State v. Rhines

1996 SD 55 Dakota,

STATE of Plaintiff South Appellee, RHINES,

Charles Russell Defendant Appellant.

No. 18268.

Supreme Court of South Dakota.

Argued Oct. 1995. May

Decided 1996.

Rehearing Denied June

ISSUE sup- Did the trial court err pressing incriminating statements made by Rhines to law enforcement officers on and 1992? June 19 approximately p.m. At 12:45 on June 19, 1992, King Rhines was arrested in Coun- ty, Washington, burglary for a that occurred County King in that Police state. Officer following Michael read Rhines the Caldwell warning: Miranda light You have the to remain silent. Num- you say sign anything ber or can be Barnett, General, Attorney Grant Mark you against as evidence in a court of used Eichstadt, Gormley, Craig M. and Sherri 3, you right law. Number have the at this Wald, Gary Campbell, Sundem and Assistant attorney your choosing, time to an own General, Pierre, plaintiff Attorneys. for and present saying and to have him before appellee. signing anything. you Number if cannot attorney, you afford an are entitled to have Stonefield, Pennington County Michael attorney appointed you an for without cost Office, Joseph M. Public Defender’s Butler of you present and to have him before MeCullen, Butler, Simmons, Foye Bangs, & saying signing anything. and Number Huffman, Wayne F. of Johnson Gilbert you right any have the to exercise Rapid City, appellant. for defendant rights saying above time before signing anything. youDo understand each MILLER, Chief Justice. rights explained of these that I have you? part through the latter of 1991 [¶ 1] From February Russell Rhines Charles Caldwell, According to Officer Rhines re- Shop Dig ‘Em Donut on West

worked at effect, sponded by asking something to the City, Rapid South Dakota. Main Street “Those two detectives from South Dakota are February 1992 Rhines was terminated here, they?” reply. aren’t Caldwell made no job. from this Rhines, attempt question Caldwell did not and Rhines made no further statements to body [¶ On March of Donni- placed holding Caldwell. Rhines was in a Schaeffer, Dig employee van ‘Em Do- King County police at a cell station. nuts, in the storeroom of the was found shop Main p.m. day, donut on West Street. Schaef- At 6:56 that same two bound, officers, fer’s hands were and he had been South Dakota law enforcement De- $3,300 City repeatedly Rapid in tective Steve Allender of the Po- Approximately stabbed. cash, coins, Department Pennington County missing lice checks was from the Bahr, Deputy interrogated Sheriff Don store. will be recited herein Additional facts burglary Dig Rhines about the ‘Em Do- they specific as relate to issues. nuts and murder of Schaeffer. Detective charged [¶ 3] The State Rhines with third- Allender testified that he advised degree first-degree burglary of the store and rights prior questioning his Miranda him. juryA him murder of Schaeffer. convicted exchange between himself and Rhines is of these crimes.- The recommended a as follows: first-degree sentence of death murder continuing right Allender: You have the judg- conviction. The trial court entered a you remain silent. Do that? understand ap- ment and warrant of execution. Rhines peals. We affirm. Rhines: Yes. Anything you say Anything you say can be used as Allender: can be used as

Allender: you. you against you. you against understand evidence Do understand evidence Do that? that?

Rhines: Yes. Rhines: Yes. right to consult Mender: You have right Allender: You have the to consult presence attorney, an with and have the attorney, presence with and have the of an attorney, you and if cannot afford an an you attorney, if afford an cannot you attorney appointed can for free of be attorney appointed you can be for free of charge. you that? Do understand charge. youDo that? understand Rhines: Yes. Rhines: Yes. mind, Having rights in

Allender: those are night, Allender: K. Just like the other willing questions? you to answer mind, you having rights these in are will- ing questions? to answer Rhines: Do I have a choice? Rhines: Yes.

Allender testified he told Rhines he did have not have to a choice and fact Rhines did case, that, it Allender: Ok. And if talk with them at all. Allender then asked goes, you question, if like the don’t wanted to talk with them and Rhines Rhines you’re supposed doesn’t mean that to an- so,” said, said, “I’ll suppose “I and then always say stop, swer it. You can ok? Shortly any questions I like.” there- answer Rhines: I can take the 5th Amendment. after, burglary Rhines confessed to the Exactly. Allender: Dig killing ‘Em and to the of Schaef- Donuts fer. proceeded incriminating Rhines to make burglary Dig ‘Em later, statements about the Approximately two hours

[¶ 7] Donuts and the death of Schaeffer. gave permission tape Rhines the officers following ex- record his statements. sup- pretrial Rhines filed a motion to [¶ 9] change occurred: incriminating press the statements made Um, you Allender: Ok. do remember me 21,1992. on 19 and After a the officers June reading you your rights? hearing, motion. the trial court denied this trial, regard- At Detective Allender testified Rhines: Yes. ing during untaped Rhines’ statements you beginning? Did un- Allender: portion of the interview. June rights? those derstand objection continuing to this Rhines entered Rhines: Yes. objection, Rhines’ the trial testimony. Over uh, having rights in Allender: And those play permitted the court also you mind talked to us here? place recordings interviews that took Rhines claims the 19 and on June I have. Rhines: Yes admitting his statements. trial court erred interview, During taped portion of the argues trial court erred incriminating Rhines again made statements incriminating state- failing suppress burglary Dig ‘Em Donuts and about the during the June 19 and ments he made killing of Schaeffer. the Miranda He claims that interviews. 21, 1992, Detective Allender On June him warnings recited to were deficient Deputy posed Bahr additional Sheriff that he reasons. He also asserts several questions to Rhines. This interview of his Miranda gave never a valid waiver questioning, Detec- tape recorded. Prior to each of his conten- rights. We will consider following had the conversation tive Allender in turn. tions with Rhines: continuing right have the Allender: You Preliminarily, we reiterate silent, you do understand that? remain Amendment to the United the Fifth part: provides States Constitution Yes. Rhines: 426 Swenson, 291, person compelled any ...

No shall be cient.” Evans v. 455 F.2d (8th denied, Cir.1972), 929, against a witness him- cert. 408 U.S. criminal case to be (1972) (citations 2508, S.Ct. 33 L.Ed.2d 342 self[.] omitted). The Fifth U.S. Const.Amend. V.1 Amend- privilege against ment self-incrimination is right 1. [¶ 13] The to terminate subject- implicated an individual is whenever questioning. interrogation by police. to a ed custodial [¶ 14] Rhines contends Detective Allen- Arizona, 436, 478, Miranda v. 384 U.S. 21,1992, warnings der’s on June 19 and June (1966). 16 L.Ed.2d right him failed to advise of his to terminate protect privilege, To law enforcement questioning any at time. ar- Rhines further personnel procedural must observe certain recitation, gues that Officer Caldwell’s earlier 478-79, safeguards. 384 U.S. at 86 S.Ct. at warning, which includes such a cannot be 1630, at In L.Ed.2d 726. the absence of combined with Detective Allender’s advise- equivalent procedures, law enforce- warning. ment to arrive at a sufficient suspect ment as must advise follows: that, Rhines reasons since he never told prior any question- He must be warned rights he Caldwell understood the that Cald- silent, ing right that he has to remain him, well recited to the State failed to show says anything against that he can be used right that Rhines understood his to termi- law, right him in a court of that he has the questioning. nate presence attorney, anof and that if points Brings [¶ 15] Rhines to State v. attorney he cannot afford an one will be Plenty, (S.D.1990), sup- 459 N.W.2d 390 as appointed prior any questioning him port “continuing for his claim right that the if he so desires. warning to remain silent” was insufficient. at at 86 S.Ct. 16 L.Ed.2d Brings Plenty, In trial court ruled that any at 726. If the individual indicates at statements the defendant which were during questioning time before or that he involuntary coerced and could be used to wishes to remain silent or that he wants an defendant, impeach testify. should he attorney, interrogation must end. 384 appeal, Id. at 394. On we reversed and 473-74, 1627-28, U.S. at 86 S.Ct. at granted the defendant a new trial on the L.Ed.2d at 723. If law enforcement fails to grounds involuntary that statements are in- equivalent procedures, follow these or other any purpose. admissible for Id. at 397. prosecution may not use statements dicta, warning we 16] criticized during interrogation made a custodial as essentially warning given identical to the

proof guilt. 384 U.S. 86 S.Ct. at to Rhines.2 We reasoned the advisement 1612, 16L.Ed.2d at 706. Miranda, was deficient under because Importantly, Miranda does not failed to inform the right defendant of his require warnings given be in the exact questioning any terminate time. Id. at form described that decision. Duckworth 395-96. Eagan, 109 S.Ct. 106 L.Ed.2d Brings “[T]he Rhines’ reliance on First, words of Plenty misplaced. Miranda do not constitute a ritual discussion repeated istic formula which warning Brings Plenty must be without binding is not precedent. Second, variation order to be effective. Words Detective Allender’s convey warning which the substance of the statement “continuing Rhines had a along required right with the adequately information are suffi- to remain silent” advised VI, 9, Ok, § you continuing right 1. Article South Dakota Constitu- have the to remain part: person tion states in relevant compelled Anything you say “No shall be silent. can be used as evi- give criminal case to evidence against you. right dence You have the to con- against himself[.]" presence attorney. sult with and the of an If you attorney, attorney cannot afford an will According appointed Brings Plenty, you. you to the briefs in be Do understand these rights officer advised defendant follows: as ... ? warning any time. A Miranda need not questioning at at option him of his to terminate mechanically warnings given elegantly phrased to recited. any Additional be time. (9th Noa, 144, 146 21 reinforced this Rhines on June 19 and v. 443 F.2d United States Cir.1971) States, first arrested When Rhines was (citing advisement. Camacho v. United him, (9th Cir.1969)). 19, 1992, told on June Officer Caldwell 42 n. 2 407 F.2d right remain silent.... “You have the to warning is to ex- purpose of the Miranda any right to exercise of the have the aspect [Y]ou constitutional law to a plain an saying any time before rights above suspect, that he can make a vol- criminal so intervening signing anything.” There was no intelligent untary, knowing and decision his arrest interrogation of Rhines between police. to talk to the Allender’s whether Bahr that questioning by Allender and conversa- straightforward statements and warning. effect of this might blunt the acceptable of ad- tone are an method tional right vising of his constitutional an individual counters that his June Rhines [¶ 18] police interrogation. in the face of to be silent suppressed, because 19 confession must be Furthermore, response he “can Rhines’ showing no that he understood there was take the 5th Amendment” demonstrates by and Allender warnings given the Caldwell against amply privilege he understood his question concerning right the to terminate self-incrimination. reject There is ing. Rhines’ assertion. We indicating that ample in the record evidence attorney right 2. The to an complete understanding of his Rhines had a during questioning. questioning at time. right stop to incriminating making any statements Before 21, 1992, Allender On June 19 [¶ 22] specifically Rhines told Allender on June right to con- Rhines: “You have the advised only questions he liked. he would answer the presence of an attor- with and have sult him about a questioned the officers When ney[.]” alleges warning defi- Rhines discuss, he would topic he did not wish to cient, explain right to because it did not tape recorder or tell them shut off the attorney present during questioning have an (For example, during the June quiet.” “be request pres- continuing right to or the interview, Rhines turned off the re during attorney any point ence of an began to discuss when the officers corder inculpatory contends his questioning. He making a he had been coerced into whether sup- police have been should statements explained personal his He then statement. pressed due to these deficiencies. feelings young man he knew toward has held that the state- This Court [¶ 23] young on the the officers not to dwell asked ment, right to consult with “You have burglary in the of the man’s involvement attorney,” presence of an satisfied and the that.) agreed to shop. The officers donut suspect advised requirement that the be taped Excerpts interview of from prior attorney present right to have an 19, clearly Rhines understood his show June Brings Plenty, 459 any questioning. questioning explained as right to terminate Croucher, Accord State v. N.W.2d at 395. ade- Law enforcement Officer Caldwell. (S.D.1982). must We N.W.2d 98-99 rights of his Miranda quately advised Rhines essentially identical whether an now consider 19. The trial prior to the interview on June right warning adequately communicates in admit- did not abuse its discretion court during question- attorney present to have an made Rhines on ting the statements ing. date. begin was told at the Rhines only June [¶ 20] On right had the ning interview that he of each Detec Rhines received was from advisement attorney. ¶ Because this presence of an supra). Allender’s {See tive Allender. of each at the start warning was delivered that Rhines need not at that time advisement session, plainly communicated questioning that he questions he did not like and answer attorney present at that right to have an adequately always say stop” warned “can 295-96; Evans, Sweeney F.2d at time. questioning right of his to terminate States, (9th United F.2d Although warning need Cir.1969); Johnson, People v. Mich.App. language contain the exact used 282 N.W.2d opinion, We there effectively Miranda it must commu fore no find Miranda violation. right appointed nicate the if counsel

accused cannot lawyer. afford to hire a Mayfield In determining 736 S.W.2d at 15. right appointment [¶ 25] 3. The particular warning adequately whether a con attorney. of an veys right, reviewing a court must look 21, 1992, On June 19 and Allender warnings to the as a whole rather than focus Rhines, you informed “if cannot afford an ing on one sentence in isolation. United attorney attorney an appointed can be (9th 285, Miguel, States v. 952 F.2d 288 you Rhines, charge.” free of According to Cir.1991) Duckworth, (citing 205, 492 U.S. at Detective Allender’s statement that an attor- 2881, 106 178). 109 S.Ct. L.Ed.2d at ney appointed “can” ambiguous be In advancing argument [¶ 29] his that Al- legally argues insufficient. He that Miranda warnings deficient, lender’s were re- requires attorney he be an advised would or Connell, lies on United States v. 869 F.2d appointed must be if he cannot afford to hire (9th Cir.1989). Connell, 1349 In the Ninth one. Appeals Circuit suppressed Court of incrimi- nating statements made a defendant after At the heart [¶ 27] of the Miranda he given had been a flawed advisement con- opinion is the “concern that indigent cerning right appointed to counsel. Id. police custody accused in be informed that he at 1353. We believe the facts Connell to just right representation has as much to clearly distinguishable. be attorney person as a who can afford one.” State, Mayfield 216, v. 293 Ark. 736 S.W.2d In contrast to the defendant in 12, (1987), denied, 905, 14-15 cert. 485 U.S. Connell, Rhines was never told he would 1076, 108 S.Ct. 99 L.Ed.2d 235 The arrangements have to make his own for an Miranda Court wrote: attorney government or that the would not fully apprise person order to pay interro- attorney. for his Nor right was his to gated of the rights extent of his under this appointed contingent counsel on a nebulous then, system necessary it is to warn him requirements reference to the of the law. only right he has the to consult expressly Allender informed Rhines of his attorney, with an but also that if silent, he is right to remain to consult with an indigent lawyer appointed will be rep- attorney, and to attorney present. have an resent him. Without this context, additional warn- In this Rhines was also told that an ing right the admonition of the to consult attorney appointed “can” be if Rhines could with counsel would often be understood as not otherwise afford one. There was no meaning only that he can consult with a additional information to mislead him into lawyer if he has one or has the funds to believing attorney that an ap would not be obtain one. warning right of a pointed pay if he could not for one. counsel would be hollow if not couched totality [¶ 31] Based on the warning convey terms that would indigent— Rhines, given to we conclude the advisement person subjected most often to interro- reasonably conveyed right appointed gation knowledge that he too has a —the Duckworth, counsel. See also 492 U.S. at right to present. have counsel 200-01, 2879, 109 S.Ct. at 106 L.Ed.2d at 473, 1627, 175-76; U.S. 86 S.Ct. at Miguel, 287-88; L.Ed.2d 952 F.2d at Tasby

at 723. States, (8th Miranda therefore mandated that a v. United 451 F.2d 398-99 suspect be advised “if Cir.1971), denied, he cannot afford an cert. 92 S.Ct. attorney appointed one will be prior (1972); for him 32 L.Ed.2d 122 State v. Blan any questioning (Iowa if he so ford, desires.” 384 1981); 306 N.W.2d 95-96 1630, 16 U.S. at Strain, (Utah 86 S.Ct. at L.Ed.2d at State v. 779 P.2d 223-24 1989). 726. rights. rights A Miranda waiver of Miranda [¶35] Waiver of express, “may need not be but be inferred Rhines contends he was understanding from the defendant’s of his that, by agreeing ques never told to answer rights coupled with a course of conduct re tions, waiving rights which he would be flecting give up right his desire to his Nor, just had been recited to him. he ar remain silent and have the counsel of an gues, specifically he was he asked whether Betts, attorney.” v. United States 16 F.3d willing rights. to waive these He was (7th Cir.1994) (citing Fare Mi asked, mind, simply “Having rights in these C., 707, 724-25, chael U.S. S.Ct. you willing questions?” are to answer 2571-72, (1979); 61 L.Ed.2d North inadequate Rhines contends this was an ex Butler, 369, 373, Carolina v. planation option of his to waive Miranda (1979)). 60 L.Ed.2d 286 rights prevented giving him from valid [¶ 36] Rhines’ conduct shows a valid disagree. An waiver. We advisement need waiver. When asked whether he understood specifically rights refer to a “waiver” of rights, responded his Rhines that he did. He in order to be valid. affirmatively then answered when asked if he “ is not a ritual of words to be ‘Miranda willing questions. was to answer He was by according nice- recited rote to didactic making articulate and detailed his state require ties. What Miranda does is ments. There no indication Rhines that meaningful advice to the unlettered and drugs was under the influence of or alcohol language unlearned in which he can com- impaired in or that he was otherwise his knowingly prehend and on which he can functioning. any showing Nor is there indulge act. will not semantical de- We unlawfully law enforcement officers induced particular counsel over the bates between or a coerced Rhines to make confession. Ad used to inform an individual of his words ditionally, clearly understood the con Rhines ” rights.’ rights, sequences relinquishing his includ ing the fact that his statements could be used Coyote

Blanford, (quoting 306 at 96 N.W.2d Referring against him in court. to his rea States, (10th 305, v. 380 F.2d 308 United murder, confessing for Rhines sons denied, Cir.1967), 992, cert. 88 S.Ct. remarked, come out in court “This will (1967)). 489, 19 L.Ed.2d 484 questioning, again.” point At another the Bahr, you guys “If Rhines told Allender and Having determined that [¶34] court, you’re bring some of this stuff into warning adequate, now was we must gonna really foolish[.]” look When Allender gave whether Rhines a valid waiver consider . court,” “this isn’t reminded Rhines that rights offers an of his When State replied, Rhines “No. But it will be.” Rhines allegedly by incriminating statement made boldly knowledge professed to have also defendant, the burden of the State has statutory law. and case proving beyond that the a reasonable doubt given knowingly, intelligently, was statement gratuitous statements reflect [¶ 37] Rhines’ Volk, voluntarily. State v. 331 N.W.2d and potentially aware of the an individual who is (S.D.1983). 67, determining whether 70 grave legal consequences of his confession. given of his has a valid waiver defendant clearly The trial court was not erroneous totality rights, we look to the of the Miranda knowing concluding that Rhines made a circumstances, background, “‘including the voluntary relinquish decision to his Miranda experience, conduct of the accused.’” rights. (S.D. Braddock, 452 N.W.2d 788 State v. ISSUE 1990) West, (quoting 344 N.W.2d excusing err. in Did the trial court (S.D.1984)). finding The trial court’s 504 juror prospective cause? for rights had been waived that the defendant’s voluntary part jury process, selection were must be As and his statements thoroughly ques- clearly prosecution upheld it is erroneous. Brad the defense and unless omitted). (citations jurors. dock, prospective When Diane tioned 452 N.W.2d at 788 questioning, Staeffler was called for persons defense to eliminate from the venire who explained two-step process they counsel demonstrate cannot be fair to either determining guilt setting Morgan, sentence in a side of the case. n. U.S. by 112 S.Ct. at n. questioning case. After extensive 119 L.Ed.2d at 506 Balkcom, defense, State, (citing n. 7 and the trial Smith v. 660 F.2d court (5th Cir.1981), modified, regarding whether 671 F.2d 858 Staeffler could consider (5th Cir.1982), denied, imposing penalty defendant, cert. the death on a (1982)). S.Ct. L.Ed.2d 148 challenge the trial court denied State’s permitted for cause. The court then In Witherspoon, [¶42] Court held: questioning State to regard- resume Staeffler “[A] sentence of death cannot be carried out ing capital punishment, by followed addition- jury if imposed recommended inquiries subject by al on the defense by excluding was chosen veniremen for cause questioning, the court. After this additional simply they general objec- because voiced the court duty excused from Staeffler penalty expressed tions to the death con- for cause. religious scruples scientious or against its infliction.” 391 U.S. at challenges the trial court’s 20 L.Ed.2d at 784-85. The Court reasoned First, ruling grounds. on two Rhines con- executing a death sentence returned permit tends it error for the court to jury deprives such a the defendant of his life questioning State to continue Staeffler about process without infringes due of law and his feelings her on the death after the right impartial jury to trial under the already question- trial court had allowed such Sixth and Fourteenth Amendments. 391 ing and challenge had denied the State’s for 518, 1775, at U.S. 88 S.Ct. at 20 L.Ed.2d at Rhines, According cause. ensuing to State’s 783. The Court observed: questions leading argumentative were and [T]he decision whether a man deserves to unfairly express caused to Staeffler an live or die must be made on scales that are unwillingness to penalty. consider the death deliberately tipped not toward death. Second, Rhines contends the trial court’s subsequent decision to excuse 20, Staeffler for 391 U.S. at 521-22 n. 88 S.Ct. at 1776-77 20, cause was a violation of the rule set forth in n. 20 L.Ed.2d at 784-85 n. 20. Illinois, Witherspoon 510, v. 391 U.S. 88 suggested [¶ 43] The Court that the State 1770, (1968). S.Ct. 20 776 L.Ed.2d He ar- legitimately could prospective exclude “those gues Witherspoon requires that the trial jurors who stated in advance of trial that discharge only court for cause those who they would returning not even consider a unmistakably they make it clear cannot and 520, verdict of death.” 391 U.S. at 88 S.Ct. will not follow the court’s instructions with 1776, However, 20 L.Ed.2d at 784. when respect penalty. to the death He claims the swept the State from the those who qualified juror elimination of pan- from the simply expressed religious conscientious or Witherspoon el violation of invalidates the scruples against capital punishment or who imposed death sentence on him. opposed in principle, it it crossed a constitu- 520-21, tional line. 391 U.S. at 88 S.Ct. [¶ Both the 41] United States and 1776,20 L.Ed.2d at 784. South Dakota guarantee Constitutions trial impartial jury. Hansen, State v. 407 The Supreme United States Court 217, (S.D.1987) (citing N.W.2d 220 U.S.Const. has improper since held that the exclusion of VI; VI, 7;§ Amend. Art. juror S.D.Const. potential general objec- SDCL even one with 23A-16-3); Illinois, 719, Morgan v. capital 504 U.S. punishment requires tions to reversal 728, 2222, 2229, 492, 112 S.Ct. 119 penalty. L.Ed.2d Georgia, the death Davis v. 429 (1992) (holding 122, 123, 502 399, 400, the Sixth and Fourteenth U.S. 97 S.Ct. 50 L.Ed.2d (1976); Amendments to the United States Constitu Gray see Mississippi, also v. require impartiality tion “the any jury 481 U.S. 107 S.Ct. 95 L.Ed.2d 622 will sentencing”). Jury undertake (plurality se opinion). In determining important lection is an means of ensuring prospective juror whether a may be excluded right. cause, this process designed The voir dire applies for following the Court ty. subsequent questions by In response to the individual’s views standard: Would “ substantially perfor State, impair misunderstanding ‘prevent or Staeffler’s juror questions appar- mance of as accordance court’s became even more his duties ” his and his oath.’ Wain with instructions ent: Witt, wright v. you asking I have been about State: What L.Ed.2d 851-52 you fairly is whether or can consider mind, we now con principles With these having Judge you as asked in terms of sider Rhines’ contentions. options, including imposing both questioning 1. Continued Rhines, 45] man, I upon Mr. what

of Staeffler. is, up you need clear when answered to Judge Konenkamp, you did understand Rhines contends trial asking you? what he was permitted improperly court the State to re questioning initially sume Staeffler after de Apparently not the time Staeffler: first nying challenge disagree. We cause. considering options. about both to in voir The “latitude allowed counsel dire had not under- Because Staeffler in the prospective jurors largely trial rests questions, ability court’s her stood the Miller, court’s discretion.” State impartially follow the court’s instructions was (S.D.1988) (citing N.W.2d State v. still We cannot fault undetermined. (S.D.1985)). Muetze, N.W.2d allowing inquiries regard- court for additional challenge for Before the court denied the ing ability her As the serve. United cause, expressly op reserved the Supreme Court States observed: questioning portunity continue Staeffler adequate dire trial Without an voir ruling.” “depending the Court’s on judge’s responsibility prospec to remove question then Staeffler proceeded court jurors impartially tive who will not be able First, ability ease. about her to decide the evalu to followthe court’s instructions and if could fulfill a the court asked Staeffler she Ro ate the evidence cannot be fulfilled. juror’s impartial fail’ oath to be States, sales-Lopez v. United responded affirma follow law. Staeffler 1629, 1634, 22 68 L.Ed.2d 101 S.Ct. Second, tively. the if Staeffler court asked (White, J., plurality opinion). options the that could “consider all law and Hence, trial [the court’s] exercise of “[t]he agreed law Staeffler that she the allows.” discretion, upon inqui and the restriction challenge. then the could. The court denied counsel, subject request ries [are] at the However, response subsequent to Staeffler’s Al to demands of fairness.” the essential questions from the State demonstrates States, 308, 310, dridge v. United by questions was the court’s she confused 470, 471-72, L.Ed. 1054 75 S.Ct. clarification neces and additional sary. Although told the court she Staeffler 729-30, 112 at Morgan, U.S. at S.Ct. instructions, immediately could follow its she light In of her 119 L.Ed.2d at 503. was not aware indicated to the State that she inquiries, misunderstanding we of the court’s the would include consideration of death this giving find no of discretion the State abuse penalty. clarify to Staeffler’s answers. opportunity Ma’am, just you Judge asked State: agree Nor do we with Rhines’ 49] [¶ options. you all the whether could consider questions mis the State’s were claim.that penalty? that the death Staeffler: Is argumentative. We can no leading or detect penalty? That includes the death State: questioning between material difference know. Staeffler: Well—I don’t by by the defense counsel. Both State at interjected questioned the defense Staeffler then State and 47] The defense its ob-

[¶ penal length position her on the death questioning about jection to further of Staeffler However, during ty. leading questions their used capital punishment. it had Both about Indeed, uncertainty prom- examination. Staeffler’s just apparent that become Staeffler’s lengthy, and necessitated detailed law take ac- vacillation to did not into ises follow leading questions. penal- inquiries and use her the death count reservations about however, record, Her apparent concerning printed contradictions her there will ability to judge follow court’s instructions had be trial situations where the is left explored by to be counsel for both sides. impression pro- with the definite that a acknowledge The defense even seemed to spective juror faithfully would be unable to leading questions usefulness of ascertain- impartially apply law.... [T]his ing point, views. Staeffler’s At one defense why paid must to the trial deference be Staeffler, probably counsel ‘T know I said to judge juror. who sees and hears the putting your have been words in mouth or 424-26, 105 Wainwright, 469 U.S. at to, to, trying I but don’t intend but I’m 852-53, 83 L.Ed.2d at 852-53. trying you really get at where are at on Later, penalty.” this death defense counsel In 52] with the [¶ accordance Court’s Staeffler, stated “[The counsel is] State’s reasoning, state a judge our law vests trial trying you road to lead down a and I’m with determining juror broad discretion in road, you trying to lead down a but Hansen, here’s qualifications. 407 N.W.2d at need, jurors what we we who need come into Flack, (citing 77 S.D. though you even very case and have (1958)). ruling N.W.2d “The strong penalty, reservations about the disturbed, trial except court will be in the jurors you we need like well[.]” as Staef- support absence of evidence to it[.]” during appear fler’s answers voir dire to Flack, N.W.2d at S.D. 32. genuinely objections personal her reflect juror “When the evidence of each is contra capital punishment unwillingness and her itself, dictory subject and is to more than participate process imposing pen- construction, finding one the trial court alty light questioning death. of similar way challenge either upon the is conclusive defense, by the State and we cannot appeal.” on Id. at N.W.2d at 32. conclude responses that Staeffler’s were the product of intimidation or support 53] confusion caused To his claim [¶ of er ror, the State. responded are not determinative.” Bank phasis original.) First South The law does not de (S.D. 630, Voneye, Dakota precision. Wainwrigkt, mand such v. 425 N.W.2d 633 1988) Hansen, juror’s 220; (citing a Court held that need 407 N.W.2d at bias not be Flack, 181, 32). proved clarity.” with 77 at “unmistakable S.D. 89 N.W.2d at explained: Although Court Staeffler said at various times dur ing voir that dire she could consider a death juror [D]eterminations of bias cannot be during deliberations, penalty sentence she question-and-answer reduced to sessions also that she capital stated could not consider which obtain results in the manner of a punishment any under circumstances. She catechism. What common sense should that, made still experience indicating other statements proved: have realized has while many might she be able simply capital veniremen to consider cannot be asked punishment, enough could fair questions point impar to she not be and reach the where their tial. bias been Staeffler said she did not like the “unmistakably has made death clear”; penalty may and “would jury these veniremen not rather not” sit on a know they how in capital will react with a impos- when faced case. She said did not she know sentence, ing if may sleep the death she if night be unable could at she voted to articulate, to may impose penalty. wish hide their the death When if asked true feelings. Despite clarity this lack of she part jury could be of a that sentenced a death, said, “Probably Rhines contends the State’s use [¶ 57] Staeffler defendant really challenges “I I do it.” peremptory don’t think could violated his constitu- not” mur- when counsel described right by impartial Even defense to a trial a fair and tional awful,” “just as that Staeffler described jury. argues ders should not be He responded, “I still don’t want make she ju- all permitted peremptorily challenge Upon penalty] addi- decision.” [death qualms pen- rors with mere about death State, by questioning Staeffler said tional excluding alty prohibited from when is thought capital punishment appro- she He that same for cause. reasons individuals not the priate at noted she was one times but which, jury a because of the State’s selective Although making the she penalty decision. challenges, have peremptory use of does not penalty imposition of the death said any members with reservations about circumstances, depend she also would on jury a punishment is no different than from imagine that she could not circum- stated ex- group which members of that have been impose could a death sen- stances where she thus his cluded for cause. Rhines asserts jury duty, If for she stated tence. selected be for conviction and sentence must reversed leaning imposing a life she would be toward by a new has not been culled trial penalty. opposed as to the death sentence question all of the death of who the wisdom if asked the trial court she would When penalty. stated, “No, options, fairly she consider both said, guess not.” later “I could consid- I She statute, By prosecution but I want I penalty], er death don’t to. [the given equal are each the defense make for wouldn’t want the decision challenges. peremptory number of SDCL she She then reiterated that could death.” challenge “is an peremptory A 23A-20-20. options fair give consideration to both objection juror no need to a for which reason penalty. imprisonment and the life given.” can be be SDCL 23A-20-19. It complete review of 54] Based on a Staef- “ be inquiry ‘without without exercised her testimony, fler’s we conclude that views ” v. ing subject to the court’s control.’ J.E.B. “prevent or sub- on the death would T.B., 127, -, rel. Alabama ex 511 U.S. stantially performance of impair the [her] 89, 1419, 1431, 128 L.Ed.2d S.Ct. juror with [her] duties as accordance (O’Connor, J., concurring) (quoting Swain Wainwright, oath.” [her] instructions 824, Alabama, 380 U.S. S.Ct. 83 L.Ed.2d 105 S.Ct. at 469 U.S. (1965)). excep- An L.Ed.2d trial court did not abuse its at 851-52. The upon prima showing facie tion excusing her cause. for discretion challenges in a prosecutor peremptory used ISSUE 3. sexually discriminatory manner. racially or peremptory 96-7, Kentucky, Did use chal- the State Batson v. 476 U.S. guaran- process (1986); J.E.B., lenges of due violation 87-88 S.Ct. L.Ed.2d jurors excluding prospective with at -, tees penalty? the death reservations about prosecutor then at 106-07. The 128 L.Ed.2d establishing has nondiscrimina the burden undisputed per- used It is the State tory striking particular members reasons challenges prospective eliminate emptory Batson, 97, 106 476 U.S. at of the venire. capi- reservations about jurors who had some J.E.B., 88; 1723, at 511 90 L.Ed.2d S.Ct. at had punishment. These individuals indi- tal 1429, at -, L.Ed.2d 114 at 128 U.S. S.Ct. they aside their doubts and cated could set use This on State’s at 106-07. restriction and and were therefore not impartial fair be is on the peremptory challenges based of Witherspoon under and for cause excludable is person’s gender race or principle that a waived its 19th progeny. The State also its juror. a Bat to his fitness as See unrelated peremptory challenges an at- 20th and 1718, son, 87, 90 at 106 at S.Ct. 476 U.S. jury prospective a tempt to seat a before J.E.B., at -, 81; 114 at 511 U.S. L.Ed.2d juror expressed equivocal senti- who had 1426-27, at 102-04. 128 L.Ed.2d S.Ct. at penalty death could be ments about declaring However, for no basis “[t]here is questioning. called for individual 434 juror’s

that a attitudes towards the ignores impor death Rhines also an similarly penalty peremptory are irrelevant to the out- tant distinction between chal capital sentencing lenges challenges proceeding.” Challenges come of a and for cause. Carolina, unlimited, 940, 941, peremptory Brown v. North 479 U.S. cause are while 423, 424, (1986) 373, challenges 107 S.Ct. 93 L.Ed.2d 374 are restricted in number. In (O’Connor, J., fact, In concurring). ju- Witherspoon, permitted prose “a state law capital jurors punishment, ror’s on cution to excuse for views unlike his cause all who race, directly potential expressed any scruples against or her are related to conscientious 514, performance capital jury.” capital on a punishment. 391 State v. U.S. at 88 S.Ct. Fullwood, 371, 518, 1772-73, at N.C. S.E.2d L.Ed.2d at 323 373 525 20 780. This broad- (1988), grounds, gave vacated on other 494 based rule of exclusion U.S. (1990).

1022, 1464, selection, advantage jury 110 108 L.Ed.2d 602 decided S.Ct. because Ignoring severely automatically guaranteed jury these attitudes would inhi- free prosecution capital any bit of penalty. the State’s of about crimes reservations representation counsel’s defense zealous contrast, peremptory chal of their clients. lenges are limited and both the State and the dispute prosecutor There can be no that a defendant receive the number. same SDCL right, duty, has the indeed the to use all Consequently, prosecution 23A-20-20. legal ethical means to obtain a convic- and the equal opportunity defense have an tion, including right peremp- to remove who, remove those members of the venire torily jurors may whom he believes not be while able follow the instructions of the willing impose punishment. lawful Of court, espouse extreme pun views of course, defense right counsel has same Brown, 941, ishment. See 479 at U.S. 107 duty jurors may to remove he believes 424, (O’Connor, J., S.Ct. at L.Ed.2d at 93 374 prosecution be pre- oriented. This Court’s certiorari). concurring in of denial suggest cedents do the Wither- ... infirmity “[W]e see no constitutional spoon line cases restricts the traditional permitting challenges peremptory by both rights prosecutors and defense counsel specific juror sides on the basis attitudes peremptory challenges their exercise penalty. on the death aWhile statute this manner. requiring jurors exclusion of all with 671-72, Gray, 2058, at 481 U.S. 107 S.Ct. at feeling against penalty produces the death J., (Powell, 95 L.Ed.2d at 641-42 concurring). death, biased favor of we have no proof arises, that a similar bias on either Supreme [ 59] United States Court issues, guilt parties when both “ precedent ‘jury competence teaches that is equal, are allowed to exercise their limited an group individual rather than a or class ” J.E.B., peremptory challenges numbers of ... at -, matter.’ 511 U.S. 114 S.Ct. against jurors harboring specific attitudes 1434, (Kennedy, J., L.Ed.2d 128 at 112 they reasonably believe unfavorable.” concurring) (quoting Thiel v. Southern Pac. Co., 217, 220, Gordon, 328 People 66 S.Ct. 90 v. 50 Cal.3d 270 Cal. (1946)). discriminatory Rptr. 451, L.Ed. 792 P.2d Turner, peremptories gender use of race (quoting People based on 37 Cal.3d gives (1984)) group effect to an stereotype Cal.Rptr. invidious (emphasis 690 P.2d 669 preempts denied, in original), individualized assessment of cert. 499 U.S. competency. That is not the case where a S.Ct. L.Ed.2d See also juror J.E.B., peremptorily challenged at -, due to his or J., her own penalty. (O’Connor, views the death In that concurring) L.Ed.2d at case, particularized has made (“Peremptory counsel a challenges, by enabling and each appraisal prospective ju fact-based of jurors side to exclude those it believes will be ability judge fairly ror’s to impartially. partial side, and most toward the other are a group given Pernicious biases have not been eliminating] means of of partiality extremes sides, effect in that thereby circumstance. on both assuring the selection

435 Lockhart, 183-84, 106 at qualified jury.”) (quoting 476 U.S. at S.Ct. of a and unbiased Illinois, 474, 484, 1770, 110 90 L.Ed.2d at 154-55. v. 493 U.S. Holland (1990)). 809, 803, 107 L.Ed.2d 905 S.Ct. We hold there is no therefore prohi-bition or constitutional state federal not Importantly, Rhines does peremptory against the use of chal State’s identify any jurors in favor who were biased jurors lenges prospective to exclude all who fairly incapable or of the otherwise of expressed pen death reservations about the applying the law. He weighing the facts and alty not for on but were excludable cause jurors simply objects the elimination of to that basis. a may impose have less inclined to who been jury impartial con “[A]n death sentence. ISSUE ‘jurors nothing of more than who will sists conscientiously apply the law and find punish- capital Do South Dakota’s ” McCree, facts.’ Lockhart v. U.S. or ment statutes violate the state federal 137, 151 178, 106 1758, 1767, L.Ed.2d S.Ct. constitution? Wainwright, 469 U.S. at (quoting Rhines contends that South 841) (empha at 105 S.Ct. at 83 L.Ed.2d punishment capital Dakota’s statutes violate deleted). think, not simply do be- “[W]e sis on num the state and federal constitutions a being capital a is tried a cause defendant claims, grounds. considering his ber of crime, legal presump- he is entitled a strong presump is a we reiterate there jurors be or that allows tion standard constitutionality of of a tion favor likely quite will be biased in his seated who Floody, v. N.W.2d statute. State Wainwright, favor.” (S.D.1992) Tobin, (citing Simpson v. Further- 83 L.Ed.2d at 851. S.Ct. (S.D.1985)). presump N.W.2d This more, a law not demand balanced does clearly, only appears is when it tion rebutted opinions jury in the box. sampling of palpably, plainly that statute violates re- true that the Constitution [I]f it were provision. Id. a constitutional mix quired a certain of individual view- judges

points jury, then would on trial felony [¶ 66] 1. Distinctions between Sisyphean required be to undertake premeditated murder and juries, “balancing” making task sure of murder. proper that each contains number satisfy re constitutional [¶ 67] To Republicans, young per- Democrats and sentencing quirements, scheme persons, old execu- sons and white-collar reasonably imposition of a justify “must laborers, on. tives and blue-collar and so com sentence on the defendant more severe guilty of murder.”

pared to found others 877, 103 Stephens, Zant 249-50 L.Ed.2d simply possible ... is to define [I]t law, felony murder South Dakota both Under pur- jury impartiality, for constitutional by punishable premeditated murder are hypothetical poses, reference some 22- imprisonment. or life SDCL viewpoints. Prospective mix of individual 22-16-12; 16-4; 22-6-1. jurors many different back- come from many killing 68] At the time of Schaef- grounds, and have different attitudes fer, felony Dakota defined murder predispositions. South law But Constitution person by a en- as a homicide “committed presupposes that a selected from of, perpetration attempt to gaged im- in the community fair cross section arson, rape, robbery, burgla- regardless perpetrate, the mix of partial, individual throwing, placing ry, kidnapping, or unlawful viewpoints actually represented on device or jurors discharging of a destructive jury, long can as the conscien- so 22-16-4. Premeditated carry explosive.” SDCL tiously properly out their sworn “perpetrated as a homicide duty apply law the of the murder is defined facts authority premedi- law and with without particular case. design performance tated to effect death person engaged of his offi- duties; any of cial being.” killed or other human Id. (8) by person The offense was a committed impose 69] In death order a in, from, escaped or who has the lawful sentence an individual on convicted of either custody of a law enforcement officer or murder, felony premeditated murder or place confinement; of lawful

jury must find the existence of at one least (9) pur- The offense was for the committed statutory aggravating beyond circumstance a pose with, avoiding, interfering of or 23A-27A-4, doubt. reasonable SDCL -5. At preventing custody a lawful or arrest crime, the time of Rhines’ SDCL 23A-27A-1 place confinement, in a lawful of of following listed circum another; himself or or stances: (10) The was committed in offense (1) by The offense person was committed a manufacturing, course of distributing, prior awith of for record conviction a dispensing or substances listed felony, A or Class Class B or of- Schedules I and II in violation of by of fense murder was a committed § 22-42-2. person history who has a substantial of 1989S.D. Sess.L. eh. 206. convictions; serious assaultive criminal argues [¶ 70] Rhines that individuals who (2) knowingly The defendant his act felony culpable commit are murder less than great created a of risk death to more murder, guilty premeditated those who are of person public than one in a place presumably they specific because lack weapon of a means or which device to kill being. intent another human He normally would be hazardous to claims the law distinguish therefore fails to of person; more than lives one between those individuals who deserve the (3) defendant The committed the offense and those who do not. another, purpose for himself or for the reject claim We Rhines’ receiving money of or thing other First, three reasons. we note Rhines was monetary value; of murder, premeditated convicted of felony (4) The defendant committed the offense Therefore, any murder. ineq constitutional judicial officer, judicial on a former punishment felony uities of murderers officer, prosecutor, or prosecu- former inapplicable Second, are to his case. we tor while prosecutor, such former agree cannot that individuals who commit officer, prosecutor, judicial or former engaged murder while in other serious judicial engaged officer per- in the are deserving penal crimes less of the death formance of his official duties or where ty premeditated than those who commit mur major part of the motivation for the implies only der. Rhines that those who offense came from the official actions qualify to kill intend should for the death judicial officer, of judicial such former penalty. agree While we that intent is a officer, prosecutor, prosecu- or former consideration, agree relevant we do not tor; only those who to kill intend should receive (5) The defendant caused or an- directed punishment. ultimate The malicious mo commit murder or committed felony tives elemental to can murder also as an agent employee murder or of justify a sentence of death. law is free person; another equally condemn those who murder with murder, to kill the intent and those who also (6) outrageously The offense was or wan- steal, but do so with intent rape, vile, horrible, tonly or inhuman in that burn. torture, mind, depravity involved aggravated victim; battery or an Third, in claiming felony against The offense was deserving committed capital punish murder less officer, ment, law employee enforcement ignores long list statuto institution, corrections ry aggravating fireman while circumstances further

437 expressly acknowledged that a sentence. The Court imposition of the death limit the may of and limit jury at least one these state court further define oth- Unless the finds circumstances, indicating aggravating more and vague erwise overbroad fac- culpability, individual provide criminal an guidance extreme tors to the sentenc- so as felony cannot receive the guilty satisfy requirements. of murder er and constitutional 3057, conclude the 654, death sentence. We therefore at at 111 497 U.S. 110 S.Ct. sentencing capital scheme “reason- State’s L.Ed.2d at 529.

ably justif[ies] imposition the of a more se- com- defendant[s] vere sentence on [certain] concerning 3. Guidance 77] [¶ guilty pared others of murder.” found mitigating evidence. Zant, 2742, 77 462 U.S. 103 S.Ct. jury guilty returns [¶ 78] When at 249-50. Rhines’ constitutional L.Ed.2d case, capital in a the trial court must verdict rejected. challenge is presentence hearing before the conduct time, jury. 23A-27A-2. At that SDCL narrowing Defining jury mitiga may hear additional evidence eligible” “death offenses. punishment. Id. aggravation tion and of Un specif- identifying any other [¶ Without 74] capital sentencing der Dakota’s stat South infirmities, alleges separately that ic utes, jury of find existence must legislature’s delineation of Class A broad beyond a aggravating circumstance reason felonies, statutory aggra-. combined with may impose the able doubt before it death 23A-27A-1, vating in SDCL circumstances -5. The law penalty. SDCL 23A-27A-4 and sufficiently narrow and define the does not jury any permits mitigating consider eligible” He pool of offenses. further “death circumstances, any impose not but does stan may not argues that the trial court cure proof regarding mitigation. dard of SDCL by fashioning defects these constitutional 23A-27A-1 and -2. capital limit jury define and instructions to He that to do so would crimes. asserts that sentences Rhines asserts death separation powers violate the of between arbitrarily imposed violation of the will be judicial repre- constitutions, legislative and branches because the state and federal legisla- delegation of an unconstitutional sent capital sentencing statutes do Dakota South authority. tive proof mitigating for include standard explain how the or otherwise circumstances generalized makes the 75] Rhines [¶ mitigation. jury weigh should evidence eligible complaint pool of death of He does not articulate fenses is too broad. determining whether an 80] In specific why classifications reasons these penalty eligible individual inadequate. note the States are We United sentence, the law in fact receive that should capital approved a Supreme has state Court jury make individual “an demands nearly identical to punishment scheme that the char on the basis of ized determination Gregg v. Dakota’s death laws. South and the circumstances acter of the individual Georgia, 428 U.S. 96 S.Ct. California, Tuilaepa v. crime.” (1976). general allega Rhines’ L.Ed.2d 859 -, -, S.Ct. U.S. meaningful defy more review and tions omitted) (citations 750, 760 L.Ed.2d fail. therefore (emphasis original). requirement “The sentencing capital cases is that state individualized As to Rhines’ claim jury consider all by allowing the fashioning limit satisfied prohibited from courts are Blystone v. instructions, mitigating evidence.” disagree. The relevant ing we must 299, 307, 110 S.Ct. Pennsylvania, 494 U.S. Supreme held that Court has United States (1990). 1078, 1083, 108 L.Ed.2d defini vague overbroad the existence permit Capital sentencing procedures necessarily does not tions of crimes wide discretion evalu to exercise Walton a constitutional violation. establish aggravating facts are Arizona, 639, 653-54, ating mitigating sentencing with an individualized consistent 528-29 L.Ed.2d at -, Tuilaepa, mitigation, determination. to be considered sen- 2636, 114 at 129 L.Ed.2d at 761. South tencer. S.Ct. open-ended mitigating Dakota’s treatment of Alabama, U.S. -, -, Harris v. 513 115 evidence with the mandate indi coincides of 1004, S.Ct. 130 L.Ed.2d 1014 sentencing.

vidualized authority, on Based this we conclude adequately that South Dakota’s statutes di capital sentencing state’s [¶ 81] Our jury’s aggravating rect the of evaluation and Georgia’s sentencing scheme is modeled after mitigating during capital evidence the sen procedures. Gregg, plurality In a of the tencing phase. Supreme gave ap- United States Court tacit proval Georgia to the scheme: jury 4. The as sentencer. permitted jury While the is to consider upon [¶ 84] SDCL 23A-27A-4 states that circumstances, aggravating mitigating or it receipt death, of a recommendation of identify must find and at least one statuto- judge the trial “shall sentence the defendant ry impose aggravating may factor before (Emphasis supplied.) to death.” way jury’s a of In death. this the mandatory provision contends prevents this longer No can discretion is channeled. a judge ruling the trial from appropri- on the jury wantonly freakishly impose and the verdict, jury’s may ateness of the as he in sentenced] cases, pro- and equal therefore violates 206-07, 2941, Gregg, 428 at 96 U.S. S.Ct. at guarantees. tection He asserts the trial (plurality opinion 49 L.Ed.2d at 893 of Stew- court cannot consider whether the sentence J.J.). art, Powell, Stevens, and also See imposed arbitrarily, evi- whether the Zant, 875, 2741-42, 462 at U.S. 103 S.Ct. at supported jury’s dence finding ag- the anof 77 (noting Gregg L.Ed.2d at 248-49 the gravating circumstance, and whether the approved capital Georgia’s Court sentencing disproportionate sentence was excessive or to though spe- statute even it did not enunciate penalty imposed the in similar cases. He guide jury’s cific standards to the consider- argues mandatory further the nature of the of mitigating ation and circum- jury’s capital verdict denies the defendant stances). opportunity request the a judgment of acquittal a Similarly, opined: 82] or file motion for a Court has “A new trial. capital need sentencer not be how instructed Neither the state nor federal weigh any particular capital fact require constitution the trial court to review sentencing decision.... ‘[Discretion to propriety jury’s sentencing deci weigh evaluate and rele circumstances capital sion a case. The United States particular vant defendant Supreme approved Court has a capital sen impermissible crime he committed’ is not in tencing permits jury, scheme that rather capital sentencing process.” Tuilaepa, court, than the trial sentencing to make the at -, 2638-39, 512 114 U.S. at 129 206-07, Gregg, decision. 428 at U.S. 96 S.Ct. (quoting McCleskey Kemp, L.Ed.2d at 764 v. 2940-41, (plurality opin at 49 L.Ed.2d at 893 279, 37, 1756, n. 481 U.S. 315 107 S.Ct. 1779 Stewart, Powell, Stevens, J.J.); of ion 37, 262, (1987)). n. 37 L.Ed.2d 293 n. The Gregg, 221-24, U.S. 2947- S.Ct. at position Court has stated its in even more 49, opinion (concurring L.Ed.2d 901-04 emphatic terms: White, C.J.). Rehnquist, J.J., Burger, rejected have specif- We the notion that “a scheme, approving the Court did not balancing mitigating ag-

ic method for judge mandate that the trial independently gravating capital sentencing factors jury’s sentencing review the decision. Addi constitutionally proceeding required.” Florida, is tionally, Spaziano Lynaugh, Franklin v. (1984), 104 S.Ct. L.Ed.2d 340 108 S.Ct. 101 L.Ed.2d acknowledge jury’s Court seemed le (1988). Equally corollary gitimate settled capital role as sentencer case: require Constitution does not “This Court’s decisions indicate that the dis any specific weight sentencing authority, ascribe cretion of the whether factors, particular aggravation judge jury, either in must be limited and reviewa- 19,1992, jury’s taped confession for the 104 S.Ct. at June 468 U.S. at ble.” added). The Court (emphasis guilt phase at 354 during L.Ed.2d consideration wrote: further trial: quarrel no with the particular have

We really into our buy Allender: You don’t more juries, perhaps, are proposition that system justice you? you I mean don’t do deci- making the life-or-death capable really believe in it? choosing than in a case sion Rhines: Justice? options sentencing among the various Sentencing noncapital case. available a Yeah. Allender: certainly required judge is not by the trial $100,000 a Rhines: For If I had for who? Georgia, 408 by Furman v. attorney Free, fancy on an ac- I’d walk. What L.Ed.2d 346 quittal. that, juries accept we do not is becatise sentence, constitutionally must they may that, you right, that? Bahr: Do think that’s (Emphasis supplied.) do so. you? Do Rhines: n. at 463 n. 104 S.Ct. at 3163-64 No, you a Bahr: not if took life. 8, L.Ed.2d at 354 n. 8. You true. Rhines: know it’s addition, any crimi- In unlike other [¶ 86] defendants, are sen- individuals who nal you Bahr: Do ... judge by jury or trial to death tenced $100,000 I drop If to into Rhines: had appellate review of their receive automatic attorney country in the in the or best (“If 23A-27A-9 sentence. SDCL region. midwest imposed, judgment and if the be- penalty is court, anything’s possible, But Bahr: see final the trial the sentence comes by somebody the record the South a life. be reviewed on But if takes shall Charles. Court.”) sup- Supreme (Emphasis Dakota guilty I’ve walk. Rhines: seen and then sentence, this evaluating plied.) Knowing they guilty. were must determine: Court get to you Bahr: Would want off? (1) un- imposed Whether the sentence was passion, prejudice, the influence of der you? Rhines: Would factor; arbitrary any or predicament. I’m in that Bahr: not (2) supports the the evidence Whether Me Rhines: neither. finding statutory jury’s judge’s of with completely honest Bahr: You’ve been aggravating circumstance as enumerat- 23A-27A-1; us, §in ed Charles? is ex- sentence of death Whether the not, in a predicament I’m I’m not Rhines: pen- disproportionate cessive or wanting having the where- get off and cases, imposed consider- alty in similar predicament of I’m in the withal to do so. ing defendant. both the crime having the wanting get off and 23A-27A-12.

SDCL to do so. wherewithal sweep light of this 87] In Court’s [¶ you us? Have been truthful with Bahr: of a defen ing, mandatory review emotionally. As much as I can Rhines: sentence, er find no constitutional we dant’s solely sentencing your, as vesting sequences decision These best Bahr: ror trial jury anything than the court. in the rather I don’t have you can remember? further. ISSUE I. Allender: Either do discre- Did court abuse its the trial you try uh a last suppose Do Rhines: admitting statements tion night? before Camel sys- justice concerning inequities in the Yeah. Allender: tem? (inau- rough kind of gonna It’s be Rhines: objection, trial Over Rhines’ over) talking following of his portion admitted court dible— Um, admissible, just a argues any Allender: second. This will be was not the State tape end of this is 2232. error was harmless. 94] “Evidence which is not rele 90] The trial court found the discussion vant is not admissible.” 19-12-2. SDCL gave insight the nature of Rhines’ into state- “ having means ‘Relevant evidence’ evidence officers, ments law enforcement showed any tendency to make the existence of his of mind at the time of his confes- state fact of consequence that is to the determina sion, weigh and allowed the Rhines’ probable tion of the action more less confession and his attitude about his crime. probable be than would without the evi probative found the The court further value However, dence.” 19-12-1. the trial SDCL outweighed any prejudicial evidence may court exclude evidence “if relevant its effect. probative substantially outweighed value is During penalty phase danger prejudice[.]” unfair SDCL trial, the State asked the court to instruct the This balancing process 19-12-3. delicate jury previously to the evidence reconsider within trial the court’s sound and discretion guilt during proceedings. entered the This ruling the will not be court’s disturbed ab necessarily would include Rhines’ statements Cross, sent abuse. State v. 390 N.W.2d regarding justice system. the The defense (S.D.1986); Thomas, State v. 381 N.W.2d objections any jury did raise the not and was (S.D.1986). previ- to all instructed reconsider evidence ously during guilt phase.3 admitted the Admissibility guilt phase. 1. argues [¶ 92] Rhines his statements con- Contrary to Rhines’ conten justice system cerning the not were relevant tion, properly the trial court determined his guilt sentencing to proceedings. either the were statements relevant to the determina disputes finding He trial that the court’s his guilt. question tion of remarks tend remarks were relevant to his state of mind or to show the truthfulness of Rhines’ confes reliability the He of his confession. asserts sion. compared Rhines himself in to other the statements were inadmissible character guilty are dividuals who of murder. He re evidence, portrayed person that him bad as a “wanting get ferred to to off.” He also jus- who scorned distrusted and the criminal stated that he was truthful as as he could system. tice acknowledges Rhines the be All with the officers. of state these jury’s guilty effect of these statements on the ments reinforce State’s assertion “may slight.” verdict well have been minor or killed Rhines Schaeffer and that confes his However, he the of asserts admission his freely sion knowingly to the crime was and unfairly prejudiced him during statements given. sentencing phase the of the trial and warrant 97] Nor can we [¶ conclude ad jury’s of the death reversal sentence. unduly mission the prejudiced remarks State, According during Prejudice the guilt phase. to Rhines’ re- Rhines the reliability reflect on advantage marks and voluntari- “refers to the unfair that results statements, a inquiry capacity ness of his relevant from the persuade the evidence to guilt Holland, during phase illegitimate of the trial. The State means.” State v. (S.D.1984). also asserts the sentencer must have a broad 346 N.W.2d The state range may appropri- so that it question of information ments in were brief and occurred at ately sentence, lengthy determine the and evidence of the end of Rhines’ and detailed con character, context, background particu- Rhines’ jury fession. In this was more remorse, larly likely rely lack highly his was relevant on to the statements for their legitimate reliability to this Even if purpose proof determination. the evidence of the —as 23A-27A-12, capital sentencing hearing, 3. Under SDCL this Court must de in a we need evidentiary termine "whether the sentence of death was im decide whether the failure to renew posed passion, prejudice objections during phase under the influence of constitutes a any arbitrary triggers plain analysis. other factor." Because of this waiver or error See State Sonnier, 1980). (La. independent reviewing proceedings basis for So.2d confession, unfairly preju- as of Rhines’ rather than evidence the evidence was irrelevant or dicial, any character. was of bad harmless. There error was ample relating to circumstances evidence 98] Even if the statements were above, con- of the murder. As noted Rhines admitted, it would improperly constitute times, young fessed four once woman guilt error. Rhines’ harmless Evidence of officers, and three times to law enforcement overwhelming. Rhines confessed jury recordings and the of two of listened times, burglary and four murder once to a Rhines’ with Rhines’ confessions. Armed young law woman three times to enforce crime, unlikely own account of his The jury tape ment officers. even listened to jury disputed relied remarks in ascer- on recordings confessing the bur taining the circumstances of Schaeffer’s glary and murder. His statements about rendering its sentence. clothing location of items that after he discarded the crime were substanti ISSUE by witnesses

ated who discovered items. did of the The defense not refute State’s trial its dis- [¶ 102] Did the court abuse evidence, having immediately rested after the appoint refusing cretion in a forensic light of the conclusion State’s case. expert communication to assist Rhines guilt, strong unlikely evidence of Rhines’ it is preparing his case? unfairly rely would on Rhines’ dis rendering guilty puted statements in ver motion pretrial 103] Rhines submitted appointment dict. of a forensic communication expert analyze community to and a conduct Admissibility phase. penalty study design supplemental attitude a questionnaire juror county’s expense. at the jury In all eases where the homosexuality that Rhines was concerned his verdict, a guilty rendered state law re- has unfairly jury, would influence and he the hearing prior sentencing. quires a to SDCL anticipated community using the attitude hearing be 23A-27A-2. “Such shall conduct- survey juror questionnaire to address in mitigation to hear additional evidence ed court Rhines’ this issue. The trial denied aggravation punishment.” of Id. In this ease, motion. granted trial court a defense the motion offering any the prohibiting State from evi- the the 104] Rhines claims denial of [¶ non-statutory aggravating factors. dence on of motion was an abuse the trial court’s to The was therefore restricted offer- He contends voir alone was discretion. dire aggravating that to the

ing evidence related inadequate detecting an method for and elim- set 23A-27A-1. circumstances forth SDCL jurors inating against with biases homosexu- claim, ality. points To support 101] Rhines contends the dis his he to [¶ any by portions three-page composed irrelevant to puted statements were note urged by jury during aggravating the to the court circumstances the and delivered disagree. factor The note included the We One deliberations. State. following Rhines questions: that commit alleged State was being for murder to avoid arrested ted the Will Mr. Rhines be allowed to mix with the 23A-27A-K9). In the dis burglary. SDCL general population? inmate discussion, he indicated wanted puted discuss, Mr. Rhines be Will allowed money only lack of get and that his “to off’ brag about his crime to other describe or His doing him from so. desire prevented inmates, especially young new men and or spite of his admitted punishment avoid (Ex: DWI, jailed drugs, for lesser crimes alleged to his wrongdoing directly relates etc.)? assault, avoid lawful killing motive Schaeffer —to marry Will Mr. Rhines be allowed to possibility The confinement. arrest and conjugal have visits? cynical Rhines’ jury might disapprove of jailed Mr. Rhines be alone or will he probative Will enough is not to defeat attitude Furthermore, have a mate? if cell even this evidence. value of jury’s responded ques- trial court affect

The to the Rhines’ sexual orientation would not following with the statement: tions written counsel how she decided case. Rhines’ acknowledge your asking questions “I note juror to remove did not seek from imprisonment. life All information about panel. give you jury I is set forth in the instruc- can Although Rhines contends tions.” jury’s judge note to the a bias shows jury’s 105] Rhines contends the note against homosexuality, agree. we do not The homophobic im- reflected sentiments jury’s questions during penalty phase properly jury affected deliberations. He prison than relate to conditions rather this Court to asks reverse his conviction and jurors began Rhines’ sexual orientation. The and order that sentence he receive re- following the note with statement: quested expert assistance on retrial. [sic], Konnekamp Judge appointment The of an ex proper punishment order award the pert is within the trial court’s discretion. prospective a clear we need of what [sic] Stuck, (S.D.1988) State v. N.W.2d really In Prison “Life Without Parole” Archambeau, (citing State v. 333 N.W.2d Penalty We know what the Death means. (S.D.1983)). “Trial should courts scruti Means, but we have no clue as request expert nize defense for an to insure reality of Life Without Parole. indigent procure an may any defendant posed questions jury Other involved defense, and, doubt, reasonable when lean release, given whether Rhines would be work appointment expert.” toward the such placed security in minimum prison, allowed Hallman, (citing at 51 Id. State v. admirers, group create a followers or (S.D.1986)). N.W.2d Where an indi permitted to college, attend allowed gent requests ap defendant such as Rhines joys “have or attain of the common of life pointment expert county expense, of an (ex Radio, Music, TV, Telephone or hobbies (1) requirements four must be satisfied: allowing activities him distraction (2) faith; request good must inbe it must be punishment).” from his asked also respects; reasonable all it must be daily what routine prison. would be in timely specifically necessity and set forth jury closed with these remarks: expert; specify and it must that the sorry, Honor, any We are Your if these financially defendant is to obtain unable questions inappropriate are but there required service himself such and that ser huge gulf be a seems to between our two justifiably vices would otherwise be obtained alternatives. On one hand Death there is (Cita financially were defendant Id. able. on the other in hand what is Life omitted.) tions prison parole. w/out case, In [¶ 107] this there was no context, jury’s questions this about necessity public survey opinion for a marrying, having Rhines a cell con- mate or supplemental questionnaire juror to ascertain visits, jugal having contact or discussions “[V]oir bias. dire examination is the better with other inmates do not reflect a bias ascertaining forum for the existence of hostil against Instead, preference. Rhines’ sexual Smith, ity towards the accused.” v. State they jury’s legitimate reflect efforts (S.D.1991) (citing 477 N.W.2d State v. weigh appropriateness imprison- of life Reutter, (S.D.1985)). 374 N.W.2d penalty. ment the death versus We find no review impartial Our of voir dire an shows abuse of discretion the trial court.

jury impaneled. was ques Defense counsel eleven jurors regarding tioned of the twelve 7. ISSUE feelings homosexuality. their about Ten of Did the trial [¶ 109] court dis- abuse its jurors expressed feelings neutral about by refusing pro- cretion three of Rhines’ homosexuality, indicating it would have no posed jury instructions? impact on making. their decision The elev juror enth stated that regards pro- she homosexu The trial court [¶ 110] refused Rhines’ ality However, as sinful. posed jury she also stated instructions 11. Nos. 9 and give impose requirement. Once the sentenc- failure to claims the trial court’s statutory aggrava- of a er finds the existence process violated the due these instructions circumstance, it has broad discretion to ting punishment clauses of the United and cruel impose the sentence of decide whether and South Dakota Constitutions. States Further, “sufficiently death. substantial” trial court has broad [¶ 111] The jury in little to aid the its standard does jury. instructing discretion sentencing court difficult decision. -The trial (S.D.1987). Bartlett, 411 N.W.2d jury penalty instructed the the death when, adequate con “[J]ury instructions are imposed at least one could not be unless whole, they give the full and sidered as a aggravating present be- circumstance applicable law correct statement of the yond The trial court a reasonable doubt. Horse, 490 N.W.2d State v. Fast ease.” impose jury that the could further instructed (S.D.1992) Owl, Grey (citing State v. if it penalty imprisonment of life even (S.D.1980)) (emphasis omit N.W.2d statutory found the existence of one or more ted). reversal, trial court’s To warrant circumstances, explaining that a aggravating appropriate give instruction refusal imposed or no life sentence could be unfairly prejudice the defendant. The must reason. These instructions were sufficient “ jury might ‘the defendant must show guide jury’s discretion. have returned a different probably would ” given.’ if had been verdict instruction [the] jury proposed in- 2. Rhines’ Bartlett, (quoting Grey 411 N.W.2d at 415 presumption struction No. 9: Owl, appeal re 295 N.W.2d at after imprisonment. life (S.D.1982)). mand, 316 N.W.2d proposed instruction No. 9 Rhines’ Rhines’ will consider each of 112] We pertinent part: stated jury separately. instructions proposed appropri- presumes The law also that the jury Proposed No. 8: instruction degree in the first ate sentence for murder sufficiently substantial pre- prison parole. without This is life circumstances. justify your rec- sumption is sufficient proposed jury instruction Rhines’ appropriate sen- ommendation part: No. stated relevant prison without tence in this case is life imposition of Dakota law allows the South unanimously parole. Only if the only prosecution, if the the death beyond doubt both convinced a reasonable proving that the defendant is in addition to aggravating circum- that one or more degree, in the first also guilty of murder exist, penalty is and that the death stances following beyond a rea- proves each of the case, in this only appropriate the sentence doubt: sonable jury recommend- may the return verdict (1) alleged ag- more of the That one or ing death. a sentence of exist; and gravating circumstances Rhines, According to his aggravating That circumstance the process and cruel violates the due sentence circumstances, in connection or considered and federal of the state punishment clauses circumstances, are suf- any mitigating with constitutions, jury not in- the was because ficiently require the death substantial in favor regarding presumption the structed case, is the in and that death penalty this penalty. imprisonment over the death of life crime only appropriate punishment for the committed, for the defendant. The trial court’s instructions 119] [¶ jury the of the State’s adequately advised pro Rhines contends the 115] presumption of inno proof the burden suitably necessary to was posed instruction court The in favor of the defendant. cence jury’s sentencing discre guide the limit jury: instructed proposed in disagree. Rhines’ We tion. presumption no the law raises In this case require aggravating cir would that struction Defendant,- every presump- against but “sufficiently substantial.” be cumstances his innocence law is in favor of tion of the constitutions the state nor federal Neither alleged aggravating as to the Similarly, you presume you circum- are to if that required prove stances. He is not him- sentence Charles Rhines to life in Russell prison parole, aggravating spend self innocent of the without he will in fact circum- stances, prison. the rest of his natural life in put any You upon or evidence at all speculate must not assume or that subject. The fact that the Defendant courts, any agency government, or has not testified this case raises no prison will release the defendant from at him, presumption- against you must any during time his life. give thought no to the fact that the Defen- testify dant did not his own behalf in jury The note sent arriving your sentencing this case judge trial asked whether Rhines could ever decision. placed security prison be in a minimum Rhines, given According work release. Furthermore, gives jury the law broad this demonstrates that the trial in- court’s impose imprisonment discretion to life rather inadequate, jury structions were and that the death, than a sentence of and the trial court unduly was concerned that Rhines would be properly jury in regard. instructed the if released he received a life sentence. He above, As noted the trial court informed the unfairly prejudiced claims he trial jury they impose a could life sentence re- court’s refusal to read the instruction. gardless they any aggrava- of whether found ting might circumstances that au- otherwise We believe the trial court’s imposition thorize the penalty. of the death adequately jury instruction advised the re jury trial court further advised the garding the effect of either a life or death they any need not find the existence of miti- sentence. jury: The trial court informed gating facts circumstances in order to fix you The decision make will determine the penalty imprisonment. Finally, at life imposed by sentence which will be charged jury they may the court fix you If court. decide aon sentence of penalty imprisonment any at life rea- death, impose the court will a sentence of son or without reason. These instruc- you death. If decide on a sentence of life tions, together, amply taken informed the imprisonment parole, without the court will authority of their to set the impose a imprisonment sentence life imprisonment. life There was no abuse of parole. without refusing discretion in proposed Rhines’ in- The trial gave court’s instruction struction. “full and correct statement of the law.” refusing There was no error in pro- Rhines’ proposed jury

[¶ 120] 3. Rhines’ posed instruction. instruction No. 11: effect of ISSUE 8. life or death sentences. allowing [¶ 125]Did the trial court err in proposed jury [¶ 121] Rhines’ instruction impact testimony during penal- victim 11No. stated: ty phase of the trial? specified The two you sentences that are [¶ 126] SDCL 23A-27A-1 sets forth the death, to consider this case are and life may circumstances which be prison parole. without by judge considered a or when deter- deliberations, your you In pre- mining impose are to whether to the sentence of you sume that if sentence July Charles Russell death. Effective nearly four death, Rhines to he will in fact be executed months after the murder of Donnivan Schaef- injection. fer, lethal You legislature must not assume amended SDCL 23A- courts, speculate permit “testimony 27A-1 to regarding the agency government, stop of will impact the defen- family.”4 of the crime on the victim’s taking place. 173, dant’s execution from § 1992S.D.Sess.L. ch. 2. provision

4. This has since been deleted from 27A-2. SDCL 23A-27A-1 and inserted in SDCL 23A- offense, hearing, alleged at the time of Rhines’ During pretrial a motion effect [¶ 127] argues impact victim intent to offer he the admission of gave oral notice of the State phase testimony prohibi- impact testimony penalty at the violated the constitutional victim proceedings. against post Rhines filed a motion tion ex laws. See facto I, 10; VI, testimony. Following § a any such Art. Art. exclude U.S.Const. S.D.Const. Third, objects victim im- hearing, § the trial court ruled that to the charac- Rhines during testimony impact allowed pact would be terization of the victim statement as penalty proceedings during based on the case of Rhines rebuttal to evidence offered Tennessee, 808, 111 Payne penalty phase. During sentencing v. 501 U.S. S.Ct. testimony The Court proceedings, 115 L.Ed.2d 720 offered the testimony evidence could be offered indicated that such his two sisters. He claims their mitigating response upbringing to Defendant’s evi- their rela- “in was limited to his him; they testify tionship dence.” with did impact Donnivan Schaeffer’s character or Schaeffer, Peggy Donnivan Schaef- [¶ 128] Fourth, family. even if of his death on his mother, following read the statement fer’s admissible, Peggy Rhines claims otherwise at the hear- during State’s rebuttal beyond testimony went Schaeffer’s ing: testimony, impact because bounds of victim youngest He was a Donnivan was our son. half of the statement described at least helpful young man. happy, considerate and personal characteristics rather Schaeffer’s school, live on dreams were to finish His Finally, impact than of his death. own, get married. He attended his improper Rhines asserts the admission job waiting him and had a Vo-Tech testimony Peggy was not harm- Schaeffer’s plan mar- graduated. he His was to when error, jury likely would have less because ry May, Pond in 1993. Our dreams Sheila imposed without this a less severe sentence becoming his dreams and those were evidence. reality. Not dreams are never to be having with us has left us with Donnivan trial court did not We hold that the times heartache and sadness that at seem admitting the victim abuse its discretion Now, at the end of the hall unbearable. testimony. Payne, at impact memo- our home is a bedroom filled with at at 115 L.Ed.2d S.Ct. only of the future ries and we can dream Eighth “the reconsidered whether Court may have had. Donnivan sentencing prohibits capital Amendment considering impact’ evi- jury from ‘victim trial court Rhines contends the relating personal characteristics dence by allowing error committed reversible impact and the emotional of the victim Peggy victim im- introduction of Schaeffer’s family.” The Court crimes on the victim’s argu- testimony. He makes numerous pact previously held that such evidence First, had position. support of his ments penalty phase of a per inadmissible se simply Payne decision Rhines asserts the Payne, trial. 501 U.S. pass laws that allow the authorizes states to (citing at 726 115 L.Ed.2d S.Ct. types some of victim sentencer to consider Gathers, 805, 109 Carolina South time argues He that at the impact evidence. (1989); Booth v. 104 L.Ed.2d 876 offense, Dakota alleged Rhines’ South Maryland, 482 U.S. 107 S.Ct. not authorize ad- and case law did statutes (1987)). L.Ed.2d 440 testimony, impact so the mission of victim Second, Rhines was inadmissible. evidence began by noting that the Court Legislature Dakota did notes the South crime is a relevant impact of a defendant’s explicitly allow 23A-27A-1 to amend SDCL sentencing consideration: only impact testimony, did so after victim but by harm caused the assessment of [T]he decision murder and the Court’s Schaeffer’s charged a of the crime defendant as result Payne. contends the amendment in important understandably been procedural law. has a substantive rather than is law, in both deter- of the criminal statutory provision was not concern Because 446 rizing impact victim

mining the elements of the offense and the admission of evi determining appropriate punishment. requirement the dence. We can discern no such fact, opinion. in the Court’s the Court 2605, 115 819, Payne, 111 at 501 U.S. at S.Ct. regard impact testimony victim seems to as The further observed L.Ed.2d at 731. Court purposes no than other evidence for different authority always sentencing has “the admissibility. Payne determining of range a wide of rele been free to consider Court wrote: “There is no reason to treat 820-21, vant material.” 501 at 111 U.S. S.Ct. differently such evidence than other relevant at at 732. As to 115 L.Ed.2d the 501 at 111 evidence is treated.” U.S. admitting impact propriety of victim testimo 2609, 115 at S.Ct. at L.Ed.2d 736. ny capital sentencing proceeding, in a the Court reasoned: law, Under South Dakota evi [¶ 133] impact simply evidence is another Victim generally long dence is admissible so as it is informing form or the sentenc- method of unfairly prejudicial. relevant and is not ing authority specific the harm about 19-12-2, SDCL -3. We review the trial by question, caused the crime evidence ruling admissibility on the court’s of evidence general type long by of a considered sen- the of under abuse discretion standard. tencing authorities.... We are now of Thomas, 381 N.W.2d at 235. may properly

the view that a State con- jury meaning- clude that for the to assess impact The victim state [¶ 134] fully culpability the defendant’s moral and by ment read Schaeffer’s mother related to blameworthiness, it should have before it personal her son’s characteristics the sentencing phase at the evidence of the impact family. emotional of the crimes on the specific by harm caused the defendant. precisely type permit This is of evidence legitimate The State has a interest in coun- by Payne, ted the Court’s decision in teracting mitigating evidence which the 2604, 115 at at at U.S. S.Ct. L.Ed.2d in, put defendant is entitled to remind- 730. Rhines is therefore incorrect when he ing just the sentencer that as the murder- impact may asserts that victim evidence not individual, er should be considered as an so testimony personal include about the victim’s too the victim is an individual whose death characteristics. represents unique society loss to Additionally, the informa particular family. By turning to his tion contained the statement was relevant stranger penal- victim into a faceless at the jury’s sentencing to the decision. As noted trial, ty phase deprives of a Booth court, Payne assessment of the harm full moral State force of its by a criminal important caused act is an may prevent evidence and from determining appropriate punish factor in having before it all the information neces- ment. 501 at at U.S. S.Ct. sary proper punishment to determine the may legitimately at “A L.Ed.2d 731. first-degree for a murder. conclude that evidence about the victim and U.S. at S.Ct. at impact about the murder on the vic (citations quotations L.Ed.2d at 735 family jury’s relevant tim’s decision omitted). The therefore “if Court concluded as to whether the death should permit the State chooses to the admission of imposed.” be at 111 S.Ct. at U.S. impact prosecutorial victim evidence and ar 2609, 115L.Ed.2d at 736. gument subject, Eighth on that Amend per ment erects no se bar.” 501 Furthermore, probative 2609, 115 L.Ed.2d at 736. impact value the victim statement was not Payne substantially outweighed by danger was decided in June, 1991, prejudice. months before Rhines’ murder of unfair See SDCL 19-12-3. The March, Therefore, testimony by Schaeffer in brief Schaeffer’s mother came Payne implicate post rule in up does not ex after Rhines’ sisters testified about his facto analysis. However, bringing good qualities, Rhines contends that their love Payne requires him, specific negative state statute autho- and the effect his death would

447 Lewis, 774, family. paraphrase Payne, 497 at have on their To discretion.” U.S. 110 3099, satisfy at 111 at quite S.Ct. L.Ed.2d 619. To impact victim statement “illustrated mandates, aggravating constitutional an cir- poignantly harm that [Rhines’] some of the require- cumstance must meet two basic caused; nothing unfair killing had there is First, genuinely ments. it “must narrow the allowing about to bear mind that persons eligible penalty class of for the death it considers the harm at the same time as reasonably justify imposition and must of by mitigating evidence introduced the defen a more severe sentence on the defendant 826, 2609, 115 at 111 at dant.” U.S. S.Ct. compared guilty found of others murder.” L.Ed.2d at 736. therefore hold that the We Zant, 877, 2742, 462 U.S. at 103 S.Ct. at trial court did not abuse its discretion Second, aggrava L.Ed.2d 249-50. “the admitting the statement read Schaeffer’s ting may not circumstance be unconstitution mother. at -, ally vague.” Tuilaepa, 512 U.S. at 759. A chal- S.Ct. 129 L.Ed.2d 9. ISSUE lenged provision impermissibly vague is Did the trial err in its in- court adequately juries when it fails to inform what jury regarding structions to the the defini- they impose penalty must find to death “depravity purposes tion of of mind” for of appellate and as a result leaves them and imposing penalty of death? open-ended May with discretion. courts 356, 361-62, 108 Cartwright, nard 486 U.S. Eighth and Fourteenth [¶ 138] The (1988). 1853, 1858, 100 L.Ed.2d S.Ct. Amendments to the States Constitu United sentencing systems prohibit tion state that above, [¶ 140] As noted under the South penalty wantonly cause the death to be statutes, jury may sentencing Dakota freakishly Jeffers, imposed. Lewis v. 497 recommend a sentence of death unless it S.Ct. aggravating finds at least one circumstance L.Ed.2d beyond a reasonable doubt. South Dakota following aggravating wishes to authorize circum- [I]f State includes the punishment respon- statutory it has a constitutional scheme: stance its sibility apply law in a to tailor and its wantonly outrageously The or offense arbitrary that avoids the and ca- manner vile, inhuman in horrible or involved penalty. pricious infliction of the death torture, mind, aggravat- depravity of or an responsibility Part of a in this re- State’s battery victim[.] ed gard the crimes for which is to define 23A-27A-1(6).5 SDCL may way in a be the sentence alleged “the offense was sentencing obviates standardless discre- vile, wantonly outrageously or horrible tion. It must channel the sentencer’s dis- depravity ... inhuman that it involved objective cretion clear and standards 23A-27A1(6). In its sentenc- mind.” SDCL specific guidance, provide and detailed ing jury, the trial court instructions to the rationally and that make reviewable depravity mind as follows: defined imposing a of death. process for sentence Depravity of mind is a reflection of Georgia, Godfrey v. utterly corrupt, perverted, immoral 1759, 1764-65, 64 L.Ed.2d the murder. state of mind at the time of (cita- (1980) (Stewart, J., opinion) plurality determining In whether the offense omitted). quotations tions and Degree Murder in this case involved First part of the Defen- depravity of mind on the “A State’s definitions of dant, age physi- you may circum consider its circumstances —those you of the victim and ‘eligi cal characteristics that make a criminal defendant stances may the actions of the defendant play a consider ble’ for the death —therefore to, during after the commission channeling prior significant role in the sentencer’s years age.” 1995 legislature following than thirteen added the victim is less 23A-27A-1(6): “Any murder sentence to SDCL ch. 132. S.D.Sess.L. vile, horrible, wantonly inhuman if the 448 vague phrases, since the other In to find that the and overbroad murder. order

of the apply. not Degree Murder involved factors listed the instruction did offense of First mind, you that the depravity urges must find of the death sentence of Rhines reversal Defendant, corruption, utter as a result of for this reason. immorality, tor-

perversion, committed or victim; subjected upon living or ture the little that the There is doubt victim to mutila- body the of the deceased itself, 23A-27A-1(6), by language of SDCL relished, disfigurement; or tion or serious Godfrey, vague and overbroad. 446 U.S. murder; gratuitous or vio- the 1759, 398, 420, 64 L.Ed.2d the inflicted 100 S.Ct. victim; upon the or the senselessness lence provision considered a identical Court crime; helplessness or the the the wantonly, of “outrageously of Dakota’s South occurring the death victim. acts of vile, If after horrible or inhuman” circumstance. upon by are the state to the victim relied Godfrey simply quoted The trial court in the Defendant, depravity mind the show of instructions aggravating circumstance its must be shown to have occurred such acts jury provided no additional defini to the death, the time the victim’s so close to aggra explanations concerning tions or nature, stick a and must have been of 426, at vating factor. 446 U.S. at 100 S.Ct. beyond can be drawn a rea- the inference 1764, jury 64 L.Ed.2d at 405. The found depraved the state sonable doubt of beyond mur a reasonable doubt that the two mind the murderer existed at the time ders committed the defendant were “out upon were blows inflicted fatal vile, wantonly inhu rageously or horrible and added.) (Emphasis victim. imposed man” of death. 446 an Rhines submitted alternative at at 64 L.Ed.2d at U.S. S.Ct. depravity definition of of mind that did not Georgia Supreme 405. The Court affirmed language. The trial include the italicized sentence, applying limiting without rejected court this instruction. Rhines con- aggravating construction to the circumstance. lengthier trial definition of tends the court’s 432, 100 at at 64 L.Ed.2d U.S. S.Ct. depravity vague of mind was so and over- appeal, at 408-09. On the United States broad as to the “cruel and unusual violate Supreme Court invalidated the death sen punishment” Eighth clause of Amend- tence. 446 U.S. at 100 S.Ct. at process guarantees of the ment and the due Stewart, writing L.Ed.2d at 409. Justice to the Fourteenth Amendment United States plurality, the trial court’s condemned Constitution. statutory aggravating bare reiteration of the charge jury. circumstance its correctly notes there are [¶ 143] Rhines 428-29, at at U.S. 100 S.Ct. 64 L.Ed.2d essentially separate depravi- six definitions of statutory at 406-07. He reasoned that the ty of mind in the trial court’s instructions. itself, jury provision, give failed to (1) They are that: the defendant committed guidance adequate imposing the death (2) victim; living upon torture the defen- penalty and therefore created the likelihood subjected body vic- dant deceased arbitrary capricious result. disfigurement; tim to mutilation or serious 428-29, at at 64 L.Ed.2d U.S. S.Ct. (3) (4) murder; the defendant relished the 406-07; Florida, Espinosa at see also gratuitous inflicted violence defendant 1079, 1080-82, 2926, 2927-28, (5) victim; upon the the senselessness of the (1992) (stating 120 L.Ed.2d 858-59 sim crime; helplessness of the victim. ple charge jury “especial murder was specifically objects He to the inclusion of the wicked, evil, ly atrocious or cruel” did phrases, last two ask the to con- which satisfy requirements); May constitutional sider the “senselessness of the crime” or the nard, 363-64, 108 S.Ct. “helplessness of the victim” as distinct defini- (invalidating “especially 100 L.Ed.2d at 382 depravity argues tions of of mind. heinous, atrocious, virtually every or cruel” fac murder satisfies these defini- limiting where no additional instruction jury’s finding tions. He of de- tor reasons pravity likely given). of mind was based on these was Finding statutory language is ... “senselessness of the crime” has no overbroad, Godfrey

vague objective meaning. as the Court If senselessness of the did, necessarily a constitu- does establish permit crime were sufficient to a death Walton, 653-54, tional violation. 497 U.S. virtually penalty, all murderers would be 3057, 111 L.Ed.2d at 528. If a on death row. further state court defines and limits those Id. at 1231-32. vague otherwise and overbroad terms so as similarly Arizona courts have provide adequate guidance [¶ 148] to the sentenc-

er, disapproved of crime” requirements then constitutional are sat- “senselessness or ease, “helplessness indepen isfied. Id. In this we hold that the trial of the victim” an as depravity depraved court’s definition of of mind does dent measure of conduct. State v. Johnson, 395, 1050, not meet these mandates. 147 Ariz. 710 P.2d (1985) (holding the senselessness of the kill Palmer, In State v. 224 Neb. [¶ 146] ing enough satisfy in itself is not denied, (1986), 399 N.W.2d 731-32 cert. heinous, “especially depraved” aggrava or 484 U.S. 108 S.Ct. 98 L.Ed.2d 157 circumstance). Smith, ting State v. 146 Ariz. (1987), Supreme ap the Nebraska Court (1985) (ruling 707 P.2d that proved “exceptional depravi a definition for aggravation, absent additional neither ty” nearly “depravity that is identical to the helpless of senselessness the crime nor the given in The of mind” definition this case. ness of the victim can alone make the offense following limiting court devised the Palmer especially depraved). heinous or See also instruction: White, (Del.1978) 1082, 1090 State 395 A.2d determining penal whether the death [I]n (holding the of the victim defenselessness is ty may imposed, “excep that be we hold unconstitutionally vague aggravating an cir depravity” in tional a murder exists when cumstance). therefore that the We hold de shown, doubt, beyond it is a reasonable circumstance, pravity by of mind as limited circumstances, following either instruction, adequate the trial court’s did not separately collectively, or exist refer ly channel the sentencer’s discretion as re (1) degree appar ence to a first murder: quired by the state and federal constitutions. killer; by relishing ent of the murder holding The effect of our is considered later (2) gratuitous infliction of on the violence opinion. in this (3) victim; mutilation of the vic needless (5) tim; crime; senselessness of the ISSUE

helplessness of the victim. Id. Did err in its in- the trial court [¶ 149] subsequent appeal challenging In a jury regarding structions SDCL validity “exceptional depravity” of the 23A-27A-K3), imposi- permits which circumstance, Eighth of Circuit Court if “the defendant tion of the rejected Appeals Supreme the Nebraska for himself or an- committed offense limiting Moore v. Court’s instruction. money other, purpose receiving of for (8th Clarke, 904 F.2d 1232-33 Cir. monetary thing value”? (8th denied, 1990), reh’g 951 F.2d 895 Cir. alleged, aggrava- as an denied, Moore, 1991), cert. Clarke v. circumstance, ting that Rhines committed the 112 S.Ct. 118 L.Ed.2d 591 purpose murder for himself for the of receiv- reasoned that “senselessness of The court 23A-27A-1(3). ing money. The trial SDCL “helplessness the victim” the crime” and pertinent part: instructed the court adequately vague criteria that failed to were F.2d at guide the sentencer’s discretion. 904 you may Before find 1232. The court wrote: case, you circumstance exists in this must doubt, find, beyond a reasonable each

All victims could be characterized murder aggrava- following elements of this “helpless” as the fact that as evidenced proven are the evi- “[H]elplessness” ting circumstance they were murdered.... Furthermore, dence: is too broad to be useful. the evidence demon- review of the Rhines. Our committed

1. That the Defendant possession not have himself; that Rhines did strates murder money he killed Schaeffer all of the when for the the murder 2. That he committed money a motive obtaining this was and that receiving money. purpose of Dig’Em employee for the murder. As jury instruc- proposed had Donuts, for collect- responsible Schaeffer have further defined tion which would Main store ing money from the West Street the fol- circumstance with elements of this Dig’Em transporting it to the other Do- lowing language: regarded He was as a shops nut in the area. merely you if conclude It not sufficient to infer employee. It is reasonable trusted during the that murder was committed the passively per- have would not that Schaeffer burglary, or of the commission of course money to take the without mitted Rhines only to that was committed the murder police or otherwise attempting to contact possession to retain enable the defendant Schaeffer, By murdering stop the theft. money already obtained. witness, he only silenced also Rhines not proposed The trial court refused this instruc- money. Additional- receipt facilitated of the tion. may not have intended to ly, although Rhines pecuniary gain In addition to the shop, anyone kill when he entered circumstance, alleged that the the State also changed suggests his intentions evidence purpose of “was committed for the offense entering he heard someone the store. once with, interfering preventing a avoiding, or that Rhines “was Detective Allender testified custody place in a of lawful lawful arrest or money” beginning when he heard to take confinement, of himself or another.” SDCL shop being opened. He the door to the 23A-27A-1(9). dispute that Rhines does not his knife and waited behind the retrieved up to cover Rhines’ he murdered Schaeffer Importantly, he did not wait office door. identity burglar and so as to as the assailant him. until had seen or identified Schaeffer satisfy aggravating circumstance. How- this explaining interrogating officers After ever, circum- he contends victim, how he had stabbed and bound his purpose of receiv- of “murder for the stance his continued theft of the Rhines told them of (1) ing money” apply, should not because store: not over- aggravating circumstances should I went back in the office and Rhines: satisfy lap so that the same facts can more getting getting, finished finished what (2) circumstance; receipt than one $1,700. money I could find. About Actu- result, cause, money rather than a was um, about, ally probably about oh 15- (3) murder; not the murder was Schaeffer’s fund, Change basically. 1600 out of there. plan part larger preexisting of a to obtain the Allender: Yeah. And then money; possession Rhines had of the change out the on Rhines: Cleaned fund arrived, mur- money so the before Schaeffer over, phone_ the wall. Went used the necessary get money. was not der trial, Based on the evidence we cannot reject Rhines’ asser 153] We possession conclude that Rhines had of all of First, agree that we do not tions of error. money prior killing the stolen that or only finding one the sentencer is restricted simply the theft was a result rather than a jury may The for murder. motive cause of Schaeffer’s death. conceptually find two properly consider and Here, aggravating circumstances. distinct ISSUE alleged that Rhines killed Schaeffer the State money— a witness and to receive to silence [¶ 155] Was the evidence insufficient for murder which could separate motives jury’s two support finding that Rhines tor- of one another. independent exist tured Schaeffer? Second, agree we do not found that the murder satisfy pecuniary gain vile, outrageously wantonly facts fail to horrible the reasons listed or inhuman in that it involved the torture of

circumstance disputes finding, breathing approximately ar- continued for two Schaeffer. guing presented inflicting the evidence at trial was minutes after the final knife wound. beyond a reasonable insufficient to show pathologist, A forensic Dr. Donald doubt that he tortured his victim. He notes Habbe, opined testified the trial. He pain anticipat- the fact suffered Schaeffer the first stab wound would not have been sufficient, prospect of death is not ed the Schaeffer, fatal to but would have caused requires in- torture the intentional because pain difficulty breathing. Dr. Habbe beyond necessary pain fliction of punctured stated the second stab wound cause death. He claims the wounds inflicted lung painful left and would have the same death, designed on Schaeffer were to cause effects, difficulty breathing. with increased unnecessary pain, any suffering ex- possibly He also testified that air could whis- perienced by Schaeffer was incident to death. through tle back wound. Accord- Habbe, ing to Dr. the combination of the first reviewing [¶ 157]When the sufficien probably and second stab would not have evidence, cy of the we must consider the been fatal. The final stab wound cut into light evidence in the most favorable to the opined Schaeffer’s brain stem. Dr. Habbe Buller, 883, verdict. State v. 484 889 N.W.2d that death would be “near instantaneous.” (S.D.1992) Ashker, (citing State v. 412 opined may He that have Schaeffer shown denied, (S.D.1987)), N.W.2d cert. 506 involuntary some short movements in his 121 L.Ed.2d 181 S.Ct. hands and arms after the infliction of the last jury’s The verdict will not be set wound. He that stated he could not deter- aside if the evidence and all favorable infer mine whether or not Schaeffer’s hands were support ences that can be drawn from it a tied before or after the final stab wound to Ashker, theory guilt. (citing Id. rational rope Schaeffer’s neck. He did note that the 105; Andrews, 412 N.W.2d at State v. very tight- around tied Schaeffer’s wrists was (S.D.1986)). N.W.2d ly, along and that there were abrasions right Schaeffer’s left and wris.ts. According to Rhines’ statements to [¶ 160] Under the South Dakota police, burglarizing Dig’Em he was Donuts statutes, sentencing jury may not recom- unexpectedly when Schaeffer entered the a mend sentence of death unless finds at store. came into the office area of Schaeffer aggravating beyond one a least circumstance him in the store and Rhines stabbed reasonable doubt. circum- One down, fell abdomen. Schaeffer thrashed alleged by stance the State was that “the about, and screamed Rhines’ name. Rhines vile, wantonly outrageously offense was or back, again piercing stabbed Schaeffer horrible or inhuman in that it involved tor- lung. Rhines then his left walked Schaeffer 23A-27A-1(6). In ture.” SDCL its instruc- into the out of office storeroom. Rhines jury, trial tions to the court defined whistling could hear air out of the wound in torture as follows: Schaeffer’s back. As Rhines took Schaeffer area, said, “No, storage living person a to the Schaeffer Torture occurs when is subjected unnecessary I won’t tell.” and wanton don’t. Schaeffer also asked physical pain, Rhines to call an ambulance for him. Rhines infliction of severe or mental “Yeah, abuse, thought, right, agony, anguish. told Allender he I am or Besides serious ambulance, you you psychological going to call bet.” torture includes serious resulting in pas- Rhines observed that Schaeffer became abuse of a victim severe men- anticipation though going anguish he realized he was tal to the victim sive as physical pallet die. Rhines seated Schaeffer on a serious harm. You would be placed that offense of the storeroom. He Schaeffer’s head authorized to find First simply Degree Murder involved torture between his knees and thrust the knife into pain briefly Rhines because the victim suffered or the base of his skull. claims Schaef- anticipated prospect of death. Nor fer continued to breathe and his arms were body upon the of a moving, he tied hands behind would acts committed so Schaeffer’s support finding tor- that deceased victim him. Rhines estimated Schaeffer’s whistling the offense of sound of breath ture. In order to find that Schaeffer’s torture, wound, you Degree with but Murder involved consistent Schaeffer’s back First intentionally, find that the Defendant death after the third wound to the neck must that wantonly unnecessarily, inflicted se- Fur- would have been “near instantaneous.” pain, agony or physical ther, or mental Rhines’ vere Dr. Habbe on noted abrasions anguish upon living wrists, reasonably victim. infer and the could these marks or exacerbated that were caused correctly [¶ 161] Rhines observes agonized his struggle before Schaeffer’s list the trial court’s instructions two death. finding elements for a of torture: essential (1) unnecessary and wanton infliction of The evidence also shows (2) agony, pain, anguish; or severe possessed necessary intent for a agony anguish. pain, intent to inflict such pleaded finding of torture. When Schaeffer that both Our review evidence shows life, Rhines for his Rhines did not tell with these elements “Unneces were satisfied. quickly of his desire end his vic- officers sary implies suffering in pain” excess of what Instead, life. his own tim’s Rhines described required accomplish the murder. State sarcastic and scornful attitude toward Ramseur, v. 524 A.2d N.J. stated suffering. Rhines also Schaeffer’s Sonnier, (citing So.2d when he survived believed Schaeffer had (La.1981), denied, 658-60 cert. wound, the third stab he tied his victim’s (1983)). 77 L.Ed.2d 1412 him hands and left to die. This evidence in defendant who to kill his victim intends supports finding that Rhines intended satisfy stantly painlessly does not unnecessary pain cause victim. to his requirement, nor does the defendant who ISSUE only pain intended cause that is incident to Ramseur, jury’s death. 524 A.2d at 229-30. Does the consideration of [¶ 165] aggravating invalid re- circumstance inflicted [¶ 162] After Rhines the quire reversal of the death sentence? wound, non-fatal he did second stab not case, jury In Rhines’ found four [¶ 166] the swiftly proceed to In end life. Schaeffer’s statutory aggravating circumstances. stead, brought he Schaeffer to his feet and (1) jury determined: the offense was commit- During him to the walked storeroom. this purpose avoiding, interfering for the time, ted of begged Schaeffer for his life and asked with, preventing or a lawful arrest under help. ignored pleas. for medical Rhines his (2) 23A-27A-10); the offense was SDCL arranged him on pallet He seated his purpose receiving committed for the mon- body what Rhines referred as the (3) 23A-27A-1(3); ey under SDCL the of- “coup grace.” that dur de Rhines remarked vile, wantonly outrageously fense was or hor- ing passive this time Schaeffer became or inhuman it involved torture rible that impending acknowledge seemed to his death. 23A-27A-1(6); of- under SDCL the agree We cannot that mental and Schaeffer’s vile, outrageously wantonly fense was hor- anguish simply physical during time was depravity rible or inhuman that it involved pain incident to his death. 23A-27A-1(6). mind, also under SDCL Furthermore, reasonably can [¶ 163] one jury’s finding challenge Rhines did not the from the infer evidence that Rhines bound pur- that he committed for the the offense hands before he inflicted Schaeffer’s the pose avoiding Similarly, lawful arrest. we fatal stab told interro- third wound. Rhines rejected regard- Rhines’ have claims of error gating officers he tied Schaeffer’s wrists ing pecuniary gain the torture and circum- whistling his breath but of because was However, stances. have concluded that we However, in- wound his back. when the circumstance, depravity of mind as de- terrogating questioned officers Rhines about by court, constitutionally fined the trial is possibility that Rhines bound Schaeffer invalid. neck, before the fatal wound to his Rhines’ responses invalidity were and nonsensical. of one evasive claims Furthermore, aggravating by Dr. Habbe testified of the circumstances found place any particular jury requires weight of his death sen- on the reversal number of Alternatively, argues he the Court aggravating tence. circumstances found. 462 U.S. only may uphold if the the death sentence 103 S.Ct. at 77 L.Ed.2d at 258. jury imposed have the death sen- still would Finally, Georgia appellate law mandated re- alleges factors. He tence without the invalid by of each Georgia view death sentence jury’s impose penal- the death decision to Supreme Court to avoid arbitrariness and to ty multiple number of was a result of the proportionality. assure 462 U.S. at that were found. aggravating circumstances S.Ct. at 77 L.Ed.2d at 258. aggravating Because the invalid circum- earlier, Importantly, as noted jury’s stance cannot be excised from the capital sentencing South Dakota’s scheme is death, sentence of he claims the sentence Georgia’s modeled after stat must be reversed. procedural safeguards All utes. em Zant, considered Court Zant are also phasized present our whether a defendant’s death sentence must First, capital punishment depravity law. statutory three be vacated when one of the encompass of mind circumstance did not con aggravating circumstances found constitutionally protected, per duct that subsequently held to be invalid sonal characteristics of the defendant Georgia Supreme Court. 462 U.S. at totally sentencing pro are irrelevant to the 77 L.Ed.2d at 257. The cess, or conditions that should favor a lesser invalidity aggrava- that the of one Court held Second, penalty. aggravating circumstances ting require circumstance did not reversal of only serve to narrow the class of offenders the death sentence. The Court stressed var- eligible penalty, for the death and the exis important ious factors that were to its deci- only tence of one such circumstance is suffi First, sion. the Court noted that the invalid capital pun cient to warrant consideration aggravating implicate circumstance did Third, ishment. all of the evidence relevant expressive activity protected by that is “depravity of mind” circumstance was Amendment or factors that are First include properly purposes also admitted for of decid totally sentencing process, irrelevant to the ing the existence of other valid race, religion, political such as the affilia- Fourth, require factors. our statutes do not tion of the defendant. 462 U.S. at jury weigh aggravating to the circumstances 2747, at 77 L.Ed.2d at 255. Nor did S.Ct. factors, against mitigating jury and the the circumstance involve conduct that should specific num instructed to consider the penalty, militate in favor of a lesser such as aggravating deciding ber of in factors wheth the mental illness. 462 defendant’s U.S. at Finally,- er to render a death sentence. 885, 2747, at 103 S.Ct. 77 L.Ed.2d at 255. 23A-27A-12 mandates this to SDCL Court Second, law, Georgia aggravating under cir- imposed consider whether the sentence was simply cumstances identified those offenses passion, prejudice, under the influence of crimes, qualify capital pres- as and the Therefore, any arbitrary in other factor. only ence of one circumstance was sufficient Supreme ruling accordance with the Court’s permit penalty. to consideration of the death Zant, invalidity we hold the of the “de 876-77, 2742, at 103 at 77 462 U.S. S.Ct. pravity of mind” circumstance does not so Third, at L.Ed.2d 249. the same evidence penalty proceedings taint the as to mandate to the invalid circumstance relevant was also reversal of Rhines’ death sentence. purposes ruling admissible for on the valid 887-89, 462 at aggravating factors. U.S. 103 2748-49, 77 ISSUE 13. at L.Ed.2d at 256-57.

S.Ct. Fourth, Georgia statutes im- [¶ 170] Rhines’ death sentence Was jury weigh aggrava- not instruct the to did posed passion, prej- under influence of mitigating ting circumstances and circum- udice, arbitrary factors? other against deciding each other wheth- stances jury impose [¶ 171] to a death sentence. 462 at Rhines contends the consid- er U.S. 890, 2750, unfairly prejudicial 103 S.Ct. at 77 L.Ed.2d at 258. ered irrelevant or mat- jury penalty. otherwise instructed to imposing Nor was ters when the death He imprison- alternatives of life judge weighing life jury’s note to the about claims penalty. ment and the death this bias. He demonstrates imprisonment questions on about specifically focuses might allow “dis- conditions prison response.

whether 2. Trial court’s and whether punishment” his traction from the trial Rhines contends [¶ 177] pris- release from might qualify for work he additionally failing advise court erred on.6 speculation guesswork. jury to avoid the trial court also contends whether to find no error. The decision We jury’s respond to the adequately failed to jury rests provide further instruction above, trial As noted improper concerns. trial court. discretion of the within the sound jury: following response to the court sent Floody, (citing State v. 481 N.W.2d (S.D.1982)). 530, Holtry, 321 N.W.2d acknowledge your note I Dear Jurors: imprisonment. about life asking questions have Although other courts give you I can is set All the information inquiries by instructing responded to similar jury in the instructions. forth speculation, People v. jurors to refrain from give an additional trial court refused Cal.Rptr. Hovey, 44 Cal.3d proposed Rhines: instruction denied, (1988), 145-46, cert. 749 P.2d instructed, however, that further You are 102 L.Ed.2d 157 109 S.Ct. specula- may your Stankewitz, decision on you (1988); not base People 51 Cal.3d guesswork. 817, 842-43, tion or 48-49 Cal.Rptr. 793 P.2d denied, (1990), 111 S.Ct. cert. 499 U.S. that, by failing give Rhines contends (1991), 1432, 113 the trial court’s L.Ed.2d 483 instruction, improperly permitted the court forego an instruction was not decision to such life jury speculate about the nature of First, proposed an abuse of discretion. imprisonment. speculation guess to avoid instruction inadvertently jury’s chill the work could Passion, prejudice or penalty at life to fix the broad discretion arbitrary factors. any ... or imprisonment “for reason without has found the 174] Once Second, given the instructions reason.” be of an circumstance existence accurately fully advised the trial court doubt, yond our sentenc a reasonable jurors governing the law the case. We jurors discretion in ing gives scheme broad simply referring can discern no error imprison deciding impose life whether “ jurors instructions. ‘If the court to these See, e.g., Tuilae ment or a death sentence. concludes the exercise of sound discretion at -, pa, instructions are that information or further Indeed, sentencing prior to L.Ed.2d at 761. required, may properly refuse such deliberations, appropriately in the was ” (quot request.’ Holtry, 321 N.W.2d at 531 may penalty fix at life structed: “You Weinandt, ing 84 S.D. State v. so, any you do for imprisonment, if see fit to (1969)). N.W.2d any you, without satisfactory to or reason reason.” ISSUE context, jury’s In this [¶ 175] appellate review Based on the [¶ 179] questions work release and “distrac about 23A-27A-12, by was mandated SDCL they punishment” tion from do not show lawfully im- Rhines’ sentence of death arbitrary factors considered irrelevant or posed? directly rendering questions Their verdict. pen- every case where the death 180] under a relate to conditions of confinement required to alty imposed, this Court is parole. Prison life is sentence of life without independent review of the sen- an appropriate topic for discussion when conduct Having previously homosexuality. addressed claim that some of 6. Rhines also reiterates his against allegation, revisit it here. jury's questions we need not a bias this demonstrate tence. 23A-27A-12. must deter- Donnivan SDCL We murdered Schaeffer so he could $2,000 mine: steal escape less than cash and responsibility permits for his crime. The law (1) Whether the sentence of death was mercy, require but does not it. imposed passion, under the influence of factor; prejudice, any arbitrary or other Finally, we consider whether Rhines’ dispro- death sentence is excessive or supports the evidence Whether portionate penalty imposed to the in similar jury’s judge’s finding statutory 23A-27A-12(3) or of a South Dakota cases. SDCL aggravating circumstance as enumerated patterned proportionality after the review 23A-27A-1; §in provisions in Georgia capital punishment Supreme statutes. As the United States (3) Whether the sentence of death is ex- Gregg, provision Court observed in pro- disproportionate penalty cessive or to the portionality review: cases, imposed considering in similar both the crime the defendant. substantially possibility eliminates the person by will be sentenced to die SDCL 23A-27A-12. jury. action of an aberrant If a time begin We our review de juries generally impose comes when do not termining supports any whether evidence the death sentence a certain kind of found circumstances .case, appellate proce- murder review jury. dispute Rhines does not that he dures assure that no defendant convicted being committed murder to avoid arrest under such circumstances will suffer a sen- ed, thereby satisfying aggravating circum tence of death. 23A-27A-1(9); stance SDCL there is sub 96 S.Ct. at 49 L.Ed.2d support stantial evidence the record to at 893. finding. describing When the murder to De Bahr, Deputy proportion- As for the mechanics of tective Allender and Sheriff review, remarked, ality argues pool “leave no He Rhines of simi- Rhines witnesses.” proportionality lar cases for being “caught also referred to in the act.” review should encompass discussing pros- all homicide cases that were When his decision to tie Schaef- hands, remarked, just prosecuted ecuted or fer’s “I don’t could have been under capital punishment somebody up State’s current want stand the middle prosecutorial scheme. He reasons that anybody go of—or call Fur dis- dial 911.” thermore, important cretion is an factor that this Court previously we have concluded the ruling proportionali- on purpose for the must consider when offense was committed 23A-27A-1(3) ty. argues pool receiving money The State of similar under SDCL cases should be limited to those South Dako- and the offense involved torture which was vile, horrible, proceeding capital punishment ta cases wantonly inhuman under 23A-27A-1(6). phase, regardless of whether a death sen- Clearly, Rhines was SDCL actually imposed. tence was There are seven eligible penalty. for the death proceed- other South Dakota cases have can [¶ 182] Nor we conclude the ed to death deliberations. imposed under the sentence of death was passion, prejudice, influence of We conclude that similar 23A-27A-12(3) arbitrary rejected purposes Rhines’ cases for factor. We have SDCL capital sentencing that inadmissible consid are those cases in which a claims evidence was conducted, jury jury permitted proceeding actually ered and that the was whether imposed irrelevant facts to taint its verdict. We can the sentence was life or death. any independent proportionality invali the aim of review “[B]ecause not discern basis for sentencing jury’s Although capital dating the sentence. Rhines is to ascertain what other presented mitigating concerning his authorities have done with similar evidence offenses, only youth loving family, murder cases that could be difficult and the decision impo ... in impose penalty spite the death of this deemed similar are those which brutally properly be- arbitrary. sition of the death evidence was finding imprisonment, without Bittner to life sentencing authority for determina fore the statutory State, any aggravating of 468 the existence v. 297 Md. tion.” Tichnell various denied, Bittner established (1988), circumstances. cert. A.2d 15-16 (1984). circumstances, including abuse mitigating 80 L.Ed.2d 846 104 S.Ct. child, history alcohol or State, neglect a a of Accord, 139 and as 490 A.2d Flamer v. abuse, immediately prior denied, drug use of alcohol (Del.1983), cert. crime, any intent and a disavowal of to the 88 L.Ed.2d deliberately kill the officer. Dako- the enactment of South Since [¶ 186] v. Helmer [¶ 192]State penalty statute current death ta’s sentencing proceedings have eight capital alleged that William J. The [¶ 193] State cases, jury In those place. taken six of Dixon, Randy acquaintance, Helmer killed an case and Rhines’ imposed life sentences. shooting in the head. The State Dixon other, jury a verdict of returned Dixon, one that, killing Helmer after also claimed briefly facts of set forth the death. We will with an axe. Dixon’s head and hands cut off a provide cases so as to of these other each expe- he had presented evidence that Helmer our review. foundation for problems for a number of rienced mental Testimony indicated that Helmer suf- years. v. Adams State [¶ 187] post-traumatic stress disorder fered from Jimmy Lee Howard Adams and 188] [¶ There was also the time of Dixon’s murder. Du- Boykin kidnapped, robbed and murdered indicating Dixon had been abusive evidence Jensen, stranger Wayne a who was deliver- may proper- Helmer and have stolen toward early morning on ing newspapers June ty Helmer. from jaw windpipe had Jensen’s sought penalty, The the death 194] State eyes were and both of his been fractured outrageously or asserting the offense was of was mul- The cause his death blackened. vile, wantonly horrible or inhuman sought the tiple wounds. The State stab mind, torture, depravity or an of involved alleging the offense was com- penalty, death battery to the victim and the aggravated money purpose receiving mitted for the purpose committed for the offense was monetary thing of value and money anything monetary receiving vile, wantonly outrageously or offense was jury of first- value. The convicted Helmer an inhuman it involved horrible or life degree murder and sentenced Helmer to jury battery aggravated to the victim. imprisonment. aggravated battery circum- only found the imprison- life sentenced Adams to stance and v. State Moeller [¶ 195] Mitigating circumstances included ment. anally alleged The State Moeller childhood, history alco- deprived Adams’ girl vaginally raped nine-year-old abuse, immediately and use of alcohol hol sought the her to death. The State stabbed prior the crime. penalty, claiming the offense was out- v. Bittner [¶ 189]State vile, wantonly or inhu- rageously or horrible battery aggravated man in that it involved police offi- March two [¶ 190] On jury Moeller of the victim. The convicted complaint that Steven responded cers rape first-degree murder. The also girl friend physically abused his Bittner had battery aggravated the existence of the found couple the offi- in the home the shared. As imposed a sentence of circumstance and proceeded upstairs portion cers death. house, down the stairs and Bittner bounded the officers both officers. One of stabbed Smith injuries. died as a result of his During the course of a bank rob- a woman who penal- bery, Elmer Smith shot sought the death James The State order to lie down on failed to follow his ty, alleging one circumstance— a few minutes against a floor. The woman died within was committed the offense receiving gunshot wound. The State perfor- of officer while law enforcement alleging ag- three sought penalty, jury the death of duties. The sentenced mance his (1) gravating sought penalty, circumstances: the defendant times. The State knowingly great asserting created a risk of death to the murder was committed for the person public place by purpose receiving money of things more than one a or other monetary weapon a of value and the means of or device which would offense was outra- vile, normally geously wantonly be hazardous to the lives of more or horrible or inhuman (2) torture, mind, person; depravity than in that it one the offense was commit- involved of purpose receiving money aggravated battery or an ted for of or to the victim. The value; (3) jury any type monetary guilty first-degree of found of other Waff murder in, by person imprisonment. the offense was committed a and sentenced him to life from, escaped custody who has the lawful of [¶ 205] The law demands individual place a law enforcement officer or of lawful sentencing. Tuilaepa, at -, ized jury confinement. The convicted Smith of 2635, 114 S.Ct. at 129 L.Ed.2d at 760. The first-degree murder a and returned verdict of jury’s any capital verdict in case is necessari imprisonment. life ly premised unique on the facts before it. State v. Swallow [¶ 199] Yet, facing all penalty defendants the death others, Accompanied by two Edwin are entitled to fairness reasonable con Wilson, Swallow went to the home of Conrad sistency in imposition. Bey, its v. State drug an illicit A dealer. shootout ensued. (1994), N.J. 645 A.2d cert. de found, alive, barely porch Wilson was on the nied, -, 115 S.Ct. — eventually “ of the house. He died of his L.Ed.2d 1093 death sentence ‘[A] is injuries. seventeen-year-old daugh- Wilson’s comparatively if excessive other defendants ter, trade, drug who was not in the involved generally with similar characteristics receive single shotgun was found dead from a blast. committing sentences other than death for sought penalty factually juris The [¶ 201] the death similar offenses the same ” Swallow, against alleging Marshall, (quoting the murder of diction.’ Id. Wil- State v. (1992)). daughter person a son’s was committed 130 N.J. 613 A.2d history who had a substantial of serious as- dissenting A opinion criminal saultive convictions and was commit- implies that dispropor Rhines’ sentence is purpose receiving money ted for the of only tionate because he one of is two defen thing monetary Mitigat- of value. dants to have received a verdict of death. ing twenty-two evidence showed Swallow respectfully suggest reasoning We old, abuse, years history drug had First, among flawed. the fact that Rhines is co-perpetrator that a had received a sentence the first to receive a death sentence does not sixty-five years. testimony There was also signify disproportionate. that his sentence is indicating Wilson initiated the shootout Otherwise, penalty the death itself would be firing companions. at Swallow’s Second, nullified. a death sentence should jury The convicted Swallow of one simply not be invalidated because a first-degree manslaughter count of for the defendant, determined that another who first-degree death of Wilson and one count of crime, analogous committed deserved daughter. murder for the death of Wilson’s mercy. Proportionality review focuses not judge imposed a life sentence for the crime, only on the but also on the defendant. manslaughter jury imposed conviction. The 23A-27A-12(3). Benn, v. SDCL See State possibility parole a life sentence without 120 Wash.2d 845 P.2d conviction, first-degree for the murder with- Lord, (quoting State v. 117 Wash.2d indicating aggravating out whether the cir- (1991)) comparing (“Simply P.2d cumstances were satisfied. numbers of victims or other fac [¶ 203] State Waff may superficially appear make two tors eases similar, mitigating David Waff killed Russell Keller in where in fact there are exchange payment explain from Kel- circumstances one case to either $1500 partner. jury’s impose ler’s business Waff had shot Keller verdict not to the death it.”), eight prosecutor’s him once the head and stabbed or a decision not to seek — U.S. -, 382, 126 upward, denied, spinal up In kind of and column. cert. the Attempted in.... to reach small brain L.Ed.2d 331 officers, ...” "... he Then Rhines told the sen conclude the death 207] We [¶ know I had. breathing, was still I didn’t what in disproportionate or tence not excessive is anybody I’ve to death. I’ve never stabbed First, note we Rhines’ offense Rhines’ case. anybody, period. guys never You stabbed ag separate of three the existence involved anybody to death? Know get seen stabbed Only one other gravating circumstances. very Quit fighting quickly, what it takes? (S.D. Smith, case, N.W.2d but, you very quickly.” the don’t die When 1991), alleged presence aggrava the three pathologist that a had officers told Rhines ting Marked distinctions between factors. suggested might up have tied been Schaeffer justify juries’ and Smith the Rhines’ case wound, stated, before the last stab Rhines Smith, In verdicts. the victim died different “Too bad wasn’t there. To watch.” Then he single gunshot swift quickly from a delivered laughter. explaining In Rhines burst into contrast, ly by unexpectedly Smith. In and wound, the movements after last Schaeffer’s quickly single not die from a Schaeffer did analogy Rhines to butchered chick- drew in first stabbed him the wound. Rhines intermittently through- laughed ens. Rhines stomach, collapse caused Schaeffer to which interview, usually in out the to first reference floor, screaming pain. writhing to and in the spoken not witnesses the officers had pierced lung After Rhines Schaeffer’s with they items of had not At evidence found. knife, thrust of his Schaeffer second caustically, point try “I one he remarked Rhines, pleaded According for his life. During lengthy Rhines’ condescend.” . when he assisted Schaeffer the storeroom confessions, taped spontaneously he did not grace,” “coup de to deliver the Schaeffer express any feeling of remorse for Schaef- anticipate his own death. The seemed to asked, finally you fer’s death. When “Are suffering endured disparity in victims is sorry simply now?” Donnivan’s dead legitimate an important and consideration proceeded responded, “Yeah.” He then to tell proportionality evaluating when of a “get that he wanted to off.” officers death sentence. compelling such evi- [¶209] Faced with Additionally, the the evi- [¶ nature of 208] culpability dence the defendant’s moral apart dence in this case sets from remorse, apparent and lack of sincere we case in this state. In the seven imposed conclude sentence on the death penalty the death other eases where nor dispropor- Rhines was neither excessive considered, prosecution’s evidence was imposed tionate similar testimony by involved circumstantial cases South Dakota. third-persons who observed the defendant’s [¶ 210] Affirmed. inculpatory heard wrongdoing or who state- case, ments the defendant. GILBERTSON, J., and description Rhines’ own of his heard JOHNSON, Judge, concur. Circuit arrogant and atti- crime. His cold-blooded shockingly tude his offense was made toward AMUNDSON, JJ., 212] and SABERS apparent in his own words and his own dissent. stabbing voice. Rhines described JOHNSON, Judge, sitting Circuit chilling, clinical detail. He told Schaeffer J., KONENKAMP, disqualified. “thrashing” “screaming” about Schaeffer He after stab wound. air whis- the first said SABERS, (dissenting). Justice back, tled the wound out of Schaeffer’s [¶ 214] The issue is: Whether sentence “sucking it a back wound.” As to called disproportionate of death excessive or blow, Rhines remarked: final death “Sat cases, penalty imposed in similar consid- him put basically, him his head down ering both and the the crime defendant. legs applied between his the knife to herein, joins reasons stated back of the neck where skull For the spinal Right joint dispropor- in the at the sentence is excessive and column. of death that, addition, penalty imposed enough, tionate to the in similar there must be eases, considering both the crime and the mandatory proportionality by review the Su- 23A-27A-12(3). defendant. SDCL Court, preme it is clear that no death sen- imposed tence shall be unless we can affirma- provides SDCL 23A-27A-12 [¶ 216] the tively determine that the death sentence is by Supreme factors to be reviewed the Court disproportionate neither excessive nor to the regarding pur- a death sentence. For the penalty imposed cases, considering similar case, pose of this I will assume that both the crime and the defendant. In other imposed death sentence was not under the words, even if we were to conclude that this passion, prejudice, any influence defendant and this defendant’s crime de- factor, arbitrary sup- and that the evidence death, impose serves we cannot it because it jury’s ports finding statutory aggra- of a is excessive disproportionate pen- to the vating circumstance as enumerated in SDCL imposed alties in similar cases. That is our 23A-27A-1. 23A-27A-12(3). task under SDCL It did not However, above, as indicated SDCL way, have to be that it but is. The United 23A-27A-12(3) Supreme mandates require States Constitution does not it but affirmatively Court determine that this death Legislature South Dakota does. sentence is neither nor dispropor- excessive penalties imposed tionate to the in similar Concerning pro- [¶220] the mechanics of cases, considering both the crime and the review, portionality majority opinion fact, affirmatively defendant. unless we states: determine that the death sentence is neither argues pool of similar cases for disproportionate penal- excessive nor to the proportionality review encompass should cases, then, imposed in ties criminal in that all prosecuted homicide cases that were event, requires SDCL 23A-27A-14 that “the could prosecuted have been under person court shall sentence such to life im- capital punishment State’s current scheme. prisonment.” That is what must be done prosecutorial He reasons that discretion is here. important factor that this Court must considering penalties [¶ 218] Before ruling proportionality. consider when on cases, imposed very important similar it is argues pool The State of similar cases Harris, point Pulley out that should be limited to those Dakota South 37, 50-51, 104 79 L.Ed.2d proceeding capital punishment cases (1984), Supreme 40-41 the United States phase, regardless of whether a death sen- held that the Court Constitution of the Unit- actually imposed. tence was There are require proportionality ed does not States seven other South Dakota cases that have words, necessary review. In other it was not proceeded penalty to death deliberations. Legislature for the South Dakota to enact majority opinion promptly proceeds 23A-27A-12(3) requiring mandatory SDCL adopt argument any the State’s without con- proportionality by review Dakota South sideration of other murder cases and without Supreme Court. I submit awas any analysis. reasoned Legislature for the mistake South Dakota require mandatory proportionality review propor- It seems clear to me that if required by it was not when the United tionality meaningful, review is to be as in- pre- States Constitution. This statement by legislature, pool tended our of “similar sumes, course, that the death report- cases” must include at a minimum all legislature desired in most murder present murder This would no ed cases. cases. Dakota, great difficulty in where the South are, infrequent, Most murders for the crime of murder is if not most still part, aggravating Generally, full of than circumstances and at uncommon. we have less ten penalty proponents, reported per year. least for more murder cases Prosecuto- adequate capital punishment. plea bargaining than for rial should be How- discretion ever, consideration, legislature clearly our even if not when has said factors for control- ling, disposed that those circumstances are not and the cases those automatically Rough life in omit- Donald received methods should not be Surface rate, murder, robbery pool prison rape, of “simi- At to limit the ted.7 body majority his assault of uncle. The victim’s lar cases” to seven as does beaten, itself, naked, badly is, bloody, arbitrary and unreasonable. was found a space in beneath and burned the crawl memory great It takes no to recall 222] Mobridge. The victim grain elevator in the facts numerous “similar cases” where and raped had also been and robbed. were at circumstances least (S.D. Bradley, 5. State v. 431 N.W.2d 317 fact, in In as hideous as Rhines’ case. 1988). major in all distinguishing feature body Hawk’s was Jamie Thunder prison in that the life cases is was in Baltic in found a roadside ditch near less, moment, for a and death. Consider 1986. Her head had been severed with following cases: testimony a knife. There that she was (S.D. Ashker, 412 97 1. State v. N.W.2d tortured over a had been abused and 1987). Bradley time that on period by of and Lewis Ashker and Curt Novaock were death, kicked, day of her was she first-degree of convicted of murder Bradley raped strangled and to death. Jerry death of Plihal in Delmont. Plihal imprisonment. received life struggled had his attackers and had with (S.D. Miller, v. N.W.2d 26 6. State 429 been stabbed numerous times. Plihal’s 1988). guns missing, not found were but murder, Todd Miller of was convicted authorities. possession money kidnapping, of ransom Leapley, 2. v. N.W.2d 422 Jenner 521 forgery for and the death of his “friend” (S.D.1994). Kinney Michael near Aberdeen. He re- Sjong Jackie was found dead ceived life sentences. bridge Spearfish, under a near vic- (S.D. Corder, v. 7. State 460 N.W.2d 733 range, four tim of bullets fired close 1990). Sjong weapons. from two different was Harvey Ronald Ernst Corder and up” in “picked by Michael Jenner Cali- each received a for the life sentence brought Sturgis for fornia and execu- beating brutal of Hirocke near Clifford a tion because he had “ratted” on fellow Vermillion. club member. Michael Jenner and (S.D. Elliott, Davi, Richard of an “outlaw” members 8. State v. N.W.2d club, 1993). motorcycle were convicted of first- degree murder and each received a life prison Davi in Scott received life for

sentence. rape convictions murder and of his ex- Braddock, wife, v. burglary apartment 3. State N.W.2d 785 and her (S.D.1990). brutally Falls. been Sioux She had beaten, raped strangled. and

Edward Braddock was convicted of (S.D. imprison- Phillips, murder and sentenced to life v. 9. State 489 N.W.2d 613 1992). killing Douglas ment for Cramer

shooting him times with AK-47 Phillips Darlene a life received sen-' city Edgemont dump. rifle at assault conspiracy fence her conviction of money. He claimed him Cramer owed murder. commit After several aborted Surface, poison Rough attempts 4. State v. with fire to kill her N.W.2d (S.D.1989). caring, for ex-husband whom she was being baby for a "murder 7. Consider moment the recent was killed and that her was in the Mary case of in Sioux Falls. next bedroom. hire” K. Ross killing who hired two man killers ago, years young brutally raped Several man pleas despite life received sentences as result nine-year-old Argus murdered a Sioux Falls the fact that she was stabbed numerous paper girl times Leader and received a life sentence. view, period long majority's a substantial lived over of time. She Under the these cases would enough operator report pool to call the never be considered similar cases. she in its person him imprisonment.” she and others smothered with to life 23A- SDCL pillow in 27A-14. Lemmon. Henjum, 1996 SD AMUNDSON, (dissenting). Justice (S.D.1996).

N.W.2d 760 respectfully I dissent on Issue Finally, recently February as as majority’s comparative pro- for I believe the 1994, Mitchell, Henjum, Lawrence portionality pool review universe or too roommate, shot his friend Mark restrictive. When I embarked on this man- Nelson, in the head with a rifle for no review, Benjamin I dated felt much like N. apparent charge reason. The murder Cardozo when he stated: dropped manslaughter, pled was he spirit my I much troubled first guilty forty-five year's. and received years bench, upon the to find how track- approxi- Minimal research discloses I less was the ocean on which had em- mately reported murder cases since sought certainty. barked. I I was many of which are as hideous as Rhines’ oppressed and disheartened when I found them in a death ease. None of resulted quest it the for was futile.... As the sentence. None of them are even considered years gone by, I have and as have re- majority opinion. in the upon flected more and more the nature of pool if Even of similar cases judicial [¶ 224] process, I have become recon- limited to the seven eases used uncertainty, ciled to the because I have majority, aggravating circum- the facts and grown to it as I have see inevitable. stances of Rhines are more common than grown process highest to see that the in its exceptional. Although specific creation; discovery, details reaches is not but brutality vary, killing of each is similar. misgivings, hopes that the doubts and fact, fears, objectively, mind, In part viewed all of them were are of the travail of birth, pangs pangs hot or cold blooded murders or executions of death and the principles in against only which that have served their defenseless victims. The real day expire, principles distinguishing feature is that all of those and new are born. in prison. murderers received life There- Cardozo, Benjamin N. The Nature fore, disproportion- Rhines’ death sentence is (1921). Process, Judicial comparison. in ate and excessive propor- [¶ 228] One of the fundamentals of tionality majority opinion: As stated in the review is to avoid “death sentences [¶ 225] imposed wantonly freakishly.” Gregg comparatively exces- ... “[A] death sentence is Georgia, sive if other defendants with similar charac- (White, J., generally 49 L.Ed.2d

teristics receive sentences result, committing factually concurring). In order to avoid such a than death for similar jurisdiction.” larger pool comparison needs to be used for offenses the same State v. Marshall, properly perform to ensure we this ominous 130 N.J. 613 A.2d paraphrase, voyage provides op- To Rhines’ death sen- task. This maiden portunity procedure comparatively all to establish a for evalu- tence is excessive because ating appropriateness of a sen- other defendants with similar characteristics death sight A tence. court should not lose received sentences other than death for com- factually of this is fair- mitting purpose similar offenses in the same fact that the review notwithstanding jurisdiction. ness the nature of the crime. Mercer, 1, 21 In State v. 618 S.W.2d say Accordingly, pure it is fiction (Mo.1981)(Seiler, J., dissenting) it was noted: exces- that Rhines’ death sentence is neither capi- disproportionate By im- “similar cases” is meant similar sive nor murders, only considering tal not limited to those posed in similar cases both the Therefore, imprisonment we where both death and life crime and the defendant. then af- but to reverse and remand were submitted to the have no choice because, circumstances, way appeal, re- firmed on whichever the case these the law punishment. The evil deed is the quires that “the court shall sentence such went on 23A-27A-12(3) that, states SDCL accompanied it and what murder and the crime and the defendant, are to consider both what must be we is as well as conducting comparative our defendant when comparing what one defendant looked at review, just capital proceeding not that a capital punishment under received Dakota, only peo- two place. South charge what another received. took murder with to death 1979 have been sentenced capital ple defendant since that a murder fact fifty-two eligible criminals. In gets at least get penalty or out of the death does comparative proportionality re- conducting waived the new trial or that the state view, required if a case to be on all fours we penalty in his ease or that his case in order for them to be mean that with the other cases pending before us does not still similar, impossible. I submit that would be ignore making our com- we can his case idea, already by this By using pool assembled accept the as we parison. Once we court, parties involved must, gives notice to the penalty cannot be the death will be random, arbitrarily litigation in the as to what cases or incon- inflicted at Then, litigants can make necessarily must take considered. sistently, then we on that argument their on this issue based all murders we into consideration Otherwise, pool. a defendant does not find know about. what are similar cases until the decision out legislature us state mandates 230] Our down. There is no statute is handed carry proportionality review. SDCL out Dakota that defines “similar case” nor South 1979, SDCL 23A-27A-8 23A-27A-12. Since provide us with a standard does statute to accumulate the required has this court performing the mandated review. On the felony cases that we records of all hand, which I recom- all of the cases appropriate. The information available deem pool included in the have one simi- mend be until time tracks cases from 1981 at this taking larity, namely, wrongful of another forty-eight capital records contain 1993. Our By pool, person’s employing life. such a this appropriate to felony that we deemed cases proceeding appropriate court would be with Beyond the records assembled accumulate. making when a decision care and caution time, there are at least four in Pierre being. involving life or death of a human in this that could be included other cases majority’s is the ratio- accumulation.8 What conclusion, might personally I culling pool to sev- nale for this established imposed feel Rhines has earned the sentence legislature has mandated this en? Since jury, but that is not the issue. The review, meaningful or the result it must be penalty being issue is whether the death suspect. As Justice Utter stated will be uniformly arbitrarily. imposed and not This Benn, v. 120 Wash.2d his dissent by only considering resolved issue cannot be (1993): P.2d 326-27 capital sentencing proceedings where cases actually were conducted. review, penalty, the death such Without some, lightning, strike but not like will

others, expla- way in a that defies rational severity penalty,

nation. The of the death irrevocability, statutory man-

its and our

date, carefully require wheth- us assess imposed

er the death has been statute, cannot,

arbitrarily. under the We

simply jury’s sentencing deter- defer to

mination. Helmer, (Convicted (S.D.1995) May of second- 1996 SD 545 N.W.2d 471 8. State (Convicted July actually shot and degree 1994. Victim was New stated he did not murder. removed.); decapitated and hands State v. murder, Larson, then witnessed.); just State v. (Pleaded Henjum, SD 542 N.W.2d 760 (Convicted (S.D.1994) N.W.2d 732 November guilty manslaughter degree in the first some- second-degree murder. Victim shot in 1994. Defendant shot victim with no time Interstate.). driving while down New, provocation.); N.W.2d 714 State v. notes Rhines Staeffler affir matively when the court if asked she could Disqualification 50] of Staeffler. However, above, follow as the law. noted query Staeffler misunderstood the court’s Rhines trial claims the court following realize did not the law improperly excused Staeffler cause. penalty. included consideration of the death only the trial “can asserts court ex Furthermore, impartiality juror of a clude unequivocally those who have upon “must be based the whole voir dire expressed complete without contradiction (Em single inability responses examination isolated impose penalty.” the death

Case Details

Case Name: State v. Rhines

Court Name: South Dakota Supreme Court

Date Published: May 15, 1996

Citation: 548 N.W.2d 415

Docket Number: None

Court Abbreviation: S.D.