State v. Berget

Dakota, STATE South Plaintiff Appellee,

v.

Rodney BERGET, Scott Defendant Appellant. 26764.

No.

Supreme Court of South Dakota.

Argued May 2014.

Decided Aug. 2014.

Rehearing Denied Oct. General,

Marty Jackley, Attorney J. Swedlund, Attorney Assistant Gen- Paul S. eral, Pierre, Attorneys South for Dakota plaintiff appellee. Larson, Falls,

Jeff Sioux South Dakota Olson, Scharffenberg and Cheri of Waltner Tea, Scharffenberg, & South Dakota At- torneys for defendant and appellant. GILBERTSON, Chief Justice. A South Dakota sen- circuit court Rodney Berget tenced Scott for to death of the murder corrections officer Ronald Johnson, a crime he in- committed while at the carcerated South Dakota State Pen- in Sioux itentiary appeal Falls. On direct sentence, Berget (Berget State v. I), this Court determined that the circuit considered, may improperly court have sentencing purposes, statements made Berget psychological pro- in a evaluation determine competency cured to ¶¶92, stand trial. S.D. Berget’s N.W.2d We remanded death for the purpose sentence limited resentencing “without the use of or consid- psychological eration of’ the un- evaluation Berget opted less to call its author to testify, existing and otherwise “on the rec- ¶¶ at 37. ord.” Id. 826 N.W.2d appeals the Berget now circuit court’s judgment of amended conviction sentenc- death. ing him to We affirm. Background appeal, Id. On agreed factor. we with that the circuit might have crime [¶ 2.] details prejudicial committed error improperly procedural of his posture appeal first considering this admission as aggravating ¶¶ I, are set out in 2- S.D. ¶¶ 116-118, evidence. Id. 826 N.W.2d at appeal 826 N.W.2d at 8-10. con This 36-37. cerns the limited remand instructed I and proceedings subsequent error, To address this this Court thereto. The relevant facts are provided opinion concluded its with instructions: below. 23A-27A-13(2), “Pursuant to SDCL we re- I, In Berget this Court affirmed mand to the circuit court for the purpose Berget’s death on eleven of sentence of conducting a sentencing without ¶ 121, twelve issues. See id. statute, error. Per this it is to be conduct- at 37. The regarded issue twelfth ed on the existing record without reference circuit court’s potentially iinproper consid- to, of, or considering the report of Dr. eration of aggravating render- ¶ 120, Bean.”2 Id. at 37. ¶¶91-

ing Berget’s death sentence. 118, 826 N.W.2d at Specifically, we 28-37. On day the after this Court hand- noted that sentencing after the hearing,1 ed down its opinion and judgment, the when the circuit court its sen- announced State filed a motion for hearing consis- tence, the court indicated that it had con- tent with opinion the of this Court. The sidered Berget’s early acceptance of re- State acknowledged in its motion that it sponsibility for the murder of Ronald would not object to Berget introducing the ¶ 92, mitigation. Johnson as Id. 826 psychiatric report “with such supplemental However, N.W.2d at 28. the circuit court direct and cross-examination testimony of then cited an Berget admission gave dur- psychiatrist the as Berget might choose to evaluation, ing psychiatric which was place on the record.” Berget filed a peti- contained in a report to determine Ber- tion rehearing for appeal, on the which we get’s fitness to stand The evaluation trial. subsequently by denied order entered Jan- previously had been sealed was not and uary 2013. admitted as sentencing evidence A month after we handed down hearing. Id. It Berget’s admis- contained opinion our judgment, sion to psychiatrist, Bean, Berget sent a David Dr. letter court, to the pleaded guilty pursuant he circuit to Johnson’s to murder 15-12-21.1, because he it SDCL requesting “wish[ed] wodld be that it dis- over.” Id. The qualify circuit court stated itself from that this ad- proceed- remanded mission did not reflect iptentionality on grounds judicial of bias. In his early that made acceptance mitigating recusal, affidavit supporting Berget sentencing 1. The court under took N.W.2d at the matter 37. This was the new evi- pronouhced advisement and its initial sen- dence-in addition to the record at the time of days tence four completion after t}ie sentencing arguments and the of counsel sentencing hearing. initial There is no dis- thereon —that the circuit court could have pute Berget opportunity had an unrestricted sentencing considered purposes for on re- all he desired transcript mand. The of the remand motions the court to sentencing consider at the hear- hearing indicates the repeatedly circuit court ing. inquired whether wanted to exercise option calling testify. Dr. Bean to Ber- We also "opt[ instructed that could ] get responded negative in the each time. ¶ 118, testify.” to call Dr. Bean to (1) ty grant sentencing hearing a new instances of bias: three claimed contrary the face of remand directions against Berget’s to find court had circuit argued further Court. or it would of fact assertions improper our remand instructions were findings fact contradicting its risk rely because we could not on 23A- SDCL in the case the death sentence jeopardizing 27A-13(2) justify our limited remand for (2) co-defendant, Robert, Eric Berget’s resentencing and that our directions on had found that Supreme Finally, remand were otherwise unclear. presen- error in its circuit court committed argument that his Berget reinforced (8) verdict, and the circuit hearing tence evidence was new relationship father-son decision court had rendered its dilatory and had not been withheld for only.” The circuit “through legal analysis rejected reasons. The circuit court Ber- Berget’s request denied for recusal that our get’s arguments by noting instruc- Presiding 2013. The Cir- February on clear, tions on remand were that as a Judicial Judge cuit of the Second Circuit juris- circuit court it was bound to limit its 8, 2018, deny- entered an order on March instructions, diction on remand to those recusal ing Berget’s request. formal and that sentencing hearing a new would Judge based the order on Ber- Presiding violate our directive. The circuit court get’s disqualify waiver of his ruling Berget’s declined to make a con- court, 15-12-24, pursuant to circuit SDCL arguments stitutional because it deter- having already multiple him “submitted they mined that were outside its limited arguments proofs support of mo- jurisdiction. considering remand After prior request tions” to the court to his proof offer of without fur- —and recusal. beyond ther evidence to consider the evi- Berget also filed a demand for a [¶ 7.] dence, argument and allocution it consid- sentencing hearing new to introduce new Berget’s original sentencing ered in —the evidence, allegedly evidence. That obtain- circuit court determined that another sen- original sentencing, able after his tence hearing purpose giv- would serve no “Berget showed that has established a instructions, en our orally remand and it son, meaningful relationship with his his Berget’s denied demand for a sentenc- new daughter-in-law, grandchil- and his two ing hearing. dren,” the relationship and that “has made The circuit court entered a writ- [¶ 9.] on positive impact [Berget’s] the lives of May denying ten order on Ber- family, even [Berget prison while in for is] get’s sentencing hearing, motions for a the rest his life.” Berget argued, of in evidence, introduce mitigation new and to spite of this Court’s clear on directions disqualify day, itself. That same the court remand, that the circuit court “ha[d] presentence entered its hearing amended power grant inherent a new [sentenc- Thereafter, verdict. both the State and ing] hearing” and that his federal constitu- Berget proposed findings submitted of fact rights tional required it do so. considering and conclusions of law. After The circuit court held a motions the proposed findings amended of fact and hearing on Berget’s hearing demand for a Berget conclusions of law from and the April on 2013. Berget repeatedly State, thereto, de- objections and the the cir- clined the circuit court’s offer to have Dr. cuit parties court notified the that it would testify. Bean He reasserted his federal adopt findings the State’s amended and arguments constitutional law and conten- conclusions in the court’s e-mail of June tion that findings the circuit court had 2013. The court’s amended the authori- (3)'Whether conclusions of law were entered the sentence of death fact and an day. disproportionate The court entered amended excessive or sentence, cases, penalty imposed and and in similar judgment of conviction warrant, considering both the June 2018. Ber- crime and the the death on defendant. timely This entered get appealed. stay August on

an order for of execution Id.4 2013.3 1. Whether the circuit [¶ 11.] court Analysis required Berget’s to consider mitigation judg- new in evidence Berget now raises three issues upon ment limited remand. his appealing resentence remand. Berget’s arguments first and second derive above, As noted made an Berget’s from the circuit court’s denial of proof offer of at the remand motions hear- sentencing hearing. demand for a new He ing regarding the nature and scope (1) argues by failing the court erred to alleged newly discovered mitigation evi- newly consider discovered Berget’s positive dence of relationship with in reimposing his death sentence family. his son and his son’s Berget faults (2) by preventing being him from the circuit court’s exclusion of this evi- being able to allocute when it dence from its sentencing deliberation reimposed Berget’s its sentence. ar- third First, advancing two theories. gument is that the circuit court erred challenges both the “clarity” of refusing resentencing. recuse itself from Court’s instructions for a limited remand issues, In addition to SDCL 23A- I, resentencing requires 27A-12 this Court make ¶¶ 118, 120, 826 N.W.2d at three determinations whenever a circuit statutory on, authority that we relied imposes penalty, specifical- the death part, to so limit the scope the limited ly: resentencing, id. 120 SDCL.23A- 27A-13(2)). Second, Berget asserts that (1) Whether the sentence of death was even if there was statutory authority to imposed under the influence of pas- remand, support limiting scope the sion, prejudice, any or other arbi- limitation on the admission of his new miti- factor; trary gation evidence violated his Eighth and (2) the supports Whether rights. Fourteenth Amendment jury’s judge’s finding or of a statuto- “ review, ry aggravating circumstance enu- Upon as [¶ 13.] [cir ‘[a] 23A-27A-1; § merated in evidentiary court’s rulings pre- cuit] are scope 3. Because of the limited of remand and the court.” SDCL 23A-27A-11. Because clarity presented by of the issues both right, exercised that we heard oral parties, originally anticipated the Court con- argument during in May this matter 2014 sidering appeal arguments this on the written Term. argument during of counsel and without oral April 2014 Term. That determination is Although 4. these issues were in addressed normally at the discretion of the Court. See prior appeal, direct and SDCL 23A-27A-12 is However, SDCL we received 15-26A-82. no- they silent as to whether must be addressed Legislature placed tice that the an additional appeal resentencing, on aof limited we never- procedural requirement in on cases questions analyz- these theless address after imposes capital punish- where a circuit court appeal. the errors advances on this ment: "Both the defendant and the state shall argument have the ... oral 52 First, and will not be reversed regarding Berget’s [¶ correct asser- 16.]

sumed is a clear abuse of discre unless there tion of “confusion”—nowhere in the tran- ” Vermeulen, 29, v. 2010 S.D. tion.’ Wilcox script hearing of the motions or elsewhere ¶ (quoting Thomp N.W.2d on the record did the circuit court express 69, ¶21, 2005 S.D. Mehlhaff, son v. confusion with this Court’s instructions. 519-20). An abuse of N.W.2d discre hearing indicates, As the transcript circuit tion occurs when the court exercises directions, court restated our noted their “ purpose ‘to an end or its discretion clarity, and in the face of Berget’s consti- justified by, clearly against reason and assertions, tutional Only adhered to them. ” Peterson, v. evidence.’ St. John S.D. Berget’s argument oral asserted “con- ¶58, 10, 71, 74 (quoting 804 N.W.2d Mous fusion,” and argu- did so as the basis of ¶ Schwartz, 86, 10, v. 2008 S.D. seau ment. 350). Court, turn, N.W.2d This will not overturn the circuit court’s abuse of [¶ Whether or not 17.] discretion unless that “error is ‘demon Court misconstrued SDCL 23A-27A-13 prejudicial strated ... shown to be [and] citing it as authority additional for its ” ¶ Smith, 83, 39, error.’ State v. 1999 S.D. limited remand instructions is immaterial. (alteration original) 599 N.W.2d general statutory This Court has and con ¶14, 11, (quoting v. Spiry, State S.D. authority stitutional scope mandate the 263). We, however, 543 N.W.2d re of review on limited remand. As we re view application de novo the circuit court’s cently III), noted in Piper (Piper State v. underlying of the law ¶ circuit court’s 2014 S.D. 842 N.W.2d both Rolfe, exercise of discretion. See State v. SDCL 15-30-14 and 15-30-11 require the ¶2, 15, 2013 S.D. 825 N.W.2d lower court to explicit enforce our instruc “ tions remand. the scope When authority a. This Court’s limited, remand is the entire case is not resentencing upon direct a limited rather, reopened, but the lower tribunal is remand. carry authorized to out appellate ” Berget argues this Court’s III, court’s Piper mandate.’ 2014 S.D. remand perplexed” instructions “somewhat 11, 842 (quoting In re the circuit court. attests that this Conditional Permit Use Granted to Van “confusion is understandable” because the Zanten, 79, ¶13, Court, statute cited SDCL 23A- 864). 27A-13(2), as authority additional for its Article V of the South Da instruction,

limited resentencing was not requires kota Constitution this deference proper Instead, authority point. on that and clear adherence to this noting statute, the Court’s re language of the Berget mand instruction constitutionally to func believes this provision only a authorizes Otherwise, tion. each limited circuit court would resentencing when the Court re supreme become a mands a court unto itself. death sentence for See proportionality ¶ III, 2, 10, Piper issues. 2014 S.D. Because in 842 at this Court I N.W.2d (“If affirmed each 343 the original jurisdic of the circuit court’s proportionality issues 1, therein argued by Berget, tion could spontaneously 2013 S.D. resurrect on re- ¶¶ 18-31, mittal, 826 N.W.2d at he the defined roles of judi con our tiered tends system that our cial ... judicial limited remand and the and the certainty subsequent resentencing limited and efficiency they violated foster would be nulli fied.”). state law.

53 authority, Given we States We binding this Constitution. review this con- [¶ 19.] Green, contention de ability pursu- stitutional novo. See conclude Court had the ¶ 146, 7, 1996 S.D. 557 N.W.2d at statutory state constitutiohal and 398 ant Panzer, 896, v. (citing Kyllo 535 in N.W.2d resentencing direct a limited law to (S.D.1995)). 897 and the to fol- Berget I court was circuit follow, low, did in and our analysis directions A proper [¶22.] of accor- that authority. dance with requires assertion of error a of summary

Supreme Court case law on the evolution b. The federal constitutional- capital sentencing rights. of The roots of ity resentencing. of the limited capital in “mitigation evidence” are found Supreme the Court case that reestablished the contends penalty the death as viable under the nev Eighth Fourteenth Amendments Amendment, Eighth v. Gregg Georgia, 428 authority override the ertheless Court’s 153, 2909, U.S. 96 S.Ct. 49 L.Ed.2d 859 newly discov resentencing limit to exclude (1976). in Gregg The Court clarified that mitigation ered Because evkfence. case, which prior effectively abolished authority to re- Court’s a limited instruct nationwide, penalty death v. Furman in from derived / Georgia, U.S. 33 S.Ct. Article V of our state constitution and (1972), L.Ed.2d 346 did not hold that the statute, Berget’s from constitution federal per death was a se penalty violation of the challenges are in arguments al essence Eighth Amendment. 428 U.S. at constitutionality provisions of as these Instead, S.Ct. at 2932. “Furman held that His applied. is thus: burden penalty] [the death could not be imposed strong is a presumption There sentencing procedures under that created legislature laws enacted are con- a risk that it substantial would be inflicted and the is presumption stitutional rebut- arbitrary capricious an manner.” clearly, ted when it palpably and this, Id. prevent To began Court plainly appears that violates statute applying the common precept of sentenc- Further, provision the constitution. ing “ or aggravation, challenging the party constitutioriali- ‘justice generally requires ... that there statute ty prov- of a bears the burden of be taken into account the circumstances beyond doqbt that the reasonable together the offense with the character statute violates a state or consti- ” federal propensities at offender.’ Id. provision. tutional 189, 96 at 2932 (quoting Pennsylva- S.Ct. Inc., v. Sports, Vilhauer Horsemens’ Ashe, nia ex rel. v. Sullivan ¶ 16, (quoting S.D. 598 N.W.2d 59, 61, (1937)). L.Ed. 43 Schutz, Siegel, Green v. Barnett & 1996 The then acknowledged that much “ ¶ 398). S.D. ‘A evidence, of this although relevant for sen- defendant cannot that a statute tencing purposes, properly would be ex- claim if unconstitutional it reaches some cluded as prejudicial or irrelevant on the ” applied is constitutional as State him.’ question of guilt. Jensen,

v. jury expected Because “cannot be Russell, (quoting City 648 Pierre v. to consider certain evidence on before it of (1975)). 70, 74, 228 issue, another,” 341 one not n. but id. at 190 therefore, (citations Berget, beyond a must 96 S.Ct. at 2933 n. 40 establish omit- ted), scope reasonable that the of suggested narrow solving the chal- doubt trial, our limited remand a lenge through the United bifurcated a wherein violated 54 first, (adopting 102 at 875 occurs and at S.Ct. guilt of

determination guilty, Lockett). found a then, defendant is if the plurality opinion Accordingly, whether a death sentence of determination sentencing, “virtually at no limits are 190-92, at issue, id. at 96 S.Ct. see will mitigating evidence placed on the relevant 2933-84. may defendant introduce concern capital a ing Payne his own circumstances.” See v. Although Gregg provided [¶23.] Tennessee, 111 S.Ct. U.S. on the definition of admis starting point (1991). 2607, 115 evidence, sen L.Ed.2d its common sible was soon broadened. tencing definition The au severity penal of the death Because of thority must then all of the rele consider States Su ty, plurality of United at mitigating vant evidence admitted sen Eighth determined “the and preme Court tencing. may by “Just as the State not require Amendments that the Fourteenth preclude statute the sentencer from con sentencer, the rarest kind of in all but factor, may neither sidering any mitigating case, precluded not be from consid capital consider, mitigating factor, any aspect of the sentencer refuse to as a mat as a ering, any law, character or record and a defendant’s any mitigating ter relevant evi of of the offense that of the circumstances Eddings, dence.” at U.S. proffers as a basis for a the defendant sentencer, S.Ct. 876-77. “The and the sentence less than death.” See Lockett v. review, Appeals may Court of Criminal Ohio, 98 S.Ct. weight given determine the to be relevant (1978) (second 2964-65, 57 L.Ed.2d 973 mitigating they may evidence. But added) (footnote omitted). emphasis it no give weight excluding such evi sentencing authority’s broad consideration dence from their consideration.” Id. at defendant-specific of characteristics was 114-15, 102 S.Ct. at 877. against arbitrary viewed as a bulwark capricious penalty use the death Berget argues this broad [¶25.] that “the penalty and ensured death would scope mitigating of relevant evidence re be in a more consistent ra imposed quires adopt position. that we Howev tional manner.” Id. at 98 S.Ct. at er, the concern in case is narrower (citation omitted). liberality Such and regards a matter outside the bifurcat consistency by providing achieved this procedure ed trial in Gregg established “meaningful distinguishing basis for requirements which the of a broad scope ... in which penalty] [the cases death mitigating relevant evidence and their imposed many from ... cases which mandated consideration (citing Gregg, it is not.” Id. 428 U.S. at (Lockett authority Eddings) explicitly 2932). plurality That hold issue, rather, apply. The is whether the majority became the position Ed Eighth pro and Fourteenth Amendments Oklahoma, dings v. U.S. hibit this narrowing Court from the circuit (1982). 869, 71 “By holding L.Ed.2d that jurisdiction, upon court’s a limited remand in capital per sentence cases must be case, resentencing in a such capital mitted to consider relevant mitigating for the court could not consider relevant evi factor, the rule in recognizes Lockett that a mitigation purposes dence for consistency discoverable produced by ignoring individu al consistency.” differences is a false after remand.5 findings tencing The circuit court’s fact time and con- indicate that at it was original clusions of law entered after its sen- Berget Skipper implied relies on v. Court that this “basis for a sen- Carolina, South 476 U.S. 106 S.Ct. tence less than death” arose out of its 1, (1986), new, 90 L.Ed.2d which held that previous holding that “evidence that a de- may be mitigating relevant intro- fendant would in the future pose danger a through capital duced at least defen- community to the if he were not executed period dant’s of incarceration while await- may be treated as establishing ‘aggra- an case, ing Skipper trial. In that and his vating factor’ for purposes capital sen- during former wife testified the sentencing Texas, tencing.” Id. Jurek v. that he phase had “conducted himself well U.S. during the he spent jail months 7½ (1976) (opinion Stewart, L.Ed.2d 929 between his arrest and trial” and had Powell, JJ.)). Stevens, The Court rea- high diploma. earned his school Id. at soned that if evidence of a future danger at 1670. S.Ct. He asserted that this always could be admissible as aggravating behavior was indicative of his future con- evidence, then evidence indicating the in- in custody duct and that his sentence verse-that a defendant pose “would not should therefore have been reduced to life (but incarcerated)” danger if spared —was imprisonment. Id. In further support, applicable to death penalty cases generally Skipper sought testimony to introduce “potentially as a mitigating” factor. Id. at jailers “regular from and a visitor” to the factor, 106 S.Ct. 1669. As such a it jail good adjustment,” that he had “made a not be excluded from the “[could] sentenc- indicating adaptability prison his future to er’s consideration.” Id. The Court con- sentencing life. Id. The court ruled that “ cluded, ‘any sentencing authority must such evidence was irrelevant and therefore predict a person’s probable convicted fu- inadmissible, citing state case law that a ture conduct when it engages pro- ability adjust defendant’s to to life behind cess of determining punishment what bars could not be capital relevant to sen- ” impose.’ Id. at at (quot- S.Ct. tencing. Id. The sentencing jury subse- Jurek, 428 U.S. at 96 S.Ct. at quently sentenced Skipper death. Id. 2958). Because the sentencing court ex- On appeal, Skipper asserted that the sen- testimony cluded future conduct of the tencing court had committed constitutional jailers and visitor from error, pursuant Eddings, by to Lockett and jury, the Court determined the relevant, excluding the mitigating testimo- Skipper’s Eighth had violated ny jailers and the visitor. Id. Amendment all mitigating The Supreme agreed with evidence. See id. at 106 S.Ct. at 1671. Skipper. While the Court admitted that Evidence of newfound “any arising such inferences” out of the relationship with his son and his son’s “good adjustment” testimony “would not family conceivably could have been rele- specifically petitioner’s relate culpability committed,” vant evidence that would not pose for the crime he the Court danger prison if spared, particularly testimony found that this nevertheless pro- vided “in under Lockett’s broad inferences the sense instruction “any aspect might [the serve ‘as a defendant’s character inferences] [the] ” for a ... that the proffers basis sentence less than death.’ defendant as a basis Lockett, at for a (quoting sentence less than death” can be 2964). mitigating 98 S.Ct. at information. 438 U.S. at known to and the circuit court that had a son. Taking 2964-65. Skipper readily at his case is distinguishable. As then, together, Berget’s relation- with all precedent,

Lockett authoritative case the ship may have been evidence the court result in Skipper portions and “those of could not have excluded from its consider- the opinion necessary to that result” are ation if offered it at point prior binding. See Seminole Tribe Florida v. Florida, sentencing 44, 67, 1114, of the completion portion 517 U.S. 116 S.Ct. (1996). Skipper, the trial. See 476 U.S. at 134 L.Ed.2d 252 The Skip- at 1671. per 5.Ct. Court’s instruction of a new hearing necessary was the result of the Berget’s argu- constitutional excluding court’s error in miti- ment, however, relies extending gation evidence from a sentencing jury’s window for unconstitutional exclusion of consideration, thereby tainting the subse- further, mitigation new to include quent new, sentencing hearing. A full sen- mitigating only information discoverable tencing hearing was “necessary” because it original sentencing after the and offered would be required probe the value of before To find resentencing.6 authority the wrongly testimony, excluded since its supporting this proposition, Berget relies contribution to the sentencing authority’s on the Skipper Court’s instructions on re- weighing7 mitigating aggravating mand. See id. at 106 S.Ct. at 1673 factors was otherwise undefined. Conse- (“The resulting death sentence cannot quently, the sentencing authority could stand, although the State is of course not given have wrongly mitigat- excluded precluded again seeking from to impose ing factor such weight that it alone was sentence, provided the death that it does grounds for a life sentence. so through a new sentencing hearing at which petitioner permitted is to present case, In [¶31.] any and all relevant mitigating evidence apparent error very different. Unlike added.)). that (Emphasis available.” Lockett, Eddings and Skipper, the circuit Court, however, clarify did not wheth- court here did not improperly exclude ev er it meant “all relevant mitigation evi- idence from the sentencing hearing, but dence that is available” on existing (if improperly considered evidence it record at original sentencing or on the all) did so at after hearing was com record that could be developed up to re- pleted, during its deliberation. See Ber sentencing. I, get 2013 S.D. Regardless

[¶30.] in- Court’s 37. The sentencing hearing itself was tent, that instruction is appropriate not tainted because exercised the authority support Berget’s claim since opportunity unrestricted to introduce all ¶¶ dispute 6. does not the State’s asser 608 N.W.2d In describ- tion, Robert, ¶60, 20, citing State v. 2012 S.D. weighing the distinction between (citing Schriro v. Landri states, non-weighing Supreme Court has 465, 479, gan, 550 U.S. 127 S.Ct. noted, terminology ”[t]he is somewhat mis- (2007)), 167 L.Ed.2d 836 in leading, capital since we have held that in all reasonably formation discoverable before sen weigh cases sentencer must be allowed to tencing capital is waived when a defendant the facts and arguably jus- circumstances that fails sentencing. evidence at tify against a death sentence the defendant's Sanders, mitigating evidence.” Brown v. 7. Our use of the “weighing” word in this 212, 216-17, U.S. context does not contradict the fact (2006) non-weighing South Dakota is a Eddings, L.Ed.2d 723 state. See (Rhines II), 874). State v. Rhines 102 S.Ct. at

57 mitigating Therefore, evidence he desired.8 Fur ing hearing. we determined thermore, report once Dr. Bean was that a resentencing the limited prior the excluded, remaining the fac record —that merely struck the evidence and offensive mitigation in tors ahd re evidence or aggravation permitted its by elaboration unchanged mained Berget through considered Dr. Bean —would be suf those from by the circuit court in sentenc the initial ficient to correct this error on remand.9 Black, 222, 231-32, 8. asserts that Stringer because the court re v. 503 U.S. 112 report 1130, ceived Dr. Bean’s the sentenc (1992)) before S.Ct. 117 L.Ed.2d 367 ing hearing, its in mere the record existence ("When weighing process the has been itself phase proceeding in that of the sealed skewed, —albeit analysis ... reweigh harmless-error or throughout hearjng the sufficient to —was ing appellate at the trial or level to suffices sentencing phase. Objective taint the entire guarantee that the received an indi defendant however, ly, there no in the was indication sentence."). authority That is fur vidualized hearing transcript or elsewhere court the Supreme described the Court: ther improperly Berget’s considered admission killed, person If a sentenced to death in fact report Dr. Bean or unsealed its de until kill, kill, attempted to or intended to drafting presentence in hearing liberation Eighth Amendment itself is not violated report verdict. The offered into evi regardless or her execution of who makes the sentencing dence or even at the mentioned requisite culpability; by of the I, ¶1, 94, determination hearing. See 2013 826 S.D. token, person same if a sentenced to death N.W.2d at 29. In order for the Court to requisite adopt Berget’s argument, culpability; Eighth lacks the we would need tb speculate processes on the mental Amendment adequately violation can be court, which we not cjo. will by any remedied power court that has the erred, then, If by improp the court did so find the facts and it vacate the sentence. weighing mitigation er See Ber Bullock, 376, 386, evidence. Cabana v. 474 U.S. 106 I, 1, 118, ¶ get 2013 S.D. 826 N.W.2d 37. 689, 697, (1986), 88 L.Ed.2d 704 abro- magnitude That error is an order of lower Illinois, gated grounds by Pope on other v. 481 excludecj mitigating than if the court had evi U.S. 107 S.Ct. 95 L.Ed.2d 439 dence from its The constitu consideration. (1987). relevant, clearly prohibits tion exclusion of mitigating evidence obtained before sentenc past, In the this Court has not hesitated to Lockett, capital in a See 438 decision. require sentencing hearing a full on remand U.S. at 98 S.Ct. at 2964-65. The neces penalty in a death case when the nature of the sary remedy violating prohibition instance, error warranted that outcome. For remand to the circuit for its consider coiirt II), Piper (Piper in v. Weber 2009 S.D. mitigating ation of all relevant evidence. See ¶ 21, 352, 360, Pip- we vacated Eddings, 455 U.S. at 102 S.Ct. at 878. er’s death sentence and remanded the matter The same improper cannot be said for the sentencing proceeding” "for a new because aggravating consideration of evidence. Piper validly had not waived his constitution- constitution, fact, permits appellate an right jury sentencing phase. al to a in the reweigh proper evidence and Piper The constitutional error in II occurred impose penajty response death to an sentencing hearing, before the and the nature weighing error in the trial of the evi court’s of the error dence. affected the Mississippi, See Clemons v. entire 494 U.S. 738, 745, contrast, proceeding. 110 S.Ct. In prompting L.Ed.2d the error (1990); Florida, Spaziano v. resentencing limited occurred after (1984) LEd.2d hearing, the sentence and did not taint the (approving a state court’s affir- appellate hearing. Again, only possi- the circuit court’s mance by reweighing death conviction ble improper aggravating consideration of ev- aggravating mitigating after evidence correction, may requiring idence have needed that court’s determination that an aggravating remand, Clemons, any. limited if See circumstance was submitted to improperly atU.S. 110 S.Ct. at 1446. factfinder). particularly This is true error, II, non-weighing potential That states. See and the limited re- Rhines I, (quoting S.D. at 315 mand instructed to we address it in remand, pre- mitigation limited we tutional to introduce new directing a In courts “know the law the circuit discovered after a sume in making it deci- apply [their] and [will] hearing given in which the defendant was ¶2, 27, Page, v. sions.” State opportunity all v. 739, Walton (quoting 754 709 N.W.2d he It evidence desired. has also not deter- Arizona, 639, 653, 110 497 U.S. S.Ct. mined whether a remand for a limited (1990)). 511 111 L.Ed.2d “We resentencing capital in a case that effec- that South Dakota law recognized ] have [ tively newly excludes such discovered miti- proof standard of in imposes specific no gation constitutionally evidence is invalid. ¶ 50, Id. 709 regard mitigation.” to issues, attempt- On both lower courts have II, Rhines 2000 N.W.2d at 758 Berget ed to fill that void. and the State ¶ 19, 9, n. 608 N.W.2d at 312 n. S.D. 39 rely reflecting each on different authorities 9). resentencing consequent- The limited split opinion. in ly preference, our in this in- reflected stance, reweigh aggravating not to Coyle contends Davis v. Berget (Davis mitigating without of- V), (6th Cir.2007), 475 F.3d 761 ourselves, but fending concern to have provides persuasive authority. On an ap- authority efficiently cor- sentencing peal petition of a denial of a for writ of error. rect the limited Because of these corpus, habeas sought challenge Davis to differences, Skipper substantial does not his Ohio death sentence. The Ohio Su- Berget’s argument.10 control preme Court had affirmed Davis’s convic- tions but vacated his death sentence be- Supreme The Court has not de- I, cause, Skipper termined, otherwise, in or as with that a (a capital defendant categorical authority has a consti- three-judge panel) may have rights in original stands stark contrast to another case in available at his or her volving 20, ¶¶ sentencing, remand sentencing. for State v. Bult See 1996 S.D. 544 (Bult IV), 20, 544 N.W.2d 214. N.W.2d at 216-17. What IVBult did not do repeated Bult IV arose out update mitiga- of our remands to was establish a to one's court, remand, the circuit after the court continued to tion evidence on when or direct- impose possibility ly life sentences without the contradicted our remand instructions as parole IV, fact, spite repeat and in of our conclu seeks here. Bult stands for sions that that sentence constituted supremacy authority, cruel of our remand (Bult punishment. unusual See State v. Bult which we reassert here. III), (S.D. 1995); Multiple 529 N.W.2d 197 Bult v. supreme state courts have affirmed (Bult II), (S.D. Leapley capital 325 similar limited remands of sentences. IV, 1993). See, Slaton, 909, In Bult we e.g., parte established that "the Ex 680 So.2d 922-23 (Ala.1996), denied, obligation” 1079, court had an on remand from t. 519 U.S. 117 c er 742, update (1997); Bult III to the relevant evidence nec People 136 L.Ed.2d 680 v. sentence, IV, essary Lewis, to fashion a see Bult 1996 Cal.Rptr.3d 33 Cal.4th (2004), denied, S.D. 544 N.W.2d at which in P.3d cert. However, mitigating cluded evidence. Bult 161 L.Ed.2d 163 (2005); State, clearly distinguishable TVis Crump from the v. 654 So.2d III, (Fla. 1995) curiam). case. In Bult we did not (per instruct limit I, ed permit remand as we did in but petition rehearing hearing response ted a 10. On a full sentence on remand be opinion appeal, Berget cause this Court’s the nature of the error on direct warranted that III, type argument, citing Skipper, of remand. See offered this same Bult 529 N.W.2d at opinion propriety 200. Our here cast doubt on the of this Court's does erode Bult Thus, IV’s conclusion that at a full hear limited remand. we have had two oc- remand, ing on analyze argument. the defendant entitled casions to improper aggravating mitigating factors evant factors” that considered was the crux of Skipper, Eddings, Id. at 763. The sentenc- and Lockett. its sentence. (Davis IV), court, (quoting State v. Davis on remand for “a new sentenc- ing by the Ohio St.3d appellate trial” as instructed N.E.2d (1992)). Moreover, court, only the record of the Court found that considered Skipper only applied evi- sentencing proceeding. trial and first a good prison dence of record between a court refused to consider Davis’s motion to trial, defendant’s arrest and and not to waiver introduce jury withdraw his and to (cit- post-trial prison behavior. Id. at 772 mitigation testimony concerning his new IV, 1195). ing Davis 584 N.E.2d at updated psycho- behavior and post-prison logical Id. at 769. The Ohio profile. The Sixth rejected Circuit Appeals Court of affirmed the court’s re- reasoning. collected The primarily court sentencing, finding that “it is basic law drew comparisons between Davis’s case on that a reversal and remand to the trial resentencing Skipper sentencing— and at proceedings court for further has the ef- prosecutors both introduced evidence or reinstating the in the trial fect cause argument of dangerousness defendants’ quo court in status ante.” Id. at 770 behind bars and both defendants faced (Davis III), (quoting State v. Davis No. “future dangerousness” as the “central” (Ohio CA89-09-123, 166137, *2 1990 WL in aggravating factors their sentences. 29,1990)). Ct.App. appeals Oct. The court 2, Compare Skipper, 3, 476 U.S. at further noted that because the error re- 1670, V, with S.Ct. Davis 475 F.3d at “ quiring at the remand ‘occurred delibera- 771-72. The court determined that the tive state of the proceedings, the only way to distinguish the two cases was after evidence had been submitted to the Skipper sentencing involved and ” court,’ sentencing the not con- need resentencing. Davis’s case involved See sider additional evidence. Id. The Ohio id. at 773. The court found that to be an Supreme slightly Court affirmed on differ- unreasonable basis for denying appli- the grounds, finding ent Skipper, that unlike Skipper cation of to Davis’s case. Id. The the opportunity present Davis had all Davis court also concluded that the Ninth mitigation then-available evidence at his and Eleventh already supported Circuits sentencing first trial application and was therefore not Skipper resentenc- ing.11 denied the “individual consideration of rel- Accordingly, the court found that (1986). Only justified one Ninth Circuit ruling case cited Davis The Ninth Circuit its Court, actually by stating, V Supreme addresses whether new "Like the Idaho evidence, constitutionally speaking, distinguishing must be we see no rational basis for resentencing admitted good after the defendant evidence of a defendant's conduct while given opportunity awaiting was sentencing, all miti- trial and and evidence of gation original sentencing. good evidence at his pending a defendant’s conduct review of J., (Gibbons, See 475 F.3d at 782 Cir. concur- appeal.” death sentence which is vacated on Creech, (internal ring) (noting only one case was so "on 947 F.2d at 881-82 citations Arave, omitted). point"). Supreme logic That case is Creech v. The Idaho Court’s (9th Cir.1991), mitigating F.2d 881-82 on capi- overruled was that if the relevance of a grounds, prison other tal defendant's behavior is to show (1993). probable peniten- 123 L.Ed.2d 188 Creech based its "his future conduct at the Lockett, hence, finding Eddings, Skipper tiary, appropriateness "re- of the quired that a penalty opposed defendant be allowed to offer death as to a life sentence^]” mitigating resentencing” qualitative such evidence at on then there is no difference between Supreme ruling pre-sentence post-sentence prison the Idaho Court’s in Sivak v. con- State, Sivak, mitigation purposes. 112 Idaho 731 P.2d duct for 731 P.2d ” new, resentencing hearing penalty phase.’ full could [Roberts’s] Id. at 1107 weighing (first

permit proper improp- two alterations in original) (quoting erly mitigation testimony. new excluded Chinn, State v. 85 Ohio St.3d Id. at 774-75. (1999)). N.E.2d 1180-81 “In other words, State, contrast, prog- neither Lockett nor cites the Supreme eny required Ohio Court case of State v. Rob reopen trial court to erts, 137 Ohio St.3d 998 N.E.2d 1100 evidence after an evidentiary error-free — (2013), denied, -, cert. U.S. 134 hearing already had place.” taken Id. at (2014). 188 L.Ed.2d 569 In Chinn, 709 N.E.2d at 1180- Roberts, appeal, on direct the Court af 81). Instead, the error in question oc- aggravated firmed Roberts’s convictions of curred after evidentiary aggravated murder and both circum closed; therefore, proceeding had “the tri- therein, stances remanded but for limited al court required to proceed on re- resentencing because the trial judge en point mand from the at which the error gaged in ex communications parte with the Chinn, Id. at 1110 (quoting occurred[.]” prosecutor drafting opin 1181). Otherwise, 709 N.E.2d at the Court ion. Id. at specified 1104. The Court would create an “right unauthorized right remand that Roberts had a to allo- update mitigation. one’s right Such a has cute and that the trial court was to re no clear basis in Lockett or its progeny.” weigh the “personally pre evidence and Id. at 1108. pare entirely penalty opinion.” an new Id. remand, On Roberts filed a motion to in Beyond an inability [¶ 37.] to reconcile evidence, troduce mitigation new including Lockett, Eddings, and Skipper to this al- records, file, prison disability a claim an leged right to update one’s mitigation evi- affidavit from Roberts’s psychologist offer dence, rejected the Court argu- Roberts’s ing preliminary a diagnosis, and a letter ment causing as untenable results. The about Roberts from her son. Id. at 1104- Court reasoned that: 05. That motion was denied. Id. at 1105. Establishing right update mitigation The trial court heard Roberts’s allocution could in arbitrary result distinctions be- and sentenced her to death. similarly tween capital situated defen- appeal, rejected On Court A dants. defendant who had an error- Roberts’s assertion that free mitigation hearing update could not precluding court erred in pre- her from mitigation his matter compel- how —no senting mitigating new evidence on re- ling the new mitigation might that be mand. The distinguished Court Skipper, available to him—if the judge trial com- Lockett, Eddings as inapplicable be- mitted no error mitigation cause those cases “involved a situation after hearing that called for the case to be where capital prohibit- sentencer was ed, remanded. defendant, But another another, in some form or from consid- whose ering mitigation hearing mitigating equally relevant evidence at tri- al.... error, [N]o relevant free of mitigating evidence would have right was ever excluded from consideration dur- update mitigation in the event that a anything, 197-98. If according to the Ida- than peni- defendant’s actual conduct at the Court, Supreme ho tentiary post-sentence, making defendant's behavior in post- this new

jail awaiting sentencing may be a mitigation less reliable sentence evidence more reliable. indicator penitentiary of future conduct in the Id. posthearing sentencing confinement”). error pjace place took of lawful These stat- required that a remahd. utory aggravating circumstances do not dangerousness include future as a consid- Moreover, eration. the circuit court con- Both Davis ahd pro- V Roberts Berget’s sidered future dangerousness as reasoning vide for Shpreme not whethef or among one four other non-statutory aggra- precedent ipdirect authority gives vating circumstances. The original court’s court, that a resentencing, limited must presentence and amended hearing verdicts consider new evidence. Two indicate the court also took into account: factors, however, key point to Roberts be- (1) the violent nature of Berget’s attack on ing persuasive authority. (2) Johnson, that a life sentence would First, the Circuit based Sixth have no deterrent effect on other inmates ¡salient decision in Davis V on the aggrava- (3) similarly situated to Berget, that Ber- n ting circumstance shared both Davis get long had a criminal history of ever- Skipper. core of the analysis “[T]he increasing violence prison, outside of in Skipper reflects the Court's tmderstand- (4) showed a lack of remorse that the of a defendaht to present to Johnson’s family. Berget’s future dan- evidence of good in prison par- behavior gerousness undoubtedly played a role in ticularly prediction relevant of fu- when the court’s penalty analysis, but ag- dangerousness ture figures centrally gravating concern did predominate as prosecutor’s plea impositiqh it did in Davis or Skipper. Since this V, death penalty.” 475 F.3d at Davis “central role” is the basis of the Sixth added). (emphasis “Although there could V, reasoning Circuit’s in Davis conceivably be some question about reliance on that case is questionable. relevance of abstract, such evidence in the the record in this case establishes without Second, [¶ 41.] and most importantly, doubt that newly [the discovered evidence however, negative the consequences of was remand] to the highjy relevant adopting Berget’s position, as noted in single aggravating relied upon by factor Roberts, make Roberts the persuasive au- the state —that dangerousness future instance, thority. For above, as noted should keep Daws on row.” Id. at heath 23A-27A-12(2) under SDCL we are stat- added). (emphasis Therefore, accord- utorily charged with an independent de- court, ing to the Skipper súbstantively was termination of “whether the evidence distinguishable from situation Davis’s ... supports judge’s finding [a] of a stat- “solely on the basis of timing,” qnd it utory aggravating circumstance as enu- applied Skipper require a full resehteric- § merated in 23A-27A-1.” of Because ing. See id. duty, this were we to accept Berget’s ra- contrast, In

[¶40.] the statutory two tionale that Skipper and require Davis V aggravating circumstances under newly consideration of post- discovered which the court sentenced Berget to death did mitigation trial evidence in every capital not relate to his dangeroushess case, future per this Court open would the door to se, but to the nature of the he becoming the initial trier of fact for evi- murder (8) 23A-27A-1(7), committed. See SDCL dence never presented or considered (“[t]he offense against a[n] circuit court. Under ratio- committed employee ... institution,” of a nale, Court, when presented with corrections and “[t]he offense was aby post-trial new upon evidence appeal, committed person in ... ... custody lawful “could be considered a ‘sentencer’ for of Roberts, Supreme See Court found to be the basis for purposes.”

Lockett This, allowing “authority to rea- states the set again, at 1108-09. would N.E.2d upon sonable limits the evidence a defen- economy of our tiered judicial thwart submit, dant can and to control the man- III, system. Piper See 2014 S.D. judicial submitted[,]” including ner in which it is 2, 10, at 343. It would also evidence, in capital cases. See original sentencing longer no make Guzek, Oregon v. 546 U.S. improp- the “main event” but proceeding (2006). 1226, 1232, 163 S.Ct. L.Ed.2d “tryout erly relegate it to a mere on the impose A reasonable limit is one that we Solem, Gregory road.” See v. today arbitrary that avoids the outcomes (S.D.1989) Wain- judicial inefficiency noted in Roberts 72, 90, 97 wright Sykes, v. appellate and reinforces an court’s authori- (1977)). 53 L.Ed.2d ty to instruct a limited remand. Additionally, Roberts ruling Supreme Court’s finding arbitrary discrepancies Court’s is also instructive in Guzek a broader may similarly between manifest situ- Guzek, sense. In the issue relevant simply capital ated defendants because of Eighth this case was whether posb-sentence error in deliberation is granted Fourteenth Amendments Guzek clearly in this case. applicable No sen- right new to introduce his tencing error existed the case of Ber- sentencing hearing— innocence at his co-defendant, get’s Eric Robert. See State namely, that he was not at the Robert, v. 820 N.W.2d 136. scene of the crime. Id. at proceeded Had Robert with case rejected Oregon 1230. The Court tried to argument post- raise similar Supreme broadening Court’s of Lockett to sentencing discovery of evidence he provide Eighth an Amendment mitigating, deemed to be under the ratio- Guzek to newly introduce discovered evi- nale now Berget, Berget advanced dence of his innocence at a could obtain a sentencing hearing second hearing. Id. at 126 S.Ct. at 1230-31. Therefore, while Robert could not. grounded ruling The Court on three circumstances of their offenses and the First, that, conclusions. the Court noted propensities” individual “character and fundamentally, “evidentiary concerns” are each defendant —the fundamental concerns different guilt between and see sentencing, Gregg, 428 U.S. at phases, with the former concern asking (citations omitted) at 2932 S.Ct. —would whether the defendant committed the not result in their distinct sentencing asking crime and the latter how the act treatments; they po- would result from a was committed. Id. at 126 S.Ct. at tential, extraneous court error that oc- Second, 1232. the Court found that “the curred after sentencing. That strikes at parties previously litigated the issue to the heart of holding Lockett’s the which the evidence is relevant —whether penalty death imposed should be “in a the defendant committed the basic crime. manner[,]” more consistent and rational thereby previously The evidence attacks a analysis based an of the fundamental determined matter in a proceeding at Lockett, concerns of sentencing. See 438 which, principle, that matter is not at at U.S. 98 S.Ct. at 2965. typically issue. The discourages law col- very It is that interest in achiev- (citing lateral attacks of this kind.” Id. ing a “more equitable rational and admin- McCurry, Allen v. (1980)).

istration penalty” of the death S.Ct. 66 L.Ed.2d 308 Third, “tryout Gregory, determined that mere on the road.” See Court (citation omitted). restricting de 449 N.W.2d at 833 impact of a rule It is “negative also more than conceivable that ability to introduce new alibi evi fendant’s new, may positive relationships claim with is minimized the fact that Ore dence members, family prisoners, fellow or gives right law the defendant the to gon strangers for the remainder of his life if sentencing jury to the all the evi present permits this Court each assertion of a original innocence from the trial dence of relationship grounds to be for a new sen- 526-27, 126 at regardless.”12 Id. at tencing hearing grounds or 138.012(2)(b) ignoring § Or.Rev.Stat. limited our remand instructions. (2003)). analy summarized its Court by holding, legitimacy sis “The of these Lockett, Accordingly, evidentiary consid management trial and Eddings, clearly are Skipper distin “minimally erations” and the adverse im guishable from the present case. No bind pact the restriction would have” on defen ing authority requires under Eighth ability present dant’s to his case indicated Amendment that a resentencing authority Eighth Amendment was not violated. discovered, newly consider otherwise-ad 527, 126 Id. at S.Ct. at evidence, mitigation missible when the de balancing Our this case and fendant had a full and unrestricted oppor balancing Supreme tunity conducted to mitigation evidence at reject broadening sentencing. a the initial Given negative Court Guzek above, consequences Lockett are similar because both defen- articulated Guzek arguments implicated supports dants’ the same our instructions in Berget I. See Guzek, management interest. seek- 546 U.S. at 126 S.Ct. at 1232. a sentencing hearing by effectively negative consequences new These include the invoking “right update lack of mitiga- finality, one’s the arbitrariness that a tion” is akin to Guzek seeking update treat the inject would sentencing hearing guilt penalty jurisprudence, as a second trial into death and the by invoking “right to reconsideration” of destruction of the appellate ju two-tiered Guzek, guilt sentencing. See system competencies U.S. dicial and the it fos (citations Therefore, Roberts, 126 S.Ct. at 1232 omit- ters. we follow ted). 1108-09, adopt Berget’s If the were to N.E.2d at and decline to follow V, position, 773, Creech, the Court would establish the in- Davis 475 F.3d at 947 F.2d Sivak, centive to turn a resentencing limited into at 731 P.2d at 197-98. full-fledged, second hearing Preventing discrepancies dys these by seeking newly clearly out all discoverable miti- functions is a rational basis for conceivable, gation evidence again long- excluding newly no discovered evi making original er sentencing proceed- dence from the limited remand for resen- the “main ing consigning tencing event” but it to a in this case. Because is words, language analogous 12. This any is to the Ohio In other neither Lockett nor Roberts, Supreme logic Court’s where it progeny required of its the trial court to held: reopen the evidence after an error-free proceeding case ... This involves a evidentiary hearing already had taken purpose remand for the limited of cor- place. recting an error that occurred after (second emphasis 998 N.E.2d at 1108 add- full, op- defendant had had a unlimited ed). portunity present mitigating evidence to the sentencer. persuasive authority to order limited remand violated the unable Eighth and Fourteenth Amendments he has failed to supporting position, his Accordingly, case. the circuit court proving onerous burden of be meet his did not commit legal error and abuse its doubt that this Court’s yond a reasonable in following discretion this Court’s instruc statutory authority and state constitutional tion on resentencing.13 doubt, yond Berget’s thereby negating constitutional claim is also sub 13. reasonable analysis. ject prejudicial or harmless error any claim of constitutional error. Out of all ¶ John, 58, 10, 2011 S.D. 804 N.W.2d See St. remaining aggravating evidence—includ- McEldowney, v. (quoting Novak ing beating the brutal nature of the and suffo- 909, ¶ 162, 7, 912) (" 655 N.W.2d ‘Anev S.D. carrying cation of Ronald Johnson in out the ruling identiary will not be overturned unless attempted escape, Berget’s violent criminal preju and shown to be error is demonstrated history, and the clear existence of the statuto- Smith, error.’"); 83, 39, ¶ dicial S.D. ry aggravating killing circumstances of the an 353; 599 N.W.2d at see also 18 U.S.C. employee of a corrections institution while ("The 3595(c)(2)(C) appeals § court of shall confined, lawfully SDCL 23A- vacate a not reverse or sentence of death on 27A-1(7), (8) of it would have been —none harmless, any account of error which can be called into doubt or otherwise eroded Ber- including any special finding erroneous of an get’s relationship evidence of his with his son factor, aggravating where the Government es family. and his new This evidence could not beyond a tablishes reasonable doubt that the reasonably expunge mitigate or the circum- harmless.”); error was SDCL 23A-44-14 any stances of the murder. "The absence of error, defect, ("Any irregularity, or variance prejudice particularly apparent given is rights which does not affect substantial shall horrific nature Delo, of the crime.” McGehee v. disregarded.”); be Sweet v. 125 F.3d Norris, 1185, (8th Cir.2009) 1144, (8th Cir.1997) 588 F.3d 1158-59 Hitch (citation omitted) Dugger, (applying cock v. 481 U.S. 107 S.Ct. harmless error 1821, 1824-25, error). Skipper, analysis alleged 95 L.Ed.2d to an Lockett Addi- 1672-73) above, (apply 476 U.S. at 106 S.Ct. at tionally, dangerousness as noted future analysis harmless error to a Lockett er was not the central concern of the ror); I), Piper (Piper State v. 2006 S.D. authority. Berget’s It is even unclear how (applying 709 N.W.2d 794-95 relationship family with logically will af- prejudicial analysis capital pro error to a dangerousness. fect his future It is also un- " ceeding). 'A may constitutional violation Berget’s clear relationship how would have error, constitute harmless and thus not re given resulted in a life sentence the circuit reversal, quire if beyond the court can declare court’s awareness of son and the a reasonable doubt that the error was harm testimony of Associate Warden Pontow that less and did not contribute to the verdict ob Berget could serve a life sentence in adminis- Larson, tained.'” State v. 512 N.W.2d segregation trative to "diminish serious (S.D. 1994) Schuster, (quoting State v. dangerousness.” threat of future See Hall v. (S.D.1993)). 570-71 See also Luebbers, (8th Cir.2003) 341 F.3d California, Chapman v. (deeming the mitigating exclusion of 824, 827, 828, (1967) 17 L.Ed.2d 705 capital in a case harmless error where it was standard). (articulating the similar federal cumulative). analysis particularly This harmless error is Moreover, important it to note that where, here, salient "ample as there is evi require "South Dakota law does not relating dence to the circumstances of the weighing aggravating circumstances (Rhines I), murder.” See State v. Rhines factors[,]” against mitigating and that a sen 55, ¶ 101, tencing authority, in the face of all manner of prove State has the burden to harmless evidence, mitigating "need find 60, one stat Eagle, error. State v. Medicine 2013 S.D. 60, utory aggravating beyond factor a reasonable (citing 835 N.W.2d State v. Nelson, 124, ¶ 8, impose penalty.” doubt Page, 1998 S.D. the death 587 N.W.2d 443). ¶2, 2006 S.D. 709 N.W.2d at 758-59 II, 19, ¶¶ proven aggravating The State has that the Rhines 2000 S.D. 39 n. against Berget 9, 314). overwhelming is be- 608 N.W.2d at 312 n. because presence 2. Whether court’s and a defendant’s is re 47.] [¶ circuit resentencing procedure trial,” met statuto- quired every stage “at of his up to ry requirements and constitutional including sentence,” “the of imposition presence concerning Berget’s at Berget contends state his constitutional components sentencing pro- of the rights by were violated his absence when cess and reimposed the court Berget allocution. sentence. argues authority that federal is per also If re- [¶ 48.] the Court’s limited suasive this issue because he believes pass constitutional instructions chapter that SDCL 23A-39 was modeled muster, Berget drgues that the circuit after Rule 43 of the Federal Rules of by having court nevertheless erred Jacquot Criminal Procedure. v. Ro rights him at sen granted Cf. other available zum, ¶ 2010 S.D. 790 N.W.2d tencing generally rights physi to be —his (“This routinely looks to other present in the and to allo- cally courtroom analytical courts’ decisions for assistance resentencing. once more before cute interpreting a South Dakota rule of civil of questions These issues are law and are procedure that is equivalent to a Federal subject to de novo therefore See review. Procedure.”). Rule Civil Sons, Pierre, of City Lien & Inc. v. Pete of ¶38, 5, S.D. (per On point, Berget this last is in- curiam). correct. The federal rule and chap- SDCL 23A-39, containing ter while some similari- legality a. the circuit The of ties, also contain numerous differences of entry court’s of its sentence. significance. example, For SDCL 23A- In this support argument, [¶50.] of 39-3 deals with appearances by corpora- interprets a diverse au- number prosecutions, tions faced with criminal thorities from federal and sources. state subject by not addressed the federal rule. VI, § cites of the Article South The source of SDCL 23A-39 traces its Constitution, whiph provides, Dakota back roots to our earliest criminal code pertinent part, that cHminal prose- “[i]n aÜ still a Territory. while See Dakota Rev. right cutions the accused shall have (1877). §§ Crim. P. Code counsel; in person defend ... to current version as part was enacted of the meet him against witnesses face general revision of our Criminal Code in goes face....” He on to reference SDCL 1978, again with significant differences 23A-39-1, which defines this farther from the federal both in subject rule mat- by mandating defendant shall be “[a] phraseology. ter and in See 1978 S.D. at arraignment, his at the time of Therefore, § Laws ch. Sess. every his trial plea, stage of includ- persuasive authority of federal courts’ in- impaneling jury and the terpretations of Federal Rule 43 language verdict, return of the imposition negligible. sentence, except as provided §§ 23A-39-2 Because For case law interpreting and 23A-39-3.” 23A-39-1, last exceptions applicable, these are not SDCL cites Kost v. Therefore, "ample excluding it did shows ex- not abuse its discretion in evidence” Berget’s relationship evidence, clusion his son newly with discovered and on these addi- authority's resentencing final consider- grounds, Berget’s argu- tional constitutional beyond ation was a harmless error reason- Smith, 83, ¶ 39, ment fails. See doubt, if able it was at all. Because error 599 N.W.2d at 353. error, circuit court committed,no prejudicial 66 (S.D.1984).14 judgment was affirmed In that The circuit court’s

State, 83 N.W.2d 344 petition analysis. harmless error Id. case, brought a second based on this Kost having after been found at 86. corpus habeas first-degree manslaugh- by jury guilty analy a similar Applying imprisonment. to life sentenced ter and sis, presence at resen- Berget’s physical was whether the The sole issue Id. at 84. “useless, have been or the tencing would rights process Kost’s due denied trial court remand given benefit but a shadow” our present at three dis- Kost was

when The circuit court’s resen- instructions. chambers, at- though even his cussions in not, not, tencing depend did and could on present to be each right his torney waived any evidence from outside of new its began 84. This Court time. Id. at Bean, Berget declined to calling Dr. which noting that a criminal defen- by discussion court. do when offered the circuit present be flows from state right dant’s for the circuit court to What remained was authority, as statutory and constitutional in rendering exercise its discretion Amendment to the Unit- well as the Sixth judgment argu on the same evidence and (citations Id. omit- ed States Constitution. initial sen presented ment that was ted). scope process right of that due The tencing hearing. unique Because of the ‘to in “requires present the defendant be I, alleged nature of the error in presence has person his own whenever circuit court needed to reconsider its substantial, relation, reasonably to the findings of fact and conclusions of law opportunity to defend fulness of his [sic] chambers, filing drafting ” amendments charge.’ (quoting Snyder against the Courts, serving them with the Clerk Massachusetts, 97, 105-06, v. 291 54 U.S. copies posture unique on counsel. (1934), 674, 78 L.Ed. 678 S.Ct. begs question: the remand what was grounds by Malloy overruled on other v. gained by having Berget physically to be 84 12 Hogan, 378 U.S. S.Ct. circuit court present to watch the deliber (1964)). Kentucky 653 See also v. L.Ed.2d ate and hand these documents to the Stincer, 107 U.S. Burton, clerk? See States v. United (1987) (holding 96 L.Ed.2d 631 Cir.2008) (“A (7th F.3d criminal right present guaranteed to be is “not present defendant has no to be useless, presence when would be or the judge’s chambers when she writes her sen shadow”). Accordingly, benefit but a tencing memorandum or files it with the Court determined that the constitutional clerk.”). Because our instructions in Ber- statutory right, Sny- conditioned on get jurisdiction I so limited der, required that defendant must be “[a] circuit court remand and had no present presence when his is related to an right to in chambers while the be opportunity against to defend himself reconsidering circuit court deliberated Kost, charge.” criminal at 86. N.W.2d its sentence without reference to the Dr. This equated other failure to be admission, Bean the circuit court commit present, it though may even violate the statute, filing ted no error in new find plain language of the to be harm- ings Berget’s pres less error. Id. at 85-86 State v. and conclusions outside (S.D.1981)). Rosales, ence. Swenson, (quoting

14. Kost does not reference Rule State v. also Federal Rather, law, previous it reviews our case 99 N.W. goes which back to and which inter- (1904)). Kost, preted procedure. criminal Territorial any of be left without substantive spite grounds In the distinction 54.] [¶ standard, and the federal tween our rules asserting prejudiced by physi- he was his (fed one court Berget argues that at least cal absence when the circuit court deliber- eral) process found due categorically has ated, filed the documents with objections to the absence of a defendant at courts, copies the clerk of and mailed v. Ar resentencing, citing United States Accordingly, any counsel. error regarding (2d Cir.2003). rous, F.3d Ar Berget’s physical absence was harmless rous, however, engaged very in the same beyond a reasonable doubt and did not analysis harmless error articulated above contribute to the verdict obtained. See involuntary absence to find defendant’s Larson, 512 N.W.2d at 735. explaining harmless. Id. at 361-62. In its further, holding the Second Circuit b. claim for addi-

of that “defendant’s Appeals pres stated tional allocution. in ence would have made no difference sentencing. The decision whether second Similarly, Berget con to strike the restitution order from tends that state and federal authority sup allow Arrous to withdraw his judgment or port right his to alloeute before resentenc- solely guilty plea was one that rested with ing, which was denied the circuit court’s court the discretion district refusal to conduct a formal resentencing from depend any input did not on defen hearing. contention, To advance this he Likewise, drafting dant.” Id. at 362.15 relies on SDCL 23A-27-1 and this Court’s Berget’s resentencing, the circuit court identical, Garber, ruling in State v. required to consider the preexisting Berget evidence that and the N.W.2d 320. The relevant language of presented sentencing, State at the initial SDCL 23A-27-1 is as follows: including Berget’s prior allocution and ar sentence, imposing Before may guments counsel. Again, of circuit order a hearing mitigation aggra- or resentencing upon court’s based our limit punishment.... vation of At such hear- not, not, depend ed remand did and could ing, the court shall allow the defense new evidence from Berget outside an opportunity speak counsel on be- Bean, calling of Dr. which declined half of the defendant and shall address to do. What remained was for the circuit personally the defendant him if ask rendering court to exercise its discretion in he wishes to make a statement in his judgment on the same evidence and behalf and to present any own informa- argument presented that was at the initial sentencing hearing. Berget punishment. is therefore tion in case, eluding cites another Second Circuit its citation to Arrous and its harmless DeMott, (2d Arrous, analysis. United States v. 513 F.3d 55 Cir. error 320 F.3d at 2008) curiam), 361) ("The (per proposition subject for the that it denial of this is (and harmless) review, prejudicial per se error harmless but such error is harmless impose 'unimportant insignifi for a court to a sentence on a defen where it is case, presence. dant when not in the defendant’s cant’ in the context such as where Berget quotes language ap presence in DeMott that ... 'defendant’s would not have af ”). support pears a new this claim: "Since fected outcome.' The DeMott court imposed presence simply presence sentence was out of the found that defendant's at re- defendant, lawyer, prosecutor, and the in that case would have affected outcome, id., confidently thereby distinguishing we cannot decide there has been see it However, and, above, per analysis no harm.” See id. at 58. from Arrous Ber analysis, get’s resentencing. leaves out much of the court’s in-

68 face, language describes the mand for resentencing Id. On in light of United Booker, right arising as out of a sentenc- States v. 543 allocution U.S. 125 S.Ct. (2005), 160 L.Ed.2d ing hearing ordered the court. As repeal and its above, mandatory nature of the noted the circuit court did not order Federal Sentencing II, Guidelines. See sentencing hearing a new because it Blake cor- Fed.Appx. at 588. The trial court then rectly found no basis for it on remand. Blake, resentenced notify but did not him Berget’s right infringed to allocute was not of his ability speak in his defense. original sentencing hearing, at his only the appeal remand, On from the the Seventh sentencing hearing on the record. The Circuit entered a unpub four-sentence statute, therefore, plain language of the opinion lished that remanded Blake’s ease not support Berget’s does claim. More- for failure to allow allocution. See United over, only the relevance of Garber to this (Blake I), States v. Blake Fed.Appx. analysis is that it referenced in passing (7th Cir.2007). Both give cases little provides “right that SDCL 23A-27-1 support for Berget’s argument. Blake I allocution” and nothing more. See 2004 explicitly only stated the court’s uncertain ¶2, 18, S.D. 674 N.W.2d at 325. Without ty whether the denial of right Blake’s further interpretation, SDCL 23A-27-1 allocution in particular circumstance explicitly govern type does not of lim- was harmless error. Id. at 2007 WL here, ited resentencing at issue nor does it 1875958 at *1. Blake II merely referenced describe the nature of the allocution right. II, back to Blake I. See Blake 501 Fed. South Dakota case law appears to be silent Appx. at 588. in both respects. contrast, In Circuit, Ninth contends may this Court in its published opinion in United States v. draw authority from federal case law that Silva, (9th Cir.2007), 472 F.3d 683 directly purportedly establishes a right defendant’s addressed a right defendant’s to allocute to allocute at resentencing generally. Blake, limited remand. As with Federal provides case law that unlike the Ninth Circuit Silva had issued a limited right to present, be “the right of allocution remand for resentencing Silva in the wake Rather, is not a constitutional one. of Booker. Id. at 685. This limited re- right of allocution derives from the Feder- “require[d] mand the district court al Rules of Criminal Procedure.” United subjective make a determination, based Patterson, States v. 128 F.3d upon a review of the record and the sub- (8th Cir.1997) curiam) (citations (per omit- counsel, missions of as to whether ted). It has also been described as a sentence would have been materially dif- common law right that relates to a defen- ferent advisory under Guidelines.” Id. dant’s right constitutional present to be The court noted that because the court sentencing. States, See Green v. United properly record, “evaluated the considered counsel, the views of and concluded that he (1961). L.Ed.2d 670 would have chosen the same sentence un- relies on the unpub discretionary der a regime[,]” Silva had opinion lished of United States v. Blake “no ... right even to be during (Blake II), (7th 501 Fed.Appx. such a limited inquiry, and so necessary Cir.2013), for proposition that allocu implication ... [authority] sup- does not tion is right also a provided at limited port to allocute therein.” Id. at resentencing. Leading case, up to the 686. While the court acknowledged the Seventh Circuit had entered a limited re rulemaking federal authority and case law establishing general, priately allocution as a neces- considered the existing rec- ord, sary defepdant’s allocution, component including prior criminal and the process rights, see id. at it due views of counsel in making its decision. noted, further decided have that The circuit court required grant “[W]e was not always necessary allocution additional allocution because already case of error.” at 687. The given a chance to submit all rele- court illustrated the of the allocution vant evidence and to allocute at his sen- limits right by harkening to opinion tencing hearing. Silva provides its that no earlier Gun, States v. His process right United Knows F.3d due to allocute exists within (9th Cir.2006). Ip Gun, Knows His the limited remand framework we instruct- the Ninth affirmed a in Berget given Circuit ed I the similarities of our sentence op court, ip light This, where the trial coupled instructions. with remand SDCL Booker, failed to permit allocution. Id. at 23A-27-l’s plain language sup- does not Silva, 920. Recounted later in the Ninth port Berget’s interpretation. Berget of- key Circuit noted that persuasive factor fers no authority on which to ability original Knows His Gun’s at his base his allocution right. present to all relevant evidence Further, even if there Silva, and to allocute. See 472 F.3d at 687 right instance, were a of allocution in this Gun, (citing Knows His 438 F.3d at 919- any failure of the circuit court provide to (“We 20) ... affirmed because the defen- Berget right this was harmless error. See chapee already dant had present had Robertson, United States v. 537 F.3d non-Guidelines original evidence áf (8th Cir.2008) 863 & n. 3 (applying harm sentencing and needed ho right to further error). analysis less error to an allocution allocute.”). The applied court theii Recognizing the similar right nature of the Silva, rationale to and held that because to be right and the to allocute the limited “merely requires remand re- (albeit the allocution right involves a less

view of the record and the of coun- views er, concern), Silva, common law see sel, process due require does not allocu- F.3d at a similar harmless error tion.” Id. at 687-88. framework may applied. be This Court’s clear be instruction on remand narrowed the cir parallels Berget’s tween case and Silva indicate cuit court’s consideration of new mitigat that the due process ing instruction, afforded to By evidence. Berget’s limited remand implicate Berget’s ability re-allocute, did after electing not to right to allocution. Like the Ninth Cir introduce Dr. testimony, Bean’s became op Silva, cuit’s directive in instrpeted we immaterial. With the removal of Dr. remand that the circuit court report consideration, was to con Bean’s from the evi duct its existing review “on upon record.” dence which could allocute I, See 826 was the same upon which he allo- Silva, N.W.2d at 37. we effective Akin cuted at the initial sentencing hearing. ly tasked the lower making with “a Nothing changed. And because the court resen- subjective determination, based upon tencing court indicated it re would consider view of the record allocution, submissions prior of his Berget could not have counsel, as to whether [Berget’s] sentence influenced the circuit resentencing court’s would have been different” absent the [ ] decision when all the court had to consider Silva, improper consideration. See Kost, was the preexisting record. Cf. (“[Defendant’s] F.3d at 685. The appro- N.W.2d at 86 circuit then absence from not error because relates that for the court to change discussions was these necessary findings to defend from Robert’s case to presence was not above, finality As noted case would be to “call the against charges.”)- ... question.” decision into language [.Robert] 2BA-37-1 does not SDCL of allocution at this limited provide Berget admits that SDCL 15- did, resentencing, and even if it the result- statutorily precluded 12-24 his affidavit for Berget’s resentencing error at would change judge because he submitted ar- beyond harmless a reasonable doubt be gument admitting circuit court— not, not, it could con- because and would guilt receiving prior to fil- sentence — to the sentence rendered. See tribute ing the affidavit. He bases the court’s Larson, 512 N.W.2d at 735. duty to recuse on a superseding, general trial, right citing constitutional to a fair Therefore, Berget provides no [¶ 62.] ¶ Nelson, 124, 14, 1998 S.D. 587 N.W.2d at persuasive authority support right to a to (citations omitted) (outlining scope proceed- allocution in the limited remand trial), right Page, of a to a fair and ings by Berget directed I. If the court ¶2, 14, (quoting S.D. 709 N.W.2d at 749 allocution, providing erred in not that ¶ Hoadley, State v. 2002 S.D. error was Accordingly, harmless. his 257) (“[A] N.W.2d ‘oppor- defendant’s claim fails. tunity to disqualify judge statutory, a 3. Whether the circuit court [¶ 63.] ... right, and not a constitutional except recusing prior erred in not itself to may implicit as it be in a to a fair resentencing. ”). trial.’ Berget asserts the circuit court argument This fails. Ber- by denying request erred his that get argued had on direct appeal that simi remand, court recuse itself on limited cit- larities between the verdicts from his and ing the court’s actual implied judicial and pre-sentencing hearing Robert’s indicate a argument

bias. This Berget’s stems from violation of Berget’s right to an individual allegation recycled that the court simply ized determination under Lock findings of fact and of law conclusions ¶¶ I, 53-54, ett. 2013 S.D. from in those the case of Berget’s co- N.W.2d at 18-19. rejected This Court defendant, Eric Robert. In his initial argument. that We did so based on our brief, Berget allegation characterized this finding that “Berget ‘presented has not indicating as the court gave his case little any evidence to constitute a legitimate ba consideration, which in turn evidenced sis on which to call question into the circuit bias. Berget argument now modifies this judge’s impartiality.... Absent such a in reply argument brief and in oral by showing judgment impossi that a fair was asserting that the court was “trying to be ble, it was not error for judge the circuit fair in a situation where no mortal could sentence [Berget] after his co- ” ¶ be.” Berget explains further defendant [Robert].’ N.W.2d ¶ inherently was more than (quoting at 18 Page, 2006 S.D. —rather intentionally 751).16 because it had to finding N.W.2d This echoed our —biased case, ¶¶ prejudge Berget’s having already prior holdings Page, 2006 S.D. 15- 750-51, sentenced his co-defendant similar find- Hoadley, 709 N.W.2d at ¶¶ ings 32-34, of fact and conclusions of law. Berget Rather, 16. explained similarity joint we approaching that the murder co-defendants. Here, presentence analysis applies verdicts’ recitation of facts Id. also with logical proper Berget's was equal argument result of a court effect to on the hearing supported, beyond fact the circuit court reasonable that the mere doubt, a co-defendant sentenced previously finding the circuit court’s of two bias, judicial or death does not show statutory aggravating circumstances evi- antago favoritism or “deep-seated in Ronald murder. dent Johnson’s See id. nism,” the presumption that overrides ¶¶ 16-17, 11; 826 N.W.2d at see also impar that the court was against recusal 23A-27A-K7) (“The SDCL offense was distinguish Berget’s attempt tial. against committed a law enforcement offi- Page Hoadley from fails. To case cer, institution, of a employee corrections Berget’s argument prohibit would accept firefighter engaged per- or while in the co-defendants the same trying person’s formance such official as a matter of law. judge all cases 23A-27A-1(8) (“The duties[.]”); offense legitimate offers no indication in, by person was committed or who has modify analy prior the court’s bias to our from, escaped custody the lawful of a law argument sis. This therefore fails. place enforcement officer or of lawful con- finement[.]”). then, Since has 4. Whether sentence imposed under the influence of brought forth no argument evidence or passion, prejudice, or other ar- question those holdings. inquiry Further bitrary factor. unnecessary. therefore The evidence the circuit supports finding court’s of the analysis Our of the record indi- [¶ 68.] finding Berget’s cates no basis for sen- statutory two aggravating circumstances. under the influence of imposed tence was any arbitrary or other

passion, prejudice, Berget’s 6. Whether [¶ 71.] death 23A-27A-12(1). factor. See SDCL dispropor- sentence is excessive or presentence circuit court’s amended hear- penalty imposed tionate findings verdict and amended of fact cases, considering similar both the proper and conclusions of law reflect the crime and the defendant. analysis on scope of directed this Court above, limited remand. As indicated Ber- Finally, strictly because [¶72.] “[w]e bias, get’s assertion of circuit court actual purposely and limited our remand instruc- inherent, was shown to have no merit [.Berget specific tions in to correct the I] appeal on direct and remains without mer- occurred,” III, error that Piper had see I, 1, 54, it. 2013 S.D. 826 N.W.2d ¶2, 12, at N.W.2d improper at 18-19. No considerations in- Berget acknowledges because without ob- dicating prejudice, or passion, arbitrari- jection that all proportionality concerns ap- ness were otherwise evident direct raised in I were addressed and ¶ 13, peal. That affirmed opinion, prior propor- our our continues to be the case here. stands, I, tionality analysis see ¶¶ sup- S.D. 5. Whether the evidence 11-14. [¶ 69.] ports finding the circuit court’s provide The record continues to no basis statutory aggravating circum- Berget’s for this Court to find death sen- stances as enumerated in SDCL disproportionate. tence to be excessive or 23A-27A-1. instruction, In the absence of the Court’s aggravating Berget’s circumstances of in Berget We noted I that evi- dence Berget’s sentencing remaining aggravating introduced at crime and the fac- findings

court’s amended of fact and conclu- sions of law. outweigh any nevertheless rea- tors would court was ordered to “conduct implications Berget’s sonable new rela- a sentencing without” the error in the matter how tionship positive therefore, previous sentencing, and it had —no —with family. son’s son and his We conclude appropriate reevaluate all the factors prior proportionality analysis re- evidence, that our absent the erroneously con- Berget’s mains valid and death sentence is sidered matter. Federal constitutional disproportionate not excessive or in rela- law jurisprudence and our own require pen- tion to similar cases where the death the sentencing any court consider alty imposed. new mitigation evidence.

Conclusion Court, pursuant This to the I. Constitution, South possesses Dakota Death is the penalty. ultimate “ authority clear to direct jurisdictional It cannot be undone. It is an thus ‘indis scope of a limited remand to the circuit pensable part process of inflicting ” court, and our remand in Berget directions penalty of death’ that the sentencing infringe upon I did not process “permit the consideration of the rights. constitutional The limited remand ‘character and record of the individual of implicate also did not or otherwise violate fender and the partic circumstances of the ” Berget’s rights to be and to allocu- Ohio, ular Lockett v. offense[.]’ 438 U.S. tion. Finally, previously reject- this Court 586, 601, 98 S.Ct. 57 L.Ed.2d ed, I, Berget Berget’s judicial argu- bias (1978) (quoting Woodson v. North Car ment, provided additional, and he has no olina, argument substantive regard on 2991, (1976)); 49 L.Ed.2d 944 Skipper v. appeal. this We therefore affirm his death Carolina, South 476 U.S. sentence. 1669, 1670-71, (1986). Yet, 90 L.Ed.2d 1 decision, today’s after courts will be re SEVERSON, ZINTER [¶ 74.] and quired ignore to any current mitigation Justices, MILLER, Justice, Retired evidence in deciding life or death if that concur. court is resentencing an offender because KONENKAMP, Justice, [¶ 75.] of an error in previous sentencing pro dissents. cess. This limitation “creates the risk that penalty death imposed will be spite in MILLER, Justice, [¶ 76.] Retired of factors may which call for a less severe WILBUR, sitting Justice, disqualified. penalty[,]” a “unacceptable risk and incom KONENKAMP, Justice (dissenting on patible with the Eighth commands of the 1). Issue and Fourteenth Amendments.” See Lock a ett, [¶ 77.] When death 605, sentence is re- 438 U.S. at 98 S.Ct. at 2965. Our versed and remanded for resentencing, ignores the fundamental tenets of and the sentencing court required is thus the Eighth Amendment holding, as a to determine anew impose law, whether to a matter of that a defendant sentenced death, sentence of life or there is no ra- to death has no right present to newly tional deny basis to discovered, admissible, defendant otherwise mitigat opportunity to present for the court’s de- ing resentenced, evidence when because any liberation newly available mitigation that defendant had an opportunity pres to evidence. It makes no difference here ent original evidence at the sen whether our remand was limited. The tencing hearing.

73 sen mitígate fencing, any A one’s must consider new [¶79.] merely case capital tence in a is not developed evidence that defendant has guar a constitutional statutory right, See, but initial sentencing hearing. since the 608, (6th 761, antee. Id. at S.Ct. Coyle, at v. e.g., Davis 475 F.3d 771 98 Lockett, Contrary to the Court’s Moore, Cir.2007); claim, Robinson 300 v. F.3d Skipper clearly are dis Eddings, and (11th Cir.2002); 1320, 1345-48 Smith v. tinguishable; nor is case akin (9th Stewart, 1004, 189 F.3d 1008-14 Cir. Guzek, Roberts, 1108 or 998 N.E.2d at 1999); Spaziano v. 36 Singletary, F.3d 517, case 546 U.S. 126 S.Ct. 1226.17 This (11th 1028, Cir.1994); 1032-35 Alderman in or directly implicates precept (11th Zant, that F.3d v. 22 1556-57 Cir. mattpr grave der to decide so as the “a 1994); Arave, v. Creech 947 F.2d 881 life determination of a hüman (9th Cir.1991), grounds whether rev’d on other or scared,” Gregg, should be taken see Creech, Arave v. 113 U.S. S.Ct. U.S. at at 2932 (1993); Sivak, 123 L.Ed.2d 188 S.Ct. Furman, 2726), 408 U.S. P.2d at 197-98.18 Eighth “the Fourteenth Amendments sentencer,

require that the in all II. but case, capital rarest pre kind of not be Our precedent own also dictates mitigating cluded from as a considering, it error not to consider factor, any aspect a defendant’s char available, admissible, newly otherwise miti- any acter or record and Of circum IV, gation In evidence. Butt this Court stances of the that the offense defendant that a sentencing made clear court has the proffers as a basis for a less sentence “acquaint duty thoroughly itself “with Lockett, than death.” at See history the character and the man be- ” 604, 98 S.Ct. at 2964-65. it,’ fore failure to do so denies a meaningful sentencing “a Other held defendant hear- likewise courts have with holding accordance our statutes and U.S. Skipper, general principals process.” 106 S.Ct. at that a defendant due ¶¶ 8, should be allowed available S.D. 216-17 that, Pack, mitigating requires (quoting resen- v. evidence State 516 N.W.2d claim, discovered, admissible, Despite mitigation 17. this Court’s is not otherwise Guzek supra "instructive in a broader See duty. fulfills that sense.” evidence Because Guzek Majority Opinion that a ruled Guzek specifically involved the difference between evi defendant is not new entitled guilt sentencing phases the and and in no during sentencing dence of his a innocence way addressed what is admissible evidence hearing guilt sentencing because and the resentenced, when a defendant Guzek different, phases guilt are the issue of had bears no instructive value here. already litigated, management and been trial evidentiary and control. considerations "nega- the 18. The Court’s concern here about 526-27, Here, U.S. at 126 S.Ct. at 1232-33. consequences” newly allowing tive of avail- however, Berget's to introduce new attempt mitigation resentencing able evidence at was mitigation senterlcing way evidence at in no Supreme adequately answered the Idaho implicates phase guilt in does not and say, a Court in Sivak: "Needless to sentenc- (his already litigated volve an issue sentence ing judge post- will not have to consider such Moreover, vacated). (here compa is no mitigation will sentence be sub- as management rable concern for trial and evi- judge] mitted in this case if conducts [the contrary, dentiary consideration. Ori the be sentencing proper procedure in the first defendant, resentencing fore court place.” at 198 Id. n. 3. history apd must consider the character of Considering newly the defendant before it. (S.D.1994)). “judicial efficiency” avoiding and “arbi- We reversed Butt’s sen- Rather, sentencing because the we specifically trary tence outcomes.” focused on miti- consider Butt’s current duty thoroughly court failed to court’s sentencing evidence, the fact that Butt despite gation acquaint itself with the current character original sentencing hear- an error-free history had and of the defendant before it. ¶id. 14. years earlier. See ing ten been sen- In Butt had III.

[If82.] possibility without tenced to life per- are “Sentencing decisions [¶ 84.] affirmed originally a sentence and parole, haps responsibility for most difficult (Bult I), v. Bult later reversed. State judges, encompassing trial circumstances (S.D.1984); Leapley Bult v. N.W.2d 731 State v. Bon- both obvious and elusive.” (Bult (S.D.1993). II), ner, 30, ¶11, 1998 S.D. resentencing hearing, After Butt’s first 578. The task becomes even more difficult during which the court held a full eviden- declare, law, when we as matter of tiary hearing, sentencing again court previous portions trial courts must cull out possibili- Butt life without the sentenced resentencing, of their deliberations on but III, ty parole. Bult 529 N.W.2d at 199. cannot consider current time, appeal On for the third we reversed may question bear on the of life or death. again the sentence and “remand[ed] resentencing requires Because courts to resentencing, with instructions that reweigh reevaluate and the factors that impose appropri- shall an decision, they went into their initial should years.” ate term of Id. at 200. We did also new consider evidence that specifically not instruct the court to con- defendant developed has since the initial Yet, sentencing hearing. duct a full sentencing hearing. Doing otherwise in- when, remand, on court did fringes Eighth Amendment protections a new evidentiary hearing hold and violates own jurispru- our established years, appealed sentenced Butt to 300 Butt dence. asserting 300-year that his sentence con- Berget’s sentence should be re- stituted cruel punishment and unusual sentencing hearing. manded for a new that he was a meaningful denied sentenc- This result is the one consistent with ¶¶ IV, Bult hearing. precedent our the reliabili- “ensure[s] 544 N.W.2d at 216. ty, standards, Eighth under Amendment appeal, On we held that a sen- appro- the determination that ‘death is the tencing “obligation,” court had an on re- ” priate punishment specific in a case.’ See mand for resentencing, update itself on Lockett, at U.S. what actions the defendant had taken be- Woodson, (quoting U.S. tween the reversal of the court’s resen- 2991). S.Ct. at tence and the rehearing court’s second pronounce a new sentence. We error,” rely

did not on the “nature of the

or language from III “permitted Bult

a full hearing on remand[.]” supra Majority

See Opinion n. 9. We also

did express concern maintaining

Case Details

Case Name: State v. Berget

Court Name: South Dakota Supreme Court

Date Published: Aug 13, 2014

Citation: 853 N.W.2d 45

Docket Number: 26764

Court Abbreviation: S.D.