Lead Opinion
[¶ 1.] Rodney Berget pleaded guilty to the first-degree murder of Ronald Johnson. Berget waived his right to a jury determination of the appropriate sentence. After a pre-sentence hearing, the circuit court sentenced Berget to death. He appeals the imposition of the death penalty. Pursuant to statute, this Court consolidates those issues raised by Berget with the statutory determinations required by SDCL 23A-27A-12. See SDCL 23A-27A-10.
FACTS
[¶ 2.] Berget was convicted of attempted first-degree murder in Lawrence Coun
[¶ 3.] Ronald Johnson worked as a correctional officer at the South Dakota State Penitentiary for over 23 years. On the morning of April 12, 2011, Johnson was working in the Pheasantland Industries building located within the walls of the penitentiary.
[¶4.] At the change of plea hearing, Berget provided the following factual basis:
About August of last year, I came up with a way to try to get out of the penitentiary, but I needed to get a guard’s uniform. So on the 11th of April, I went over to the shop and was going to try to get a uniform, but there was too many people around. So on the 12th of April, I went over to the laundry where I had a pipe and grabbed this pipe and went down to the shop.
When I got down to the shop, I waited around the corner until Officer Johnson came out of the office. And when I seen him come out of the office, I waited until he got in the back of the shop. I came as fast as I could without making any noise, and I started hitting him in the head with my pipe until he went down and he wasn’t moving any longer.
Later, when specifically asked about his intent in hitting Johnson with the pipe, Berget replied: “To end his life.” The attack fractured Johnson’s skull in at least three places. Defense-type injuries were present on Johnson’s hands and arms.
[¶ 5.] After Berget beat Johnson with the pipe, he and Robert wrapped his head in plastic wrap. Robert then donned Johnson’s uniform and Berget climbed into a box placed on a cart. Robert pushed the cart out of the Pheasantland Industries building toward the west gate of the penitentiary. At the gate, correctional officer Jodi Hall noticed that Robert did not swipe an identification badge. She confronted Robert regarding the whereabouts of his badge. When Robert’s explanation did not satisfy her, she asked him to identify himself. He responded that he was “Freeburg.” Still not satisfied, she contacted Corporal Matt Freeburg, a correctional officer also on duty at the gate. Freeburg instructed Hall to call the officer in charge. Presumably realizing that their plot had been discovered, Berget jumped from the box, and he and Robert began assaulting Freeburg. When Hall observed Berget and Robert assaulting Freeburg, she called a “Code Red — Code Three.” Quickly surrounded by responding correctional officers, Berget and Robert surrendered.
[¶ 6.] Recognizing that Robert was wearing a correctional officer’s uniform, penitentiary staff searched the premises. They found Johnson in the Pheasantland
[¶7.] Berget was indicted on charges of first-degree murder, felony murder, and simple assault on April 26, 2011. On November 17, 2011, against advice of counsel, Berget entered a plea of guilty to the first-degree murder charge. After carefully canvassing Berget and his attorney, the circuit court found that the plea was entered voluntarily, intelligently, and knowingly. Based on the submission to the circuit court of a psychiatric evaluation, as well as counsel’s opinion as to Berget’s competency, the circuit court determined Berget competent to proceed.
[¶ 8.] The circuit court then advised Berget of his right to have a jury empaneled in order to determine his sentence. Berget waived this right, electing to proceed with the court’s determination of sentence. Even after being advised and reminded that the court had previously sentenced Eric Robert to death, Berget chose to proceed with the same judge determining the sentence.
[¶ 9.] Pursuant to SDCL 28A-27A-2 and 28A-27A-6, a pre-sentence hearing was conducted on January 30, 2012 through February 2, 2012. After all evidence had been received, the court issued its ruling on February 6, 2012. The circuit court found the existence of two of the statutory aggravating circumstances enumerated in SDCL 23A-27A-1, recited its consideration of the mitigating evidence and non-statutory aggravating factors presented at the pre-sentence hearing, and sentenced Berget to death. Berget timely filed a notice of appeal.
[¶ 10.] Berget raises several issues on appeal. In addition, this Court is statutorily required to make certain determinations each time a sentence of death is imposed. See SDCL 23A-27A-12. We will first make the determinations required by SDCL 23A-27A-12, and then turn our attention to those issues raised by Berget.
ANALYSIS AND DECISION
[¶ 11.] When a sentence of death is imposed, SDCL 23A-27A-12 requires that this Court make three determinations. This section provides:
With regard to the sentence, the Supreme Court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in § 23A-27A-1; and
(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases,*11 considering both the crime and the defendant.
Id.
[¶ 12.] Issue 1: Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.
[¶ 13.] The circuit court assured that it would provide, in writing, all factors weighing into its consideration of the sentence. The court drafted a pre-sentence verdict fulfilling that assurance. A review of the pre-sentence verdict reveals that the circuit court, in forming its sentence, properly considered both the offense and the characteristics of Berget. Importantly, when discussing non-statutory aggravating factors, the court focused its attention on two issues: the nature of the offense and Berget’s history. These are appropriate considerations in determining whether to impose the death penalty. SDCL 23A-27A-2. The record does not reflect that the sentence of death was imposed under passion, prejudice, or any other arbitrary factors.
[¶ 14.] Issue 2: Whether the evidence supports the judge’s finding of aggravating circumstances as enumerated in SDCL 23A-27A-1.
[¶ 15.] The circuit court found the existence of the aggravating circumstances from SDCL 23A-27A-K7) and (8). The State argues that the evidence supports a finding of additional statutory aggravating circumstances. However, our task in this statutorily-mandated sentence review is to determine whether the evidence supports the judge’s finding of a statutory aggravating circumstance. See SDCL 23A-27A-12. Therefore, we limit our review to those aggravating circumstances found by the circuit court.
[¶ 16.] Aggravating circumstance seven (SDCL 23A-27A-1(7)) requires a finding that: “The offense was committed against a law enforcement officer, employee of a corrections institution, or firefighter while engaged in the performance of such person’s official duties[.]” At the pre-sentence hearing, Douglas Weber, Chief Warden for the State of South Dakota, testified that Ronald Johnson was an employee of the South Dakota State Penitentiary and was on duty as a correctional officer the morning of April 12, 2011. The evidence supports the judge’s finding of the aggravating circumstance contained in SDCL 23A-27A-12(7). Berget does not dispute this.
[¶ 17.] Aggravating circumstance eight (SDCL 23A-27A-1(8)) requires a finding that: “The offense was committed by a person in, or who has escaped from, the lawful custody of a law enforcement officer or place of lawful confinement[.]” Warden Weber also testified, and it is not disputed, that Berget was lawfully confined to the penitentiary on April 12, 2011. The evidence supports the finding of this statutory aggravating circumstance beyond a reasonable doubt as well.
[¶ 18.] Issue 3: Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
[¶ 19.] The final mandated inquiry— the proportionality of Berget’s sentence— was also included by Berget as an issue on direct appeal, but will be addressed here. He argues that the sentence of death is both externally and internally disproportionate to his crime.
This Court’s previous decisions have acknowledged that our analysis of similar cases under SDCL 23A-27A-12(3) compares cases involving a capital sentencing proceeding, whether life imprisonment or a death sentence was imposed. “Because the aim of proportionality review is to ascertain what other capital sentencing authorities have done with similar capital murder offenses, the only cases that could be deemed similar are those in which imposition of the death penalty was properly before the sentencing authority for determination.”
State v. Piper,
[¶21.] For purposes of comparative proportionality review, “a death sentence is comparatively excessive if other defendants with similar characteristics generally receive sentences other than death for committing factually similar offenses in the same jurisdiction.” Rhines,
[¶ 22.] Berget argues that because the circuit court found only two statutory aggravating circumstances, his death penalty is disproportionate to those cases in which several aggravators were established. He points specifically to Rhines, where three aggravators were found, and Piper, where there were five. As pointed out by the State, in each of the cases included in the proportionality “universe” wherein this Court has affirmed the death sentence, multiple aggravators were present. Recently, this includes Eric Robert, where the circuit court found the presence of the same two aggravators found here, and this Court determined that the sentence was not disproportionate or excessive. Robert,
[¶ 23.] Berget also argues that, unlike other cases in the “universe,” he showed genuine remorse. His contention that he showed remorse may not stand up to careful reading of his allegedly remorseful statement.
[¶ 24.] Berget compares his case to State v. Adams. Therein, the jury found the existence of aggravated battery to be an aggravating circumstance but did not impose the death penalty. Rhines,
[¶ 25.] Berget argues that the facts of Adams, Swallow, Waff, Hoadley, and Wright were all more egregious than the present facts. See id. ¶¶ 188, 200, 204 (discussing Adams, Swallow, and Waff); Robert,
[¶ 26.] Berget also asserts that his sentence is internally disproportionate; i.e., disproportionate to the sentence received by his co-defendant, Robert. At the change of plea hearing, Berget acknowledged his role in planning the escape attempt, physically striking Johnson with the pipe, and intending for his blows to kill Johnson. (Robert also acknowledged responsibility for killing Johnson.) Further, Berget and Robert had both been convicted of prior violent crimes, resulting in extensive prison sentences.
[¶ 27.] Berget does not challenge the similarity between the facts of the offense for which he and Robert were sentenced to death, but contrasts his background and characteristics with those presented in Robert’s case. Berget presented mitigating evidence focusing on the tragedy of his childhood. The sentencing court was presented with no such mitigating evidence in sentencing Robert. Berget claims that this disparity between the individuals, himself and Robert, renders his death sentence disproportionate to Robert’s.
[¶ 28.] Berget compares this matter to the differences between the sentences received in Hoadley and Piper. In Piper, this Court considered whether Piper’s death sentence was disproportionate to the sentence of life without parole received by co-defendant Hoadley. Id. ¶¶ 69-96. In comparing the sentences received by Hoadley and Piper, Berget focuses on the individuals. Berget points out that Hoad-ley had a miserable childhood, similar to his own. See id. ¶ 93. He further points out that Piper was raised in a loving family, as was Robert. See id.
[¶ 29.] In addressing the internal proportionality of sentences between co-defendants Piper and Hoadley, this Court considered the relative backgrounds of the defendants. Id. This Court also focused on their relative degree of culpability.
*14 If Hoadley had been absent that fateful day, there is nothing in the record to indicate that the torture/murder of Poage would not have taken place anyway. Piper and Page jointly planned and initiated it. On the other hand, if Piper had not been present that day, there is no evidence to indicate that Hoadley would have planned and executed the murder.
Id. ¶ 95. Berget testified to planning the attack and being the physical aggressor. The pipe used as a weapon contained Johnson’s blood and Berget’s DNA. Robert also confessed to the crime, and to his intent to kill Johnson. Robert,
[¶ 30.] The comparison between sentences received is much more similar to a comparison of the sentences received by Piper and Page than to those received by Piper and Hoadley. The most significant and readily-apparent distinction between Berget and Robert is the quality of their upbringing. Berget suffered physical abuse at the hands of his alcoholic father. He was imprisoned in the penitentiary for the first time at age 15. Robert, on the other hand, had a college degree, was loved by his mother, and had accumulated substantial wealth through hard work and saving. Id. ¶ 34.
[¶ 31.] Piper and Page also pleaded guilty to the same murder. Piper presented substantial evidence in mitigation relating to the quality of his upbringing, including his involvement in Boy Scouts. Piper,
[¶ 32.] We now turn our attention to those issues raised by Berget.
[¶ 33.] Issue 4: Whether Berget knowingly and intelligently waived his right to a sentencing jury.
[¶ 34.] Berget argues that because he was advised at the time of his change of plea that he would have the right to confront any witnesses the State called in the pre-sentence hearing, and because evidence was admitted at that hearing over his hearsay objections, his waiver of a jury’s determination of the appropriate sentence was not knowing and intelligent.
[¶ 35.] Other than the testimony of Dr. Bean, which is addressed below, Berget’s counsel was aware of the witnesses the State would produce and was aware of the contents of the letters containing victim-impact evidence. Berget made no attempt to withdraw his waiver of a jury’s determination of sentence, even after the circuit court made its evidentiary determinations. Furthermore, Berget does not argue that his right of confrontation would somehow be changed in front of a jury rather than in front of the judge. If Berget had the right of confrontation at sentencing, he would have had it before either a jury or a judge.
[¶ 87.] Issue 5: Whether the death sentence was improperly based on extra-record evidence.
[¶ 38.] Berget argues that the death sentence was improperly based on extra-record evidence. He states that this reliance on extra-record evidence deprived him of his constitutional right to confront and cross-examine his accusers. Specifically, Berget argues that the circuit court erroneously (1) used the report of Dr. Bean, a psychiatrist who examined Berget, as evidence against him
[¶ 39.] Berget faults the circuit court for relying on Berget’s comments from the change of plea hearing where he provided a factual basis to support his guilty plea. A factual basis is required before a circuit court can enter a judgment on a guilty plea. SDCL 23A-7-2. This Court requires the factual basis to “appear clearly on the record.” State v. Schulz,
[¶ 40.] In pronouncing sentence, the circuit court quoted from Berget’s own statements. Berget argues that the factual basis from the change of plea hearing was not properly admitted in the sentencing hearing, and thus, this evidence was unavailable at the sentencing hearing.
[¶ 41.] The facts of the crime are obviously critical to the sentencing phase of a capital penalty proceeding. Of the ten aggravating circumstances enumerated in SDCL 23A-27A-1, nine hinge on some aspect of the act for which the defendant was convicted. In a sentencing hearing without a jury, it is the judge’s role to determine the existence of an aggravating factor. SDCL 23A-27A-6. Certainly, the defendant’s in-court statements concerning the offense are relevant. Berget argues that had his comments from the change of plea hearing been offered by the State, he would have made a Fifth Amendment objection. But Berget clearly waived his right against self-incrimination at the change of plea hearing before making his statement. After Berget waived his Fifth Amendment privilege and made his state
[¶ 42.] Applying the dictionary definition of “record,” Berget’s statements from his change of plea hearing were part of the record in this case. “Usually ‘record’ refers to the official report of the proceedings in any case, and it has three parts: all the filed papers in the case; the verbatim transcript of hearings, conferences and testimony; and the tangible exhibits that the parties put in evidence.” Bryan A. Garner, A Dictionary of Modern Legal Usage 741 (2d ed.1995). The statement utilized by the circuit court was verbatim from the transcript of Berget’s change of plea hearing. Thus, Berget’s statements at the change of plea hearing were part of the record, not extra-record evidence as argued by Berget.
[¶ 43.] In his reply brief, Berget argues that he had no idea that his statements made at the change of plea hearing could be used against him in later proceedings. Otherwise, Berget argues, he would have required that the factual basis be established from other sources. See State v. Thin Elk,
[¶ 44.] Berget further argues that the circuit court considered extra-record evidence because the pre-sentence verdict contains a passing reference made to the third accomplice in this matter— Nordman. As the State points out, the reference was made as a sort of disclaimer meant to insulate any of the court’s comments regarding the facts of the crime from consideration in Nordman’s then-pending criminal prosecution. Berget fails to establish how this isolated comment reveals consideration of extra-record information in the circuit court’s determination of his sentence.
[¶ 45.] Neither Berget’s statements from the change of plea hearing nor the
[¶ 46.] Issue 6: Whether Berget was deprived of an individualized sentencing determination.
[¶ 47.] Berget argues that the sentencing court, which had previously imposed the death penalty on Robert, was unable to separate the facts of Berget’s case from Robert’s, depriving Berget of an individualized sentencing determination. For support, Berget points to the similarities between the pre-sentence hearing verdicts entered in both Berget’s and Robert’s cases. He argues that the similarities illustrate the sentencing court’s inability to compartmentalize the facts presented in his case from those presented in Robert’s. In support, Berget relies on Lockett v. Ohio for the proposition that “an individualized decision is essential in capital cases.” See
[¶ 48.] The issue in Lockett was the constitutionality of a death penalty scheme that, upon finding a defendant guilty with at least one of seven specified aggravating factors, required imposition of the death penalty unless the sentencing judge found one of three enumerated mitigating circumstances by a preponderance of the evidence. Id. at 607,
[¶ 49.] This Court has recognized this requirement. “In determining whether an individual eligible for the death penalty should in fact receive that sentence, the law demands that the jury make an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Rhines,
[¶50.] Berget points specifically to references to Nordman and blood-splatter evidence in the pre-sentence verdict as proof that the circuit court did not sequester Robert’s facts from his own. However, the references made in the pre-sentence verdict to blood-splatter evidence are ade
[¶ 51.] Berget also claims the pre-sentence verdict ignores a statement of remorse he made at the sentencing hearing. In so doing, Berget implies that the sentencing court confuses his case with Robert’s, where the court found that Robert demonstrated no remorse. At the sentencing hearing, Berget said: “I destroyed a family. I took away a father, a husband, a grandpa.” This demonstrates acknowl-edgement of the consequences of his actions, not remorse. No remorseful word or phrase is present or can be logically inferred from this passage. There is no indication that the circuit court confused Berget’s lack of remorse with Robert’s.
[¶ 52.] Robert and Berget jointly murdered Johnson during their joint escape attempt. The facts recited by the sentencing court in both pre-sentence verdicts are similar because, in fact, they are, at a minimum, similar facts. The circuit court chose to use similar language in certain places when characterizing similar or identical facts rather than engage in a time-consuming exercise in semantics resulting in divergent language between the two verdicts. Rather than a short-cut, illustrating confusion between the defendants, this is a proper and expedient use of judicial resources. It does not equate to a deprivation of Berget’s right to an individualized sentencing determination.
[¶ 53.] This Court has previously analyzed whether the same circuit court can engage in an individualized sentencing determination after imposing the death penalty on a co-defendant. In Page, this Court addressed: “Whether the circuit judge should have recused himself from sentencing Page after it imposed the death penalty on co-defendant Piper.”
The decision to preside over a case lies within the sound discretion of the trial judge. [State v.] Hoadley,2002 S.D. 109 , ¶ 32, 651 N.W.2d [249,] 257 (quoting [State v.] Goodroad,1997 S.D. 46 , ¶ 25, 563 N.W.2d [126,] 132). As we have consistently stated, this Court presumes a judge was impartial absent a specific and substantial showing to the contrary. Id. ¶ 32 (citing United States v. Walker,920 F.2d 513 , 517 (8th Cir.1990) (citation omitted)).
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Similarly, we do not believe Page has presented any evidence to constitute a legitimate basis on which to call into question the circuit judge’s impartiality. As grounds for disqualification, Page contends the circuit judge exhibited empathy and/or sympathy for the victim and did not sufficiently consider mitigation evidence. These arguments, however, do not establish a deep-seated antagonism against Page by the circuit judge or suggest Page was prejudiced from an extrajudicial source. Absent such a showing that a fair judgment was impossible, it was not error for the circuit judge to sentence Page after sentencing his co-defendant Piper, and, therefore, Page has failed to show plain error.
Id. ¶¶ 16-17,
[¶ 54.] As in Page, Berget has not “presented any evidence to constitute a legitimate basis on which to call into question the circuit judge’s impartiality.... Absent such a showing that a fair judgment was impossible, it was not error for the circuit judge to sentence [Berget] after sentencing his co-defendant [Robert].” See id. ¶ 17. The similarities between Berget’s pre-sentence verdict and that of
[¶ 55.] Issue 7: Whether the rules of evidence and the right of confrontation apply at a capital punishment sentencing hearing and were violated by the circuit court.
[¶ 56.] Berget next argues that the rules of evidence and the right of confrontation apply at pre-sentence hearings conducted pursuant to SDCL ch. 23A-27A, and that the circuit court’s decision to allow hearsay evidence violated his constitutional right of confrontation. In order to make this claim, Berget first attempts to distinguish a capital sentencing proceeding from the provisions of SDCL 19-9-14 (Rule 1101), which exempts the rules of evidence from certain situations, including sentencing proceedings. This section provides in relevant part:
Except as otherwise provided in this section, chapters 19-9 to 19-18, inclusive, apply to all actions and proceedings in the courts of this state. Those chapters other than those with respect to privileges do not apply in the following situations: ... (4) Sentencing, or granting or revoking probation.
Id.
[¶ 57.] Berget attempts to distinguish a capital punishment pre-sentence hearing from a typical criminal sentencing situation by virtue of the special characteristics of such proceeding. Berget points to other jurisdictions with rules expressly providing that the rules of evidence do not apply in capital punishment proceedings. Because South Dakota contains no such provision, Berget argues, the rules should apply.
[¶ 58.] Berget provides authority from other jurisdictions supporting his position that the rules of evidence apply at capital sentencing hearings. The weight of authority, however, is to the contrary. “Most death-penalty states follow the federal practice conducting capital sentencing hearings that are not subject to the same state rules of evidence that apply at the guilt phase.” John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L.Rev. 1967,1981 (2005).
[¶ 59.] Berget complains that the circuit court violated the rules of evidence and his right to confrontation regarding evidence concerning the circumstances surrounding his criminal record. He makes this an issue of constitutional magnitude by focusing on the right of confrontation. Specifically, Berget argues that the circuit court improperly admitted evidence of remote prior conduct, as well as the facts underlying his 2003 attempted murder conviction. This evidence is not relevant to any of the statutory aggravating circumstances found by the circuit court; nor does he make an argument that the presentation of this evidence improperly influenced the circuit court regarding its finding of the statutory aggravating circumstances.
[¶ 60.] There are two separate inquiries to be made after a pre-sentence hearing is conducted pursuant to SDCL ch. 23A-27 — a defendant’s eligibility for the death penalty and, assuming the defendant is so eligible, selection of the sentence — either life or death. The first determination hinges upon proof beyond a reasonable doubt of at least one of the aggravating circumstances contained in SDCL 23A-27A-1. SDCL 23A-27A-3, - 4, -6. Should at least one aggravating circumstance be found, the defendant is eligible to receive the death penalty. The sentencer must then select between a sentence of life without parole and a sentence of death. The United States Supreme
[¶ 61.] It is to the selection inquiry that mitigating evidence and evidence of non-statutory aggravating factors are relevant. Evidence regarding Ber-get’s criminal history, his characteristics, and circumstances of his behavior, which could be gleaned from the details of his criminal history, are non-statutory aggravating factors relevant to the selection inquiry. See SDCL 23A-27A-2. This Court has recognized the sentencing authority’s discretion regarding the sentence-selection decision. “Additionally, we acknowledge that once aggravating circumstances have been proven beyond a reasonable doubt, the lower court has broad discretion in determining whether to sentence a particular defendant to death.” Piper,
[¶ 62.] We are not the first court to grapple with this issue. Because this is an issue implicating the Sixth Amendment to the United States Constitution, other courts’ analyses of the same issue in the Sixth Amendment context are relevant. Applying the Federal Death Penalty Act, the Fifth Circuit has framed and resolved the issue in this way:
Rather, all of the challenged statements were introduced as part of the government’s effort to establish [defendant’s] past violent conduct and future dangerousness, both of which are nonstatutory aggravating factors that were included in the government’s notice. The establishment of nonstatutory aggravating factors is neither necessary nor sufficient to authorize imposition of the death penalty. Nonstatutory aggravating factors may be considered by the jury in selecting an appropriate sentence once a defendant is found eligible for the death penalty, but they are not, and cannot be, used to determine that eligibility, as the Supreme Court has explained: “Statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death.” Zant v. Stephens,462 U.S. 862 , 878,103 S.Ct. 2733 ,77 L.Ed.2d 235 (1983). Because they relate only to nonstatutory aggravating factors, the hearsay statements challenged by [defendant] are relevant only to the jury’s selection of an appropriate punishment from within an authorized range and not to the establishment of his eligibility for the death penalty. After reviewing the applicable caselaw and considering the particular importance of “individualized sentencing” in capital cases, we conclude that the Confrontation Clause does not operate to bar the admission of testimony relevant only to a capital sentencing authority’s selection decision.
United States v. Fields,
[¶ 63.] Liberal admission of evidence at the capital punishment selection stage, unimpeded by the requirement of confrontation, provides the sentencer with a complete picture of the character of the individual defendant. “What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant,
[¶ 64.] Liberal admission of information utilized in the capital sentence-selection phase agrees with our view of the use of evidence in non-capital sentencing. “Due process does not require that the scope of information reviewed by the sentencing judge be controlled by the rules of evidence, and consideration of out-of-court information and hearsay evidence is not precluded.” State v. Habbena,
[¶ 65.] This does not mean, however, that the sentence-selection determination is a free-for-all at which any information can be presented to the sentencing authority, regardless of its reliability. Due process requires “that a defendant cannot be sentenced to death on the basis of information undisclosed to a defendant and contained in a presentence report because, to satisfy due process, a capital defendant must be given a chance to rebut or explain adverse information introduced at sentencing.” Fields,
[¶ 66.] Berget does not allege that he was not given a chance to rebut or explain the information admitted at the sentencing hearing about which he complains. Nor does he challenge the reliability of the information. He offers that he moved in limine to exclude some of the information of which he now complains, demonstrating his knowledge that the information would be used and therefore his opportunity to rebut or explain the information. The transcripts of the sentencing hearing confirm that Berget had an opportunity to explain, through cross-examination or otherwise, all of the evidence he argues was improperly admitted.
[¶ 67.] Berget specifically challenges admission of several photographs used to illustrate the circumstances of his 2003 attempted murder conviction. The pictures depict bushes where Berget laid in wait for his eventual victims to arrive. A law enforcement officer who testified at the pre-sentence hearing discussed the pictures explaining the 2003 attempted murder. Berget was afforded an opportunity to cross-examine the law enforcement officer called to discuss the pictures. Furthermore, the photographs bore significant indicia of reliability to satisfy Berget’s due process rights for sentencing purposes. The pictures were not admitted without any explanation of what they were, where they came from, etc. Rather, the law enforcement officer provided context and discussion, rendering them sufficiently reliable to illustrate Berget’s behavior at the time. Additionally, the victims of the attempted murder and kidnapping testified at the pre-sentence hearing. They provided additional context and discussion of Berget’s actions during the crimes. They were also subject to cross-examination. Because the evidence of which Berget complains was relevant only to the sentence-selection inquiry, the Confrontation Clause does not apply to preclude admissibility. As it bore sufficient indicia of reliability and he was allowed to rebut or explain it, its introduction did not violate Berget’s due process rights.
[¶ 68.] Issue 8: Whether admission of evidence regarding Berget’s criminal history went beyond the intended scope of SDCL 23A-27A-2(3).
[¶ 69.] Berget next argues that the circuit court erred when it allowed evidence of remote “prior bad acts” into the sentencing phase. We review eviden-tiary issues for an abuse of discretion. State v. Graham,
In all cases in which the death penalty may be imposed and which are tried by a jury, upon a return of a verdict of guilty by the jury, the court shall resume the trial and conduct a presen-tence hearing before the jury. Such hearing shall be conducted to hear additional evidence in mitigation and aggravation of punishment. At such hearing the jury shall receive all relevant evidence, including:
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(3) Any prior criminal or juvenile record of the defendant and such information about the defendant’s characteristics, the defendant’s financial condition, and*23 the circumstances of the defendant’s behavior as may be helpful in imposing sentenee[.]
Id.
[¶ 70.] Berget argues that mitigating evidence cannot constitutionally be excluded, but that this does not translate to liberal admissibility of aggravating evidence in the sentencing phase. He asserts that the individualized sentencing rule of Lockett, requiring the sentencer to consider all mitigating evidence presented by the defendant, does not relax evidentiary standards for the admission of evidence in aggravation of punishment. He further argues that the terms “criminal or juvenile record” and “defendant’s characteristics” should not be interpreted so as to allow evidence concerning the facts of a defendant’s criminal history.
[¶ 71.] Berget argues that the Supreme Court’s individualized sentencing jurisprudence has been misinterpreted when used to allow liberal introduction of evidence in aggravation of punishment. However, the Supreme Court has indicated that the admission of evidence in aggravation, relevant to sentence selection as opposed to death eligibility, is not constitutionally impermissible.
Statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death.
Zant,
[¶ 72.] Berget focuses attention on the timing of legislative changes to South Dakota’s post-Greg^
[¶ 73.] The reality is that before the 1979 legislative session, there was no SDCL 23A-27A-2. This statute, along with South Dakota’s entire post-Gregg death penalty scheme, was not adopted until 1979. 1979 S.D. Sess. Laws ch. 160, § 5. At that time, after Lockett had been decided, the terms “record” and “circumstances of the defendant’s behavior” did not appear in the law. Id. It was not until 1994 that the statute was changed to include those terms. 1994 S.D. Sess. Laws ch. 178, § 2. The 1994 amendment also added the language permitting the jury to consider “testimony regarding the impact of the crime on the victim’s family.” Id. Notably, the United States Supreme Court’s decision in Payne was handed down in 1991.
We thus hold that if the State chooses to permit the admission of victim-impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.
Id. at 827,
[¶ 74.] In non-capital sentencing, sentencing courts are to look not only at the crime but also at the criminal. In order to fashion an appropriate sentence, sentencing courts in South Dakota are instructed to “acquire a thorough acquaintance with the character and history of the person before it.” State v. Blair,
[¶ 75.] Similarly, in the capital sentencing context, the sentencer’s use of a wide range of information is appropriate to an individualized sentencing determination. “Capital sentencing procedures that permit the jury to exercise wide discretion in evaluating mitigating and aggravating facts are consistent with an individualized sentencing determination.” Rhines,
[¶ 76.] The information Berget challenges regards the facts of the cases from his criminal history. A review of the pre-sentence hearing verdict reveals that the circuit court considered only the facts of the 2003 attempted murder and kidnapping convictions, not mentioning any facts regarding the rest of Berget’s criminal history, other than to acknowledge its existence. The facts of the 2003 crime are relevant to the circuit court’s individualized sentencing determination because they reflect on Berget’s characteristics, his general moral character, tendencies, and propensity to commit future crimes.
[¶ 77.] The Supreme Court has never prohibited admission of information relevant to non-statutory aggravating factors for purposes of selecting between capital punishment and life in prison. Zant,
[¶ 78.] Issue 9: Whether the circuit court allowed improper victim-impact evidence to be admitted at the pre-sen-tence hearing.
[¶ 79.] Berget next argues that the victim-impact evidence admitted at the sentencing hearing was so prejudicial as to inflame the passions of the circuit court. This Court reviews the circuit court’s ruling on the admissibility of evidence under the abuse of discretion standard. Rhines,
The Court began by noting that the impact of a defendant’s crime is a relevant sentencing consideration: “The assessment of harm caused by the defendant as a result of the crime charged has understandably been an important concern of the criminal law, both in determining the elements of the offense and in determining the appropriate punishment.”
Id. ¶ 131 (quoting Payne,
[¶ 80.] Berget argues that the victim-impact evidence presented at his sentencing hearing was more prejudicial than probative, and should have been excluded, at least in part. He compares the victim-impact evidence received in this case to that found improper in State v. Hess,
At sentencing, no one questions that a family member can make a statement about a homicide victim or present photographs or even a video showing the victim as he or she lived at the time before his or her death. The issue is whether there are any limits to the type of video that can be displayed at sentencing.
Id. at 392.
[¶ 81.] Berget characterizes the victim-impact evidence in this case as “three family members reliving the decedent’s life through a slide show of family photographs.” The type of evidence in Hess was much more inflammatory than that received in Berget’s sentencing hearing. The victim-impact evidence at issue in Hess was described as follows:
The professionally produced seventeen-minute video entitled “A Tribute to Officer James Hess” played at sentencing in this case includes features that have been specifically disapproved by courts in other jurisdictions: childhood photographs and music likely to appeal solely to emotion and engender undue prejudice. The video displays approximately sixty still photographs and four home-video clips of the victim in various activities and phases of his life. The video includes photographs of the victim’s childhood and his tombstone and a television segment covering his funeral. Three poems scroll over the photographs and video clips. The video is scored to popular, holiday, country, religious and military music.
Id. at 393.
[¶82.] The Hess court concluded that elements of victim-impact evidence with no probative value, but with great capacity to unduly arouse or inflame emotions, should not be permitted. This includes information that “do[es] not project anything meaningful about the victim’s life as it relate[s] to his family and others at the time of his death.” Id. at 394. The court indicated, however, that the video itself did not have the “capacity to alter the outcome of the sentence.” Id.
[¶ 83.] Victim-impact evidence has its limits. Introduction of overly prejudicial victim-impact evidence has the possibility to rise to the level of a constitutional deprivation. Payne,
[¶ 84.] The evidence consisted of pictures of Johnson, introduced and discussed by his son, daughter, and wife, as well as letters from other family members, friends, and co-workers. The evidence presented at this sentencing hearing was appropriately offered to illustrate the consequences of Berget’s actions. As we stated in Rhines: “To paraphrase Payne, the victim impact [evidence] ‘illustrated quite poignantly some of the harm that [Ber-get’s] killing had caused; there is nothing unfair about allowing the [judge] to bear in mind that harm at the same time as it considers the mitigating evidence introduced by the defendant.’ ” See Rhines,
[¶ 85.] Issue 10: Whether the circuit court failed to make an adequate record on evidentiary questions.
[¶ 86.] According to Berget, without citation to the record, the circuit court relied on the presumption that it made correct determinations of evidentiary questions rather than ruling on evidentiary questions on the record. Therefore, Berget argues that there is no way of knowing whether the circuit court considered improperly-admitted evidence.
[¶ 87.] Judges are presumed to correctly apply the law in making their decisions. As we stated in Page: “But the logic of these cases has no place in the context of sentencing by a trial judge. Trial judges are presumed to know the law and to apply it in making their decisions.”
[¶ 88.] Berget argues that if this Court were to find any exhibit should not have been admitted or that any testimony should be stricken, we must reverse because there is no way to know that the circuit court did not rely on the inappropriate evidence. Leaving aside for the moment the presumption that the circuit court knew the law and correctly applied it, other than the Dr. Bean report, we have addressed each of Berget’s alleged eviden-tiary errors above. Assuming the evidence Berget challenges was considered by the circuit court, none of it was improperly considered. All of the evidence about which Berget complains is relevant to the death selection inquiry and, as discussed above, the sentencer is to have access to a wide range of information at that stage. Therefore, as to the evidence, other than the Dr. Bean report, even without knowing whether the circuit court considered the evidence Berget claims was erroneously admitted, this Court still finds no error. Berget’s argument in this regard is without merit.
[¶ 89.] Issue 11: Whether Berget’s sentence violates evolving standards of decency.
[¶ 90.] Berget claims that the United States Supreme Court’s recent cases demonstrate a shift in the “evolving standards of decency.” According to Ber-get, recent United States Supreme Court decisions pave the way for a determination that this State’s “standard of decency” has evolved to the point where the punishment of death is no longer morally tolerable. Berget specifically references Graham v. Florida, -U.S. -,
[¶ 91.] Issue 12: Whether the circuit court violated Berget’s right against self-incrimination by considering a portion of a psychiatric report in determining Berget’s sentence.
[¶ 92.] During the pendency of these proceedings, Berget’s counsel moved for and obtained a psychiatric evaluation of Berget. Dr. David Bean conducted the examination. The circuit court and the State were provided copies of the Dr. Bean report. The existence of Dr. Bean’s report was disclosed to the State and the circuit court with the understanding that the document would be kept under seal unless Dr. Bean was called by Berget as a witness. Berget claims that because the document was filed under seal, Dr. Bean was never called as a witness, and Berget’s competency was never placed in issue, the circuit court erred by referring to a statement he made to Dr. Bean included in the report. Neither the State nor Berget requested that the circuit court consider the Dr. Bean report in fashioning a sentence. Berget claims the reference was “a justification for imposing the death penalty.” The language of the pre-sentence verdict referencing the Dr. Bean report provides as follows:
The Court considers Berget’s acceptance of responsibility by his guilty plea and his desire to have accepted responsibility early on in the proceedings to be evidence of mitigation. Acceptance of responsibility early on in a matter typically saves the state the time and/or expense of having to prove the elements of the offense of which the accused is charged. Early acceptance of responsibility typically saves the victim and/or victim’s family the emotional suffering of having to re-live the event by testifying in court or prolonging the wait for justice to be served. The Court does recognize here, however, that Berget’s intent for wishing to enter an early guilty plea may have had nothing to do with saving the state time and/or money or sparing the victim’s family of having to wait for justice, but rather may be solely to serve Berget’s own “wish it would be over”.... Forensic Psychiatric Evaluation of Rodney Berget dated December 28, 2011, page 18.
The court indicates that it chose to view Berget’s early acceptance of responsibility as a mitigating factor, even though there was information available to the court per the Dr. Bean report suggesting the possibility that Berget’s motive was not efficient administration of justice and sparing the family the emotional suffering of a trial.
[¶ 93.] Berget argues that the information from the Dr. Bean report was used by the circuit court to weigh against the mitigating effect of Berget’s early acceptance of responsibility. In essence, Berget argues that even though the circuit court indicated it considered his early acceptance as a mitigating factor, the use of the Dr. Bean report illustrates that in fact the court did not give this evidence appropriate mitigating weight in selecting between life and death.
[¶ 94.] The relevant procedural facts regarding Dr. Bean’s report discernible from the record are as follows. On De-
We have the report from Dr. Bean. We have shared that with the State. We intend to share it with the Court, and I have a copy for the Court with the understanding — I believe the State is agreeing to this — is that it be kept under seal so both the Court and State [are] satisfied that competency issues have been addressed, and the only way the seal be released is if we would in fact call Dr. Bean to testify at the penalty phase starting the 30th of January, but for now we are submitting it to the Court for the Court’s consideration and review. I’ve given a copy to [State] also.
No further mention was made of the report until the circuit court included citation to the report in its pre-sentence verdict.
[¶ 95.] It is not until his reply brief that Berget raises a Fifth Amendment challenge to the use of his statement to Dr. Bean extracted from Dr. Bean’s report.
[¶ 96.] In Estelle, prior to trial, a Texas trial court judge ordered that the defendant, Smith, who had been indicted on first-degree murder charges, undergo a psychiatric examination for the purpose of determining competency.
[¶ 97.] At trial, a jury convicted Smith of murder. Id. In order for the death
[¶ 98.] The federal district court in Texas granted Smith habeas relief, the Court of Appeals affirmed, and the United States Supreme Court considered the matter. Id. at 460-61,
[¶ 99.] The Court determined that when the psychiatrist “went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of [Smith’s] future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a post-arrest custodial setting.” Id. at 467,
[¶ 100.] Berget argues that application of Estelle to the present facts likewise requires reversal of his sentence. As in Estelle, Berget’s statements made during a psychiatric interview conducted for the purpose of establishing his competency were arguably used against him during the capital sentencing proceeding. Also like Estelle, Berget had no notice that such testimony would be used during the sentencing phase of the proceeding. There are notable distinctions, however. First, the psychiatric evaluation performed in Estelle was ordered by the trial court sua sponte. Id. at 456-57,
[¶ 101.] In Buchanan v. Kentucky, a non-capital murder case, after noting that the holding in Estelle was based on the “distinct circumstances” of that case, the Court noted one of the limits of the Estelle holding.
We further noted: ‘A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.’ (citation omitted). This statement logically leads to another proposition: if a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution.
Id. at 422-23,
[¶ 102.] The Court again considered application of Estelle in Penny v. Johnson,
The differences between this case and Estelle are substantial, and our opinion in Estelle suggested that our holding was limited to the ‘distinct circumstances’ presented there. It also indicated that the Fifth Amendment analy*32 sis might be different where a defendant ‘intends to introduce psychiatric evidence at the penalty phase’.... Indeed, we have never extended Estelle ⅛ Fifth Amendment holding beyond its particular facts.
Id. at 795,
[¶ 103.] The Third Circuit Court of Appeals synthesized these holdings as follows:
If we lay these decisions out, the following landscape emerges. A compelled psychiatric interview implicates Fifth and Sixth Amendment rights ([Estelle ]). Before submitting to that examination, the defendant must receive Miranda warnings and (once the Sixth Amendment attaches) counsel must be notified ([Estelle ]). The warnings must advise the defendant of the “consequences of foregoing” his right to remain silent ([Estelle ]). The Fifth and Sixth Amendments do not necessarily attach, however, when the defendant himself initiates the psychiatric examination (Buchanan, Penry). Similarly, the Fifth — but not Sixth-Amendment right can be waived when the defendant initiates a trial defense of mental incapacity or disturbance, even though the defendant had not been given Miranda warnings {Buchanan, Powell). But that waiver is not limitless; it only allows the prosecution to use the interview to provide rebuttal to the psychiatric defense (Buchanan, Powell). Finally, the state has no obligation to warn about possible uses of the interview that cannot be foreseen because of future events, such as uncommitted crimes (Penry).
Gibbs v. Frank,
[¶ 104.] Applying Estelle and its Supreme Court progeny to the facts of this matter presents a very close question. Initially, it is noteworthy that Berget’s counsel moved for the psychiatric evaluation of Berget. The Supreme Court noted the importance of this distinction from Estelle in Buchanan. Buchanan,
[¶ 105.] Although not faced with a situation in which the defendant had placed his mental status into issue, the Supreme Court in Estelle made the importance of this issue clear. Estelle,
[¶ 106.] In Estelle, the psychiatric evidence was used affirmatively by the State to establish the defendant’s future dangerousness, an issue the State bore the burden of proving in order for the death penalty to be imposed.
[¶ 107.] In this case, the State did not call Dr. Bean to testify, nor apparently was it aware that the court would consider Dr. Bean’s report. Additionally, Berget’s statement to Dr. Bean used in the pre-sentence verdict was noted by the circuit court as potentially rebutting the idea that Berget’s early acceptance of responsibility was motivated by a desire to spare the victim’s family from proceeding through a trial. However, in both Penry and Buchanan, the psychiatric testimony at issue was used to rebut psychiatric evidence introduced by the defendant. See id.; Buchanan,
[¶ 108.] The present circumstances are distinguishable in material respects from Estelle, but also distinguishable from both Buchanan and Penry. Importantly, Ber-
[¶ 109.] Here, it could be argued that because Berget moved for the evaluation, his testimony to the psychiatrist was not compelled, and therefore does not implicate the Fifth Amendment. Other courts have refused to apply Estelle based on the lack of compelled testimony when the defendant moved for the psychiatric examination. See, e.g., State v. Smith,
[¶ 110.] Further, this Court has analyzed the use at trial of a criminal defendant’s statements made to a psychiatrist during an evaluation requested by the defendant under the Fifth Amendment’s protection against compelled testimony. State v. Devine,
[¶ 111.] Devine provides that evidence of a defendant’s statements made to a psychiatrist for the purpose of determining the defendant’s competency, admitted as evidence of the defendant’s guilt, implicate the Fifth Amendment even when the defendant moves for the competency evaluation. Therefore, the fact that Ber-get moved for the psychiatric evaluation does not, in these specific circumstances, remove this situation from evaluation under Estelle. As the Supreme Court made clear in Estelle, there is no distinction between the guilt and penalty phases of a capital sentencing procedure for purposes of applying the Fifth Amendment’s protection against self-incrimination. Estelle,
[¶ 112.] Furthermore, to hold that any statement made during such a competency evaluation could be used to weigh in favor of imposition of the death penalty may prevent defense counsel from recommending their client agree to a competency exam. Because of the gravity of determining competency in these situations, courts could then be forced to compel evaluations, at which time defense counsel may recommend the defendant remain silent. The Supreme Court of California has recognized this dilemma.
A rule allowing a defendant to be impeached at trial with statements made during a competency examination would pose a dilemma for defendant’s trial attorney. A competency examination occurs after the right to counsel has attached, at a critical stage of the proceeding at which counsel’s participation is constitutionally mandated; the examination cannot be conducted without “the assistance of [defendant’s] attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist’s findings could be employed.” Counsel would need to explain the risk of impeachment to the possibly mentally impaired defendant and, if that risk was sufficiently grave, might be ethically bound to advise the defendant not to communicate with the court-appointed mental health professional at all during the examination.
People v. Pokovich,
[¶ 113.] At the end of the analysis, we are left with the circuit court’s use of Berget’s statement, made at a psychiatric examination ordered by the court at the request of counsel and potentially used against him as evidence that he should be sentenced to death. Even though Estelle has been repeatedly limited to its facts, the relevant distinctions present here do not undermine the rationale of the Supreme Court’s decision in Estelle. Given the specific facts of this case, the use of Berget’s unwarned statement to Dr. Bean utilized to weigh against the mitigating evidence available, and therefore as justification for imposition of the death penalty, was error.
SDCL 23A-44-14 defines harmless error as “[a]ny error, defect, irregularity or variance which does not affect substantial rightfs].” The harmless error rule governs even constitutional violations, not requiring the automatic reversal of a conviction, provided the court is able to declare a belief beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained.
State v. Younger,
[¶ 115.] This is the standard utilized by the United States Supreme Court in determining whether Estelle error requires reversal. Satterwhite v. Texas applied harmless error analysis to application of Estelle’s Sixth Amendment holding in the context of a direct appeal of a state court decision in a capital case.
[¶ 116.] The error here was the use of Berget’s statement to Dr. Bean as evidence weighing against the mitigating evidence available. The issue is whether this Court can “declare a belief beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained.” See Younger,
[¶ 117.] “Harmlessness must ... be determined on the basis of the remaining evidence.” Zakaria,
All I have to say is that I’m guilty of taking Ronald Johnson’s life. I knew what I was doing on the day when I went over to the shops, and I continued to do it. I destroyed a family. I took away a father, a husband, a grandpa. They’ll never see their father again or husband. He will never walk through that door again. I made sure of that by my actions. I’m not going to beg the Court or ask the Court to spare my life. I believe I deserve the death penalty for what I’ve done. That’s all I have to say.
[¶ 118.] Even though it is difficult to determine the weight given by the circuit court to Berget’s statement to Dr. Bean, the importance of Berget’s motivation for pleading guilty is clear.
“Few facts available to a sentencing judge,” we have observed, “are more relevant to the likelihood that [a defendant] will transgress no more, the hope that he may respond to rehabilitative efforts to assist with a lawful future career, [and] the degree to which he does or does not deem himself at war with his society” than a defendant’s willingness to cooperate.
Mitchell,
CONCLUSION
[¶ 119.] In selecting a sentence, the circuit court improperly considered statements made by Berget to Dr. Bean during a competency evaluation. This was a violation of Berget’s right to be free from self-incrimination. We cannot conclude that the use of this statement was harmless beyond a reasonable doubt.
[¶ 120.] Pursuant to SDCL 23A-27A-13(2), we remand to the circuit court for the purpose of conducting a sentencing without this error. Per this statute, it is to be conducted on the existing record without reference to, or considering of, the report of Dr. Bean.
[¶ 121.] In all other respects, the appeal is affirmed.
Notes
. Pheasantland Industries is a prison-industry business located within the walls of the penitentiary.
. In State v. Robert, this Court inquired into the competency of the defendant sua sponte.
. Berget insists the victim-impact evidence presented in this case improperly influenced the circuit court. For a more complete analysis of this issue, see infra ¶¶ 78-84.
. For a more thorough analysis of this issue, see infra ¶ 51.
. It is important to note that Berget, on appeal, makes no attempt to challenge the validity of his guilty plea based on the allegedly improper advisement.
. Because of our determination of the use of the Dr. Bean report under the Fifth Amendment analysis, we decline to address whether use of the report was error based solely on its classification as "extra-record” evidence. See infra ¶¶ 91-118.
. At the change of plea hearing, before Berget entered his guilty plea, the circuit court advised Berget:
You were also advised that you have a right against self-incrimination, meaning that you don’t have to testify against yourself and don't have to put on any evidence whatsoever; but if you enter a guilty plea, you'd be waiving that right against self-incrimination. Neither the Court nor the State can ask you questions about the events that took place regarding Count I, and anything you say will be used as to the factual basis of your guilty plea, as well as could be used at sentencing or potentially otherwise.
Berget acknowledged his understanding.
. Mitchell holds that such a statement does not necessarily waive the privilege against self-incrimination at sentencing. Mitchell,
. The Fifth Circuit recently reaffirmed this holding. United States v. Ebron,
. Today, federal appellate courts continue to cite Williams for the proposition that the Confrontation Clause does not apply at sentencing, whether capital or otherwise. At sentencing, prosecutors remain free to rely on hearsay that would be barred at trial by the Confrontation Clause. Thus, in capital sen-tencings, courts have allowed summary testimony from police and from expert witnesses, noting that such testimony satisfies the Constitution so long as the defendant is given an opportunity to rebut it.
Douglass, 105 Colum. L.Rev. at 1980 (citing Williams v. New York,337 U.S. 241 , 245-46,69 S.Ct. 1079 ,93 L.Ed. 1337 (1949)).
.This should not be read to address the applicability of the right of confrontation during presentation of evidence relevant to the death eligibility determination, i.e., evidence relevant to one of the statutorily enumerated aggravated circumstances found in SDCL 23A-27A-1.
. Gregg v. Georgia,
. According to Hess, the pictures of the family witnessing the funeral and pictures of the
. During oral argument, Berget’s counsel indicated that the request for psychiatric evaluation was precipitated by the circuit court's indication that an evaluation would be ordered whether Berget moved for one or not.
. Berget's counsel asserts that his first opportunity to raise this issue came after the circuit court had utilized the information in its sentencing verdict. However, counsel had at least two opportunities to raise this issue prior to his reply brief. After the circuit court orally pronounced its sentence, the State filed proposed findings and conclusions. State's proposed conclusion # 42 mirrored the circuit court’s use of the Dr. Bean report. In his objections, filed three weeks after the circuit court issued its initial ruling, Berget's counsel objected to Conclusion # 42 without citing the Fifth Amendment or Estelle v. Smith,
. After stating that the Fifth Amendment was implicated, the Court framed the issue as follows: "Whether such incriminating statements are admissible to establish mental condition in a unitary trial which involves both sanity and guilt issues, without prejudicing the defendant's due process rights.” Id. at 135.
Concurrence Opinion
(concurring in part and dissenting in part).
[¶ 125.] I fully concur with the majority on Issues 1-11. However, I dissent on Issue 12.
[¶ 126.] The majority found that the circuit court used “Berget’s unwarned statement to Dr. Bean ... to weigh against the mitigating evidence available, and therefore as justification for imposition of the death penalty[.]” Supra ¶ 113. It thus determined the court’s reference to Dr. Bean’s report was error. Id. I respectfully disagree.
[¶ 127.] In holding that the court erred, the majority analyzed whether this case should be evaluated under the principles of Estelle and concluded that it must. Supra ¶ 111. However, as the majority itself acknowledges, the Estelle Court cautioned that its holding is based on the “distinct circumstances” presented therein. Supra ¶ 101. The Supreme Court reiterated that
[¶ 128.] There is no dispute that Ber-get did not put his mental status in issue. However, the majority claims that, like in Estelle, Berget’s statement was “used against him during the capital sentencing proceeding.” Supra ¶ 100 (emphasis added). I disagree. The language of the pre-sentence verdict demonstrates that despite the circuit court’s reference to Dr. Bean’s report, it still considered Berget’s early acceptance of responsibility as a mitigating factor. Berget’s statement, recounted in Dr. Bean’s report and referenced by the court in the pre-sentence verdict, did not transform the mitigating evidence into aggravating evidence, which in turn, as the majority claims, “justified] ... imposition of the death penalty.” Supra ¶ 108.
[¶ 129.] The majority also maintains that, like in Estelle, “Berget had no notice that [his statement] would be used during ... sentencing!.]” Supra ¶ 100. From the record, I would suggest that it is unclear whether Berget knew or suspected that the circuit court would review the report. At a motions hearing, defense counsel submitted Dr. Bean’s report to the circuit court with the understanding that the report be kept “under seal.” See supra ¶ 94. In my view, the circuit court could easily have interpreted the language “under seal” to mean that no one except the court was permitted to see the report. Thus, it was fair for the court to assume that it was allowed to review the report. Moreover, in its colloquy with the court, defense counsel specifically stated: “[W]e are submitting [the report] to the [c]ourt for the [c]ourt’s consideration and review.” Id. (emphasis added). Surely, based upon defense counsel’s statement, Berget would have suspected, at the very least, that the court would review the report.
[¶ 130.] As to the remaining facts, even the majority concedes that “notable distinctions” exist between this case and Estelle. Supra ¶ 100. Nonetheless, it reasons that those “distinctions ... do not undermine [applying] the rationale of the Supreme Court’s decision in Estelle.” Supra ¶ 113. In reaching that conclusion, the majority molds the facts of this case to fit the “distinct circumstances” referenced in Estelle.
[¶ 131.] First, the majority notes that, unlike Estelle, Berget’s statement to Dr. Bean was not used affirmatively by the State. Supra ¶¶ 106-07. In Estelle, the psychiatrist “testified for the prosecution at the penalty phase on the crucial issue of [the defendant’s future dangerousness[.]”
[¶ 132.] As previously stated herein, while Berget’s statement may have softened the mitigating evidence, it was not tantamount to rebuttal evidence nor could it reasonably support a holding that it was
[¶ 133.] Second, unlike in Estelle where the court ordered a psychiatric evaluation sua sponte, here, Berget’s counsel sought and moved for the evaluation. Supra ¶ 100. In order to reach its conclusion that this case is not removed from evaluation under Estelle, the majority downplays this factor stating, “[b]ecause [Berget] did not place his mental status in issue[,] the fact that he moved for the psychiatric examination is of less importance[.]” Supra 11108.
[¶ 134.] Further, the majority’s reliance on Devine is misplaced. Devine held that “[t]he Fifth Amendment privilege bars the use of an incriminating statement made to a psychiatrist for the purpose of proving a defendant’s guilt.”
[¶ 135.] Lastly, even conceding that the majority is correct in holding that the circuit court erred in considering Berget’s statements to Dr. Bean, I am of the strong belief that the error was harmless. The error is harmless if we find beyond a reasonable doubt that the circuit court would still have imposed the death sentence if it had not considered Berget’s statement to Dr. Bean. See Younger,
[¶ 136.] In choosing between life or death, the circuit court weighed the aggravating evidence against the mitigating evidence and determined that death was warranted.
[¶ 137.] The State presented a substantial amount of aggravating evidence
[¶ 138.] The aggravating evidence in this case was overwhelming. If the circuit court had not considered Berget’s statement to Dr. Bean during the weighing process, the mitigating evidence would still have failed to outweigh the significant and often undisputed aggravating evidence. Thus, I firmly believe the sentence would still have been death.
[¶ 139.] Accordingly, I would affirm the judgment below and uphold the sentence.
. In its pre-sentence verdict, the circuit court provided, "[W]hen weighing the mitigating circumstances presented and considered in this matter and finding that they do do [sic] not outweigh the aggravating circumstances of this crime, the only effective and reasonable retribution or punishment under the totality of the circumstances in this matter is the imposition of the death penalty.”
. The court considered the facts of Johnson's murder which, due to the manner in which Berget caused Johnson's death, demonstrated an extreme indifference to human life and an obvious attempt to end Johnson’s life. More