence in deciding life or death if that court is resentencing an
offender because of an error in the previous sentencing process. This limitation
“creates the risk that the death penalty will be imposed in spite of factors which
may call for a less severe penalty[,]” a risk “unacceptable and incompatible with the
commands of the Eighth and Fourteenth Amendments.” See Lockett, 438 U.S. at
605, 98 S. Ct. at 2965. Our Court ignores the fundamental tenets of the Eighth
Amendment in holding, as a matter of law, that a defendant sentenced to death has
no right to present newly discovered, otherwise admissible, mitigating evidence
when resentenced, because that defendant had an opportunity to present mitigation
evidence at the original sentencing hearing.
[¶79.] A right to mitigate one’s sentence in a capital case is not merely a
statutory right, but a constitutional guarantee. Id. at 608, 98 S. Ct. at 2967.
Contrary to the Court’s claim, Lockett, Eddings, and Skipper are not clearly
distinguishable; nor is this case akin to Roberts, 998 N.E.2d at 1108 or Guzek, 546
U.S. 517, 126 S. Ct. 1226. 17 This case directly implicates the precept that in order
17. Despite this Court’s claim, Guzek is not “instructive in a broader sense.” See
supra Majority Opinion ¶ 44. Guzek ruled that a defendant is not entitled to
present new evidence of his innocence during a sentencing hearing because
the guilt and sentencing phases are different, the issue of guilt had already
been litigated, and trial management and evidentiary considerations control.
546 U.S. at 526-27, 126 S. Ct. at 1232-33. Here, however, Berget’s attempt to
introduce new mitigation evidence at sentencing in no way implicates the
(continued . . .)
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to decide “a matter so grave as the determination of whether a human life should be
taken or spared,” see Gregg, 428 U.S. at 189, 96 S. Ct. at 2932 (citing Furman, 408
U.S. 238, 92 S. Ct. 276), “the Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of capital case, not be precluded from
considering, as a mitigating factor, any aspect of a defendant’s character or record
and any of the circumstances of the offense that the defendant proffers as a basis for
a sentence less than death.” See Lockett, 438 U.S. at 604, 98 S. Ct. at 2964-65.
[¶80.] Other courts have likewise held that the holding in Skipper, 476 U.S.
at 8, 106 S. Ct. at 1672-73, that a defendant should be allowed to present any
available mitigating evidence requires that, at resentencing, a court must consider
any new evidence that the defendant has developed since the initial sentencing
hearing. See, e.g., Davis v. Coyle, 475 F.3d 761, 771 (6th Cir. 2007); Robinson v.
Moore, 300 F.3d 1320, 1345-48 (11th Cir. 2002); Smith v. Stewart, 189 F.3d 1004,
1008-14 (9th Cir. 1999); Spaziano v. Singletary, 36 F.3d 1028, 1032-35 (11th Cir.
1994); Alderman v. Zant, 22 F.3d 1541, 1556-57 (11th Cir. 1994); Creech v. Arave,
(. . . continued)
guilt phase and does not involve an issue already litigated (his sentence was
vacated). Moreover, there is no comparable concern for trial management
and evidentiary consideration. On the contrary, before resentencing a
defendant, the court must consider the character and history of the defendant
before it. Considering newly discovered, otherwise admissible, mitigation
evidence fulfills that duty. Because Guzek specifically involved the difference
between the guilt and sentencing phases and in no way addressed what
evidence is admissible when a defendant is resentenced, Guzek bears no
instructive value here.
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947 F.2d 873, 881 (9th Cir. 1991), rev’d on other grounds by Arave v. Creech, 507
U.S. 463, 113 S. Ct. 1534, 123 L. Ed. 2d 188 (1993); Sivak, 731 P.2d at 197-98. 18
II.
[¶81.] Our own precedent also dictates that it is error not to consider Berget’s
newly available, otherwise admissible, mitigation evidence. In Bult IV, this Court
made clear that a sentencing court has the duty to “acquaint itself thoroughly ‘with
the character and history of the man before it,’” and a failure to do so denies a
defendant “a meaningful sentencing hearing in accordance with our statutes and
general principals of due process.” 1996 S.D. 20, ¶¶ 8, 13, 544 N.W.2d at 216-17
(quoting State v. Pack, 516 N.W.2d 665, 667 (S.D. 1994)). We reversed Bult’s
sentence specifically because the sentencing court failed to consider Bult’s current
mitigation evidence, despite the fact that Bult had an error-free original sentencing
hearing ten years earlier. See id. ¶ 14.
[¶82.] In 1983, Bult had been sentenced to life without the possibility of
parole, a sentence originally affirmed and later reversed. State v. Bult (Bult I), 351
N.W.2d 731 (S.D. 1984); Bult v. Leapley (Bult II), 507 N.W.2d 325, 328 (S.D. 1993).
After Bult’s first resentencing hearing, during which the court held a full
evidentiary hearing, the sentencing court again sentenced Bult to life without the
possibility of parole. Bult III, 529 N.W.2d at 199. On appeal for the third time, we
reversed the sentence and “remand[ed] again for resentencing, with instructions
18. The Court’s concern here about the “negative consequences” of allowing
newly available mitigation evidence at resentencing was adequately
answered by the Idaho Supreme Court in Sivak: “Needless to say, a
sentencing judge will not have to consider such post-sentence mitigation
evidence as will be submitted in this case if [the judge] conducts a proper
sentencing procedure in the first place.” Id. at 198 n.3.
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that the sentencing court shall impose an appropriate term of years.” Id. at 200.
We did not specifically instruct the court to conduct a full sentencing hearing. Id.
Yet, when, on remand, the sentencing court did not hold a new evidentiary hearing
and sentenced Bult to 300 years, Bult appealed asserting that his 300-year sentence
constituted cruel and unusual punishment and that he was denied a meaningful
sentencing hearing. Bult IV, 1996 S.D. 20, ¶¶ 6-7, 544 N.W.2d at 216.
[¶83.] On appeal, we held that a sentencing court had an “obligation,” on
remand for resentencing, to update itself on what actions the defendant had taken
between the reversal of the court’s resentence and the court’s second rehearing to
pronounce a new sentence. Id. ¶ 12. We did not rely on the “nature of the error,” or
language from Bult III that “permitted a full sentencing hearing on remand[.]” See
supra Majority Opinion n.9. We also did not express concern for maintaining
“judicial efficiency” and avoiding “arbitrary outcomes.” Rather, we focused on the
sentencing court’s duty to thoroughly acquaint itself with the current character and
history of the defendant before it.
III.
[¶84.] “Sentencing decisions are perhaps the most difficult responsibility for
trial judges, encompassing circumstances both obvious and elusive.” State v.
Bonner, 1998 S.D. 30, ¶ 11, 577 N.W.2d 575, 578. The task becomes even more
difficult when we declare, as a matter of law, that trial courts must cull out previous
portions of their deliberations on resentencing, but cannot consider current
mitigation that may bear on the question of life or death. Because resentencing
requires courts to reevaluate and reweigh the factors that went into their initial
decision, they should also consider any new evidence that the defendant has
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developed since the initial sentencing hearing. Doing otherwise infringes on Eighth
Amendment protections and violates our own established jurisprudence.
[¶85.] Berget’s sentence should be remanded for a new sentencing hearing.
This result is the only one consistent with our precedent and “ensure[s] the
reliability, under Eighth Amendment standards, of the determination that ‘death is
the appropriate punishment in a specific case.’” See Lockett, 438 U.S. at 601, 98 S.
Ct. at 2963 (quoting Woodson, 428 U.S. at 305, 96 S. Ct. at 2991).
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