State v. Page

2006 SD 2 Dakota,

STATE of South Plaintiff Appellee,

Elijah PAGE, Defendant Appellant.

No. 21864.

Supreme Dakota. Court South

Argued March 2004.

Decided Jan. General, Attorney E. Long,

Lawrence Attorney Gener- Gary Campbell, Assistant Eichstadt, Deputy Attorney al, Craig M. Wald, General, Grant Sundem Sherri General, Attorneys Gormley, Assistant Pierre, Dakota, Attorneys plain- for South appellee. tiff and City, Murphy, Rapid R. South Da- John Butler, kota, J. Butler Law and Michael Falls, Dakota, Office, P.C., South Sioux Attorneys appellant. defendant and GILBERTSON, AND PROCEDURE Justice. FACTS Chief up On met March Elijah March On Briley Piper (Piper), Hoadley Darrell with along with two other individu- Page (Page) (Hoadley), Poage Poage’s house to als, Al- and murdered Chester kidnapped Poage’s mother and play games. video (Poage) Spearfish, South Da- Poage lan house, sister, who also lived at the were eventually pleaded guilty to kota. time. vacation Florida Eventual- murder, robbery kidnapping, degree first Hoadley ly, Piper, Page, and convinced house, to the and four left degree, burglary Poage in the first leave the in first the Blazer, Poage’s traveling to in Chevrolet grand Page theft. After degree, and Piper, Page, Hoadley house and the where trial, right his to a and sen- waived staying. had been by jury, sentencing hearing was tencing their Shortly arriving after The the court. circuit held before circuit destination, exposed pis- a .22 Page caliber Page court to death lethal sentenced floor, tol, Poage and ordered to the told injection charge. Page the now on murder victim, you your all jacking are the ‘We our appeals and raises several issues for floor, Poage Once the stuff.”1 was all affirm on issues. review. We him by kicking knocked unconscious Piper pis- Poage's closet. Page antique .22 tol from mother’s had stolen the caliber Poage victim in Poage him in the head. While was uncon- the head. cried out in scious, pain throughout a cord the but up beating, he was tied with and sat his only in the victim re- screams caused more kicks. upright Page a chair. When consciousness, kicking later admitted to in cry Poage he to and the gained started head often so with his boots that it group go. to let him “made pleaded with the his own foot sore.” response, Poage forced to drink group the beer, pills, concoction crushed and after beating Poage [¶ 6.] Sometime in Page Poage acid. asked for hydrochloric river, group the decided it was time to personal number for his identification finally kill Page the victim. was first time, ATM card at this the victim and Poage. lay to he freezing stab As complied. Page and then Piper openly water, Page Poage’s took head in his arms. plan Poage, to kill includ- discussed their him, Poage you When asked are “What throat, ing slitting against but decided his doing?” Page responded, “Just sit there.” particular plan get because would Page plunged then his knife the way all much This too blood house. discus- Piper into the victim’s neck. proceeded to concerning way to kill sion “best” Poage time, stab the head. During this directly in Poage was carried on front of Piper laughed jokes and made about the the victim.2 pain Poage experiencing, was to which Page “chuckled.” forcing Poage

[¶ 4.] After into his own vehicle, group approximately drove badly wounds, Bleeding from his remote, seven miles to wooded area Poage asked to the three be allowed back Hills Higgins the Black known as Gulch. into his vehicle to warm himself. Testimo- Gulch, Poage was Higgins Once forced ny Poage preferred indicated that said he out of the vehicle into a foot of snow. to death in bleed the warmth rather Page stripped Poage and Piper naked ex- Piper Poage than in the cold. told he shoes, undershirt, and cept his socks. up could warm in the vehicle if he first temperature night only about Poage pro- washed blood off himself. degrees twenty-five Piper, Fahrenheit. icy water, off in ceeded rinse himself Page, Hoadley Poage’s then took wal- uphill he but as crawled toward the vehi- let. cle, they lying told him were Page he would be allowed into the vehicle. . Next, Poage the men forced Page kicked the victim the face once downhill toward a creek. walk small On again. Poage dragged then back into creek, way to the the three ordered Approximately hours the creek. four after Poage deep to lie down snow. At began, the ordeal and about three hours point, Piper, Hoadley Page, beatings gulch, after the started in the kicked snow all over exposed the victim’s finally Hoadley stated and he ended body. Poage attempted escape When Poage’s by dropping heavy life several life, down, recap- save his ran him rocks on his head. him, pushed icy tured him into began beating group Piper, Hoadley creek. The then drove Page, Poage, Page repeatedly kicking away Poage’s with the from the secluded area in Testimony origin plot Poage’s 2. to the of the to It is also whether kill vehicle. unclear Poage they initially planned Poage, just It is or varied. unclear whether all three to kill However, planned stealing the it is the of assailants on items beat him. clear that initial they buy drugs, killing Poage the house so could or as to were limited to whether discussions Piper pulled Page Piper Page, only outside inform and and after it was decided to him he going equipment Hoadley plan. was steal to was informed the to stereo from kill him of trial rights jury to both a Page to the vic- waived his returned group The

vehicle. and instead re- items. For several and house and stole tim’s sentencing by circuit court. Page quested the property, victim’s his share clothes, five-day sentencing At of a and the conclusion system, a stereo claimed Page the court sentenced hearing, then circuit group The traveled vehicle. Poage’s injection, Missouri, finding to lethal Hannibal, Piper’s to sis- death visit to proved beyond a to let them the State reasonable refused Piper’s ter. sister following factors: however, headed back to doubt the the three stay, so (1) Dakota, committed offense Poage’s property defendant pawning South or for the defendant another way.3 returning South the benefit of Upon along the money Hoadley purpose receiving for the of or Dakota, Piper, Page, and each (2) value; monetary of- item of other way. went his own vile, outrageously wantonly or fense was almost April On horrible, or inhuman involved later, partial- discovered month woman mind, torture, an depravity aggra- of and A body Higgins Gulch. ly submerged victim; battery to the offense vated later identified the re- pathologist forensic avoiding, of purpose was committed for of Poage. Showing signs head mains as with, interfering preventing or lawful ar- wounds, mostly injuries and stab rest, in a custody place or of lawful con- undershirt, only body clad in an naked finement, of the defendant another.4 shoes, Following autopsy, and socks. ultimately ap- Page On March pathologist deter- forensic pealed light his died “stab wounds sentence this Court. Poage had from mined jury’s life injury subsequent imposition to the head.” of a and the blunt force co- possibility parole without 25, 2000, law enforce- April On Hoadley, we the case remanded conducted an interview ment authorities circuit proportionality court Hoadley he gave with wherein statement conducting After an intra-case review. detailing his in the murder of involvement review, circuit court en- proportionality interview, warrants Poage. Based on findings fact tered and conclusions of Piper Page. issued for both were Page’s death sentence. affirming law later, days authorities located and Three following Page appeals now raises Page day, in Texas. The next arrested our issues for review: Page law voluntarily described to enforce- judge the circuit 1. Whether should Poage’s mur- surrounding ment the details have from recused himself sentenc- Page was then extradited from Texas der. ing after it imposed the death jailed County, South Da- Lawrence Piper. on co-defendant pleaded guilty kota. later murder, degree felony 2. fails to convicted first Whether SDCL 23A-27A-1 limit degree robbery, sufficiently persons de- the class of kidnapping, first first gree burglary, grand eligible theft. who be deemed for the State agreement Page. penalty. plea did not offer a judge presided 4. Poage’s property was later found at The same circuit over the Some Hoadley experienced trial. Well pawnshops Wyoming and Missouri. cases, judge previously sat with addition, circuit Poage's records from bank showed Moeller, by designation v. this Court in State his stolen card was used six times in ATM (Moeller I); SD 548 N.W.2d 465 Ne- various locations in South Dakota and Moeller, v. State braska. Rhines, (Moeller II); and (Rhines I). SD 548 N.W.2d utilized a AND 3. Whether the circuit court ANALYSIS DECISION vague aggravating and overbroad judge [¶ 1. the circuit 12.] Whether Page

factor it when determined should have recused himself from eligible penalty. for the was death sentencing Page imposed after it 4. Whether there was insufficient evi- penalty the death on co-defendant dence in record which the the from Piper. reasonably circuit could court have determined the State met its error, For his of point first proving burden of Page argues judge that the circuit should 23A-27A- factors defined SDCL have recused himself sentencing from him (9). 1(3), (6), imposing after the death penalty his co- deprived 5. the circuit Whether court Piper. Page defendant believes circuit sentencing of an individualized judge developed empathy sympathy and/or hearing Eighth in violation of the through sentencing for the victim Piper, and Fourteenth Amendments. feelings and he asserts that these compro 6. Whether the selective application ability mised the judge’s to sentence him mandatory capital South Dakota’s objective an and neutral manner. The procedures sentencing is unconstitu- argues Page right waived to his dis tional. qualify judge, circuit or in the alterna Page’s 7. death Whether sentence was tive that it error for the circuit grossly disproportionate to the pen- judge to sentence after alty imposed similar cases consid- Piper, given amount of discretion nor ering both crime and defen- mally a judge’s pre afforded decision to dant. side over a case. Page’s 8. death Whether sentence was

unconstitutionally imposed when the consistently We have rec any ag- indictment failed to allege ognized that “opportunity a defendant’s gravating circumstances. disqualify ... judge statutory, a is and not right, 9. a constitutional except Whether sentence was be unconstitutionally imposed implicit when to a fair right trial.” State v. SDCL 23A-27A-6 failed allow a 109, ¶32, Hoadley, 651 N.W.2d appropri- determination of Goodroad, (quoting State v. upon ate plea guilty (citation 126, 132 SD court. the circuit omitted)). 15-12-21, Pursuant to SDCL an right defendant to file affidavit has 10. Whether death sentence 15-12- seeking change judge.5 SDCL grossly disproportionate to co- 24, however, Hoadley’s provides: life sentence. provides: hearing pletion preliminary or 15-12-21 waiver thereof, any proceeding contempt for Except right where is or is de- waived court, chapter, presence change nied an for or affidavit committed in judge magistrate may of a filed or be corpus. habeas pending origi- action in the court whether party (requiring See SDCL 15-12-21.1 nating pending appeal upon therein or from informally judge disqualify request a him- inferior court tribunal to circuit filing change self before an affidavit for change may court. No affidavit such judge). prior filed in a action to the criminal com- 750 him magistrate judge for the circuit to sentence judge a or error to

The submission support of a to proof Piper or argument sentencing of after co-defendant trial, or is a application, upon or analysis motion under plain death. Our error to file an right the thereafter (2) of (1) waiver error; requires 23A-44-15 change judge of such or for affidavit (3) plain; that affects substantial is by any party or his counsel magistrate “seriously and affects rights; same or who after who submitted fairness, public reputation or of integrity, matter to be pre- that such was notice Dillon, v. judicial proceedings.” State sented, hearing appear failed to at ¶ 37, 97, 12, (quot 632 43 2001 SD N.W.2d un- or Such waiver shall continue trial. ¶ Robinson, 17, 141, v. SD ing 1999 State of the action til final determination 735). 730, Generally, “[w]e 602 N.W.2d motions, subsequent includes all plain error invoke our discretion under trials, trials, proceedings, new hearings, cautiously only ‘exceptional rule enforce, or proceedings and all to amend ” Robinson, 1999 circumstances.’ SD judgment. or vacate order ¶ 17, (quoting 602 at N.W.2d case, plea a submitted of this ¶ Nelson, SD N.W.2d guilty presented mitigation evidence 443). exceptional Such circumstances hearing cir- sentencing before the “seriously where would affect exist error informally judge. request- cuit He neither fairness, integrity public reputation or to judge disqualify ed the circuit himself Nel judicial proceedings.” (quoting Id. proceedings nor from the sub- ¶ 443). 124, 8, son, 1998 SD 587 N.W.2d at seeking change a mitted affidavit ordinarily af Given the level of deference judge. specifically this Court re- When judge’s a circuit sit on a forded decision to Page’s to the circuit court appeal manded case, it would rare for this to Court light for a review in of co- proportionality such a decision under the rubric review sentence, Page Hoadley’s did plain error. challenge judge’s not to circuit seek fact, impartiality. appeal this marks utilizing plain [¶ Even 16.] Page’s to seek attempt first recusal of the case, Page’s argu error doctrine in this Thus, judge. circuit the time for statutori- fails we he ment because do believe ly seeking sentencing before a different circuit has shown it was error judge long is passed has since deemed “The judge sentence him. decision appeal. Burgers, waived on State v. preside over a case lies within the sound ¶¶ SD N.W.2d 279-80 judge.” Hoadley, of the trial discretion guilty plea of a (holding submission waived ¶ 109, 32, at 257 2002 SD recusal); statutory right seek see Goodroad, 46, ¶ 25, 563 (quoting 1997 SD ¶ Chamley, State v. 132). consistently As we have N.W.2d (holding N.W.2d defendant’s stated, presumes judge Court argument and submission motions be- specific impartial absent substantial judge fore a functioned as a waiver of his recusal); (citing right showing contrary. see to the Id. to seek also SDCL 15- (setting seeking Walker, 12-27 the time for out United States v. 920 F.2d ordinary judge presiding (8thCir.1990) (citation omitted)). removal course). judge of Judicial Conduct directs a Code “the disqualify himself or herself where Having determined reasonably be judge’s impartiality might right disqualify statutory her questioned” “personal due to his or waived, judge circuit we must now party....” prejudice concerning plain address contention that was bias

751 chapter app., Code of Jud. call question judge’s 16-2 into impar- circuit 3E(l)(a). Conduct, regard Canon tiality. grounds As disqualification, judicial bias, recognized have that: we Page contends the judge circuit exhibited [Ojpinions by the judge formed empathy sympathy for the victim and/or occur- basis of facts introduced or events and sufficiently did not mitigation consider pro- of ring the course the current however, evidence.6 These arguments, do ceedings, prior proceedings, or of not do a deep-seated antagonism establish constitute a for a bias or partiality basis against Page by the judge circuit or sug- they display motion a deep-seated unless gest Page prejudiced was extraju- from an antagonism favoritism or would dicial source. Absent such a showing that impossible. make fair judgment a fair judgment it impossible, was not Hoadley, 2002 SD 651 N.W.2d error for the judge circuit to sentence States, Kohl v. (quoting Von United Page after his co-defendant (8th Cir.2001) 242 F.3d (quoting and, therefore, Piper, Page has failed to States, Liteky v. United U.S. plain show error. (1994))). 5.Ct. 127 L.Ed.2d 474 Sim- ilarly, prejudice Court defined Finally, Page argues Hoadley as: judge’s circuit sentencing decision should The attitude of personal enmity towards statutorily overturned under the man- party or in favor of the adverse 23A-27A-12, dated review of SDCL which party party’s to the other It detriment. requires this Court to “[w]heth- determine possession is not the re- mere of views er the of imposed sentence death was un-

garding the or the law conduct party. Prejudice is in personal sense der passion, prejudice the influence of or judicial rather than in the sense any arbitrary other Page reas- factor[.]” refers to a disposi- mental attitude or a arguments serts his judge that the circuit tion of judge party. towards a should have recused himself from sentenc- alleged order for the bias prejudice ing points juror and further that a out disqualifying, to be must stem from could not have all served on three co- extrajudicial source result in an cases. already defendants’ We have estab- opinion on merits on some basis lished circuit judge’s decision to sen- judge other than what the from learned tence did not error Page constitute result- participation in the case. ing prejudice from undue personal or bias. ¶ 33, Id. (citing N.W.2d In re juror While it is true that a would have C.N.H., (Mo.Ct.App. S.W.2d precluded been in all serving three .from 1999)). definitions, these upon Based we cases co-defendants’ under SDCL 23A-20- rejected co-defendant argument Hoadle/s 13.1(17), no such disqualifying rule for judge the circuit fair unable to be judges under exists South Dakota law or impartial during his trial because judge previously opinions had the United Piper Supreme sentenced States ¶¶ Page. Id. 31-34. Court. has failed to the circuit show judge’s him decision sentence was the Similarly, we do not be result passion, prejudice, other presented any lieve has evidence constitute a legitimate basis on which to factor. arbitrary directly 6. We argument con- address of Issue 5. cerning mitigation evidence’in our discussion crime violence as defined in subdivi- 23A-27A-1 Whether SDCL 22-1-2(9); sufficiently limit the class sion

fails to eli- persons who be deemed by the The defendant defendant’s penalty. gible the for knowingly great a risk of act created in person more than one a death to Page next asserts SDCL of or by weapon means a public place sufficiently the limit fails 23A-27A-1 normally hazard- device which would for the death eligible of defendants class person; lives of more than one ous the statutory Dakota’s under South penalty (3) committed the Eighth the The of in violation scheme offense defendant or anoth- believes Amendments. Fourteenth of for benefit defendant er, class, purpose receiving money limiting than SDCL that rather for of value; “place thing monetary all first- functions or other 23A-27A-1 of in degree peril murder defendants (4) the of- The defendant committed claim is based As this death sentence.” officer, judi- judicial a fense on former constitutionality of challenge a to the upon officer, prosecutor, prose- or cial former v. statute, novo. State a our review is de prosecutor, cutor while such former ¶ 102, 2, Asmussen, 2003 SD officer, ju- judicial or prosecutor, former 725, 728. per- in the engaged dicial officer was person’s formance of such official duties To constitutional pass major a of motivation part or where muster, statutory penalty a state’s death for offense came from the official dis “must the sentencer’s scheme channel officer, judicial former actions of such objective standards!.]” clear cretion officer, judicial former prosecutor, or ¶ Rhines, N.W.2d at prosecutor; Georgia, 446 U.S. (quoting Godfrey (5) 1759, 1764-65, 420, 428, The defendant caused or directed 100 S.Ct. (1980) (Stewart, J., murder plurality)). another to commit or committed L.Ed.2d 398 statutory agent an of accomplished employee This is when the murder as or an- the class of “genuinely person; narrowfe] scheme other persons eligible penalty” for the death (6) outrageously The or offense unconstitutionally vague upon is not based vile, horrible, wantonly or inhuman in (citing Stephens, factors. Zant v. Id. torture, involved depravity of 462 U.S. S.Ct. mind, aggravated battery an or (1983); L.Ed.2d v. Cali Tuilaepa vile, Any wantonly murder is victim. fornia, 512 U.S. S.Ct. horrible, if and inhuman the victim is (1994)). 2635, 129L.Ed.2d 750 thirteen of years age; less than (7) against offense a The was committed In order for a sentencer officer, of employee law enforcement a imposing to consider the death in institution, firefighter or corrections Dakota, following aggra South one of the performance in engaged while of vating listed 23A- circumstances duties; person’s such official beyond 27A-1 must be found reasonable (8) by per- The offense was committed doubt: from, in, escaped son or who has (1)The by per- offense committed custody lawful a law enforcement offi- for prior son with a record of conviction confinement; or place cer lawful felony, a Class A or Class B or the was committed offense of murder was committed offense with, interfering or person felony purpose avoiding, has a for a who conviction preventing a custody arrest or finding versible error in the three aggrava- laioful place confinement, ting factors set out in the statute. SDCL of lawful another; or or 23A-27A-1(6) provides: (10) The offense was committed The offense was outrageously or wan- course of manufacturing, distributing, or vile, horrible, tonly or inhuman in that it dispensing substances listed Sched- torture, mind, involved depravity I § ules and II violation of 22-42-2. aggravated battery to the victim. added). (emphasis have previously We added). (emphasis Page points to our de- held that the aggravating factors under I, cision Rhines 1996 SD 548 N.W.2d SDCL 23A-27A-1 are constitutional. 415, I, 60, and Moeller 1996 SD 548 ¶¶ I, 55, 74-76, Rhines 1996 SD 548 465, N.W.2d as evidence that this statute is at (noting N.W.2d 437 Supreme unconstitutionally vague. employ We upheld Court a virtually statutory identical de novo standard of review to this claim. in Gregg 153, scheme v. Georgia, 428 U.S. ¶ Asmussen, 102, 2, 2003 SD 2909, (1976)). 96 S.Ct. 49 L.Ed.2d 859 In at 728. ¶ II, 122, 18, Moeller 2000 SD 176 n. 616 Under the Eighth and 18, N.W.2d at 465 n. we held this issue to Amendments, Fourteenth state statutory be sufficiently resolved previous our schemes must not “cause the death penalty opinions and declined to address the issue. wantonly be and freakishly imposed,” case, In this the circuit court found that and must applied be “in a manner that the aggravating factors listed SDCL avoids the arbitrary capricious and inflic (9) 23A-27A-1(3), (6), applied and I, tion of the penalty.” death Rhines 1996 Page’s convictions. have previously We ¶55, 138, SD 548 (citing N.W.2d 447 upheld impositions of the penalty 764, Lewis v. Jeffers, 774, 497 U.S. 110 upon based specific these aggravating fac- 3092, 3099, (1990) S.Ct. 111 ¶ L.Ed.2d I, 606 55, 181, tors in Rhines 1996 SD 548 quoting Godfrey, 428, and 446 U.S. at N.W.2d at 455 100 (affirming sentence of death 23A-27A-1(3) 1764-65, 398). (9) S.Ct. at where 64 SDCL L.Ed.2d were beyond doubt), found order to accomplish reasonable these constitutional ¶¶ II, 122, Moeller mandates, 2000 SD 616 penalty state death statutes N.W.2d at (upholding 450-55 imposition of must “genuinely narrow the class” of de the death where SDCL 23A-27A- fendants and the “aggravating circum 1(6) proved beyond a reasonable may not unconstitutionally stance[s] doubt). Today, again we once uphold the ¶ Zant, vague.” Id. (citing 139 462 U.S. at constitutionality of SDCL 23A-27A-1. 877, 2742, S.Ct. 77 L.Ed.2d 235 and Tuilaepa, 512 U.S. at 114 S.Ct. at

[¶23.] Whether the circuit court 750). 2635, 129 L.Ed.2d A statute is un vague utilized a ag- and overbroad constitutionally vague juries if it leaves gravating factor when it determined reviewing “open-ended courts with eligible for the death they discretion” in “what must find to im penalty. pose penalty.” the death Id. (citing May [¶24.] The circuit court deter 356, 361-62, nard v. Cartwright, 486 U.S. mined that the aggravating circumstances 1853, 1858, 108 S.Ct. 100 L.Ed.2d 372 23A-27A-1(3), (9) (6), listed SDCL (1988)). present beyond were reasonable doubt I, case. Rhines I and Moeller we contends SDCL 23A- 27A-1(6) unconstitutionally is held vague, and is little doubt that lan- “[t]here therefore the circuit court 23A-27A-1(6), itself, committed guage re- of SDCL is ¶55, 144, ute not narrow the construc- 1996 SD itself

vague overbroad.” ¶ 448; 1996 SD tion of the factor. 548 N.W.2d at however, recognized, We at 491. N.W.2d U.S. S.Ct. court “further defines and that if a trial added), over- (emphasis L.Ed.2d 511 vague and over- otherwise limits those grounds by Ring ruled on other Ari- adequate provide so broad terms zona, 584, 122 S.Ct. 536 U.S. sentencer, then constitu- guidance to (2002). Walton, Here, as in L.Ed.2d 556 are satisfied.” Id. requirements tional court, a jury, imposed circuit the death I, (quoting Rhines Thus, Page. operative our penalty upon 449). Accordingly, opinion our N.W.2d at has suffi- inquiry is whether this Court upheld imposition I of the death in Moeller ciently narrowing interpretations provided part on SDCL 23A-27A- penalty based factors found 1(6) ade- provided the trial court because 23A-27A-19(6). guidance quate the form of We conclude that ¶ 117, limiting Id. instructions. adequate provided guidance Court has N.W.2d at 492. through Dakota circuit courts our South case, Page In this accurately [¶ 27.] interpretations of narrowing 23A- SDCL court did points out that the circuit not 27A-1(6). I, 55, SD Rhines 1996 any jury specifically articulate instructions ¶¶ 161-64, 452, again 548 at N.W.2d its limiting application definitions in of ¶¶ II, 122, 112-16, Moeller SD 23A-27A-1(6), fact SDCL but this alone 453-54, N.W.2d at and ap we discussed not entitle to relief based on a Page does proved narrowing regard instructions vagueness. Supreme claim of As the aggravating the factor “torture.” We pronounced Court in Walton v. Arizona: further approved limiting the trial court’s sentencer, jury final it When a is the is concerning “depravity instructions jurors essential that in- properly the I, mind” in Moeller 1996 SD regarding all facets of the sen- structed 492-93, at after the noting N.W.2d Su tencing process. enough It is not preme previously had Court validated instruct the in the bare terms Walton, similar instruction in 497 U.S. at aggravating circumstance that is uncon- 655, at 111 L.Ed.2d 511 110 S.Ct. stitutionally vague its face. That is omitted). (citation Limiting instructions holdings import Maynard of our battery” similarly for “aggravated were Godfrey. logic But those ¶¶ I, upheld in Moeller 1996 SD place cases no in the has context of 118-20, 492-93, at N.W.2d af judge. a trial Trial II, opinion firmed our in Moeller judges presumed to are know the law ¶¶ SD at N.W.2d 454-55. and to it in apply making their decisions. presume As we the circuit court was famil If Supreme the Arizona Court has nar- decisions, 4), (supra iar with these note it “especially rowed the definition of the apply aggrava was not error it to heinous, or depraved” cruel aggravating 23A-27A-1(6) circumstance, ting found factors in SDCL presume we that Arizona trial judges applying specifically announcing are the narrower without which nar rowing applied.7 definition. It is irrelevant that the it stat- instructions See So- 415; I, presumption particularly strong 7. This is N.W.2d Moeller 1996 here, judge 465; II, given the fact that circuit SD 548 N.W.2d and Moeller participated during aas member of this Court SD decisions. I, its formulation and issuance the Rhmes Florida, 527, 536-37, 112 specific 504 U.S. intent to kill Poage chor for his 2114, 2121-22, 119 L.Ed.2d 326 S.Ct. property, and because he thought famil- judge a trial (presuming group would leave the victim Hig- alive at supreme the state authori- iar with court’s gins Gulch. vague of a aggravating tative construction Page’s argument [¶ 33.] is without Walton, factor); 653, 110 497 U.S. at S.Ct. clearly merit. The record supports the 3057, 111 trial (presuming L.Ed.2d 511 circuit court’s determination applying a definition

judges are narrower Poage knew was to be killed after the court). by the supreme as articulated state group Higgins went to Gulch. en- vague- for relief upon claim based gaged in a conversation with con- Piper 23A-27A-1(6) challenge to ness SDCL cerning way to kill Poage “best” while fails. group was still the house in town. When a suggestion was raised slit 4. Whether there was insuffi- throat, Poage’s Page objected solely be- cient evidence in the record from cause get he did want to blood in the the circuit have which court could fact, Page, house. Piper, Hoadley- reasonably determined specifically took victim to Higgins proving met its burden of they Gulch because knew remote factors defined . (9). 23A-27A-K3), (6), people area where few went. Additionally, Page turn participated We now conten- there tion that was insufficient evidence in taking Poage’s property both during for to the record the circuit court find killing Page ordeal and after the victim. beyond aggra- a reasonable doubt that five began by attack on Poage pointing (6) (3), vating factors listed in subsections pistol at him and announcing that (9) of the statute existed. Under group “jacking” him posses- was of his scheme, capital punishment South Dakota murder, participation sions. For his in the in cases where a defendant sen- requests Poage’s stereo, clothes, Page received court, by the tencing judge the circuit vehicle, piece the most valuable of proper- aggrava- that at must determine least one ty by group. taken As the Arizona ting beyond exists factor a reasonable Supreme recently Court observed: in order to impose penal- doubt the death here, killing robbery Where as ty. 23A-27A-6. to SDCL Pursuant place take almost we simultaneously, 23A-27A-12(2), is re- SDCL this Court attempt will not to divine the evolution quired to determine whether the circuit of the defendant’s motive order finding court’s of circum- aggravating when, if, discern or his for harm- reason supported was stances the evidence. ing shifted from pecuniary the victim gain personal “amusement” or some 23A-27A-K3) a. SDCL non-pecuniary speculative other drive. 23A-27A-K3) 32.] SDCL de [¶ Canez, State v. Ariz. 42 P.3d aggravating fines one circumstance as fol (2002) finding a trial court’s (upholding “The defendant the of lows: committed statutory aggravating of .a circumstance fense for the benefit of the or defendant that “the committed the offense another, purpose receiving for the of mon any- receipt ... of the of expectation ey other thing monetary or of value.” value”) thing pecuniary (citing of Page argues finding the circuit court’s Medina, Ariz. 975 P.2d aggravating supported factor was not Rienhardt, by the because he not have State v. (quoting evidence did (1997))). Sochor, 536-37, at See 504 U.S. pretation. P.2d Ariz. support 119 L.Ed.2d 326. ample evidence contains S.Ct. record aggrava- finding of the court’s the circuit interpretation Under this [¶39.] 23A-27A-1(3). in SDCL circumstance ting “torture,” Page’s challenge to suffi 23A-27A-1(6) b. SDCL 35.] [¶ fail. Page must ciency of evidence killing methods of debated relative further found The circuit court victim, in front the conscious Poage out circumstances set aggravating that the 23A-27A-1(6) Page present including slitting be- his throat. forced were in SDCL The relevant and then yond Poage reasonable doubt. to lie the snow kicked 23A-27A-1(6) provides: portion SDCL body. on of his naked top more snow wantonly outrageously offense escape “The Poage attempted save When horrible, it in- or inhuman in that vile, life, ran and forced him Page him down his mind, torture, or an depravity of volved admission, icy By into the creek. his own battery to the victim.” aggravated in the Page kicked the victim head so existed insufficient evidence argues that many times and with such force that circum- finding aggravating of the for a Taking Poage’s own made his foot sore. he “did this statute because stances under arms, in his first to head he Poage to die” and because plan Poage the victim. asked him stab When vari- concern for the victim” “displayed told you doing?” Page are him to “What analysis of explained As in our ous times. “just plunged his knife sit there” and then itself, is, 23A-27A-1 Issue way Poage’s neck. Page all into however, decisions, previous vague. Our jokes made about the Piper chuckled when guidance concerning accept- provided have pain enduring. the victim was amount fac- interpretations able heavy Finally, Page dropped several rocks in the statute. contained tors Poage’s finally skull the victim before icy in the creek. These events expired “Torture” i. definition clearly support circuit court’s determi opinion in Rhines I ob- Our 38.] [¶ Page pain, ago that inflicted severe nation acceptable interpretation of served ny, anguish upon Poage before mur 23A-27A-1(6) as used “torture” dering him. “(1) the unneces- included two elements: pain, sary infliction of severe and wanton mind” “Depravity ii of to anguish; the intent agony, or battery” “aggravated definitions pain, agony, anguish.” inflict or such II, upheld Moeller we trial ¶ 161, at 452. See also SD 548 N.W.2d narrowing “depravity instruction of court’s ¶ II, 122, 115, 616 N.W.2d Moeller 2000 SD that the requiring finding mind” de- of “tor- (reaffirming at of this definition to acted with “indifference the life fendant ture”). interpretation purpose The of this suffering of victim ... [with] or death- pool is to from the “eliminatfe] immoral corrupt, perverted or state of to murderers intended eligible those who part mind on the of the [defendant instantly or painlessly kill victims or their required accomplish of what was excess that was only pain who intended cause ¶¶ 103-11, murder.” 2000 SD II, 2000 SD incidental to death.” Moeller I, ¶ at 452-53. See Moeller 1996 SD N.W.2d (citing at 454 N.W.2d ¶ 118, Similar- 492-93. I, Rhines 1996 SD 548 N.W.2d at 452). “aggra- ly, approved we an instruction above, presume As noted we findings battery” required inter- of: circuit court was familiar with this vated (1) the infliction of physical pose serious of avoiding, with, interfering or pre- victim, upon

abuse by depriving venting a lawful arrest or custody in a her of a body, by member her confinement, place of lawful of the defen- rendering a body member of her dant or Page argues another[.]” that the useless, by seriously or disfiguring evidence is insufficient to establish that he body part her or a body; her participating in murdering Poage in order (2) the defendant ... specific had the to eliminate him Rather, as a witness. he

intention, design, purpose or of mali- only contends he participated in killing ciously inflicting unnecessary pain to Poage at the direction of co-defendant Pip- ... implies the victim [which] suffer- er. ing in required excess of what was assertion is without mer- accomplish the murder. By Page’s admission, it. own the group ¶¶ II, 117-20,

Moeller Poage took Higgins Gulch specifically I, N.W.2d 454-55. See Moeller 1996 SD because it was a secluded area where few ¶60, 115, 548 N.W.2d at 492. We assume people ever went. group killed Poage the circuit court was aware of and followed gulch in the and then left body his in the narrowing interpretations. these See So remote Poage area. Page knew and would chor, 504 U.S. at 112 S.Ct. at have been easily able to identify Page as 2121-22, 119 L.Ed.2d 326. attackers, one of his but his murder left no In light of these limiting [¶42.] witness to the crime. The transporting of interpretations, reject Page’s we sufficien robbery victim to a remote area in order cy arguments. of the evidence Page made accomplish his can hardly murder Poage beer, drink a pills, mixture of and understood anything other than a hydrochloric acid. Page Poage kicked in means of destroying hiding evidence of the head numerous great times with force a crime. The record contains more than gulch. at the On a late winter’s night, sufficient to support the circuit evidence. Page forced the victim to lie naked in the finding beyond court’s a reasonable doubt snow an ice-cold creek for an ex conduct an aggravating period tended time. talked to the circumstance as defined SDCL 23A- victim as he stabbed him in the throat. 27A-1(9). Finally, Page dropped heavy numerous stones on Poage’s head before the victim 5. Whether circuit court died. did all of these things over the deprived Page of an individualized span hours, of a few despite Poage’s cries sentencing hearing in violation of pain of and pleas mercy. for Viewing this Eighth and Fourteenth Amend- light evidence in the most favorable to ments. sentence, we believe there was am next asserts that the cir- ple support for the circuit court’s determi cuit court unconstitutionally deprived him nation that Page acted with a depraved of an sentencing mind individualized committing hearing while be- aggravated bat tery upon cause it Poage. adequately failed to take into ac- mitigation count the present- evidence he 23A-27A-K9) c. SDCL ed. alleges also the circuit court correctly failed to The circuit evaluate the mitigation court also de termined that an aggravating Essentially, Page evidence. circumstance believes that 23A-27A-1(9): existed as defined in SDCL the evidence in mitigation presented he “The offense was pur- committed for the was so compelling judge that no could have

758 Lockett). Additionally, death in his decision in imposed penalty rationally 367, v. 486 108 Maryland, Mills U.S. S.Ct. ease. 1860, (1988), and McKoy 100 L.Ed.2d 384 for a In order 48.] [¶ Carolina, 433, 494 110 v. North U.S. S.Ct. capital punishment eligible to become 1227, (1990), Supreme 369 108 L.Ed.2d Dakota, aggrava one the ten in South penalty struck down those death Court provided in SDCL ting circumstances juries required to consider schemes a rea proved beyond 23A-27A-1 must be only mitigating those factors found unani- Pursuant to 23A- doubt. SDCL sonable Banks, v. 542 mously. Beard U.S. See 27A-2, all cases which the death “[i]n 2509-10, 406, 410, 2504, 124 159 S.Ct. may imposed,” presentence be penalty that Mills an- (holding L.Ed.2d 494 hearing required is at which “all relevant rule of nounced new constitutional law evidence, any mitigating ... cir including applied not nevertheless be ret- heard, (emphasis must be cumstances” roactively). added). con permits jury “The to law circumstances, any but mitigating sider recognized have [¶ 50.] We impose any proof standard of does applied the rationale Lockett its I, mitigation.” 1996 SD regarding Rhines progeny saying is that the imperative “[i]t ¶ 78, 55, (citing at 437 N.W.2d permitted weigh all relevant 2). 23A-27A-1 and evidence, and mitigating any attempt Court has issued Supreme limit of such evidence is re consideration necessity opinions stressing several I, jected by this Court.” Moeller SD sentencing in cases. capital individualized (emphasis N.W.2d at 494 Ohio, v. Court Supreme Lockett ¶¶ added). I, 55, See Rhines 80- held that individualized 82, recog at 437-38. We have N.W.2d constitutionally re- cases is nized, however, that South Dakota law im quired Eighth under the and Fourteenth no poses specific proof standard of re 586, 606, 98 S.Ct. Amendments. 438 U.S. Weber, gard mitigation. Rhines v. (1978). 2954, 2966, 57 Based L.Ed.2d ¶19, SD n. 312 n. 9 mandate, upon this constitutional (Rhines II) (citing SDCL 23A-27A-1 and juries capital Lockett Court held 2). I, acknowledged: In Rhines we precluded cases must from consid- “not be rejected We the notion that “a have factor, ering, mitigating any aspect specific balancing mitigating method for any a defendant’s character record factors in a sen- offense that circumstances tencing constitutionally proceeding is re- proffers the defendant as a for a basis quired.” Lynaugh, Franklin v. 487 U.S. sentence less than death.” 438 U.S. at 108 S.Ct. 98 S.Ct. at 57 L.Ed.2d 973. (1988). Equally L.Ed.2d set- Oklahoma, Eddings went the Court corollary tled is the that the Constitu- on to state that it would be an error of law tion, require does not ascribe for a to refuse to consider sentencer factors, any specific weight particular mitigating relevant proffered evidence aggravation mitigation, either or 113-14, 104, capital 455 defendant. U.S. considered the sentencer. (1982) 869, 876-77, 71 1 102 S.Ct. L.Ed.2d ¶ 82, 55, (quot- at 1996 SD 548 N.W.2d 438 “(holding that a sentencer’s to take refusal Alabama, 504, 512, ing Harris v. 513 U.S. year into de- capital account a sixteen old 1035, 115 L.Ed.2d family history” fendant’s and “se- S.Ct. difficult (1995)). addition, vere violated its In we have also held emotional disturbance” Dakota require “South law does not weigh Page’s mitigating against evidence weighing of aggravating particularly circumstances heinous aggravating cir- against mitigating Although factors. it cumstances found in this case. See ¶ II, is free to mitigating consider all cir- 19, 53, Rhines 2000 SD 608 N.W.2d at cumstances, they only need find one statu- 314. The fact that the court imposed the tory aggravating beyond factor a reason- death penalty does not mean ig- it able to impose penalty.” doubt the death nored Page’s evidence mitigation— ¶ II, Rhines 2000 SD at permits “[t]he law mercy but does not ¶¶ I, (citing 78-82, Rhines 1996 SD I, require it.” Rhines 453). 437-38, 548 N.W.2d at N.W.2d 455. The record does not support Page’s argument that he was de- required by [¶ 51.] As the Feder prived of sentencing. individualized law, al Constitution and South Dakota circuit court allowed to offer an ex [¶ 53.] 6. Whether ap- selective tensive amount of in mitigation. evidence plication of South Dakota’s manda- findings its of fact and conclusions of tory capital procedures sentencing law, the circuit court wrote that it “[gave] is unconstitutional. due consideration to the mitigating circum Although Page [¶ 54.] argued this stances” issue presented by Page. The court Weber, before our ruling in Moeller v. noted that had called nineteen wit (Moeller III), SD N.W.2d nesses on his behalf our sentencing decision in that fully case hearing, each of resolved the which the circuit judge III, question. identical named from the bench. Moeller At the SD ¶¶ hearing, Thus, the circuit 689 N.W.2d at court 14-18. acknowledged we mitigating need not reexamine here. circumstances accord case, III, saying: holding with our in Moeller Page did not suffer an unconstitutional application

I’ve considered the evidence in mitiga- of South Dakota’s sentencing proce tion. I’ve considered young age your dures. your background. Your early years must have living been a hell. peo- Most Whether death sen- ple treat their pets better than your grossly tence disproportionate parents treated their kids. penalty imposed to the in similar It’s apparent your also from background considering cases both the crime point there was a in time when and the defendant. people professional people offered In every help care, case where the the form of foster group care, treatment, imposed, is this Court psychological required is psychiat- ric to conduct counseling. independent Some of these review of the people your have testified on sentence. SDCL behalf. 23A-27A-9. We must determine: Despite this mitigating evi- (1) Whether the sentence of death was dence, however, the circuit court believed imposed under the influence of pas- specific of Page’s circumstances case sion, prejudice, any or other arbi- justified imposition of the death penal- factor; trary ty. As detailed analysis under our in Is- sue the circuit court determined. that supports Whether the evidence several aggravating present factors were jury’s judge’s finding of a statuto- in Page’s case. The circuit court ry aggravating was not circumstance as enu- required to utilize specific 23A-27A-1; § formula to merated in pur- cases death conclude that similar for

(3) the of is We sentence Whether 23A-27A-12(3) are those poses of SDCL disproportionate or excessive cases, capital sentencing pro- in cases which in similar imposed penalty conducted, ceeding actually was whether the crime and the considering both life or death. imposed the sentence defendant. re- proportionality “Because the aim of 23A-27A-12; II, 2000 Moeller SD SDCL capital is to ascertain what other view ¶ 462-63; at 616 N.W.2d Rhines with sentencing authorities have done ¶ 180, I, at 454- 548 N.W.2d 1996 SD offenses, only murder capital similar 55. ... that could be deemed similar cases First, must determine we [¶ 57.] in which of the imposition are those Page’s of was im- sentence death whether penalty properly before passion, prej- influence of posed under the authority for sentencing determination.” arbitrary udice, factor. any other We ¶55, 185, at 455-56 1996 SD N.W.2d already rejected Page’s claim that it have State, Tichnell v. 297 Md. (quoting for the circuit court to sentence was error (citation omitted)). 1,15-16 A.2d Piper co-defendant him after sentenced rejected holding, the defen- With we have also determined that to death. We that “the argument pool dant’s similar adequately the circuit court considered en- proportionality cases review should by Page mitigation presented evidence cases that compass pros- all homicide were hearing. We conclude prosecuted or could been un- ecuted have extenuating circumstance influenced no capital punishment the State’s current der and decline to reverse his Page’s sentence ¶184, scheme.” Id. 548 N.W.2d at grounds. of these sentence opinion rejected Our II a simi- Moeller Next, we must determine ¶ 122, 167, argument. lar 2000 SD supported the circuit whether evidence Accordingly, at 463. we decline to N.W.2d alleged aggravating finding court’s Page’s proper address contention that the beyond case rea- circumstances universe of similar cases is all convictions After rejecting Page’s doubt. con- sonable for Class A felonies in South Dakota. challenges aggravating stitutional Instead, we consider 23A-27A-1, set out we factors in a only capital those cases that resulted analysis our concluded under Issue sentencing proceeding. Since the 1979 en support evidence existed to ample actment South Dakota’s current aggravating findings circuit court’s scheme, punishment capital sen thirteen 23A-27A-1(3), (6), listed in SDCL factors tencing proceedings, including those of (9). Thus, Page is entitled to no relief Piper and his co-defendants upon any challenging based of his theories Hoadley, have been conducted. In seven factors in his evidence of proceedings, of those declined case. impose the death and sentenced Third, we must address imprisonment. the defendant to life Our disproportion sentence is whether I summarized opinion Rhines six ¶¶ ate to sentences in similar compared when these cases. See 1996 SD cases, considering II, Dakota both the 456-57; South see 548 N.W.2d also Moeller and the defendant. crime SDCL 23A- 2000 SD 463- shall in provides (taking judicial 27A-13 court “[t]he notice of the case sum I). in its decision a reference to those clude maries set out Rhines Co-defen Hoadley’s represents similar cases which it took into consider dant conviction I, Hoadley, ation.” Rhines we stated: seventh case.

761 I, 55, 1996 During along 249. Rhines SD 548 time Page, N.W.2d 415, I, 60, Moeller 1996 SD 548 co-defendants, N.W.2d with one of his rendered Anderson, 465 N.W.2d and State v. 2003 Poage helpless by tying him up with (Anderson 65, II), 664 N.W.2d 48 the SD extension Page cord. admitted to deliver- imposed the death sentence. We take ing multiple “full football kicks” Poage’s judicial notice of the summaries of each of boots, many skull with his so times that his I, cases as set forth in these Rhines 1996 Page own foot was sore. forced the victim ¶ (summar- 55, 196, at SD 548 N.W.2d 456 to drink a hydrochloric acid concoction I) II, izing Moeller and Moeller SD while up tied and unable to Page move. ¶¶ (sum- at 616 N.W.2d once, stabbed the victim at forcing least I, marizing I Rhines Anderson and his knife as far he as could into Poage’s II).8 judicial Anderson We take further neck. of co-defendant case. Piper’s notice Directly in front of the con- Piper, v. SD 709 N.W.2d 783. victim, Page scious discussed the “best” comparing Page’s [¶ 61.] After way to murder Poage, including slitting his of sentence death with the other cases in Page throat. completely forced almost proportionality pool, we conclude his Poage nude freezing to endure tempera- was not disproportionate sentence consid period tures for an extended of time. Like First, ering criminal actions. we Rhines, Page taunted the victim through- only note the other case that involved the Page out the ordeal. “chuckled” at the of presence many aggravating factors amount of victim pain experienc- found in in as were case was defen ing. stabbing Poage, Page After allowed 1979, only dant Rhine’s case. Since defen victim icy to wash himself off in the Moeller, Rhines, dants and Anderson have hope in stream the false he would al- brutality approached the sheer exhibited warmth, lowed in to bleed to death Page,9 and all three defendants re Page rather than in Finally, the cold. the death penalty. ceived dropped heavy several stones on the vic- ample 62.] There is evidence in Page tim’s head until concluded he was Page subjected Poage'to injury case that terribly Poage dead. suffered in pain and far what excess of was re- Page. hands of quired accomplish his murder. The disparity in [¶ 65.] “The suffer present amount torture this case was ing important endured is an victims unprecedented Although South Dakota. legitimate evaluating when consideration factor torture was Rhines, Moeller, proportionality of a death in the sentence.” found cases of Anderson, I, Rhines the evidence in this case 1996 SD shows brutality tortured for at Based on sheer Poage least three 458. upon and one-half hours was satis- torture inflicted the victim in this before case, Poage fied the imposition dead. we conclude supporting pen- pertaining 8. facts Anderson's death N.W.2d 48. Additional facts II, alty kidnapping Streyle sentence are reviewed Moeller to his conviction Anderson, ¶¶ 169-171, are SD SD N.W.2d at contained in State 464. However, (AndersonI). due to suicide N.W.2d 644 Anderson's the full facts that resulted his conviction for ¶¶1, kidnapping Piper, analysis murder Larisa Duman- See the 2006 SD 40- sky, rape Piper Streyle separate analysis and murder of for a N.W.2d at II, Piper's contained are not in Anderson co-defendant acts. . penalty that the was un- ex- contention death upon Page was neither penalty death disproportionate.10 constitutionally imposed. Page nor also cessive relies argue his case was unconstitu- Ring to Page’s sen- Whether 8. 66.] [¶ the circuit tionally conducted because unconstitutionally im- tence court, jury, than a made the factual rather indictment failed to posed when the proved that the State had findings any aggravating allege circum- aggravating circumstances be- existence of stances. yond a reasonable doubt.11 III, we with In Moeller dealt [¶ 67.] that to and held failure issue this identical asserts that Specifically, Page in in an circumstances allege aggravating unconstitutional chapter SDCL 23A-27A is under is not unconstitutional dictment provide not defendants because does 2428, 584, 122 S.Ct. Ring, 536 U.S. capital who to a offense with plead guilty holding in Since our Moeller L.Ed.2d 556. aggravating an to have the opportunity III, have con state courts likewise other jury opposed found a as circumstances aggravating factors need not that cluded a case judge. Although this in a indictment. See Bus pleaded state be Page opportunity offered circuit court Wall, A.2d 522-23 tamante sentencing hearing in front of a have a (R.I.2005) re (holding no constitutional jury, option which declined that factors be set quirement aggravating indictment); specifically exercise and instead asked for McKaney grand jury forth in County Maricopa, him, Page argues ex rel v. Foreman court to sentence of (2004) (no Ariz. 100 P.3d authority circuit court did have the aggravating that factors requirement present under Dakota law to him South indictment). III, As Moeller pleaded option. this of aggravating formal notice the State’s provided here sufficient notice factors agree with [¶ 71.] We under both our federal and state argument Ring, under sen constitutions. tencing scheme would be unconstitutional pleaded if it who prevented defendant 9. death sen- Whether having aggravating cir guilty alleged from unconstitutionally tence was im- jury. found See Ring, cumstances posed when 23A-27A-6 failed jury S.Ct. at allow a determination of the U.S. upon appropriate penalty plea believe, however, 556. do not L.Ed.2d We guilty court to the circuit impediment statutory there is pleads preventing guilty a defendant who rejected Having Page’s first in a from upon Ring, we now turn to his Dakota state court exer- claim based South dispropor- only options two the sentence is not The before such instances 10. Milk, to the crime.” State v. 2000 SD tionate prison possi- circuit court were life in without ¶ 18, 607 N.W.2d 20. case, bility parole or death. In either bar- ing clemency, executive would analysis upon of this issue is based Thus, society. into not ever be released back analysis of the same issue raised in Court’s major is not the issue of rehabilitation III, 2004 SD 689 N.W.2d 1. Moeller "Clearly are concern. there some acts herein, penalty Given the seriousness of the magnitude they justify such a criminal analysis applica- we the Moeller III re-state perpetra- [or death] life sentence whether the opinion. Piper, ble See also to this 1,¶¶ 47-68, capable 709 N.W.2d at 803-10. tor is rehabilitation or not. cising right his to a beyond a reasonable doubt. Unless at phase. least one statutory § circumstances enumerated in 23A- The South Dakota sentencing found, 27A-1 is so the penalty death procedural scheme involves two statutes: shall not be imposed. SDCL 23A-27A-2 and SDCL 23A-27A-6. 23A-27A-2,

SDCL governs pro- which the added). (emphasis cedure to in capital be followed cases [¶ We have long recognized 73.] jury where a sentencing makes the deter- general the that rule interpreting “[w]hen mination, requires the court to conduct a presume statute we legislature the in presentencing hearing jury. before a statute, tended to enact a valid and where SDCL provides: 23A-27A-2 ‘a statute can be construed so as not to In all in cases which the constitution,’ violate the we adopt will such may imposed be by which are tried Martin, a construction.” State v. 2003 SD jury, upon a return of a verdict of 300 (quoting guilty by jury, the the court shall re- Allison, ¶25, sume the trial and conduct a presen- 2). Therefore, N.W.2d we interpret hearing jury. tence before the Such SDCL 23A-27A-2 and chapter SDCL hearing shall be conducted to hear addi- general 23A-27 in providing as for a sen tional evidence in mitigation aggra- tencing hearing jury wherein a will deter punishment. vation of At hearing such mine presence or alleged absence of jury shall receive all relevant evi- aggravating factors when a defendant

dence, including: pleads guilty to a capital offense. We (1) supporting any Evidence of the reject must as unconstitutional read aggravating circumstances listed ing of chapter SDCL 23A-27A that would 23A-27A-1; § under prevent a capital defendant having from (2) Testimony regarding impact opportunity to have a sentencing hear on family; crime the victim’s ing jury. before a (3) Any prior juvenile criminal or rec- statutory [¶ 74.] The scheme in SDCL ord of the defendant in- and such chapter regulates 23A-27A the sentencing formation about the defendant’s An procedure. examination of all relevant characteristics, the fi- defendant’s statutes reflects that condition, SDCL 23A-27A-2 nancial and the circum- purport and 6 do not regulate stances of to the right the defendant’s behav- ior as in helpful imposing jury sentencing to in capital cases. There sentence; certainly is no language either statute otherwise, clearly, or states that the All concerning any evidence miti- jury hearing aggravating circumstances gating circumstances. inapplicable is in nonjury cases when a 23A-27A-6, governs which pro- pleaded guilty has cedure to be in capital followed cases Instead, claims. reading correct reflects jury where a trial is waived and the court that the simply speak statutes do not determination, makes the pro- subject right jury of the sentencing. vides: Indeed, purpose of SDCL 23A-27A-2 shall, In nonjury cases the judge after is to procedure describe the to be followed conducting the presentence hearing as 23A-27A-2, by jury,” cases “which are tried provided § designate, writing, the SDCL 23A-27A-6 procedure circumstance or describes the circumstances, any, if which “nonjury he found to be followed in (empha- cases.” regard to the amount without added.) language, law emphasized This

sis controversy[.][§ 6]. jury” tried “which are cases cases,” that these demonstrates accused “nonjury prosecutions the In all criminal “prevent” purport speedy statutes do ... to a right shall have Rather, this em- jury sentencing. right jury impartial trial public demonstrates language phasized the offense is county district which right presume statutes [§ 7]. have committed. alleged to been elsewhere. trial has been determined these purpose of “The obvious Constitu Therefore, Dakota the South an ac guarantee provisions tional is statutes jury. unlike the Arizona a by are to trial It is right statutes the cused Ring, 536 U.S. invalidated that were or withheld right cannot be denied [that] 2428, The 584, 153 L.Ed.2d 556. 122 S.Ct. Thwing, 84 S.D. by the state.” State v. right (1969) (em expressly governed Ring 277, statutes 391, 394, 172 N.W.2d they explicitly jury sentencing added). because And, to scope right of the phasis could consider only judge provided all cases “where It extends to is broad. impose circumstances law.” at common See right such existed 592,122 Id. at S.Ct. a death sentence.12 226, Mitchell, 52 N.W. v. 3 S.D. State contrast, 556. 153 L.Ed.2d (1892). to a right Because the silent on simply Dakota statutes are South existed under the jury capital trial cases jury sentencing. subject right to Con law at the time our Federal common hardly surprising because This silence is dispute is no adopted, there stitution code fail to in our criminal provisions most guar that the Dakota Constitution South jury deny right or to expressly grant today. capital cases right antees that Rather, it provisions the code leave trial. Compiled Laws Dakota Terr. See 1887 to the and federal constitutions state 7489; 7322-7336, 7484, §§ McCall v. Unit regulate specific statutes to implementing (Dakota States, ed Dak 46 N.W. jury trial. right to Terr.1876). guarantee This constitutional [¶ 77.] and federal The state by not implemented two statutes the foundation for has been provide constitutions first, by Page. The SDCL jury implementing Dakota’s stat considered South (Rule 23(a)), right affords the utes. The Sixth Amendment the United 23A-18-1 right contemplated by guarantees jury States Constitution trial all cases jury capital qualific provides trial cases without The statute that: constitutions. VI, jury ation.13 Article section 6 and section aby to be tried shall required “Cases also 7 of the South Dakota Constitution waives a tried unless the defendant so Dakota lan grant right. The South writing orally on the record jury trial guage provides: and the approval with the of the court prosecuting attorney.” Id. remain consent of right by jury

The of trial shall added). it well set- (emphasis Because is extend to all cases at inviolate and shall Sess., Laws, fey Spec. ch. hearing Ariz. Sess. 5th "[t]he 12. The Arizona statutes stated: the court alone. The 1). shall be conducted before § make all factual determina- court alone shall required by prosecutions, constitu- tions this section or the all criminal the accused "In Ring, right speedy public enjoy or this state.” to a tion of the United States shall trial, by impartial jury the State and 122 S.Ct. at an 536 U.S. added) (quoting wherein the crime shall have been (emphasis Ariz. district L.Ed.2d 556 Const, 13-703(C)(2001), amend. VI. § committed[.]” US Stat. Ann. amended Rev. guilt tied that both the and sentencing right. SDCL 23A-45-13 fills the void phases cases are required to be authorizing a trial court “proceed in any by jury,14 tried imple SDCL 23A-18-1 And, lawful manner.” SDCL 23A-18-1 ments constitutional guarantee and af only authorized, but required the cir- firmatively jury that a directs shall be cuit court to jury offer a hearing and sen- Thus, if utilized. even SDCL 23A-27A-2 tencing. As this previously Court has not- explicitly 23A-27A-6 fail to afford the ed, trial courts must use this latter statute right jury sentencing, SDCL 23A-18-1 properly guarantee a defendant’s consti- alleged cures the omission. rights tutional and to “provide effective statute, second SDCL 23A- try manner to the case.” Good- further authorized the circuit man, (S.D.1986). court’s a jury sentencing offer of in this case, however, 23A-45-13, In analyzing case. SDCL Page specifically asked to be sentenced must be reiterated that 23A-27A-2 court, the circuit thereby waiving his con procedural and 23A-27A-6 are statutes right stitutional to have a determine expressly that do not speak right to the alleged whether the aggravating circum Therefore, jury trial.15 in cases like this stances in beyond his case existed a rea where there is statutory prohibition no on sonable doubt. “Even rights fundamental procedural right jury, to a SDCL 23A- Garber, can be waived.” State v. 2004 SD 45-13 authorizes trial proceed court to ¶2, 25, 674 N.W.2d 327 (quoting State any “in provides lawful manner.” It “[i]f ¶7, Henjum, v. no procedure specifically is prescribed by 763). The circuit rule, properly pre court may statute or a court proceed any Page option lawful manner not sented with the exercising inconsistent with this title or with applicable other statute.” right sentencing by his to jury provid a SDCL 23A-45-13. ed South capital punishment Dakota’s statutory appears scheme. It Page that Thus, if accept even we were to right well have waived his a jury to Page’s offered chap- construction of SDCL trial because he could not 23A-27A, afford to have a ter that it does not authorize jury jury case, hear the sentencing following cases a horrendous facts of his guilty plea, provide other statutes apparently that and he might believed that he Ring, 14. See 536 U.S. at 122 S.Ct. at ... statute does not reach certain conduct” (observing 153 L.Ed.2d 556 that criminal”); "[t]he conduct "make[s] [v. Saffle right by jury guaranteed by to trial the Sixth Parks, 484,] 495, 494 U.S. 110 S.Ct. senselessly Amendment would be diminished 1257[,108 (1990)] (rule L.Ed.2d 415 "de encompassed factfinding necessary if it to pro a criminalize[s] class of conduct [or] years, increase a defendant's sentence two imposition punishment hibits] the of ... on factfinding necessary put but not the to him to contrast, particular persons”). class of death”). regulate only rules that the manner deter mining culpability pro the defendant's are dispute Ring right 15. There is no that the Bousley, supra, cedural. See at sentencing by jury procedure. is a matter of S.Ct. 1604[ 828]. 140 L.Ed.2d held, Supreme The United States Court so Summerlin, 348, 353, Schriro v. 542 U.S. explaining: 124 S.Ct. 159 L.Ed.2d procedural A rule is substantive rather than (2004). Schriro went on to hold that range if it alters the of conduct or the class standard,” "judged by Ring right to persons punishes. that the law See Bous States, jury have a determine ley circum- [v. United 523 U.S. at 620- 614] 1604[, 1609-1610, imposing stances in the death "is 118 S.Ct. (1998)] (rule properly procedural.” L.Ed.2d 828 that a classified as Id. "hold[s] trial, Ring guilty to pleaded more treatment before went receive favorable jury deprived sentencing. the circuit court. but Be- Ring cause is limited where a to cases appeal, dissatisfied with 81.] Now [¶ jury deprived requested defendant is of a choice, he this Court invalidate his asks sentencing, guilty hold that authorities jury voluntary sentencing. of a waiver his pleas are if the and waivers valid even though argues even he did not Page sentencing explicitly underlying scheme jury sentencing, he have would want if one, precludes unequivocally the defendant would have wanted jury contends that the from v. receiving been unavailable. sentence. Colwell authority jury State, (2002); court had no offer circuit Nev. 59 P.3d 463 therefore, circuit sentencing, (Ind.2002). State, Moore N.E.2d 46 jury sentencing “illu- judge’s offer of Colwell, example, For the Ne reasoning, sory.” circular con- vada Supreme Court considered this issue illusory that such an offer is insuffi- cludes “Ring applicable concluded is not unconstitutionally cient to overcome an [when], unlike [a case defendant’s] imposed death sentence. Ring, pleads] guilty 'and [the Page is mistaken three re- light jury his trial.” 59 P.3d waive[s] First, above, explained spects. as was Supreme 473. The Nevada Court jury circuit court was authorized offer though reached that conclusion even sentencing phase hearing at the of this framework, statutory Nevada like Ariz assuming capital case. Even that the cir- ona’s,16 unequivocally right eliminated the specific authority cuit court had no to offer sentencing. to a Id.17 Colwell jury sentencing capital a under sen- distinguished Ring Ring pleaded because statutes, tencing SDCL 23A-18-1 and trial, to guilty and went unlike Colwell authorized, explicitly 23A-45-13 and pleaded guilty right who and to waived his jury a required, fact use of unless waived. jury a ultimately trial. Id. ob Colwell Thus, the offer illu- circuit court’s was not served that because the Supreme Court sory. entry guilty “has held that the valid of a Second, if one even were to as- plea in a state criminal involves the court statutory that authority sume there was no waiver of several federal constitutional jury sentencing, to offer the waiver was rights[, a]mong these ... trial right ‘the to Ring analysis still valid because the is by jury’[,] guilty plea Colwell’s included an inapplicable when a defendant waives the express right jury waiver of his trial to a jury right sentencing. to of- While and Id. at (citing Boykin was valid.” 474 authority absolutely fers no for his con- Alabama, v. 395 U.S. 89 S.Ct. trary conclusion, that all courts have con- (1969)). 1709, 1712, L.Ed.2d 274 23 uphold sidered issue such waivers. Supreme [¶ The Indiana Court recognize Ring analy- The courts that the Moore, inapplicable sis is because defendant reached the same 771 conclusion sentencing provided 16. Colwell described the Arizona a The Nevada statute "that when pleads guilty first-degree to defendant murder Ring scheme that was overturned as one in sentence, which, panel and a the State seeks death a adjudication "following jury a aof judges of three district ‘conduct the re- must murder, first-degree guilt defendant’s quired penalty hearing pres- to determine the alone, judge, sitting trial pres- determines aggravating mitigating ence of and circum- aggravating ence or absence of the factors " stances, give accordingly.’ sentence Id. by required imposition Arizona law for 175.558, (citing § 60 469 n. Nev.Rev.Stat. penalty.” P.3d at 469. 59 366, Laws, 8). repealed by § 2003 Nev. c. Moore, States, at 279 (quoting Singer N.E.2d at 49. the Indiana stat v. United utes, Nevada, 783, unequivocally, like those 380 U.S. 85 S.Ct. 13 L.Ed.2d 630 (1965)). unconstitutionally, any pos foreclosed sibility right jury sentencing of a follow out, previously pointed As was Nevertheless, ing plea guilty. Id.18 the law quite is settled that even assuming that Supreme the Indiana Court concluded Page had no statutory right jury to a voluntary plea guilty the defendant’s to hearing sentencing, his decision to waive three counts of murder waived his entitle statutory right pro “nonexistent” “Indiana argue ment ceed with sentencing before the circuit statute violated federal court was a valid waiver of his constitu by depriving state constitutions him of a right jury tional sentencing. See Col jury determination of the cir well, 463; Moore, 59 P.3d 771 N.E.2d 46. cumstances that made him eligible Court, See also v. Superior Sanchez death sentence.” Id. Moore observed Cal.App.4th Cal.Rptr.2d that because the defendant knew that his (2002) (holding Ring, that after a defen him guilty plea deprive would of access to may validly right dant waive his or her jury, right he had forfeited his “have jury have the degree determine the jury recommend to the trial court whether murder); Jackson, People v. 199 Ill.2d imposed or not a death should be 263 Ill.Dec. 769 N.E.2d against” the defendant. Id. (stating “[e]very necessary fact to es It range 86.] must be further observed that tablish the within which a waiver is also valid under United be sentenced is an element of the Supreme authority pri- States Court and a crime and thus falls within the constitu rights or decision of this tional of a trial jury proof Court. United be doubt, Supreme long yond applicable States Court has held that a reasonable made right waiver of the to a is valid even to the process states the due clause of though underlying right waived does the fourteenth amendment. But plead States, ing guilty, not exist. See Patton v. exactly United defendant waives Chandler, rights.”); People U.S. S.Ct. L.Ed. 854 those (1930) 292, 967, (waiving right jury the to a Ill.App.3d com- 254 Ill.Dec. 748 N.E.2d (2001) 685, posed persons) (abrogated of twelve on (stating “[h]aving 690 that Florida, grounds issues, other by, jury Williams v. 399 a trial on all defendant waived 78, 1893, U.S. 90 S.Ct. 26 L.Ed.2d 446 cannot claim that deprived now he was (1970)). 391, Similarly, Thwing, right the jury 84 S.D. to have a determine the upheld dangerousness”); N.W.2d this Court waiver issue of his future (R.I.2002) Edwards, right jury though of a to a trial even the v. 810 A.2d underlying right, alleged right (holding “[b]y waiving jury, to a that a defen trial, court accepted procedure did not exist. This Court did dant the as followed in case, so ability justice, because to waive a consti- this that the trial after find “[t]he right ordinarily tutional does not him carry ing guilty first-degree of the offense of murder, find, right upon opposite with it the to insist the proceed domestic would did, of that right.” Id. she that the circumstance N.W.2d offense, statute, court, judgment 18. “At the time of the the the trial was to the or the 1979), § (Supp. pro- guilty plea, Indiana Code 35-50-2-9 entered on a the court alone shall part, sentencing hearing.’ vided in relevant 'If the defendant was Ind. Code conduct trial, 35-50-2-9(d) 1979).” (em- jury jury (Supp. § convicted of murder in a Id. at 49 sentencing hearing; phasis original). shall reconvene for the if a upon waiver invalidity of his based battery had aggravated of torture doubt”). Page waived the beyond a reasonable Because hypothetical. proven been may not now jury sentencing, he right to also be observed It must unconstitution- the statutes are argue that following settled against argument who to him or someone else applied al as capi to a would shift jurisprudence waiver As jury a sentence. might requested have to control right exclusive tal defendant explained: has Supreme Court In order he or she receives. the sentence sentence, a need defendant to control standing challenge party has [a] jury, presum or merely right waive constitutionality only a insofar statute right, constitutional ably other some own impact on his as it has an adverse not re sentencing. the defendant Should rule, if no general there is rights. As requested from the life sentence ceive application in the defect constitutional court, only appeal he or she then need trial not litigant, to a he does the statute right of the constitutional arguing a denial that it would be standing argue have See expressly had waived. that he or she par- if to third applied unconstitutional Rhoades, Ill.App.3d v. People hypothetical ties in situations.19 (2001). 537, 544 Ill.Dec. 753 N.E.2d County, N.Y. v. County Court Ulster by Page reasoning advanced Because the 140, 154-155, Allen, S.Ct. U.S. when invalidation of sentences requires the (citing Broad 60 L.Ed.2d made, and be appellate argument is this Oklahoma, 601, 610, 93 413 U.S. rick imposed must be cause a life sentence (1973)).20 37 L.Ed.2d 830 a S.Ct. 23A-27A-14 whenever under SDCL rejected claims is invalidated has also such death sentence This Court Court, maneuvering sanc procedural machin hypotheticals. on “Judicial based guarantee tioned would problems for ery should be conserved sentence. right absolute to obtain life imminent, present or which are real intended Legislature could not have are problems on which squandered enacting an absurd result such hypothetical or remote.” Gott abstract 23A-27A-2, 6, and 14. Hegg, 89 S.D. schalk v. (1975) (citation omitted). 640, 643-644 finally not It must be Therefore, determining the constitution argument final third and ed “ statutes, there ‘the mere fact that ality of upon hypothetical this issue is based case[,] apply where to might be sentencing. might he have asked result However, provisions statute] would standing [the to assert Page lacks pie person to a statute recognized that a whom exception has been 19. "A limited broadly speech pro- prohibit constitutionally applied will not be heard for statutes that be excep- by This tected the First Amendment. challenge ground that that statute on the to by overriding justified in- tion has been may conceivably applied unconstitu- removing illegal to the terest in deterrents others, tionally other situations not to Allen, right speech.” of the of free exercise closely princi- the Court. A related before 2223, 155, at at 60 L.Ed.2d U.S. 99 S.Ct. rights personal ple constitutional are is that omitted). (internal citation vicariously. may asserted These not be the fussiness of principles rest on more than Broadrick, 610-611, 93 S.Ct. In 413 U.S. at They un- judges. reflect the conviction that 2915, 830, the United States 37 L.Ed.2d system courts are not der our constitutional why hypothetical Supreme explained Court pass judg- roving assigned commissions to challenges are not allowed: laws, validity of the Nation's ment on govern- Embedded in the traditional rules omitted.) (internal citations princi- ing adjudication is the constitutional violation,] (stating render Ill.Dec. 753 N.E.2d at 544 constitutional does not [a unconstitutional, merely but the [statute] that a should not be able to “[defendant ” in such a case.’ prevents application its right, a sentence he waive receive sub Russell, 89 S.D. City Pierre v. to, jected himself and then contend that (quoting N.W.2d Clark violated”). right reasoning This is Wadden, Co. v. 34 S.D. Implement illogical. fundamentally, More it is at odds (1914)). 149 N.W. Court, with from this cases United acknowledge although to that he has fails Court, Supreme States and other state capital sentencing scheme construed Supreme Courts. way applied that it could be to such to right jury, violate the Amendment Sixth Page’s 10. Whether [¶ 92.] applied not so his case. it was disproportion- grossly sentence was summary, Page argues [¶ 90.] Hoadley’s ate co-defendant life to sentencing stat- the South Dakota sentence. unconstitutional, believing that utes are jury trial at they “prevent” right jury After a sentenced However, sentencing. Page fails to con- Hoadley imprisonment, co-defendant to life Dakota statutes sider two relevant South appeal we remanded first Additionally, provide right. for that proportional- circuit court for an intra-case jury if trial is not allowed right even the ity opinion review as articulated our statutes, Page’s argument on under the Bonner, State v. 1998 SD 577 N.W.2d only unsupported, but is re- is waiver Hoadley, 575. See Supreme futed United States Hoad- (affirming co-defendant N.W.2d Court, Court, and the other State ley’s possibility life sentence without the Supreme that have considered this Courts remand, circuit court held parole). On issue. hearing subsequently entered find- ex- Page, by pleading guilty and ings of fact and conclusions of law affirm- pressly declining the circuit court’s offer ing Page’s Page goes death sentence. be- sentence, empanel jury to consider his yond Eighth proportionality Amendment right challenge jury his waived sen- statutory our analysis and also addresses Therefore, if tencing scheme. even we 23A-27A and chapter under SDCL review capital sentencing statutes as fail- read comparison in a interpretative case law its ing specifically right jury mention the compared culpability of himself fact, if sentencing following plea; even statutory and consti- Hoadley. Since both explicitly “prevent” read them to such we invoked, we tutional reviews are address jury voluntarily sentencing, Page waived each. right. stranger are no to our Waivers procedure jurisprudence. criminal We will propor This Court’s not, authority, any supporting without Bonner, out tionality review as set proposition sanction the remarkable that a from is derived SD right waive the to a Eighth prohibition Amendment’s sentencing, impose the trial court to allow punishment. cruel and unusual against a sentence in accordance with the defen- case, sentence this claims his death wishes, then, to avoid an unfa- dant’s and his unconstitutionally imposed because was sentence, vorable invalidate the waiver on a Hoadley received sentence co-defendant appeal by arguing deprivation a in recognized As we imprisonment. of life right constitutional that the defendant did Rhoades, not want to exercise. See 257 Bonner: comparison resentencing. before “Equal Justice Under such the words

[I]f just lofty than other relevant for more We also consider Law” call factors, vigilance ought upon society our inscription, then such as the effect extremely divergent aroused when type of this of offense. of- imposed are the same sentences (citing Michigan, Id. 17 Harmelin in disparity punishment fense. Gross 957, 1000, 111 S.Ct. U.S. in our institu- confidence public erodes (1991)). L.Ed.2d 836 course, justice[.] equal Of treat- tions of Legislature cap- The sanctioned sentencing in does not mean sense- ment punishment ital for murder when at least a sentence is uniformity, but when less aggravating one circumstance exists. proportion to the so out offense ease, SDCL 23A-27A-1. what others have re- so different from aggravating circuit five cir- court found conduct, the same then decen- ceivedfor above, cumstances.21 As discussed urge us to examine it cy and conscious justifi- sentencing judge ample had factual closely. more determining aggravators cation for those ¶30, 12, 577 N.W.2d at 578-79 present were in this case. added) (internal citation omit- (emphasis case, Page pleaded guilty ted). Thus, if our task is to determine murder, felony degree kidnapping, to first Hoadley sentenced for the Page and were degree robbery, degree burglary, first first conduct, so, and if whether the diver- same grand degree theft. first mur- upon them gent imposed sentences result- felony A der conviction constituted Class punishment. gross disparity ed carrying with the maximum opinion in Since our death, provided procedures that the out- Bonner, employed following we have lined in chapter 23A-27A were fol- principles reviewing the well-established lowed and waived right met. his given of a proportionality sentence: sentencing by jury actively and instead challenge proportionali- assess a [T]o sought sentencing by the circuit court. ty determine whether the sen- we first Hoadley His co-defendant pleaded not appears grossly disproportionate. tence guilty jury but was convicted this, accomplish To we consider the con- Page pleaded same offenses to which involved, past relevant con- duct guilty. Page, Hoadley unlike However duct, Leg- utmost deference to with sought sentencing by jury. jury islature and the court. If found pres- the same factors suggest gross circumstances fail to these Hoadley’s ent case as were found If, disproportionality, our review ends. 23A-27A-1(3), (6), Page’s case: SDCL hand, appears the other the sentence (9). hearing After the relevant evidence grossly disproportionate, may, we in ad- mitigation aggravation, decid- examining the other fac- dition to Solem tors, impose imprisonment upon ed life Hoad- inter-jurisdic- an intra- and conduct ley penalty. rather than For analysis comparison tional to aid our the death his proportionality the circuit court to argument, Page primarily remand to conduct 23A-27A-1(3), aggrava- 21. The circuit court found that five under SDCL in that circuit ting proven beyond beyond circumstances had been court found a reasonable doubt aggra- pecuniary reasonable doubt State. Three the offense was committed for the proven vators were under SDCL 23A-27A- benefit of the defendant and co-defendants. 1(6), torture, aggravator proven in that the offense included de- The fifth under 23A- 27A-1(9), pravity aggravated battery of mind and to the in that the offense was committed aggravator proven Poage victim. as a The fourth in order to eliminate witness.

771 not, penalty con- while another did it has never Hoadley was on the fact relies all co-defendants for crimes to which held that convicted of the same victed fact that the the same offense must receive the guilty and the pleaded Florida, factors Enmund v. the same same sentence. See found 782, 3368, circuit court deter- Hoadley’s case as the 458 102 S.Ct. 73 L.Ed.2d U.S. Arizona, (1982); in his case. present mined were 1140 and Tison v. 481 137, 1676, 95 127 U.S. 107 S.Ct. L.Ed.2d First, we note (1987). any Research has not revealed consistently capital punish held Court has held, supreme state court that has so nor in violation not cruel and unusual ment is authority to such able cite Eighth Amendment or South Indeed, his to this the ma- briefs Court. I, 1996 SD Dakota Constitution. Moeller jority explicitly of states have held the ¶¶ 487-489; 60, concluding it constitu- opposite after ¶ II, 122, n18, 176 616 Moeller 2000 SD tionally for one co-defendant permissible recognize at 465. also “death N.W.2d We penalty to receive the death while another punishment kind of from is a different receives a less severe sentence. See Gav- may imposed be this coun other which State, (Ala.Crim.App. in v. 891 So.2d 907 is of death try” “[t]he 2003) (“There simplistic rule that a is not different from a sentence qualitatively not co-defendant be sentenced long.” however imprisonment, Lankford death when another co-defendant receives Idaho, 110, 125, 21, 125 n. 111 v. 500 U.S. sentence.”) (affirming a lesser death sen- 21, 1723, 114 173 1732 n. L.Ed.2d S.Ct. capital charges against tence dismissal of Florida, 430 U.S. (citing Gardner v. co-defendant) State, (quoting Williams v. 1204, 349, 357, 1197, 51 L.Ed.2d 97 S.Ct. 834, (Ala.Crim.App.1983), 461 So.2d 839 (1977), and v. North Car 393 Woodson (Ala. 461 852 grounds, rev’d on other So.2d olina, 96 S.Ct. 428 U.S. State, 1984)); Taylor v. 808 So.2d (1976)). quali This 49 L.Ed.2d 944 (“[W]hile our (Ala.Crim.App.2000) tative difference between punish- obliges statute us to consider the Hoadley’s life sentence does sentence any accomplices, it does given ment dispropor se per not render the sentences involved in a require every for sentence to tionate. order (af- punishment.”) same analysis, under our Bonner crime receive the disparate Hoadley’s “past firming capital despite must first show his and sentence life sen- he co-defendant) records, demeanor, crimi degree (quoting McNair v. [and] tence of sufficiently State, ... are simi (Ala.Crim.App. nal involvement 706 So.2d be disparity lar as to cause the sentence 1997)); Taylor, 838 So.2d Garber, unjust.” to be (La.2003) (“As rule, tween them See a co- the fact general ¶2, 32, (citing at 328 2004 SD N.W.2d received a more lenient sen- defendant has Bonner, 30, ¶20, N.W.2d necessarily indicate tence does not added)). such a (emphasis Absent on defendant is penalty imposed [death] the circuit showing, we will not reverse excessive.”) even (affirming death sentence dispa decision because court’s sentenced to life though co-defendant permis of co-defendants is rate treatment trial) (cit- subsequent the same murder one of the defendants is more sible where (La. Day, 414 So.2d ing State v. Id. culpable than a co-defendant. 1982)); Jaynes, 353 N.C. State v. (2001) (“[T]he fact that a S.E.2d although It must be noted that co- to death while a defendant is sentenced addressed cases Supreme Court has a life sentence for defendant receives one defendant received the death where 772 accomplice felony may to a not be sen- propor is not determinative of

same crime capital tionality.”) (affirming sentence tenced to death unless he either lolled or received sentence of where co-defendant killing a occur: purposes intended “For (quoting State v. life-imprisonment) imposing penalty, the death Enmund’s McNeill, 634, 415, 427 349 N.C. 509 S.E.2d culpability criminal must be limited to his Morris, 788, (1998)); 24 State v. S.W.3d participation robbery, pun- in the and his (Tenn.2000) (“Similarly, that a defen 800 his personal ishment must be tailored to in or even dant a similar case the same guilt.” moral Id. responsibility and case has received a sentence less than sum, capital a defendant’s sentence must a death death does not render sentence in upon culpability be based his own a excessive, arbitrary, disproportionate.”) and not upon murder his co-defendant’s Cauthern, 726, (citing 967 S.W.2d actions. (Tenn.1998) (affirming penalty)). 741 death Supreme Court clar These above-cited cases Tison, holding ified its wherein the general proposition are consistent with the capital Court affirmed the sentence of two recognized non-capital opin in the Garber appellants helped who had two convicted ion, 328, at N.W.2d escape peni murderers from an Arizona culpability that held the level of for an tentiary. 481 U.S. 107 S.Ct. same, always offense is not even where During escape, ap L.Ed.2d pleaded guilty defendant has to the same pellants escaped watched while the two Today, general prop offense. we hold this family convicts murdered of four that osition applicable capi to our review of pulled help had over to the men a flat with non-capital tal cases as well as tire. at Id. 107 S.Ct. at cases. Upholding L.Ed.2d 127. the death sen The Supreme Court has twice appellants, tences of the two the Tison multiple addressed situations where co-de- Court ruled: fendants were capi- convicted the same that disregard [W]e hold the reckless Enmund, 782,102 tal offense. 458 U.S. implicit human life in knowingly engag- S.Ct. 73 L.Ed.2d Supreme ing in criminal carry activities known to Court reversed the death of a sentence grave represents highly risk death present getaway who was state, culpable mental a mental state car robbery used in an armed that resulted that into be taken account mak- defendant, Enmund, two murders. The ing capital sentencing judgment when received the penalty along with the natural, though conduct causes its actually co-defendant who committed the inevitable, also not lethal result. Supreme murders. The Court reversed: 157-58, U.S. S.Ct. at

Because the Supreme Florida Court af- L.Ed.2d 127. holding This was based on penalty firmed the death this case reasoning proof the absence of Court’s the Enmund Enmund killed kill, or attempted regardless culpability requirement may be established whether Enmund intended or contem- through “major participation in felony taken, plated that life committed, would be we re- combined with reckless indif- judgment verse the upholding the death Thus, to human ference life.” Id. under proceed- and remand for further Tison, Enmund and a defendant’s death ings not inconsistent opinion. with this culpa- sentence must be rooted in his own offense, bility Id. at for the as demon- S.Ct. Therefore, Enmund, L.Ed.2d 1140. killing, under strated his actual intent or occur, victim); Taylor, (recog or 838 So.2d at 757 killing would knowledge that in- in a crime that sentences are “invari major participation nizing capital through to human life. juries indifference volving ably reckless returned when defendant State, shooter”); v. 869 was the Simmons in Accordingly, re [¶ 103.] (Miss.2004) 995, (upholding So.2d 1007-08 multiple defen viewing situations where “actively penalty where defendant in commission of involved the dants were robbery in a planned participated” offense, have focused state courts capital leader, though murder even he was not the particu culpability the upon the relative instigator killing); or of the planner, Supreme The Florida lar defendant. Cauthem, (affirming at 741 967 S.W.2d “[underlying our that has stated Court capital sentence defendant could be analysis principle is the where culpability relative perpe co-defendants should “the leader in the equally culpable characterized as crime; in capital be treated alike tration of this he knew the victims v. equal punishment.” Shere offenses”); receive State v. planned the Laf (cita (Fla.2002) Moore, 56, 2001) 60 (Utah (death 830 So.2d 342, ferty, 20 P.3d 375 omitted). However, co- “[w]here tions upheld where defendant the sentence the equally culpable, perpetrators are “masterminded “principle actor” who had culpable of the more defen death sentence deaths); in the scheme” that resulted the where the oth disproportionate dant is not State, 179, (Wyo. Harlow v. 70 P.3d 203-04 Caballero v. er receives a life sentence.” 2003) in (utilizing language of Tison (Fla.2003) State, 655, (citing 851 So.2d for a defen upholding the death sentence (Fla. State, 144, 153 Jennings v. 718 So.2d “major participant in a dant who was a 1998)). Generally, determining the rela reckless indiffer murder” and “acted with state courts culpability appellant, tive of an life”). ence to human co-de distinguish between those seek to Having determined participants” “active fendants who were disparate of co-defendants’ proportionality only “pas from those who were the crime in the dif grounded sentences should Caballero, People v. participants.” sive culpability in their relative ference 356, Ill.Dec. 794 N.E.2d 206 Ill.2d crime, must address the nature we (2002) (“[E]vidence that defen 269-71 which this determination upon evidence leader, follower, rather than dant was Lafferty, 20 P.3d at may be based. In crime has been in the commission of the spoke terms Supreme Court Utah analy in the significant factor held to be weight and “clear “ample” evidence sentences.”) (citing People disparate sis of that the de determining the evidence” in Jackson, 43, 163 Ill.Dec. v. 145 Ill.2d was not culpability the crime fendant’s (citing People 582 N.E.2d 125 to his death sentence. disproportionate Gleckler, Ill.2d IlLDec. Cauthem, Supreme Court the Tennessee (1980))). Kormondy v. N.E.2d 849 Accord the case and conclud detailed the facts of (Fla.2003) State, (up 47-48 845 So.2d on existed that “sufficient evidence” ed sentence where defendant holding capital of co- disparate sentences which to base killing” in the “dominant force was the felony. the same convicted of defendants State, Marquard v. “triggerman”); opinion, In a recent at 741. 967 S.W.2d (Fla.2002) (affirming death So.2d Appeals of Alabama of Criminal Court to show the penalty where facts tended con sentence upheld defendant’s person was the “dominant testimony of largely upon based viction driv including of events” this entire course Gavin, So.2d accomplices. one of his area and or ing group to a secluded case, found the court at 975-77. to stab the dering another co-defendant testimony to be “suffi- accomplice’s Nevertheless the trial court re by the evidence in mains ciently corroborated” the finder of fact as this Court does evidence, Id. not resolve conflicts in pass case. evidence, credibility of weigh With these recent decisions evidence in a court trial more than it mind, it that most appears supreme state Romero, in jury does case. State v. courts are deferential to the facts as estab- (S.D.1978). Having N.W.2d no wit fact, by the finder of lished whether us, appear nesses before we are unable to According or trial court. to the Flori- evidence, resolve conflicts in the pass on Court, Supreme da “a trial court’s deter- credibility, witness weigh or evidence. concerning culpabili- mination the relative (S.D. 1, Burtzlaff, v. 4-5 ty co-perpetrators first-degree of the 1992). finding murder ease is a of fact and will be if supported by sustained on review com- sum, Supreme petent Marquard, substantial evidence.” opinions Court’s in Enmund and Tison State, 424 (quoting 850 So.2d at v. Puccio require upon this Court to focus the rela (Fla.1997)). 858, 701 So.2d culpability tive of each co-defendant in the capital commission of the offense. See pro [¶ 106.] SDCL 23A-27A-10 Enmund, 458 U.S. 102 S.Ct. vides this Court shall render its deci Tison, 1140; L.Ed.2d 481 U.S. sion based on “the factual substantiation of S.Ct. 95 L.Ed.2d 127. In gauging verdict, validity and the of the sen culpability defendant, of each this Although chapter tence.” 23A-27A is not Court will first seek to ascertain whether specific as to appropriate standard of or not the defendant actively participated proportionality review of penalty death in the crime-or crimes and whether the cases, contemplate statutes seem to defendant either intended to murder the heightened by review this Court. We or disregard victim acted with reckless agree with the Arizona Supreme Court in human purpose life. The of this inquiry is Watson, Arizona v. 129 Ariz. 628 P.2d distinguish passive the more accom (1981), when it observed: from plices those who were more active in question before us is not whether committing offense. In order properly the trial court imposed the distinction, to make this this Court will whether, death penalty, but upon based upon focus the relative actions and roles us, the record before we believe that the by exhibited Jurispru defendants. penalty death should be A imposed. dence jurisdictions from other strongly finding merely imposition that the of the suggests that factors such as leadership death penalty by the trial court was having the crime or been “triggerman” “factually “justified supported” are relevant and should be established evidence” separate is not the and inde- substantial, competent evidence. See su pendent judgment by this court that the pra penalty death warrants. This is keeping with the mandate of the United Piper, [¶ 109.] The statements of Supreme States Court that we must re- Page Hoadley are not all consistent as carefully view consistency and with between A themselves. review of the rec cases and not engage ord shows that the perpetrators’ three in “cursory” or stamp” type “rubber of re- dividual distinguishable. behavior is Al view. though there certainly are conflicts among Florida, (citing statements, U.S. 96 each self-serving defendant’s Proffitt (1976)). S.Ct. 49 L.Ed.2d 913 Piper’s admitted facts disclose robbery the murder and Hoadley events that led to revealing that thread a common instigat- admitted that he Page. Poage. Page Piper than culpable less out, by pulling gun telling Therefore, discounting Hoadley’s ed the crime even him, incident, they going “jack” Poage were self-serving versions statements, admitting own him floor. considering Page’s forcing to the While only face, significant contains hit the victim the Piper voluminous record that he and gross establishing Hoadleys Sig- the absence participation. evidence denied the sentences. description between disproportionality nificantly Piper, Page’s like tragedy initiation of this fails to even only consider will This Court Hoadley, than the fact that mention other concerning his ac- own statements playing Play in another room Sta- he was his between tions and his differentiations tion. against Hoadley acts and those Hoadley. The Piper of and

statements Finally, highly significant it is [¶ 113.] it on the record did circuit court indicated creek, in the details at the describing that the same.22 We Page Piper, do so because the blame on Page put tended to more of testified under oath Hoadley never in just Piper as had done his inter- Piper, subject to cross-examina- and were never Page. Although there respect view with given at the time tion. statement Hoadley also by Page was a claim that arrest, individual sought to minimize his of Gulch, was Poage Higgins kicked at there place to some extent and involvement Hoadley Piper that either or no evidence planning for the of the blame bulk many times and with kicked the victim Never- Piper. of this crime on execution Page. Hoadley did not as much force as theless, require not this Court this does force any injury claim to his foot from the evidence and accept at face value all the head, Poage’s the number of kicks to or Page. brought by forward See inferences “injury” only by Page sustained was 75, 80, 228 Anderberg, 89 S.D. wearing heavy despite the fact he was (1975). N.W.2d all, telling of when Perhaps most boots. of After an extensive review escape his attackers at Poage attempted to record, there were we conclude Gulch, Page it who chased Higgins was differences be- genuine and substantial icy him back into the him down and forced Page Hoadley, tween the actions Poage’s attempt at again, creek. Once morally culpable more Page which made by Page. Nor does blocked escape was upon inflicted the violence and torture for in Hoadley engaged show that the record First, Poage. the evidence exhibit- Poage to the extent the torture Page was the most own admission show Piper discussed by Page. Page ed Page three murderers. was violent of the directly killing the victim ways various of the three to use a firearm. only one Poage, including of a conscious front dur- Page throat. “chuckled” slitting his Additionally, Page confirmed [¶ 112.] torture, seemingly amused ing Poage’s Hoadley’s version of the portion critical the victim was pain amount of Hoadley the extreme alleged that Page facts. never victim false giving After experiencing. planning initiating was involved officers, as well your Page relied on statements addressed his 22. The circuit court noting: and other evidence sentencing hearing, forensic evidence as the to or case. I have not referred relied in the by Today you concerned need in deter- statements of co-defendants on the Briley Piper he would or that statements of participation in this mining your level of you accounta- you or would be held blame you case. things says did. I’ve he ble be allowed to warm himself hope finally he would defendants.23 After murdering vehicle, Page Poage Poage, it was who it Page his told who received the vic- vehicle, they were “liars” and then kicked the vic- tim’s the most valuable property stolen group. tim the face. Subsequent listening Poage especially drew the Page’s explicit description of the above Poage wrath of when failed to coop- events, asked, Agent the DCI “What would attempted drowning erate his justified have that?” Rather than re- by Page: creek sponding any type with of remorse over head, put my I I foot on his but couldn’t anguish Poage, Page suffered casu- stand there. It was slippery like too ally responded, “He never done wrong because he was too far into the creek. to us. I mean always he was nice. He rocks, And I had to stand on so I just tried to be our friend and stuff.” my keep couldn’t balance.... I put So Page’s only personally emotion was that he head, my foot on his but I keep couldn’t felt better after the interview as it was my kept moving balance because he good to get off his chest. it, just so I like fuck I’m not falling analysis, in the the final creek. the record reflects that often tended to mini- addition, strongly suggests the record mize his culpability by blaming Piper, but Page planner was the and initiator of much Page alleged never Hoadley was the lead- of the violence upon Poage. inflicted In er, planner, major or the in participant contrast, group none of the members iden- tragic execution of this incident. If one Hoadley planner tified instigator actually record, examines the the differ- of the attack. Page began the ordeal in culpability ence Page between and pointing a pistol Poage, a pistol he had Hoadley is evident. This difference in cul- previously stolen from the victim’s house. pability permits imposition of different Page Piper and rendered the victim help- joint sentences for actors involved by tying cord, less him up with a an idea commission of the same offense. As the expressed by first Page. Page engaged noted, circuit Page court was no follower concerning discussion how the group would in the commission of Page’s this crime. At Poage. murder Both at the house and at remarked, sentencing, judge “There gulch, Page prevented Poage’s escape may have been a follower out there that or opportunity escape. By to his own day, you. but it wasn’t You Piper and admission, Page was the first to stab the were two of a kind.” fact, victim. when the other two assail- ants expressed first reluctance about stab- [¶ 117.] The circuit court found as fact bing Poage, Page apparently had little Hoadley that was remorseful for his ac- it, qualms, saying “Fuck I’ll it.” Page do tions and we have no reason to conclude to also psychologist, admitted to a Dr. Mark contrary. Page gave a statement of Perrenoud, that Page physi- did the most remorse to the circuit court and the Poage cal damage to Poage just family prior three sentencing.24 to his 23. Dr. Page Perrenoud also concluded anything you, mean to but I feel I owe at killing sane at the average time of the thing. very and of least this one This is hard for me, intelligence. but I will do the best I can. Here it goes: sorry I am for what I did. I wish I Page just prior stated sentencing: to his explain sorry could how I am. I know that I know I'm the last—I'm one of the last up doesn't make for what I did. I also from, people you would want to hear nothing but know up I do will make please say you. let me to this It expect you forgive what I did. I don't to spare to Allan’s statement, loose. You had chances outside the to this contrast life. time, Page during period courtroom the murder discussing to relish committing

seemed indifference to Nor has prisoners against other and felonious acts of violence made threats murder other and He remains a apparently absent been abated. Hoadley been Had guards.25 and especially prison guards, threat female in the nothing there is day, that fateful ones,26 have the anyone who would indicate that record to torture/murder him. potential to come into contact with place any- not have taken Poage would Hoadley up- had a terrible Page jointly planned way. Piper and Unfortunately Page. bringing. so did hand, if the other it. On initiated circuit court noted this at day, there is no present had not been “[y]our early years must when observed would Hoadley to indicate evidence living people have been a hell. Most treat murder, and executed planned have pets your parents their better than treated in which it in the brutal manner especially juvenile out their kids.” Moreover, Poage’s few was committed. unfortunately institutions that the end were blocked escape opportunities inability properly live did not solve his Hoadley. from As no assistance Page with By time he arrived society. just passing prior noted the circuit court illegal active in the Spearfish, Page was sentence: cultures. While he ini- drug and criminal admission, kidnapping By your own Spearfish to with mem- tially came to live maybe two Allan took killing him into of a church that took their bers chances You had lots of or more. hours joba in an provided him with home Had and back out. change your mind cycle of his attempt break downward on the floor and dropped gun you life, circumstances and behaviors ran down the the door and headed out While some changed soon for worse.' have street, Piper I if would doubt criminal claims previous individual I if he would you down. doubt subject evidentiary chased Page are involving plan, know- traits are through personality with the gone question, have his overall now on the not.27 key a witness was ing that me; emotion or re- manner with no forgive me. I’m matter-of-fact I wouldn't God knows conversations, why grets. During explanation I these numerous you like an sure would sym- speak Page for the other to show remorse or I did. I can’t also failed did what two, only family. Page’s con- myself, personally, Poage’s I cannot pathy for for but hoped because that he he give you question an answer to that himself and cern was for Page honestly why penally. it. I know get don’t know I did death When I would not biggest wrong. did was I feel like interviewed suspected that I that Ollila had been it, conversations, hope get Page I piece and I I what of shit for DCI about these say. I know what else to deserve. I don’t Ollila. threatened me, forgive I expect you but don’t ever my apology is

just you to know that killing, Page want jail wrote in after the 26. While my family please hate And don’t here. a to sodomize that he threatened letter you anybody, did. If hate hope friends for what I "I she jail guard and also wrote female hate me. reads this.” cellmate, sentencing hearing Page's 25.At following court entered the 27. The circuit Ollila, Page’s cell- testified that he Eric background: Page’s findings on of fact Page talked days mate for seven long history has a day. 37. Defendant each details of the murder about the systems, the court involvement with daily other twelve talked to the also of foster lived in a series and he has the crime. prisoners in that cellblock about juvenile centers detention homes and Page spoke the details in nonchalant ZINTER, We observed Rhines KONENKAMP and [¶ 119.] [¶ 121.] Justices, concur. I: sentence should not be inval “[A] jury simply idated because determined [¶ 122.] SABERS defendant, who that another committed MEIERHENRY, Justices, dissent. crime, analogous mercy. deserved Pro SABERS, (dissenting). Justice only focuses not on

portionality review respectfully I dissent. South crime, also but defendant.” 1996 capital sentencing Dakota’s scheme pre- ¶55, 206, (citing 548 N.W.2d at 457 SD vents a who pleads guilty from Benn, 23A-27A-12(3); v. State 120 having the alleged aggravating circum- (1993)) Wash.2d 845 P.2d jury. stances found The scheme is (holding “[s]imply comparing numbers of therefore unconstitutional Apprendi, under aggravating victims or other factors Ring Blakely majority and the opinion superficially make two appear cases simi violates statutory canons of construction lar, mitigating by ignoring statutory where fact there are language to come to sentencing conclusion that the proce- explain circumstances case to either one is dure constitutional. I also dissent from jury’s impose verdict not to the death majority opinion’s conclusion that Pip- prosecutor’s or a decision Page’s er and dispro- sentences were not it.”) Lord, (quoting seek portionate comparison to their co-defen- (1991), Wash.2d 822 P.2d cert. dant, Hoadley. We should reverse and denied, U.S. S.Ct. remand re-sentencing for in prison life (1993)). L.Ed.2d record shows without the possibility parole. general culpability conduct and of Poage, including partic the murder South Dakota’s ularly circumstances, heinous nonjury scheme in trials right violates the Sixth Amendment Hoadley’s. was not the same as There incorporated to a trial as to the fore, analysis under our forth in set through states Fourteenth Bonner, the circumstances of case Amendment. suggest gross disproportionality do not Apprendi v. New Jersey held: light Hoadley’s sentence. conviction, Other than the fact of a prior [¶ Affirmed. 120.] any fact that increases the for a burglaries, as a result of his car responsibility thefts anger for his actions and and anti-social behavior. Defendant control. Page placed has been ain series of Boys 39. The Ozanam Home in the State juvenile detention facilities have of Page Missouri found Defendant had designed programs to benefit him. absolutely progress made no while in Page consistently Defendant has run facility, their treatment and that he away pro- from these facilities and exhibited no commitment whatsoever grams: any type change of in his antisocial 1997, early psychologists As as March repeatedly away behaviors. He ran psychiatrists noted that Defendant defiant, facility, from their he was exhibiting sociopathic was traits. discipline. alienated to all forms of included, These traits uncontrollable ability He responsi- showed no to take aggression, lack of remorse and an bility for his behavior and blamed oth- absence of conscience. Defendant people er for his situation. long history taking has a of not

779 597, 2437, 122 at statutory Ring, 536 U.S. at S.Ct. prescribed beyond the crime held that the 153 L.Ed.2d 556. The Court jury, to a must be submitted maximum had to aggravating factor determination be a reasonable doubt. beyond proved jury preserve in order to entrusted to the 2348, 2362,147 490, 466, 120 S.Ct. 530 U.S. rights. Id. defendants’ Sixth Amendment L.Ed.2d 435. Blakely Washington, v. Arizona, v. the Court Ring pleaded guilty kidnapping his defendant Apprendi to hold holding its applied 2534, 298, 124 542 at S.Ct. at wife. U.S. Amend- defendant’s Sixth capital that a supporting The facts his 159 L.Ed.2d 403. judge when the rights were violated ment him a maxi- guilty plea eligible made than the max- greater a sentence “imposed 299, of 53 months. Id. at mum sentence state imposed have under imum he could 159 L.Ed.2d 403. The S.Ct. at challenged factual find- law without him sentenced to 90 months after Court Blakely Washington, U.S. ing.” making finding that he acted with “delib- 303-04, 124 S.Ct. cruelty.” Id. The trial court re- erate (2004) (citing Ring, 536 U.S. L.Ed.2d authority to enhance the sen- ceived the 153 L.Ed.2d 122 S.Ct. code, at Washington criminal tence from the 556). Arizona’s Specifically, under a trial court was enti- provided which scheme, above stan- jury impose found a tled to a sentence once the sentencing range if it found “substantial murder, dard first-degree guilty justifying an compelling exception- reasons sepa- to “conduct a judge required at al sentence.” Id. at S.Ct. hearing to determine the rate L.Ed.2d 403. The United States Su- enu- [certain or nonexistence existence sentence, re- preme Court overturned ... aggravating] circumstances merated Ring Apprendi, stating: lying sen- determining purpose for the precedents make clear [] Our judge imposed.” The tence to be pur “statutory Apprendi maximum” for findings to make all of the factual required judge maximum sentence poses is the there were question whether regarding may solely on the basis impose circumstances. any aggravating jury in the verdict or reflected facts Court wrote: Ring, by the See admitted defendant. find- solely jury’s on the verdict Based (“ ‘the maximum S.Ct. felony Ring guilty first-degree ing according punished if he would receive murder, he punishment the maximum the facts reflected verdict imprison- life could have received was ” Apprendi, supra, (quoting alone.’ because, in Ari- ment. This was so [ ] 2348)); Harris v. United 120 S.Ct. zona, legally a “death sentence States, 545, 563, 122 S.Ct. 536 U.S. ag- ... at least one imposed unless opin (plurality 153 L.Ed.2d beyond to exist gravating factor is found ion) (same); at Apprendi, supra, cf. question The [] a reasonable doubt.” (facts by admitted 120 S.Ct. aggravating that is whether presented defendant). words, rel In other the the as may by judge, found the factor be is not the “statutory maximum” evant the specifies, or whether Arizona law may judge impose a maximum sentence guarantee, jury trial Sixth Amendment’s facts, the but finding after additional by to the the applicable made States [ ] may impose without maximum he Amendment, that requires in judge Fourteenth a findings. When additional jury’s the verdict punishment factor determination be aggravating the flicts allow, jury has not the alone does jury. to [ ] entrusted the characteristics, fi- the facts “which the law makes the defendant’s found all condition, punishment,” Bishop, to the nancial and the circum- essential judge § at and the ex- supra, stances of the defendant’s behav- authority. proper may helpful imposing his in ceeds ior as be sentence; at S.Ct. Id. at 542 U.S. (4)All (emphasis original). in concerning any

159 L.Ed.2d miti- evidence of cases makes clear that absent This line gating circumstances. voluntary waiver of knowing a valid added). (emphasis trial, right jury to a the Amendment Sixth provides: 23A-27A-6 [¶ 130.] SDCL may only sentence based on “the judge a shall, nonjury In judge cases the after jury in the verdict or admit- facts reflected conducting presentence hearing the words, in by the defendant.” other ted 23A-27A-2, §in provided designate, in case, waiver, valid a absent uniting, aggravating circumstance right jury has a to have a deter- circumstances, any, which he if regarding mine the facts whether there beyond a reasonable doubt. Un- found aggravating Allowing are circumstances. statutory aggra- less least one of the impose penalty the death the court vating circumstances enumerated in by facts not admitted the defen- based on found, § pen- 23A-27A-1 is so the death jury dant or found is a violation of alty imposed. shall not be right the defendant’s Sixth Amendment added). (emphasis jury trial. majority opinion The concludes Turning cap- to South Dakota’s “statutory impediment there is no scheme, one can sentencing ital see preventing a pleads guilty defendant who of the plain language dealing statute exercising jury ... from right his nonjury prin- with trials violates the clear penalty phase.” Supra 71. Howev- in ciples Apprendi Ring enunciated er, conclusion, to come to this it is neces- Blakely. sary ignore pivotal language per- provides: SDCL 23A-27A-2 First, tinent statutes. 23A-27A-2 SDCL all cases which death provides for a sentencing hearing before a imposed be and which are tried jury: all cases in which the “[i]n jury, upon a return of a verdict of penalty may imposed and which are guilty by jury, the court shall re- added). by jury (emphasis tried [.] ” sume the trial and conduct a presen- jury hearing circumstances hearing jury. tence before the Such clearly nonjury is inapplicable cases. hearing shall be conducted to hear addi- interpretation This supported by is mitigation aggra- tional evidence in Legislature fact that the provided differ- At punishment. hearing vation of such procedure ent statute and shall receive all relevant evi- nonjury cases under 23A-27A-6. dence, including: unequivocally requires SDCL 23A-27A-6 supporting any Evidence judge make findings the factual aggravating circumstances listed regarding aggravating circumstances 23A-27A-1; § under nonjury cases. See SDCL 23A-27A-6 (2) Testimony regarding impact (providing part, non-jury “[i]n cases the family; the crime on the victim’s in judge designate, writing, shall the [] (3) Any prior juvenile aggravating criminal or circumstance circum- rec- stances, any, beyond ord of the in- if which defendant and such he a found doubt”).

formation the about defendant’s reasonable that the defendants waived goes relies on to hold majority opinion The right jury to have a their constitutional hearing “presentence solely phrase, on the they would receive determine whether support its §in provided 23A-27A-2” as prison. in This conclusion is death or life jury hearing per- is that a determination premise the erroneous that the based on is This reliance by the statute. mitted properly presented Page “circuit court chooses to if the Court only appropriate exercising the of Piper] option with [and language surround- wholly ignore plain the sentencing by jury right [the] language of plain and the ing phrase that by capital punish- Dakota’s provided South language That makes 23A-27A-2. no statutory scheme.” There is such ment that Legislature intended the clear plead guilty who right for defendants court, jury, hear the evidence not sentencing crimes under ag- findings regarding make written Therefore, holding has no scheme. nonjury in cases. circumstances gravating notes, in law. As “the anchor of the in contravention Su- This is direct right presupposes waiver of substantive which holding Apprendi, in preme Court’s right place. of the the first the existence v. Hoad- acknowledged this Court lim- expressly of the statute language that: ley, fact-finding judge role to the its the legisla- for a [state] it is unconstitutional ... non-jury judge cases ... had no jury from the the assess- ture to remove jury sentencing authority [the to offer once pre- increase ment of facts guilty.” That the cir- pleaded defendants] which a penalties range scribed illusory jury made an offer of cuit court exposed. is criminal defendant justification upholding is no for at 120 S.Ct. 530 U.S. Apprendi, unconstitutionally death sen- imposed 435; Hoadley, 2002 SD 147 L.Ed.2d Therefore, circum- under these tence. ¶ 257. stances, factors had to be acknowledge and embrace I by the defendant or found admitted requir- statutory construction judge, penalty the canon of and the jury, not the Court, to con- possible, unconstitutionally imposed. whenever ing this death was violate the so as to not strue statutes Supreme States The United majority opinion constitution. See more clear on could not have been Court However, statutory construc- that canon of it stated this issue than when simply cannot be used the Court tion of the facts right to a determination language of two stat- operative ignore sentencing: imposition essential to find them constitutional. utes order to formality, but procedural is no mere is so when the Court especially This is in our power fundamental reservation most dealing with the considering statutes as suf- constitutional structure. Just the law. We should severe under ultimate con- peoples’ frage ensures of construction to our rules broaden legislative and executive trol absurdity in an effort to drive point branches, jury trial is meant to ensure Instead, we should to a desired result. judiciary. their control language of the carefully plain consider the 306,124 at 2538- Blakely, 542 S.Ct. U.S. duty our constitutional statutes and follow un- The defendants’ 159 L.Ed.2d 403. statutes which violate to strike down those should constitutionally imposed sentences rights. our citizens’ the cases remanded reversed and with SDCL statutory support re-sentencing accordance Lacking any conclusions, majority opinion 23A-27A-14. for its than foresight, culpable In the South Dakota less this horrendous crime 136.]

[¶ majority Piper Page. opinion and The specifically provided has Legislature reasoning on the tenuous that Hoad- relies remedy. appropriate ley being did not confess to as violent or provides: 23A-27A-14 [¶ 137.] Hoadley’s proactive Piper Page. and. the death for a In the event penchant self-preservation shifting is a for felony A to be unconstitu- Class is held utterly is insufficient to foundation Supreme by tional the South Dakota gross disparity support Supreme Court or the United States Piper Page, and and life for death for Court, having jurisdiction the court over Hoadley. circuit We should reverse the person previously sentenced death court’s determination that the sentences felony A a Class shall have such grossly disproportionate. not were court, person brought before the and the Sifting through thousands of person court shall sentence such life pages transcripts, of trial defendant state- imprisonment. ments, reports, investigative and one could detailing the atrocities com- write reams Piper 2. and by Hoadley, Piper Page. mitted and grossly dispropor- sentences were end, their individual behavior is so Hoadley’s comparison tionate in Yet, despicable indistinguishable. as to be life sentence.28 majority opinion the circuit court and the facts, parse microanalyzing selected untested, primarily Based night events of the to determine whether self-serving un-cross-examined and state- Piper Page Hoadley. were worse than and Hoadley, by Piper Page, ments and majority opinion circuit court and the problem analysis The with this Piper comes to the conclusion that and places is that it this Court and the circuit culpable were more and less re- position picking choosing court in a and than Hoadley, morseful and therefore which untested facts to then believe and deserving stunning more of death. In a using those facts to sentence one defen- argument Hoadley reversal from its dant to a life sentence and two others to case, argues Hoadley Certainly, type the State now is death.29 this of fact find- However, findings. Because factors for consideration in all ence to those without (Piper, Page, Hoadley) three significant findings regard Hoadley’s cases and are with exactly before, murder, substantially the same and the facts during, actions and after the similar, respectfully I submit the same writ- "Hoadley’s 'past it cannot be said that rec- ing, analysis arguments Piper ords, demeanor, in the and degree [and] of criminal in- " Page cases. enough volvement’ are dissimilar to warrant disparity sentencing. such problem 29. This is exacerbated the circuit fact, performance majority opinion ignores court’s on remand. For exam- those case, ple, Hoadley's equal the circuit court did not facts that show conduct to be engage comparative analysis Piper Page. in true of the or more heinous than that of Instead, Hoadley Page. despite Hoadley actions of It so does fact that the appears through sentencing transcripts part circuit court to have sifted trial and are appeal. transcripts record reiterated all of the facts it record in this Those show (1) original Hoadley wiped up could find in favor of its sentence. the blood in the assault; (2) findings The of fact and conclusions of law do kitchen after the initial stabbed throat; (3) compare culpability Poage in the stood on the back of him; (4) Hoadley, they merely regarding Poage’s attempt restate facts head in an to drown head; Page's culpability. majority opinion sup- dropped Poage's two massive rocks on ports improper analysis giving kept property in the defer- used murder as souve- determining whether always done ing is SD 1 factors to there are sufficient Dakota, Plaintiff STATE of South death sentence. imposition of the warrant Appellee, and However, finders in all of these the fact already determined cases have aggravating fac- had the same defendants Briley PIPER, Defendant mercy. All of only one received tors. Yet Appellant. and guilty of have been found the defendants No. 21813. crimes, put to yet two will be the same crimes. This is not case death for those Dakota. Supreme Court South acted as a lookout or one defendant where Argued March 2004. As the con- getaway car. drove below, all three defen- sistently argued Decided Jan. in the crimes that actively engaged

dants Poage was mur- evening on the

occurred

dered. fact, charged the State with identical

Hoadley, Piper

acts, charges, resulting all conduct and aggrava- The same convictions.

identical against and found

ting alleged factors were Piper Page. There Hoadley,

all three: justify life meaningful

are no differences Piper Page. for Hoadley and death was that real substantial difference Hoadley, and the jury gave life to Piper Page.

judge gave death three, respectfully I submit all Page, should receive

Hoadley, Piper and possibility prison

life in without substantially identical acts

parole for their 23A-27A-14, supra

of murder. See

¶ 137. MEIERHENRY, Justice, joins

this dissent. dude;” (7)

nirs, pictures of himself showed including dog leash used to bind Poage; murder, him about the Poage's when a friend asked cellmates. wearing clothes to his happens, Hoadley replied, "shit

Case Details

Case Name: State v. Page

Court Name: South Dakota Supreme Court

Date Published: Jan 4, 2006

Citation: 709 N.W.2d 739

Docket Number: 21864

Court Abbreviation: S.D.