Lead Opinion
[¶ 1.] A South Dakota circuit court sentenced Rodney Scott Berget to death for the murder of corrections officer Ronald Johnson, a crime he committed while incarcerated at the South Dakota State Penitentiary in Sioux Falls. On direct appeal of that sentence, in State v. Berget (Berget I), this Court determined that the circuit court may have improperly considered, for sentencing purposes, statements made by Berget in a psychological evaluation procured to determine his competency to stand trial.
[¶ 2.] The details of Berget’s crime and the procedural posture of his first appeal are set out in Berget I,
[¶ 3.] In Berget I, this Court affirmed Berget’s death sentence on eleven of twelve issues. See id. ¶ 121,
[¶ 4.] To address this error, this Court concluded its opinion with instructions: “Pursuant to SDCL 23A-27A-13(2), we remand to the circuit court for the purpose of conducting a sentencing without this error. Per this statute, it is to be conducted on the existing record without reference to, or considering of, the report of Dr. Bean.”
[¶ 5.] On the day after this Court handed down its opinion and judgment, the State filed a motion for a hearing consistent with the opinion of this Court. The State acknowledged in its motion that it would not object to Berget introducing the psychiatric report “with such supplemental direct and cross-examination testimony of the psychiatrist as Berget might choose to place on the record.” Berget filed a petition for rehearing on the appeal, which we subsequently denied by order entered January 22, 2013.
[¶ 6.] A month after we handed down our opinion and judgment, Berget sent a letter to the circuit court, pursuant to SDCL 15-12-21.1, requesting that it disqualify itself from the remanded proceeding on grounds of judicial bias. In his affidavit supporting recusal, Berget
[¶ 7.] Berget also filed a demand for a new sentencing hearing to introduce new evidence. That evidence, allegedly obtainable only after his original sentencing, showed that “Berget has established a meaningful relationship with his son, his daughter-in-law, and his two grandchildren,” and that the relationship “has made a positive impact on the lives of [Berget’s] family, even while [Berget is] in prison for the rest of his life.” Berget argued, in spite of this Court’s clear directions on remand, that the circuit court “ha[d] the inherent power to grant a new [sentencing] hearing” and that his federal constitutional rights required it do so.
[¶ 8.] The circuit court held a motions hearing on Berget’s demand for a hearing on April 16, 2013. Berget repeatedly declined the circuit court’s offer to have Dr. Bean testify. He reasserted his federal constitutional law arguments and contention that the circuit court had the authority to grant a new sentencing hearing in the face of contrary remand directions by this Court. Berget further argued that our remand instructions were improper because we could not rely on SDCL 23A-27A-13(2) to justify our limited remand for resentencing and that our directions on remand were otherwise unclear. Finally, Berget reinforced his argument that his father-son relationship evidence was new and had not been withheld for dilatory reasons. The circuit court rejected Ber-get’s arguments by noting that our instructions on remand were clear, that as a circuit court it was bound to limit its jurisdiction on remand to those instructions, and that a new sentencing hearing would violate our directive. The circuit court declined to make a ruling on Berget’s constitutional arguments because it determined that they were outside its limited remand jurisdiction. After considering Berget’s offer of proof — and without further evidence to consider beyond the evidence, argument and allocution it considered in Berget’s original sentencing — the circuit court determined that another sentence hearing would serve no purpose given our remand instructions, and it orally denied Berget’s demand for a new sentencing hearing.
[¶ 9.] The circuit court entered a written order on May 7, 2013, denying Ber-get’s motions for a sentencing hearing, to introduce new mitigation evidence, and to disqualify itself. That same day, the court entered its amended presentence hearing verdict. Thereafter, both the State and Berget submitted proposed findings of fact and conclusions of law. After considering the proposed amended findings of fact and conclusions of law from Berget and the State, and the objections thereto, the circuit court notified the parties that it would adopt the State’s amended findings and conclusions in the court’s e-mail of June 7, 2013. The court’s amended findings of
Analysis
[¶ 10.] Berget now raises three issues in appealing his resentence on remand. Berget’s first and second arguments derive from the circuit court’s denial of Berget’s demand for a new sentencing hearing. He argues the court erred (1) by failing to consider his newly discovered mitigation evidence in reimposing his death sentence and (2) by preventing him from being present and being able to allocute when it reimposed its sentence. Berget’s third argument is that the circuit court erred by refusing to recuse itself from resentencing. In addition to Berget’s issues, SDCL 23A-27A-12 requires that this Court make three determinations whenever a circuit court imposes the death penalty, specifically:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in § 23A-27A-1; and
(3)'Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
Id.
[¶ 11.] 1. Whether the circuit court was required to consider Berget’s new mitigation evidence in its judgment upon limited remand.
[¶ 12.] As noted above, Berget made an offer of proof at the remand motions hearing regarding the nature and scope of the alleged newly discovered mitigation evidence of Berget’s positive relationship with his son and his son’s family. Berget faults the circuit court’s exclusion of this evidence from its sentencing deliberation by advancing two theories. First, Berget challenges both the “clarity” of this Court’s instructions for a limited remand for resentencing in Berget I,
[¶ 13.] Upon review, “ ‘[a] [circuit] court’s evidentiary rulings are pre
[¶ 14.] a. This Court’s authority to direct a limited resentencing upon remand.
[¶ 15.] Berget argues this Court’s remand instructions “somewhat perplexed” the circuit court. Berget attests that this “confusion is understandable” because the statute cited by the Court, SDCL 23A-27A-13(2), as additional authority for its limited resentencing instruction, was not proper authority on that point. Instead, noting the language of the statute, Berget believes this provision only authorizes a limited resentencing when the Court remands a death sentence for proportionality issues. Because this Court in Berget I affirmed each of the proportionality issues therein argued by Berget,
[¶ 16.] First, regarding Berget’s assertion of “confusion” — nowhere in the transcript of the motions hearing or elsewhere on the record did the circuit court express confusion with this Court’s instructions. As the hearing transcript indicates, the court restated our directions, noted their clarity, and in the face of Berget’s constitutional assertions, adhered to them. Only Berget’s oral argument asserted any “confusion,” and did so as the basis of argument.
[¶ 17.] Whether or not this Court misconstrued SDCL 23A-27A-13 in citing it as additional authority for its limited remand instructions is immaterial. This Court has general statutory and constitutional authority to mandate the scope of review on limited remand. As we recently noted in State v. Piper (Piper III),
[¶ 18.] Article V of the South Dakota Constitution requires this deference and clear adherence to this Court’s remand instruction to constitutionally function. Otherwise, each circuit court would become a supreme court unto itself. See Piper III,
[¶ 20.] b. The federal constitutionality of the limited resentencing.
[¶ 21.] Berget contends the Eighth and Fourteenth Amendments nevertheless override the Court’s authority to limit resentencing to exclude newly discovered mitigation evkfence. Because the Court’s authority to instruct a limited re-sentencing in Berget / was derived from Article V of our state constitution and from statute, Berget’s federal constitutional arguments are in essence challenges to the constitutionality of these provisions as applied. His burden is thus:
There is a strong presumption that the laws enacted by the legislature are constitutional and the presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Further, the party challenging the constitutioriality of a statute bears the burden of proving beyond a reasonable doqbt that the statute violates a state or federal constitutional provision.
Vilhauer v. Horsemens’ Sports, Inc.,
[¶22.] A proper analysis of Berget’s assertion of error requires a summary of Supreme Court case law on the evolution of capital sentencing rights. The roots of capital “mitigation evidence” are found in the Supreme Court case that reestablished the death penalty as viable under the Eighth Amendment, Gregg v. Georgia,
[¶23.] Although Gregg provided a starting point on the definition of admissible mitigation evidence, its common sentencing definition was soon broadened. Because of the severity of the death penalty, a plurality of the United States Supreme Court determined “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” See Lockett v. Ohio,
[¶ 24.] The sentencing authority must then consider all of the relevant mitigating evidence admitted at sentencing. “Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.” Eddings,
[¶25.] Berget argues this broad scope of relevant mitigating evidence requires that we adopt his position. However, the concern in this case is narrower and regards a matter outside the bifurcated trial procedure established in Gregg to which the requirements of a broad scope of relevant mitigating evidence and their mandated consideration by the sentencing authority (Lockett and Eddings) explicitly apply. The issue, rather, is whether the Eighth and Fourteenth Amendments prohibit this Court from narrowing the circuit court’s jurisdiction, upon a limited remand for resentencing in a capital case, such that the court could not consider relevant evidence for mitigation purposes discoverable only after remand.
[¶ 27.] The Supreme Court agreed with Skipper. While the Court admitted that “any such inferences” arising out of the “good adjustment” testimony “would not relate specifically to petitioner’s culpability for the crime he committed,” the Court found that this testimony nevertheless provided mitigation inferences “in the sense that [the inferences] might serve ‘as a basis for a sentence less than death.’ ” Id. at 4-5,
[¶ 28.] Evidence of Berget’s newfound relationship with his son and his son’s family conceivably could have been relevant evidence that Berget would not pose a danger in prison if spared, particularly under Lockett’s broad instruction that “any aspect of [the] defendant’s character ... that the defendant proffers as a basis for a sentence less than death” can be mitigating information.
[¶ 29.] Berget’s constitutional argument, however, relies on extending the window for unconstitutional exclusion of new mitigation evidence further, to include mitigating information discoverable only after the original sentencing and offered before resentencing.
[¶30.] Regardless of the Court’s intent, that instruction is not appropriate authority to support Berget’s claim since his case is readily distinguishable. As with all authoritative case precedent, the result in Skipper and “those portions of the opinion necessary to that result” are binding. See Seminole Tribe of Florida v. Florida,
[¶31.] In Berget’s case, the apparent error was very different. Unlike Lockett, Eddings and Skipper, the circuit court here did not improperly exclude evidence from the sentencing hearing, but only improperly considered evidence (if it did so at all) after the hearing was completed, during its deliberation. See Berget I,
[¶ 32.] The Supreme Court has not determined, in Skipper or otherwise, that a capital defendant has a categorical constitutional right to introduce new mitigation evidence discovered after a sentencing hearing in which the defendant was given the opportunity to present all mitigation evidence he desired. It has also not determined whether a remand for a limited resentencing in a capital case that effectively excludes such newly discovered mitigation evidence is constitutionally invalid. On both issues, lower courts have attempted to fill that void. Berget and the State each rely on different authorities reflecting a split in opinion.
[¶ 33.] Berget contends Davis v. Coyle (Davis V),
[¶ 34.] The Sixth Circuit rejected this collected reasoning. The court primarily drew comparisons between Davis’s case on resentencing and Skipper at sentencing— both prosecutors introduced evidence or argument of defendants’ dangerousness behind bars and both defendants faced “future dangerousness” as the “central” aggravating factors in their sentences. Compare Skipper,
[¶ 35.] The State, in contrast, cites the Ohio Supreme Court case of State v. Roberts,
[¶ 36.] On appeal, the Court rejected Roberts’s assertion that the sentencing court erred in precluding her from presenting new mitigating evidence on remand. The Court distinguished Skipper, Lockett, and Eddings as inapplicable because those cases “involved a situation where the capital sentencer was prohibited, in some form or another, from considering relevant mitigating evidence at trial.... [N]o relevant mitigating evidence was ever excluded from consideration during [Roberts’s] penalty phase.’ ” Id. at 1107 (first two alterations in original) (quoting State v. Chinn,
[¶ 37.] Beyond an inability to reconcile Lockett, Eddings, and Skipper to this alleged right to update one’s mitigation evidence, the Court rejected Roberts’s argument as causing untenable results. The Court reasoned that:
Establishing a right to update mitigation could result in arbitrary distinctions between similarly situated capital defendants. A defendant who had an error-free mitigation hearing could not update his mitigation — no matter how compelling the new mitigation that might be available to him — if the trial judge committed no error after the mitigation hearing that called for the case to be remanded. But another defendant, whose mitigation hearing was equally free of error, would have the right to update his mitigation in the event that aposthearing sentencing error took pjace that required a remahd.
Id.
[¶ 38.] Both Davis V ahd Roberts provide reasoning for whethef or not Shpreme Court precedent gives ipdirect authority that a court, on limited resentencing, must consider new mitigation evidence. Two key factors, however, point to Roberts being the persuasive authority.
[¶ 39.] First, the Sixth Circuit based its decision in Davis V on the ¡salient aggravating circumstance shared ⅛ both Davis and Skipper. “[T]he core of the analysis in Skipper reflects the Court's tmderstand-ing that the right of a defendaht to present evidence of good behavior in prison is particularly relevant when a prediction of future dangerousness figures centrally in a prosecutor’s plea for impositiqh of the death penalty.” Davis V,
[¶40.] In contrast, the two statutory aggravating circumstances under which the court sentenced Berget to death did not relate to his future dangeroushess per se, but to the nature of the murder he committed. See SDCL 23A-27A-1(7), (8) (“[t]he offense was committed against a[n] ... employee of a corrections institution,” and “[t]he offense was committed by a person in ... the lawful custody of ... a place of lawful confinement”). These statutory aggravating circumstances do not include future dangerousness as a consideration. Moreover, the circuit court considered Berget’s future dangerousness as one among four other non-statutory aggravating circumstances. The court’s original and amended presentence hearing verdicts indicate the court also took into account: (1) the violent nature of Berget’s attack on Johnson, (2) that a life sentence would have no deterrent effect on other inmates similarly situated to Berget, (3) that Ber-get had a long criminal history of ever-increasing violence outside of prison, and (4) that Berget showed a lack of remorse to Johnson’s family. Berget’s future dangerousness undoubtedly played a role in the court’s penalty analysis, but that aggravating concern did not predominate as it did in Davis or Skipper. Since this “central role” is the basis of the Sixth Circuit’s reasoning in Davis V, Berget’s reliance on that case is questionable.
[¶ 41.] Second, and most importantly, however, the negative consequences of adopting Berget’s position, as noted in Roberts, make Roberts the persuasive authority. For instance, as noted above, under SDCL 23A-27A-12(2) we are statutorily charged with an independent determination of “whether the evidence supports ... [a] judge’s finding of a statutory aggravating circumstance as enumerated in § 23A-27A-1.” Because of this duty, were we to accept Berget’s rationale that Skipper and Davis V require consideration of newly discovered post-trial mitigation evidence in every capital case, this Court would open the door to becoming the initial trier of fact for evidence never presented or considered by the circuit court. Under Berget’s rationale, this Court, when presented with new post-trial evidence upon appeal, “could be considered a ‘sentencer’ for
[¶ 42.] Additionally, the Roberts Court’s finding of arbitrary discrepancies that may manifest between similarly situated capital defendants simply because of a posb-sentence error in deliberation is clearly applicable in this case. No sentencing error existed in the case of Ber-get’s co-defendant, Eric Robert. See State v. Robert,
[¶ 43.] It is that very interest in achieving a “more rational and equitable administration of the death penalty” that the Supreme Court found to be the basis for allowing states the “authority to set reasonable limits upon the evidence a defendant can submit, and to control the manner in which it is submitted[,]” including mitigation evidence, in capital cases. See Oregon v. Guzek,
[¶ 44.] The Supreme Court’s ruling in Guzek is also instructive in a broader sense. In Guzek, the issue relevant to this case was whether the Eighth and Fourteenth Amendments granted Guzek the right to introduce new evidence of his innocence at his sentencing hearing— namely, that he was not present at the scene of the crime. Id. at 523,
[¶ 45.] Our balancing in this case and the balancing conducted by the Supreme Court in Guzek to reject a broadening of Lockett are similar because both defendants’ arguments implicated the same court management interest. Berget seeking a new sentencing hearing by effectively invoking a “right to update one’s mitigation” is akin to Guzek seeking to treat the sentencing hearing as a second guilt trial by invoking a “right to reconsideration” of guilt at sentencing. See Guzek,
[¶ 46.] Accordingly, Lockett, Eddings, and Skipper are clearly distinguishable from the present case. No binding authority requires under the Eighth Amendment that a resentencing authority consider newly discovered, otherwise-admissible mitigation evidence, when the defendant had a full and unrestricted opportunity to present mitigation evidence at the initial sentencing. Given the negative consequences articulated above, Guzek supports our instructions in Berget I. See Guzek,
[¶ 48.] If the Court’s limited re-sentencing instructions pass constitutional muster, Berget drgues that the circuit court nevertheless erred by not having granted him other rights available at sentencing generally — his rights to be physically present in the courtroom and to allo-cute once more before resentencing. These issues are questions of law and are therefore subject to de novo review. See Pete Lien & Sons, Inc. v. City of Pierre,
[¶ 49.] a. The legality of the circuit court’s entry of its sentence.
[¶50.] In support of this argument, Berget interprets a number of diverse authorities from federal and state sources. Berget cites Article VI, § 7 of the South Dakota Constitution, whiph provides, in pertinent part, that “[i]n aÜ cHminal prosecutions the accused shall have the right to defend in person and by counsel; ... to meet the witnesses against him face to face....” He goes on to reference SDCL 23A-39-1, which defines this right farther by mandating that “[a] defendant shall be present at his arraignment, at the time of his plea, at every stage of his trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by §§ 23A-39-2 and 23A-39-3.” Because these last exceptions are not applicable, and because a defendant’s presence is required “at every stage of his trial,” up to and including “the imposition of sentence,” Berget contends his state constitutional rights were violated by his absence when the court reimposed its sentence. Berget argues that federal authority is also persuasive on this issue because he believes that SDCL chapter 23A-39 was modeled after Rule 43 of the Federal Rules of Criminal Procedure. Cf. Jacquot v. Rozum,
[¶ 51.] On this last point, Berget is incorrect. The federal rule and SDCL chapter 23A-39, while containing some similarities, also contain numerous differences of significance. For example, SDCL 23A-39-3 deals with appearances by corporations faced with criminal prosecutions, a subject not addressed by the federal rule. The source of SDCL 23A-39 traces its roots back to our earliest criminal code while still a Territory. See Dakota Rev. Code Crim. P. §§ 237, 294 (1877). The current version was enacted as part of the general revision of our Criminal Code in 1978, again with significant differences from the federal rule both in subject matter and in phraseology. See 1978 S.D. Sess. Laws ch. 178, § 485. Therefore, the persuasive authority of federal courts’ interpretations of Federal Rule 43 language is negligible.
[¶ 52.] For case law interpreting SDCL 23A-39-1, Berget cites Kost v.
[¶ 53.] Applying a similar analysis, Berget’s physical presence at resen-tencing would have been “useless, or the benefit but a shadow” given our remand instructions. The circuit court’s resen-tencing did not, and could not, depend on any new evidence from Berget outside of calling Dr. Bean, which Berget declined to do when offered by the circuit court. What remained was for the circuit court to exercise its discretion in rendering its judgment on the same evidence and argument that was presented at the initial sentencing hearing. Because of the unique nature of the alleged error in Berget I, the circuit court only needed to reconsider its findings of fact and conclusions of law by drafting amendments in chambers, filing them with the Clerk of Courts, and serving copies on counsel. The unique posture of the remand begs the question: what was to be gained by having Berget physically present to watch the circuit court deliberate and hand these documents to the clerk? See United States v. Burton,
[¶ 55.] b. Berget’s claim for additional allocution.
[¶ 56.] Similarly, Berget contends that state and federal authority support his right to alloeute before resentenc-ing, which was denied by the circuit court’s refusal to conduct a formal resentencing hearing. To advance this contention, he relies on SDCL 23A-27-1 and this Court’s ruling in State v. Garber,
Before imposing a sentence, a court may order a hearing in mitigation or aggravation of punishment.... At such hearing, the court shall allow the defense counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.
[¶ 57.] Berget contends this Court may draw authority from federal case law that purportedly establishes a defendant’s right to allocute at resentencing generally. Federal case law provides that unlike the right to be present, “the right of allocution is not a constitutional one. Rather, the right of allocution derives from the Federal Rules of Criminal Procedure.” United States v. Patterson,
[¶ 58.] Berget relies on the unpublished opinion of United States v. Blake (Blake II),
[¶ 59.] In contrast, the Ninth Circuit, in its published opinion in United States v. Silva,
[¶ 60.] The clear parallels between Berget’s case and Silva indicate that the due process afforded to Berget on limited remand did not implicate Berget’s right to allocution. Like the Ninth Circuit’s directive in Silva, we instrpeted op remand that the circuit court was to conduct its review “on the existing record.” See Berget I,
[¶ 61.] Further, even if there were a right of allocution in this instance, any failure of the circuit court to provide Berget this right was harmless error. See United States v. Robertson,
[¶ 62.] Therefore, Berget provides no persuasive authority to support a right to allocution in the limited remand proceedings directed by Berget I. If the court erred in not providing for allocution, that error was harmless. Accordingly, his claim fails.
[¶ 63.] 3. Whether the circuit court erred in not recusing itself prior to resentencing.
[¶ 64.] Berget asserts the circuit court erred by denying his request that the court recuse itself on limited remand, citing the court’s actual and implied judicial bias. This argument stems from Berget’s allegation that the court simply recycled its findings of fact and conclusions of law from those in the case of Berget’s co-defendant, Eric Robert. In his initial brief, Berget characterized this allegation as indicating the court gave his case little consideration, which in turn evidenced bias. Berget now modifies this argument in his reply brief and in oral argument by asserting that the court was “trying to be fair in a situation where no mortal could be.” Berget further explains that the court was more inherently — rather than intentionally — biased because it had to prejudge Berget’s case, having already sentenced his co-defendant on similar findings of fact and conclusions of law. Berget relates that for the court to change its findings from Robert’s case to Berget’s case would be to “call the finality of the [.Robert ] decision ... into question.”
[¶ 65.] Berget admits that SDCL 15-12-24 statutorily precluded his affidavit for change of judge because he submitted argument to the circuit court — admitting guilt and receiving sentence — prior to filing the affidavit. He bases the court’s duty to recuse on a superseding, general constitutional right to a fair trial, citing Nelson,
[¶ 66.] This argument fails. Ber-get had argued on direct appeal that similarities between the verdicts from his and Robert’s pre-sentencing hearing indicate a violation of Berget’s right to an individualized sentencing determination under Lockett. Berget I,
[¶ 67.] 4. Whether Berget’s sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor.
[¶ 68.] Our analysis of the record indicates no basis for finding Berget’s sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. See SDCL 23A-27A-12(1). The circuit court’s amended presentence hearing verdict and amended findings of fact and conclusions of law reflect the proper scope of analysis directed by this Court on limited remand. As indicated above, Ber-get’s assertion of circuit court bias, actual and inherent, was shown to have no merit on direct appeal and remains without merit. Berget I,
[¶ 69.] 5. Whether the evidence supports the circuit court’s finding of statutory aggravating circumstances as enumerated in SDCL 23A-27A-1.
[¶ 70.] We noted in Berget I that evidence introduced at Berget’s sentencing hearing supported, beyond a reasonable doubt, the circuit court’s finding of two statutory aggravating circumstances evident in Ronald Johnson’s murder. See id. ¶¶ 16-17,
[¶ 71.] 6. Whether Berget’s death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
[¶72.] Finally, because “[w]e strictly and purposely limited our remand instructions in [.Berget I] to correct the specific error that had occurred,” see Piper III,
Conclusion
[¶ 73.] This Court, pursuant to the South Dakota Constitution, possesses the clear authority to direct the jurisdictional scope of a limited remand to the circuit court, and our remand directions in Berget I did not infringe upon any of Berget’s constitutional rights. The limited remand also did not implicate or otherwise violate Berget’s rights to be present and to allocution. Finally, this Court previously rejected, in Berget I, Berget’s judicial bias argument, and he has provided no additional, substantive argument in that regard on this appeal. We therefore affirm his death sentence.
Notes
. The sentencing court took the matter under advisement and pronouhced its initial sentence four days after t}ie completion of the initial sentencing hearing. There is no dispute Berget had an unrestricted opportunity to present all mitigation evidence he desired the court to consider at the sentencing hearing.
. We also instructed that Berget could "opt[ ] to call Dr. Bean to testify.” Id. ¶ 118,
. Because of the limited scope of remand and the clarity of the issues presented by both parties, the Court originally anticipated considering this appeal on the written arguments of counsel and without oral argument during its April 2014 Term. That determination is normally at the discretion of the Court. See SDCL 15-26A-82. However, we received notice that the Legislature placed an additional procedural requirement on the Court in cases where a circuit court imposes capital punishment: "Both the defendant and the state shall have the right ... to present oral argument to the court.” SDCL 23A-27A-11. Because Berget exercised that right, we heard oral argument in this matter during the May 2014 Term.
. Although these issues were addressed in the prior direct appeal, and SDCL 23A-27A-12 is silent as to whether they must be addressed on appeal of a limited resentencing, we nevertheless address these questions after analyzing the errors Berget advances on this appeal.
. The circuit court’s findings of fact and conclusions of law entered after its original sentencing indicate that at that time it was
. Berget does not dispute the State’s assertion, citing State v. Robert,
. Our use of the word “weighing” in this context does not contradict the fact that South Dakota is a non-weighing state. See State v. Rhines (Rhines II),
. Berget asserts that because the court received Dr. Bean’s report before the sentencing hearing, its mere existence in the record in that phase of the proceeding — albeit sealed throughout the hearjng — was sufficient to taint the entire sentencing phase. Objectively, however, there was no indication in the hearing transcript or elsewhere that the court improperly considered Berget’s admission to Dr. Bean or unsealed the report until its deliberation in drafting its presentence hearing verdict. The report was not offered into evidence or even mentioned at the sentencing hearing. See Berget I,
If the court erred, then, it did so by improper weighing of mitigation evidence. See Berget I,2013 S.D. 1 , ¶ 118,826 N.W.2d at 37 . That error is an order of magnitude lower than if the court had excludecj mitigating evidence from its consideration. The constitution clearly prohibits exclusion of relevant, mitigating evidence obtained before sentencing in a capital decision. See Lockett,438 U.S. at 604 ,98 S.Ct. at 2964-65 . The necessary remedy for violating this prohibition is remand to the circuit coiirt for its consideration of all relevant mitigating evidence. See Eddings,455 U.S. at 117 ,102 S.Ct. at 878 . The same cannot be said for the improper consideration of aggravating evidence. The constitution, in fact, permits an appellate court to reweigh the proper evidence and impose the death penajty in response to an error in the trial court’s weighing of the evidence. See Clemons v. Mississippi,494 U.S. 738 , 745,110 S.Ct. 1441 , 1446,108 L.Ed.2d 725 (1990); Spaziano v. Florida,468 U.S. 447 ,104 S.Ct. 3154 , 82 LEd.2d 340 (1984) (approving a state appellate court’s affir-mance of a death conviction by reweighing the aggravating and mitigating evidence after that court’s determination that an aggravating circumstance was improperly submitted to the factfinder). This is particularly true in non-weighing states. See Rhines II,2000 S.D. 19 , ¶ 54,608 N.W.2d at 315 (quoting Stringer v. Black,503 U.S. 222 , 231-32,112 S.Ct. 1130 , 1137,117 L.Ed.2d 367 (1992)) ("When the weighing process itself has been skewed, ... harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence."). That authority is further described by the Supreme Court:
If a person sentenced to death in fact killed, attempted to kill, or intended to kill, the Eighth Amendment itself is not violated by his or her execution regardless of who makes the determination of the requisite culpability; by the same token, if a person sentenced to death lacks the requisite culpability; the Eighth Amendment violation can be adequately remedied by any court that has the power to find the facts and vacate the sentence.
Cabana v. Bullock,474 U.S. 376 , 386,106 S.Ct. 689 , 697,88 L.Ed.2d 704 (1986), abrogated on other grounds by Pope v. Illinois,481 U.S. 497 ,107 S.Ct. 1918 ,95 L.Ed.2d 439 (1987).
. In the past, this Court has not hesitated to require a full sentencing hearing on remand in a death penalty case when the nature of the error warranted that outcome. For instance, in Piper v. Weber (Piper II),
That potential error, and the limited remand we instructed to address it in Berget I,stands in stark contrast to another case involving a remand for sentencing, State v. Bult (Bult IV), 1996 S.D. 20 ,544 N.W.2d 214 . Bult IV arose out of our repeated remands to the circuit court, after the court continued to impose life sentences without the possibility of parole and in spite of our repeat conclusions that that sentence constituted cruel and unusual punishment. See State v. Bult (Bult III),529 N.W.2d 197 (S.D.1995); Bult v. Leapley (Bult II),507 N.W.2d 325 (S.D.1993). In Bult IV, we established that "the court had an obligation” on remand from Bult III to update the relevant evidence necessary to fashion a sentence, see Bult IV,1996 S.D. 20 , ¶ 12,544 N.W.2d at 217 , which included mitigating evidence. However, Bult TV is clearly distinguishable from the present case. In Bult III, we did not instruct a limited remand as we did in Berget I, but permitted a full sentence hearing on remand because the nature of the error warranted that type of remand. See Bult III,529 N.W.2d at 200 . Our opinion here does not erode Bult IV’s conclusion that at a full sentencing hearing on remand, the defendant is entitled to the rights available at his or her original sentencing. See1996 S.D. 20 , ¶¶ 8-14,544 N.W.2d at 216-17 . What Bult IV did not do was establish a right to update one's mitigation evidence on any remand, or when directly contradicted by our remand instructions as Berget seeks here. Bult IV, in fact, stands for the supremacy of our remand authority, which we reassert here.
Multiple state supreme courts have affirmed similar limited remands of capital sentences. See, e.g., Ex parte Slaton,680 So.2d 909 , 922-23 (Ala.1996), cert. denied,519 U.S. 1079 ,117 S.Ct. 742 ,136 L.Ed.2d 680 (1997); People v. Lewis,33 Cal.4th 214 ,14 Cal.Rptr.3d 566 ,91 P.3d 928 , 937 (2004), cert. denied,543 U.S. 1178 ,125 S.Ct. 1308 ,161 L.Ed.2d 163 (2005); Crump v. State,654 So.2d 545 , 548 (Fla.1995) (per curiam).
. On a petition for rehearing in response to this Court’s opinion on direct appeal, Berget offered this same argument, citing Skipper, to cast doubt on the propriety of this Court's limited remand. Thus, we have had two occasions to analyze this argument.
. Only one Ninth Circuit case cited in Davis V actually addresses whether new mitigation evidence, constitutionally speaking, must be admitted at resentencing after the defendant was given the opportunity to present all mitigation evidence at his original sentencing. See
. This language is analogous to the Ohio Supreme Court’s logic in Roberts, where it held:
This case ... involves a proceeding on remand for the limited purpose of correcting an error that occurred after the defendant had had a full, unlimited opportunity to present mitigating evidence to the sentencer.
In other words, neither Lockett nor any of its progeny required the trial court to reopen the evidence after an error-free evidentiary hearing had already taken place.
. Berget’s constitutional claim is also subject to prejudicial or harmless error analysis. See St. John,
The State has proven that the aggravating evidence against Berget is overwhelming beyond a reasonable doubt, thereby negating any claim of constitutional error. Out of all the remaining aggravating evidence — including the brutal nature of the beating and suffocation of Ronald Johnson in carrying out the attempted escape, Berget’s violent criminal history, and the clear existence of the statutory aggravating circumstances of the killing an employee of a corrections institution while Berget was lawfully confined, SDCL 23A-27A-1(7), (8) — none of it would have been called into doubt or otherwise eroded by Ber-get’s evidence of his relationship with his son and his family. This new evidence could not reasonably expunge or mitigate the circumstances of the murder. "The absence of any prejudice is particularly apparent given the horrific nature of the crime.” McGehee v. Norris,588 F.3d 1185 , 1189 (8th Cir.2009) (citation omitted) (applying harmless error analysis to an alleged Lockett error). Additionally, as noted above, future dangerousness was not the central concern of the sentencing authority. It is even unclear how Berget’s relationship with his family will logically affect his future dangerousness. It is also unclear how Berget’s relationship would have resulted in a life sentence given the circuit court’s awareness of Berget’s son and the testimony of Associate Warden Pontow that Berget could serve a life sentence in administrative segregation to "diminish any serious threat of future dangerousness.” See Hall v. Luebbers,341 F.3d 706 , 717 (8th Cir.2003) (deeming the exclusion of mitigating evidence in a capital case harmless error where it was cumulative).
Moreover, it is important to note that "South Dakota law does not require the weighing of aggravating circumstances against mitigating factors[,]” and that a sentencing authority, in the face of all manner of mitigating evidence, "need only find one statutory aggravating factor beyond a reasonable doubt to impose the death penalty.” Page,2006 S.D. 2 , ¶ 50,709 N.W.2d at 758-59 (citing Rhines II,2000 S.D. 19 , ¶¶ 39 n. 9, 53,608 N.W.2d at 312 n. 9, 314).
Therefore, "ample evidence” shows the exclusion of Berget’s relationship with his son in the resentencing authority's final consideration was a harmless error beyond a reasonable doubt, if it was error at all. Because the circuit court committed,no prejudicial error, it did not abuse its discretion in excluding this newly discovered evidence, and on these additional grounds, Berget’s constitutional argument fails. See Smith, 1999 S.D. 83 , ¶ 39,599 N.W.2d at 353 .
. Kost also does not reference Federal Rule 43. Rather, it reviews our previous case law, which goes back to 1904, and which interpreted Territorial criminal procedure. Kost,
. Berget cites another Second Circuit case, United States v. DeMott,
. Rather, we explained that the similarity in the presentence verdicts’ recitation of facts was the logical and proper result of a court approaching a joint murder by co-defendants. Id. ¶ 52. Here, that analysis also applies with equal effect to Berget's argument on the
Dissenting Opinion
(dissenting on Issue 1).
[¶ 77.] When a death sentence is reversed and remanded for resentencing, and the sentencing court is thus required to determine anew whether to impose a sentence of life or death, there is no rational basis to deny the defendant the opportunity to present for the court’s deliberation any newly available mitigation evidence. It makes no difference here whether our remand was limited. The sentencing court was ordered to “conduct a sentencing without” the error in the previous sentencing, and therefore, it had to reevaluate all the appropriate factors and evidence, absent the erroneously considered matter. Federal constitutional law and our own jurisprudence require that the sentencing court consider any new mitigation evidence.
I.
[¶ 78.] Death is the ultimate penalty. It cannot be undone. It is thus an “ ‘indispensable part of the process of inflicting the penalty of death’ ” that the sentencing process “permit the consideration of the ‘character and record of the individual offender and the circumstances of the particular offense[.]’ ” Lockett v. Ohio,
[¶ 80.] Other courts have likewise held that the holding in Skipper,
II.
[¶ 81.] Our own precedent also dictates that it is error not to consider Berget’s newly available, otherwise admissible, mitigation evidence. In Butt IV, this Court made clear that a sentencing court has the duty to “acquaint itself thoroughly “with the character and history of the man before it,’ ” and a failure to do so denies a defendant “a meaningful sentencing hearing in accordance with our statutes and general principals of due process.”
[If 82.] In 1988, Butt had been sentenced to life without the possibility of parole, a sentence originally affirmed and later reversed. State v. Bult (Bult I),
[¶ 83.] On appeal, we held that a sentencing court had an “obligation,” on remand for resentencing, to update itself on what actions the defendant had taken between the reversal of the court’s resen-tence and the court’s second rehearing to pronounce a new sentence. Id. ¶ 12. We did not rely on the “nature of the error,” or language from Bult III that “permitted a full sentencing hearing on remand[.]” See supra Majority Opinion n. 9. We also did not express concern for maintaining “judicial efficiency” and avoiding “arbitrary outcomes.” Rather, we focused on the sentencing court’s duty to thoroughly acquaint itself with the current character and history of the defendant before it.
III.
[¶ 84.] “Sentencing decisions are perhaps the most difficult responsibility for trial judges, encompassing circumstances both obvious and elusive.” State v. Bonner,
[¶ 85.] Berget’s sentence should be remanded for a new sentencing hearing. This result is the only one consistent with our precedent and “ensure[s] the reliability, under Eighth Amendment standards, of the determination that ‘death is the appropriate punishment in a specific case.’ ” See Lockett,
. Despite this Court’s claim, Guzek is not "instructive in a broader sense.” See supra Majority Opinion ¶ 44. Guzek ruled that a defendant is not entitled to present new evidence of his innocence during a sentencing hearing because the guilt and sentencing phases are different, the issue of guilt had already been litigated, and trial management and evidentiary considerations control.
. The Court’s concern here about the "negative consequences” of allowing newly available mitigation evidence at resentencing was adequately answered by the Idaho Supreme Court in Sivak: "Needless to say, a sentencing judge will not have to consider such post-sentence mitigation evidence as will be submitted in this case if [the judge] conducts a proper sentencing procedure in the first place.” Id. at 198 n. 3.