State v. Robert

#26213-a-DG
2012 S.D. 60IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff,
v.
ERIC DONALD ROBERT, Defendant.
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APPEAL FROM THE CIRCUIT COURT
SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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HONORABLE BRADLEY G. ZELL
Judge
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MARTY J. JACKLEY
Attorney General
PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff.
MARK KADI
Minnehaha County Public Advocates
Sioux Falls, South Dakota Attorneys for defendant.
RANDAL E. CONNELLY
Rapid City, South Dakota Amicus Curiae.
****
CONSIDERED ON BRIEFS
ON JULY 31, 2012
OPINION FILED 08/15/12
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GILBERTSON, Chief Justice
[¶1.] Eric Robert pleaded guilty to first-degree murder for the death of
penitentiary guard Ronald Johnson, a 23-year veteran correctional officer at the
South Dakota State Penitentiary in Sioux Falls. Robert waived his right to a jury’s
determination of whether the death sentence would be imposed. The circuit court
conducted a pre-sentence hearing and imposed the death penalty. Subsequent to
pleading guilty, Robert has consistently sought imposition of the death penalty and
that the execution be expedited. Even though Robert waived his right to appeal the
death sentence, this Court is statutorily mandated to conduct a review of the death
sentence. SDCL 23A-27A-9.
Facts
[¶2.] Robert was convicted of kidnapping in Meade County in January 2006.
The Meade County Circuit Court sentenced him to 80 years in prison. This
conviction resulted in Robert being incarcerated in the South Dakota State
Penitentiary beginning in January 2006.
[¶3.] On April 12, 2011, Robert and Rodney Berget, also an inmate at the
South Dakota Penitentiary, entered the Pheasantland Industries’ building 1 in the
penitentiary complex. 2 Because of their maximum security classifications, neither
inmate was authorized access to this building. On this date, Johnson was working
1. Pheasantland Industries is an enterprise within the walls of the State
Penitentiary.
2. A separate appeal is currently pending in this Court in regard to Berget. See
State v. Berget, #26318. We limit our factual review in this case to the record
contained herein. See also n.13.
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in the Pheasantland Industries’ building. Robert and Berget assaulted Johnson by
striking him with a lead pipe which they had acquired earlier specifically for that
purpose. Johnson was repeatedly struck on the face and head with the lead pipe.
An expert testified that the blows to the head continued after Johnson was on the
ground. The attack fractured Johnson’s skull in at least three locations and
exposed a portion of his brain. He also suffered defensive wounds to his hands and
arms. After immobilizing Johnson with the pipe, Robert and Berget wrapped
Johnson’s head in plastic wrap which prevented him from crying out and also from
breathing. The inmates dragged Johnson’s body behind a large crate to conceal
him.
[¶4.] Robert then dressed himself in Johnson’s uniform and Berget climbed
into a box placed on a four-wheel cart. Robert, dressed as Johnson, pushed the cart
toward the west gate of the penitentiary. After observing that Robert did not swipe
an ID badge, Correctional Officer Jodi Hall confronted Robert about his identity.
When Robert’s explanation did not satisfy her, Hall notified Officer Matt Freeburg.
Freeburg told Hall to call the Officer in Charge. At this time, Berget sprang from
the box and he and Robert began assaulting Freeburg. The inmates used Johnson’s
radio to beat Freeburg. Hall issued a distress call “Code Red – Code 3” on her radio.
While Berget continued the assault on Freeburg, Robert attempted to scale the
exterior gate of the penitentiary but became entangled in razor wire. Robert then
attempted to grab a gun from the responding officers. When that did not work,
Robert and Berget tried to bait the officers into shooting them. Unsuccessful and
surrounded, Robert shook Berget’s hand and the pair surrendered.
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[¶5.] Because Robert was wearing Johnson’s uniform, penitentiary staff
began to search for Johnson. His body was discovered behind the crate in the
Pheasantland Industries’ building. His face was badly disfigured and swollen from
the beating and asphyxiation. The correctional officer who found Johnson
attempted CPR. Life-saving efforts continued after medical personnel arrived and
on the way to the hospital, but all efforts proved futile. Johnson was declared dead
at the hospital.
Procedural History
[¶6.] On September 16, 2011, Robert pleaded guilty to first-degree murder
in violation of SDCL 22-16-1(1), 22-16-4(1), 22-16-12, and 22-3-3. Robert waived his
right to a jury sentencing. The circuit court found Robert competent, that he was
represented by competent counsel, and that the plea and jury waiver were entered
voluntarily, knowingly, and intelligently.
[¶7.] Pursuant to South Dakota’s statutes, a death penalty prosecution is
conducted in two phases. See SDCL 23A-27A-2. The first phase adjudicates the
defendant’s guilt or innocence. Id. If a guilty verdict is returned, the trial is
resumed “to hear additional evidence in mitigation and aggravation of punishment.”
Id. Because Robert pleaded guilty, there was no trial on the guilt phase. Moreover,
because he waived his right to jury sentencing, the penalty phase was tried to the
circuit court.
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[¶8.] In order for the death penalty to be considered, the State must prove at
least one of the aggravating circumstances enumerated in SDCL 23A-27A-1 3
3. This section provides:
Pursuant to §§ 23A-27A-2 to 23A-27A-6, inclusive, in all cases
for which the death penalty may be authorized, the judge shall
consider, or shall include in instructions to the jury for it to
consider, any mitigating circumstances and any of the following
aggravating circumstances which may be supported by the
evidence:
(1) The offense was committed by a person with a prior
record of conviction for a Class A or Class B felony, or the
offense of murder was committed by a person who has a felony
conviction for a crime of violence as defined in subdivision 22-1-
2(9);
(2) The defendant by the defendant’s act knowingly created a
great risk of death to more than one person in a public place by
means of a weapon or device which would normally be
hazardous to the lives of more than one person;
(3) The defendant committed the offense for the benefit of the
defendant or another, for the purpose of receiving money or any
other thing of monetary value;
(4) The defendant committed the offense on a judicial officer,
former judicial officer, prosecutor, or former prosecutor while
such prosecutor, former prosecutor, judicial officer, or former
judicial officer was engaged in the performance of such person’s
official duties or where a major part of the motivation for the
offense came from the official actions of such judicial officer,
former judicial officer, prosecutor, or former prosecutor;
(5) The defendant caused or directed another to commit
murder or committed murder as an agent or employee of
another person;
(6) The offense was outrageously or wantonly vile, horrible,
or inhuman in that it involved torture, depravity of mind, or an
aggravated battery to the victim. Any murder is wantonly vile,
(…continued)
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beyond a reasonable doubt. SDCL 23A-27A-6. 4 Should at least one aggravating
circumstance be proven, the death penalty can be considered. Id. At the pre-
sentence hearing, defendants are allowed to present whatever relevant mitigating
evidence they can muster. SDCL 23A-27A-2.
[¶9.] Robert’s pre-sentence hearing began on October 24, 2011, and lasted
four days. Following the hearing, the circuit court entered extensive findings of fact
and conclusions of law. The circuit court found that the State proved beyond a
________________
(…continued)
horrible, and inhuman if the victim is less than thirteen years of
age;
(7) The offense was committed against a law enforcement
officer, employee of a corrections institution, or firefighter while
engaged in the performance of such person’s official duties;
(8) The offense was committed by a person in, or who has
escaped from, the lawful custody of a law enforcement officer or
place of lawful confinement;
(9) The offense was committed for the purpose of avoiding,
interfering with, or preventing a lawful arrest or custody in a
place of lawful confinement, of the defendant or another; or
(10) The offense was committed in the course of manufacturing,
distributing, or dispensing substances listed in Schedules I and II in
violation of § 22-42-2.
4. This section provides:
In nonjury cases the judge shall, after conducting the
presentence hearing as provided in § 23A-27A-2, designate, in
writing, the aggravating circumstance or circumstances, if any,
which he found beyond a reasonable doubt. Unless at least one
of the statutory aggravating circumstances enumerated in §
23A-27A-1 is so found, the death penalty shall not be imposed.
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reasonable doubt the existence of two aggravating circumstances: “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,” and
“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.” SDCL 23A-
27A-1(7), (8). Although evidence had been presented regarding several other
aggravating circumstances, the circuit court found it unnecessary to make further
findings regarding any other aggravating circumstances. Because at least one of
the enumerated aggravating circumstances had been proven, the circuit court
concluded that consideration of the death penalty was appropriate.
[¶10.] The circuit court then turned to its consideration of the aggravating
and mitigating evidence presented. See SDCL 23A-27A-2. 5 The court began this
5. 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:
(1) Evidence supporting any of the aggravating
circumstances listed under § 23A-27A-1;
(2) Testimony regarding the impact of the crime on the
victim’s family;
(3) Any prior criminal or juvenile record of the defendant and
such information about the defendant’s characteristics, the
(…continued)
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analysis by noting Robert’s intent and desire to die. The court concluded that such
a wish is not an aggravating circumstance appropriately considered in the
determination of whether the death penalty should be imposed. The court also
noted that Robert had instructed his counsel not to present mitigating evidence on
his behalf. However, the court indicated that it considered all mitigating evidence
contained in the record. This mitigating evidence included Robert’s acceptance of
responsibility and mitigating evidence from the Meade County kidnapping file, of
which the court took judicial notice. After considering both the aggravating and
mitigating evidence, the court concluded that “the only effective and reasonable
retribution or punishment under the totality of the circumstances in this matter is
the imposition of the death penalty.”
[¶11.] The circuit court entered a Judgment of Conviction and Warrant of
Execution on November 10, 2011. On November 16, 2011, Robert filed a Waiver of
Appeal, waiving his right to appeal his conviction. This waiver acknowledged his
right to appeal, acknowledged discussing his waiver with counsel, and stated that
the waiver was free and voluntary. The waiver was signed by Robert and was
notarized.
[¶12.] Regardless of Robert’s waiver of appeal, this Court is obligated to
review each death sentence imposed in South Dakota. “If the death penalty is
________________
(…continued)
defendant’s financial condition, and the circumstances of the
defendant’s behavior as may be helpful in imposing sentence;
(4) All evidence concerning any mitigating circumstances.
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imposed, and if the judgment becomes final in the trial court, the sentence shall be
reviewed on the record by the South Dakota Supreme Court.” SDCL 23A-27A-9.
This Court conducts this review whether or not the defendant appeals the sentence.
When the defendant appeals, this Court’s statutorily obligated sentence review is
consolidated with the direct appeal. Id. This Court obtained jurisdiction to conduct
this sentence review when the circuit court clerk transmitted the record,
transcripts, a prepared notice of the clerk, and report of the trial judge to this
Court. 6 See id.
[¶13.] Upon obtaining jurisdiction, Robert’s position raised with this Court an
issue of first impression. It was clear to the Court that Robert had instructed his
appointed counsel to make no argument against imposition of the death penalty.
This Court is aware of society’s interest in the constitutional imposition of the death
penalty. See Commonwealth v. McKenna, 383 A.2d 174, 181 (Pa. 1978). This
6. Robert’s position in this matter raised procedural issues as of yet unique to
this State’s death penalty procedure. Pursuant to SDCL 23A-27A-9, the
circuit court clerk is to transmit the entire record and transcript to this Court
in order to effectuate the mandatory sentence review. The time for
transmittal of the record from the circuit court to this Court hinges upon
completion of the transcripts. Because Robert chose not to appeal, he did not
order transcripts in connection with his notice of appeal. However,
transcripts needed to be ordered and completed both to effectuate this Court’s
sentence review and to commence the time for transmittal of the record from
the circuit court to this Court. The circuit court, appropriately relying on
SDCL 23A-32-1, issued an order directing the court reporters involved to
prepare transcripts and charge the expense to the County. Completion and
filing of the transcripts provided this Court with a complete record on which
to conduct this mandatory sentence review and triggered the procedural
mechanism for initiating that review when no notice of appeal was filed by
Robert.
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interest exists independent of the State’s interest in punishing Robert for his
crimes. Aware that Robert’s instructions prevented his appointed counsel from
arguing against imposition of the death penalty and that the State would be
arguing for imposition of the death penalty, this Court appointed an experienced
criminal trial attorney as amicus curiae to identify and raise any potential issues
not presented due to the respective positions of Robert and the State. 7
[¶14.] Additionally, Robert’s position called into question his competency–
especially his competency to waive presentation of mitigating evidence at the pre-
sentence hearing and urge his own execution. The record revealed that Dr.
Manlove, a psychiatrist, had evaluated Robert for the purpose of determining his
competency to stand trial. 8 While it was clear that Dr. Manlove concluded Robert
was competent to stand trial, Robert had prevented either the State or the circuit
7. Given Robert’s position of seeking the death penalty, this Court concluded it
was appropriate to appoint an amicus curiae to act as an independent “friend
of the Court” to call to this Court’s attention any issues which are relevant to
its statutory and constitutional independent review of this case. The amicus
did appropriately function in this manner.
[T]he term “amicus curiae” literally means “a friend of the
court.” It ordinarily implies the friendly intervention of counsel
to call the court’s attention to a legal matter which has escaped
or might escape the court’s consideration. The right to be so
heard is entirely within the court’s discretion. . . . He cannot be
partisan. Neither can he be a party nor assume the functions of
a party to an action.
Matter of Estate of Ohlhauser, 78 S.D. 319, 322-3, 101 N.W.2d 827, 829
(1960).
8. Dr. Manlove had also evaluated Robert in connection with the Meade County
proceedings.
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court from reviewing Dr. Manlove’s report. At that point, Robert had sole access to
the report and refused to release it to the circuit court or to the State. Given the
gravity of the issues and potential outcome, this Court, sua sponte, requested the
parties address the issue of Robert’s competency. Specifically, this Court requested
the parties’ analysis of the appropriate competency standard, and whether Robert
gave any indication of failing that standard. All parties, including the amicus
curiae, agreed that the record revealed no concern as to Robert’s competency. The
circuit judge had found Robert competent, and Robert’s in-court statements
throughout the circuit court proceedings were those of a competent, intelligent man.
Nevertheless, out of an abundance of caution, this Court accepted Robert’s offer to
review in-camera the Manlove report completed after Robert chose to plead guilty.
The contents of this report, which remain under seal, alleviate our concerns
regarding Robert’s competency.
[¶15.] With amicus appointed and Robert’s competency settled, this Court
entered an order setting a briefing schedule. Further, we ordered Robert’s
execution stayed until such time as this sentence review was completed. Robert
strenuously objected to the briefing schedule and the resultant delay of his
execution, arguing that this Court was without jurisdiction to stay his execution
absent a direct appeal. We addressed Robert’s objections in an earlier opinion.
State v. Robert, 2012 S.D. 27, 814 N.W.2d 122. We determined that this Court has
jurisdiction to stay Robert’s execution pending our review. Id. This Court having
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received the briefs of Robert, the State, and amicus curiae, now proceeds to review
Robert’s sentence. 9
Analysis
[¶16.] Regardless of whether a direct appeal is filed by a defendant, this
Court is obligated to review each sentence of death imposed in this state. “If the
death penalty is imposed, and if the judgment becomes final in the trial court, the
sentence shall be reviewed on the record by the South Dakota Supreme Court.”
SDCL 23A-27A-9. This Court is required to make certain enumerated inquiries
regarding each death sentence.
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
9. Robert and the State both waived oral argument in this matter. As the
parties’ respective briefs illustrated no difference in their positions on the
statutorily mandated areas of inquiry, we accepted the waiver and review
Robert’s sentence on the record presented. This should not be understood as
rendering our review of Robert’s death sentence cursory. As we have
recognized: “This is in keeping with the mandate of the Supreme Court that
we must review carefully and with consistency death penalty cases and not
engage in ‘cursory’ or ‘rubber stamp’ type of review.” State v. Piper, 2006 S.D.
1, ¶ 83, 709 N.W.2d 783, 815 (quoting Arizona v. Watson, 628 P.2d 943, 946
(1981)). See also Piper v. Weber (Piper II), 2009 S.D. 66, ¶ 6, 771 N.W.2d 352,
355 (“‘The penalty of death is qualitatively different from a sentence of
imprisonment, however long. Death, in its finality, differs more from life
imprisonment than a 100-year prison term differs from one of only a year or
two.’ Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49
L. Ed. 2d 944 (1976). ‘The qualitative difference of death from all other
punishments requires a correspondingly greater degree of scrutiny of the
capital sentencing determination.’ California v. Ramos, 463 U.S. 992, 998-99,
103 S. Ct. 3446, 3452, 77 L. Ed. 2d 1171 (1983)”).
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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.
SDCL 23A-27A-12. We address each inquiry in turn.
[¶17.] (1) Whether the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary
factor.
[¶18.] The pre-sentence verdict illustrates the circuit court’s thought process
in reaching its sentencing conclusion. The conclusion was based on appropriate
considerations including: Robert’s future dangerousness, including his threat to kill
again; his violent history, including the 2005 kidnapping; his ability to be
rehabilitated; and the severity and depravity of the crime. The court also
considered any mitigating evidence it could find, despite Robert’s desire that no
such evidence be presented. None of the considerations articulated as factoring into
the sentencing decision evidence the influence of passion, prejudice, or any other
arbitrary factor.
[¶19.] Perhaps the obvious manner in which Robert fights so vigorously for
his execution calls us to review the propriety of it. Robert’s passion toward this end
generates an examination of the manner in which the sentence was imposed.
Robert’s persistent efforts to hasten his own death necessitate intense scrutiny to
guarantee his desire to die was not a consideration in the sentencing determination.
We do not participate in a program of state-assisted suicide. “The State must not
become an unwitting partner in a defendant’s suicide by placing the personal
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desires of the defendant above the societal interests in assuring that the death
penalty is imposed in a rational, non-arbitrary fashion.” Grasso v. State, 857 P.2d
802, 811 (Okla. Crim. App. 1993) (Chapel, Judge, concurring). Indeed, had the
sentencing determination been based in any degree on Robert’s desire to die, the
sentence may have been impermissibly imposed based on a non-statutory arbitrary
factor—Robert’s suicide wish. See Lenhard v. Wolff, 444 U.S. 807, 815, 100 S. Ct.
29, 33 (1979) (Marshall, J., dissenting). If that were the case, and the record
revealed that the circuit court based its decision on Robert’s desire to die, this Court
would be obligated to reverse the sentence of death and remand for resentencing.
See SDCL 23A-27A-13. It is not a statutory aggravating circumstance to invoke the
death penalty. See SDCL 23A-27A-1. However, the circuit court went out of its way
to make it clear that the sentencing decision was based in no part on Robert’s desire
to die. This Court can affirm the constitutional imposition of the death penalty
imposed in accordance with our statutes; it will not sanction state-assisted suicide.
[¶20.] As noted above, Robert waived presentation of mitigating evidence at
the pre-sentence hearing. The circuit court recognized Robert’s right to do so.
Schriro v. Landrigan, 550 U.S. 465, 479, 127 S. Ct. 1933, 1942, __ L. Ed. 2d __
(2007). The circuit court in Schriro engaged the defendant in an on-the-record
colloquy regarding his waiver of presentation of mitigating evidence. Id. at 469, 127
S. Ct. at 1937. Here, the record presents no such on-the-record colloquy specifically
relating to Robert’s waiver of mitigating evidence. However, the Supreme Court
indicated in Schriro that such a colloquy had never been required. Id. at 479, 127 S.
Ct. at 1943. It also indicated that an “informed and knowing” standard for waiving
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mitigating evidence had not been established, but it assumed that one existed. Id.
at 479, 127 S. Ct. at 1942. While it may be better practice to conduct an on-the-
record colloquy with a capital defendant choosing to waive mitigating evidence, the
record supports the conclusion that, assuming an “informed and knowing” standard
applies to such a waiver, Robert’s waiver satisfied that standard.
[¶21.] Recognizing that Robert had a right to waive presentation of
mitigating evidence, the circuit court considered mitigation from whatever source it
could find. SDCL 23A-27A-1 requires that the judge “shall consider . . . any
mitigating circumstances.” Piper, 2006 S.D. 1, ¶ 32, 709 N.W. 2d at 799 (also citing
Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973(1979)). Despite Robert’s waiver, the circuit court’s consideration of “any mitigating
circumstances” was required. This the circuit court did. Robert’s death sentence
does not appear to have been the result of passion, prejudice, or any other arbitrary
factor.
[¶22.] (2) Whether the evidence supports the jury’s or judge’s
finding of a statutory aggravating circumstance as
enumerated in § 23A-27A-1.
[¶23.] The circuit court found that the State had proven the existence of two
of the aggravating circumstances enumerated in SDCL 23A-27A-1. 10 Specifically,
the court found the existence of circumstance 7: “The offense was committed against
a law enforcement officer, employee of a corrections institution, or firefighter while
engaged in the performance of such person’s official duties;” and circumstance 8:
10. “We have previously held the aggravating factors under SDCL 23A-27A-1 to
be constitutional.” Piper, 2006 S.D. 1, ¶ 28, 709 N.W.2d at 783.
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“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.”
[¶24.] The evidence presented at the pre-sentence hearing included testimony
from Douglas Weber, Director of Adult Corrections and Chief Warden for the State
of South Dakota. He testified that on April 12, 2011, Ronald Johnson was employed
as a corrections officer at the South Dakota Penitentiary. He also testified that, at
the time of the murder, Johnson was on duty in the Pheasantland Industries’
building, covering a shift for a different corrections officer’s absence. The evidence
presented supports the finding of the aggravating circumstance identified in SDCL
23A-27A-1(7).
[¶25.] The record also contains the testimony of Jodi Hall and Matt Freeburg
from the pre-sentence hearing. These two officers described the situation they
encountered on April 12, 2011. Officer Hall described Robert’s actions as he
approached the penitentiary gate, dressed as Johnson. She also described Robert’s
attempt to climb through the razor wire on top of the gate after she called for the
Officer in Charge to come to the location. Officer Hall testified: “Mr. Robert and
Berget were attempting to escape.” 11
[¶26.] Officer Freeburg also described the events of April 12, 2011. Officer
Freeburg testified that Robert assaulted him, then attempted to climb the gate.
The evidence presented supports the finding of the aggravating circumstance found
11. SDCL 22-11A-1 defines escape as the “departure [by a prisoner] without
lawful authority. . . .” SDCL 22-11A-2 provides, in relevant part, Escape in
the First Degree to be “if the prisoner effects the escape. . . . (2) From a
secure correctional facility. . . .”
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in SDCL 23A-27A-1(8). 12 In Piper, “we acknowledge[d] 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.” 2006 S.D. 1, ¶ 28, 709 N.W.2d at 798.
[¶27.] (3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
[¶28.] The final inquiry regarding Robert’s death sentence is the
proportionality of the sentence compared to the penalty imposed in similar cases.
This Court is obligated “to include in its decision a reference to those similar cases
which it took into consideration.” SDCL 23A-27A-13. We clarified the “universe” of
cases to be considered in conducting this review in Rhines I.
We conclude that similar cases for purposes of SDCL 23A-27A-
12(3) are those cases in which a capital sentencing proceeding
was actually conducted, whether the sentence imposed was life
or death. “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. Rhines (Rhines I), 1996 S.D. 55, ¶ 185, 548 N.W.2d 415, 455-56 (quoting
Tichnell v. State, 297 Md. 432, 468 A.2d 1, 15-16 (1983) (citation omitted)).
[¶29.] In Piper, 2006 S.D. 1, ¶ 38, 709 N.W.2d at 801, and State v. Page, 2006
S.D. 2, ¶ 60, 709 N.W.2d 739, 760-61, we identified those cases up to that point
12. Furthermore, Robert admitted the existence of these two aggravating
circumstances. All other evidence is consistent with that admission so as not
to taint his admission by his admitted goal of seeking the death penalty.
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falling into this category. Since that time, our records reflect that, other than
Robert, and now Berget 13, there has been one case in which a capital sentencing
proceeding was conducted—State v. Daphne Wright. See State v. Wright, 2009 S.D.
51, 768 N.W.2d 512. In Wright, a Minnehaha County jury, faced with the decision
of whether to impose the death penalty, chose life in prison. Therefore, we compare
Robert’s sentence with those cases identified in Piper and Page, as well as Wright. 14
As we did in Page and Piper, we take judicial notice of the summaries of the cases
set forth in Rhines I, 1996 S.D. 55, ¶ 196, 548 N.W.2d at 456-57.
13. As previously noted, Berget’s case is pending before this Court for review in a
separate proceeding. See State v. Berget, #26318. We do not engage in a
comparison of the Robert and Berget cases at this point as Berget’s appeal is
still pending before this Court. As such, it is not a final decision of this Court
appropriate for proportionality analysis. Moreover, Berget is contesting
whether his actions justify a sentence of death on a proportionality basis. In
part, he specifically relies upon a direct comparison between himself and
Robert. To engage in such a joint analysis at this point could taint Berget’s
right to fully argue the same issue on his behalf based upon the record in his
case at the point when his case is ready to be considered by this Court rather
than the record in the Robert case now before us.
Although Page and Piper were considered and decided simultaneously, we
limited ourselves to an examination of the individual record in each case
when considering the statements of each defendant as to the facts of the
homicide and culpability of each. See Page, 2006 S.D. 2, ¶ 110, 709 N.W.2d at
775; Piper, 2006 S.D. 1, ¶ 86, 709 N.W.2d at 815.
14. The universe of cases in which a capital sentencing proceeding was conducted
includes: State v. Howard Adams; State v. Steven Bittner; State v. William J.
Helmer; State v. Donald Moeller; State v. James Elmer Smith; State v. Edwin
Swallow; State v. David Waff; State v. Charles Russell Rhines; State v. Robert
Leroy Anderson; State v. Darrell Hoadley; State v. Elijah Page; State v. Briley
Piper; and State v. Daphne Wright. Moving forward, the universe will include
State v. Eric Robert and State v. Rodney Berget.
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[¶30.] Of these cases, the sentencing authority imposed the death sentence on
six individuals (Moeller, Rhines, Anderson, Page, Piper, and Berget) and life
without parole on the other eight. 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 I, 1996 S.D. 55, ¶ 205,
548 N.W.2d at 457 (quoting State v. Bey, 645 A.2d 685, 689 (N.J. 1994)).
Proportionality review focuses on both the crime and the defendant. Id. ¶ 206. We
have recognized that “the disparity in suffering endured by victims is an important
and legitimate consideration when evaluating the proportionality of a death
sentence.” Id. ¶ 207.
[¶31.] As this is the first time this Court has included the case of Daphne
Wright in its proportionality review of a death sentence, a summary is appropriate.
Fueled by jealousy, Wright murdered a friend of her girlfriend by beating her to
death with a blunt object. The victim was also asphyxiated. Wright then attempted
to secrete the crime by cutting the victim’s body into pieces and disposing of the
parts in several places. The State sought the death penalty based on the depravity
of the crime. The evidence at trial established that the victim’s body was
dismembered post-mortem. The jury heard that Wright is deaf and that she was
traumatized when her parents sent her to a boarding school for the deaf at age five.
A psychological evaluation gauged Wright’s reading comprehension at a third-grade
level, and found that she may have suffered brain damage from an infant illness
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that caused her deafness. Wright’s mitigating evidence also included struggles with
her sexual identity and multiple suicide attempts.
[¶32.] Wright’s crime factually resembles Johnson’s death. Wright beat her
victim to death with a blunt object then asphyxiated her. The State sought the
death penalty based on the depravity of the murder. The jury found the existence of
the depravity aggravating circumstance, but returned a sentence of life without
parole. Distinguishing Wright’s crime from Robert’s, Wright’s victim was not an on-
duty corrections officer, nor was Wright attempting to escape lawful confinement at
the time. These facts alone separate Robert’s offense from Wright’s.
[¶33.] A proportionality review focuses not only on the crime, but also on the
defendant. Id. Wright’s jury considered mitigating factors not present in Robert’s
case. Wright had been deaf her entire life, struggled with sexual identity issues,
and had attempted suicide several times. A psychological evaluation concluded that
Wright read at a third-grade level, and suggested the possibility of brain damage.
[¶34.] None of the mitigating circumstances present in Wright are present
here. Robert presents as an intelligent, college-educated man well able to function
in society. He held a college degree from the University of Wisconsin and has held
several long-term jobs. At the time of the 2006 Meade County kidnapping
conviction, Robert had over $14,000.00 in his checking account, and over
$200,000.00 in total assets available. Even though Robert was capable of
functioning as a productive member of society, his past contains several instances of
violent, abusive behavior.
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[¶35.] Robert committed this crime while incarcerated for the 2005
kidnapping of a young woman. At the time of the kidnapping, Robert’s vehicle
contained rope, a shovel, and pornographic material. For the kidnapping, Robert
received 80 years in prison.
[¶36.] Robert’s violent history predates this murder and the kidnapping. At
the pre-sentence hearing, the State elicited testimony from a person with whom
Robert had had a long-term relationship. This testimony established that, before
the kidnapping, Robert was a violent, abusive, sexually assaultive man, capable of
violent acts against innocent victims. This witness testified that Robert physically
assaulted her, including punching, tackling, and pointing a gun to her head. She
also testified that Robert physically beat her until she acquiesced to sex. This
testimony is relevant because, as noted, the excessiveness and proportionality
inquiry focus not only on the crime, but also the defendant. 15
[¶37.] This case presents the second time that a capital sentencing phase has
been conducted based on the potential applicability of SDCL 23A-27A-1(7) (“The
offense was committed against a law enforcement officer, employee of a corrections
institution, or firefighter while engaged in the performance of such person’s official
duties.”). In State v. Bittner, Bittner stabbed two police officers responding to a call
15. In his reply brief, Robert argues that because he agreed the death penalty
was a proper sentence, the testimony concerning his past behavior was
irrelevant. But Robert’s decision to accept the death penalty is the irrelevant
fact in the sentencing determination, not his history. As previously noted, if
the only relevant consideration were Robert’s decision to accept and even
seek execution, this State would be assisting his suicide, rather than
constitutionally imposing the most severe criminal sanction available.
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that Bittner physically assaulted his girlfriend. One of the officers died. The jury
did not find the existence of any aggravating circumstances. Bittner established
various mitigating circumstances, including the use of alcohol immediately prior to
the crime and a disavowal of any intent to deliberately kill the officer. Bittner
received life in prison.
[¶38.] At the time of this crime, Robert was an inmate in the penitentiary.
Alcohol played no role in this killing. Nor has Robert disavowed his intent to kill
Johnson. Rather, Robert confessed his intent to kill not only Johnson, but any other
correctional officer standing in his way of escape. The nature of Johnson’s injuries
supports Robert’s professed intent to kill Johnson. Robert’s escape attempt relied
on immobilizing Johnson and stealing his uniform. But the intensity of the beating
and use of the plastic wrap prove that Robert intended to assure Johnson’s death,
even if immobilization would have sufficed. Robert’s sobriety and intent to kill
Johnson set this case apart from Bittner’s. Robert’s death sentence is not
disproportionate to the life sentence Bittner received.
[¶39.] The case of Darrell Hoadley also presents a horrendous beating death.
Hoadley received a life sentence from a jury after co-defendants Page and Piper
both received death sentences from a judge. 16 In considering the proportionality of
Piper’s death sentence to co-defendant Hoadley, we noted that Hoadley’s
involvement distinguished the sentences of Piper and Page. “South Dakota
16. This Court reversed Piper’s death sentence in Piper v. Weber, 2009 S.D. 66,
771 N.W.2d 352. Piper was later sentenced to death by a jury. Piper has
appealed the jury’s death sentence to this Court, which appeal is currently
pending. State v. Piper, #26126.
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reenacted the death penalty in 1979. Since that time, only defendants Moeller,
Rhines, and Anderson have approached the sheer brutality exhibited by Piper and
his co-defendant Page, and all have received the death penalty. Piper and Page
jointly planned the murder scheme and it was only after it was agreed upon
between them did they so inform Hoadley and involve him in its execution.” Piper,
2006 S.D. 1, ¶ 39, 709 N.W.2d at 801. This was not merely an escape attempt on
the spur of the moment where events spiraled out of control. Here, the record
reflects that Robert had been planning his escape attempt, which included the
murder of a corrections officer, for well over a month. His planning stage included
obtaining the lead pipe eventually used to kill Johnson.
[¶40.] The combination of the record concerning the crime and defendant
satisfy this Court that Robert’s death sentence is neither excessive nor
disproportionate when compared to the applicable universe of cases.
Conclusion
[¶41.] The circuit court did not base its sentencing decision on any passion,
prejudice, or any other arbitrary factor. The evidence supports the aggravating
circumstances found by the circuit court, and the death sentence is neither
disproportionate nor excessive when compared to other South Dakota cases in
which a capital sentencing phase was conducted. The death sentence is affirmed.
This matter is remanded to the circuit court for entry of a warrant of execution
pursuant to SDCL 23A-27A-31.
[¶42.] Affirmed.
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[¶43.] KONENKAMP, ZINTER, and SEVERSON, Justices, and MILLER,
Retired Justice, concur.
[¶44.] MILLER, Retired Justice, sitting for WILBUR, Justice, disqualified.
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