#26764-a-DG

2014 S.D. 61

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****

STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

RODNEY SCOTT BERGET,                      Defendant and Appellant.

                                 ****

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

                                 ****

                    THE HONORABLE BRADLEY G. ZELL
                               Judge

                                 ****

MARTY J. JACKLEY
Attorney General

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

JEFF LARSON
Sioux Falls, South Dakota
      and
CHERI SCHARFFENBERG of
Olson, Waltner & Scharffenberg
Tea, South Dakota                         Attorneys for defendant
                                          and appellant.

                                 ****

                                          ARGUED ON MAY 27, 2014

                                          OPINION FILED 08/13/14
#26764

GILBERTSON, Chief Justice

[¶1.]        A South Dakota circuit court sentenced Rodney Scott Berget to death

for the murder of corrections officer Ronald Johnson, a crime he committed while

incarcerated at the South Dakota State Penitentiary in Sioux Falls. On direct

appeal of that sentence, in State v. Berget (Berget I), this Court determined that the

circuit court may have improperly considered, for sentencing purposes, statements

made by Berget in a psychological evaluation procured to determine his competency

to stand trial. 2013 S.D. 1, ¶¶ 92, 119, 826 N.W.2d 1, 28, 37. We remanded

Berget’s death sentence for the limited purpose of resentencing “without the use of

or consideration of” the psychological evaluation unless Berget opted to call its

author to testify, and otherwise “on the existing record.” Id. ¶¶ 118, 120, 826

N.W.2d at 37. Berget now appeals the circuit court’s amended judgment of

conviction sentencing him to death. We affirm.

                                    Background

[¶2.]        The details of Berget’s crime and the procedural posture of his first

appeal are set out in Berget I, 2013 S.D. 1, ¶¶ 2-10, 826 N.W.2d at 8-10. This

appeal concerns the limited remand instructed in Berget I and proceedings

subsequent thereto. The relevant facts are provided below.

[¶3.]        In Berget I, this Court affirmed Berget’s death sentence on eleven of

twelve issues. See id. ¶ 121, 826 N.W.2d at 37. The twelfth issue regarded the

circuit court’s potentially improper consideration of aggravating evidence in

rendering Berget’s death sentence. Id. ¶¶ 91-118, 826 N.W.2d at 28-37.




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Specifically, we noted that after the sentencing hearing, 1 when the circuit court

announced its sentence, the court indicated that it had considered Berget’s early

acceptance of responsibility for the murder of Ronald Johnson as mitigation. Id. ¶

92, 826 N.W.2d at 28. However, the circuit court then cited an admission Berget

gave during a psychiatric evaluation, which was contained in a report to determine

Berget’s fitness to stand trial. The evaluation had previously been sealed and was

not admitted as evidence in the sentencing hearing. Id. It contained Berget’s

admission to the psychiatrist, Dr. David Bean, that he pleaded guilty to Johnson’s

murder because he “wish[ed] it would be over.” Id. The circuit court stated that

this admission did not reflect the intentionality that made early acceptance a

mitigating factor. Id. On appeal, we agreed with Berget that the circuit court

might have committed prejudicial error by improperly considering this admission as

aggravating evidence. Id. ¶¶ 116-118, 826 N.W.2d at 36-37.

[¶4.]         To address this error, this Court concluded its opinion with

instructions: “Pursuant to SDCL 23A-27A-13(2), we remand to the circuit court for

the purpose of conducting a sentencing without this error. Per this statute, it is to

be conducted on the existing record without reference to, or considering of, the

report of Dr. Bean.” 2 Id. ¶ 120, 826 N.W.2d at 37.



1.      The sentencing court took the matter under advisement and pronounced its
        initial sentence four days after the completion of the initial sentencing
        hearing. There is no dispute Berget had an unrestricted opportunity to
        present all mitigation evidence he desired the court to consider at the
        sentencing hearing.

2.      We also instructed that Berget could “opt[ ] to call Dr. Bean to testify.” Id. ¶
        118, 826 N.W.2d at 37. This was the only new evidence—in addition to the
                                                              (continued . . .)
                                          -2-
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[¶5.]        On the day after this Court handed down its opinion and judgment, the

State filed a motion for a hearing consistent with the opinion of this Court. The

State acknowledged in its motion that it would not object to Berget introducing the

psychiatric report “with such supplemental direct and cross-examination testimony

of the psychiatrist as Berget might choose to place on the record.” Berget filed a

petition for rehearing on the appeal, which we subsequently denied by order entered

January 22, 2013.

[¶6.]        A month after we handed down our opinion and judgment, Berget sent

a letter to the circuit court, pursuant to SDCL 15-12-21.1, requesting that it

disqualify itself from the remanded proceeding on grounds of judicial bias. In his

affidavit supporting recusal, Berget claimed three instances of bias: (1) the circuit

court had to find against Berget’s assertions of fact at sentencing or it would risk

contradicting its findings of fact and jeopardizing the death sentence in the case of

Berget’s co-defendant, Eric Robert, (2) the Supreme Court had found that the circuit

court committed error in its presentence hearing verdict, and (3) the circuit court

had rendered its sentencing decision “through legal analysis only.” The circuit court

denied Berget’s request for recusal on February 22, 2013. The Presiding Circuit

Judge of the Second Judicial Circuit entered an order on March 8, 2013, denying

Berget’s formal recusal request. The Presiding Judge based the order on Berget’s

waiver of his right to disqualify the circuit court, pursuant to SDCL 15-12-24, by

(. . . continued)
         record at the time of sentencing and the arguments of counsel thereon—that
         the circuit court could have considered for sentencing purposes on remand.
         The transcript of the remand motions hearing indicates the circuit court
         repeatedly inquired whether Berget wanted to exercise the option of calling
         Dr. Bean to testify. Berget responded in the negative each time.

                                          -3-
#26764

him having already “submitted multiple arguments and proofs in support of

motions” to the court prior to his request for recusal.

[¶7.]        Berget also filed a demand for a new sentencing hearing to introduce

new evidence. That evidence, allegedly obtainable only after his original

sentencing, showed that “Berget has established a meaningful relationship with his

son, his daughter-in-law, and his two grandchildren,” and that the relationship “has

made a positive impact on the lives of [Berget’s] family, even while [Berget is] in

prison for the rest of his life.” Berget argued, in spite of this Court’s clear directions

on remand, that the circuit court “ha[d] the inherent power to grant a new

[sentencing] hearing” and that his federal constitutional rights required it do so.

[¶8.]        The circuit court held a motions hearing on Berget’s demand for a

hearing on April 16, 2013. Berget repeatedly declined the circuit court’s offer to

have Dr. Bean testify. He reasserted his federal constitutional law arguments and

contention that the circuit court had the authority to grant a new sentencing

hearing in the face of contrary remand directions by this Court. Berget further

argued that our remand instructions were improper because we could not rely on

SDCL 23A-27A-13(2) to justify our limited remand for resentencing and that our

directions on remand were otherwise unclear. Finally, Berget reinforced his

argument that his father-son relationship evidence was new and had not been

withheld for dilatory reasons. The circuit court rejected Berget’s arguments by

noting that our instructions on remand were clear, that as a circuit court it was

bound to limit its jurisdiction on remand to those instructions, and that a new

sentencing hearing would violate our directive. The circuit court declined to make a

ruling on Berget’s constitutional arguments because it determined that they were
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#26764

outside its limited remand jurisdiction. After considering Berget’s offer of proof—

and without further evidence to consider beyond the evidence, argument and

allocution it considered in Berget’s original sentencing—the circuit court

determined that another sentence hearing would serve no purpose given our

remand instructions, and it orally denied Berget’s demand for a new sentencing

hearing.

[¶9.]         The circuit court entered a written order on May 7, 2013, denying

Berget’s motions for a sentencing hearing, to introduce new mitigation evidence,

and to disqualify itself. That same day, the court entered its amended presentence

hearing verdict. Thereafter, both the State and Berget submitted proposed findings

of fact and conclusions of law. After considering the proposed amended findings of

fact and conclusions of law from Berget and the State, and the objections thereto,

the circuit court notified the parties that it would adopt the State’s amended

findings and conclusions in the court’s e-mail of June 7, 2013. The court’s amended

findings of fact and conclusions of law were entered that day. The court entered an

amended judgment of conviction and sentence, and the death warrant, on June 24,

2013. Berget timely appealed. This Court entered an order for stay of execution on

August 7, 2013. 3



3.      Because of the limited scope of remand and the clarity of the issues presented
        by both parties, the Court originally anticipated considering this appeal on
        the written arguments of counsel and without oral argument during its April
        2014 Term. That determination is normally at the discretion of the Court.
        See SDCL 15-26A-82. However, we received notice that the Legislature
        placed an additional procedural requirement on the Court in cases where a
        circuit court imposes capital punishment: “Both the defendant and the state
        shall have the right . . . to present oral argument to the court.” SDCL 23A-
                                                               (continued . . .)
                                              -5-
#26764

                                        Analysis

[¶10.]          Berget now raises three issues in appealing his resentence on remand.

Berget’s first and second arguments derive from the circuit court’s denial of Berget’s

demand for a new sentencing hearing. He argues the court erred (1) by failing to

consider his newly discovered mitigation evidence in reimposing his death sentence

and (2) by preventing him from being present and being able to allocute when it

reimposed its sentence. Berget’s third argument is that the circuit court erred by

refusing to recuse itself from resentencing. In addition to Berget’s issues, SDCL

23A-27A-12 requires that this Court make three determinations whenever a circuit

court imposes the death penalty, specifically:

                (1)   Whether the sentence of death was imposed under the
                      influence of passion, prejudice, or any other arbitrary
                      factor; and
                (2)   Whether the evidence supports the jury’s or judge’s
                      finding of a statutory aggravating circumstance as
                      enumerated in § 23A-27A-1; and
                (3)   Whether the sentence of death is excessive or
                      disproportionate to the penalty imposed in similar cases,
                      considering both the crime and the defendant.

Id.   4


[¶11.]          1.    Whether the circuit court was required to consider
                      Berget’s new mitigation evidence in its judgment upon
                      limited remand.



(. . . continued)
         27A-11. Because Berget exercised that right, we heard oral argument in this
         matter during the May 2014 Term.

4.        Although these issues were addressed in the prior direct appeal, and SDCL
          23A-27A-12 is silent as to whether they must be addressed on appeal of a
          limited resentencing, we nevertheless address these questions after
          analyzing the errors Berget advances on this appeal.

                                           -6-
#26764

[¶12.]       As noted above, Berget made an offer of proof at the remand motions

hearing regarding the nature and scope of the alleged newly discovered mitigation

evidence of Berget’s positive relationship with his son and his son’s family. Berget

faults the circuit court’s exclusion of this evidence from its sentencing deliberation

by advancing two theories. First, Berget challenges both the “clarity” of this Court’s

instructions for a limited remand for resentencing in Berget I, 2013 S.D. 1, ¶¶ 118,

120, 826 N.W.2d at 37, and the statutory authority that we relied on, in part, to so

limit the scope of the limited resentencing, id. ¶ 120 (citing SDCL 23A-27A-13(2)).

Second, Berget asserts that even if there was statutory authority to support limiting

the scope of remand, that limitation on the admission of his new mitigation

evidence violated his Eighth and Fourteenth Amendment rights.

[¶13.]       Upon review, “‘[a] [circuit] court’s evidentiary rulings are presumed

correct and will not be reversed unless there is a clear abuse of discretion.’” Wilcox

v. Vermeulen, 2010 S.D. 29, ¶ 7, 781 N.W.2d 464, 467 (quoting Thompson v.

Mehlhaff, 2005 S.D. 69, ¶ 21, 698 N.W.2d 512, 519-20). An abuse of discretion

occurs when the circuit court exercises its discretion “‘to an end or purpose not

justified by, and clearly against reason and evidence.’” St. John v. Peterson, 2011

S.D. 58, ¶ 10, 804 N.W.2d 71, 74 (quoting Mousseau v. Schwartz, 2008 S.D. 86, ¶ 10,

756 N.W.2d 345, 350). This Court, in turn, will not overturn the circuit court’s

abuse of discretion unless that “error is ‘demonstrated . . . [and] shown to be

prejudicial error.’” State v. Smith, 1999 S.D. 83, ¶ 39, 599 N.W.2d 344, 353

(alteration in original) (quoting State v. Spiry, 1996 S.D. 14, ¶ 11, 543 N.W.2d 260,

263). We, however, review de novo the circuit court’s application of the law


                                          -7-
#26764

underlying the circuit court’s exercise of discretion. See State v. Rolfe, 2013 S.D. 2,

¶ 15, 825 N.W.2d 901, 905.

[¶14.]              a.   This Court’s authority to direct a limited
                         resentencing upon remand.

[¶15.]       Berget argues this Court’s remand instructions “somewhat perplexed”

the circuit court. Berget attests that this “confusion is understandable” because the

statute cited by the Court, SDCL 23A-27A-13(2), as additional authority for its

limited resentencing instruction, was not proper authority on that point. Instead,

noting the language of the statute, Berget believes this provision only authorizes a

limited resentencing when the Court remands a death sentence for proportionality

issues. Because this Court in Berget I affirmed each of the proportionality issues

therein argued by Berget, 2013 S.D. 1, ¶¶ 18-31, 826 N.W.2d at 11-14, he contends

that our limited remand and the subsequent limited resentencing violated state

law.

[¶16.]       First, regarding Berget’s assertion of “confusion”—nowhere in the

transcript of the motions hearing or elsewhere on the record did the circuit court

express confusion with this Court’s instructions. As the hearing transcript

indicates, the court restated our directions, noted their clarity, and in the face of

Berget’s constitutional assertions, adhered to them. Only Berget’s oral argument

asserted any “confusion,” and did so as the basis of argument.

[¶17.]       Whether or not this Court misconstrued SDCL 23A-27A-13 in citing it

as additional authority for its limited remand instructions is immaterial. This

Court has general statutory and constitutional authority to mandate the scope of

review on limited remand. As we recently noted in State v. Piper (Piper III), 2014

                                           -8-
#26764

S.D. 2, ¶ 9, 842 N.W.2d 338, 342, both SDCL 15-30-14 and 15-30-11 require the

lower court to enforce our explicit instructions on remand. “‘When the scope of

remand is limited, the entire case is not reopened, but rather, the lower tribunal is

only authorized to carry out the appellate court’s mandate.’” Piper III, 2014 S.D. 2,

¶ 11, 842 N.W.2d at 343 (quoting In re Conditional Use Permit Granted to Van

Zanten, 1999 S.D. 79, ¶ 13, 598 N.W.2d 861, 864).

[¶18.]       Article V of the South Dakota Constitution requires this deference and

clear adherence to this Court’s remand instruction to constitutionally function.

Otherwise, each circuit court would become a supreme court unto itself. See Piper

III, 2014 S.D. 2, ¶ 10, 842 N.W.2d at 343 (“If the circuit court’s original jurisdiction

could spontaneously resurrect on remittal, the defined roles of our tiered judicial

system . . . and the judicial certainty and efficiency they foster would be nullified.”).

[¶19.]       Given this binding authority, we conclude this Court had the ability

pursuant to state constitutional and statutory law to direct a limited resentencing

in Berget I and the circuit court was to follow, and did follow, our directions in

accordance with that authority.

[¶20.]              b.    The federal constitutionality of the limited
                          resentencing.

[¶21.]       Berget contends the Eighth and Fourteenth Amendments nevertheless

override the Court’s authority to limit resentencing to exclude newly discovered

mitigation evidence. Because the Court’s authority to instruct a limited

resentencing in Berget I was derived from Article V of our state constitution and

from statute, Berget’s federal constitutional arguments are in essence challenges to

the constitutionality of these provisions as applied. His burden is thus:

                                           -9-
#26764

             There is a strong presumption that the laws enacted by the
             legislature are constitutional and the presumption is rebutted
             only when it clearly, palpably and plainly appears that the
             statute violates a provision of the constitution. Further, the
             party challenging the constitutionality of a statute bears the
             burden of proving beyond a reasonable doubt that the statute
             violates a state or federal constitutional provision.

Vilhauer v. Horsemens’ Sports, Inc., 1999 S.D. 93, ¶ 16, 598 N.W.2d 525, 528

(quoting Green v. Siegel, Barnett & Schutz, 1996 S.D. 146, ¶ 7, 557 N.W.2d 396,

398). “‘A defendant cannot claim that a statute is unconstitutional in some of its

reaches if it is constitutional as applied to him.’” State v. Jensen, 2003 S.D. 55, ¶ 13,

662 N.W.2d 643, 648 (quoting City of Pierre v. Russell, 89 S.D. 70, 74, 228 N.W.2d

338, 341 (1975)). Berget, therefore, must establish beyond a reasonable doubt that

the narrow scope of our limited remand violated the United States Constitution.

We review this constitutional contention de novo. See Green, 1996 S.D. 146, ¶ 7,

557 N.W.2d at 398 (citing Kyllo v. Panzer, 535 N.W.2d 896, 897 (S.D. 1995)).

[¶22.]       A proper analysis of Berget’s assertion of error requires a summary of

Supreme Court case law on the evolution of capital sentencing rights. The roots of

capital “mitigation evidence” are found in the Supreme Court case that

reestablished the death penalty as viable under the Eighth Amendment, Gregg v.

Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). The Court in Gregg

clarified that the prior case, which effectively abolished the death penalty

nationwide, Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346

(1972), did not hold that the death penalty was a per se violation of the Eighth

Amendment. 428 U.S. at 188, 96 S. Ct. at 2932. Instead, “Furman held that [the

death penalty] could not be imposed under sentencing procedures that created a

substantial risk that it would be inflicted in an arbitrary and capricious manner.”
                                          -10-
#26764

Id. To prevent this, the Court began by applying the common precept of sentencing

that in mitigation or aggravation, “‘justice generally requires . . . that there be

taken into account the circumstances of the offense together with the character and

propensities of the offender.’” Id. at 189, 96 S. Ct. at 2932 (quoting Pennsylvania ex

rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S. Ct. 59, 61, 82 L. Ed. 43 (1937)). The

Court then acknowledged that much of this evidence, although relevant for

sentencing purposes, would be properly excluded as prejudicial or irrelevant on the

question of guilt. Id. at 190, 96 S. Ct. at 2933. Because a jury “cannot be expected

to consider certain evidence before it on one issue, but not another,” id. at 190 n.40,

96 S. Ct. at 2933 n.40 (citations omitted), the Court suggested solving the challenge

through a bifurcated trial, wherein a determination of guilt occurs first, and then, if

the defendant is found guilty, a determination of whether a death sentence will

issue, see id. at 190-92, 96 S. Ct. at 2933-34.

[¶23.]       Although Gregg provided a starting point on the definition of

admissible mitigation evidence, its common sentencing definition was soon

broadened. Because of the severity of the death penalty, a plurality of the United

States Supreme Court determined “the Eighth and Fourteenth Amendments

require that the sentencer, in all but the rarest kind of capital case, not be

precluded from considering, as a mitigating factor, any aspect of a defendant’s

character or record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death.” See Lockett v. Ohio, 438 U.S.

586, 604, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 (1978) (second emphasis added)

(footnote omitted). The sentencing authority’s broad consideration of defendant-

specific characteristics was viewed as a bulwark against the arbitrary and
                                         -11-
#26764

capricious use of the death penalty and ensured that “the death penalty would be

imposed in a more consistent and rational manner.” Id. at 601, 98 S. Ct. at 2963

(citation omitted). Such liberality achieved this consistency by providing a

“meaningful basis for distinguishing the . . . cases in which [the death penalty] is

imposed from . . . the many cases in which it is not.” Id. (citing Gregg, 428 U.S. at

188, 96 S. Ct. at 2932). That plurality holding became the majority position in

Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). “By

holding that the sentence in capital cases must be permitted to consider any

relevant mitigating factor, the rule in Lockett recognizes that a consistency

produced by ignoring individual differences is a false consistency.” Id. at 112, 102

S. Ct. at 875 (adopting the plurality opinion in Lockett). Accordingly, at sentencing,

“virtually no limits are placed on the relevant mitigating evidence a capital

defendant may introduce concerning his own circumstances.” See Payne v.

Tennessee, 501 U.S. 808, 822, 111 S. Ct. 2597, 2607, 115 L. Ed. 2d 720 (1991).

[¶24.]       The sentencing authority must then consider all of the relevant

mitigating evidence admitted at sentencing. “Just as the State may not by statute

preclude the sentencer from considering any mitigating factor, neither may the

sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.”

Eddings, 455 U.S. at 113-14, 102 S. Ct. at 876-77. “The sentencer, and the Court of

Criminal Appeals on review, may determine the weight to be given relevant

mitigating evidence. But they may not give it no weight by excluding such evidence

from their consideration.” Id. at 114-15, 102 S. Ct. at 877.

[¶25.]       Berget argues this broad scope of relevant mitigating evidence requires

that we adopt his position. However, the concern in this case is narrower and
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regards a matter outside the bifurcated trial procedure established in Gregg to

which the requirements of a broad scope of relevant mitigating evidence and their

mandated consideration by the sentencing authority (Lockett and Eddings)

explicitly apply. The issue, rather, is whether the Eighth and Fourteenth

Amendments prohibit this Court from narrowing the circuit court’s jurisdiction,

upon a limited remand for resentencing in a capital case, such that the court could

not consider relevant evidence for mitigation purposes discoverable only after

remand. 5

[¶26.]         Berget relies on Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669,

90 L. Ed. 2d 1, (1986), which held that new, relevant mitigating evidence may be

introduced at least through a capital defendant’s period of incarceration while

awaiting trial. In that case, Skipper and his former wife testified during the

sentencing phase that he had “conducted himself well during the 7½ months he

spent in jail between his arrest and trial” and had earned his high school diploma.

Id. at 3, 106 S. Ct. at 1670. He asserted that this behavior was indicative of his

future conduct in custody and that his sentence should therefore have been reduced

to life imprisonment. Id. In further support, Skipper sought to introduce testimony

from jailers and a “regular visitor” to the jail that he had “made a good adjustment,”

indicating his future adaptability to prison life. Id. The sentencing court ruled that

such evidence was irrelevant and therefore inadmissible, citing state case law that a

defendant’s ability to adjust to life behind bars could not be relevant to capital


5.       The circuit court’s findings of fact and conclusions of law entered after its
         original sentencing indicate that at that time it was known to Berget and the
         circuit court that Berget had a son.

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sentencing. Id. The sentencing jury subsequently sentenced Skipper to death. Id.

On appeal, Skipper asserted that the sentencing court had committed constitutional

error, pursuant to Lockett and Eddings, by excluding the relevant, mitigating

testimony of the jailers and the visitor. Id.

[¶27.]       The Supreme Court agreed with Skipper. While the Court admitted

that “any such inferences” arising out of the “good adjustment” testimony “would

not relate specifically to petitioner’s culpability for the crime he committed,” the

Court found that this testimony nevertheless provided mitigation inferences “in the

sense that [the inferences] might serve ‘as a basis for a sentence less than death.’”

Id. at 4-5, 106 S. Ct. at 1671 (quoting Lockett, 438 U.S. at 604, 98 S. Ct. at 2964).

The Court implied that this “basis for a sentence less than death” arose out of its

previous holding that “evidence that a defendant would in the future pose a danger

to the community if he were not executed may be treated as establishing an

‘aggravating factor’ for purposes of capital sentencing.” Id. (citing Jurek v. Texas,

428 U.S. 262, 275, 96 S. Ct. 2950, 2958, 49 L. Ed. 2d 929 (1976) (opinion of Stewart,

Powell, and Stevens, JJ.)). The Court reasoned that if evidence of a future danger

could always be admissible as aggravating evidence, then evidence indicating the

inverse—that a defendant “would not pose a danger if spared (but incarcerated)”—

was applicable to death penalty cases generally as a “potentially mitigating” factor.

Id. at 5. As such a factor, it “[could] not be excluded from the sentencer’s

consideration.” Id. The Court concluded, “‘any sentencing authority must predict a

convicted person’s probable future conduct when it engages in the process of

determining what punishment to impose.’” Id. at 5, 106 S. Ct. at 1671 (quoting

Jurek, 428 U.S. at 275, 96 S. Ct. at 2958). Because the sentencing court excluded
                                         -14-
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the future conduct testimony of the jailers and visitor from the sentencing jury, the

Court determined the sentencing court had violated Skipper’s Eighth Amendment

right to present all mitigating evidence. See id. at 4, 106 S. Ct. at 1671.

[¶28.]         Evidence of Berget’s newfound relationship with his son and his son’s

family conceivably could have been relevant evidence that Berget would not pose a

danger in prison if spared, particularly under Lockett’s broad instruction that “any

aspect of [the] defendant’s character . . . that the defendant proffers as a basis for a

sentence less than death” can be mitigating information. 438 U.S. at 604, 98 S. Ct.

at 2964-65. Taking Skipper and Lockett together, then, Berget’s relationship may

have been evidence the court could not have excluded from its consideration if

Berget offered it at any point prior to completion of the sentencing portion of the

trial. See Skipper, 476 U.S. at 5, 106 S. Ct. at 1671.

[¶29.]         Berget’s constitutional argument, however, relies on extending the

window for unconstitutional exclusion of new mitigation evidence further, to include

mitigating information discoverable only after the original sentencing and offered

before resentencing. 6 To find authority supporting this proposition, Berget relies on

the Skipper Court’s instructions on remand. See id. at 8, 106 S. Ct. at 1673 (“The

resulting death sentence cannot stand, although the State is of course not precluded

from again seeking to impose the death sentence, provided that it does so through a

new sentencing hearing at which petitioner is permitted to present any and all

6.       Berget does not dispute the State’s assertion, citing State v. Robert, 2012 S.D.
         60, ¶ 20, 820 N.W.2d 136, 143 (citing Schriro v. Landrigan, 550 U.S. 465,
         479, 127 S. Ct. 1933, 1942, 167 L. Ed. 2d 836 (2007)), that mitigation
         information reasonably discoverable before sentencing is waived when a
         capital defendant fails to present the evidence at sentencing.


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relevant mitigating evidence that is available.” (Emphasies added.)). The Court,

however, did not clarify whether it meant “all relevant mitigation evidence that is

available” on the existing record at the original sentencing or on the record that

could be developed up to resentencing.

[¶30.]         Regardless of the Court’s intent, that instruction is not appropriate

authority to support Berget’s claim since his case is readily distinguishable. As

with all authoritative case precedent, the result in Skipper and “those portions of

the opinion necessary to that result” are binding. See Seminole Tribe of Florida v.

Florida, 517 U.S. 44, 67, 116 S. Ct. 1114, 1129, 134 L. Ed. 2d 252 (1996). The

Skipper Court’s instruction of a new sentencing hearing was the necessary result of

the sentencing court’s error in excluding mitigation evidence from a sentencing

jury’s consideration, thereby tainting the subsequent sentencing hearing. A new,

full sentencing hearing was “necessary” because it would be required to probe the

value of the wrongly excluded testimony, since its contribution to the sentencing

authority’s weighing 7 of mitigating and aggravating factors was otherwise

undefined. Consequently, the sentencing authority could have given the wrongly

excluded mitigating factor such weight that it alone was grounds for a life sentence.


7.       Our use of the word “weighing” in this context does not contradict the fact
         that South Dakota is a non-weighing state. See State v. Rhines (Rhines II),
         2000 S.D. 19, ¶¶ 52-53, 608 N.W.2d 303, 314. In describing the distinction
         between weighing and non-weighing states, the Supreme Court has noted,
         “[t]he terminology is somewhat misleading, since we have held that in all
         capital cases the sentencer must be allowed to weigh the facts and
         circumstances that arguably justify a death sentence against the defendant’s
         mitigating evidence.” Brown v. Sanders, 546 U.S. 212, 216-17, 126 S. Ct. 884,
         889, 163 L. Ed. 2d 723 (2006) (citing Eddings, 455 U.S. at 110, 102 S. Ct. at
         874)


                                           -16-
#26764

[¶31.]         In Berget’s case, the apparent error was very different. Unlike Lockett,

Eddings and Skipper, the circuit court here did not improperly exclude evidence

from the sentencing hearing, but only improperly considered evidence (if it did so at

all) after the hearing was completed, during its deliberation. See Berget I, 2013 S.D.

1, ¶ 119, 826 N.W.2d at 37. The sentencing hearing itself was not tainted because

Berget exercised the unrestricted opportunity to introduce all mitigating evidence

he desired. 8 Furthermore, once the Dr. Bean report was excluded, the remaining


8.       Berget asserts that because the court received Dr. Bean’s report before the
         sentencing hearing, its mere existence in the record in that phase of the
         proceeding—albeit sealed throughout the hearing—was sufficient to taint the
         entire sentencing phase. Objectively, however, there was no indication in the
         hearing transcript or elsewhere that the court improperly considered Berget’s
         admission to Dr. Bean or unsealed the report until its deliberation in drafting
         its presentence hearing verdict. The report was not offered into evidence or
         even mentioned at the sentencing hearing. See Berget I, 2013 S.D. 1, ¶ 94,
         826 N.W.2d at 29. In order for the Court to adopt Berget’s argument, we
         would need to speculate on the mental processes of the court, which we will
         not do.

         If the court erred, then, it did so by improper weighing of mitigation evidence.
         See Berget I, 2013 S.D. 1, ¶ 118, 826 N.W.2d at 37. That error is an order of
         magnitude lower than if the court had excluded mitigating evidence from its
         consideration. The constitution clearly prohibits exclusion of relevant,
         mitigating evidence obtained before sentencing in a capital decision. See
         Lockett, 438 U.S. at 604, 98 S. Ct. at 2964-65. The necessary remedy for
         violating this prohibition is remand to the circuit court for its consideration of
         all relevant mitigating evidence. See Eddings, 455 U.S. at 117, 102 S. Ct. at
         878. The same cannot be said for the improper consideration of aggravating
         evidence. The constitution, in fact, permits an appellate court to reweigh the
         proper evidence and impose the death penalty in response to an error in the
         trial court’s weighing of the evidence. See Clemons v. Mississippi, 494 U.S.
         738, 745, 110 S. Ct. 1441, 1446, 108 L. Ed. 2d 725 (1990); Spaziano v.
         Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984) (approving a
         state appellate court’s affirmance of a death conviction by reweighing the
         aggravating and mitigating evidence after that court’s determination that an
         aggravating circumstance was improperly submitted to the factfinder). This
         is particularly true in non-weighing states. See Rhines II, 2000 S.D. 19, ¶ 54,
         608 N.W.2d at 315 (quoting Stringer v. Black, 503 U.S. 222, 231-32, 112 S.
                                                               (continued . . .)
                                              -17-
#26764

evidence and factors in mitigation and aggravation remained unchanged from those

considered by the circuit court in the initial sentencing hearing. Therefore, we

determined that a limited resentencing on the prior record—that merely struck the

offensive evidence or permitted its elaboration by Berget through Dr. Bean—would

be sufficient to correct this error on remand. 9 In directing a limited remand, we


(. . . continued)
         Ct. 1130, 1137, 117 L. Ed. 2d 367 (1992)) (“When the weighing process itself
         has been skewed, . . . harmless-error analysis or reweighing at the trial or
         appellate level suffices to guarantee that the defendant received an
         individualized sentence.”). That authority is further described by the
         Supreme Court:

             If a person sentenced to death in fact killed, attempted to kill, or
             intended to kill, the Eighth Amendment itself is not violated by
             his or her execution regardless of who makes the determination
             of the requisite culpability; by the same token, if a person
             sentenced to death lacks the requisite culpability; the Eighth
             Amendment violation can be adequately remedied by any court
             that has the power to find the facts and vacate the sentence.

      Cabana v. Bullock, 474 U.S. 376, 386, 106 S. Ct. 689, 697, 88 L. Ed. 2d 704
      (1986), abrogated on other grounds by Pope v. Illinois, 481 U.S. 497, 107 S.
      Ct. 1918, 95 L. Ed. 2d 439 (1987).

9.    In the past, this Court has not hesitated to require a full sentencing hearing
      on remand in a death penalty case when the nature of the error warranted
      that outcome. For instance, in Piper II, 2009 S.D. 66, ¶ 21, 771 N.W.2d at
      360, we vacated Piper’s death sentence and remanded the matter “for a new
      sentencing proceeding” because Piper had not validly waived his
      constitutional right to a jury in the sentencing phase. The constitutional
      error in Piper II occurred before the sentencing hearing, and the nature of the
      error affected the entire sentencing proceeding. In contrast, the error
      prompting Berget’s limited resentencing occurred after the sentence hearing,
      and did not taint the hearing. Again, only the circuit court’s possible
      consideration of improper aggravating evidence may have needed correction,
      requiring a limited remand, if any. See Clemons, 494 U.S. at 745, 110 S. Ct.
      at 1446.

      That potential error, and the limited remand we instructed to address it in
      Berget I, stands in stark contrast to another case involving a remand for
                                                           (continued . . .)
                                         -18-
#26764

presume the circuit courts “know the law and [will] apply it in making [their]

decisions.” State v. Page, 2006 S.D. 2, ¶ 27, 709 N.W.2d 739, 754 (quoting Walton v.

Arizona, 497 U.S. 639, 653, 110 S. Ct. 3047, 3057, 111 L. Ed. 2d 511 (1990)). “We

have recognized [ ] that South Dakota law imposes no specific standard of proof in

regard to mitigation.” Id. ¶ 50, 709 N.W.2d at 758 (citing Rhines II, 2000 S.D. 19, ¶

39 n.9, 608 N.W.2d at 312 n.9). The limited resentencing consequently reflected our

preference, in this instance, not to reweigh the aggravating and mitigating evidence

without the offending concern ourselves, but to have the sentencing authority



(. . . continued)
         sentencing, State v. Bult (Bult IV), 1996 S.D. 20, 544 N.W.2d 214. Bult IV
         arose out of our repeated remands to the circuit court, after the court
         continued to impose life sentences without the possibility of parole and in
         spite of our repeat conclusions that that sentence constituted cruel and
         unusual punishment. See State v. Bult (Bult III), 529 N.W.2d 197 (S.D.
         1995); Bult v. Leapley (Bult II), 507 N.W.2d 325 (S.D. 1993). In Bult IV, we
         established that “the court had an obligation” on remand from Bult III to
         update the relevant evidence necessary to fashion a sentence, see Bult IV,
         1996 S.D. 20, ¶ 12, 544 N.W.2d at 217, which included mitigating evidence.
         However, Bult IV is clearly distinguishable from the present case. In Bult
         III, we did not instruct a limited remand as we did in Berget I, but permitted
         a full sentence hearing on remand because the nature of the error warranted
         that type of remand. See Bult III, 529 N.W.2d at 200. Our opinion here does
         not erode Bult IV’’s conclusion that at a full sentencing hearing on remand,
         the defendant is entitled to the rights available at his or her original
         sentencing. See 1996 S.D. 20, ¶¶ 8-14, 544 N.W.2d at 216-17. What Bult IV
         did not do was establish a right to update one’s mitigation evidence on any
         remand, or when directly contradicted by our remand instructions as Berget
         seeks here. Bult IV, in fact, stands for the supremacy of our remand
         authority, which we reassert here.

      Multiple state supreme courts have affirmed similar limited remands of
      capital sentences. See, e.g., Ex parte Slaton, 680 So. 2d 909, 922-23 (Ala.
      1996), cert. denied, 519 U.S. 1079 (1997); People v. Lewis, 91 P.3d 928, 937
      (Cal. 2004), cert. denied, 543 U.S. 1178 (2005); Crump v. State, 654 So.2d
      545, 548 (Fla. 1995) (per curiam).


                                          -19-
#26764

efficiently correct the limited error. Because of these substantial differences,

Skipper does not control Berget’s argument. 10

[¶32.]         The Supreme Court has not determined, in Skipper or otherwise, that

a capital defendant has a categorical constitutional right to introduce new

mitigation evidence discovered after a sentencing hearing in which the defendant

was given the opportunity to present all mitigation evidence he desired. It has also

not determined whether a remand for a limited resentencing in a capital case that

effectively excludes such newly discovered mitigation evidence is constitutionally

invalid. On both issues, lower courts have attempted to fill that void. Berget and

the State each rely on different authorities reflecting a split in opinion.

[¶33.]         Berget contends Davis v. Coyle (Davis V), 475 F.3d 761 (6th Cir. 2007),

provides persuasive authority. On an appeal of a denial of a petition for writ of

habeas corpus, Davis sought to challenge his Ohio death sentence. The Ohio

Supreme Court had affirmed Davis’s convictions but vacated his death sentence

because, as with Berget I, the sentencing authority (a three-judge panel) may have

considered improper aggravating factors in its sentence. Id. at 763. The sentencing

court, on remand for “a new sentencing trial” as instructed by the appellate court,

considered only the record of the trial and first sentencing proceeding. The court

refused to consider Davis’s motion to withdraw his jury waiver and to introduce new

mitigation testimony concerning his post-prison behavior and updated psychological

profile. Id. at 769. The Ohio Court of Appeals affirmed the court’s resentencing,

10.      On a petition for rehearing in response to this Court’s opinion on direct
         appeal, Berget offered this same argument, citing Skipper, to cast doubt on
         the propriety of this Court’s limited remand. Thus, we have had two
         occasions to analyze this argument.

                                          -20-
#26764

finding that “it is basic law that a reversal and remand to the trial court for further

proceedings has the effect of reinstating the cause in the trial court in status quo

ante.” Id. at 770 (quoting State v. Davis (Davis III), No. CA89-09-123, 1990 WL

165137, *2 (Ohio Ct. App. Oct. 29, 1990)). The appeals court further noted that

because the error requiring remand “‘occurred at the deliberative state of the

proceedings, after the evidence had been submitted to the court,’” the sentencing

court need not consider additional evidence. Id. The Ohio Supreme Court affirmed

on slightly different grounds, finding that unlike Skipper, Davis had the

opportunity to present all then-available mitigation evidence at his first sentencing

trial and was therefore not denied the “individual consideration of relevant

mitigating factors” that was the crux of Skipper, Eddings, and Lockett. Id. (quoting

State v. Davis (Davis IV), 584 N.E.2d 1192, 1195 (Ohio 1992)). Moreover, the Court

found that Skipper only applied to mitigation evidence of a good prison record

between a defendant’s arrest and trial, and not to post-trial prison behavior. Id. at

772 (citing Davis IV, 584 N.E.2d at 1195).

[¶34.]       The Sixth Circuit rejected this collected reasoning. The court

primarily drew comparisons between Davis’s case on resentencing and Skipper at

sentencing—both prosecutors introduced evidence or argument of defendants’

dangerousness behind bars and both defendants faced “future dangerousness” as

the “central” aggravating factors in their sentences. Compare Skipper, 476 U.S. at

2, 3, 106 S. Ct. at 1670, with Davis V, 475 F.3d at 771-72. The court determined

that the only way to distinguish the two cases was that Skipper involved sentencing

and Davis’s case involved resentencing. See id. at 773. The court found that to be

an unreasonable basis for denying the application of Skipper to Davis’s case. Id.
                                       -21-
#26764

The Davis court also concluded that the Ninth and Eleventh Circuits already

supported the application of Skipper to resentencing. 11 Accordingly, the court found

that only a new, full resentencing hearing could permit the proper weighing of the

improperly excluded new mitigation testimony. Id. at 774-75.

[¶35.]         The State, in contrast, cites the Ohio Supreme Court case of State v.

Roberts, 998 N.E.2d 1100 (Ohio 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1554

(2014). In Roberts, on direct appeal, the Court affirmed Roberts’s convictions of

aggravated murder and both aggravated circumstances therein, but remanded for

limited resentencing because the trial judge engaged in ex parte communications

with the prosecutor in drafting the sentencing opinion. Id. at 1104. The Court


11.      Only one Ninth Circuit case cited in Davis V actually addresses whether new
         mitigation evidence, constitutionally speaking, must be admitted at
         resentencing after the defendant was given the opportunity to present all
         mitigation evidence at his original sentencing. See 475 F.3d at 782 (Gibbons,
         Cir. J., concurring) (noting only one case was so “on point”). That case is
         Creech v. Arave, 947 F.2d 873, 881-82 (9th Cir. 1991), overruled on other
         grounds, 507 U.S. 463, 113 S. Ct. 1534, 123 L. Ed. 2d 188 (1996). Creech
         based its finding that Lockett, Eddings, and Skipper “required that a
         defendant be allowed to offer such mitigating evidence at resentencing” on
         the Idaho Supreme Court’s ruling in Sivak v. State, 731 P.2d 192, 197 (Idaho
         1986). The Ninth Circuit justified its ruling by stating, “Like the Idaho
         Supreme Court, we see no rational basis for distinguishing the evidence of a
         defendant’s good conduct while awaiting trial and sentencing, and evidence of
         a defendant’s good conduct pending review of a death sentence which is
         vacated on appeal.” Creech, 947 F.2d at 881-82 (internal citations omitted).
         The Idaho Supreme Court’s logic was that if the mitigating relevance of a
         capital defendant’s prison behavior is to show “his probable future conduct at
         the penitentiary, and hence, the appropriateness of the death penalty as
         opposed to a life sentence[,]” then there is no qualitative difference between
         pre-sentence and post-sentence prison conduct for mitigation purposes.
         Sivak, 731 P.2d at 197-98. If anything, according to the Idaho Supreme
         Court, defendant’s behavior in jail awaiting sentencing may be a less reliable
         indicator of future conduct in the penitentiary than defendant’s actual
         conduct at the penitentiary post-sentence, making this new post-sentence
         mitigation evidence more reliable. Id.

                                          -22-
#26764

specified on remand that Roberts had a right to allocute and that the trial court was

to reweigh the evidence and “personally prepare an entirely new penalty opinion.”

Id. On remand, Roberts filed a motion to introduce new mitigation evidence,

including prison records, a disability claim file, an affidavit from Roberts’s

psychologist offering a preliminary diagnosis, and a letter about Roberts from her

son. Id. at 1104-05. That motion was denied. Id. at 1105. The trial court heard

Roberts’s allocution and sentenced her to death.

[¶36.]       On appeal, the Court rejected Roberts’s assertion that the sentencing

court erred in precluding her from presenting new mitigating evidence on remand.

The Court distinguished Skipper, Lockett, and Eddings as inapplicable because

those cases “involved a situation where the capital sentencer was prohibited, in

some form or another, from considering relevant mitigating evidence at trial. . . .

[N]o relevant mitigating evidence was ever excluded from consideration during

[Roberts’s] penalty phase.’” Id. at 1107 (first two alterations in original) (quoting

State v. Chinn, 709 N.E.2d 1166, 1180-81 (Ohio 1999)). “In other words, neither

Lockett nor any of its progeny required the trial court to reopen the evidence after

an error-free evidentiary hearing had already taken place.” Id. at 1108 (citing

Chinn, 709 N.E.2d at 1180-81). Instead, the error in question occurred after the

evidentiary sentencing proceeding had closed; therefore, “the trial court was

required to proceed on remand from the point at which the error occurred[.]” Id. at

1110 (quoting Chinn, 709 N.E.2d at 1181). Otherwise, the Court would create an

unauthorized “right to update one’s mitigation. Such a right has no clear basis in

Lockett or its progeny.” Id. at 1108.


                                          -23-
#26764

[¶37.]       Beyond an inability to reconcile Lockett, Eddings, and Skipper to this

alleged right to update one’s mitigation evidence, the Court rejected Roberts’s

argument as causing untenable results. The Court reasoned that:

             Establishing a right to update mitigation could result in
             arbitrary distinctions between similarly situated capital
             defendants. A defendant who had an error-free mitigation
             hearing could not update his mitigation—no matter how
             compelling the new mitigation that might be available to him—
             if the trial judge committed no error after the mitigation hearing
             that called for the case to be remanded. But another defendant,
             whose mitigation hearing was equally free of error, would have
             the right to update his mitigation in the event that a
             posthearing sentencing error took place that required a remand.

Id.

[¶38.]       Both Davis V and Roberts provide reasoning for whether or not

Supreme Court precedent gives indirect authority that a court, on limited

resentencing, must consider new mitigation evidence. Two key factors, however,

point to Roberts being the persuasive authority.

[¶39.]       First, the Sixth Circuit based its decision in Davis V on the salient

aggravating circumstance shared in both Davis and Skipper. “[T]he core of the

analysis in Skipper reflects the Court’s understanding that the right of a defendant

to present evidence of good behavior in prison is particularly relevant when a

prediction of future dangerousness figures centrally in a prosecutor’s plea for

imposition of the death penalty.” Davis V, 475 F.3d at 771 (emphasis added).

“Although there could conceivably be some question about the relevance of such

evidence in the abstract, the record in this case establishes without doubt that [the

newly discovered evidence on remand] was highly relevant to the single aggravating

factor relied upon by the state—that future dangerousness should keep Davis on

                                         -24-
#26764

death row.” Id. at 773 (emphasis added). Therefore, according to the court, Skipper

was substantively distinguishable from Davis’s situation “solely on the basis of

timing,” and it applied Skipper to require a full resentencing. See id.

[¶40.]       In contrast, the two statutory aggravating circumstances under which

the court sentenced Berget to death did not relate to his future dangerousness per

se, but to the nature of the murder he committed. See SDCL 23A-27A-1(7), (8)

(“[t]he offense was committed against a[n] . . . employee of a corrections institution,”

and “[t]he offense was committed by a person in . . . the lawful custody of . . . a place

of lawful confinement”). These statutory aggravating circumstances do not include

future dangerousness as a consideration. Moreover, the circuit court considered

Berget’s future dangerousness as one among four other non-statutory aggravating

circumstances. The court’s original and amended presentence hearing verdicts

indicate the court also took into account: (1) the violent nature of Berget’s attack on

Johnson, (2) that a life sentence would have no deterrent effect on other inmates

similarly situated to Berget, (3) that Berget had a long criminal history of ever-

increasing violence outside of prison, and (4) that Berget showed a lack of remorse

to Johnson’s family. Berget’s future dangerousness undoubtedly played a role in

the court’s penalty analysis, but that aggravating concern did not predominate as it

did in Davis or Skipper. Since this “central role” is the basis of the Sixth Circuit’s

reasoning in Davis V, Berget’s reliance on that case is questionable.

[¶41.]       Second, and most importantly, however, the negative consequences of

adopting Berget’s position, as noted in Roberts, make Roberts the persuasive

authority. For instance, as noted above, under SDCL 23A-27A-12(2) we are

statutorily charged with an independent determination of “whether the evidence
                                       -25-
#26764

supports . . . [a] judge’s finding of a statutory aggravating circumstance as

enumerated in § 23A-27A-1.” Because of this duty, were we to accept Berget’s

rationale that Skipper and Davis V require consideration of newly discovered post-

trial mitigation evidence in every capital case, this Court would open the door to

becoming the initial trier of fact for evidence never presented or considered by the

circuit court. Under Berget’s rationale, this Court, when presented with new post-

trial evidence upon appeal, “could be considered a ‘sentencer’ for Lockett purposes.”

See Roberts, 998 N.E.2d at 1108-09. This, again, would thwart the judicial economy

of our tiered judicial system. See Piper III, 2014 S.D. 2, ¶ 10, 842 N.W.2d at 343. It

would also no longer make the original sentencing proceeding the “main event” but

improperly relegate it to a mere “tryout on the road.” See Gregory v. Solem, 449

N.W.2d 827, 833 (S.D. 1989) (citing Wainwright v. Sykes, 433 U.S. 72, 90, 97 S. Ct.

2497, 2508, 53 L. Ed. 2d 594, 610 (1977)).

[¶42.]       Additionally, the Roberts Court’s finding of arbitrary discrepancies

that may manifest between similarly situated capital defendants simply because of

a post-sentence error in deliberation is clearly applicable in this case. No

sentencing error existed in the case of Berget’s co-defendant, Eric Robert. See State

v. Robert, 2012 S.D. 60, 820 N.W.2d 136. Had Robert proceeded with his case and

tried to raise a similar argument of post-sentencing discovery of evidence he deemed

to be mitigating, under the rationale now advanced by Berget, Berget could obtain a

second sentencing hearing while Robert could not. Therefore, the circumstances of

their offenses and the individual “character and propensities” of each defendant—

the fundamental concerns of sentencing, see Gregg, 428 U.S. at 189, 96 S. Ct. at

2932 (citations omitted)—would not result in their distinct sentencing treatments;
                                       -26-
#26764

they would result from a potential, extraneous court error that occurred after

sentencing. That strikes at the heart of Lockett’s holding that the death penalty

should be imposed “in a more consistent and rational manner[,]” based on an

analysis of the fundamental concerns of sentencing. See Lockett, 438 U.S. at 601,

605, 98 S. Ct. at 2963, 2965.

[¶43.]       It is that very interest in achieving a “more rational and equitable

administration of the death penalty” that the Supreme Court found to be the basis

for allowing states the “authority to set reasonable limits upon the evidence a

defendant can submit, and to control the manner in which it is submitted[,]”

including mitigation evidence, in capital cases. See Oregon v. Guzek, 546 U.S. 517,

526, 126 S. Ct. 1226, 1232, 163 L. Ed. 2d 1112 (2006). A reasonable limit is one that

we impose today that avoids the arbitrary outcomes and judicial inefficiency noted

in Roberts and reinforces an appellate court’s authority to instruct a limited

remand.

[¶44.]        The Supreme Court’s ruling in Guzek is also instructive in a broader

sense. In Guzek, the issue relevant to this case was whether the Eighth and

Fourteenth Amendments granted Guzek the right to introduce new evidence of his

innocence at his sentencing hearing—namely, that he was not present at the scene

of the crime. Id. at 523, 126 S. Ct. at 1230. The Court rejected the Oregon Supreme

Court’s broadening of Lockett to provide an Eighth Amendment right for Guzek to

introduce newly discovered evidence of his innocence at a sentencing hearing. Id. at

523, 126 S. Ct. at 1230-31. The Court grounded its ruling on three conclusions.

First, the Court noted that, fundamentally, “evidentiary concerns” are different

between guilt and sentencing phases, with the former concern asking whether the
                                       -27-
#26764

defendant committed the crime and the latter asking how the act was committed.

Id. at 526, 126 S. Ct. at 1232. Second, the Court found that “the parties previously

litigated the issue to which the evidence is relevant—whether the defendant

committed the basic crime. The evidence thereby attacks a previously determined

matter in a proceeding at which, in principle, that matter is not at issue. The law

typically discourages collateral attacks of this kind.” Id. (citing Allen v. McCurry,

449 U.S. 90, 94, 101 S. Ct. 411, 415, 66 L. Ed. 2d 308 (1980)). Third, the Court

determined that any “negative impact of a rule restricting defendant’s ability to

introduce new alibi evidence is minimized by the fact that Oregon law gives the

defendant the right to present to the sentencing jury all the evidence of innocence

from the original trial regardless.” 12 Id. at 526-27, 126 S. Ct. at 1233 (citing Or.

Rev. Stat. § 138.012(2)(b) (2003)). The Court summarized its analysis by holding,

“The legitimacy of these trial management and evidentiary considerations” and the

“minimally adverse impact the restriction would have” on defendant’s ability to

present his case indicated the Eighth Amendment was not violated. Id. at 527, 126

S. Ct. at 1233.



12.   This language is analogous to the Ohio Supreme Court’s logic in Roberts,
      where it held:

             This case . . . involves a proceeding on remand for the limited
             purpose of correcting an error that occurred after the defendant
             had had a full, unlimited opportunity to present mitigating
             evidence to the sentencer.
             In other words, neither Lockett nor any of its progeny required
             the trial court to reopen the evidence after an error-free
             evidentiary hearing had already taken place.

      998 N.E.2d at 1108 (second emphasis added).

                                          -28-
#26764

[¶45.]       Our balancing in this case and the balancing conducted by the

Supreme Court in Guzek to reject a broadening of Lockett are similar because both

defendants’ arguments implicated the same court management interest. Berget

seeking a new sentencing hearing by effectively invoking a “right to update one’s

mitigation” is akin to Guzek seeking to treat the sentencing hearing as a second

guilt trial by invoking a “right to reconsideration” of guilt at sentencing. See Guzek,

546 U.S. at 525, 126 S. Ct. at 1232 (citations omitted). If the Court were to adopt

Berget’s position, the Court would establish the incentive to turn a limited

resentencing into a full-fledged, second sentencing hearing by seeking out all newly

discoverable mitigation evidence conceivable, again no longer making the original

sentencing proceeding the “main event” but consigning it to a mere “tryout on the

road.” See Gregory, 449 N.W.2d at 833 (citation omitted). It is also more than

conceivable that Berget may claim new, positive relationships with family members,

fellow prisoners, or strangers for the remainder of his life if this Court permits each

assertion of a relationship to be grounds for a new sentencing hearing or grounds

for ignoring our limited remand instructions.

[¶46.]       Accordingly, Lockett, Eddings, and Skipper are clearly distinguishable

from the present case. No binding authority requires under the Eighth Amendment

that a resentencing authority consider newly discovered, otherwise-admissible

mitigation evidence, when the defendant had a full and unrestricted opportunity to

present mitigation evidence at the initial sentencing. Given the negative

consequences articulated above, Guzek supports our instructions in Berget I. See

Guzek, 546 U.S. at 526, 126 S. Ct. at 1232. These negative consequences include

the lack of finality, the arbitrariness that a right to update his mitigation would
                                           -29-
#26764

inject into death penalty jurisprudence, and the destruction of the appellate two-

tiered judicial system and the competencies it fosters. Therefore, we follow Roberts,

998 N.E.2d at 1108-09, and decline to follow Davis V, 475 F.3d at 773, Creech, 947

F.2d at 881-82, and Sivak, 731 P.2d at 197-98. Preventing these discrepancies and

dysfunctions clearly is a rational basis for excluding newly discovered mitigation

evidence from the limited remand for resentencing in this case. Because Berget is

unable to present persuasive authority supporting his position, he has failed to

meet his onerous burden of proving beyond a reasonable doubt that this Court’s

statutory and state constitutional authority to order limited remand violated the

Eighth and Fourteenth Amendments in this case. Accordingly, the circuit court did

not commit legal error and abuse its discretion in following this Court’s instruction

on resentencing. 13


13.   Berget’s constitutional claim is also subject to prejudicial or harmless error
      analysis. See St. John, 2011 S.D. 58, ¶ 10, 804 N.W.2d at 74 (quoting Novak
      v. McEldowney, 2002 S.D. 162, ¶ 7, 655 N.W.2d 909, 912) (“‘An evidentiary
      ruling will not be overturned unless error is demonstrated and shown to be
      prejudicial error.’”); Smith, 1999 S.D. 83, ¶ 39, 599 N.W.2d at 353; see also 18
      U.S.C. § 3595(c)(2)(C) (“The court of appeals shall not reverse or vacate a
      sentence of death on account of any error which can be harmless, including
      any erroneous special finding of an aggravating factor, where the
      Government establishes beyond a reasonable doubt that the error was
      harmless.”); SDCL 23A-44-14 (“Any error, defect, irregularity, or variance
      which does not affect substantial rights shall be disregarded.”); Sweet v. Delo,
      125 F.3d 1144, 1158-59 (8th Cir. 1997) (citing Hitchcock v. Dugger, 481 U.S.
      393, 399, 107 S. Ct. 1821, 1824-25, 95 L. Ed. 2d 347, and Skipper, 476 U.S. at
      7-8, 106 S. Ct. at 1672-73) (applying harmless error analysis to a Lockett
      error)); State v. Piper (Piper I), 2006 S.D. 1, ¶ 18, 709 N.W.2d 783, 794-95
      (applying a prejudicial error analysis to a capital proceeding). “‘A
      constitutional violation may constitute harmless error, and thus not require
      reversal, if the court can declare beyond a reasonable doubt that the error
      was harmless and did not contribute to the verdict obtained.’” State v.
      Larson, 512 N.W.2d 732, 735 (S.D. 1994) (quoting State v. Schuster, 502
      N.W.2d 565, 570-71 (S.D. 1993)). See also Chapman v. California, 386 U.S.
                                                              (continued . . .)
                                           -30-
#26764


(. . . continued)
         18, 22, 24, 87 S. Ct. 824, 827, 828, 17 L. Ed. 2d 705 (1967) (articulating the
         similar federal standard). This harmless error analysis is particularly salient
         where, as here, there is “ample evidence relating to the circumstances of the
         murder.” See State v. Rhines (Rhines I), 1996 S.D. 55, ¶ 101, 548 N.W.2d 415,
         441. The State has the burden to prove harmless error. State v. Medicine
         Eagle, 2013 S.D. 60, ¶ 60, 835 N.W.2d 886, 905 (citing State v. Nelson, 1998
         S.D. 124, ¶ 8, 587 N.W.2d 439, 443).

      The State has proven that the aggravating evidence against Berget is
      overwhelming beyond a reasonable doubt, thereby negating any claim of
      constitutional error. Out of all the remaining aggravating evidence—
      including the brutal nature of the beating and suffocation of Ronald Johnson
      in carrying out the attempted escape, Berget’s violent criminal history, and
      the clear existence of the statutory aggravating circumstances of the killing
      an employee of a corrections institution while Berget was lawfully confined,
      SDCL 23A-27A-1(7), (8)—none of it would have been called into doubt or
      otherwise eroded by Berget’s evidence of his relationship with his son and his
      family. This new evidence could not reasonably expunge or mitigate the
      circumstances of the murder. “The absence of any prejudice is particularly
      apparent given the horrific nature of the crime.” McGehee v. Norris, 588 F.3d
      1185, 1189 (8th Cir. 2009) (citation omitted) (applying harmless error
      analysis to an alleged Lockett error). Additionally, as noted above, future
      dangerousness was not the central concern of the sentencing authority. It is
      even unclear how Berget’s relationship with his family will logically affect his
      future dangerousness. It is also unclear how Berget’s relationship would
      have resulted in a life sentence given the circuit court’s awareness of Berget’s
      son and the testimony of Associate Warden Pontow that Berget could serve a
      life sentence in administrative segregation to “diminish any serious threat of
      future dangerousness.” See Hall v. Luebbers, 341 F.3d 706, 717 (8th Cir.
      2003) (deeming the exclusion of mitigating evidence in a capital case
      harmless error where it was cumulative).

      Moreover, it is important to note that “South Dakota law does not require the
      weighing of aggravating circumstances against mitigating factors[,]” and that
      a sentencing authority, in the face of all manner of mitigating evidence, “need
      only find one statutory aggravating factor beyond a reasonable doubt to
      impose the death penalty.” Page, 2006 S.D. 2, ¶ 50, 709 N.W.2d at 758-59
      (citing Rhines II, 2000 S.D. 19, ¶¶ 39 n.9, 53, 608 N.W.2d at 312 n.9, 314).

      Therefore, “ample evidence” shows the exclusion of Berget’s relationship with
      his son in the resentencing authority’s final consideration was a harmless
      error beyond a reasonable doubt, if it was error at all. Because the circuit
      court committed no prejudicial error, it did not abuse its discretion in
      excluding this newly discovered evidence, and on these additional grounds,
                                                            (continued . . .)
                                        -31-
#26764

[¶47.]       2.     Whether the circuit court’s resentencing procedure met
                    statutory and constitutional requirements concerning
                    Berget’s presence at components of the sentencing
                    process and allocution.

[¶48.]       If the Court’s limited resentencing instructions pass constitutional

muster, Berget argues that the circuit court nevertheless erred by not having

granted him other rights available at sentencing generally—his rights to be

physically present in the courtroom and to allocute once more before resentencing.

These issues are questions of law and are therefore subject to de novo review. See

Pete Lien & Sons, Inc. v. City of Pierre, 1998 S.D. 38, ¶ 5, 577 N.W.2d 330, 331 (per

curiam).

[¶49.]              a.   The legality of the circuit court’s entry of its
                         sentence.

[¶50.]       In support of this argument, Berget interprets a number of diverse

authorities from federal and state sources. Berget cites Article VI, § 7 of the South

Dakota Constitution, which provides, in pertinent part, that “[i]n all criminal

prosecutions the accused shall have the right to defend in person and by counsel; . . .

to meet the witnesses against him face to face . . . .” He goes on to reference SDCL

23A-39-1, which defines this right further by mandating that “[a] defendant shall be

present at his arraignment, at the time of his plea, at every stage of his trial

including the impaneling of the jury and the return of the verdict, and at the

imposition of sentence, except as provided by §§ 23A-39-2 and 23A-39-3.” Because

these last exceptions are not applicable, and because a defendant’s presence is


(. . . continued)
         Berget’s constitutional argument fails. See Smith, 1999 S.D. 83, ¶ 39, 599
         N.W.2d at 353.

                                          -32-
#26764

required “at every stage of his trial,” up to and including “the return of the verdict,”

Berget contends his state constitutional rights were violated by his absence when

the court reimposed its sentence. Berget argues that federal authority is also

persuasive on this issue because he believes that SDCL chapter 23A-39 was

modeled after Rule 43 of the Federal Rules of Criminal Procedure. Cf. Jacquot v.

Rozum, 2010 S.D. 84, ¶ 15, 790 N.W.2d 498, 503 (“This Court routinely looks to

other courts’ decisions for analytical assistance in interpreting a South Dakota rule

of civil procedure that is equivalent to a Federal Rule of Civil Procedure.”).

[¶51.]         On this last point, Berget is incorrect. The federal rule and SDCL

chapter 23A-39, while containing some similarities, also contain numerous

differences of significance. For example, SDCL 23A-39-3 deals with appearances by

corporations faced with criminal prosecutions, a subject not addressed by the

federal rule. The source of SDCL 23A-39 traces its roots back to our earliest

criminal code while still a Territory. See Dakota Rev. Code Crim. P. §§ 237, 294

(1877). The current version was enacted as part of the general revision of our

Criminal Code in 1978, again with significant differences from the federal rule both

in subject matter and in phraseology. See 1978 S.D. Sess. Laws ch. 178, § 485.

Therefore, the persuasive authority of federal courts’ interpretations of Federal

Rule 43 language is negligible.

[¶52.]         For case law interpreting SDCL 23A-39-1, Berget cites Kost v. State,

344 N.W.2d 83 (S.D. 1983). 14 In that case, Kost brought a second petition for



14.      Kost also does not reference Federal Rule 43. Rather, it reviews our previous
         case law, which goes back to 1904, and which interpreted Territorial criminal
                                                            (continued . . .)
                                           -33-
#26764

habeas corpus after having been found guilty by a jury of first-degree manslaughter

and sentenced to life imprisonment. Id. at 84. The sole issue was whether the trial

court denied Kost’s due process rights when Kost was not present at three

discussions in chambers, even though his attorney waived his right to be present

each time. Id. at 84. This Court began its discussion by noting that a criminal

defendant’s right to be present flows from state statutory and constitutional

authority, as well as the Sixth Amendment to the United States Constitution. Id.

(citations omitted). The scope of that due process right “requires the defendant ‘to

be present in his own person whenever his presence has a relation, reasonably

substantial, to the fulness [sic] of his opportunity to defend against the charge.’” Id.

(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332, 78 L. Ed.

674, 678 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.

Ct. 1489, 12 L. Ed. 2d 653 (1964)). See also Kentucky v. Stincer, 482 U.S. 730, 745,

107 S. Ct. 2658, 2667, 96 L. Ed. 2d 631 (1987) (holding that the right to be present

is “not guaranteed when presence would be useless, or the benefit but a shadow”).

Accordingly, this Court determined that the constitutional and statutory right,

conditioned on Snyder, required that “[a] defendant must be present when his

presence is related to an opportunity to defend himself against the criminal charge.”

Kost, 344 N.W.2d at 86. This Court equated any other failure to be present, even

though it may violate the plain language of the statute, to be harmless error. Id. at




(. . . continued)
         procedure. Kost, 344 N.W.2d at 85 (quoting State v. Swenson, 18 S.D. 196,
         204-05, 99 N.W. 1114, 1116 (1904)).

                                          -34-
#26764

85-86 (citing State v. Rosales, 302 N.W.2d 804, 807 (S.D. 1981)). The circuit court’s

judgment was affirmed based on this harmless error analysis. Id. at 86.

[¶53.]       Applying a similar analysis, Berget’s physical presence at resentencing

would have been “useless, or the benefit but a shadow” given our remand

instructions. The circuit court’s resentencing did not, and could not, depend on any

new evidence from Berget outside of calling Dr. Bean, which Berget declined to do

when offered by the circuit court. What remained was for the circuit court to

exercise its discretion in rendering its judgment on the same evidence and

argument that was presented at the initial sentencing hearing. Because of the

unique nature of the alleged error in Berget I, the circuit court only needed to

reconsider its findings of fact and conclusions of law by drafting amendments in

chambers, filing them with the Clerk of Courts, and serving copies on counsel. The

unique posture of the remand begs the question: what was to be gained by having

Berget physically present to watch the circuit court deliberate and hand these

documents to the clerk? See United States v. Burton, 543 F.3d 950, 953 (7th Cir.

2008) (“A criminal defendant has no right to be present in the judge’s chambers

when she writes her sentencing memorandum or files it with the clerk.”). Because

our instructions in Berget I so limited the jurisdiction of the circuit court on remand

and Berget had no right to be present in chambers while the circuit court

deliberated in reconsidering its sentence without reference to the Dr. Bean

admission, the circuit court committed no error in filing new sentencing findings

and conclusions outside Berget’s presence.

[¶54.]       In spite of the distinction between our rules and the federal standard,

Berget argues that at least one court (federal) has categorically found due process
                                         -35-
#26764

objections to the absence of a defendant at resentencing, citing United States v.

Arrous, 320 F.3d 355, 359 (2d Cir. 2003). Arrous, however, engaged in the very

same harmless error analysis articulated above to find the defendant’s involuntary

absence harmless. Id. at 361-62. In explaining its holding further, the Second

Circuit Court of Appeals stated that “defendant’s presence would have made no

difference in the second sentencing. The decision whether to strike the restitution

order from the judgment or allow Arrous to withdraw his guilty plea was one that

rested solely within the discretion of the district court and did not depend on any

input from defendant.” Id. at 362. 15 Likewise, in drafting Berget’s resentencing,

the circuit court was required to consider the identical, preexisting evidence that

Berget and the State presented at the initial sentencing, including Berget’s prior

allocution and arguments of counsel. Again, the circuit court’s resentencing based

upon our limited remand did not, and could not, depend on any new evidence from

Berget outside of calling Dr. Bean, which Berget declined to do. What remained

was for the circuit court to exercise its discretion in rendering its judgment on the


15.   Berget cites another Second Circuit case, United States v. DeMott, 513 F.3d
      55 (2d Cir. 2008) (per curiam), for the proposition that it is per se prejudicial
      (and not harmless) error for a court to impose a sentence on a defendant
      when not in the defendant’s presence. Berget quotes language in DeMott that
      appears to support this claim: “Since a new sentence was imposed out of the
      presence of the defendant, his lawyer, and the prosecutor, we cannot
      confidently decide there has been no harm.” See id. at 58. However, Berget
      leaves out much of the court’s analysis, including its citation to Arrous and its
      harmless error analysis. Id. (citing Arrous, 320 F.3d at 361) (“The denial of
      this right is subject to harmless review, but such error is harmless only
      where it is ‘unimportant and insignificant’ in the context of the case, such as
      where . . . ‘defendant’s presence would not have affected the outcome.’”). The
      DeMott court simply found that defendant’s presence at resentencing in that
      case would have affected the outcome, see id., thereby distinguishing it from
      Arrous and, per the analysis above, Berget’s resentencing.

                                         -36-
#26764

same evidence and argument that was presented at the initial sentencing hearing.

Berget is therefore left without any substantive grounds for asserting he was

prejudiced by his physical absence when the circuit court deliberated, filed the

sentencing documents with the clerk of courts, and mailed copies to counsel.

Accordingly, any error regarding Berget’s physical absence was harmless beyond a

reasonable doubt and did not contribute to the verdict obtained. See Larson, 512

N.W.2d at 735.

[¶55.]              b.   Berget’s claim for additional allocution.

[¶56.]       Similarly, Berget contends that state and federal authority support his

right to allocute before resentencing, which was denied by the circuit court’s refusal

to conduct a formal resentencing hearing. To advance this contention, he relies on

SDCL 23A-27-1 and this Court’s ruling in State v. Garber, 2004 S.D. 2, 674 N.W.2d

320. The relevant language of SDCL 23A-27-1 is as follows:

             Before imposing a sentence, a court may order a hearing in
             mitigation or aggravation of punishment. . . . At such hearing,
             the court shall allow the defense counsel an opportunity to
             speak on behalf of the defendant and shall address the
             defendant personally and ask him if he wishes to make a
             statement in his own behalf and to present any information in
             mitigation of punishment.

Id. On its face, this language describes the allocution right as arising out of a

sentencing hearing ordered by the court. As noted above, the circuit court did not

order a new sentencing hearing because it correctly found no basis for it on remand.

Berget’s right to allocute was not infringed at his original sentencing hearing, the

only sentencing hearing on the record. The plain language of the statute, therefore,

does not support Berget’s claim. Moreover, the only relevance of Garber to this

analysis is that it referenced in passing that SDCL 23A-27-1 provides a “right of
                                          -37-
#26764

allocution” and nothing more. See 2004 S.D. 2, ¶ 18, 674 N.W.2d at 325. Without

further interpretation, SDCL 23A-27-1 does not explicitly govern the type of limited

resentencing at issue here, nor does it describe the nature of the allocution right.

South Dakota case law appears to be silent in both respects.

[¶57.]       Berget contends this Court may draw authority from federal case law

that purportedly establishes a defendant’s right to allocute at resentencing

generally. Federal case law provides that unlike the right to be present, “the right

of allocution is not a constitutional one. Rather, the right of allocution derives from

the Federal Rules of Criminal Procedure.” United States v. Patterson, 128 F.3d

1259, 1260 (8th Cir. 1997) (per curiam) (citations omitted). It has also been

described as a common law right that relates to a defendant’s constitutional right to

be present at sentencing. See Green v. United States, 365 U.S. 301, 304, 81 S. Ct.

653, 655, 5 L. Ed. 2d 670 (1961).

[¶58.]       Berget relies on the unpublished opinion of United States v. Blake

(Blake II), No. 12-3176, 501 F. App’x 587, 588 (7th Cir. Feb. 26, 2013), for the

proposition that allocution is also a right provided at limited resentencing. Leading

up to the case, the Seventh Circuit had entered a limited remand for resentencing

in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621

(2005), and its repeal of the mandatory nature of the Federal Sentencing

Guidelines. See Blake II, 501 F. App’x at 588. The trial court then resentenced

Blake, but did not notify him of his ability to speak in his defense. Id. On appeal

from the remand, the Seventh Circuit entered a four-sentence unpublished opinion

that remanded Blake’s case for failure to allow allocution. See United States v.

Blake (Blake I), No. 06-3390, 227 F. App’x 506, 2007 WL 1875958 (7th Cir. June 11,
                                        -38-
#26764

2007). Both cases give little support for Berget’s argument. Blake I explicitly

stated only the court’s uncertainty whether the denial of Blake’s right of allocution

in that particular circumstance was harmless error. Id. at *1. Blake II merely

referenced back to Blake I. See Blake II, 501 F. App’x at 588.

[¶59.]       In contrast, the Ninth Circuit, in its published opinion in United States

v. Silva, 472 F.3d 683 (9th Cir. 2007), directly addressed a defendant’s right to

allocute on limited remand. As with Blake, the Ninth Circuit in Silva had issued a

limited remand for resentencing Silva in the wake of Booker. Id. at 685. This

limited remand “require[d] the district court to make a subjective determination,

based upon a review of the record and the submissions of counsel, as to whether the

sentence would have been materially different under advisory Guidelines.” Id. The

court noted that because the court properly “evaluated the record, considered the

views of counsel, and concluded that he would have chosen the same sentence under

a discretionary regime[,]” Silva had “no right . . . even to be present during such a

limited inquiry, and so by necessary implication . . . [authority] does not support a

right to allocute therein.” Id. at 686. While the court acknowledged the federal

rulemaking and case law authority establishing allocution as a general, necessary

component of a criminal defendant’s due process rights, see id. at 686-87, it further

noted, “[W]e have decided that allocution is not always necessary in the case of

sentencing error.” Id. at 687. The court illustrated the limits of the allocution right

by harkening to its earlier opinion in United States v. Knows His Gun, 438 F.3d 913

(9th Cir. 2006). In Knows His Gun, the Ninth Circuit affirmed a sentence where the

trial court, on remand in light of Booker, failed to permit allocution. Id. at 920.

Recounted later in Silva, the Ninth Circuit noted that the key factor was Knows His
                                        -39-
#26764

Gun’s ability at his original sentencing to present all relevant evidence and to

allocute. See Silva, 472 F.3d at 687 (citing Knows His Gun, 438 F.3d at 919-20)

(“We affirmed . . . because the defendant had already had a chance to present non-

Guidelines evidence at the original sentencing and needed no further right to

allocute.”). The court then applied that rationale to Silva, and held that because the

limited remand “merely requires review of the record and the views of counsel, due

process does not require allocution.” Id. at 687-88.

[¶60.]       The clear parallels between Berget’s case and Silva indicate that the

due process afforded to Berget on limited remand did not implicate Berget’s right to

allocution. Like the Ninth Circuit’s directive in Silva, we instructed on remand that

the circuit court was to conduct its review “on the existing record.” See Berget I,

2013 S.D. 1, ¶ 120, 826 N.W.2d at 37. Akin to Silva, we effectively tasked the lower

court with making “a subjective determination, based upon a review of the record

and the submissions of counsel, as to whether [Berget’s] sentence would have been

[] different” absent the improper consideration. See Silva, 472 F.3d at 685. The

circuit court then appropriately considered only the existing record, including the

prior allocution, and the views of counsel in making its decision. The circuit court

was not required to grant additional allocution because Berget was already given a

chance to submit all relevant evidence and to allocute at his sentencing hearing.

Silva provides that no due process right to allocute exists within the limited remand

framework we instructed in Berget I given the similarities of our instructions. This,

coupled with SDCL 23A-27-1’s plain language does not support Berget’s

interpretation. Berget offers no persuasive authority on which to base his

allocution right.
                                         -40-
#26764

[¶61.]       Further, even if there were a right of allocution in this instance, any

failure of the circuit court to provide Berget this right was harmless error. See

United States v. Robertson, 537 F.3d 859, 863 & n.3 (8th Cir. 2008) (applying

harmless error analysis to an allocution error). Recognizing the similar nature of

the right to be present and the right to allocute (albeit the allocution right involves

a lesser, common law concern), see Silva, 472 F.3d at 686, a similar harmless error

framework may be applied. This Court’s instruction on remand narrowed the

circuit court’s consideration of new mitigating evidence. By this instruction,

Berget’s ability to re-allocute, after electing not to introduce Dr. Bean’s testimony,

became immaterial. With the removal of Dr. Bean’s report from consideration, the

evidence upon which Berget could allocute was the same evidence upon which he

allocuted at the initial sentencing hearing. Nothing changed. And because the

resentencing court indicated it would consider his prior allocution, Berget could not

have influenced the circuit court’s resentencing decision when all the court had to

consider was the preexisting record. Cf. Kost, 344 N.W.2d at 86 (“[Defendant’s]

absence from these discussions was not error because his presence was not

necessary to defend against the charges.”). As noted above, the language of SDCL

23A-37-1 does not provide a right of allocution at this limited resentencing, and

even if it did, the resulting error at Berget’s resentencing would be harmless beyond

a reasonable doubt because it could not, and would not, contribute to the sentence

rendered. See Larson, 512 N.W.2d at 735.

[¶62.]        Therefore, Berget provides no persuasive authority to support a right

to allocution in the limited remand proceedings directed by Berget I. If the court


                                          -41-
#26764

erred in not providing for allocution, that error was harmless. Accordingly, his

claim fails.

[¶63.]         3.    Whether the circuit court erred in not recusing itself
                     prior to resentencing.

[¶64.]         Berget asserts the circuit court erred by denying his request that the

court recuse itself on limited remand, citing the court’s actual and implied judicial

bias. This argument stems from Berget’s allegation that the court simply recycled

its findings of fact and conclusions of law from those in the case of Berget’s co-

defendant, Eric Robert. In his initial brief, Berget characterized this allegation as

indicating the court gave his case little consideration, which in turn evidenced bias.

Berget now modifies this argument in his reply brief and in oral argument by

asserting that the court was “trying to be fair in a situation where no mortal could

be.” Berget further explains that the court was more inherently—rather than

intentionally—biased because it had to prejudge Berget’s case, having already

sentenced his co-defendant on similar findings of fact and conclusions of law.

Berget relates that for the court to change its findings from Robert’s case to Berget’s

case would be to “call the finality of the [Robert] decision . . . into question.”

[¶65.]         Berget admits that SDCL 15-12-24 statutorily precluded his affidavit

for change of judge because he submitted argument to the circuit court—admitting

guilt and receiving sentence—prior to filing the affidavit. He bases the court’s duty

to recuse on a superseding, general constitutional right to a fair trial, citing Nelson,

1998 S.D. 124, ¶ 14, 587 N.W.2d at 445 (citations omitted) (outlining the scope of a

right to a fair trial), and Page, 2006 S.D. 2, ¶ 14, 709 N.W.2d at 749 (quoting State

v. Hoadley, 2002 S.D. 109, ¶ 32, 651 N.W.2d 249, 257) (“[A] defendant’s ‘opportunity

                                           -42-
#26764

to disqualify a judge is statutory, . . . and not a constitutional right, except as it may

be implicit in a right to a fair trial.’”).

[¶66.]         This argument fails. Berget had argued on direct appeal that

similarities between the verdicts from his and Robert’s pre-sentencing hearing

indicate a violation of Berget’s right to an individualized sentencing determination

under Lockett. Berget I, 2013 S.D. 1, ¶¶ 53-54, 826 N.W.2d at 18-19. This Court

rejected that argument. We did so based on our finding that “Berget has not

‘presented any evidence to constitute a legitimate basis on which to call into

question the circuit judge’s impartiality. . . . Absent such a showing that a fair

judgment was impossible, it was not error for the circuit judge to sentence [Berget]

after sentencing his co-defendant [Robert].’” Id. ¶ 54, 826 N.W.2d at 18 (quoting

Page, 2006 S.D. 2, ¶ 17, 709 N.W. 2d at 751). 16 This finding echoed our prior

holdings in Page, 2006 S.D. 2, ¶¶ 15-17, 709 N.W.2d at 750-51, and Hoadley, 2002

S.D. 109, ¶¶ 32-34, 651 N.W.2d at 257-58, that the mere fact the circuit court

previously sentenced a co-defendant to death does not show the judicial bias, or the

“deep-seated favoritism or antagonism,” that overrides the presumption against

recusal that the court was impartial. Berget’s attempt to distinguish this case from

Page and Hoadley fails. To accept Berget’s argument would prohibit the trying of

co-defendants by the same judge in all cases as a matter of law. Berget offers no




16.      Rather, we explained that the similarity in the presentence verdicts’
         recitation of facts was the logical and proper result of a court approaching a
         joint murder by co-defendants. Id. ¶ 52. Here, that analysis also applies
         with equal effect to Berget’s argument on the court’s amended findings of fact
         and conclusions of law.

                                              -43-
#26764

legitimate indication of the court’s bias to modify our prior analysis. This argument

therefore fails.

[¶67.]        4.    Whether Berget’s sentence was imposed under the
                    influence of passion, prejudice, or any other arbitrary
                    factor.

[¶68.]        Our analysis of the record indicates no basis for finding Berget’s

sentence was imposed under the influence of passion, prejudice, or any other

arbitrary factor. See SDCL 23A-27A-12(1). The circuit court’s amended

presentence hearing verdict and amended findings of fact and conclusions of law

reflect the proper scope of analysis directed by this Court on limited remand. As

indicated above, Berget’s assertion of circuit court bias, actual and inherent, was

shown to have no merit on direct appeal and remains without merit. Berget I, 2013

S.D. 1, ¶ 54, 826 N.W.2d at 18-19. No improper considerations indicating passion,

prejudice, or arbitrariness were otherwise evident on direct appeal. Id. ¶ 13, 826

N.W.2d at 11. That continues to be the case here.

[¶69.]        5.    Whether the evidence supports the circuit court’s finding
                    of statutory aggravating circumstances as enumerated in
                    SDCL 23A-27A-1.

[¶70.]        We noted in Berget I that evidence introduced at Berget’s sentencing

hearing supported, beyond a reasonable doubt, the circuit court’s finding of two

statutory aggravating circumstances evident in Ronald Johnson’s murder. See id.

¶¶ 16-17, 826 N.W.2d at 11; see also 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[.]”);

23A-27A-1(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[.]”).
                                        -44-
#26764

Since then, Berget has brought forth no evidence or argument to question those

holdings. Further inquiry is therefore unnecessary. The evidence supports the

circuit court’s finding of the two statutory aggravating circumstances.

[¶71.]       6.     Whether Berget’s death sentence is excessive or
                    disproportionate to the penalty imposed in similar cases,
                    considering both the crime and the defendant.

[¶72.]       Finally, because “[w]e strictly and purposely limited our remand

instructions in [Berget I] to correct the specific error that had occurred,” see Piper

III, 2014 S.D. 2, ¶ 12, 842 N.W.2d at 343, and because Berget acknowledges without

objection that all proportionality concerns raised in Berget I were addressed and

affirmed by our opinion, our prior proportionality analysis stands, see Berget I, 2013

S.D. 1, ¶¶ 18-31, 826 N.W.2d at 11-14. The record continues to provide no basis for

this Court to find Berget’s death sentence to be excessive or disproportionate. In

the absence of the Court’s instruction, the aggravating circumstances of Berget’s

crime and the remaining aggravating factors would nevertheless outweigh any

reasonable implications of Berget’s new relationship—no matter how positive—with

his son and his son’s family. We conclude that our prior proportionality analysis

remains valid and Berget’s death sentence is not excessive or disproportionate in

relation to similar cases where the death penalty was imposed.

                                      Conclusion

[¶73.]       This Court, pursuant to the South Dakota Constitution, possesses the

clear authority to direct the jurisdictional scope of a limited remand to the circuit

court, and our remand directions in Berget I did not infringe upon any of Berget’s

constitutional rights. The limited remand also did not implicate or otherwise

violate Berget’s rights to be present and to allocution. Finally, this Court previously
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rejected, in Berget I, Berget’s judicial bias argument, and he has provided no

additional, substantive argument in that regard on this appeal. We therefore affirm

his death sentence.

[¶74.]       ZINTER and SEVERSON, Justices, and MILLER, Retired Justice,

concur.

[¶75.]       KONENKAMP, Justice, dissents.

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



KONENKAMP, Justice (dissenting on Issue 1).

[¶77.]       When a death sentence is reversed and remanded for resentencing,

and the sentencing court is thus required to determine anew whether to impose a

sentence of life or death, there is no rational basis to deny the defendant the

opportunity to present for the court’s deliberation any newly available mitigation

evidence. It makes no difference here whether our remand was limited. The

sentencing court was ordered to “conduct a sentencing without” the error in the

previous sentencing, and therefore, it had to reevaluate all the appropriate factors

and evidence, absent the erroneously considered matter. Federal constitutional law

and our own jurisprudence require that the sentencing court consider any new

mitigation evidence.

                                           I.

[¶78.]       Death is the ultimate penalty. It cannot be undone. It is thus an

“‘indispensable part of the process of inflicting the penalty of death’” that the

sentencing process “permit the consideration of the ‘character and record of the

individual offender and the circumstances of the particular offense[.]’” Lockett v.
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Ohio, 438 U.S. 586, 601, 98 S. Ct. 2954, 2963, 57 L. Ed. 2d 973 (1978) (quoting

Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d

944 (1976)); Skipper v. South Carolina, 476 U.S. 1, 4, 106 S. Ct. 1669, 1670-71, 90 L.

Ed. 2d 1 (1986). Yet, after today’s decision, courts will be required to ignore any

current mitigation evidence in deciding life or death if that court is resentencing an

offender because of an error in the previous sentencing process. This limitation

“creates the risk that the death penalty will be imposed in spite of factors which

may call for a less severe penalty[,]” a risk “unacceptable and incompatible with the

commands of the Eighth and Fourteenth Amendments.” See Lockett, 438 U.S. at

605, 98 S. Ct. at 2965. Our Court ignores the fundamental tenets of the Eighth

Amendment in holding, as a matter of law, that a defendant sentenced to death has

no right to present newly discovered, otherwise admissible, mitigating evidence

when resentenced, because that defendant had an opportunity to present mitigation

evidence at the original sentencing hearing.

[¶79.]         A right to mitigate one’s sentence in a capital case is not merely a

statutory right, but a constitutional guarantee. Id. at 608, 98 S. Ct. at 2967.

Contrary to the Court’s claim, Lockett, Eddings, and Skipper are not clearly

distinguishable; nor is this case akin to Roberts, 998 N.E.2d at 1108 or Guzek, 546

U.S. 517, 126 S. Ct. 1226. 17 This case directly implicates the precept that in order


17.      Despite this Court’s claim, Guzek is not “instructive in a broader sense.” See
         supra Majority Opinion ¶ 44. Guzek ruled that a defendant is not entitled to
         present new evidence of his innocence during a sentencing hearing because
         the guilt and sentencing phases are different, the issue of guilt had already
         been litigated, and trial management and evidentiary considerations control.
         546 U.S. at 526-27, 126 S. Ct. at 1232-33. Here, however, Berget’s attempt to
         introduce new mitigation evidence at sentencing in no way implicates the
                                                              (continued . . .)
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to decide “a matter so grave as the determination of whether a human life should be

taken or spared,” see Gregg, 428 U.S. at 189, 96 S. Ct. at 2932 (citing Furman, 408

U.S. 238, 92 S. Ct. 276), “the Eighth and Fourteenth Amendments require that the

sentencer, in all but the rarest kind of capital case, not be precluded from

considering, as a mitigating factor, any aspect of a defendant’s character or record

and any of the circumstances of the offense that the defendant proffers as a basis for

a sentence less than death.” See Lockett, 438 U.S. at 604, 98 S. Ct. at 2964-65.

[¶80.]       Other courts have likewise held that the holding in Skipper, 476 U.S.

at 8, 106 S. Ct. at 1672-73, that a defendant should be allowed to present any

available mitigating evidence requires that, at resentencing, a court must consider

any new evidence that the defendant has developed since the initial sentencing

hearing. See, e.g., Davis v. Coyle, 475 F.3d 761, 771 (6th Cir. 2007); Robinson v.

Moore, 300 F.3d 1320, 1345-48 (11th Cir. 2002); Smith v. Stewart, 189 F.3d 1004,

1008-14 (9th Cir. 1999); Spaziano v. Singletary, 36 F.3d 1028, 1032-35 (11th Cir.

1994); Alderman v. Zant, 22 F.3d 1541, 1556-57 (11th Cir. 1994); Creech v. Arave,




(. . . continued)
         guilt phase and does not involve an issue already litigated (his sentence was
         vacated). Moreover, there is no comparable concern for trial management
         and evidentiary consideration. On the contrary, before resentencing a
         defendant, the court must consider the character and history of the defendant
         before it. Considering newly discovered, otherwise admissible, mitigation
         evidence fulfills that duty. Because Guzek specifically involved the difference
         between the guilt and sentencing phases and in no way addressed what
         evidence is admissible when a defendant is resentenced, Guzek bears no
         instructive value here.

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#26764

947 F.2d 873, 881 (9th Cir. 1991), rev’d on other grounds by Arave v. Creech, 507

U.S. 463, 113 S. Ct. 1534, 123 L. Ed. 2d 188 (1993); Sivak, 731 P.2d at 197-98. 18

                                            II.

[¶81.]         Our own precedent also dictates that it is error not to consider Berget’s

newly available, otherwise admissible, mitigation evidence. In Bult IV, this Court

made clear that a sentencing court has the duty to “acquaint itself thoroughly ‘with

the character and history of the man before it,’” and a failure to do so denies a

defendant “a meaningful sentencing hearing in accordance with our statutes and

general principals of due process.” 1996 S.D. 20, ¶¶ 8, 13, 544 N.W.2d at 216-17

(quoting State v. Pack, 516 N.W.2d 665, 667 (S.D. 1994)). We reversed Bult’s

sentence specifically because the sentencing court failed to consider Bult’s current

mitigation evidence, despite the fact that Bult had an error-free original sentencing

hearing ten years earlier. See id. ¶ 14.

[¶82.]         In 1983, Bult had been sentenced to life without the possibility of

parole, a sentence originally affirmed and later reversed. State v. Bult (Bult I), 351

N.W.2d 731 (S.D. 1984); Bult v. Leapley (Bult II), 507 N.W.2d 325, 328 (S.D. 1993).

After Bult’s first resentencing hearing, during which the court held a full

evidentiary hearing, the sentencing court again sentenced Bult to life without the

possibility of parole. Bult III, 529 N.W.2d at 199. On appeal for the third time, we

reversed the sentence and “remand[ed] again for resentencing, with instructions

18.      The Court’s concern here about the “negative consequences” of allowing
         newly available mitigation evidence at resentencing was adequately
         answered by the Idaho Supreme Court in Sivak: “Needless to say, a
         sentencing judge will not have to consider such post-sentence mitigation
         evidence as will be submitted in this case if [the judge] conducts a proper
         sentencing procedure in the first place.” Id. at 198 n.3.

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that the sentencing court shall impose an appropriate term of years.” Id. at 200.

We did not specifically instruct the court to conduct a full sentencing hearing. Id.

Yet, when, on remand, the sentencing court did not hold a new evidentiary hearing

and sentenced Bult to 300 years, Bult appealed asserting that his 300-year sentence

constituted cruel and unusual punishment and that he was denied a meaningful

sentencing hearing. Bult IV, 1996 S.D. 20, ¶¶ 6-7, 544 N.W.2d at 216.

[¶83.]       On appeal, we held that a sentencing court had an “obligation,” on

remand for resentencing, to update itself on what actions the defendant had taken

between the reversal of the court’s resentence and the court’s second rehearing to

pronounce a new sentence. Id. ¶ 12. We did not rely on the “nature of the error,” or

language from Bult III that “permitted a full sentencing hearing on remand[.]” See

supra Majority Opinion n.9. We also did not express concern for maintaining

“judicial efficiency” and avoiding “arbitrary outcomes.” Rather, we focused on the

sentencing court’s duty to thoroughly acquaint itself with the current character and

history of the defendant before it.

                                         III.

[¶84.]       “Sentencing decisions are perhaps the most difficult responsibility for

trial judges, encompassing circumstances both obvious and elusive.” State v.

Bonner, 1998 S.D. 30, ¶ 11, 577 N.W.2d 575, 578. The task becomes even more

difficult when we declare, as a matter of law, that trial courts must cull out previous

portions of their deliberations on resentencing, but cannot consider current

mitigation that may bear on the question of life or death. Because resentencing

requires courts to reevaluate and reweigh the factors that went into their initial

decision, they should also consider any new evidence that the defendant has
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developed since the initial sentencing hearing. Doing otherwise infringes on Eighth

Amendment protections and violates our own established jurisprudence.

[¶85.]       Berget’s sentence should be remanded for a new sentencing hearing.

This result is the only one consistent with our precedent and “ensure[s] the

reliability, under Eighth Amendment standards, of the determination that ‘death is

the appropriate punishment in a specific case.’” See Lockett, 438 U.S. at 601, 98 S.

Ct. at 2963 (quoting Woodson, 428 U.S. at 305, 96 S. Ct. at 2991).




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