State v. Robert

#26213-denied-DG
2012 S.D. 27IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff,
v.
ERIC DONALD ROBERT, Defendant.
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APPEAL FROM THE CIRCUIT COURT
SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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HONORABLE BRADLEY G. ZELL
Judge
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MARTY J. JACKLEY
Attorney General
PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota Attorneys for Plaintiff.
MARK KADI
Minnehaha County Public Advocates
Sioux Falls, South Dakota Attorneys for Defendant.
RANDAL E. CONNELLY
Rapid City, South Dakota Amicus Curiae.
****
CONSIDERED ON BRIEFS
ON APRIL 5, 2012
OPINION FILED 04/11/12
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GILBERTSON, Chief Justice
[¶1.] Eric Robert is currently under a sentence of death entered by a circuit
court judge of the Second Judicial Circuit. He has not filed an appeal to this Court
and the time to do so has expired. Nevertheless, this Court in this case is
statutorily mandated by SDCL 23A-27A-12 to consider:
(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 . . . 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.
[¶2.] Robert filed a motion with this Court to vacate this Court’s orders
staying his execution and establishing a briefing schedule. Robert alleges this
Court is without jurisdiction to enter these orders. Robert argues that this Court
only has such jurisdiction explicitly provided by the Legislature and that the
Legislature only requires this Court to review each death sentence. “If the death
penalty is imposed, and if the judgment becomes final in the trial court, the
sentence shall be reviewed by the South Dakota Supreme Court.” SDCL 23A-27A-9.
Robert argues, however, that the obligation to review his sentence does not grant
this Court additional jurisdiction to stay his execution or enter a briefing schedule.
[¶3.] Robert specifically relies upon the first sentence of SDCL 23A-27A-21.
SDCL 23A-27A-21 provides:
No judge, officer, commission, or board, other than the Governor,
may reprieve or suspend the execution of a judgment of death.
However, the warden or deputy warden of the penitentiary is
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authorized so to do in a case and in the manner prescribed in
this chapter or as provided in §§ 23A-27A-24 and 23A-27A-28.
This section does not apply to a stay of proceedings upon appeal
or to the issuance of a writ of habeas corpus, certiorari, or other
original remedial writ of the Supreme Court.
Robert focuses on the first sentence of this statute, insisting that only the Governor
can delay his execution. Robert argues that the “no judge” language of the statute
includes this Court and prohibits it from reprieving or suspending the execution.
Regarding the last sentence of this section, Robert argues that because he has not
filed a notice of appeal, this matter is not “upon appeal.” Therefore, Robert argues
the “stay of proceedings” contemplated by this statute is not available.
[¶4.] The plain language of SDCL 23A-27A-21 does not prohibit this Court
from granting a stay in the present circumstances. Moreover, if this Court’s
obligated sentence review is considered “proceedings upon appeal,” the statute
explicitly contemplates a stay of execution.
[¶5.] The South Dakota Constitution limits this Court’s jurisdiction to two
categories – appellate jurisdiction as provided by the Legislature and jurisdiction to
hear an original or remedial writ. “The Supreme Court shall have such appellate
jurisdiction as may be provided by the Legislature, and the Supreme Court or any
justice thereof may issue any original or remedial writ which shall then be heard
and determined by that court.” S.D. Const. art. V, § 5. As Robert points out, no
original or remedial writ has been filed in this matter. Rather, the Legislature
granted this Court jurisdiction over this matter by mandating that it review
Robert’s sentence. According to the South Dakota Constitution, the Legislature can
provide this Court only with appellate jurisdiction. Therefore, this mandatory
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sentence review per SDCL 23A-27A-12 is necessarily an exercise of this Court’s
appellate jurisdiction.
[¶6.] Circuit courts, not this Court, have original jurisdiction over “all
cases.” “The circuit courts have original jurisdiction in all cases except as to any
limited original jurisdiction granted to other courts by the Legislature. The circuit
courts and judges thereof have the power to issue, hear and determine all original
and remedial writs.” S.D. Const. art. V, § 5. This Court’s legislatively mandated
sentence review is an exercise of appellate, not original, jurisdiction. Even though
no notice of appeal has been filed, this proceeding is an exercise of appellate
jurisdiction to review a lower court’s decision – the definition of an appeal.
[¶7.] An appeal is “a proceeding undertaken to have a decision reconsidered
by bringing it to a higher authority; esp., the submission of a lower court’s or
agency’s decision to a higher court for review and possible reversal.” Black’s Law
Dictionary 105 (8th ed. 2004). This Court’s mandatory sentence review fits this
definition precisely. As Robert points out, when the defendant does not raise
additional issues by filing a notice of appeal, this Court’s review of the circuit court’s
sentence is limited by statute. See SDCL 23A-27A-12. However, it is still the
submission of a lower court’s decision to a higher court for review and possible
reversal. Should this Court so determine, it could set aside Robert’s death sentence
and remand the matter for further sentencing proceedings. Id. Cf. Piper v. Weber,
2009 S.D. 66, 771 N.W.2d 352. While it is true that this proceeding was not
initiated by Robert filing a notice of appeal, it is an exercise of this Court’s appellate
jurisdiction to review the decision of a lower court – a proceeding upon appeal. As
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such, the exception to the prohibition on delaying execution applies. SDCL 23A-
27A-21 (“This section does not apply to a stay of proceedings upon appeal.”).1
[¶8.] Further, the Legislature’s use of “judge” in SDCL 23A-27A-21
reinforces the conclusion that this Court was not included in the prohibition against
delaying an execution. The reading of SDCL 23A-27A-21 urged by Robert requires
this Court’s inclusion in the phrase “no judge.” The Legislature clearly intended “no
judge” to refer to a judge of a circuit court.2 This Court is comprised of justices, not
judges. S.D. Const. art. V, § 2 (“The Supreme Court is the highest court of the state.
It consists of a chief justice and four associate justices.”). “Judges” preside over
circuit courts. Id. § 3 (“The circuit courts consist of such number of circuits and
judges as the Supreme Court determines by rule.”). SDCL 23A-27A-21 specifically
refers to “the Supreme Court” when referencing original remedial writs. Had the
Legislature meant to prohibit this Court from delaying an execution, it would have
said so.3
1. It is also significant that any issues raised by direct appeal are to be
consolidated with this Court’s sentence review. SDCL 23A-27A-10. The
Legislature intended for this proceeding to be conducted as an appeal.
2. The statutory definitions of “judge” found in SDCL 15-12-20, 16-1A-1 and
23A-35A-1 are clearly limited to those chapters in the code and are not
relevant to the constitutional analysis of the term as outlined above.
3. Under the 1889 South Dakota Constitution, both members of the Circuit
Court and Supreme Court held the title of “judge.” S.D. Const. art. V, §§ 3,
14 (1889). In 1972, the Constitutional revision of Article V changed the title
of members of the Supreme Court to “justice.” S.D. Const. art. V, § 2 (revised
1972). Yet in 1979, when the Legislature amended SDCL 23A-27A-21, it
retained the use of the word “judge” in the first sentence of that statute
without adding the word “justice.” This is a clear indication that the
prohibition in the first sentence of SDCL 23A-27A-21 applies only to judges of
the circuit court.
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[¶9.] Moreover, staying this execution comes within this Court’s inherent
authority to preserve the status quo. “It has long been recognized that an appellate
court has inherent power to preserve the status quo pending the appeal, and may
without express statutory authority in a proper case stay proceedings pending
appeal.” Gamet v. Allender, 50 S.D. 150, 208 N.W. 782, 783 (1926). This power
“should always be exercised when any irremediable injury may result . . . .”
Merrimack River Sav. Bank v. City of Clay Ctr., 219 U.S. 527, 534-35, 31 S. Ct. 295,
296, 55 L. Ed. 320 (1911). Failure to preserve the status quo in the present
situation would obviously result in an irremediable injury. Numerous death
penalty cases have emphasized the uniqueness of the death penalty because of its
finality. See, e.g., Piper v. Weber, 2009 S.D. 66, ¶ 19, 771 N.W.2d at 359-60 (“the
finality of a death sentence requires that we accord higher scrutiny to capital
sentencing determinations.”) (citing California v. Ramos, 463 U.S. 992, 998-99, 103
S. Ct. 3446, 3452, 77 L. Ed. 2d 1171 (1983)).
[¶10.] Robert’s interpretation would lead to an absurd result. “[W]e have an
obligation to interpret law in a manner avoiding ‘absurd results . . . .’” Murray v.
Mansheim, 2010 S.D. 18, ¶ 7, 779 N.W.2d 379, 382. This Court is statutorily
required to conduct a review of the death sentence. SDCL 23A-27A-9. Without the
authority to prevent execution of the defendant, this Court could not delay the
execution to allow appropriate time to conduct that review. The death penalty
statutes require the circuit court, after the sentence of death is imposed, to sign a
warrant of execution. SDCL 23A-27A-15. This document must set forth a week
during which the execution shall be completed. Id. Pursuant to statute, the week
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of execution must be between six and eight months from the date the sentence is
determined. SDCL 23A-27A-17. Proceedings under the capital sentencing statutes
are to be conducted in accordance with other applicable rules of appellate procedure.
SDCL 23A-27A-11. The practicalities of abiding by the rules of appellate procedure
do not allow for the mandatory sentence review to be effectively completed within
such a short time period.4 Had the Legislature intended for different procedural
rules to apply to this Court’s mandatory sentence review, it would have provided
those rules. See, e.g., SDCL 23A-27A-9 (providing rules for transmittal of the trial
court record to the Supreme Court when no notice of appeal is filed).
[¶11.] “Where a statute can be construed so as not to violate the constitution,
we will adopt such a construction.” State v. Piper, 2006 S.D. 1, ¶ 50, 709 N.W.2d
783, 804 (internal quotation marks and citations omitted). Robert’s position fails to
recognize the constitutional significance of this Court’s sentence review obligation.
Meaningful appellate review is an important component to the constitutional
4. In a typical appeal, briefing schedules are triggered by completion of the
transcripts. By statute, court reporters have 45 days from the date they
endorse the order for transcripts to prepare the transcripts. SDCL 15-26A-
51. The order for transcripts may not come until ten days after the notice of
appeal is filed. SDCL 15-26A-48. In a criminal appeal, the notice of appeal
must be filed within 30 days of the date the judgment is signed, attested and
filed. SDCL 23A-32-15. In this case, the order for transcripts was signed by
the trial court after Robert’s 30-day period for filing a notice of appeal
expired. Appellant’s brief is due 45 days from the date the completed
transcript is sent to appellant’s attorney. SDCL 15-26A-75. Appellee’s brief
is then due 45 days from the day appellant’s brief is served, and the reply
brief 15 days from the date appellee’s brief is served. Id. Without any
extensions, a typical appeal becomes ready for review 150 days after the
order for transcripts is filed, which usually occurs a month after the sentence
is imposed. This does not consider the necessity of scheduling and hearing
oral argument, or take into consideration any time for this Court to draft,
circulate, and vote on an opinion.
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imposition of the death penalty. In 1972, the United States Supreme Court
“concluded that capital punishment, as then administered under statutes vesting
unguided sentencing discretion in juries and trial judges, had become
unconstitutionally cruel and unusual punishment. The death penalty was being
imposed so discriminatorily, so wantonly and freakishly, and so infrequently, that
any given death sentence was cruel and unusual.” Pulley v. Harris, 465 U.S. 37, 44,
104 S. Ct. 871, 876, 79 L. Ed. 2d 29 (1984) (citing Furman v. Georgia, 408 U.S. 238,
92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)). In response, two-thirds of states enacted
capital sentencing schemes aimed at “limit[ing] jury discretion and avoid[ing]
arbitrary and inconsistent results.” Id. Georgia was one of those states. Four
years after Furman, the United States Supreme Court upheld the Georgia capital
punishment statutory scheme. See id. (citing Gregg v. Georgia, 428 U.S. 153, 96 S.
Ct. 2909, 49 L. Ed. 2d 859 (1976)). The South Dakota capital punishment scheme,
adopted in 1979, is “nearly identical” to Georgia’s. State v. Rhines, 1996 S.D. 55, ¶
75, 548 N.W.2d 415, 437.
[¶12.] The issue in Pulley was whether comparative proportionality review of
a capital sentence is required by the United States Constitution. Pulley, 465 U.S at
43-44, 104 S. Ct. at 876. The Supreme Court held that it is not. Id. at 46, 104 S. Ct.
at 877. But the Pulley majority distinguished mandatory comparative
proportionality review from appellate review. “While emphasizing the importance
of mandatory appellate review under the Georgia statute, . . . we did not hold that
without comparative proportionality review the statute would be unconstitutional.”
Id. at 50, 104 S. Ct. at 879 (citing Zant v. Stephens, 462 U.S. 862, 876, 103 S. Ct.
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2733, 2742, 77 L. Ed. 2d 235 (1983)). The concurrence noted the value placed on
appellate review in the decisions upholding death penalty statutes. “The statutes
we have approved in Gregg, Proffitt, and Jurek were designed to eliminate each of
these defects. Each scheme provided an effective mechanism for categorically
narrowing the class of offenses for which the death penalty could be imposed and
provided special procedural safeguards including appellate review of the sentencing
authority’s decision to impose the death penalty.” Id. at 55, 104 S. Ct. at 882(Stevens, J., concurring in part and concurring in judgment) (referring to the capital
punishment schemes of Georgia, Florida, and Texas).5 The United States Supreme
Court has not gone so far as to hold that a capital punishment scheme without
mandatory appellate review is constitutionally flawed.6 But the value placed on
meaningful appellate review as a protection against unconstitutional imposition of
the death penalty is clear. “To summarize, in each of the statutory schemes
approved in our prior cases, as in the scheme we review today, meaningful appellate
review is an indispensable component of the Court’s determination that the State’s
5. The same day the Supreme Court handed down Gregg (July 2, 1976), the
Court also upheld the capital punishment schemes of Florida and Texas. See
Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976);
Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976).
6. The United State Supreme Court denied certiorari in a federal case where
the Third Circuit Court of Appeals held that appellate review of a death
sentence was not constitutionally required. See United States v. Hammer,
226 F.3d 229 (3d Cir. 2000), cert. denied, 532 U.S. 959, 121 S. Ct. 1488, 149 L.
Ed. 2d 375 (2001) and cert. denied, 534 U.S. 831, 122 S. Ct. 75, 151 L. Ed. 2d
40 (2001) (holding that appellate review of a death sentence imposed under
the Federal Death Penalty Statute was not required).
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capital sentencing procedure is valid.” Id. at 59, 104 S. Ct. at 884 (Stevens, J.,
concurring in part and concurring in judgment).
[¶13.] According to Robert’s interpretation of the capital punishment scheme,
his execution would be required at the time provided by the death warrant, even if
that occurred before this Court completed its appellate review of the sentence.
Therefore, Robert could likely be executed without a review of the sentence, or on
the basis of appellate review conducted in such an abbreviated fashion as to
question its validity.7 From the authority outlined above, application of the capital
punishment statutes in this manner would be constitutionally problematic. “[I]f a
State wishes to authorize capital punishment it has a constitutional responsibility
to tailor and apply its law in a manner that avoids the arbitrary and capricious
infliction of the death penalty.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S. Ct.
1759, 1764, 64 L. Ed. 2d 398 (1980) (plurality opinion) (citations and quotation
marks omitted).
[¶14.] This Court has “note[d] that the United States Supreme Court has
approved a state capital punishment scheme that is nearly identical to South
Dakota’s death penalty laws.” Rhines, 1996 S.D. 55, ¶ 75, 548 N.W.2d at 437. If
our capital punishment statutes are interpreted to allow for imposition of the death
penalty without “meaningful appellate review” of the sentence, relying on the
United States Supreme Court’s approval of the Georgia scheme may no longer be
constitutionally valid. As stated by the concurrence in Pulley, “[w]hile the Court did
7. To be distinguished are instances where the appellant takes his own life
during the appeals process prior to the issuance of an opinion. State v.
Anderson, 2003 S.D. 65, 664 N.W.2d 48.
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not focus on the comparative review element of the scheme in reaffirming the
constitutionality of the Georgia statute, appellate review of the sentencing decision
was deemed essential to upholding its constitutionality.” Pulley, 465 U.S. at 58, 104
S. Ct. at 884 (Stevens, J., concurring in part and concurring in the judgment).
Under Robert’s theory, the constitutional validity of South Dakota’s capital
punishment scheme, as applied, may not be sustainable.
CONCLUSION
[¶15.] Robert’s position interprets “appeal” to not include the present
statutory sentence review. This interpretation ignores that section of the South
Dakota Constitution article V, § 5 that grants this Court “appellate jurisdiction as
may be provided by the Legislature.” That interpretation is also not required by the
plain language of SDCL 23A-27A-21, and would lead to an absurd result.
Additionally, such a reading flies in the face of this Court’s inherent authority to
preserve the status quo pending appellate review. Robert’s position is also not
consistent with the constitutional analysis of the United States Supreme Court. It
would, in essence, result in a post mortem opinion with but a pyrrhic victory for a
successful appellant upon reversal. For all of the above reasons the Motion to
Vacate is denied.
[¶16.] KONENKAMP, ZINTER, SEVERSON, Justices, and MILLER, Retired
Justice, concur.
[¶17.] MILLER, Retired Justice, sitting for WILBUR, Justice, disqualified.
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