State v. Berget

26318-aff in pt, rev in pt & rem-DG
2013 S.D. 1IN 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
TIMOTHY J. BARNAUD
Assistant Attorneys General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
JEFF LARSON
Sioux Falls, South Dakota
and
CASSANDRA McKEOWN
Sioux Falls, South Dakota
and
CHERI SCHARFFENBERG of
Olson, Waltner & Scharffenberg, LLP
Tea, South Dakota Attorneys for defendant
and appellant.
****
ARGUED OCTOBER 1, 2012
OPINION FILED 01/02/13
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GILBERTSON, Chief Justice
[¶1.] Rodney Berget pleaded guilty to the first-degree murder of Ronald
Johnson. Berget waived his right to a jury determination of the appropriate
sentence. After a pre-sentence hearing, the circuit court sentenced Berget to death.
He appeals the imposition of the death penalty. Pursuant to statute, this Court
consolidates those issues raised by Berget with the statutory determinations
required by SDCL 23A-27A-12. See SDCL 23A-27A-10.
FACTS
[¶2.] Berget was convicted of attempted first-degree murder in Lawrence
County in 2003, for events that occurred in June of that year. In connection with
the same events, he was also convicted in Meade County of kidnapping. He
received a life sentence for each conviction. As a result, Berget has been confined to
the South Dakota State Penitentiary since December 2003.
[¶3.] Ronald Johnson worked as a correctional officer at the South Dakota
State Penitentiary for over 23 years. On the morning of April 12, 2011, Johnson
was working in the Pheasantland Industries building located within the walls of the
penitentiary. 1 That same day, Berget and Eric Robert, another inmate, attempted
to escape from the penitentiary. According to Berget’s sworn testimony from the
change of plea hearing, he had been planning this escape since the previous August.
Per their plan, in order to effectuate the escape, Berget and Robert needed the
uniform of a correctional officer. The pair entered the Pheasantland Industries
building in search of a uniformed guard and found Johnson present.
1. Pheasantland Industries is a prison-industry business located within the
walls of the penitentiary.
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[¶4.] At the change of plea hearing, Berget provided the following factual
basis:
About August of last year, I came up with a way to try to get out
of the penitentiary, but I needed to get a guard’s uniform. So on
the 11th of April, I went over to the shop and was going to try to
get a uniform, but there was too many people around. So on the
12th of April, I went over to the laundry where I had a pipe and
grabbed this pipe and went down to the shop.
When I got down to the shop, I waited around the corner until
Officer Johnson came out of the office. And when I seen him
come out of the office, I waited until he got in the back of the
shop. I came as fast as I could without making any noise, and I
started hitting him in the head with my pipe until he went down
and he wasn’t moving any longer.
Later, when specifically asked about his intent in hitting Johnson with the pipe,
Berget replied: “To end his life.” The attack fractured Johnson’s skull in at least
three places. Defense-type injuries were present on Johnson’s hands and arms.
[¶5.] After Berget beat Johnson with the pipe, he and Robert wrapped his
head in plastic wrap. Robert then donned Johnson’s uniform and Berget climbed
into a box placed on a cart. Robert pushed the cart out of the Pheasantland
Industries building toward the west gate of the penitentiary. At the gate,
correctional officer Jodi Hall noticed that Robert did not swipe an identification
badge. She confronted Robert regarding the whereabouts of his badge. When
Robert’s explanation did not satisfy her, she asked him to identify himself. He
responded that he was “Freeburg.” Still not satisfied, she contacted Corporal Matt
Freeburg, a correctional officer also on duty at the gate. Freeburg instructed Hall to
call the officer in charge. Presumably realizing that their plot had been discovered,
Berget jumped from the box, and he and Robert began assaulting Freeburg. When
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Hall observed Berget and Robert assaulting Freeburg, she called a “Code Red –
Code Three.” Quickly surrounded by responding correctional officers, Berget and
Robert surrendered.
[¶6.] Recognizing that Robert was wearing a correctional officer’s uniform,
penitentiary staff searched the premises. They found Johnson in the Pheasantland
Industries building and observed that he had been severely beaten and plastic wrap
had been completely wrapped around his head. The officers that found him
removed the plastic wrap and began CPR. Lifesaving efforts by the correctional
officers, as well as those by responding medical personnel, proved futile.
[¶7.] Berget was indicted on charges of first-degree murder, felony murder,
and simple assault on April 26, 2011. On November 17, 2011, against advice of
counsel, Berget entered a plea of guilty to the first-degree murder charge. After
carefully canvassing Berget and his attorney, the circuit court found that the plea
was entered voluntarily, intelligently, and knowingly. Based on the submission to
the circuit court of a psychiatric evaluation, as well as counsel’s opinion as to
Berget’s competency, the circuit court determined Berget competent to proceed. 2
2. In State v. Robert, this Court inquired into the competency of the defendant
sua sponte. 2012 S.D. 60, ¶ 14, 820 N.W.2d 136, 141-42. The distinction
between the present situation and that presented in Robert is that, in Robert,
the circuit court was not given an opportunity to review a psychiatric
evaluation performed on Robert for the purpose of determining his
competency. Here, Berget allowed the circuit court to review the evaluation.
The circuit court’s review of the evaluation did not raise any concerns
regarding Berget’s competency. Because the circuit court reviewed the
evaluation, and all parties agree that Berget’s competency is not an issue,
this Court finds no reason to visit the issue of Berget’s competency.
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[¶8.] The circuit court then advised Berget of his right to have a jury
empaneled in order to determine his sentence. Berget waived this right, electing to
proceed with the court’s determination of sentence. Even after being advised and
reminded that the court had previously sentenced Eric Robert to death, Berget
chose to proceed with the same judge determining the sentence.
[¶9.] Pursuant to SDCL 23A-27A-2 and 23A-27A-6, a pre-sentence hearing
was conducted on January 30, 2012 through February 2, 2012. After all evidence
had been received, the court issued its ruling on February 6, 2012. The circuit court
found the existence of two of the statutory aggravating circumstances enumerated
in SDCL 23A-27A-1, recited its consideration of the mitigating evidence and non-
statutory aggravating factors presented at the pre-sentence hearing, and sentenced
Berget to death. Berget timely filed a notice of appeal.
[¶10.] Berget raises several issues on appeal. In addition, this Court is
statutorily required to make certain determinations each time a sentence of death is
imposed. See SDCL 23A-27A-12. We will first make the determinations required
by SDCL 23A-27A-12, and then turn our attention to those issues raised by Berget.
ANALYSIS AND DECISION
[¶11.] When a sentence of death is imposed, SDCL 23A-27A-12 requires that
this Court make three determinations. This section provides:
With regard to the sentence, the Supreme Court shall
determine:
(1) Whether the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary
factor; and
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(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.
[¶12.] Issue 1: Whether the sentence of death was imposed under
the influence of passion, prejudice, or any other
arbitrary factor.
[¶13.] The circuit court assured that it would provide, in writing, all factors
weighing into its consideration of the sentence. The court drafted a pre-sentence
verdict fulfilling that assurance. A review of the pre-sentence verdict reveals that
the circuit court, in forming its sentence, properly considered both the offense and
the characteristics of Berget. Importantly, when discussing non-statutory
aggravating factors, the court focused its attention on two issues: the nature of the
offense and Berget’s history. These are appropriate considerations in determining
whether to impose the death penalty. SDCL 23A-27A-2. The record does not reflect
that the sentence of death was imposed under passion, prejudice, or any other
arbitrary factors. 3
[¶14.] Issue 2: Whether the evidence supports the judge’s finding
of aggravating circumstances as enumerated in
SDCL 23A-27A-1.
[¶15.] The circuit court found the existence of the aggravating circumstances
from SDCL 23A-27A-1(7) and (8). The State argues that the evidence supports a
3. Berget insists the victim-impact evidence presented in this case improperly
influenced the circuit court. For a more complete analysis of this issue, see
infra ¶¶ 78-84.
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finding of additional statutory aggravating circumstances. However, our task in
this statutorily-mandated sentence review is to determine whether the evidence
supports the judge’s finding of a statutory aggravating circumstance. See SDCL
23A-27A-12. Therefore, we limit our review to those aggravating circumstances
found by the circuit court.
[¶16.] Aggravating circumstance seven (SDCL 23A-27A-1(7)) requires a
finding that: “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[.]” At the pre-sentence hearing, Douglas
Weber, Chief Warden for the State of South Dakota, testified that Ronald Johnson
was an employee of the South Dakota State Penitentiary and was on duty as a
correctional officer the morning of April 12, 2011. The evidence supports the judge’s
finding of the aggravating circumstance contained in SDCL 23A-27A-12(7). Berget
does not dispute this.
[¶17.] Aggravating circumstance eight (SDCL 23A-27A-1(8)) requires a
finding that: “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[.]”
Warden Weber also testified, and it is not disputed, that Berget was lawfully
confined to the penitentiary on April 12, 2011. The evidence supports the finding of
this statutory aggravating circumstance beyond a reasonable doubt as well.
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[¶18.] Issue 3: Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar
cases, considering both the crime and the
defendant.
[¶19.] The final mandated inquiry—the proportionality of Berget’s sentence—
was also included by Berget as an issue on direct appeal, but will be addressed here.
He argues that the sentence of death is both externally and internally
disproportionate to his crime.
[¶20.] We are required to determine whether Berget’s sentence is
disproportionate to the sentence imposed in “similar cases.” “With regard to the
sentence, the Supreme Court shall determine: . . . (3) Whether the sentence of death
is excessive or disproportionate to the penalty imposed in similar cases, considering
both the crime and the defendant.” SDCL 23A-27A-12. Those cases considered
similar for purposes of this review are well-settled.
This Court’s previous decisions have acknowledged that our
analysis of similar cases under SDCL 23A-27A-12(3) compares
cases involving a capital sentencing proceeding, whether life
imprisonment or a death sentence was imposed. “Because the
aim of proportionality review is to ascertain what other capital
sentencing authorities have done with similar capital murder
offenses, the only cases that could be deemed similar are those
in which imposition of the death penalty was properly before the
sentencing authority for determination.”
State v. Piper, 2006 S.D. 1, ¶ 37, 709 N.W.2d 783, 800-01 (quoting State v. Rhines,
1996 S.D. 55, ¶ 185, 548 N.W.2d 415, 455-56). This Court recently identified those
cases falling within this “universe.” State v. Robert, 2012 S.D. 60, ¶ 29, 820 N.W.2d
136, 145. As we did in Robert, we take judicial notice of the summaries of the
“universe” of cases set forth in our previous proportionality decisions. We also
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include the Robert case, and take judicial notice of the circumstances therein as set
forth in our opinion. See id.[¶21.] For purposes of comparative proportionality review, “a death sentence
is comparatively excessive if other defendants with similar characteristics generally
receive sentences other than death for committing factually similar offenses in the
same jurisdiction.” Rhines, 1996 S.D. 55, ¶ 205, 548 N.W.2d at 457 (quoting State v.
Bey, 645 A.2d 685, 689 (N.J. 1994)).
[¶22.] Berget argues that because the circuit court found only two statutory
aggravating circumstances, his death penalty is disproportionate to those cases in
which several aggravators were established. He points specifically to Rhines, where
three aggravators were found, and Piper, where there were five. As pointed out by
the State, in each of the cases included in the proportionality “universe” wherein
this Court has affirmed the death sentence, multiple aggravators were present.
Recently, this includes Eric Robert, where the circuit court found the presence of
the same two aggravators found here, and this Court determined that the sentence
was not disproportionate or excessive. Robert, 2012 S.D. 60, ¶¶ 23-26, 40, 820
N.W.2d at 144-45, 148. The circuit court found the presence of two aggravators in
determining Berget eligible for the death penalty. The fact that more than two
aggravators were found in other death penalty cases does not, in itself, render
Berget’s sentence excessive or disproportionate to those cases—comparative
proportionality does not turn on simple arithmetic.
[¶23.] Berget also argues that, unlike other cases in the “universe,” he
showed genuine remorse. His contention that he showed remorse may not stand up
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to careful reading of his allegedly remorseful statement. 4 Even if he did express
remorse, such an expression does not preclude imposition of the death penalty. For
example, this Court found that the death sentence of Piper was neither
disproportionate nor excessive, even after Piper apologized to his victim’s family in
open court. Piper, 2006 S.D. 1, ¶¶ 32, 43, 709 N.W.2d at 800, 802.
[¶24.] Berget compares his case to State v. Adams. Therein, the jury found
the existence of aggravated battery to be an aggravating circumstance but did not
impose the death penalty. Rhines, 1996 S.D. 55, ¶ 188, 548 N.W.2d at 456. The
mitigating circumstances present in Adams included the use of alcohol immediately
prior to the crime. Id. There has been no claim made that Berget was under the
influence of any substance at the time of the murder of Johnson.
[¶25.] Berget argues that the facts of Adams, Swallow, Waff, Hoadley, and
Wright were all more egregious than the present facts. See id. ¶¶ 188, 200, 204
(discussing Adams, Swallow, and Waff); Robert, 2012 S.D. 60, ¶¶ 31, 39, 820
N.W.2d at 146-48 (discussing Wright and Hoadley). Even assuming that to be true,
a proportionality review requires consideration of both the crime and the criminal.
“Proportionality review focuses not only on the crime, but also on the defendant.”
Piper, 2006 S.D. 1, ¶ 96, 709 N.W.2d at 818. At the time he was sentenced, Berget
had previously been convicted of attempted murder and kidnapping. The
kidnapping charge included forcing the young woman he had abducted to engage in
sexual intercourse with him while he eluded police at speeds approaching 100 miles
per hour. Further, the State presented evidence of multiple escape attempts
4. For a more thorough analysis of this issue, see infra ¶ 51.
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throughout Berget’s lengthy periods of incarceration. None of the cases cited by
Berget involves similar criminal histories. Considering both the crime and the
defendant, Berget’s death sentence is not disproportionate to similar cases.
[¶26.] Berget also asserts that his sentence is internally disproportionate; i.e.,
disproportionate to the sentence received by his co-defendant, Robert. At the
change of plea hearing, Berget acknowledged his role in planning the escape
attempt, physically striking Johnson with the pipe, and intending for his blows to
kill Johnson. (Robert also acknowledged responsibility for killing Johnson.)
Further, Berget and Robert had both been convicted of prior violent crimes,
resulting in extensive prison sentences.
[¶27.] Berget does not challenge the similarity between the facts of the
offense for which he and Robert were sentenced to death, but contrasts his
background and characteristics with those presented in Robert’s case. Berget
presented mitigating evidence focusing on the tragedy of his childhood. The
sentencing court was presented with no such mitigating evidence in sentencing
Robert. Berget claims that this disparity between the individuals, himself and
Robert, renders his death sentence disproportionate to Robert’s.
[¶28.] Berget compares this matter to the differences between the sentences
received in Hoadley and Piper. In Piper, this Court considered whether Piper’s
death sentence was disproportionate to the sentence of life without parole received
by co-defendant Hoadley. Id. ¶¶ 69-96. In comparing the sentences received by
Hoadley and Piper, Berget focuses on the individuals. Berget points out that
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Hoadley had a miserable childhood, similar to his own. See id. ¶ 93. He further
points out that Piper was raised in a loving family, as was Robert. See id.
[¶29.] In addressing the internal proportionality of sentences between co-
defendants Piper and Hoadley, this Court considered the relative backgrounds of
the defendants. Id. This Court also focused on their relative degree of culpability.
If Hoadley had been absent that fateful day, there is nothing in
the record to indicate that the torture/murder of Poage would
not have taken place anyway. Piper and Page jointly planned
and initiated it. On the other hand, if Piper had not been
present that day, there is no evidence to indicate that Hoadley
would have planned and executed the murder.
Id. ¶ 95. Berget testified to planning the attack and being the physical aggressor.
The pipe used as a weapon contained Johnson’s blood and Berget’s DNA. Robert
also confessed to the crime, and to his intent to kill Johnson. Robert, 2012 S.D. 60,
¶ 38, 820 N.W.2d at 147. In contrast to the disparate relative culpability of Hoadley
and Piper, there is no way to distinguish the relative culpability between Berget
and Robert.
[¶30.] The comparison between sentences received is much more similar to a
comparison of the sentences received by Piper and Page than to those received by
Piper and Hoadley. The most significant and readily-apparent distinction between
Berget and Robert is the quality of their upbringing. Berget suffered physical abuse
at the hands of his alcoholic father. He was imprisoned in the penitentiary for the
first time at age 15. Robert, on the other hand, had a college degree, was loved by
his mother, and had accumulated substantial wealth through hard work and
saving. Id. ¶ 34.
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[¶31.] Piper and Page also pleaded guilty to the same murder. Piper
presented substantial evidence in mitigation relating to the quality of his
upbringing, including his involvement in Boy Scouts. Piper, 2006 S.D. 1, ¶ 32, 709
N.W.2d at 800. Upon reviewing this evidence, the sentencing court noted that “no
doubt that at one time [he was] a good kid and a good scout.” Id. Page, on the other
hand, presented mitigating evidence regarding his terrible childhood. See State v.
Page, 2006 S.D. 2, ¶ 51, 709 N.W.2d 739, 759. Regarding this evidence, the
sentencing court noted: “Your early years must have been a living hell. Most people
treat their pets better than your parents treated their kids.” Id. The death
sentences of both Piper and Page withstood proportionality review by this Court.
See id. ¶ 65; Piper, 2006 S.D. 1, ¶ 96, 709 N.W.2d at 818. Similarly, the contrasting
backgrounds of Berget and Robert do not render their death sentences
disproportionate.
[¶32.] We now turn our attention to those issues raised by Berget.
[¶33.] Issue 4: Whether Berget knowingly and intelligently waived
his right to a sentencing jury.
[¶34.] Berget argues that because he was advised at the time of his change of
plea that he would have the right to confront any witnesses the State called in the
pre-sentence hearing, and because evidence was admitted at that hearing over his
hearsay objections, his waiver of a jury’s determination of the appropriate sentence
was not knowing and intelligent.
[¶35.] Other than the testimony of Dr. Bean, which is addressed below,
Berget’s counsel was aware of the witnesses the State would produce and was
aware of the contents of the letters containing victim-impact evidence. Berget made
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no attempt to withdraw his waiver of a jury’s determination of sentence, even after
the circuit court made its evidentiary determinations. Furthermore, Berget does
not argue that his right of confrontation would somehow be changed in front of a
jury rather than in front of the judge. If Berget had the right of confrontation at
sentencing, he would have had it before either a jury or a judge.
[¶36.] The circuit court’s evidentiary rulings of which Berget complains
hinged on application of the right of confrontation at the sentence-selection phase of
these proceedings. They do not appear to turn on whether the evidence was
presented before a judge or a jury. Berget has not established that he relied on any
allegedly improper advisement in waiving his right to a sentencing jury. 5
Therefore, the propriety of the waiver is not implicated by the circuit court’s
allegedly improper advisement.
[¶37.] Issue 5: Whether the death sentence was improperly based
on extra-record evidence.
[¶38.] Berget argues that the death sentence was improperly based on extra-
record evidence. He states that this reliance on extra-record evidence deprived him
of his constitutional right to confront and cross-examine his accusers. Specifically,
Berget argues that the circuit court erroneously (1) used the report of Dr. Bean, a
psychiatrist who examined Berget, as evidence against him 6; (2) relied on Berget’s
5. It is important to note that Berget, on appeal, makes no attempt to challenge
the validity of his guilty plea based on the allegedly improper advisement.
6. Because of our determination of the use of the Dr. Bean report under the
Fifth Amendment analysis, we decline to address whether use of the report
was error based solely on its classification as “extra-record” evidence. See
infra ¶¶ 91-118.
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statements from the change of plea hearing as a source of facts of the offense; and
(3) made reference to a second accomplice, Nordman, who did not appear in the
record. Berget argues that these errors violated his constitutional rights. This
Court reviews alleged constitutional violations de novo. Piper, 2006 S.D. 1, ¶ 18,
709 N.W.2d at 795 (citing State v. Martin, 2003 S.D. 153, ¶ 13, 674 N.W.2d 291,
296).
[¶39.] Berget faults the circuit court for relying on Berget’s comments from
the change of plea hearing where he provided a factual basis to support his guilty
plea. A factual basis is required before a circuit court can enter a judgment on a
guilty plea. SDCL 23A-7-2. This Court requires the factual basis to “appear clearly
on the record.” State v. Schulz, 409 N.W.2d 655, 658 (S.D. 1987) (citing McCarthy v.
United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969)). At the change
of plea hearing, Berget was placed under oath and, in open court, provided a factual
basis to support his guilty plea.
[¶40.] In pronouncing sentence, the circuit court quoted from Berget’s own
statements. Berget argues that the factual basis from the change of plea hearing
was not properly admitted in the sentencing hearing, and thus, this evidence was
unavailable at the sentencing hearing.
[¶41.] The facts of the crime are obviously critical to the sentencing phase of
a capital penalty proceeding. Of the ten aggravating circumstances enumerated in
SDCL 23A-27A-1, nine hinge on some aspect of the act for which the defendant was
convicted. In a sentencing hearing without a jury, it is the judge’s role to determine
the existence of an aggravating factor. SDCL 23A-27A-6. Certainly, the
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defendant’s in-court statements concerning the offense are relevant. Berget argues
that had his comments from the change of plea hearing been offered by the State,
he would have made a Fifth Amendment objection. But Berget clearly waived his
right against self-incrimination at the change of plea hearing before making his
statement. After Berget waived his Fifth Amendment privilege and made his
statement, that statement became admissible against him in further proceedings,
including at sentencing. 7 “At least once the plea has been accepted, statements or
admissions made during the preceding plea colloquy are later admissible against
the defendant, as is the plea itself.” Mitchell v. United States, 526 U.S. 314, 324,
119 S. Ct. 1307, 1313, 143 L. Ed. 2d 424 (1999). 8 Berget takes the position,
however, that even if the statement was admissible, it was not admitted into
7. At the change of plea hearing, before Berget entered his guilty plea, the
circuit court advised Berget:
You were also advised that you have a right against self-
incrimination, meaning that you don’t have to testify against
yourself and don’t have to put on any evidence whatsoever; but
if you enter a guilty plea, you’d be waiving that right against
self-incrimination. Neither the Court nor the State can ask you
questions about the events that took place regarding Count I,
and anything you say will be used as to the factual basis of your
guilty plea, as well as could be used at sentencing or potentially
otherwise.
Berget acknowledged his understanding.
8. Mitchell holds that such a statement does not necessarily waive the privilege
against self-incrimination at sentencing. Mitchell, 526 U.S. 314, 324, 119 S.
Ct. 1307, 1313,143 L. Ed. 2d 424 (1999). Here, however, Berget was placed
under oath and specifically told that any statement he made could be used at
sentencing. See supra note 7.
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evidence at the pre-sentence hearing, and therefore, was off-limits for use by the
circuit court in determining a sentence.
[¶42.] Applying the dictionary definition of “record,” Berget’s statements from
his change of plea hearing were part of the record in this case. “Usually ‘record’
refers to the official report of the proceedings in any case, and it has three parts: all
the filed papers in the case; the verbatim transcript of hearings, conferences and
testimony; and the tangible exhibits that the parties put in evidence.” Bryan A.
Garner, A Dictionary of Modern Legal Usage 741 (2d ed. 1995). The statement
utilized by the circuit court was verbatim from the transcript of Berget’s change of
plea hearing. Thus, Berget’s statements at the change of plea hearing were part of
the record, not extra-record evidence as argued by Berget.
[¶43.] In his reply brief, Berget argues that he had no idea that his
statements made at the change of plea hearing could be used against him in later
proceedings. Otherwise, Berget argues, he would have required that the factual
basis be established from other sources. See State v. Thin Elk, 2005 S.D. 106, ¶ 22,
705 N.W.2d 613, 619. The statement by Berget described the crime, was made in
open court after he was sworn to tell the truth, and was made after a knowing and
intelligent waiver of the privilege against self-incrimination. It is reasonable to
conclude that the statement’s use and admissibility against Berget would occur in
future court proceedings.
[¶44.] Berget further argues that the circuit court considered extra-record
evidence because the pre-sentence verdict contains a passing reference made to the
third accomplice in this matter—Nordman. As the State points out, the reference
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was made as a sort of disclaimer meant to insulate any of the court’s comments
regarding the facts of the crime from consideration in Nordman’s then-pending
criminal prosecution. Berget fails to establish how this isolated comment reveals
consideration of extra-record information in the circuit court’s determination of his
sentence.
[¶45.] Neither Berget’s statements from the change of plea hearing nor the
knowledge of the existence of accomplice Nordman were improperly utilized by the
circuit court in determining Berget’s sentence. A de novo review of the errors urged
by Berget reveals no constitutional infirmity regarding the circuit court’s use of
Berget’s statement from the change of plea hearing, or the reference to Nordman.
[¶46.] Issue 6: Whether Berget was deprived of an individualized
sentencing determination.
[¶47.] Berget argues that the sentencing court, which had previously imposed
the death penalty on Robert, was unable to separate the facts of Berget’s case from
Robert’s, depriving Berget of an individualized sentencing determination. For
support, Berget points to the similarities between the pre-sentence hearing verdicts
entered in both Berget’s and Robert’s cases. He argues that the similarities
illustrate the sentencing court’s inability to compartmentalize the facts presented in
his case from those presented in Robert’s. In support, Berget relies on Lockett v.
Ohio for the proposition that “an individualized decision is essential in capital
cases.” See 438 U.S. 586, 605, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973 (1978).
[¶48.] The issue in Lockett was the constitutionality of a death penalty
scheme that, upon finding a defendant guilty with at least one of seven specified
aggravating factors, required imposition of the death penalty unless the sentencing
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judge found one of three enumerated mitigating circumstances by a preponderance
of the evidence. Id. at 607, 98 S. Ct. at 2966. “[U]nder the Ohio court’s construction
of the statute, only the three factors specified in the statute can be considered in
mitigation of the defendant’s sentence.” Id. at 608, 98 S. Ct. at 2966. The Supreme
Court rejected this approach, holding that the Eighth and Fourteenth Amendments
require the sentencing authority to evaluate the individual before imposing the
death penalty. “The limited range of mitigating circumstances which may be
considered by the sentencer under the Ohio statute is incompatible with the Eighth
and Fourteenth Amendments. To meet constitutional requirements, a death
penalty statute must not preclude consideration of relevant mitigating factors.” Id.
at 608, 98 S. Ct. at 2967.
[¶49.] This Court has recognized this requirement. “In determining whether
an individual eligible for the death penalty should in fact receive that sentence, the
law demands that the jury make an individualized determination on the basis of the
character of the individual and the circumstances of the crime.” Rhines, 1996 S.D.
55, ¶ 80, 548 N.W.2d at 437 (quoting Tuilaepa v. California, 512 U.S. 967, 972, 114
S. Ct. 2630, 2635, 129 L. Ed. 2d 750, 760 (1994)). This Court reiterated this
requirement in Page. 2006 S.D. 2, ¶ 49, 709 N.W.2d at 757 (citing Lockett, 438 U.S.
586, 98 S. Ct. 2954). Nothing in Lockett, Page, or Rhines precludes the same
sentencing authority from conducting the individualized sentencing determinations
of two defendants convicted of the same crime. “The requirement of individualized
sentencing in capital cases is satisfied by allowing the [sentencing authority] to
consider all relevant mitigating evidence.” Rhines, 1996 S.D. 55, ¶ 80, 548 N.W.2d
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at 437 (quoting Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S. Ct. 1078, 1083,
108 L. Ed. 2d 255, 264 (1990)).
[¶50.] Berget points specifically to references to Nordman and blood-splatter
evidence in the pre-sentence verdict as proof that the circuit court did not sequester
Robert’s facts from his own. However, the references made in the pre-sentence
verdict to blood-splatter evidence are adequately supported in Berget’s record. The
passing reference made to Nordman is adequately addressed above.
[¶51.] Berget also claims the pre-sentence verdict ignores a statement of
remorse he made at the sentencing hearing. In so doing, Berget implies that the
sentencing court confuses his case with Robert’s, where the court found that Robert
demonstrated no remorse. At the sentencing hearing, Berget said: “I destroyed a
family. I took away a father, a husband, a grandpa.” This demonstrates
acknowledgement of the consequences of his actions, not remorse. No remorseful
word or phrase is present or can be logically inferred from this passage. There is no
indication that the circuit court confused Berget’s lack of remorse with Robert’s.
[¶52.] Robert and Berget jointly murdered Johnson during their joint escape
attempt. The facts recited by the sentencing court in both pre-sentence verdicts are
similar because, in fact, they are, at a minimum, similar facts. The circuit court
chose to use similar language in certain places when characterizing similar or
identical facts rather than engage in a time-consuming exercise in semantics
resulting in divergent language between the two verdicts. Rather than a short-cut,
illustrating confusion between the defendants, this is a proper and expedient use of
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judicial resources. It does not equate to a deprivation of Berget’s right to an
individualized sentencing determination.
[¶53.] This Court has previously analyzed whether the same circuit court can
engage in an individualized sentencing determination after imposing the death
penalty on a co-defendant. In Page, this Court addressed: “Whether the circuit
judge should have recused himself from sentencing Page after it imposed the death
penalty on co-defendant Piper.” 2006 S.D. 2, ¶ 12, 709 N.W.2d at 749. Like Page,
Berget made no motion to recuse the sentencing judge prior to sentencing.
The decision to preside over a case lies within the sound
discretion of the trial judge. [State v.] Hoadley, 2002 S.D. 109, ¶
32, 651 N.W.2d [249,] 257 (quoting [State v.] Goodroad, 1997
S.D. 46, ¶ 25, 563 N.W.2d [126,] 132). As we have consistently
stated, this Court presumes a judge was impartial absent a
specific and substantial showing to the contrary. Id. ¶ 32 (citing
United States v. Walker, 920 F.2d 513, 517 (8th Cir. 1990)
(citation omitted)).
...
Similarly, we do not believe Page has presented any evidence to
constitute a legitimate basis on which to call into question the
circuit judge’s impartiality. As grounds for disqualification,
Page contends the circuit judge exhibited empathy and/or
sympathy for the victim and did not sufficiently consider
mitigation evidence. These arguments, however, do not
establish a deep-seated antagonism against Page by the circuit
judge or suggest Page was prejudiced from an extrajudicial
source. Absent such a showing that a fair judgment was
impossible, it was not error for the circuit judge to sentence Page
after sentencing his co-defendant Piper, and, therefore, Page has
failed to show plain error.
Id. ¶¶ 16-17, 709 N.W.2d at 749-51.
[¶54.] As in Page, 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
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circuit judge to sentence [Berget] after sentencing his co-defendant [Robert].” See
id. ¶ 17. The similarities between Berget’s pre-sentence verdict and that of Robert
do not establish that Berget was deprived of an individualized sentencing
determination.
[¶55.] Issue 7: Whether the rules of evidence and the right of
confrontation apply at a capital punishment
sentencing hearing and were violated by the circuit
court.
[¶56.] Berget next argues that the rules of evidence and the right of
confrontation apply at pre-sentence hearings conducted pursuant to SDCL ch. 23A-
27A, and that the circuit court’s decision to allow hearsay evidence violated his
constitutional right of confrontation. In order to make this claim, Berget first
attempts to distinguish a capital sentencing proceeding from the provisions of
SDCL 19-9-14 (Rule 1101), which exempts the rules of evidence from certain
situations, including sentencing proceedings. This section provides in relevant part:
Except as otherwise provided in this section, chapters 19-9 to
19-18, inclusive, apply to all actions and proceedings in the
courts of this state. Those chapters other than those with
respect to privileges do not apply in the following situations: . . .
(4) Sentencing, or granting or revoking probation.
Id.
[¶57.] Berget attempts to distinguish a capital punishment pre-sentence
hearing from a typical criminal sentencing situation by virtue of the special
characteristics of such proceeding. Berget points to other jurisdictions with rules
expressly providing that the rules of evidence do not apply in capital punishment
proceedings. Because South Dakota contains no such provision, Berget argues, the
rules should apply.
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[¶58.] Berget provides authority from other jurisdictions supporting his
position that the rules of evidence apply at capital sentencing hearings. The weight
of authority, however, is to the contrary. “Most death-penalty states follow the
federal practice conducting capital sentencing hearings that are not subject to the
same state rules of evidence that apply at the guilt phase.” John G. Douglass,
Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L.
Rev. 1967, 1981 (2005).
[¶59.] Berget complains that the circuit court violated the rules of evidence
and his right to confrontation regarding evidence concerning the circumstances
surrounding his criminal record. He makes this an issue of constitutional
magnitude by focusing on the right of confrontation. Specifically, Berget argues
that the circuit court improperly admitted evidence of remote prior conduct, as well
as the facts underlying his 2003 attempted murder conviction. This evidence is not
relevant to any of the statutory aggravating circumstances found by the circuit
court; nor does he make an argument that the presentation of this evidence
improperly influenced the circuit court regarding its finding of the statutory
aggravating circumstances.
[¶60.] There are two separate inquiries to be made after a pre-sentence
hearing is conducted pursuant to SDCL ch. 23A-27—a defendant’s eligibility for the
death penalty and, assuming the defendant is so eligible, selection of the sentence—
either life or death. The first determination hinges upon proof beyond a reasonable
doubt of at least one of the aggravating circumstances contained in SDCL 23A-27A-
1. SDCL 23A-27A-3, -4, -6. Should at least one aggravating circumstance be found,
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the defendant is eligible to receive the death penalty. The sentencer must then
select between a sentence of life without parole and a sentence of death. The
United States Supreme Court has recognized the distinct inquiries in capital
sentencing. “Our capital punishment cases under the Eighth Amendment address
two different aspects of the capital decisionmaking process: the eligibility decision
and the selection decision.” Tuilaepa, 512 U.S. at 971, 114 S. Ct. at 2634.
[¶61.] It is to the selection inquiry that mitigating evidence and evidence of
non-statutory aggravating factors are relevant. Evidence regarding Berget’s
criminal history, his characteristics, and circumstances of his behavior, which could
be gleaned from the details of his criminal history, are non-statutory aggravating
factors relevant to the selection inquiry. See SDCL 23A-27A-2. This Court has
recognized the sentencing authority’s discretion regarding the sentence-selection
decision. “Additionally, we acknowledge that once aggravating circumstances have
been proven beyond a reasonable doubt, the lower court has broad discretion in
determining whether to sentence a particular defendant to death.” Piper, 2006 S.D.
1, ¶ 28, 709 N.W.2d at 798 (citing Rhines, 1996 S.D. 55, ¶ 174, 548 N.W.2d at 454).
Because the evidence about which Berget complains is relevant only to the selection
inquiry, not the death eligibility inquiry, we restrict our analysis to whether the
circuit court erred in admitting evidence relevant to sentence-selection.
[¶62.] We are not the first court to grapple with this issue. Because this is an
issue implicating the Sixth Amendment to the United States Constitution, other
courts’ analyses of the same issue in the Sixth Amendment context are relevant.
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Applying the Federal Death Penalty Act, the Fifth Circuit has framed and resolved
the issue in this way:
Rather, all of the challenged statements were introduced as part
of the government’s effort to establish [defendant’s] past violent
conduct and future dangerousness, both of which are
nonstatutory aggravating factors that were included in the
government’s notice. The establishment of nonstatutory
aggravating factors is neither necessary nor sufficient to
authorize imposition of the death penalty. Nonstatutory
aggravating factors may be considered by the jury in selecting
an appropriate sentence once a defendant is found eligible for
the death penalty, but they are not, and cannot be, used to
determine that eligibility, as the Supreme Court has explained:
“Statutory aggravating circumstances play a constitutionally
necessary function at the stage of legislative definition: they
circumscribe the class of persons eligible for the death penalty.
But the Constitution does not require the jury to ignore other
possible aggravating factors in the process of selecting, from
among that class, those defendants who will actually be
sentenced to death.” Zant v. Stephens, 462 U.S. 862, 878, 103 S.
Ct. 2733, 77 L. Ed. 2d 235 (1983). Because they relate only to
nonstatutory aggravating factors, the hearsay statements
challenged by [defendant] are relevant only to the jury’s
selection of an appropriate punishment from within an
authorized range and not to the establishment of his eligibility
for the death penalty. After reviewing the applicable caselaw
and considering the particular importance of “individualized
sentencing” in capital cases, we conclude that the Confrontation
Clause does not operate to bar the admission of testimony
relevant only to a capital sentencing authority’s selection
decision.
United States v. Fields, 483 F.3d 313, 325-26 (5th Cir. 2007), cert. denied, 552 U.S.
1144 (2008). 9 While the United States Supreme Court’s confrontation
jurisprudence has not escaped criticism in the capital sentencing context, the Court
9. The Fifth Circuit recently reaffirmed this holding. United States v. Ebron,
683 F.3d 105, 155 (5th Cir. 2012).
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has, for decades, refused to mandate that the right of confrontation applies in the
capital sentencing selection phase of a capital punishment proceeding. 10
[¶63.] Liberal admission of evidence at the capital punishment selection
stage, unimpeded by the requirement of confrontation, provides the sentencer with
a complete picture of the character of the individual defendant. “What is important
at the selection stage is an individualized determination on the basis of the
character of the individual and the circumstances of the crime.” Zant, 462 U.S. at
879, 103 S. Ct. at 2743-44. Toward this end, it is necessary that the sentencing
authority be given access to all information relevant to this decision. “Capital
sentencing procedures that permit the jury to exercise wide discretion in evaluating
mitigating and aggravating facts are consistent with an individualized sentencing
determination.” Rhines, 1996 S.D. 55, ¶ 80, 548 N.W.2d at 437.
[¶64.] Liberal admission of information utilized in the capital sentence-
selection phase agrees with our view of the use of evidence in non-capital
sentencing. “Due process does not require that the scope of information reviewed by
the sentencing judge be controlled by the rules of evidence, and consideration of out-
10. Today, federal appellate courts continue to cite Williams for the
proposition that the Confrontation Clause does not apply at
sentencing, whether capital or otherwise. At sentencing,
prosecutors remain free to rely on hearsay that would be barred
at trial by the Confrontation Clause. Thus, in capital
sentencings, courts have allowed summary testimony from
police and from expert witnesses, noting that such testimony
satisfies the Constitution so long as the defendant is given an
opportunity to rebut it.
Douglass, 105 Colum. L. Rev. at 1980 (citing Williams v. New York, 337 U.S.
241, 245-46, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949)).
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of-court information and hearsay evidence is not precluded.” State v. Habbena, 372
N.W.2d 450, 458 (S.D. 1985) (quoting State v. Ellefson, 287 N.W.2d 493, 496 (S.D.
1980) (citing Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337(1949))). From our review of the applicable authority, we conclude that the right of
confrontation does not operate to bar the admission of evidence relevant only to a
capital sentencing authority’s selection decision. 11 Because Berget does not
challenge the admission of evidence relevant to the statutory aggravating
circumstances found by the circuit court, the circuit court did not violate Berget’s
right of confrontation, nor did it abuse its discretion in admitting the complained-of
evidence.
[¶65.] This does not mean, however, that the sentence-selection
determination is a free-for-all at which any information can be presented to the
sentencing authority, regardless of its reliability. Due process requires “that a
defendant cannot be sentenced to death on the basis of information undisclosed to a
defendant and contained in a presentence report because, to satisfy due process, a
capital defendant must be given a chance to rebut or explain adverse information
introduced at sentencing.” Fields, 483 F.3d at 328-29 (quoting Gardner v. Florida,
430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977)). Further, “[a] defendant may
not be sentenced on the basis of ‘misinformation of constitutional magnitude.’ . . .
Accordingly, due process requires that some minimal indicia of reliability
11. This should not be read to address the applicability of the right of
confrontation during presentation of evidence relevant to the death eligibility
determination, i.e., evidence relevant to one of the statutorily enumerated
aggravated circumstances found in SDCL 23A-27A-1.
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accompany a hearsay statement.” Id. at 337 (internal citations and quotation
marks omitted).
[¶66.] Berget does not allege that he was not given a chance to rebut or
explain the information admitted at the sentencing hearing about which he
complains. Nor does he challenge the reliability of the information. He offers that
he moved in limine to exclude some of the information of which he now complains,
demonstrating his knowledge that the information would be used and therefore his
opportunity to rebut or explain the information. The transcripts of the sentencing
hearing confirm that Berget had an opportunity to explain, through cross-
examination or otherwise, all of the evidence he argues was improperly admitted.
[¶67.] Berget specifically challenges admission of several photographs used to
illustrate the circumstances of his 2003 attempted murder conviction. The pictures
depict bushes where Berget laid in wait for his eventual victims to arrive. A law
enforcement officer who testified at the pre-sentence hearing discussed the pictures
explaining the 2003 attempted murder. Berget was afforded an opportunity to
cross-examine the law enforcement officer called to discuss the pictures.
Furthermore, the photographs bore significant indicia of reliability to satisfy
Berget’s due process rights for sentencing purposes. The pictures were not
admitted without any explanation of what they were, where they came from, etc.
Rather, the law enforcement officer provided context and discussion, rendering
them sufficiently reliable to illustrate Berget’s behavior at the time. Additionally,
the victims of the attempted murder and kidnapping testified at the pre-sentence
hearing. They provided additional context and discussion of Berget’s actions during
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the crimes. They were also subject to cross-examination. Because the evidence of
which Berget complains was relevant only to the sentence-selection inquiry, the
Confrontation Clause does not apply to preclude admissibility. As it bore sufficient
indicia of reliability and he was allowed to rebut or explain it, its introduction did
not violate Berget’s due process rights.
[¶68.] Issue 8: Whether admission of evidence regarding Berget’s
criminal history went beyond the intended scope of
SDCL 23A-27A-2(3).
[¶69.] Berget next argues that the circuit court erred when it allowed
evidence of remote “prior bad acts” into the sentencing phase. We review
evidentiary issues for an abuse of discretion. State v. Graham, 2012 S.D. 42, ¶ 16,
815 N.W.2d 293, 301. Berget admits the evidence presented relates to previous
criminal convictions, but argues that it was not part of his criminal record. Berget’s
argument focuses on SDCL 23A-27A-2(3). This section provides:
In all cases in which the death penalty may be imposed and
which are tried by a jury, upon a return of a verdict of guilty by
the jury, the court shall resume the trial and conduct a
presentence hearing before the jury. Such hearing shall be
conducted to hear additional evidence in mitigation and
aggravation of punishment. At such hearing the jury shall
receive all relevant evidence, including:
...
(3) Any prior criminal or juvenile record of the defendant and
such information about the defendant’s characteristics, the
defendant’s financial condition, and the circumstances of the
defendant’s behavior as may be helpful in imposing sentence[.]
Id.[¶70.] Berget argues that mitigating evidence cannot constitutionally be
excluded, but that this does not translate to liberal admissibility of aggravating
evidence in the sentencing phase. He asserts that the individualized sentencing
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rule of Lockett, requiring the sentencer to consider all mitigating evidence presented
by the defendant, does not relax evidentiary standards for the admission of evidence
in aggravation of punishment. He further argues that the terms “criminal or
juvenile record” and “defendant’s characteristics” should not be interpreted so as to
allow evidence concerning the facts of a defendant’s criminal history.
[¶71.] Berget argues that the Supreme Court’s individualized sentencing
jurisprudence has been misinterpreted when used to allow liberal introduction of
evidence in aggravation of punishment. However, the Supreme Court has indicated
that the admission of evidence in aggravation, relevant to sentence selection as
opposed to death eligibility, is not constitutionally impermissible.
Statutory aggravating circumstances play a constitutionally
necessary function at the stage of legislative definition: they
circumscribe the class of persons eligible for the death penalty.
But the Constitution does not require the jury to ignore other
possible aggravating factors in the process of selecting, from
among that class, those defendants who will actually be
sentenced to death.
Zant, 462 U.S. at 878, 103 S. Ct. 2733 at 2744. See also Payne v. Tennessee, 501
U.S. 808, 822, 111 S. Ct. 2597, 2607, 115 L. Ed. 2d 720 (1991) (noting that the
language utilized in a previous capital sentencing decision requiring that a capital
defendant “be treated as a ‘uniquely individual human being’ . . . was not intended
to describe a class of evidence that could not be received, but a class of evidence
which must be received.” (quoting Booth v. Maryland, 482 U.S. 496, 504, 107 S. Ct.
2529, 2534, 96 L. Ed. 2d 440 (1987))). Therefore, contrary to Berget’s position,
Lockett and its progeny require admission of all relevant evidence in mitigation of
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sentence, but do not prohibit liberal admission of evidence of non-statutory
aggravating factors.
[¶72.] Berget focuses attention on the timing of legislative changes to South
Dakota’s post-Gregg 12 death penalty scheme. He argues that the legislative
changes demonstrate recognition that it is only evidence in mitigation of sentence
that is to be liberally admitted at a capital sentencing hearing, as distinguished
from evidence of non-statutory aggravating factors. Berget provides a timeline
ostensibly illustrating the sequence sparked by the United States Supreme Court’s
Lockett decision in 1978. He states that at the time Lockett was handed down,
SDCL 23A-27A-2 contained no reference to a defendant’s “record” or
“circumstances.” He argues that the Legislature amended this section in 1979,
presumably in response to Lockett’s admonition that a sentencing authority may
“not be precluded from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any circumstances of the offense that defendant
proffers.” See 438 U.S. at 604, 98 S. Ct. at 2964-65 (Burger, C.J., dissenting).
Therefore, he argues, the terms “record” and “circumstances of the defendant’s
behavior” now found in SDCL 23A-27A-2 should be limited to apply only to evidence
in mitigation of sentence, and should not be interpreted to invite evidence of non-
statutory aggravating factors. The fundamental flaw with Berget’s argument is the
foundation of the timeline.
12. Gregg v. Georgia, 428 U.S. 153, 203–204, 96 S. Ct. 2909, 2939, 49 L. Ed. 2d
859 (1976).
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[¶73.] The reality is that before the 1979 legislative session, there was no
SDCL 23A-27A-2. This statute, along with South Dakota’s entire post-Gregg death
penalty scheme, was not adopted until 1979. 1979 S.D. Sess. Laws ch. 160, § 5. At
that time, after Lockett had been decided, the terms “record” and “circumstances of
the defendant’s behavior” did not appear in the law. Id. It was not until 1994 that
the statute was changed to include those terms. 1994 S.D. Sess. Laws ch. 178, § 2.
The 1994 amendment also added the language permitting the jury to consider
“testimony regarding the impact of the crime on the victim’s family.” Id. Notably,
the United States Supreme Court’s decision in Payne was handed down in 1991.
501 U.S. 808, 111 S. Ct. 2597, 2605. The Payne decision overruled Booth, 482 U.S.
496, 107 S. Ct. 2529, and permitted victim-impact evidence to be introduced during
the penalty phase of a capital trial. Payne, 501 U.S. at 827, 829, 111 S. Ct. at 2609,
2611. Payne appears to invite a legislative response.
We thus hold that if the State chooses to permit the admission of
victim-impact evidence and prosecutorial argument on that
subject, the Eighth Amendment erects no per se bar. A State
may legitimately conclude that evidence about the victim and
about the impact of the murder on the victim’s family is relevant
to the jury’s decision as to whether or not the death penalty
should be imposed. There is no reason to treat such evidence
differently than other relevant evidence is treated.
Id. at 827, 111 S. Ct. at 2609. The 1994 amendments to the death penalty scheme
were entitled, “Jury to be Told of Crimes Effect on Victims’ Families in Death
Penalty Cases.” 1994 S.D. Sess. Laws ch. 178. It seems logical to conclude that the
1994 amendments to the death penalty scheme were in response to Payne, rather
than to Lockett. Therefore, because Payne relaxed the constraints on admissibility
of previously forbidden evidence of at least one category of non-statutory
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aggravating factors, it would be illogical to frame the current statute in a manner
that relaxes the constraints on admissibility of only mitigating evidence.
[¶74.] In non-capital sentencing, sentencing courts are to look not only at the
crime but also at the criminal. In order to fashion an appropriate sentence,
sentencing courts in South Dakota are instructed to “acquire a thorough
acquaintance with the character and history of the person before it.” State v. Blair,
2006 S.D. 75, ¶ 27, 721 N.W.2d 55, 63. This allows inquiry into a wide range of
topics relevant to the individual defendant, including the “defendant’s general
moral character, mentality, habits, social environment, tendencies, age, aversion or
inclination to commit crime, life, family, occupation, and previous criminal record.”
State v. Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d 575, 580 (internal quotation marks
and citations omitted). Furthermore, the sentencing court is given wide latitude
regarding the type and source of the information utilized. See SDCL 19-9-14. See
also Blair, 2006 S.D. 75, ¶ 27, 721 N.W.2d at 64 (“When acquiring a thorough
acquaintance of the man before it, the circuit court has wide discretion with respect
to the type of information used as well as its source. . . . This consideration may
include inquiry into ‘uncharged conduct’[.]”). See also Payne, 501 U.S. at 820-21,
111 S. Ct. at 2606 (“Whatever the prevailing sentencing philosophy, the sentencing
authority has always been free to consider a wide range of relevant material. . . . In
the federal system, we observed that ‘a judge may appropriately consider an inquiry
broad in scope, largely unlimited either as to the kind of information he may
consider, or the source from which it may come.’” (internal citations omitted)).
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[¶75.] Similarly, in the capital sentencing context, the sentencer’s use of a
wide range of information is appropriate to an individualized sentencing
determination. “Capital sentencing procedures that permit the jury to exercise wide
discretion in evaluating mitigating and aggravating facts are consistent with an
individualized sentencing determination.” Rhines, 1996 S.D. 55, ¶ 80, 548 N.W.2d
at 437-38 (citing Tuilaepa, 512 U.S. at 974, 114 S. Ct. at 2636).
[¶76.] The information Berget challenges regards the facts of the cases from
his criminal history. A review of the pre-sentence hearing verdict reveals that the
circuit court considered only the facts of the 2003 attempted murder and
kidnapping convictions, not mentioning any facts regarding the rest of Berget’s
criminal history, other than to acknowledge its existence. The facts of the 2003
crime are relevant to the circuit court’s individualized sentencing determination
because they reflect on Berget’s characteristics, his general moral character,
tendencies, and propensity to commit future crimes.
[¶77.] The Supreme Court has never prohibited admission of information
relevant to non-statutory aggravating factors for purposes of selecting between
capital punishment and life in prison. Zant, 462 U.S. at 878, 103 S. Ct. at 2743.
Additionally, the information was relevant to the circuit court’s general obligation
to acquire a thorough acquaintance with Berget, which is consistent with an
individualized sentencing determination. See Rhines, 1996 S.D. 55, ¶ 80, 544
N.W.2d at 437; Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d at 580. Finally, the
challenged information was relevant to the capital sentencing selection decision
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based on SDCL 23A-27A-2(3). Therefore, the circuit court did not err in considering
this information.
[¶78.] Issue 9: Whether the circuit court allowed improper victim-
impact evidence to be admitted at the pre-sentence
hearing.
[¶79.] Berget next argues that the victim-impact evidence admitted at the
sentencing hearing was so prejudicial as to inflame the passions of the circuit court.
This Court reviews the circuit court’s ruling on the admissibility of evidence under
the abuse of discretion standard. Rhines, 1996 S.D. 55, ¶ 133, 548 N.W.2d at 446.
As this Court has recognized, victim-impact evidence is relevant to the sentence-
selection determination.
The Court began by noting that the impact of a defendant’s
crime is a relevant sentencing consideration: “The assessment of
harm caused by the defendant as a result of the crime charged
has understandably been an important concern of the criminal
law, both in determining the elements of the offense and in
determining the appropriate punishment.”
Id. ¶ 131 (quoting Payne, 501 U.S. at 819, 111 S. Ct. at 2605).
[¶80.] Berget argues that the victim-impact evidence presented at his
sentencing hearing was more prejudicial than probative, and should have been
excluded, at least in part. He compares the victim-impact evidence received in this
case to that found improper in State v. Hess, 23 A.3d 373, 392-94 (N.J. 2011). In a
case that is instructive, but certainly not binding on us, the Hess court recognized
the admissibility of victim-impact evidence generally, and framed the issue as
follows:
At sentencing, no one questions that a family member can make
a statement about a homicide victim or present photographs or
even a video showing the victim as he or she lived at the time
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before his or her death. The issue is whether there are any
limits to the type of video that can be displayed at sentencing.
Id. at 392.
[¶81.] Berget characterizes the victim-impact evidence in this case as “three
family members reliving the decedent’s life through a slide show of family
photographs.” The type of evidence in Hess was much more inflammatory than that
received in Berget’s sentencing hearing. The victim-impact evidence at issue in
Hess was described as follows:
The professionally produced seventeen-minute video entitled “A
Tribute to Officer James Hess” played at sentencing in this case
includes features that have been specifically disapproved by
courts in other jurisdictions: childhood photographs and music
likely to appeal solely to emotion and engender undue prejudice.
The video displays approximately sixty still photographs and
four home-video clips of the victim in various activities and
phases of his life. The video includes photographs of the victim’s
childhood and his tombstone and a television segment covering
his funeral. Three poems scroll over the photographs and video
clips. The video is scored to popular, holiday, country, religious
and military music.
Id. at 393.
[¶82.] The Hess court concluded that elements of victim-impact evidence with
no probative value, but with great capacity to unduly arouse or inflame emotions,
should not be permitted. This includes information that “do[es] not project
anything meaningful about the victim’s life as it relate[s] to his family and others at
the time of his death.” Id. at 394. The court indicated, however, that the video
itself did not have the “capacity to alter the outcome of the sentence.” Id.
[¶83.] Victim-impact evidence has its limits. Introduction of overly
prejudicial victim-impact evidence has the possibility to rise to the level of a
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constitutional deprivation. Payne, 501 U.S. at 825, 111 S. Ct. at 2608 (“In the event
that evidence is introduced that is so unduly prejudicial that it renders the trial
fundamentally unfair, the Due Process Clause of the Fourteenth Amendment
provides a mechanism for relief.”). The victim-impact evidence presented here,
however, did not cross that line.
[¶84.] The evidence consisted of pictures of Johnson, introduced and
discussed by his son, daughter, and wife, as well as letters from other family
members, friends, and co-workers. The evidence presented at this sentencing
hearing was appropriately offered to illustrate the consequences of Berget’s actions.
As we stated in Rhines: “To paraphrase Payne, the victim impact [evidence]
‘illustrated quite poignantly some of the harm that [Berget’s] killing had caused;
there is nothing unfair about allowing the [judge] to bear in mind that harm at the
same time as it considers the mitigating evidence introduced by the defendant.’”
See Rhines, 1996 S.D. 55, ¶ 136, 548 N.W.2d at 447 (quoting Payne, 501 U.S. at 826,
111 S. Ct. at 2609). The evidence may have been prejudicial; it showed the human
side of Johnson and translated his loss into human terms. 13 However, the probative
value of the evidence was not outweighed by its prejudicial effect. It was not an
abuse of discretion for the circuit court to admit the evidence.
13. According to Hess, the pictures of the family witnessing the funeral and
pictures of the gravesite must be subjected to intense scrutiny because they
“do not project anything meaningful about the victim’s life as it related to his
family and others at the time of his death.” 23 A.3d at 393-94. Introduction
of these pictures did not, however, render the trial fundamentally unfair,
violating Berget’s right to due process.
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[¶85.] Issue 10: Whether the circuit court failed to make an
adequate record on evidentiary questions.
[¶86.] According to Berget, without citation to the record, the circuit court
relied on the presumption that it made correct determinations of evidentiary
questions rather than ruling on evidentiary questions on the record. Therefore,
Berget argues that there is no way of knowing whether the circuit court considered
improperly-admitted evidence.
[¶87.] Judges are presumed to correctly apply the law in making their
decisions. As we stated in Page: “But the logic of these cases has no place in the
context of sentencing by a trial judge. Trial judges are presumed to know the law
and to apply it in making their decisions.” 2006 S.D. 2, ¶ 27, 709 N.W.2d at 754
(quoting Walters v. Arizona, 497 U.S. 639, 653, 110 S. Ct. 3047, 3057, 111 L. Ed. 2d
511 (1990)).
[¶88.] Berget argues that if this Court were to find any exhibit should not
have been admitted or that any testimony should be stricken, we must reverse
because there is no way to know that the circuit court did not rely on the
inappropriate evidence. Leaving aside for the moment the presumption that the
circuit court knew the law and correctly applied it, other than the Dr. Bean report,
we have addressed each of Berget’s alleged evidentiary errors above. Assuming the
evidence Berget challenges was considered by the circuit court, none of it was
improperly considered. All of the evidence about which Berget complains is
relevant to the death selection inquiry and, as discussed above, the sentencer is to
have access to a wide range of information at that stage. Therefore, as to the
evidence, other than the Dr. Bean report, even without knowing whether the circuit
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court considered the evidence Berget claims was erroneously admitted, this Court
still finds no error. Berget’s argument in this regard is without merit.
[¶89.] Issue 11: Whether Berget’s sentence violates evolving
standards of decency.
[¶90.] Berget claims that the United States Supreme Court’s recent cases
demonstrate a shift in the “evolving standards of decency.” According to Berget,
recent United States Supreme Court decisions pave the way for a determination
that this State’s “standard of decency” has evolved to the point where the
punishment of death is no longer morally tolerable. Berget specifically references
Graham v. Florida, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) and Miller v.
Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). In Graham, the Court banned
sentences of life without parole for juveniles who were convicted of a crime other
than homicide. 130 S. Ct. at 2030. The Miller Court banned mandatory life without
parole sentences for juveniles. 132 S. Ct. at 2469 (“We therefore hold that the
Eighth Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders.”). These cases focus on the
interplay between the culpability of juveniles and the propriety of sentencing them
to life without parole for conduct committed during their youth. “By making youth
(and all that accompanies it) irrelevant to imposition of that harshest prison
sentence, such a scheme poses too great a risk of disproportionate punishment.” Id.
at 2469. Berget committed this offense as an adult. While Graham and Miller may
illustrate a shift in the nation’s moral tolerance for sentences of life without parole
for juvenile offenders, we do not read these decisions as evidencing any shift of
tolerance regarding capital punishment of adult offenders.
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[¶91.] Issue 12: Whether the circuit court violated Berget’s right
against self-incrimination by considering a portion
of a psychiatric report in determining Berget’s
sentence.
[¶92.] During the pendency of these proceedings, Berget’s counsel moved for
and obtained a psychiatric evaluation of Berget. Dr. David Bean conducted the
examination. The circuit court and the State were provided copies of the Dr. Bean
report. The existence of Dr. Bean’s report was disclosed to the State and the circuit
court with the understanding that the document would be kept under seal unless
Dr. Bean was called by Berget as a witness. Berget claims that because the
document was filed under seal, Dr. Bean was never called as a witness, and Berget’s
competency was never placed in issue, the circuit court erred by referring to a
statement he made to Dr. Bean included in the report. Neither the State nor Berget
requested that the circuit court consider the Dr. Bean report in fashioning a
sentence. Berget claims the reference was “a justification for imposing the death
penalty.” The language of the pre-sentence verdict referencing the Dr. Bean report
provides as follows:
The Court considers Berget’s acceptance of responsibility by his
guilty plea and his desire to have accepted responsibility early
on in the proceedings to be evidence of mitigation. Acceptance of
responsibility early on in a matter typically saves the state the
time and/or expense of having to prove the elements of the
offense of which the accused is charged. Early acceptance of
responsibility typically saves the victim and/or victim’s family
the emotional suffering of having to re-live the event by
testifying in court or prolonging the wait for justice to be served.
The Court does recognize here, however, that Berget’s intent for
wishing to enter an early guilty plea may have had nothing to do
with saving the state time and/or money or sparing the victim’s
family of having to wait for justice, but rather may be solely to
serve Berget’s own “wish it would be over”. . . . Forensic
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Psychiatric Evaluation of Rodney Berget dated December 28,
2011, page 18.
The court indicates that it chose to view Berget’s early acceptance of responsibility
as a mitigating factor, even though there was information available to the court per
the Dr. Bean report suggesting the possibility that Berget’s motive was not efficient
administration of justice and sparing the family the emotional suffering of a trial.
[¶93.] Berget argues that the information from the Dr. Bean report was used
by the circuit court to weigh against the mitigating effect of Berget’s early
acceptance of responsibility. In essence, Berget argues that even though the circuit
court indicated it considered his early acceptance as a mitigating factor, the use of
the Dr. Bean report illustrates that in fact the court did not give this evidence
appropriate mitigating weight in selecting between life and death.
[¶94.] The relevant procedural facts regarding Dr. Bean’s report discernible
from the record are as follows. On December 27, 2011, Berget’s counsel moved for a
psychiatric evaluation to determine Berget’s competency. 14 Shortly thereafter, the
State made a similar motion. At a motions hearing, Berget’s counsel agreed to
produce the report to both the circuit court and the State with the understanding
that the report would be kept under seal unless Berget made his competency an
issue. Counsel provided:
We have the report from Dr. Bean. We have shared that with
the State. We intend to share it with the Court, and I have a
copy for the Court with the understanding—I believe the State
is agreeing to this—is that it be kept under seal so both the
14. During oral argument, Berget’s counsel indicated that the request for
psychiatric evaluation was precipitated by the circuit court’s indication that
an evaluation would be ordered whether Berget moved for one or not.
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Court and State [are] satisfied that competency issues have been
addressed, and the only way the seal be released is if we would
in fact call Dr. Bean to testify at the penalty phase starting the
30th of January, but for now we are submitting it to the Court
for the Court’s consideration and review. I’ve given a copy to
[State] also.
No further mention was made of the report until the circuit court included citation
to the report in its pre-sentence verdict.
[¶95.] It is not until his reply brief that Berget raises a Fifth Amendment
challenge to the use of his statement to Dr. Bean extracted from Dr. Bean’s report. 15
Specifically, Berget argues that the circuit court’s use of the Dr. Bean report
violated his right against self-incrimination as identified by the United States
Supreme Court in Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359(1981). This Court reviews alleged constitutional violations de novo. Piper, 2006
15. Berget’s counsel asserts that his first opportunity to raise this issue came
after the circuit court had utilized the information in its sentencing verdict.
However, counsel had at least two opportunities to raise this issue prior to
his reply brief. After the circuit court orally pronounced its sentence, the
State filed proposed findings and conclusions. State’s proposed conclusion
#42 mirrored the circuit court’s use of the Dr. Bean report. In his objections,
filed three weeks after the circuit court issued its initial ruling, Berget’s
counsel objected to Conclusion # 42 without citing the Fifth Amendment or
Estelle v. Smith. 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981).
“Conclusion # 42 is not a legal conclusion, but a factual finding without
support in the record, and cites to information not admitted into evidence at
the penalty phase hearing.” Again, in his initial appellant brief, Berget had
the opportunity to argue that the inclusion of this evidence violated Berget’s
right against self-incrimination. Berget cited Estelle v. Smith later in his
initial brief when discussing his view that the death penalty as imposed upon
Berget violates society’s evolving standards of decency, but did not raise the
Fifth Amendment issue until he filed his reply brief. This prevented the
State from being able to address the issue at any level. However, given the
gravity of the stakes, as well as the constitutional magnitude of the
argument, we decline to view the argument as forfeited. See SDCL 15-26A-2
(allowing this Court to suspend the requirements of the rules of appellate
procedure without motion by either party).
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S.D. 1, ¶ 18, 709 N.W.2d at 795 (citing Martin, 2003 S.D. 153, ¶ 13, 674 N.W.2d 291at 296).
[¶96.] In Estelle, prior to trial, a Texas trial court judge ordered that the
defendant, Smith, who had been indicted on first-degree murder charges, undergo a
psychiatric examination for the purpose of determining competency. 451 U.S. at
456-57, 101 S. Ct. at 1870. The psychiatrist completed the examination and sent a
letter containing his conclusions to the circuit judge. Id. at 457, 101 S. Ct. at 1820.
This letter was also placed in the court file. Id.[¶97.] At trial, a jury convicted Smith of murder. Id. In order for the death
penalty to be imposed, the jury needed to find that “there is a probability that the
defendant would commit criminal acts of violence that would constitute a
continuing threat to society.” Id. at 458, 101 S. Ct. at 1870. In order to satisfy this
requirement, the State called the psychiatrist who had conducted the court-ordered
evaluation. Id. at 459, 101 S. Ct. at 1871. Defense counsel was aware that the
court’s file contained the report, but was not made aware that the psychiatrist
would be testifying. Id. Over defendant’s objection, the trial court allowed the
psychiatrist to testify. Id. The psychiatrist testified that Smith was a severe
sociopath whose condition would only get worse, and that given the opportunity,
Smith would commit similar acts again. Id. at 459-60, 101 S. Ct. at 1871. After the
jury determined Smith to be a continuing threat to society, the death penalty was
imposed. Id.[¶98.] The federal district court in Texas granted Smith habeas relief, the
Court of Appeals affirmed, and the United States Supreme Court considered the
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matter. Id. at 460-61, 101 S. Ct. at 1871-72. The Court first determined that the
Fifth Amendment applied to the penalty phase of Smith’s trial. “We can discern no
basis to distinguish between the guilt and penalty phases of respondent’s capital
murder trial so far as the protection of the Fifth Amendment privilege is
concerned.” Id. at 462-63, 101 S. Ct. at 1873. The Court then noted that, because
the psychiatrist’s opinion was based on Smith’s unwarned comments made during
the psychiatric evaluation, the Fifth Amendment was implicated. “The Fifth
Amendment privilege, therefore, is directly involved here because the State used as
evidence against [Smith] the substance of his disclosures during the pretrial
psychiatric examination.” Id. at 464-65, 101 S. Ct. at 1874.
[¶99.] The Court determined that when the psychiatrist “went beyond simply
reporting to the court on the issue of competence and testified for the prosecution at
the penalty phase on the crucial issue of [Smith’s] future dangerousness, his role
changed and became essentially like that of an agent of the State recounting
unwarned statements made in a postarrest custodial setting.” Id. at 467, 101 S. Ct.
at 1875. The Court held that the psychiatrist’s testimony violated Smith’s Fifth
Amendment right to be free from compelled self-incrimination. “A criminal
defendant, who neither initiates a psychiatric evaluation nor attempts to introduce
any psychiatric evidence, may not be compelled to respond to a psychiatrist if his
statements can be used against him at a capital sentencing proceeding.” Id. at 468,
101 S. Ct. at 1876.
[¶100.] Berget argues that application of Estelle to the present facts likewise
requires reversal of his sentence. As in Estelle, Berget’s statements made during a
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psychiatric interview conducted for the purpose of establishing his competency were
arguably used against him during the capital sentencing proceeding. Also like
Estelle, Berget had no notice that such testimony would be used during the
sentencing phase of the proceeding. There are notable distinctions, however. First,
the psychiatric evaluation performed in Estelle was ordered by the trial court sua
sponte. Id. at 456-57, 101 S. Ct. 1870. Here, Berget’s counsel made the initial
motion for the evaluation. In Estelle, the prosecuting attorney called the
psychiatrist to the stand to testify regarding Smith’s future dangerousness. Id. at
458-59, 101 S. Ct. at 1871. In the present matter, neither the State nor Berget were
aware the circuit court would utilize the Dr. Bean report in fashioning a sentence.
Additionally, the jury was required in Estelle to make a determination as to Smith’s
future dangerousness before the death penalty could be imposed. Id. at 458, 101 S.
Ct. at 1870. Here, the Dr. Bean report was used as part of the circuit court’s
sentence-selection determination, wherein the court considered evidence in
mitigation and aggravation of punishment. These distinctions are particularly
relevant because in the opinion itself, the Court notes that the holding is based on
the “distinct circumstances” presented. Id. at 466, 101 S. Ct. at 1875. In applying
Estelle, the Supreme Court has focused on this limitation.
[¶101.] In Buchanan v. Kentucky, a non-capital murder case, after noting that
the holding in Estelle was based on the “distinct circumstances” of that case, the
Court noted one of the limits of the Estelle holding. 483 U.S. 402, 422-23, 107 S. Ct.
2906, 2917-18, 97 L. Ed. 2d 336 (1987).
We further noted: ‘A criminal defendant, who neither initiates a
psychiatric evaluation nor attempts to introduce any psychiatric
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evidence, may not be compelled to respond to a psychiatrist if
his statements can be used against him at a capital sentencing
proceeding.’ (citation omitted). This statement logically leads to
another proposition: if a defendant requests such an evaluation
or presents psychiatric evidence, then, at the very least, the
prosecution may rebut this presentation with evidence from the
reports of the examination that the defendant requested. The
defendant would have no Fifth Amendment privilege against the
introduction of this psychiatric testimony by the prosecution.
Id. at 422-23, 107 S. Ct. at 2917-18. In Buchanan, the defendant requested the
psychiatric evaluation and placed his mental status into issue in the case. Id. at
423, 107 S. Ct. at 2918. The Court held that introduction of the psychiatrist’s report
setting forth his observations about the mental state of Buchanan for the limited
purpose of rebutting Buchanan’s proffered evidence regarding his mental status did
not violate the Fifth Amendment. Id. at 423-24, 107 S. Ct. at 2918.
[¶102.] The Court again considered application of Estelle in Penry v. Johnson.
532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001). In Penry, the Court faced
introduction, during the penalty phase of a jury trial, of statements from a
psychiatric report dealing with the issue of a defendant’s future dangerousness. Id.
at 793-95, 121 S. Ct. at 1918-19. This time, the report had been conducted in
connection with a previous criminal prosecution. Id. at 794, 121 S. Ct. at 1919. The
habeas applicant argued that Estelle controlled. Id. The Court disagreed, focusing
on the differences between the circumstances presented and those the Court faced
in Estelle. Id. at 794-95, 121 S. Ct. at 1919. Significantly, the Court noted that “the
defendant in Estelle had not placed his mental condition at issue, . . . whereas Penry
himself made his mental status a central issue in both the [earlier case and the
present case].” Id. at 794, 121 S. Ct. at 1919. Also, the Court noted that in Estelle,
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the Court had ordered the psychiatric examination sua sponte, whereas Penry’s
then-counsel requested the psychiatric evaluation under consideration. Id. In
affirming denial of habeas relief, the Court held that the Texas court’s decision not
to apply Estelle to Penry’s trial was not “contrary to or an unreasonable application
of our precedent.” Id. at 795, 121 S. Ct. at 1919. In so doing, the Court explicitly
limited the Estelle holding to its facts.
The differences between this case and Estelle are substantial,
and our opinion in Estelle suggested that our holding was
limited to the ‘distinct circumstances’ presented there. It also
indicated that the Fifth Amendment analysis might be different
where a defendant ‘intends to introduce psychiatric evidence at
the penalty phase’. . . . Indeed, we have never extended Estelle’s
Fifth Amendment holding beyond its particular facts.
Id. at 795, 121 S. Ct. at 1919 (internal citations omitted).
[¶103.] The Third Circuit Court of Appeals synthesized these holdings as
follows:
If we lay these decisions out, the following landscape emerges.
A compelled psychiatric interview implicates Fifth and Sixth
Amendment rights ([Estelle ]). Before submitting to that
examination, the defendant must receive Miranda warnings and
(once the Sixth Amendment attaches) counsel must be notified
([Estelle]). The warnings must advise the defendant of the
“consequences of foregoing” his right to remain silent ([Estelle]).
The Fifth and Sixth Amendments do not necessarily attach,
however, when the defendant himself initiates the psychiatric
examination (Buchanan, Penry). Similarly, the Fifth–but not
Sixth–Amendment right can be waived when the defendant
initiates a trial defense of mental incapacity or disturbance,
even though the defendant had not been given Miranda
warnings (Buchanan, Powell). But that waiver is not limitless;
it only allows the prosecution to use the interview to provide
rebuttal to the psychiatric defense (Buchanan, Powell). Finally,
the state has no obligation to warn about possible uses of the
interview that cannot be foreseen because of future events, such
as uncommitted crimes (Penry).
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Gibbs v. Frank, 387 F.3d 268, 274 (3d Cir. 2004). It is important to note that Berget
does not claim his Sixth Amendment right to counsel, as addressed in Estelle, was
violated. Correctly so, as the fact that his counsel moved for the psychiatric report,
whether compelled to do so by the circuit court or not, would vitiate this claim. It is
also relevant to note that the Powell decision referenced in Gibbs focused on the
Sixth Amendment, not the Fifth Amendment, as argued by Berget. See Powell v.
Texas, 492 U.S. 680, 109 S. Ct. 3146, 106 L. Ed. 2d 551 (1989).
[¶104.] Applying Estelle and its Supreme Court progeny to the facts of this
matter presents a very close question. Initially, it is noteworthy that Berget’s
counsel moved for the psychiatric evaluation of Berget. The Supreme Court noted
the importance of this distinction from Estelle in Buchanan. Buchanan, 483 U.S. at
422-23, 107 S. Ct. at 2917-18. In Buchanan, the defendant joined in the motion for
a psychiatric examination, very similar to Berget’s motion in the present situation.
Id. at 423, 107 S. Ct. at 2918. Again in Penry, the Court noted that the offending
psychiatric evaluation was performed upon request of Penry’s counsel. “Second, in
Estelle, the trial court had called for the competency evaluation and the State had
chosen the examining psychiatrist. . . . Here, however, it was Penry’s own counsel
in the 1977 case who requested the psychiatric exam.” Penry, 532 U.S.at 794, 121
S. Ct. at 1919. A review of the motion for psychiatric evaluation made by Berget’s
counsel, as well as that of the State, demonstrates that the purpose of the
evaluation was to determine Berget’s competency. Nothing in the record suggests
that Berget was preparing to present a defense based on his mental status at the
time of trial or the time of the crime.
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[¶105.] Although not faced with a situation in which the defendant had placed
his mental status into issue, the Supreme Court in Estelle made the importance of
this issue clear. Estelle, 451 U.S. at 465-66, 101 S. Ct. at 1874-75. Both Buchanan
and Penry focused on the issue. “Moreover, petitioner’s entire defense strategy was
to establish the ‘mental status’ defense of extreme emotional disturbance.”
Buchanan, 483 U.S. at 423, 107 S. Ct. at 2918. “This case differs from Estelle, in
several respects. First, the defendant in Estelle had not placed his mental condition
at issue, . . . whereas Penry himself made his mental status a central issue in both
the 1977 rape case and his trials for Pamela Carpenter’s rape and murder.” Penry,
532 U.S. at 794, 121 S. Ct. at 1919. At no point did Berget raise his mental
condition as a possible defense to the crime. Further, any argument he may have
made that his mental condition should weigh against imposition of the death
penalty, he made without the assistance of psychiatric testimony. In both
Buchanan and Penry, the defendants produced psychiatric testimony to support
their positions. Buchanan, 483 U.S. at 409, 107 S. Ct. 2910; Penry, 532 U.S. at 794,
121 S. Ct. at 1919. As such, like Estelle, Berget cannot be said to have placed his
mental status in issue in a manner similar to the defendants in Buchanan and
Penry. This similarity, however, leads to another point of distinction between this
case and Estelle.
[¶106.] In Estelle, the psychiatric evidence was used affirmatively by the State
to establish the defendant’s future dangerousness, an issue the State bore the
burden of proving in order for the death penalty to be imposed. 451 U.S. at 458-60,
101 S. Ct. at 1870-71. The Court noted that when the psychiatrist testified for the
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State, he became, in essence, an agent of the State. “When Dr. Grigson went
beyond simply reporting to the court on the issue of competence and testified for the
prosecution at the penalty phase on the crucial issue of respondent’s future
dangerousness, his role changed and became essentially like that of an agent of the
State recounting unwarned statements made in a postarrest custodial setting.” Id.
at 467, 101 S. Ct. at 1875. In Buchanan, the Court distinguished Estelle, noting
that the testimony presented at trial was introduced for a “limited rebuttal
purpose.” 483 U.S. at 423-24, 107 S. Ct. at 2918. This distinction was also noted in
Penry. “Third, in Estelle, the State had called the psychiatrist to testify as part of
its affirmative case. . . . Here, it was during the cross-examination of Penry’s own
psychological witnesses that the prosecutor elicited the quotation from the
[psychiatrist’s] report.” Penry, 532 U.S. at 794, 121 S. Ct. at 1919.
[¶107.] In this case, the State did not call Dr. Bean to testify, nor apparently
was it aware that the court would consider Dr. Bean’s report. Additionally, Berget’s
statement to Dr. Bean used in the pre-sentence verdict was noted by the circuit
court as potentially rebutting the idea that Berget’s early acceptance of
responsibility was motivated by a desire to spare the victim’s family from
proceeding through a trial. However, in both Penry and Buchanan, the psychiatric
testimony at issue was used to rebut psychiatric evidence introduced by the
defendant. See id.; Buchanan, 483 U.S. at 423-24, 107 S. Ct. at 2918. Here, again,
Berget made no attempt to introduce any psychiatric evidence regarding his state of
mind in relation to early acceptance of responsibility. Furthermore, even though
the Dr. Bean report containing the problematic statement was not offered by the
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State, it was used to rebut evidence in mitigation of the crime, the relevance of
which is to justify imposition of the death penalty, the position argued by the State.
[¶108.] The present circumstances are distinguishable in material respects
from Estelle, but also distinguishable from both Buchanan and Penry. Importantly,
Berget did not place his mental condition in issue. Had he done so, his counsel
would have been aware that any statement he made to the psychiatrist could have
been used as impeachment against him, at least insofar as his mental condition was
concerned. Counsel could have advised Berget of such, and the decision to agree to
the psychiatric evaluation would have been fully informed. Because he did not
place his mental status in issue—the fact that he moved for the psychiatric
examination is of less importance—he still did not contemplate that the exam would
be used to gather evidence which would be used to decide whether he should live or
die. Nor was the State’s inability to respond to the defendant’s psychiatric evidence
hampered by the availability of the defendant’s potential invocation of his right
against self-incrimination during an evaluation conducted by an agent for the State.
With no intent to place his mental condition into issue, Berget could not foresee that
his statements to Dr. Bean would be used against him as justification for imposition
of the death penalty. “Yet he was given no indication that the compulsory
examination would be used to gather evidence necessary to decide whether, if
convicted, he should be sentenced to death.” Estelle, 451 U.S. at 467, 101 S. Ct. at
1875.
[¶109.] Here, it could be argued that because Berget moved for the evaluation,
his testimony to the psychiatrist was not compelled, and therefore does not
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implicate the Fifth Amendment. Other courts have refused to apply Estelle based
on the lack of compelled testimony when the defendant moved for the psychiatric
examination. See, e.g., State v. Smith, 863 P.2d 1000, 1004 (Mont. 1993) (“The Fifth
Amendment violation in Estelle arose from the state’s use of a defendant’s
statements elicited at a court-ordered competency examination. We determined
that Smith had waived his Fifth Amendment privilege regarding statements made
during [the psychiatrist’s] interview because, unlike the Estelle defendant, he
initiated the psychiatric examination. Thus, no compelled testimony was placed
before the court.”). Berget initiated the evaluation for purposes of determining his
competency. The contents of the evaluation, including his statement, were only
made available with the understanding that they would not be used unless Berget
placed his competency into issue. All parties agreed. The circuit court utilized the
information in the report for the purpose of sentencing, without alerting Berget that
it would do so, essentially compelling Berget to be a witness against himself.
[¶110.] Further, this Court has analyzed the use at trial of a criminal
defendant’s statements made to a psychiatrist during an evaluation requested by
the defendant under the Fifth Amendment’s protection against compelled
testimony. State v. Devine, 372 N.W.2d 132, 133-34 (S.D. 1985). In Devine, the
statements at issue were made by the defendant to a psychiatrist appointed by the
court, including statements made to a psychiatrist appointed upon motion of the
defendant, and introduced at trial where the jury was to determine both guilt and
sanity. Id. at 133. The defense psychiatrist was called as a witness by the state
“and allowed to reveal [defendant’s] statements.” Id. This Court acknowledged that
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“[t]he Fifth Amendment privilege bars the use of an incriminating statement made
to a psychiatrist for the purpose of proving a defendant’s guilt.” Id. at 134. The
majority opinion does not specifically refer to the testimony given during the
evaluations as “compelled,” even though the relevant discussion concerns the Fifth
Amendment. Id. at 135. 16 The dissent, however, observed no such restraint. “I can
well understand that the fruits of the accused’s compelled disclosures may be used
in determining his competency to stand trial, but surely it cannot be used against
him at the trial itself.” Id. at 140 (Henderson, J., dissenting).
[¶111.] Devine provides that evidence of a defendant’s statements made to a
psychiatrist for the purpose of determining the defendant’s competency, admitted as
evidence of the defendant’s guilt, implicate the Fifth Amendment even when the
defendant moves for the competency evaluation. Therefore, the fact that Berget
moved for the psychiatric evaluation does not, in these specific circumstances,
remove this situation from evaluation under Estelle. As the Supreme Court made
clear in Estelle, there is no distinction between the guilt and penalty phases of a
capital sentencing procedure for purposes of applying the Fifth Amendment’s
protection against self-incrimination. Estelle, 451 U.S. at 462-63, 101 S. Ct. at
1873.
[¶112.] Furthermore, to hold that any statement made during such a
competency evaluation could be used to weigh in favor of imposition of the death
16. After stating that the Fifth Amendment was implicated, the Court framed
the issue as follows: “Whether such incriminating statements are admissible
to establish mental condition in a unitary trial which involves both sanity
and guilt issues, without prejudicing the defendant’s due process rights.” Id.
at 135.
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penalty may prevent defense counsel from recommending their client agree to a
competency exam. Because of the gravity of determining competency in these
situations, courts could then be forced to compel evaluations, at which time defense
counsel may recommend the defendant remain silent. The Supreme Court of
California has recognized this dilemma.
A rule allowing a defendant to be impeached at trial with
statements made during a competency examination would pose
a dilemma for defendant’s trial attorney. A competency
examination occurs after the right to counsel has attached, at a
critical stage of the proceeding at which counsel’s participation
is constitutionally mandated; the examination cannot be
conducted without “the assistance of [defendant’s] attorneys in
making the significant decision of whether to submit to the
examination and to what end the psychiatrist’s findings could be
employed.” Counsel would need to explain the risk of
impeachment to the possibly mentally impaired defendant and,
if that risk was sufficiently grave, might be ethically bound to
advise the defendant not to communicate with the court-
appointed mental health professional at all during the
examination.
People v. Pokovich, 141 P.3d 267, 275-76 (Cal. 2006) (quoting Estelle, 451 U.S. at
470-71, 101 S. Ct. at 1877).
[¶113.] At the end of the analysis, we are left with the circuit court’s use of
Berget’s statement, made at a psychiatric examination ordered by the court at the
request of counsel and potentially used against him as evidence that he should be
sentenced to death. Even though Estelle has been repeatedly limited to its facts, the
relevant distinctions present here do not undermine the rationale of the Supreme
Court’s decision in Estelle. Given the specific facts of this case, the use of Berget’s
unwarned statement to Dr. Bean utilized to weigh against the mitigating evidence
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available, and therefore as justification for imposition of the death penalty, was
error.
[¶114.] We must next determine whether this error requires reversal. This
Court has held that even constitutional error can be harmless.
SDCL 23A-44-14 defines harmless error as “[a]ny error, defect,
irregularity or variance which does not affect substantial
right[s].” The harmless error rule governs even constitutional
violations, not requiring the automatic reversal of a conviction,
provided the court is able to declare a belief beyond a reasonable
doubt that the error was harmless and did not contribute to the
verdict obtained.
State v. Younger, 453 N.W.2d 834, 838 (S.D. 1990) (citing State v. Heumiller, 317
N.W.2d 126, 130 (S.D.1982) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct.
824, 17 L. Ed. 2d 705 (1967))). The harmless error rule “promotes the public respect
for the criminal process by focusing on the underlying fairness of the trial rather
than on the virtually inevitable presence of immaterial error.” State v. Zakaria,
2007 S.D. 27, ¶ 19, 730 N.W.2d 140, 146 (citations omitted).
[¶115.] This is the standard utilized by the United States Supreme Court in
determining whether Estelle error requires reversal. Satterwhite v. Texas applied
harmless error analysis to application of Estelle’s Sixth Amendment holding in the
context of a direct appeal of a state court decision in a capital case. 486 U.S. 249,
258, 108 S. Ct. 1792, 1798, 100 L. Ed. 2d 284 (1988). Like the Sixth Amendment,
admission of evidence in violation of the Fifth Amendment is subject to harmless
error analysis. Neder v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 1838, 144 L.
Ed. 2d 35 (1999). See also Devine, 372 N.W.2d at 137-38 (concluding that admission
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at trial of the statements made by the defendant to his psychiatrist at a competency
evaluation were “no more than harmless error.”).
[¶116.] The error here was the use of Berget’s statement to Dr. Bean as
evidence weighing against the mitigating evidence available. The issue is whether
this Court can “declare a belief beyond a reasonable doubt that the error was
harmless and did not contribute to the verdict obtained.” See Younger, 453 N.W.2d
at 838. The sentencing authority’s task during the sentence-selection phase is not
an easy one. It must weigh the evidence presented and make a determination
between life and death. The defendant’s own statements which tend to diminish
the effect of the mitigating evidence presented can be influential toward that task.
Additionally, the nature of the weighing task makes it difficult to determine
whether, without using Berget’s statement contained in the Dr. Bean report, the
result of the weighing process would have been different.
[¶117.] “Harmlessness must . . . be determined on the basis of the remaining
evidence.” Zakaria, 2007 S.D. 27, ¶ 19, 730 N.W.2d at 146 (citations omitted).
Berget made a statement in open court during the pre-sentence hearing. When
provided the opportunity to make a statement to the court after all evidence had
been received, Berget stated:
All I have to say is that I’m guilty of taking Ronald Johnson’s
life. I knew what I was doing on the day when I went over to the
shops, and I continued to do it. I destroyed a family. I took
away a father, a husband, a grandpa. They’ll never see their
father again or husband. He will never walk through that door
again. I made sure of that by my actions. I’m not going to beg
the Court or ask the Court to spare my life. I believe I deserve
the death penalty for what I’ve done. That’s all I have to say.
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This statement, while expressing Berget’s belief that he deserves the death penalty,
does not touch on his motivation for pleading guilty. Therefore, the remaining
evidence does not explicitly support the proposition that Berget’s motivation for
pleading guilty was selfish.
[¶118.] Even though it is difficult to determine the weight given by the circuit
court to Berget’s statement to Dr. Bean, the importance of Berget’s motivation for
pleading guilty is clear.
“Few facts available to a sentencing judge,” we have observed,
“are more relevant to the likelihood that [a defendant] will
transgress no more, the hope that he may respond to
rehabilitative efforts to assist with a lawful future career, [and]
the degree to which he does or does not deem himself at war
with his society” than a defendant’s willingness to cooperate.
Mitchell, 526 U.S. at 339, 119 S. Ct. at 1320 (Scalia, J., dissenting) (quoting Roberts
v. United States, 445 U.S. 552, 558, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980)). This
is not to say that acceptance of responsibility necessarily trumps all aggravating
factors relevant to the sentence-selection determination, but it is obviously
important. Due to the importance of this information, we cannot determine that the
circuit court’s error in utilizing Berget’s statement to Dr. Bean for the purpose of
diminishing the value of Berget’s acceptance of responsibility was harmless beyond
a reasonable doubt. We therefore reverse Berget’s sentence and remand for
resentencing without the use of or consideration of Dr. Bean’s report unless Berget
opts to call Dr. Bean to testify.
CONCLUSION
[¶119.] In selecting a sentence, the circuit court improperly considered
statements made by Berget to Dr. Bean during a competency evaluation. This was
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a violation of Berget’s right to be free from self-incrimination. We cannot conclude
that the use of this statement was harmless beyond a reasonable doubt.
[¶120.] 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.
[¶121.] In all other respects, the appeal is affirmed.
[¶122.] KONENKAMP, ZINTER, and SEVERSON, Justices, concur.
[¶123.] MILLER, Retired Justice, concurs in part and dissents in part.
[¶124.] MILLER, Retired Justice, sitting for WILBUR, Justice, disqualified.
MILLER, Justice (Ret.) (concurring in part and dissenting in part).
[¶125.] I fully concur with the majority on Issues 1 - 11. However, I dissent on
Issue 12.
[¶126.] The majority found that the circuit court used “Berget’s unwarned
statement to Dr. Bean . . . to weigh against the mitigating evidence available, and
therefore as justification for imposition of the death penalty[.]” Supra ¶ 113. It
thus determined the court’s reference to Dr. Bean’s report was error. Id. I
respectfully disagree.
[¶127.] In holding that the court erred, the majority analyzed whether this
case should be evaluated under the principles of Estelle and concluded that it must.
Supra ¶ 111. However, as the majority itself acknowledges, the Estelle Court
cautioned that its holding is based on the “distinct circumstances” presented
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therein. Supra ¶ 101. The Supreme Court reiterated that admonishment in Penry
when it stated, “we have never extended Estelle’s Fifth Amendment holding beyond
its particular facts.” 532 U.S. at 795, 121 S. Ct. at 1919. See supra ¶ 102. The facts
of this case are not even remotely related to those in Estelle. As a result, I do not
agree that this case should be evaluated under Estelle’s Fifth Amendment holding.
[¶128.] There is no dispute that Berget did not put his mental status in issue.
However, the majority claims that, like in Estelle, Berget’s statement was “used
against him during the capital sentencing proceeding.” Supra ¶ 100 (emphasis
added). I disagree. The language of the pre-sentence verdict demonstrates that
despite the circuit court’s reference to Dr. Bean’s report, it still considered Berget’s
early acceptance of responsibility as a mitigating factor. Berget’s statement,
recounted in Dr. Bean’s report and referenced by the court in the pre-sentence
verdict, did not transform the mitigating evidence into aggravating evidence, which
in turn, as the majority claims, “justifi[ed] . . . imposition of the death penalty.”
Supra ¶ 108.
[¶129.] The majority also maintains that, like in Estelle, “Berget had no notice
that [his statement] would be used during . . . sentencing[.]” Supra ¶ 100. From
the record, I would suggest that it is unclear whether Berget knew or suspected that
the circuit court would review the report. At a motions hearing, defense counsel
submitted Dr. Bean’s report to the circuit court with the understanding that the
report be kept “under seal.” See supra ¶ 94. In my view, the circuit court could
easily have interpreted the language “under seal” to mean that no one except the
court was permitted to see the report. Thus, it was fair for the court to assume that
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it was allowed to review the report. Moreover, in its colloquy with the court,
defense counsel specifically stated: “[W]e are submitting [the report] to the [c]ourt
for the [c]ourt’s consideration and review.” Id. (emphasis added). Surely, based
upon defense counsel’s statement, Berget would have suspected, at the very least,
that the court would review the report.
[¶130.] As to the remaining facts, even the majority concedes that “notable
distinctions” exist between this case and Estelle. Supra ¶ 100. Nonetheless, it
reasons that those “distinctions . . . do not undermine [applying] the rationale of the
Supreme Court’s decision in Estelle.” Supra ¶ 113. In reaching that conclusion, the
majority molds the facts of this case to fit the “distinct circumstances” referenced in
Estelle.
[¶131.] First, the majority notes that, unlike Estelle, Berget’s statement to Dr.
Bean was not used affirmatively by the State. Supra ¶¶ 106-07. In Estelle, the
psychiatrist “testified for the prosecution at the penalty phase on the crucial issue of
[the defendant]’s future dangerousness[.]” 451 U.S. at 467, 101 S. Ct. at 1875.
Here, Berget’s statement was used by the circuit court in its sentence-selection
determination. Nevertheless, because the court used Berget’s statement in a
manner that supported the State’s position, the majority contends this is no
different than the situation present in Estelle where the psychiatrist essentially
acted as “an agent of the [s]tate.” See supra ¶¶ 99, 107. The majority stated, “Dr.
Bean[’s] report . . . was used to rebut evidence in mitigation of the crime, the
relevance of which is to justify imposition of the death penalty, the position argued
by the State.” Supra ¶ 107. I disagree.
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[¶132.] As previously stated herein, while Berget’s statement may have
softened the mitigating evidence, it was not tantamount to rebuttal evidence nor
could it reasonably support a holding that it was aggravating or a “justification for
imposing the death penalty.” The circuit court merely observed that Berget may
have had other motives for entering a guilty plea early. The circuit court clearly did
not consider this evidence an aggravating factor, as suggested by the majority.
Ultimately, Berget’s early acceptance of responsibility was still considered as a
mitigating factor.
[¶133.] Second, unlike in Estelle where the court ordered a psychiatric
evaluation sua sponte, here, Berget’s counsel sought and moved for the evaluation.
Supra ¶ 100. In order to reach its conclusion that this case is not removed from
evaluation under Estelle, the majority downplays this factor stating, “[b]ecause
[Berget] did not place his mental status in issue[,] the fact that he moved for the
psychiatric examination is of less importance[.]” Supra ¶ 108.
[¶134.] Further, the majority’s reliance on Devine is misplaced. Devine held
that “[t]he Fifth Amendment privilege bars the use of an incriminating statement
made to a psychiatrist for the purpose of proving a defendant’s guilt.” 372 N.W.2d at
134 (emphasis added). See supra ¶ 110. Because “the Supreme Court made clear in
Estelle[] [that] there is no distinction between the guilt and penalty phases of a
capital sentencing procedure for purposes of applying the Fifth Amendment’s
protection against self-incrimination[,]” the majority contends Devine’s holding
requires application of Estelle. Supra ¶ 111 (emphasis added). Devine was not a
capital sentencing proceeding. Thus, the majority should not rely on this Court’s
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holding in Devine in order to circumvent the Supreme Court’s clear instructions
that Estelle’s Fifth Amendment holding must be limited to the “distinct
circumstances” in that case. For the foregoing reasons, I do not believe that this
case should be evaluated under Estelle’s Fifth Amendment holding or that the
court’s reference to Dr. Bean’s report was error.
[¶135.] Lastly, even conceding that the majority is correct in holding that the
circuit court erred in considering Berget’s statements to Dr. Bean, I am of the
strong belief that the error was harmless. The error is harmless if we find beyond a
reasonable doubt that the circuit court would still have imposed the death sentence
if it had not considered Berget’s statement to Dr. Bean. See Younger, 453 N.W.2d at
838 (explaining that constitutional violations are harmless “provided the court is
able to declare a belief beyond a reasonable doubt that the error . . . did not
contribute to the verdict obtained”).
[¶136.] In choosing between life or death, the circuit court weighed the
aggravating evidence against the mitigating evidence and determined that death
was warranted. 17 The court’s sentence is justified by the facts of this case and I am
convinced it would not have changed had the court not considered Berget’s
statement to Dr. Bean. A review of the aggravating and mitigating evidence
presented to the court demonstrates why.
17. In its pre-sentence verdict, the circuit court provided, “[W]hen weighing the
mitigating circumstances presented and considered in this matter and
finding that they do do [sic] not outweigh the aggravating circumstances of
this crime, the only effective and reasonable retribution or punishment under
the totality of the circumstances in this matter is the imposition of the death
penalty.”
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[¶137.] The State presented a substantial amount of aggravating evidence 18
demonstrating, in part, the heinousness of the crime as well as Berget’s extensive
criminal history, hopeless chance of rehabilitation, and multiple attempts of escape.
Although Berget presented mitigating evidence, the circuit court disagreed with it
or concluded that it was not criteria for determining an appropriate sentence. Thus,
in reality, the only mitigating evidence the court found relevant to its sentence-
selection determination was Berget’s early acceptance of responsibility.
[¶138.] The aggravating evidence in this case was overwhelming. If the circuit
court had not considered Berget’s statement to Dr. Bean during the weighing
process, the mitigating evidence would still have failed to outweigh the significant
and often undisputed aggravating evidence. Thus, I firmly believe the sentence
would still have been death.
[¶139.] Accordingly, I would affirm the judgment below and uphold the
sentence.
18. The court considered the facts of Johnson’s murder which, due to the manner
in which Berget caused Johnson’s death, demonstrated an extreme
indifference to human life and an obvious attempt to end Johnson’s life.
Moreover, the State introduced victim-impact testimony, photographs
illustrating the circumstances of Berget’s 2003 attempted murder conviction,
and victim testimony. The court observed that Berget showed no remorse
except what Berget purportedly shared with his attorney and/or paralegal.
Berget’s prior criminal record included ten convictions, three of which were
escape convictions. Not to mention, his criminal conduct was becoming more
violent in nature. In addition, while an inmate at the penitentiary, Berget
was disciplined at least four times for escape activities, he was found on
numerous occasions to have contraband on his person or under his control,
and he was classified as a maximum security risk since 2003.
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