#26213-a-DG

2012 S.D. 60

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                    ****

STATE OF SOUTH DAKOTA,                      Plaintiff,

      v.

ERIC DONALD ROBERT,                         Defendant.

                                    ****

                   APPEAL FROM THE CIRCUIT COURT
                      SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                       HONORABLE BRADLEY G. ZELL
                                Judge

                                    ****

MARTY J. JACKLEY
Attorney General

PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff.

MARK KADI
Minnehaha County Public Advocates
Sioux Falls, South Dakota                   Attorneys for defendant.

RANDAL E. CONNELLY
Rapid City, South Dakota                    Amicus Curiae.

                                    ****
                                            CONSIDERED ON BRIEFS
                                            ON JULY 31, 2012

                                            OPINION FILED 08/15/12
#26213

GILBERTSON, Chief Justice

[¶1.]         Eric Robert pleaded guilty to first-degree murder for the death of

penitentiary guard Ronald Johnson, a 23-year veteran correctional officer at the

South Dakota State Penitentiary in Sioux Falls. Robert waived his right to a jury’s

determination of whether the death sentence would be imposed. The circuit court

conducted a pre-sentence hearing and imposed the death penalty. Subsequent to

pleading guilty, Robert has consistently sought imposition of the death penalty and

that the execution be expedited. Even though Robert waived his right to appeal the

death sentence, this Court is statutorily mandated to conduct a review of the death

sentence. SDCL 23A-27A-9.

                                         Facts

[¶2.]         Robert was convicted of kidnapping in Meade County in January 2006.

The Meade County Circuit Court sentenced him to 80 years in prison. This

conviction resulted in Robert being incarcerated in the South Dakota State

Penitentiary beginning in January 2006.

[¶3.]         On April 12, 2011, Robert and Rodney Berget, also an inmate at the

South Dakota Penitentiary, entered the Pheasantland Industries’ building 1 in the

penitentiary complex. 2 Because of their maximum security classifications, neither

inmate was authorized access to this building. On this date, Johnson was working


1.      Pheasantland Industries is an enterprise within the walls of the State
        Penitentiary.

2.       A separate appeal is currently pending in this Court in regard to Berget. See
        State v. Berget, #26318. We limit our factual review in this case to the record
        contained herein. See also n.13.

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#26213

in the Pheasantland Industries’ building. Robert and Berget assaulted Johnson by

striking him with a lead pipe which they had acquired earlier specifically for that

purpose. Johnson was repeatedly struck on the face and head with the lead pipe.

An expert testified that the blows to the head continued after Johnson was on the

ground. The attack fractured Johnson’s skull in at least three locations and

exposed a portion of his brain. He also suffered defensive wounds to his hands and

arms. After immobilizing Johnson with the pipe, Robert and Berget wrapped

Johnson’s head in plastic wrap which prevented him from crying out and also from

breathing. The inmates dragged Johnson’s body behind a large crate to conceal

him.

[¶4.]        Robert then dressed himself in Johnson’s uniform and Berget climbed

into a box placed on a four-wheel cart. Robert, dressed as Johnson, pushed the cart

toward the west gate of the penitentiary. After observing that Robert did not swipe

an ID badge, Correctional Officer Jodi Hall confronted Robert about his identity.

When Robert’s explanation did not satisfy her, Hall notified Officer Matt Freeburg.

Freeburg told Hall to call the Officer in Charge. At this time, Berget sprang from

the box and he and Robert began assaulting Freeburg. The inmates used Johnson’s

radio to beat Freeburg. Hall issued a distress call “Code Red – Code 3” on her radio.

While Berget continued the assault on Freeburg, Robert attempted to scale the

exterior gate of the penitentiary but became entangled in razor wire. Robert then

attempted to grab a gun from the responding officers. When that did not work,

Robert and Berget tried to bait the officers into shooting them. Unsuccessful and

surrounded, Robert shook Berget’s hand and the pair surrendered.

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#26213

[¶5.]            Because Robert was wearing Johnson’s uniform, penitentiary staff

began to search for Johnson. His body was discovered behind the crate in the

Pheasantland Industries’ building. His face was badly disfigured and swollen from

the beating and asphyxiation. The correctional officer who found Johnson

attempted CPR. Life-saving efforts continued after medical personnel arrived and

on the way to the hospital, but all efforts proved futile. Johnson was declared dead

at the hospital.

                                    Procedural History

[¶6.]            On September 16, 2011, Robert pleaded guilty to first-degree murder

in violation of SDCL 22-16-1(1), 22-16-4(1), 22-16-12, and 22-3-3. Robert waived his

right to a jury sentencing. The circuit court found Robert competent, that he was

represented by competent counsel, and that the plea and jury waiver were entered

voluntarily, knowingly, and intelligently.

[¶7.]            Pursuant to South Dakota’s statutes, a death penalty prosecution is

conducted in two phases. See SDCL 23A-27A-2. The first phase adjudicates the

defendant’s guilt or innocence. Id. If a guilty verdict is returned, the trial is

resumed “to hear additional evidence in mitigation and aggravation of punishment.”

Id. Because Robert pleaded guilty, there was no trial on the guilt phase. Moreover,

because he waived his right to jury sentencing, the penalty phase was tried to the

circuit court.




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[¶8.]        In order for the death penalty to be considered, the State must prove at

least one of the aggravating circumstances enumerated in SDCL 23A-27A-1 3



3.      This section provides:

             Pursuant to §§ 23A-27A-2 to 23A-27A-6, inclusive, in all cases
             for which the death penalty may be authorized, the judge shall
             consider, or shall include in instructions to the jury for it to
             consider, any mitigating circumstances and any of the following
             aggravating circumstances which may be supported by the
             evidence:

             (1)    The offense was committed by a person with a prior
             record of conviction for a Class A or Class B felony, or the
             offense of murder was committed by a person who has a felony
             conviction for a crime of violence as defined in subdivision 22-1-
             2(9);

             (2)    The defendant by the defendant’s act knowingly created a
             great risk of death to more than one person in a public place by
             means of a weapon or device which would normally be
             hazardous to the lives of more than one person;

             (3)    The defendant committed the offense for the benefit of the
             defendant or another, for the purpose of receiving money or any
             other thing of monetary value;

             (4)     The defendant committed the offense on a judicial officer,
             former judicial officer, prosecutor, or former prosecutor while
             such prosecutor, former prosecutor, judicial officer, or former
             judicial officer was engaged in the performance of such person’s
             official duties or where a major part of the motivation for the
             offense came from the official actions of such judicial officer,
             former judicial officer, prosecutor, or former prosecutor;

             (5)   The defendant caused or directed another to commit
             murder or committed murder as an agent or employee of
             another person;

             (6)   The offense was outrageously or wantonly vile, horrible,
             or inhuman in that it involved torture, depravity of mind, or an
             aggravated battery to the victim. Any murder is wantonly vile,
                                                                  (…continued)
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beyond a reasonable doubt. SDCL 23A-27A-6. 4 Should at least one aggravating

circumstance be proven, the death penalty can be considered. Id. At the pre-

sentence hearing, defendants are allowed to present whatever relevant mitigating

evidence they can muster. SDCL 23A-27A-2.

[¶9.]        Robert’s pre-sentence hearing began on October 24, 2011, and lasted

four days. Following the hearing, the circuit court entered extensive findings of fact

and conclusions of law. The circuit court found that the State proved beyond a


________________
(…continued)
            horrible, and inhuman if the victim is less than thirteen years of
            age;

             (7)     The offense was committed against a law enforcement
             officer, employee of a corrections institution, or firefighter while
             engaged in the performance of such person’s official duties;

             (8)    The offense was committed by a person in, or who has
             escaped from, the lawful custody of a law enforcement officer or
             place of lawful confinement;

             (9)    The offense was committed for the purpose of avoiding,
             interfering with, or preventing a lawful arrest or custody in a
             place of lawful confinement, of the defendant or another; or

             (10) The offense was committed in the course of manufacturing,
             distributing, or dispensing substances listed in Schedules I and II in
             violation of § 22-42-2.

4.      This section provides:

             In nonjury cases the judge shall, after conducting the
             presentence hearing as provided in § 23A-27A-2, designate, in
             writing, the aggravating circumstance or circumstances, if any,
             which he found beyond a reasonable doubt. Unless at least one
             of the statutory aggravating circumstances enumerated in §
             23A-27A-1 is so found, the death penalty shall not be imposed.


                                          -5-
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reasonable doubt the existence of two aggravating circumstances: “the offense was

committed against a law enforcement officer, employee of a corrections institution,

or firefighter while engaged in the performance of such person’s official duties,” and

“the offense was committed by a person in, or who has escaped from, the lawful

custody of a law enforcement officer or place of lawful confinement.” SDCL 23A-

27A-1(7), (8). Although evidence had been presented regarding several other

aggravating circumstances, the circuit court found it unnecessary to make further

findings regarding any other aggravating circumstances. Because at least one of

the enumerated aggravating circumstances had been proven, the circuit court

concluded that consideration of the death penalty was appropriate.

[¶10.]        The circuit court then turned to its consideration of the aggravating

and mitigating evidence presented. See SDCL 23A-27A-2. 5 The court began this




5.       This section provides:

              In all cases in which the death penalty may be imposed and
              which are tried by a jury, upon a return of a verdict of guilty by
              the jury, the court shall resume the trial and conduct a
              presentence hearing before the jury. Such hearing shall be
              conducted to hear additional evidence in mitigation and
              aggravation of punishment. At such hearing the jury shall
              receive all relevant evidence, including:

              (1)   Evidence supporting any of the aggravating
              circumstances listed under § 23A-27A-1;

              (2)   Testimony regarding the impact of the crime on the
              victim’s family;

              (3)   Any prior criminal or juvenile record of the defendant and
              such information about the defendant’s characteristics, the
                                                                   (…continued)
                                         -6-
#26213

analysis by noting Robert’s intent and desire to die. The court concluded that such

a wish is not an aggravating circumstance appropriately considered in the

determination of whether the death penalty should be imposed. The court also

noted that Robert had instructed his counsel not to present mitigating evidence on

his behalf. However, the court indicated that it considered all mitigating evidence

contained in the record. This mitigating evidence included Robert’s acceptance of

responsibility and mitigating evidence from the Meade County kidnapping file, of

which the court took judicial notice. After considering both the aggravating and

mitigating evidence, the court concluded that “the only effective and reasonable

retribution or punishment under the totality of the circumstances in this matter is

the imposition of the death penalty.”

[¶11.]       The circuit court entered a Judgment of Conviction and Warrant of

Execution on November 10, 2011. On November 16, 2011, Robert filed a Waiver of

Appeal, waiving his right to appeal his conviction. This waiver acknowledged his

right to appeal, acknowledged discussing his waiver with counsel, and stated that

the waiver was free and voluntary. The waiver was signed by Robert and was

notarized.

[¶12.]       Regardless of Robert’s waiver of appeal, this Court is obligated to

review each death sentence imposed in South Dakota. “If the death penalty is


________________
(…continued)
            defendant’s financial condition, and the circumstances of the
            defendant’s behavior as may be helpful in imposing sentence;

             (4)   All evidence concerning any mitigating circumstances.

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#26213

imposed, and if the judgment becomes final in the trial court, the sentence shall be

reviewed on the record by the South Dakota Supreme Court.” SDCL 23A-27A-9.

This Court conducts this review whether or not the defendant appeals the sentence.

When the defendant appeals, this Court’s statutorily obligated sentence review is

consolidated with the direct appeal. Id. This Court obtained jurisdiction to conduct

this sentence review when the circuit court clerk transmitted the record,

transcripts, a prepared notice of the clerk, and report of the trial judge to this

Court. 6 See id.

[¶13.]         Upon obtaining jurisdiction, Robert’s position raised with this Court an

issue of first impression. It was clear to the Court that Robert had instructed his

appointed counsel to make no argument against imposition of the death penalty.

This Court is aware of society’s interest in the constitutional imposition of the death

penalty. See Commonwealth v. McKenna, 383 A.2d 174, 181 (Pa. 1978). This



6.       Robert’s position in this matter raised procedural issues as of yet unique to
         this State’s death penalty procedure. Pursuant to SDCL 23A-27A-9, the
         circuit court clerk is to transmit the entire record and transcript to this Court
         in order to effectuate the mandatory sentence review. The time for
         transmittal of the record from the circuit court to this Court hinges upon
         completion of the transcripts. Because Robert chose not to appeal, he did not
         order transcripts in connection with his notice of appeal. However,
         transcripts needed to be ordered and completed both to effectuate this Court’s
         sentence review and to commence the time for transmittal of the record from
         the circuit court to this Court. The circuit court, appropriately relying on
         SDCL 23A-32-1, issued an order directing the court reporters involved to
         prepare transcripts and charge the expense to the County. Completion and
         filing of the transcripts provided this Court with a complete record on which
         to conduct this mandatory sentence review and triggered the procedural
         mechanism for initiating that review when no notice of appeal was filed by
         Robert.


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#26213

interest exists independent of the State’s interest in punishing Robert for his

crimes. Aware that Robert’s instructions prevented his appointed counsel from

arguing against imposition of the death penalty and that the State would be

arguing for imposition of the death penalty, this Court appointed an experienced

criminal trial attorney as amicus curiae to identify and raise any potential issues

not presented due to the respective positions of Robert and the State. 7

[¶14.]         Additionally, Robert’s position called into question his competency–

especially his competency to waive presentation of mitigating evidence at the pre-

sentence hearing and urge his own execution. The record revealed that Dr.

Manlove, a psychiatrist, had evaluated Robert for the purpose of determining his

competency to stand trial. 8 While it was clear that Dr. Manlove concluded Robert

was competent to stand trial, Robert had prevented either the State or the circuit


7.       Given Robert’s position of seeking the death penalty, this Court concluded it
         was appropriate to appoint an amicus curiae to act as an independent “friend
         of the Court” to call to this Court’s attention any issues which are relevant to
         its statutory and constitutional independent review of this case. The amicus
         did appropriately function in this manner.

               [T]he term “amicus curiae” literally means “a friend of the
               court.” It ordinarily implies the friendly intervention of counsel
               to call the court’s attention to a legal matter which has escaped
               or might escape the court’s consideration. The right to be so
               heard is entirely within the court’s discretion. . . . He cannot be
               partisan. Neither can he be a party nor assume the functions of
               a party to an action.

         Matter of Estate of Ohlhauser, 78 S.D. 319, 322-3, 101 N.W.2d 827, 829
         (1960).

8.       Dr. Manlove had also evaluated Robert in connection with the Meade County
         proceedings.


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#26213

court from reviewing Dr. Manlove’s report. At that point, Robert had sole access to

the report and refused to release it to the circuit court or to the State. Given the

gravity of the issues and potential outcome, this Court, sua sponte, requested the

parties address the issue of Robert’s competency. Specifically, this Court requested

the parties’ analysis of the appropriate competency standard, and whether Robert

gave any indication of failing that standard. All parties, including the amicus

curiae, agreed that the record revealed no concern as to Robert’s competency. The

circuit judge had found Robert competent, and Robert’s in-court statements

throughout the circuit court proceedings were those of a competent, intelligent man.

Nevertheless, out of an abundance of caution, this Court accepted Robert’s offer to

review in-camera the Manlove report completed after Robert chose to plead guilty.

The contents of this report, which remain under seal, alleviate our concerns

regarding Robert’s competency.

[¶15.]       With amicus appointed and Robert’s competency settled, this Court

entered an order setting a briefing schedule. Further, we ordered Robert’s

execution stayed until such time as this sentence review was completed. Robert

strenuously objected to the briefing schedule and the resultant delay of his

execution, arguing that this Court was without jurisdiction to stay his execution

absent a direct appeal. We addressed Robert’s objections in an earlier opinion.

State v. Robert, 2012 S.D. 27, 814 N.W.2d 122. We determined that this Court has

jurisdiction to stay Robert’s execution pending our review. Id. This Court having




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#26213

received the briefs of Robert, the State, and amicus curiae, now proceeds to review

Robert’s sentence. 9

                                         Analysis

[¶16.]         Regardless of whether a direct appeal is filed by a defendant, this

Court is obligated to review each sentence of death imposed in this state. “If the

death penalty is imposed, and if the judgment becomes final in the trial court, the

sentence shall be reviewed on the record by the South Dakota Supreme Court.”

SDCL 23A-27A-9. This Court is required to make certain enumerated inquiries

regarding each death sentence.

               With regard to the sentence, the Supreme Court shall
               determine:

               (1)    Whether the sentence of death was imposed under the
               influence of passion, prejudice, or any other arbitrary factor; and




9.       Robert and the State both waived oral argument in this matter. As the
         parties’ respective briefs illustrated no difference in their positions on the
         statutorily mandated areas of inquiry, we accepted the waiver and review
         Robert’s sentence on the record presented. This should not be understood as
         rendering our review of Robert’s death sentence cursory. As we have
         recognized: “This is in keeping with the mandate of the Supreme Court that
         we must review carefully and with consistency death penalty cases and not
         engage in ‘cursory’ or ‘rubber stamp’ type of review.” State v. Piper, 2006 S.D.
         1, ¶ 83, 709 N.W.2d 783, 815 (quoting Arizona v. Watson, 628 P.2d 943, 946
         (1981)). See also Piper v. Weber (Piper II), 2009 S.D. 66, ¶ 6, 771 N.W.2d 352,
         355 (“‘The penalty of death is qualitatively different from a sentence of
         imprisonment, however long. Death, in its finality, differs more from life
         imprisonment than a 100-year prison term differs from one of only a year or
         two.’ Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49
         L. Ed. 2d 944 (1976). ‘The qualitative difference of death from all other
         punishments requires a correspondingly greater degree of scrutiny of the
         capital sentencing determination.’ California v. Ramos, 463 U.S. 992, 998-99,
         103 S. Ct. 3446, 3452, 77 L. Ed. 2d 1171 (1983)”).

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#26213

             (2)    Whether the evidence supports the jury’s or judge’s
             finding of a statutory aggravating circumstance as enumerated
             in § 23A-27A-1; and

             (3)   Whether the sentence of death is excessive or
             disproportionate to the penalty imposed in similar cases,
             considering both the crime and the defendant.

SDCL 23A-27A-12. We address each inquiry in turn.

[¶17.]       (1)    Whether the sentence of death was imposed under the
                    influence of passion, prejudice, or any other arbitrary
                    factor.

[¶18.]       The pre-sentence verdict illustrates the circuit court’s thought process

in reaching its sentencing conclusion. The conclusion was based on appropriate

considerations including: Robert’s future dangerousness, including his threat to kill

again; his violent history, including the 2005 kidnapping; his ability to be

rehabilitated; and the severity and depravity of the crime. The court also

considered any mitigating evidence it could find, despite Robert’s desire that no

such evidence be presented. None of the considerations articulated as factoring into

the sentencing decision evidence the influence of passion, prejudice, or any other

arbitrary factor.

[¶19.]       Perhaps the obvious manner in which Robert fights so vigorously for

his execution calls us to review the propriety of it. Robert’s passion toward this end

generates an examination of the manner in which the sentence was imposed.

Robert’s persistent efforts to hasten his own death necessitate intense scrutiny to

guarantee his desire to die was not a consideration in the sentencing determination.

We do not participate in a program of state-assisted suicide. “The State must not

become an unwitting partner in a defendant’s suicide by placing the personal

                                         -12-
#26213

desires of the defendant above the societal interests in assuring that the death

penalty is imposed in a rational, non-arbitrary fashion.” Grasso v. State, 857 P.2d

802, 811 (Okla. Crim. App. 1993) (Chapel, Judge, concurring). Indeed, had the

sentencing determination been based in any degree on Robert’s desire to die, the

sentence may have been impermissibly imposed based on a non-statutory arbitrary

factor—Robert’s suicide wish. See Lenhard v. Wolff, 444 U.S. 807, 815, 100 S. Ct.

29, 33 (1979) (Marshall, J., dissenting). If that were the case, and the record

revealed that the circuit court based its decision on Robert’s desire to die, this Court

would be obligated to reverse the sentence of death and remand for resentencing.

See SDCL 23A-27A-13. It is not a statutory aggravating circumstance to invoke the

death penalty. See SDCL 23A-27A-1. However, the circuit court went out of its way

to make it clear that the sentencing decision was based in no part on Robert’s desire

to die. This Court can affirm the constitutional imposition of the death penalty

imposed in accordance with our statutes; it will not sanction state-assisted suicide.

[¶20.]       As noted above, Robert waived presentation of mitigating evidence at

the pre-sentence hearing. The circuit court recognized Robert’s right to do so.

Schriro v. Landrigan, 550 U.S. 465, 479, 127 S. Ct. 1933, 1942, __ L. Ed. 2d __

(2007). The circuit court in Schriro engaged the defendant in an on-the-record

colloquy regarding his waiver of presentation of mitigating evidence. Id. at 469, 127

S. Ct. at 1937. Here, the record presents no such on-the-record colloquy specifically

relating to Robert’s waiver of mitigating evidence. However, the Supreme Court

indicated in Schriro that such a colloquy had never been required. Id. at 479, 127 S.

Ct. at 1943. It also indicated that an “informed and knowing” standard for waiving

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mitigating evidence had not been established, but it assumed that one existed. Id.

at 479, 127 S. Ct. at 1942. While it may be better practice to conduct an on-the-

record colloquy with a capital defendant choosing to waive mitigating evidence, the

record supports the conclusion that, assuming an “informed and knowing” standard

applies to such a waiver, Robert’s waiver satisfied that standard.

[¶21.]          Recognizing that Robert had a right to waive presentation of

mitigating evidence, the circuit court considered mitigation from whatever source it

could find. SDCL 23A-27A-1 requires that the judge “shall consider . . . any

mitigating circumstances.” Piper, 2006 S.D. 1, ¶ 32, 709 N.W. 2d at 799 (also citing

Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973

(1979)). Despite Robert’s waiver, the circuit court’s consideration of “any mitigating

circumstances” was required. This the circuit court did. Robert’s death sentence

does not appear to have been the result of passion, prejudice, or any other arbitrary

factor.

[¶22.]          (2)   Whether the evidence supports the jury’s or judge’s
                      finding of a statutory aggravating circumstance as
                      enumerated in § 23A-27A-1.

[¶23.]          The circuit court found that the State had proven the existence of two

of the aggravating circumstances enumerated in SDCL 23A-27A-1. 10 Specifically,

the court found the existence of circumstance 7: “The offense was committed against

a law enforcement officer, employee of a corrections institution, or firefighter while

engaged in the performance of such person’s official duties;” and circumstance 8:


10.       “We have previously held the aggravating factors under SDCL 23A-27A-1 to
          be constitutional.” Piper, 2006 S.D. 1, ¶ 28, 709 N.W.2d at 783.

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“The offense was committed by a person in, or who has escaped from, the lawful

custody of a law enforcement officer or place of lawful confinement.”

[¶24.]         The evidence presented at the pre-sentence hearing included testimony

from Douglas Weber, Director of Adult Corrections and Chief Warden for the State

of South Dakota. He testified that on April 12, 2011, Ronald Johnson was employed

as a corrections officer at the South Dakota Penitentiary. He also testified that, at

the time of the murder, Johnson was on duty in the Pheasantland Industries’

building, covering a shift for a different corrections officer’s absence. The evidence

presented supports the finding of the aggravating circumstance identified in SDCL

23A-27A-1(7).

[¶25.]         The record also contains the testimony of Jodi Hall and Matt Freeburg

from the pre-sentence hearing. These two officers described the situation they

encountered on April 12, 2011. Officer Hall described Robert’s actions as he

approached the penitentiary gate, dressed as Johnson. She also described Robert’s

attempt to climb through the razor wire on top of the gate after she called for the

Officer in Charge to come to the location. Officer Hall testified: “Mr. Robert and

Berget were attempting to escape.” 11

[¶26.]         Officer Freeburg also described the events of April 12, 2011. Officer

Freeburg testified that Robert assaulted him, then attempted to climb the gate.

The evidence presented supports the finding of the aggravating circumstance found


11.      SDCL 22-11A-1 defines escape as the “departure [by a prisoner] without
         lawful authority. . . .” SDCL 22-11A-2 provides, in relevant part, Escape in
         the First Degree to be “if the prisoner effects the escape. . . . (2) From a
         secure correctional facility. . . .”

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in SDCL 23A-27A-1(8). 12 In Piper, “we acknowledge[d] that once aggravating

circumstances have been proven beyond a reasonable doubt, the lower court has

broad discretion in determining whether to sentence a particular defendant to

death.” 2006 S.D. 1, ¶ 28, 709 N.W.2d at 798.

[¶27.]         (3)   Whether the sentence of death is excessive or
                     disproportionate to the penalty imposed in similar cases,
                     considering both the crime and the defendant.

[¶28.]         The final inquiry regarding Robert’s death sentence is the

proportionality of the sentence compared to the penalty imposed in similar cases.

This Court is obligated “to include in its decision a reference to those similar cases

which it took into consideration.” SDCL 23A-27A-13. We clarified the “universe” of

cases to be considered in conducting this review in Rhines I.

               We conclude that similar cases for purposes of SDCL 23A-27A-
               12(3) are those cases in which a capital sentencing proceeding
               was actually conducted, whether the sentence imposed was life
               or death. “Because the aim of proportionality review is to
               ascertain what other capital sentencing authorities have done
               with similar capital murder offenses, the only cases that could
               be deemed similar . . . are those in which imposition of the death
               penalty was properly before the sentencing authority for
               determination.”

State v. Rhines (Rhines I), 1996 S.D. 55, ¶ 185, 548 N.W.2d 415, 455-56 (quoting

Tichnell v. State, 297 Md. 432, 468 A.2d 1, 15-16 (1983) (citation omitted)).

[¶29.]         In Piper, 2006 S.D. 1, ¶ 38, 709 N.W.2d at 801, and State v. Page, 2006

S.D. 2, ¶ 60, 709 N.W.2d 739, 760-61, we identified those cases up to that point



12.      Furthermore, Robert admitted the existence of these two aggravating
         circumstances. All other evidence is consistent with that admission so as not
         to taint his admission by his admitted goal of seeking the death penalty.

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falling into this category. Since that time, our records reflect that, other than

Robert, and now Berget 13, there has been one case in which a capital sentencing

proceeding was conducted—State v. Daphne Wright. See State v. Wright, 2009 S.D.

51, 768 N.W.2d 512. In Wright, a Minnehaha County jury, faced with the decision

of whether to impose the death penalty, chose life in prison. Therefore, we compare

Robert’s sentence with those cases identified in Piper and Page, as well as Wright. 14

As we did in Page and Piper, we take judicial notice of the summaries of the cases

set forth in Rhines I, 1996 S.D. 55, ¶ 196, 548 N.W.2d at 456-57.




13.   As previously noted, Berget’s case is pending before this Court for review in a
      separate proceeding. See State v. Berget, #26318. We do not engage in a
      comparison of the Robert and Berget cases at this point as Berget’s appeal is
      still pending before this Court. As such, it is not a final decision of this Court
      appropriate for proportionality analysis. Moreover, Berget is contesting
      whether his actions justify a sentence of death on a proportionality basis. In
      part, he specifically relies upon a direct comparison between himself and
      Robert. To engage in such a joint analysis at this point could taint Berget’s
      right to fully argue the same issue on his behalf based upon the record in his
      case at the point when his case is ready to be considered by this Court rather
      than the record in the Robert case now before us.

      Although Page and Piper were considered and decided simultaneously, we
      limited ourselves to an examination of the individual record in each case
      when considering the statements of each defendant as to the facts of the
      homicide and culpability of each. See Page, 2006 S.D. 2, ¶ 110, 709 N.W.2d at
      775; Piper, 2006 S.D. 1, ¶ 86, 709 N.W.2d at 815.

14.   The universe of cases in which a capital sentencing proceeding was conducted
      includes: State v. Howard Adams; State v. Steven Bittner; State v. William J.
      Helmer; State v. Donald Moeller; State v. James Elmer Smith; State v. Edwin
      Swallow; State v. David Waff; State v. Charles Russell Rhines; State v. Robert
      Leroy Anderson; State v. Darrell Hoadley; State v. Elijah Page; State v. Briley
      Piper; and State v. Daphne Wright. Moving forward, the universe will include
      State v. Eric Robert and State v. Rodney Berget.

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[¶30.]       Of these cases, the sentencing authority imposed the death sentence on

six individuals (Moeller, Rhines, Anderson, Page, Piper, and Berget) and life

without parole on the other eight. For purposes of comparative proportionality

review, “a death sentence is comparatively excessive if other defendants with

similar characteristics generally receive sentences other than death for committing

factually similar offenses in the same jurisdiction.” Rhines I, 1996 S.D. 55, ¶ 205,

548 N.W.2d at 457 (quoting State v. Bey, 645 A.2d 685, 689 (N.J. 1994)).

Proportionality review focuses on both the crime and the defendant. Id. ¶ 206. We

have recognized that “the disparity in suffering endured by victims is an important

and legitimate consideration when evaluating the proportionality of a death

sentence.” Id. ¶ 207.

[¶31.]       As this is the first time this Court has included the case of Daphne

Wright in its proportionality review of a death sentence, a summary is appropriate.

Fueled by jealousy, Wright murdered a friend of her girlfriend by beating her to

death with a blunt object. The victim was also asphyxiated. Wright then attempted

to secrete the crime by cutting the victim’s body into pieces and disposing of the

parts in several places. The State sought the death penalty based on the depravity

of the crime. The evidence at trial established that the victim’s body was

dismembered post-mortem. The jury heard that Wright is deaf and that she was

traumatized when her parents sent her to a boarding school for the deaf at age five.

A psychological evaluation gauged Wright’s reading comprehension at a third-grade

level, and found that she may have suffered brain damage from an infant illness



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that caused her deafness. Wright’s mitigating evidence also included struggles with

her sexual identity and multiple suicide attempts.

[¶32.]       Wright’s crime factually resembles Johnson’s death. Wright beat her

victim to death with a blunt object then asphyxiated her. The State sought the

death penalty based on the depravity of the murder. The jury found the existence of

the depravity aggravating circumstance, but returned a sentence of life without

parole. Distinguishing Wright’s crime from Robert’s, Wright’s victim was not an on-

duty corrections officer, nor was Wright attempting to escape lawful confinement at

the time. These facts alone separate Robert’s offense from Wright’s.

[¶33.]       A proportionality review focuses not only on the crime, but also on the

defendant. Id. Wright’s jury considered mitigating factors not present in Robert’s

case. Wright had been deaf her entire life, struggled with sexual identity issues,

and had attempted suicide several times. A psychological evaluation concluded that

Wright read at a third-grade level, and suggested the possibility of brain damage.

[¶34.]       None of the mitigating circumstances present in Wright are present

here. Robert presents as an intelligent, college-educated man well able to function

in society. He held a college degree from the University of Wisconsin and has held

several long-term jobs. At the time of the 2006 Meade County kidnapping

conviction, Robert had over $14,000.00 in his checking account, and over

$200,000.00 in total assets available. Even though Robert was capable of

functioning as a productive member of society, his past contains several instances of

violent, abusive behavior.



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[¶35.]         Robert committed this crime while incarcerated for the 2005

kidnapping of a young woman. At the time of the kidnapping, Robert’s vehicle

contained rope, a shovel, and pornographic material. For the kidnapping, Robert

received 80 years in prison.

[¶36.]          Robert’s violent history predates this murder and the kidnapping. At

the pre-sentence hearing, the State elicited testimony from a person with whom

Robert had had a long-term relationship. This testimony established that, before

the kidnapping, Robert was a violent, abusive, sexually assaultive man, capable of

violent acts against innocent victims. This witness testified that Robert physically

assaulted her, including punching, tackling, and pointing a gun to her head. She

also testified that Robert physically beat her until she acquiesced to sex. This

testimony is relevant because, as noted, the excessiveness and proportionality

inquiry focus not only on the crime, but also the defendant. 15

[¶37.]         This case presents the second time that a capital sentencing phase has

been conducted based on the potential applicability of SDCL 23A-27A-1(7) (“The

offense was committed against a law enforcement officer, employee of a corrections

institution, or firefighter while engaged in the performance of such person’s official

duties.”). In State v. Bittner, Bittner stabbed two police officers responding to a call



15.      In his reply brief, Robert argues that because he agreed the death penalty
         was a proper sentence, the testimony concerning his past behavior was
         irrelevant. But Robert’s decision to accept the death penalty is the irrelevant
         fact in the sentencing determination, not his history. As previously noted, if
         the only relevant consideration were Robert’s decision to accept and even
         seek execution, this State would be assisting his suicide, rather than
         constitutionally imposing the most severe criminal sanction available.

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#26213

that Bittner physically assaulted his girlfriend. One of the officers died. The jury

did not find the existence of any aggravating circumstances. Bittner established

various mitigating circumstances, including the use of alcohol immediately prior to

the crime and a disavowal of any intent to deliberately kill the officer. Bittner

received life in prison.

[¶38.]         At the time of this crime, Robert was an inmate in the penitentiary.

Alcohol played no role in this killing. Nor has Robert disavowed his intent to kill

Johnson. Rather, Robert confessed his intent to kill not only Johnson, but any other

correctional officer standing in his way of escape. The nature of Johnson’s injuries

supports Robert’s professed intent to kill Johnson. Robert’s escape attempt relied

on immobilizing Johnson and stealing his uniform. But the intensity of the beating

and use of the plastic wrap prove that Robert intended to assure Johnson’s death,

even if immobilization would have sufficed. Robert’s sobriety and intent to kill

Johnson set this case apart from Bittner’s. Robert’s death sentence is not

disproportionate to the life sentence Bittner received.

[¶39.]         The case of Darrell Hoadley also presents a horrendous beating death.

Hoadley received a life sentence from a jury after co-defendants Page and Piper

both received death sentences from a judge. 16 In considering the proportionality of

Piper’s death sentence to co-defendant Hoadley, we noted that Hoadley’s

involvement distinguished the sentences of Piper and Page. “South Dakota


16.      This Court reversed Piper’s death sentence in Piper v. Weber, 2009 S.D. 66,
         771 N.W.2d 352. Piper was later sentenced to death by a jury. Piper has
         appealed the jury’s death sentence to this Court, which appeal is currently
         pending. State v. Piper, #26126.

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#26213

reenacted the death penalty in 1979. Since that time, only defendants Moeller,

Rhines, and Anderson have approached the sheer brutality exhibited by Piper and

his co-defendant Page, and all have received the death penalty. Piper and Page

jointly planned the murder scheme and it was only after it was agreed upon

between them did they so inform Hoadley and involve him in its execution.” Piper,

2006 S.D. 1, ¶ 39, 709 N.W.2d at 801. This was not merely an escape attempt on

the spur of the moment where events spiraled out of control. Here, the record

reflects that Robert had been planning his escape attempt, which included the

murder of a corrections officer, for well over a month. His planning stage included

obtaining the lead pipe eventually used to kill Johnson.

[¶40.]       The combination of the record concerning the crime and defendant

satisfy this Court that Robert’s death sentence is neither excessive nor

disproportionate when compared to the applicable universe of cases.

                                        Conclusion

[¶41.]       The circuit court did not base its sentencing decision on any passion,

prejudice, or any other arbitrary factor. The evidence supports the aggravating

circumstances found by the circuit court, and the death sentence is neither

disproportionate nor excessive when compared to other South Dakota cases in

which a capital sentencing phase was conducted. The death sentence is affirmed.

This matter is remanded to the circuit court for entry of a warrant of execution

pursuant to SDCL 23A-27A-31.

[¶42.]       Affirmed.



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[¶43.]       KONENKAMP, ZINTER, and SEVERSON, Justices, and MILLER,

Retired Justice, concur.

[¶44.]       MILLER, Retired Justice, sitting for WILBUR, Justice, disqualified.




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