26318-aff in pt, rev in pt & rem-DG
2013 S.D. 1

                             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
TIMOTHY J. BARNAUD
Assistant Attorneys General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.
JEFF LARSON
Sioux Falls, South Dakota

and

CASSANDRA McKEOWN
Sioux Falls, South Dakota

and

CHERI SCHARFFENBERG of
Olson, Waltner & Scharffenberg, LLP
Tea, South Dakota                            Attorneys for defendant
                                             and appellant.
                                      ****
                                             ARGUED OCTOBER 1, 2012
                                             OPINION FILED 01/02/13
#26318

GILBERTSON, Chief Justice

[¶1.]         Rodney Berget pleaded guilty to the first-degree murder of Ronald

Johnson. Berget waived his right to a jury determination of the appropriate

sentence. After a pre-sentence hearing, the circuit court sentenced Berget to death.

He appeals the imposition of the death penalty. Pursuant to statute, this Court

consolidates those issues raised by Berget with the statutory determinations

required by SDCL 23A-27A-12. See SDCL 23A-27A-10.

                                       FACTS

[¶2.]         Berget was convicted of attempted first-degree murder in Lawrence

County in 2003, for events that occurred in June of that year. In connection with

the same events, he was also convicted in Meade County of kidnapping. He

received a life sentence for each conviction. As a result, Berget has been confined to

the South Dakota State Penitentiary since December 2003.

[¶3.]         Ronald Johnson worked as a correctional officer at the South Dakota

State Penitentiary for over 23 years. On the morning of April 12, 2011, Johnson

was working in the Pheasantland Industries building located within the walls of the

penitentiary. 1 That same day, Berget and Eric Robert, another inmate, attempted

to escape from the penitentiary. According to Berget’s sworn testimony from the

change of plea hearing, he had been planning this escape since the previous August.

Per their plan, in order to effectuate the escape, Berget and Robert needed the

uniform of a correctional officer. The pair entered the Pheasantland Industries

building in search of a uniformed guard and found Johnson present.


1.      Pheasantland Industries is a prison-industry business located within the
        walls of the penitentiary.
#26318

[¶4.]        At the change of plea hearing, Berget provided the following factual

basis:

             About August of last year, I came up with a way to try to get out
             of the penitentiary, but I needed to get a guard’s uniform. So on
             the 11th of April, I went over to the shop and was going to try to
             get a uniform, but there was too many people around. So on the
             12th of April, I went over to the laundry where I had a pipe and
             grabbed this pipe and went down to the shop.

             When I got down to the shop, I waited around the corner until
             Officer Johnson came out of the office. And when I seen him
             come out of the office, I waited until he got in the back of the
             shop. I came as fast as I could without making any noise, and I
             started hitting him in the head with my pipe until he went down
             and he wasn’t moving any longer.

Later, when specifically asked about his intent in hitting Johnson with the pipe,

Berget replied: “To end his life.” The attack fractured Johnson’s skull in at least

three places. Defense-type injuries were present on Johnson’s hands and arms.

[¶5.]        After Berget beat Johnson with the pipe, he and Robert wrapped his

head in plastic wrap. Robert then donned Johnson’s uniform and Berget climbed

into a box placed on a cart. Robert pushed the cart out of the Pheasantland

Industries building toward the west gate of the penitentiary. At the gate,

correctional officer Jodi Hall noticed that Robert did not swipe an identification

badge. She confronted Robert regarding the whereabouts of his badge. When

Robert’s explanation did not satisfy her, she asked him to identify himself. He

responded that he was “Freeburg.” Still not satisfied, she contacted Corporal Matt

Freeburg, a correctional officer also on duty at the gate. Freeburg instructed Hall to

call the officer in charge. Presumably realizing that their plot had been discovered,

Berget jumped from the box, and he and Robert began assaulting Freeburg. When


                                          -2-
#26318

Hall observed Berget and Robert assaulting Freeburg, she called a “Code Red –

Code Three.” Quickly surrounded by responding correctional officers, Berget and

Robert surrendered.

[¶6.]         Recognizing that Robert was wearing a correctional officer’s uniform,

penitentiary staff searched the premises. They found Johnson in the Pheasantland

Industries building and observed that he had been severely beaten and plastic wrap

had been completely wrapped around his head. The officers that found him

removed the plastic wrap and began CPR. Lifesaving efforts by the correctional

officers, as well as those by responding medical personnel, proved futile.

[¶7.]         Berget was indicted on charges of first-degree murder, felony murder,

and simple assault on April 26, 2011. On November 17, 2011, against advice of

counsel, Berget entered a plea of guilty to the first-degree murder charge. After

carefully canvassing Berget and his attorney, the circuit court found that the plea

was entered voluntarily, intelligently, and knowingly. Based on the submission to

the circuit court of a psychiatric evaluation, as well as counsel’s opinion as to

Berget’s competency, the circuit court determined Berget competent to proceed. 2




2.      In State v. Robert, this Court inquired into the competency of the defendant
        sua sponte. 2012 S.D. 60, ¶ 14, 820 N.W.2d 136, 141-42. The distinction
        between the present situation and that presented in Robert is that, in Robert,
        the circuit court was not given an opportunity to review a psychiatric
        evaluation performed on Robert for the purpose of determining his
        competency. Here, Berget allowed the circuit court to review the evaluation.
        The circuit court’s review of the evaluation did not raise any concerns
        regarding Berget’s competency. Because the circuit court reviewed the
        evaluation, and all parties agree that Berget’s competency is not an issue,
        this Court finds no reason to visit the issue of Berget’s competency.

                                           -3-
#26318

[¶8.]        The circuit court then advised Berget of his right to have a jury

empaneled in order to determine his sentence. Berget waived this right, electing to

proceed with the court’s determination of sentence. Even after being advised and

reminded that the court had previously sentenced Eric Robert to death, Berget

chose to proceed with the same judge determining the sentence.

[¶9.]        Pursuant to SDCL 23A-27A-2 and 23A-27A-6, a pre-sentence hearing

was conducted on January 30, 2012 through February 2, 2012. After all evidence

had been received, the court issued its ruling on February 6, 2012. The circuit court

found the existence of two of the statutory aggravating circumstances enumerated

in SDCL 23A-27A-1, recited its consideration of the mitigating evidence and non-

statutory aggravating factors presented at the pre-sentence hearing, and sentenced

Berget to death. Berget timely filed a notice of appeal.

[¶10.]       Berget raises several issues on appeal. In addition, this Court is

statutorily required to make certain determinations each time a sentence of death is

imposed. See SDCL 23A-27A-12. We will first make the determinations required

by SDCL 23A-27A-12, and then turn our attention to those issues raised by Berget.

                            ANALYSIS AND DECISION

[¶11.]       When a sentence of death is imposed, SDCL 23A-27A-12 requires that

this Court make three determinations. This section provides:

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

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



                                         -4-
#26318

               (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.

[¶12.]         Issue 1:      Whether the sentence of death was imposed under
                             the influence of passion, prejudice, or any other
                             arbitrary factor.

[¶13.]         The circuit court assured that it would provide, in writing, all factors

weighing into its consideration of the sentence. The court drafted a pre-sentence

verdict fulfilling that assurance. A review of the pre-sentence verdict reveals that

the circuit court, in forming its sentence, properly considered both the offense and

the characteristics of Berget. Importantly, when discussing non-statutory

aggravating factors, the court focused its attention on two issues: the nature of the

offense and Berget’s history. These are appropriate considerations in determining

whether to impose the death penalty. SDCL 23A-27A-2. The record does not reflect

that the sentence of death was imposed under passion, prejudice, or any other

arbitrary factors. 3

[¶14.]         Issue 2:      Whether the evidence supports the judge’s finding
                             of aggravating circumstances as enumerated in
                             SDCL 23A-27A-1.

[¶15.]         The circuit court found the existence of the aggravating circumstances

from SDCL 23A-27A-1(7) and (8). The State argues that the evidence supports a


3.       Berget insists the victim-impact evidence presented in this case improperly
         influenced the circuit court. For a more complete analysis of this issue, see
         infra ¶¶ 78-84.

                                            -5-
#26318

finding of additional statutory aggravating circumstances. However, our task in

this statutorily-mandated sentence review is to determine whether the evidence

supports the judge’s finding of a statutory aggravating circumstance. See SDCL

23A-27A-12. Therefore, we limit our review to those aggravating circumstances

found by the circuit court.

[¶16.]       Aggravating circumstance seven (SDCL 23A-27A-1(7)) requires a

finding that: “The offense was committed against a law enforcement officer,

employee of a corrections institution, or firefighter while engaged in the

performance of such person’s official duties[.]” At the pre-sentence hearing, Douglas

Weber, Chief Warden for the State of South Dakota, testified that Ronald Johnson

was an employee of the South Dakota State Penitentiary and was on duty as a

correctional officer the morning of April 12, 2011. The evidence supports the judge’s

finding of the aggravating circumstance contained in SDCL 23A-27A-12(7). Berget

does not dispute this.

[¶17.]       Aggravating circumstance eight (SDCL 23A-27A-1(8)) requires a

finding that: “The offense was committed by a person in, or who has escaped from,

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

Warden Weber also testified, and it is not disputed, that Berget was lawfully

confined to the penitentiary on April 12, 2011. The evidence supports the finding of

this statutory aggravating circumstance beyond a reasonable doubt as well.




                                          -6-
#26318

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

[¶19.]       The final mandated inquiry—the proportionality of Berget’s sentence—

was also included by Berget as an issue on direct appeal, but will be addressed here.

He argues that the sentence of death is both externally and internally

disproportionate to his crime.

[¶20.]       We are required to determine whether Berget’s sentence is

disproportionate to the sentence imposed in “similar cases.” “With regard to the

sentence, the Supreme Court shall determine: . . . (3) Whether the sentence of death

is excessive or disproportionate to the penalty imposed in similar cases, considering

both the crime and the defendant.” SDCL 23A-27A-12. Those cases considered

similar for purposes of this review are well-settled.

             This Court’s previous decisions have acknowledged that our
             analysis of similar cases under SDCL 23A-27A-12(3) compares
             cases involving a capital sentencing proceeding, whether life
             imprisonment or a death sentence was imposed. “Because the
             aim of proportionality review is to ascertain what other capital
             sentencing authorities have done with similar capital murder
             offenses, the only cases that could be deemed similar are those
             in which imposition of the death penalty was properly before the
             sentencing authority for determination.”

State v. Piper, 2006 S.D. 1, ¶ 37, 709 N.W.2d 783, 800-01 (quoting State v. Rhines,

1996 S.D. 55, ¶ 185, 548 N.W.2d 415, 455-56). This Court recently identified those

cases falling within this “universe.” State v. Robert, 2012 S.D. 60, ¶ 29, 820 N.W.2d

136, 145. As we did in Robert, we take judicial notice of the summaries of the

“universe” of cases set forth in our previous proportionality decisions. We also



                                          -7-
#26318

include the Robert case, and take judicial notice of the circumstances therein as set

forth in our opinion. See id.

[¶21.]       For purposes of comparative proportionality review, “a death sentence

is comparatively excessive if other defendants with similar characteristics generally

receive sentences other than death for committing factually similar offenses in the

same jurisdiction.” Rhines, 1996 S.D. 55, ¶ 205, 548 N.W.2d at 457 (quoting State v.

Bey, 645 A.2d 685, 689 (N.J. 1994)).

[¶22.]       Berget argues that because the circuit court found only two statutory

aggravating circumstances, his death penalty is disproportionate to those cases in

which several aggravators were established. He points specifically to Rhines, where

three aggravators were found, and Piper, where there were five. As pointed out by

the State, in each of the cases included in the proportionality “universe” wherein

this Court has affirmed the death sentence, multiple aggravators were present.

Recently, this includes Eric Robert, where the circuit court found the presence of

the same two aggravators found here, and this Court determined that the sentence

was not disproportionate or excessive. Robert, 2012 S.D. 60, ¶¶ 23-26, 40, 820

N.W.2d at 144-45, 148. The circuit court found the presence of two aggravators in

determining Berget eligible for the death penalty. The fact that more than two

aggravators were found in other death penalty cases does not, in itself, render

Berget’s sentence excessive or disproportionate to those cases—comparative

proportionality does not turn on simple arithmetic.

[¶23.]       Berget also argues that, unlike other cases in the “universe,” he

showed genuine remorse. His contention that he showed remorse may not stand up


                                         -8-
#26318

to careful reading of his allegedly remorseful statement. 4 Even if he did express

remorse, such an expression does not preclude imposition of the death penalty. For

example, this Court found that the death sentence of Piper was neither

disproportionate nor excessive, even after Piper apologized to his victim’s family in

open court. Piper, 2006 S.D. 1, ¶¶ 32, 43, 709 N.W.2d at 800, 802.

[¶24.]         Berget compares his case to State v. Adams. Therein, the jury found

the existence of aggravated battery to be an aggravating circumstance but did not

impose the death penalty. Rhines, 1996 S.D. 55, ¶ 188, 548 N.W.2d at 456. The

mitigating circumstances present in Adams included the use of alcohol immediately

prior to the crime. Id. There has been no claim made that Berget was under the

influence of any substance at the time of the murder of Johnson.

[¶25.]         Berget argues that the facts of Adams, Swallow, Waff, Hoadley, and

Wright were all more egregious than the present facts. See id. ¶¶ 188, 200, 204

(discussing Adams, Swallow, and Waff); Robert, 2012 S.D. 60, ¶¶ 31, 39, 820

N.W.2d at 146-48 (discussing Wright and Hoadley). Even assuming that to be true,

a proportionality review requires consideration of both the crime and the criminal.

“Proportionality review focuses not only on the crime, but also on the defendant.”

Piper, 2006 S.D. 1, ¶ 96, 709 N.W.2d at 818. At the time he was sentenced, Berget

had previously been convicted of attempted murder and kidnapping. The

kidnapping charge included forcing the young woman he had abducted to engage in

sexual intercourse with him while he eluded police at speeds approaching 100 miles

per hour. Further, the State presented evidence of multiple escape attempts


4.       For a more thorough analysis of this issue, see infra ¶ 51.

                                            -9-
#26318

throughout Berget’s lengthy periods of incarceration. None of the cases cited by

Berget involves similar criminal histories. Considering both the crime and the

defendant, Berget’s death sentence is not disproportionate to similar cases.

[¶26.]       Berget also asserts that his sentence is internally disproportionate; i.e.,

disproportionate to the sentence received by his co-defendant, Robert. At the

change of plea hearing, Berget acknowledged his role in planning the escape

attempt, physically striking Johnson with the pipe, and intending for his blows to

kill Johnson. (Robert also acknowledged responsibility for killing Johnson.)

Further, Berget and Robert had both been convicted of prior violent crimes,

resulting in extensive prison sentences.

[¶27.]       Berget does not challenge the similarity between the facts of the

offense for which he and Robert were sentenced to death, but contrasts his

background and characteristics with those presented in Robert’s case. Berget

presented mitigating evidence focusing on the tragedy of his childhood. The

sentencing court was presented with no such mitigating evidence in sentencing

Robert. Berget claims that this disparity between the individuals, himself and

Robert, renders his death sentence disproportionate to Robert’s.

[¶28.]       Berget compares this matter to the differences between the sentences

received in Hoadley and Piper. In Piper, this Court considered whether Piper’s

death sentence was disproportionate to the sentence of life without parole received

by co-defendant Hoadley. Id. ¶¶ 69-96. In comparing the sentences received by

Hoadley and Piper, Berget focuses on the individuals. Berget points out that




                                           -10-
#26318

Hoadley had a miserable childhood, similar to his own. See id. ¶ 93. He further

points out that Piper was raised in a loving family, as was Robert. See id.

[¶29.]        In addressing the internal proportionality of sentences between co-

defendants Piper and Hoadley, this Court considered the relative backgrounds of

the defendants. Id. This Court also focused on their relative degree of culpability.

              If Hoadley had been absent that fateful day, there is nothing in
              the record to indicate that the torture/murder of Poage would
              not have taken place anyway. Piper and Page jointly planned
              and initiated it. On the other hand, if Piper had not been
              present that day, there is no evidence to indicate that Hoadley
              would have planned and executed the murder.

Id. ¶ 95. Berget testified to planning the attack and being the physical aggressor.

The pipe used as a weapon contained Johnson’s blood and Berget’s DNA. Robert

also confessed to the crime, and to his intent to kill Johnson. Robert, 2012 S.D. 60,

¶ 38, 820 N.W.2d at 147. In contrast to the disparate relative culpability of Hoadley

and Piper, there is no way to distinguish the relative culpability between Berget

and Robert.

[¶30.]        The comparison between sentences received is much more similar to a

comparison of the sentences received by Piper and Page than to those received by

Piper and Hoadley. The most significant and readily-apparent distinction between

Berget and Robert is the quality of their upbringing. Berget suffered physical abuse

at the hands of his alcoholic father. He was imprisoned in the penitentiary for the

first time at age 15. Robert, on the other hand, had a college degree, was loved by

his mother, and had accumulated substantial wealth through hard work and

saving. Id. ¶ 34.



                                         -11-
#26318

[¶31.]       Piper and Page also pleaded guilty to the same murder. Piper

presented substantial evidence in mitigation relating to the quality of his

upbringing, including his involvement in Boy Scouts. Piper, 2006 S.D. 1, ¶ 32, 709

N.W.2d at 800. Upon reviewing this evidence, the sentencing court noted that “no

doubt that at one time [he was] a good kid and a good scout.” Id. Page, on the other

hand, presented mitigating evidence regarding his terrible childhood. See State v.

Page, 2006 S.D. 2, ¶ 51, 709 N.W.2d 739, 759. Regarding this evidence, the

sentencing court noted: “Your early years must have been a living hell. Most people

treat their pets better than your parents treated their kids.” Id. The death

sentences of both Piper and Page withstood proportionality review by this Court.

See id. ¶ 65; Piper, 2006 S.D. 1, ¶ 96, 709 N.W.2d at 818. Similarly, the contrasting

backgrounds of Berget and Robert do not render their death sentences

disproportionate.

[¶32.]       We now turn our attention to those issues raised by Berget.

[¶33.]       Issue 4:     Whether Berget knowingly and intelligently waived
                          his right to a sentencing jury.

[¶34.]       Berget argues that because he was advised at the time of his change of

plea that he would have the right to confront any witnesses the State called in the

pre-sentence hearing, and because evidence was admitted at that hearing over his

hearsay objections, his waiver of a jury’s determination of the appropriate sentence

was not knowing and intelligent.

[¶35.]       Other than the testimony of Dr. Bean, which is addressed below,

Berget’s counsel was aware of the witnesses the State would produce and was

aware of the contents of the letters containing victim-impact evidence. Berget made

                                         -12-
#26318

no attempt to withdraw his waiver of a jury’s determination of sentence, even after

the circuit court made its evidentiary determinations. Furthermore, Berget does

not argue that his right of confrontation would somehow be changed in front of a

jury rather than in front of the judge. If Berget had the right of confrontation at

sentencing, he would have had it before either a jury or a judge.

[¶36.]         The circuit court’s evidentiary rulings of which Berget complains

hinged on application of the right of confrontation at the sentence-selection phase of

these proceedings. They do not appear to turn on whether the evidence was

presented before a judge or a jury. Berget has not established that he relied on any

allegedly improper advisement in waiving his right to a sentencing jury. 5

Therefore, the propriety of the waiver is not implicated by the circuit court’s

allegedly improper advisement.

[¶37.]         Issue 5:     Whether the death sentence was improperly based
                            on extra-record evidence.

[¶38.]         Berget argues that the death sentence was improperly based on extra-

record evidence. He states that this reliance on extra-record evidence deprived him

of his constitutional right to confront and cross-examine his accusers. Specifically,

Berget argues that the circuit court erroneously (1) used the report of Dr. Bean, a

psychiatrist who examined Berget, as evidence against him 6; (2) relied on Berget’s



5.       It is important to note that Berget, on appeal, makes no attempt to challenge
         the validity of his guilty plea based on the allegedly improper advisement.

6.       Because of our determination of the use of the Dr. Bean report under the
         Fifth Amendment analysis, we decline to address whether use of the report
         was error based solely on its classification as “extra-record” evidence. See
         infra ¶¶ 91-118.

                                           -13-
#26318

statements from the change of plea hearing as a source of facts of the offense; and

(3) made reference to a second accomplice, Nordman, who did not appear in the

record. Berget argues that these errors violated his constitutional rights. This

Court reviews alleged constitutional violations de novo. Piper, 2006 S.D. 1, ¶ 18,

709 N.W.2d at 795 (citing State v. Martin, 2003 S.D. 153, ¶ 13, 674 N.W.2d 291,

296).

[¶39.]       Berget faults the circuit court for relying on Berget’s comments from

the change of plea hearing where he provided a factual basis to support his guilty

plea. A factual basis is required before a circuit court can enter a judgment on a

guilty plea. SDCL 23A-7-2. This Court requires the factual basis to “appear clearly

on the record.” State v. Schulz, 409 N.W.2d 655, 658 (S.D. 1987) (citing McCarthy v.

United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969)). At the change

of plea hearing, Berget was placed under oath and, in open court, provided a factual

basis to support his guilty plea.

[¶40.]       In pronouncing sentence, the circuit court quoted from Berget’s own

statements. Berget argues that the factual basis from the change of plea hearing

was not properly admitted in the sentencing hearing, and thus, this evidence was

unavailable at the sentencing hearing.

[¶41.]       The facts of the crime are obviously critical to the sentencing phase of

a capital penalty proceeding. Of the ten aggravating circumstances enumerated in

SDCL 23A-27A-1, nine hinge on some aspect of the act for which the defendant was

convicted. In a sentencing hearing without a jury, it is the judge’s role to determine

the existence of an aggravating factor. SDCL 23A-27A-6. Certainly, the


                                         -14-
#26318

defendant’s in-court statements concerning the offense are relevant. Berget argues

that had his comments from the change of plea hearing been offered by the State,

he would have made a Fifth Amendment objection. But Berget clearly waived his

right against self-incrimination at the change of plea hearing before making his

statement. After Berget waived his Fifth Amendment privilege and made his

statement, that statement became admissible against him in further proceedings,

including at sentencing. 7 “At least once the plea has been accepted, statements or

admissions made during the preceding plea colloquy are later admissible against

the defendant, as is the plea itself.” Mitchell v. United States, 526 U.S. 314, 324,

119 S. Ct. 1307, 1313, 143 L. Ed. 2d 424 (1999). 8 Berget takes the position,

however, that even if the statement was admissible, it was not admitted into




7.    At the change of plea hearing, before Berget entered his guilty plea, the
      circuit court advised Berget:

             You were also advised that you have a right against self-
             incrimination, meaning that you don’t have to testify against
             yourself and don’t have to put on any evidence whatsoever; but
             if you enter a guilty plea, you’d be waiving that right against
             self-incrimination. Neither the Court nor the State can ask you
             questions about the events that took place regarding Count I,
             and anything you say will be used as to the factual basis of your
             guilty plea, as well as could be used at sentencing or potentially
             otherwise.

      Berget acknowledged his understanding.

8.    Mitchell holds that such a statement does not necessarily waive the privilege
      against self-incrimination at sentencing. Mitchell, 526 U.S. 314, 324, 119 S.
      Ct. 1307, 1313,143 L. Ed. 2d 424 (1999). Here, however, Berget was placed
      under oath and specifically told that any statement he made could be used at
      sentencing. See supra note 7.

                                         -15-
#26318

evidence at the pre-sentence hearing, and therefore, was off-limits for use by the

circuit court in determining a sentence.

[¶42.]       Applying the dictionary definition of “record,” Berget’s statements from

his change of plea hearing were part of the record in this case. “Usually ‘record’

refers to the official report of the proceedings in any case, and it has three parts: all

the filed papers in the case; the verbatim transcript of hearings, conferences and

testimony; and the tangible exhibits that the parties put in evidence.” Bryan A.

Garner, A Dictionary of Modern Legal Usage 741 (2d ed. 1995). The statement

utilized by the circuit court was verbatim from the transcript of Berget’s change of

plea hearing. Thus, Berget’s statements at the change of plea hearing were part of

the record, not extra-record evidence as argued by Berget.

[¶43.]       In his reply brief, Berget argues that he had no idea that his

statements made at the change of plea hearing could be used against him in later

proceedings. Otherwise, Berget argues, he would have required that the factual

basis be established from other sources. See State v. Thin Elk, 2005 S.D. 106, ¶ 22,

705 N.W.2d 613, 619. The statement by Berget described the crime, was made in

open court after he was sworn to tell the truth, and was made after a knowing and

intelligent waiver of the privilege against self-incrimination. It is reasonable to

conclude that the statement’s use and admissibility against Berget would occur in

future court proceedings.

[¶44.]       Berget further argues that the circuit court considered extra-record

evidence because the pre-sentence verdict contains a passing reference made to the

third accomplice in this matter—Nordman. As the State points out, the reference


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#26318

was made as a sort of disclaimer meant to insulate any of the court’s comments

regarding the facts of the crime from consideration in Nordman’s then-pending

criminal prosecution. Berget fails to establish how this isolated comment reveals

consideration of extra-record information in the circuit court’s determination of his

sentence.

[¶45.]       Neither Berget’s statements from the change of plea hearing nor the

knowledge of the existence of accomplice Nordman were improperly utilized by the

circuit court in determining Berget’s sentence. A de novo review of the errors urged

by Berget reveals no constitutional infirmity regarding the circuit court’s use of

Berget’s statement from the change of plea hearing, or the reference to Nordman.

[¶46.]       Issue 6:     Whether Berget was deprived of an individualized
                          sentencing determination.

[¶47.]       Berget argues that the sentencing court, which had previously imposed

the death penalty on Robert, was unable to separate the facts of Berget’s case from

Robert’s, depriving Berget of an individualized sentencing determination. For

support, Berget points to the similarities between the pre-sentence hearing verdicts

entered in both Berget’s and Robert’s cases. He argues that the similarities

illustrate the sentencing court’s inability to compartmentalize the facts presented in

his case from those presented in Robert’s. In support, Berget relies on Lockett v.

Ohio for the proposition that “an individualized decision is essential in capital

cases.” See 438 U.S. 586, 605, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973 (1978).

[¶48.]       The issue in Lockett was the constitutionality of a death penalty

scheme that, upon finding a defendant guilty with at least one of seven specified

aggravating factors, required imposition of the death penalty unless the sentencing

                                         -17-
#26318

judge found one of three enumerated mitigating circumstances by a preponderance

of the evidence. Id. at 607, 98 S. Ct. at 2966. “[U]nder the Ohio court’s construction

of the statute, only the three factors specified in the statute can be considered in

mitigation of the defendant’s sentence.” Id. at 608, 98 S. Ct. at 2966. The Supreme

Court rejected this approach, holding that the Eighth and Fourteenth Amendments

require the sentencing authority to evaluate the individual before imposing the

death penalty. “The limited range of mitigating circumstances which may be

considered by the sentencer under the Ohio statute is incompatible with the Eighth

and Fourteenth Amendments. To meet constitutional requirements, a death

penalty statute must not preclude consideration of relevant mitigating factors.” Id.

at 608, 98 S. Ct. at 2967.

[¶49.]       This Court has recognized this requirement. “In determining whether

an individual eligible for the death penalty should in fact receive that sentence, the

law demands that the jury make an individualized determination on the basis of the

character of the individual and the circumstances of the crime.” Rhines, 1996 S.D.

55, ¶ 80, 548 N.W.2d at 437 (quoting Tuilaepa v. California, 512 U.S. 967, 972, 114

S. Ct. 2630, 2635, 129 L. Ed. 2d 750, 760 (1994)). This Court reiterated this

requirement in Page. 2006 S.D. 2, ¶ 49, 709 N.W.2d at 757 (citing Lockett, 438 U.S.

586, 98 S. Ct. 2954). Nothing in Lockett, Page, or Rhines precludes the same

sentencing authority from conducting the individualized sentencing determinations

of two defendants convicted of the same crime. “The requirement of individualized

sentencing in capital cases is satisfied by allowing the [sentencing authority] to

consider all relevant mitigating evidence.” Rhines, 1996 S.D. 55, ¶ 80, 548 N.W.2d


                                          -18-
#26318

at 437 (quoting Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S. Ct. 1078, 1083,

108 L. Ed. 2d 255, 264 (1990)).

[¶50.]       Berget points specifically to references to Nordman and blood-splatter

evidence in the pre-sentence verdict as proof that the circuit court did not sequester

Robert’s facts from his own. However, the references made in the pre-sentence

verdict to blood-splatter evidence are adequately supported in Berget’s record. The

passing reference made to Nordman is adequately addressed above.

[¶51.]       Berget also claims the pre-sentence verdict ignores a statement of

remorse he made at the sentencing hearing. In so doing, Berget implies that the

sentencing court confuses his case with Robert’s, where the court found that Robert

demonstrated no remorse. At the sentencing hearing, Berget said: “I destroyed a

family. I took away a father, a husband, a grandpa.” This demonstrates

acknowledgement of the consequences of his actions, not remorse. No remorseful

word or phrase is present or can be logically inferred from this passage. There is no

indication that the circuit court confused Berget’s lack of remorse with Robert’s.

[¶52.]       Robert and Berget jointly murdered Johnson during their joint escape

attempt. The facts recited by the sentencing court in both pre-sentence verdicts are

similar because, in fact, they are, at a minimum, similar facts. The circuit court

chose to use similar language in certain places when characterizing similar or

identical facts rather than engage in a time-consuming exercise in semantics

resulting in divergent language between the two verdicts. Rather than a short-cut,

illustrating confusion between the defendants, this is a proper and expedient use of




                                         -19-
#26318

judicial resources. It does not equate to a deprivation of Berget’s right to an

individualized sentencing determination.

[¶53.]       This Court has previously analyzed whether the same circuit court can

engage in an individualized sentencing determination after imposing the death

penalty on a co-defendant. In Page, this Court addressed: “Whether the circuit

judge should have recused himself from sentencing Page after it imposed the death

penalty on co-defendant Piper.” 2006 S.D. 2, ¶ 12, 709 N.W.2d at 749. Like Page,

Berget made no motion to recuse the sentencing judge prior to sentencing.

             The decision to preside over a case lies within the sound
             discretion of the trial judge. [State v.] Hoadley, 2002 S.D. 109, ¶
             32, 651 N.W.2d [249,] 257 (quoting [State v.] Goodroad, 1997
             S.D. 46, ¶ 25, 563 N.W.2d [126,] 132). As we have consistently
             stated, this Court presumes a judge was impartial absent a
             specific and substantial showing to the contrary. Id. ¶ 32 (citing
             United States v. Walker, 920 F.2d 513, 517 (8th Cir. 1990)
             (citation omitted)).
             ...

             Similarly, we do not believe Page has presented any evidence to
             constitute a legitimate basis on which to call into question the
             circuit judge’s impartiality. As grounds for disqualification,
             Page contends the circuit judge exhibited empathy and/or
             sympathy for the victim and did not sufficiently consider
             mitigation evidence. These arguments, however, do not
             establish a deep-seated antagonism against Page by the circuit
             judge or suggest Page was prejudiced from an extrajudicial
             source. Absent such a showing that a fair judgment was
             impossible, it was not error for the circuit judge to sentence Page
             after sentencing his co-defendant Piper, and, therefore, Page has
             failed to show plain error.

Id. ¶¶ 16-17, 709 N.W.2d at 749-51.

[¶54.]       As in Page, Berget has not “presented any evidence to constitute a

legitimate basis on which to call into question the circuit judge’s impartiality. . . .

Absent such a showing that a fair judgment was impossible, it was not error for the

                                           -20-
#26318

circuit judge to sentence [Berget] after sentencing his co-defendant [Robert].” See

id. ¶ 17. The similarities between Berget’s pre-sentence verdict and that of Robert

do not establish that Berget was deprived of an individualized sentencing

determination.

[¶55.]       Issue 7:      Whether the rules of evidence and the right of
                           confrontation apply at a capital punishment
                           sentencing hearing and were violated by the circuit
                           court.

[¶56.]       Berget next argues that the rules of evidence and the right of

confrontation apply at pre-sentence hearings conducted pursuant to SDCL ch. 23A-

27A, and that the circuit court’s decision to allow hearsay evidence violated his

constitutional right of confrontation. In order to make this claim, Berget first

attempts to distinguish a capital sentencing proceeding from the provisions of

SDCL 19-9-14 (Rule 1101), which exempts the rules of evidence from certain

situations, including sentencing proceedings. This section provides in relevant part:

             Except as otherwise provided in this section, chapters 19-9 to
             19-18, inclusive, apply to all actions and proceedings in the
             courts of this state. Those chapters other than those with
             respect to privileges do not apply in the following situations: . . .
             (4) Sentencing, or granting or revoking probation.

Id.

[¶57.]       Berget attempts to distinguish a capital punishment pre-sentence

hearing from a typical criminal sentencing situation by virtue of the special

characteristics of such proceeding. Berget points to other jurisdictions with rules

expressly providing that the rules of evidence do not apply in capital punishment

proceedings. Because South Dakota contains no such provision, Berget argues, the

rules should apply.

                                          -21-
#26318

[¶58.]       Berget provides authority from other jurisdictions supporting his

position that the rules of evidence apply at capital sentencing hearings. The weight

of authority, however, is to the contrary. “Most death-penalty states follow the

federal practice conducting capital sentencing hearings that are not subject to the

same state rules of evidence that apply at the guilt phase.” John G. Douglass,

Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L.

Rev. 1967, 1981 (2005).

[¶59.]       Berget complains that the circuit court violated the rules of evidence

and his right to confrontation regarding evidence concerning the circumstances

surrounding his criminal record. He makes this an issue of constitutional

magnitude by focusing on the right of confrontation. Specifically, Berget argues

that the circuit court improperly admitted evidence of remote prior conduct, as well

as the facts underlying his 2003 attempted murder conviction. This evidence is not

relevant to any of the statutory aggravating circumstances found by the circuit

court; nor does he make an argument that the presentation of this evidence

improperly influenced the circuit court regarding its finding of the statutory

aggravating circumstances.

[¶60.]       There are two separate inquiries to be made after a pre-sentence

hearing is conducted pursuant to SDCL ch. 23A-27—a defendant’s eligibility for the

death penalty and, assuming the defendant is so eligible, selection of the sentence—

either life or death. The first determination hinges upon proof beyond a reasonable

doubt of at least one of the aggravating circumstances contained in SDCL 23A-27A-

1. SDCL 23A-27A-3, -4, -6. Should at least one aggravating circumstance be found,


                                         -22-
#26318

the defendant is eligible to receive the death penalty. The sentencer must then

select between a sentence of life without parole and a sentence of death. The

United States Supreme Court has recognized the distinct inquiries in capital

sentencing. “Our capital punishment cases under the Eighth Amendment address

two different aspects of the capital decisionmaking process: the eligibility decision

and the selection decision.” Tuilaepa, 512 U.S. at 971, 114 S. Ct. at 2634.

[¶61.]       It is to the selection inquiry that mitigating evidence and evidence of

non-statutory aggravating factors are relevant. Evidence regarding Berget’s

criminal history, his characteristics, and circumstances of his behavior, which could

be gleaned from the details of his criminal history, are non-statutory aggravating

factors relevant to the selection inquiry. See SDCL 23A-27A-2. This Court has

recognized the sentencing authority’s discretion regarding the sentence-selection

decision. “Additionally, we acknowledge that once aggravating circumstances have

been proven beyond a reasonable doubt, the lower court has broad discretion in

determining whether to sentence a particular defendant to death.” Piper, 2006 S.D.

1, ¶ 28, 709 N.W.2d at 798 (citing Rhines, 1996 S.D. 55, ¶ 174, 548 N.W.2d at 454).

Because the evidence about which Berget complains is relevant only to the selection

inquiry, not the death eligibility inquiry, we restrict our analysis to whether the

circuit court erred in admitting evidence relevant to sentence-selection.

[¶62.]       We are not the first court to grapple with this issue. Because this is an

issue implicating the Sixth Amendment to the United States Constitution, other

courts’ analyses of the same issue in the Sixth Amendment context are relevant.




                                         -23-
#26318

Applying the Federal Death Penalty Act, the Fifth Circuit has framed and resolved

the issue in this way:

             Rather, all of the challenged statements were introduced as part
             of the government’s effort to establish [defendant’s] past violent
             conduct and future dangerousness, both of which are
             nonstatutory aggravating factors that were included in the
             government’s notice. The establishment of nonstatutory
             aggravating factors is neither necessary nor sufficient to
             authorize imposition of the death penalty. Nonstatutory
             aggravating factors may be considered by the jury in selecting
             an appropriate sentence once a defendant is found eligible for
             the death penalty, but they are not, and cannot be, used to
             determine that eligibility, as the Supreme Court has explained:
             “Statutory aggravating circumstances play a constitutionally
             necessary function at the stage of legislative definition: they
             circumscribe the class of persons eligible for the death penalty.
             But the Constitution does not require the jury to ignore other
             possible aggravating factors in the process of selecting, from
             among that class, those defendants who will actually be
             sentenced to death.” Zant v. Stephens, 462 U.S. 862, 878, 103 S.
             Ct. 2733, 77 L. Ed. 2d 235 (1983). Because they relate only to
             nonstatutory aggravating factors, the hearsay statements
             challenged by [defendant] are relevant only to the jury’s
             selection of an appropriate punishment from within an
             authorized range and not to the establishment of his eligibility
             for the death penalty. After reviewing the applicable caselaw
             and considering the particular importance of “individualized
             sentencing” in capital cases, we conclude that the Confrontation
             Clause does not operate to bar the admission of testimony
             relevant only to a capital sentencing authority’s selection
             decision.

United States v. Fields, 483 F.3d 313, 325-26 (5th Cir. 2007), cert. denied, 552 U.S.

1144 (2008). 9 While the United States Supreme Court’s confrontation

jurisprudence has not escaped criticism in the capital sentencing context, the Court




9.    The Fifth Circuit recently reaffirmed this holding. United States v. Ebron,
      683 F.3d 105, 155 (5th Cir. 2012).

                                         -24-
#26318

has, for decades, refused to mandate that the right of confrontation applies in the

capital sentencing selection phase of a capital punishment proceeding. 10

[¶63.]         Liberal admission of evidence at the capital punishment selection

stage, unimpeded by the requirement of confrontation, provides the sentencer with

a complete picture of the character of the individual defendant. “What is important

at the selection stage is an individualized determination on the basis of the

character of the individual and the circumstances of the crime.” Zant, 462 U.S. at

879, 103 S. Ct. at 2743-44. Toward this end, it is necessary that the sentencing

authority be given access to all information relevant to this decision. “Capital

sentencing procedures that permit the jury to exercise wide discretion in evaluating

mitigating and aggravating facts are consistent with an individualized sentencing

determination.” Rhines, 1996 S.D. 55, ¶ 80, 548 N.W.2d at 437.

[¶64.]         Liberal admission of information utilized in the capital sentence-

selection phase agrees with our view of the use of evidence in non-capital

sentencing. “Due process does not require that the scope of information reviewed by

the sentencing judge be controlled by the rules of evidence, and consideration of out-



10.            Today, federal appellate courts continue to cite Williams for the
               proposition that the Confrontation Clause does not apply at
               sentencing, whether capital or otherwise. At sentencing,
               prosecutors remain free to rely on hearsay that would be barred
               at trial by the Confrontation Clause. Thus, in capital
               sentencings, courts have allowed summary testimony from
               police and from expert witnesses, noting that such testimony
               satisfies the Constitution so long as the defendant is given an
               opportunity to rebut it.

         Douglass, 105 Colum. L. Rev. at 1980 (citing Williams v. New York, 337 U.S.
         241, 245-46, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949)).

                                          -25-
#26318

of-court information and hearsay evidence is not precluded.” State v. Habbena, 372

N.W.2d 450, 458 (S.D. 1985) (quoting State v. Ellefson, 287 N.W.2d 493, 496 (S.D.

1980) (citing Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337

(1949))). From our review of the applicable authority, we conclude that the right of

confrontation does not operate to bar the admission of evidence relevant only to a

capital sentencing authority’s selection decision. 11 Because Berget does not

challenge the admission of evidence relevant to the statutory aggravating

circumstances found by the circuit court, the circuit court did not violate Berget’s

right of confrontation, nor did it abuse its discretion in admitting the complained-of

evidence.

[¶65.]         This does not mean, however, that the sentence-selection

determination is a free-for-all at which any information can be presented to the

sentencing authority, regardless of its reliability. Due process requires “that a

defendant cannot be sentenced to death on the basis of information undisclosed to a

defendant and contained in a presentence report because, to satisfy due process, a

capital defendant must be given a chance to rebut or explain adverse information

introduced at sentencing.” Fields, 483 F.3d at 328-29 (quoting Gardner v. Florida,

430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977)). Further, “[a] defendant may

not be sentenced on the basis of ‘misinformation of constitutional magnitude.’ . . .

Accordingly, due process requires that some minimal indicia of reliability



11.      This should not be read to address the applicability of the right of
         confrontation during presentation of evidence relevant to the death eligibility
         determination, i.e., evidence relevant to one of the statutorily enumerated
         aggravated circumstances found in SDCL 23A-27A-1.

                                           -26-
#26318

accompany a hearsay statement.” Id. at 337 (internal citations and quotation

marks omitted).

[¶66.]       Berget does not allege that he was not given a chance to rebut or

explain the information admitted at the sentencing hearing about which he

complains. Nor does he challenge the reliability of the information. He offers that

he moved in limine to exclude some of the information of which he now complains,

demonstrating his knowledge that the information would be used and therefore his

opportunity to rebut or explain the information. The transcripts of the sentencing

hearing confirm that Berget had an opportunity to explain, through cross-

examination or otherwise, all of the evidence he argues was improperly admitted.

[¶67.]       Berget specifically challenges admission of several photographs used to

illustrate the circumstances of his 2003 attempted murder conviction. The pictures

depict bushes where Berget laid in wait for his eventual victims to arrive. A law

enforcement officer who testified at the pre-sentence hearing discussed the pictures

explaining the 2003 attempted murder. Berget was afforded an opportunity to

cross-examine the law enforcement officer called to discuss the pictures.

Furthermore, the photographs bore significant indicia of reliability to satisfy

Berget’s due process rights for sentencing purposes. The pictures were not

admitted without any explanation of what they were, where they came from, etc.

Rather, the law enforcement officer provided context and discussion, rendering

them sufficiently reliable to illustrate Berget’s behavior at the time. Additionally,

the victims of the attempted murder and kidnapping testified at the pre-sentence

hearing. They provided additional context and discussion of Berget’s actions during


                                         -27-
#26318

the crimes. They were also subject to cross-examination. Because the evidence of

which Berget complains was relevant only to the sentence-selection inquiry, the

Confrontation Clause does not apply to preclude admissibility. As it bore sufficient

indicia of reliability and he was allowed to rebut or explain it, its introduction did

not violate Berget’s due process rights.

[¶68.]       Issue 8:      Whether admission of evidence regarding Berget’s
                           criminal history went beyond the intended scope of
                           SDCL 23A-27A-2(3).

[¶69.]       Berget next argues that the circuit court erred when it allowed

evidence of remote “prior bad acts” into the sentencing phase. We review

evidentiary issues for an abuse of discretion. State v. Graham, 2012 S.D. 42, ¶ 16,

815 N.W.2d 293, 301. Berget admits the evidence presented relates to previous

criminal convictions, but argues that it was not part of his criminal record. Berget’s

argument focuses on SDCL 23A-27A-2(3). This section provides:

             In all cases in which the death penalty may be imposed and
             which are tried by a jury, upon a return of a verdict of guilty by
             the jury, the court shall resume the trial and conduct a
             presentence hearing before the jury. Such hearing shall be
             conducted to hear additional evidence in mitigation and
             aggravation of punishment. At such hearing the jury shall
             receive all relevant evidence, including:
             ...
             (3)     Any prior criminal or juvenile record of the defendant and
             such information about the defendant’s characteristics, the
             defendant’s financial condition, and the circumstances of the
             defendant’s behavior as may be helpful in imposing sentence[.]

Id.

[¶70.]       Berget argues that mitigating evidence cannot constitutionally be

excluded, but that this does not translate to liberal admissibility of aggravating

evidence in the sentencing phase. He asserts that the individualized sentencing

                                           -28-
#26318

rule of Lockett, requiring the sentencer to consider all mitigating evidence presented

by the defendant, does not relax evidentiary standards for the admission of evidence

in aggravation of punishment. He further argues that the terms “criminal or

juvenile record” and “defendant’s characteristics” should not be interpreted so as to

allow evidence concerning the facts of a defendant’s criminal history.

[¶71.]       Berget argues that the Supreme Court’s individualized sentencing

jurisprudence has been misinterpreted when used to allow liberal introduction of

evidence in aggravation of punishment. However, the Supreme Court has indicated

that the admission of evidence in aggravation, relevant to sentence selection as

opposed to death eligibility, is not constitutionally impermissible.

             Statutory aggravating circumstances play a constitutionally
             necessary function at the stage of legislative definition: they
             circumscribe the class of persons eligible for the death penalty.
             But the Constitution does not require the jury to ignore other
             possible aggravating factors in the process of selecting, from
             among that class, those defendants who will actually be
             sentenced to death.

Zant, 462 U.S. at 878, 103 S. Ct. 2733 at 2744. See also Payne v. Tennessee, 501

U.S. 808, 822, 111 S. Ct. 2597, 2607, 115 L. Ed. 2d 720 (1991) (noting that the

language utilized in a previous capital sentencing decision requiring that a capital

defendant “be treated as a ‘uniquely individual human being’ . . . was not intended

to describe a class of evidence that could not be received, but a class of evidence

which must be received.” (quoting Booth v. Maryland, 482 U.S. 496, 504, 107 S. Ct.

2529, 2534, 96 L. Ed. 2d 440 (1987))). Therefore, contrary to Berget’s position,

Lockett and its progeny require admission of all relevant evidence in mitigation of




                                          -29-
#26318

sentence, but do not prohibit liberal admission of evidence of non-statutory

aggravating factors.

[¶72.]         Berget focuses attention on the timing of legislative changes to South

Dakota’s post-Gregg 12 death penalty scheme. He argues that the legislative

changes demonstrate recognition that it is only evidence in mitigation of sentence

that is to be liberally admitted at a capital sentencing hearing, as distinguished

from evidence of non-statutory aggravating factors. Berget provides a timeline

ostensibly illustrating the sequence sparked by the United States Supreme Court’s

Lockett decision in 1978. He states that at the time Lockett was handed down,

SDCL 23A-27A-2 contained no reference to a defendant’s “record” or

“circumstances.” He argues that the Legislature amended this section in 1979,

presumably in response to Lockett’s admonition that a sentencing authority may

“not be precluded from considering, as a mitigating factor, any aspect of a

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

proffers.” See 438 U.S. at 604, 98 S. Ct. at 2964-65 (Burger, C.J., dissenting).

Therefore, he argues, the terms “record” and “circumstances of the defendant’s

behavior” now found in SDCL 23A-27A-2 should be limited to apply only to evidence

in mitigation of sentence, and should not be interpreted to invite evidence of non-

statutory aggravating factors. The fundamental flaw with Berget’s argument is the

foundation of the timeline.




12.      Gregg v. Georgia, 428 U.S. 153, 203–204, 96 S. Ct. 2909, 2939, 49 L. Ed. 2d
         859 (1976).

                                          -30-
#26318

[¶73.]       The reality is that before the 1979 legislative session, there was no

SDCL 23A-27A-2. This statute, along with South Dakota’s entire post-Gregg death

penalty scheme, was not adopted until 1979. 1979 S.D. Sess. Laws ch. 160, § 5. At

that time, after Lockett had been decided, the terms “record” and “circumstances of

the defendant’s behavior” did not appear in the law. Id. It was not until 1994 that

the statute was changed to include those terms. 1994 S.D. Sess. Laws ch. 178, § 2.

The 1994 amendment also added the language permitting the jury to consider

“testimony regarding the impact of the crime on the victim’s family.” Id. Notably,

the United States Supreme Court’s decision in Payne was handed down in 1991.

501 U.S. 808, 111 S. Ct. 2597, 2605. The Payne decision overruled Booth, 482 U.S.

496, 107 S. Ct. 2529, and permitted victim-impact evidence to be introduced during

the penalty phase of a capital trial. Payne, 501 U.S. at 827, 829, 111 S. Ct. at 2609,

2611. Payne appears to invite a legislative response.

             We thus hold that if the State chooses to permit the admission of
             victim-impact evidence and prosecutorial argument on that
             subject, the Eighth Amendment erects no per se bar. A State
             may legitimately conclude that evidence about the victim and
             about the impact of the murder on the victim’s family is relevant
             to the jury’s decision as to whether or not the death penalty
             should be imposed. There is no reason to treat such evidence
             differently than other relevant evidence is treated.

Id. at 827, 111 S. Ct. at 2609. The 1994 amendments to the death penalty scheme

were entitled, “Jury to be Told of Crimes Effect on Victims’ Families in Death

Penalty Cases.” 1994 S.D. Sess. Laws ch. 178. It seems logical to conclude that the

1994 amendments to the death penalty scheme were in response to Payne, rather

than to Lockett. Therefore, because Payne relaxed the constraints on admissibility

of previously forbidden evidence of at least one category of non-statutory

                                         -31-
#26318

aggravating factors, it would be illogical to frame the current statute in a manner

that relaxes the constraints on admissibility of only mitigating evidence.

[¶74.]       In non-capital sentencing, sentencing courts are to look not only at the

crime but also at the criminal. In order to fashion an appropriate sentence,

sentencing courts in South Dakota are instructed to “acquire a thorough

acquaintance with the character and history of the person before it.” State v. Blair,

2006 S.D. 75, ¶ 27, 721 N.W.2d 55, 63. This allows inquiry into a wide range of

topics relevant to the individual defendant, including the “defendant’s general

moral character, mentality, habits, social environment, tendencies, age, aversion or

inclination to commit crime, life, family, occupation, and previous criminal record.”

State v. Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d 575, 580 (internal quotation marks

and citations omitted). Furthermore, the sentencing court is given wide latitude

regarding the type and source of the information utilized. See SDCL 19-9-14. See

also Blair, 2006 S.D. 75, ¶ 27, 721 N.W.2d at 64 (“When acquiring a thorough

acquaintance of the man before it, the circuit court has wide discretion with respect

to the type of information used as well as its source. . . . This consideration may

include inquiry into ‘uncharged conduct’[.]”). See also Payne, 501 U.S. at 820-21,

111 S. Ct. at 2606 (“Whatever the prevailing sentencing philosophy, the sentencing

authority has always been free to consider a wide range of relevant material. . . . In

the federal system, we observed that ‘a judge may appropriately consider an inquiry

broad in scope, largely unlimited either as to the kind of information he may

consider, or the source from which it may come.’” (internal citations omitted)).




                                         -32-
#26318

[¶75.]       Similarly, in the capital sentencing context, the sentencer’s use of a

wide range of information is appropriate to an individualized sentencing

determination. “Capital sentencing procedures that permit the jury to exercise wide

discretion in evaluating mitigating and aggravating facts are consistent with an

individualized sentencing determination.” Rhines, 1996 S.D. 55, ¶ 80, 548 N.W.2d

at 437-38 (citing Tuilaepa, 512 U.S. at 974, 114 S. Ct. at 2636).

[¶76.]       The information Berget challenges regards the facts of the cases from

his criminal history. A review of the pre-sentence hearing verdict reveals that the

circuit court considered only the facts of the 2003 attempted murder and

kidnapping convictions, not mentioning any facts regarding the rest of Berget’s

criminal history, other than to acknowledge its existence. The facts of the 2003

crime are relevant to the circuit court’s individualized sentencing determination

because they reflect on Berget’s characteristics, his general moral character,

tendencies, and propensity to commit future crimes.

[¶77.]       The Supreme Court has never prohibited admission of information

relevant to non-statutory aggravating factors for purposes of selecting between

capital punishment and life in prison. Zant, 462 U.S. at 878, 103 S. Ct. at 2743.

Additionally, the information was relevant to the circuit court’s general obligation

to acquire a thorough acquaintance with Berget, which is consistent with an

individualized sentencing determination. See Rhines, 1996 S.D. 55, ¶ 80, 544

N.W.2d at 437; Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d at 580. Finally, the

challenged information was relevant to the capital sentencing selection decision




                                         -33-
#26318

based on SDCL 23A-27A-2(3). Therefore, the circuit court did not err in considering

this information.

[¶78.]       Issue 9:      Whether the circuit court allowed improper victim-
                           impact evidence to be admitted at the pre-sentence
                           hearing.

[¶79.]       Berget next argues that the victim-impact evidence admitted at the

sentencing hearing was so prejudicial as to inflame the passions of the circuit court.

This Court reviews the circuit court’s ruling on the admissibility of evidence under

the abuse of discretion standard. Rhines, 1996 S.D. 55, ¶ 133, 548 N.W.2d at 446.

As this Court has recognized, victim-impact evidence is relevant to the sentence-

selection determination.

             The Court began by noting that the impact of a defendant’s
             crime is a relevant sentencing consideration: “The assessment of
             harm caused by the defendant as a result of the crime charged
             has understandably been an important concern of the criminal
             law, both in determining the elements of the offense and in
             determining the appropriate punishment.”

Id. ¶ 131 (quoting Payne, 501 U.S. at 819, 111 S. Ct. at 2605).

[¶80.]       Berget argues that the victim-impact evidence presented at his

sentencing hearing was more prejudicial than probative, and should have been

excluded, at least in part. He compares the victim-impact evidence received in this

case to that found improper in State v. Hess, 23 A.3d 373, 392-94 (N.J. 2011). In a

case that is instructive, but certainly not binding on us, the Hess court recognized

the admissibility of victim-impact evidence generally, and framed the issue as

follows:

             At sentencing, no one questions that a family member can make
             a statement about a homicide victim or present photographs or
             even a video showing the victim as he or she lived at the time

                                         -34-
#26318

              before his or her death. The issue is whether there are any
              limits to the type of video that can be displayed at sentencing.

Id. at 392.

[¶81.]        Berget characterizes the victim-impact evidence in this case as “three

family members reliving the decedent’s life through a slide show of family

photographs.” The type of evidence in Hess was much more inflammatory than that

received in Berget’s sentencing hearing. The victim-impact evidence at issue in

Hess was described as follows:

              The professionally produced seventeen-minute video entitled “A
              Tribute to Officer James Hess” played at sentencing in this case
              includes features that have been specifically disapproved by
              courts in other jurisdictions: childhood photographs and music
              likely to appeal solely to emotion and engender undue prejudice.
              The video displays approximately sixty still photographs and
              four home-video clips of the victim in various activities and
              phases of his life. The video includes photographs of the victim’s
              childhood and his tombstone and a television segment covering
              his funeral. Three poems scroll over the photographs and video
              clips. The video is scored to popular, holiday, country, religious
              and military music.

Id. at 393.

[¶82.]        The Hess court concluded that elements of victim-impact evidence with

no probative value, but with great capacity to unduly arouse or inflame emotions,

should not be permitted. This includes information that “do[es] not project

anything meaningful about the victim’s life as it relate[s] to his family and others at

the time of his death.” Id. at 394. The court indicated, however, that the video

itself did not have the “capacity to alter the outcome of the sentence.” Id.

[¶83.]        Victim-impact evidence has its limits. Introduction of overly

prejudicial victim-impact evidence has the possibility to rise to the level of a


                                          -35-
#26318

constitutional deprivation. Payne, 501 U.S. at 825, 111 S. Ct. at 2608 (“In the event

that evidence is introduced that is so unduly prejudicial that it renders the trial

fundamentally unfair, the Due Process Clause of the Fourteenth Amendment

provides a mechanism for relief.”). The victim-impact evidence presented here,

however, did not cross that line.

[¶84.]         The evidence consisted of pictures of Johnson, introduced and

discussed by his son, daughter, and wife, as well as letters from other family

members, friends, and co-workers. The evidence presented at this sentencing

hearing was appropriately offered to illustrate the consequences of Berget’s actions.

As we stated in Rhines: “To paraphrase Payne, the victim impact [evidence]

‘illustrated quite poignantly some of the harm that [Berget’s] killing had caused;

there is nothing unfair about allowing the [judge] to bear in mind that harm at the

same time as it considers the mitigating evidence introduced by the defendant.’”

See Rhines, 1996 S.D. 55, ¶ 136, 548 N.W.2d at 447 (quoting Payne, 501 U.S. at 826,

111 S. Ct. at 2609). The evidence may have been prejudicial; it showed the human

side of Johnson and translated his loss into human terms. 13 However, the probative

value of the evidence was not outweighed by its prejudicial effect. It was not an

abuse of discretion for the circuit court to admit the evidence.




13.      According to Hess, the pictures of the family witnessing the funeral and
         pictures of the gravesite must be subjected to intense scrutiny because they
         “do not project anything meaningful about the victim’s life as it related to his
         family and others at the time of his death.” 23 A.3d at 393-94. Introduction
         of these pictures did not, however, render the trial fundamentally unfair,
         violating Berget’s right to due process.

                                            -36-
#26318

[¶85.]         Issue 10:    Whether the circuit court failed to make an
                            adequate record on evidentiary questions.

[¶86.]         According to Berget, without citation to the record, the circuit court

relied on the presumption that it made correct determinations of evidentiary

questions rather than ruling on evidentiary questions on the record. Therefore,

Berget argues that there is no way of knowing whether the circuit court considered

improperly-admitted evidence.

[¶87.]         Judges are presumed to correctly apply the law in making their

decisions. As we stated in Page: “But the logic of these cases has no place in the

context of sentencing by a trial judge. Trial judges are presumed to know the law

and to apply it in making their decisions.” 2006 S.D. 2, ¶ 27, 709 N.W.2d at 754

(quoting Walters v. Arizona, 497 U.S. 639, 653, 110 S. Ct. 3047, 3057, 111 L. Ed. 2d

511 (1990)).

[¶88.]         Berget argues that if this Court were to find any exhibit should not

have been admitted or that any testimony should be stricken, we must reverse

because there is no way to know that the circuit court did not rely on the

inappropriate evidence. Leaving aside for the moment the presumption that the

circuit court knew the law and correctly applied it, other than the Dr. Bean report,

we have addressed each of Berget’s alleged evidentiary errors above. Assuming the

evidence Berget challenges was considered by the circuit court, none of it was

improperly considered. All of the evidence about which Berget complains is

relevant to the death selection inquiry and, as discussed above, the sentencer is to

have access to a wide range of information at that stage. Therefore, as to the

evidence, other than the Dr. Bean report, even without knowing whether the circuit

                                           -37-
#26318

court considered the evidence Berget claims was erroneously admitted, this Court

still finds no error. Berget’s argument in this regard is without merit.

[¶89.]       Issue 11:     Whether Berget’s sentence violates evolving
                           standards of decency.

[¶90.]       Berget claims that the United States Supreme Court’s recent cases

demonstrate a shift in the “evolving standards of decency.” According to Berget,

recent United States Supreme Court decisions pave the way for a determination

that this State’s “standard of decency” has evolved to the point where the

punishment of death is no longer morally tolerable. Berget specifically references

Graham v. Florida, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) and Miller v.

Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). In Graham, the Court banned

sentences of life without parole for juveniles who were convicted of a crime other

than homicide. 130 S. Ct. at 2030. The Miller Court banned mandatory life without

parole sentences for juveniles. 132 S. Ct. at 2469 (“We therefore hold that the

Eighth Amendment forbids a sentencing scheme that mandates life in prison

without possibility of parole for juvenile offenders.”). These cases focus on the

interplay between the culpability of juveniles and the propriety of sentencing them

to life without parole for conduct committed during their youth. “By making youth

(and all that accompanies it) irrelevant to imposition of that harshest prison

sentence, such a scheme poses too great a risk of disproportionate punishment.” Id.

at 2469. Berget committed this offense as an adult. While Graham and Miller may

illustrate a shift in the nation’s moral tolerance for sentences of life without parole

for juvenile offenders, we do not read these decisions as evidencing any shift of

tolerance regarding capital punishment of adult offenders.

                                          -38-
#26318

[¶91.]       Issue 12:    Whether the circuit court violated Berget’s right
                          against self-incrimination by considering a portion
                          of a psychiatric report in determining Berget’s
                          sentence.

[¶92.]       During the pendency of these proceedings, Berget’s counsel moved for

and obtained a psychiatric evaluation of Berget. Dr. David Bean conducted the

examination. The circuit court and the State were provided copies of the Dr. Bean

report. The existence of Dr. Bean’s report was disclosed to the State and the circuit

court with the understanding that the document would be kept under seal unless

Dr. Bean was called by Berget as a witness. Berget claims that because the

document was filed under seal, Dr. Bean was never called as a witness, and Berget’s

competency was never placed in issue, the circuit court erred by referring to a

statement he made to Dr. Bean included in the report. Neither the State nor Berget

requested that the circuit court consider the Dr. Bean report in fashioning a

sentence. Berget claims the reference was “a justification for imposing the death

penalty.” The language of the pre-sentence verdict referencing the Dr. Bean report

provides as follows:

             The Court considers Berget’s acceptance of responsibility by his
             guilty plea and his desire to have accepted responsibility early
             on in the proceedings to be evidence of mitigation. Acceptance of
             responsibility early on in a matter typically saves the state the
             time and/or expense of having to prove the elements of the
             offense of which the accused is charged. Early acceptance of
             responsibility typically saves the victim and/or victim’s family
             the emotional suffering of having to re-live the event by
             testifying in court or prolonging the wait for justice to be served.
             The Court does recognize here, however, that Berget’s intent for
             wishing to enter an early guilty plea may have had nothing to do
             with saving the state time and/or money or sparing the victim’s
             family of having to wait for justice, but rather may be solely to
             serve Berget’s own “wish it would be over”. . . . Forensic


                                         -39-
#26318

               Psychiatric Evaluation of Rodney Berget dated December 28,
               2011, page 18.

The court indicates that it chose to view Berget’s early acceptance of responsibility

as a mitigating factor, even though there was information available to the court per

the Dr. Bean report suggesting the possibility that Berget’s motive was not efficient

administration of justice and sparing the family the emotional suffering of a trial.

[¶93.]         Berget argues that the information from the Dr. Bean report was used

by the circuit court to weigh against the mitigating effect of Berget’s early

acceptance of responsibility. In essence, Berget argues that even though the circuit

court indicated it considered his early acceptance as a mitigating factor, the use of

the Dr. Bean report illustrates that in fact the court did not give this evidence

appropriate mitigating weight in selecting between life and death.

[¶94.]         The relevant procedural facts regarding Dr. Bean’s report discernible

from the record are as follows. On December 27, 2011, Berget’s counsel moved for a

psychiatric evaluation to determine Berget’s competency. 14 Shortly thereafter, the

State made a similar motion. At a motions hearing, Berget’s counsel agreed to

produce the report to both the circuit court and the State with the understanding

that the report would be kept under seal unless Berget made his competency an

issue. Counsel provided:

               We have the report from Dr. Bean. We have shared that with
               the State. We intend to share it with the Court, and I have a
               copy for the Court with the understanding—I believe the State
               is agreeing to this—is that it be kept under seal so both the


14.      During oral argument, Berget’s counsel indicated that the request for
         psychiatric evaluation was precipitated by the circuit court’s indication that
         an evaluation would be ordered whether Berget moved for one or not.

                                           -40-
#26318

               Court and State [are] satisfied that competency issues have been
               addressed, and the only way the seal be released is if we would
               in fact call Dr. Bean to testify at the penalty phase starting the
               30th of January, but for now we are submitting it to the Court
               for the Court’s consideration and review. I’ve given a copy to
               [State] also.

No further mention was made of the report until the circuit court included citation

to the report in its pre-sentence verdict.

[¶95.]         It is not until his reply brief that Berget raises a Fifth Amendment

challenge to the use of his statement to Dr. Bean extracted from Dr. Bean’s report. 15

Specifically, Berget argues that the circuit court’s use of the Dr. Bean report

violated his right against self-incrimination as identified by the United States

Supreme Court in Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359

(1981). This Court reviews alleged constitutional violations de novo. Piper, 2006


15.      Berget’s counsel asserts that his first opportunity to raise this issue came
         after the circuit court had utilized the information in its sentencing verdict.
         However, counsel had at least two opportunities to raise this issue prior to
         his reply brief. After the circuit court orally pronounced its sentence, the
         State filed proposed findings and conclusions. State’s proposed conclusion
         #42 mirrored the circuit court’s use of the Dr. Bean report. In his objections,
         filed three weeks after the circuit court issued its initial ruling, Berget’s
         counsel objected to Conclusion # 42 without citing the Fifth Amendment or
         Estelle v. Smith. 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981).
         “Conclusion # 42 is not a legal conclusion, but a factual finding without
         support in the record, and cites to information not admitted into evidence at
         the penalty phase hearing.” Again, in his initial appellant brief, Berget had
         the opportunity to argue that the inclusion of this evidence violated Berget’s
         right against self-incrimination. Berget cited Estelle v. Smith later in his
         initial brief when discussing his view that the death penalty as imposed upon
         Berget violates society’s evolving standards of decency, but did not raise the
         Fifth Amendment issue until he filed his reply brief. This prevented the
         State from being able to address the issue at any level. However, given the
         gravity of the stakes, as well as the constitutional magnitude of the
         argument, we decline to view the argument as forfeited. See SDCL 15-26A-2
         (allowing this Court to suspend the requirements of the rules of appellate
         procedure without motion by either party).

                                             -41-
#26318

S.D. 1, ¶ 18, 709 N.W.2d at 795 (citing Martin, 2003 S.D. 153, ¶ 13, 674 N.W.2d 291

at 296).

[¶96.]         In Estelle, prior to trial, a Texas trial court judge ordered that the

defendant, Smith, who had been indicted on first-degree murder charges, undergo a

psychiatric examination for the purpose of determining competency. 451 U.S. at

456-57, 101 S. Ct. at 1870. The psychiatrist completed the examination and sent a

letter containing his conclusions to the circuit judge. Id. at 457, 101 S. Ct. at 1820.

This letter was also placed in the court file. Id.

[¶97.]         At trial, a jury convicted Smith of murder. Id. In order for the death

penalty to be imposed, the jury needed to find that “there is a probability that the

defendant would commit criminal acts of violence that would constitute a

continuing threat to society.” Id. at 458, 101 S. Ct. at 1870. In order to satisfy this

requirement, the State called the psychiatrist who had conducted the court-ordered

evaluation. Id. at 459, 101 S. Ct. at 1871. Defense counsel was aware that the

court’s file contained the report, but was not made aware that the psychiatrist

would be testifying. Id. Over defendant’s objection, the trial court allowed the

psychiatrist to testify. Id. The psychiatrist testified that Smith was a severe

sociopath whose condition would only get worse, and that given the opportunity,

Smith would commit similar acts again. Id. at 459-60, 101 S. Ct. at 1871. After the

jury determined Smith to be a continuing threat to society, the death penalty was

imposed. Id.

[¶98.]         The federal district court in Texas granted Smith habeas relief, the

Court of Appeals affirmed, and the United States Supreme Court considered the


                                            -42-
#26318

matter. Id. at 460-61, 101 S. Ct. at 1871-72. The Court first determined that the

Fifth Amendment applied to the penalty phase of Smith’s trial. “We can discern no

basis to distinguish between the guilt and penalty phases of respondent’s capital

murder trial so far as the protection of the Fifth Amendment privilege is

concerned.” Id. at 462-63, 101 S. Ct. at 1873. The Court then noted that, because

the psychiatrist’s opinion was based on Smith’s unwarned comments made during

the psychiatric evaluation, the Fifth Amendment was implicated. “The Fifth

Amendment privilege, therefore, is directly involved here because the State used as

evidence against [Smith] the substance of his disclosures during the pretrial

psychiatric examination.” Id. at 464-65, 101 S. Ct. at 1874.

[¶99.]       The Court determined that when the psychiatrist “went beyond simply

reporting to the court on the issue of competence and testified for the prosecution at

the penalty phase on the crucial issue of [Smith’s] future dangerousness, his role

changed and became essentially like that of an agent of the State recounting

unwarned statements made in a postarrest custodial setting.” Id. at 467, 101 S. Ct.

at 1875. The Court held that the psychiatrist’s testimony violated Smith’s Fifth

Amendment right to be free from compelled self-incrimination. “A criminal

defendant, who neither initiates a psychiatric evaluation nor attempts to introduce

any psychiatric evidence, may not be compelled to respond to a psychiatrist if his

statements can be used against him at a capital sentencing proceeding.” Id. at 468,

101 S. Ct. at 1876.

[¶100.]      Berget argues that application of Estelle to the present facts likewise

requires reversal of his sentence. As in Estelle, Berget’s statements made during a


                                         -43-
#26318

psychiatric interview conducted for the purpose of establishing his competency were

arguably used against him during the capital sentencing proceeding. Also like

Estelle, Berget had no notice that such testimony would be used during the

sentencing phase of the proceeding. There are notable distinctions, however. First,

the psychiatric evaluation performed in Estelle was ordered by the trial court sua

sponte. Id. at 456-57, 101 S. Ct. 1870. Here, Berget’s counsel made the initial

motion for the evaluation. In Estelle, the prosecuting attorney called the

psychiatrist to the stand to testify regarding Smith’s future dangerousness. Id. at

458-59, 101 S. Ct. at 1871. In the present matter, neither the State nor Berget were

aware the circuit court would utilize the Dr. Bean report in fashioning a sentence.

Additionally, the jury was required in Estelle to make a determination as to Smith’s

future dangerousness before the death penalty could be imposed. Id. at 458, 101 S.

Ct. at 1870. Here, the Dr. Bean report was used as part of the circuit court’s

sentence-selection determination, wherein the court considered evidence in

mitigation and aggravation of punishment. These distinctions are particularly

relevant because in the opinion itself, the Court notes that the holding is based on

the “distinct circumstances” presented. Id. at 466, 101 S. Ct. at 1875. In applying

Estelle, the Supreme Court has focused on this limitation.

[¶101.]      In Buchanan v. Kentucky, a non-capital murder case, after noting that

the holding in Estelle was based on the “distinct circumstances” of that case, the

Court noted one of the limits of the Estelle holding. 483 U.S. 402, 422-23, 107 S. Ct.

2906, 2917-18, 97 L. Ed. 2d 336 (1987).

             We further noted: ‘A criminal defendant, who neither initiates a
             psychiatric evaluation nor attempts to introduce any psychiatric

                                          -44-
#26318

             evidence, may not be compelled to respond to a psychiatrist if
             his statements can be used against him at a capital sentencing
             proceeding.’ (citation omitted). This statement logically leads to
             another proposition: if a defendant requests such an evaluation
             or presents psychiatric evidence, then, at the very least, the
             prosecution may rebut this presentation with evidence from the
             reports of the examination that the defendant requested. The
             defendant would have no Fifth Amendment privilege against the
             introduction of this psychiatric testimony by the prosecution.

Id. at 422-23, 107 S. Ct. at 2917-18. In Buchanan, the defendant requested the

psychiatric evaluation and placed his mental status into issue in the case. Id. at

423, 107 S. Ct. at 2918. The Court held that introduction of the psychiatrist’s report

setting forth his observations about the mental state of Buchanan for the limited

purpose of rebutting Buchanan’s proffered evidence regarding his mental status did

not violate the Fifth Amendment. Id. at 423-24, 107 S. Ct. at 2918.

[¶102.]      The Court again considered application of Estelle in Penry v. Johnson.

532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001). In Penry, the Court faced

introduction, during the penalty phase of a jury trial, of statements from a

psychiatric report dealing with the issue of a defendant’s future dangerousness. Id.

at 793-95, 121 S. Ct. at 1918-19. This time, the report had been conducted in

connection with a previous criminal prosecution. Id. at 794, 121 S. Ct. at 1919. The

habeas applicant argued that Estelle controlled. Id. The Court disagreed, focusing

on the differences between the circumstances presented and those the Court faced

in Estelle. Id. at 794-95, 121 S. Ct. at 1919. Significantly, the Court noted that “the

defendant in Estelle had not placed his mental condition at issue, . . . whereas Penry

himself made his mental status a central issue in both the [earlier case and the

present case].” Id. at 794, 121 S. Ct. at 1919. Also, the Court noted that in Estelle,


                                         -45-
#26318

the Court had ordered the psychiatric examination sua sponte, whereas Penry’s

then-counsel requested the psychiatric evaluation under consideration. Id. In

affirming denial of habeas relief, the Court held that the Texas court’s decision not

to apply Estelle to Penry’s trial was not “contrary to or an unreasonable application

of our precedent.” Id. at 795, 121 S. Ct. at 1919. In so doing, the Court explicitly

limited the Estelle holding to its facts.

              The differences between this case and Estelle are substantial,
              and our opinion in Estelle suggested that our holding was
              limited to the ‘distinct circumstances’ presented there. It also
              indicated that the Fifth Amendment analysis might be different
              where a defendant ‘intends to introduce psychiatric evidence at
              the penalty phase’. . . . Indeed, we have never extended Estelle’s
              Fifth Amendment holding beyond its particular facts.

Id. at 795, 121 S. Ct. at 1919 (internal citations omitted).

[¶103.]       The Third Circuit Court of Appeals synthesized these holdings as

follows:

              If we lay these decisions out, the following landscape emerges.
              A compelled psychiatric interview implicates Fifth and Sixth
              Amendment rights ([Estelle ]). Before submitting to that
              examination, the defendant must receive Miranda warnings and
              (once the Sixth Amendment attaches) counsel must be notified
              ([Estelle]). The warnings must advise the defendant of the
              “consequences of foregoing” his right to remain silent ([Estelle]).
              The Fifth and Sixth Amendments do not necessarily attach,
              however, when the defendant himself initiates the psychiatric
              examination (Buchanan, Penry). Similarly, the Fifth–but not
              Sixth–Amendment right can be waived when the defendant
              initiates a trial defense of mental incapacity or disturbance,
              even though the defendant had not been given Miranda
              warnings (Buchanan, Powell). But that waiver is not limitless;
              it only allows the prosecution to use the interview to provide
              rebuttal to the psychiatric defense (Buchanan, Powell). Finally,
              the state has no obligation to warn about possible uses of the
              interview that cannot be foreseen because of future events, such
              as uncommitted crimes (Penry).


                                            -46-
#26318

Gibbs v. Frank, 387 F.3d 268, 274 (3d Cir. 2004). It is important to note that Berget

does not claim his Sixth Amendment right to counsel, as addressed in Estelle, was

violated. Correctly so, as the fact that his counsel moved for the psychiatric report,

whether compelled to do so by the circuit court or not, would vitiate this claim. It is

also relevant to note that the Powell decision referenced in Gibbs focused on the

Sixth Amendment, not the Fifth Amendment, as argued by Berget. See Powell v.

Texas, 492 U.S. 680, 109 S. Ct. 3146, 106 L. Ed. 2d 551 (1989).

[¶104.]      Applying Estelle and its Supreme Court progeny to the facts of this

matter presents a very close question. Initially, it is noteworthy that Berget’s

counsel moved for the psychiatric evaluation of Berget. The Supreme Court noted

the importance of this distinction from Estelle in Buchanan. Buchanan, 483 U.S. at

422-23, 107 S. Ct. at 2917-18. In Buchanan, the defendant joined in the motion for

a psychiatric examination, very similar to Berget’s motion in the present situation.

Id. at 423, 107 S. Ct. at 2918. Again in Penry, the Court noted that the offending

psychiatric evaluation was performed upon request of Penry’s counsel. “Second, in

Estelle, the trial court had called for the competency evaluation and the State had

chosen the examining psychiatrist. . . . Here, however, it was Penry’s own counsel

in the 1977 case who requested the psychiatric exam.” Penry, 532 U.S.at 794, 121

S. Ct. at 1919. A review of the motion for psychiatric evaluation made by Berget’s

counsel, as well as that of the State, demonstrates that the purpose of the

evaluation was to determine Berget’s competency. Nothing in the record suggests

that Berget was preparing to present a defense based on his mental status at the

time of trial or the time of the crime.


                                          -47-
#26318

[¶105.]      Although not faced with a situation in which the defendant had placed

his mental status into issue, the Supreme Court in Estelle made the importance of

this issue clear. Estelle, 451 U.S. at 465-66, 101 S. Ct. at 1874-75. Both Buchanan

and Penry focused on the issue. “Moreover, petitioner’s entire defense strategy was

to establish the ‘mental status’ defense of extreme emotional disturbance.”

Buchanan, 483 U.S. at 423, 107 S. Ct. at 2918. “This case differs from Estelle, in

several respects. First, the defendant in Estelle had not placed his mental condition

at issue, . . . whereas Penry himself made his mental status a central issue in both

the 1977 rape case and his trials for Pamela Carpenter’s rape and murder.” Penry,

532 U.S. at 794, 121 S. Ct. at 1919. At no point did Berget raise his mental

condition as a possible defense to the crime. Further, any argument he may have

made that his mental condition should weigh against imposition of the death

penalty, he made without the assistance of psychiatric testimony. In both

Buchanan and Penry, the defendants produced psychiatric testimony to support

their positions. Buchanan, 483 U.S. at 409, 107 S. Ct. 2910; Penry, 532 U.S. at 794,

121 S. Ct. at 1919. As such, like Estelle, Berget cannot be said to have placed his

mental status in issue in a manner similar to the defendants in Buchanan and

Penry. This similarity, however, leads to another point of distinction between this

case and Estelle.

[¶106.]      In Estelle, the psychiatric evidence was used affirmatively by the State

to establish the defendant’s future dangerousness, an issue the State bore the

burden of proving in order for the death penalty to be imposed. 451 U.S. at 458-60,

101 S. Ct. at 1870-71. The Court noted that when the psychiatrist testified for the


                                         -48-
#26318

State, he became, in essence, an agent of the State. “When Dr. Grigson went

beyond simply reporting to the court on the issue of competence and testified for the

prosecution at the penalty phase on the crucial issue of respondent’s future

dangerousness, his role changed and became essentially like that of an agent of the

State recounting unwarned statements made in a postarrest custodial setting.” Id.

at 467, 101 S. Ct. at 1875. In Buchanan, the Court distinguished Estelle, noting

that the testimony presented at trial was introduced for a “limited rebuttal

purpose.” 483 U.S. at 423-24, 107 S. Ct. at 2918. This distinction was also noted in

Penry. “Third, in Estelle, the State had called the psychiatrist to testify as part of

its affirmative case. . . . Here, it was during the cross-examination of Penry’s own

psychological witnesses that the prosecutor elicited the quotation from the

[psychiatrist’s] report.” Penry, 532 U.S. at 794, 121 S. Ct. at 1919.

[¶107.]      In this case, the State did not call Dr. Bean to testify, nor apparently

was it aware that the court would consider Dr. Bean’s report. Additionally, Berget’s

statement to Dr. Bean used in the pre-sentence verdict was noted by the circuit

court as potentially rebutting the idea that Berget’s early acceptance of

responsibility was motivated by a desire to spare the victim’s family from

proceeding through a trial. However, in both Penry and Buchanan, the psychiatric

testimony at issue was used to rebut psychiatric evidence introduced by the

defendant. See id.; Buchanan, 483 U.S. at 423-24, 107 S. Ct. at 2918. Here, again,

Berget made no attempt to introduce any psychiatric evidence regarding his state of

mind in relation to early acceptance of responsibility. Furthermore, even though

the Dr. Bean report containing the problematic statement was not offered by the


                                          -49-
#26318

State, it was used to rebut evidence in mitigation of the crime, the relevance of

which is to justify imposition of the death penalty, the position argued by the State.

[¶108.]      The present circumstances are distinguishable in material respects

from Estelle, but also distinguishable from both Buchanan and Penry. Importantly,

Berget did not place his mental condition in issue. Had he done so, his counsel

would have been aware that any statement he made to the psychiatrist could have

been used as impeachment against him, at least insofar as his mental condition was

concerned. Counsel could have advised Berget of such, and the decision to agree to

the psychiatric evaluation would have been fully informed. Because he did not

place his mental status in issue—the fact that he moved for the psychiatric

examination is of less importance—he still did not contemplate that the exam would

be used to gather evidence which would be used to decide whether he should live or

die. Nor was the State’s inability to respond to the defendant’s psychiatric evidence

hampered by the availability of the defendant’s potential invocation of his right

against self-incrimination during an evaluation conducted by an agent for the State.

With no intent to place his mental condition into issue, Berget could not foresee that

his statements to Dr. Bean would be used against him as justification for imposition

of the death penalty. “Yet he was given no indication that the compulsory

examination would be used to gather evidence necessary to decide whether, if

convicted, he should be sentenced to death.” Estelle, 451 U.S. at 467, 101 S. Ct. at

1875.

[¶109.]      Here, it could be argued that because Berget moved for the evaluation,

his testimony to the psychiatrist was not compelled, and therefore does not


                                         -50-
#26318

implicate the Fifth Amendment. Other courts have refused to apply Estelle based

on the lack of compelled testimony when the defendant moved for the psychiatric

examination. See, e.g., State v. Smith, 863 P.2d 1000, 1004 (Mont. 1993) (“The Fifth

Amendment violation in Estelle arose from the state’s use of a defendant’s

statements elicited at a court-ordered competency examination. We determined

that Smith had waived his Fifth Amendment privilege regarding statements made

during [the psychiatrist’s] interview because, unlike the Estelle defendant, he

initiated the psychiatric examination. Thus, no compelled testimony was placed

before the court.”). Berget initiated the evaluation for purposes of determining his

competency. The contents of the evaluation, including his statement, were only

made available with the understanding that they would not be used unless Berget

placed his competency into issue. All parties agreed. The circuit court utilized the

information in the report for the purpose of sentencing, without alerting Berget that

it would do so, essentially compelling Berget to be a witness against himself.

[¶110.]      Further, this Court has analyzed the use at trial of a criminal

defendant’s statements made to a psychiatrist during an evaluation requested by

the defendant under the Fifth Amendment’s protection against compelled

testimony. State v. Devine, 372 N.W.2d 132, 133-34 (S.D. 1985). In Devine, the

statements at issue were made by the defendant to a psychiatrist appointed by the

court, including statements made to a psychiatrist appointed upon motion of the

defendant, and introduced at trial where the jury was to determine both guilt and

sanity. Id. at 133. The defense psychiatrist was called as a witness by the state

“and allowed to reveal [defendant’s] statements.” Id. This Court acknowledged that


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“[t]he Fifth Amendment privilege bars the use of an incriminating statement made

to a psychiatrist for the purpose of proving a defendant’s guilt.” Id. at 134. The

majority opinion does not specifically refer to the testimony given during the

evaluations as “compelled,” even though the relevant discussion concerns the Fifth

Amendment. Id. at 135. 16 The dissent, however, observed no such restraint. “I can

well understand that the fruits of the accused’s compelled disclosures may be used

in determining his competency to stand trial, but surely it cannot be used against

him at the trial itself.” Id. at 140 (Henderson, J., dissenting).

[¶111.]       Devine provides that evidence of a defendant’s statements made to a

psychiatrist for the purpose of determining the defendant’s competency, admitted as

evidence of the defendant’s guilt, implicate the Fifth Amendment even when the

defendant moves for the competency evaluation. Therefore, the fact that Berget

moved for the psychiatric evaluation does not, in these specific circumstances,

remove this situation from evaluation under Estelle. As the Supreme Court made

clear in Estelle, there is no distinction between the guilt and penalty phases of a

capital sentencing procedure for purposes of applying the Fifth Amendment’s

protection against self-incrimination. Estelle, 451 U.S. at 462-63, 101 S. Ct. at

1873.

[¶112.]       Furthermore, to hold that any statement made during such a

competency evaluation could be used to weigh in favor of imposition of the death


16.     After stating that the Fifth Amendment was implicated, the Court framed
        the issue as follows: “Whether such incriminating statements are admissible
        to establish mental condition in a unitary trial which involves both sanity
        and guilt issues, without prejudicing the defendant’s due process rights.” Id.
        at 135.

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penalty may prevent defense counsel from recommending their client agree to a

competency exam. Because of the gravity of determining competency in these

situations, courts could then be forced to compel evaluations, at which time defense

counsel may recommend the defendant remain silent. The Supreme Court of

California has recognized this dilemma.

             A rule allowing a defendant to be impeached at trial with
             statements made during a competency examination would pose
             a dilemma for defendant’s trial attorney. A competency
             examination occurs after the right to counsel has attached, at a
             critical stage of the proceeding at which counsel’s participation
             is constitutionally mandated; the examination cannot be
             conducted without “the assistance of [defendant’s] attorneys in
             making the significant decision of whether to submit to the
             examination and to what end the psychiatrist’s findings could be
             employed.” Counsel would need to explain the risk of
             impeachment to the possibly mentally impaired defendant and,
             if that risk was sufficiently grave, might be ethically bound to
             advise the defendant not to communicate with the court-
             appointed mental health professional at all during the
             examination.

People v. Pokovich, 141 P.3d 267, 275-76 (Cal. 2006) (quoting Estelle, 451 U.S. at

470-71, 101 S. Ct. at 1877).

[¶113.]      At the end of the analysis, we are left with the circuit court’s use of

Berget’s statement, made at a psychiatric examination ordered by the court at the

request of counsel and potentially used against him as evidence that he should be

sentenced to death. Even though Estelle has been repeatedly limited to its facts, the

relevant distinctions present here do not undermine the rationale of the Supreme

Court’s decision in Estelle. Given the specific facts of this case, the use of Berget’s

unwarned statement to Dr. Bean utilized to weigh against the mitigating evidence




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available, and therefore as justification for imposition of the death penalty, was

error.

[¶114.]      We must next determine whether this error requires reversal. This

Court has held that even constitutional error can be harmless.

             SDCL 23A-44-14 defines harmless error as “[a]ny error, defect,
             irregularity or variance which does not affect substantial
             right[s].” The harmless error rule governs even constitutional
             violations, not requiring the automatic reversal of a conviction,
             provided the court is able to declare a belief beyond a reasonable
             doubt that the error was harmless and did not contribute to the
             verdict obtained.

State v. Younger, 453 N.W.2d 834, 838 (S.D. 1990) (citing State v. Heumiller, 317

N.W.2d 126, 130 (S.D.1982) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct.

824, 17 L. Ed. 2d 705 (1967))). The harmless error rule “promotes the public respect

for the criminal process by focusing on the underlying fairness of the trial rather

than on the virtually inevitable presence of immaterial error.” State v. Zakaria,

2007 S.D. 27, ¶ 19, 730 N.W.2d 140, 146 (citations omitted).

[¶115.]      This is the standard utilized by the United States Supreme Court in

determining whether Estelle error requires reversal. Satterwhite v. Texas applied

harmless error analysis to application of Estelle’s Sixth Amendment holding in the

context of a direct appeal of a state court decision in a capital case. 486 U.S. 249,

258, 108 S. Ct. 1792, 1798, 100 L. Ed. 2d 284 (1988). Like the Sixth Amendment,

admission of evidence in violation of the Fifth Amendment is subject to harmless

error analysis. Neder v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 1838, 144 L.

Ed. 2d 35 (1999). See also Devine, 372 N.W.2d at 137-38 (concluding that admission




                                          -54-
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at trial of the statements made by the defendant to his psychiatrist at a competency

evaluation were “no more than harmless error.”).

[¶116.]      The error here was the use of Berget’s statement to Dr. Bean as

evidence weighing against the mitigating evidence available. The issue is whether

this Court can “declare a belief beyond a reasonable doubt that the error was

harmless and did not contribute to the verdict obtained.” See Younger, 453 N.W.2d

at 838. The sentencing authority’s task during the sentence-selection phase is not

an easy one. It must weigh the evidence presented and make a determination

between life and death. The defendant’s own statements which tend to diminish

the effect of the mitigating evidence presented can be influential toward that task.

Additionally, the nature of the weighing task makes it difficult to determine

whether, without using Berget’s statement contained in the Dr. Bean report, the

result of the weighing process would have been different.

[¶117.]      “Harmlessness must . . . be determined on the basis of the remaining

evidence.” Zakaria, 2007 S.D. 27, ¶ 19, 730 N.W.2d at 146 (citations omitted).

Berget made a statement in open court during the pre-sentence hearing. When

provided the opportunity to make a statement to the court after all evidence had

been received, Berget stated:

             All I have to say is that I’m guilty of taking Ronald Johnson’s
             life. I knew what I was doing on the day when I went over to the
             shops, and I continued to do it. I destroyed a family. I took
             away a father, a husband, a grandpa. They’ll never see their
             father again or husband. He will never walk through that door
             again. I made sure of that by my actions. I’m not going to beg
             the Court or ask the Court to spare my life. I believe I deserve
             the death penalty for what I’ve done. That’s all I have to say.



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This statement, while expressing Berget’s belief that he deserves the death penalty,

does not touch on his motivation for pleading guilty. Therefore, the remaining

evidence does not explicitly support the proposition that Berget’s motivation for

pleading guilty was selfish.

[¶118.]       Even though it is difficult to determine the weight given by the circuit

court to Berget’s statement to Dr. Bean, the importance of Berget’s motivation for

pleading guilty is clear.

              “Few facts available to a sentencing judge,” we have observed,
              “are more relevant to the likelihood that [a defendant] will
              transgress no more, the hope that he may respond to
              rehabilitative efforts to assist with a lawful future career, [and]
              the degree to which he does or does not deem himself at war
              with his society” than a defendant’s willingness to cooperate.

Mitchell, 526 U.S. at 339, 119 S. Ct. at 1320 (Scalia, J., dissenting) (quoting Roberts

v. United States, 445 U.S. 552, 558, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980)). This

is not to say that acceptance of responsibility necessarily trumps all aggravating

factors relevant to the sentence-selection determination, but it is obviously

important. Due to the importance of this information, we cannot determine that the

circuit court’s error in utilizing Berget’s statement to Dr. Bean for the purpose of

diminishing the value of Berget’s acceptance of responsibility was harmless beyond

a reasonable doubt. We therefore reverse Berget’s sentence and remand for

resentencing without the use of or consideration of Dr. Bean’s report unless Berget

opts to call Dr. Bean to testify.

                                    CONCLUSION

[¶119.]       In selecting a sentence, the circuit court improperly considered

statements made by Berget to Dr. Bean during a competency evaluation. This was

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a violation of Berget’s right to be free from self-incrimination. We cannot conclude

that the use of this statement was harmless beyond a reasonable doubt.

[¶120.]      Pursuant to SDCL 23A-27A-13(2), we remand to the circuit court for

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

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

report of Dr. Bean.

[¶121.]      In all other respects, the appeal is affirmed.

[¶122.]      KONENKAMP, ZINTER, and SEVERSON, Justices, concur.

[¶123.]      MILLER, Retired Justice, concurs in part and dissents in part.

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



MILLER, Justice (Ret.) (concurring in part and dissenting in part).

[¶125.]      I fully concur with the majority on Issues 1 - 11. However, I dissent on

Issue 12.

[¶126.]      The majority found that the circuit court used “Berget’s unwarned

statement to Dr. Bean . . . to weigh against the mitigating evidence available, and

therefore as justification for imposition of the death penalty[.]” Supra ¶ 113. It

thus determined the court’s reference to Dr. Bean’s report was error. Id. I

respectfully disagree.

[¶127.]      In holding that the court erred, the majority analyzed whether this

case should be evaluated under the principles of Estelle and concluded that it must.

Supra ¶ 111. However, as the majority itself acknowledges, the Estelle Court

cautioned that its holding is based on the “distinct circumstances” presented


                                         -57-
#26318

therein. Supra ¶ 101. The Supreme Court reiterated that admonishment in Penry

when it stated, “we have never extended Estelle’s Fifth Amendment holding beyond

its particular facts.” 532 U.S. at 795, 121 S. Ct. at 1919. See supra ¶ 102. The facts

of this case are not even remotely related to those in Estelle. As a result, I do not

agree that this case should be evaluated under Estelle’s Fifth Amendment holding.

[¶128.]        There is no dispute that Berget did not put his mental status in issue.

However, the majority claims that, like in Estelle, Berget’s statement was “used

against him during the capital sentencing proceeding.” Supra ¶ 100 (emphasis

added). I disagree. The language of the pre-sentence verdict demonstrates that

despite the circuit court’s reference to Dr. Bean’s report, it still considered Berget’s

early acceptance of responsibility as a mitigating factor. Berget’s statement,

recounted in Dr. Bean’s report and referenced by the court in the pre-sentence

verdict, did not transform the mitigating evidence into aggravating evidence, which

in turn, as the majority claims, “justifi[ed] . . . imposition of the death penalty.”

Supra ¶ 108.

[¶129.]        The majority also maintains that, like in Estelle, “Berget had no notice

that [his statement] would be used during . . . sentencing[.]” Supra ¶ 100. From

the record, I would suggest that it is unclear whether Berget knew or suspected that

the circuit court would review the report. At a motions hearing, defense counsel

submitted Dr. Bean’s report to the circuit court with the understanding that the

report be kept “under seal.” See supra ¶ 94. In my view, the circuit court could

easily have interpreted the language “under seal” to mean that no one except the

court was permitted to see the report. Thus, it was fair for the court to assume that


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it was allowed to review the report. Moreover, in its colloquy with the court,

defense counsel specifically stated: “[W]e are submitting [the report] to the [c]ourt

for the [c]ourt’s consideration and review.” Id. (emphasis added). Surely, based

upon defense counsel’s statement, Berget would have suspected, at the very least,

that the court would review the report.

[¶130.]      As to the remaining facts, even the majority concedes that “notable

distinctions” exist between this case and Estelle. Supra ¶ 100. Nonetheless, it

reasons that those “distinctions . . . do not undermine [applying] the rationale of the

Supreme Court’s decision in Estelle.” Supra ¶ 113. In reaching that conclusion, the

majority molds the facts of this case to fit the “distinct circumstances” referenced in

Estelle.

[¶131.]      First, the majority notes that, unlike Estelle, Berget’s statement to Dr.

Bean was not used affirmatively by the State. Supra ¶¶ 106-07. In Estelle, the

psychiatrist “testified for the prosecution at the penalty phase on the crucial issue of

[the defendant]’s future dangerousness[.]” 451 U.S. at 467, 101 S. Ct. at 1875.

Here, Berget’s statement was used by the circuit court in its sentence-selection

determination. Nevertheless, because the court used Berget’s statement in a

manner that supported the State’s position, the majority contends this is no

different than the situation present in Estelle where the psychiatrist essentially

acted as “an agent of the [s]tate.” See supra ¶¶ 99, 107. The majority stated, “Dr.

Bean[’s] report . . . was used to rebut evidence in mitigation of the crime, the

relevance of which is to justify imposition of the death penalty, the position argued

by the State.” Supra ¶ 107. I disagree.


                                          -59-
#26318

[¶132.]      As previously stated herein, while Berget’s statement may have

softened the mitigating evidence, it was not tantamount to rebuttal evidence nor

could it reasonably support a holding that it was aggravating or a “justification for

imposing the death penalty.” The circuit court merely observed that Berget may

have had other motives for entering a guilty plea early. The circuit court clearly did

not consider this evidence an aggravating factor, as suggested by the majority.

Ultimately, Berget’s early acceptance of responsibility was still considered as a

mitigating factor.

[¶133.]      Second, unlike in Estelle where the court ordered a psychiatric

evaluation sua sponte, here, Berget’s counsel sought and moved for the evaluation.

Supra ¶ 100. In order to reach its conclusion that this case is not removed from

evaluation under Estelle, the majority downplays this factor stating, “[b]ecause

[Berget] did not place his mental status in issue[,] the fact that he moved for the

psychiatric examination is of less importance[.]” Supra ¶ 108.

[¶134.]      Further, the majority’s reliance on Devine is misplaced. Devine held

that “[t]he Fifth Amendment privilege bars the use of an incriminating statement

made to a psychiatrist for the purpose of proving a defendant’s guilt.” 372 N.W.2d at

134 (emphasis added). See supra ¶ 110. Because “the Supreme Court made clear in

Estelle[] [that] there is no distinction between the guilt and penalty phases of a

capital sentencing procedure for purposes of applying the Fifth Amendment’s

protection against self-incrimination[,]” the majority contends Devine’s holding

requires application of Estelle. Supra ¶ 111 (emphasis added). Devine was not a

capital sentencing proceeding. Thus, the majority should not rely on this Court’s


                                         -60-
#26318

holding in Devine in order to circumvent the Supreme Court’s clear instructions

that Estelle’s Fifth Amendment holding must be limited to the “distinct

circumstances” in that case. For the foregoing reasons, I do not believe that this

case should be evaluated under Estelle’s Fifth Amendment holding or that the

court’s reference to Dr. Bean’s report was error.

[¶135.]      Lastly, even conceding that the majority is correct in holding that the

circuit court erred in considering Berget’s statements to Dr. Bean, I am of the

strong belief that the error was harmless. The error is harmless if we find beyond a

reasonable doubt that the circuit court would still have imposed the death sentence

if it had not considered Berget’s statement to Dr. Bean. See Younger, 453 N.W.2d at

838 (explaining that constitutional violations are harmless “provided the court is

able to declare a belief beyond a reasonable doubt that the error . . . did not

contribute to the verdict obtained”).

[¶136.]      In choosing between life or death, the circuit court weighed the

aggravating evidence against the mitigating evidence and determined that death

was warranted. 17 The court’s sentence is justified by the facts of this case and I am

convinced it would not have changed had the court not considered Berget’s

statement to Dr. Bean. A review of the aggravating and mitigating evidence

presented to the court demonstrates why.


17.   In its pre-sentence verdict, the circuit court provided, “[W]hen weighing the
      mitigating circumstances presented and considered in this matter and
      finding that they do do [sic] not outweigh the aggravating circumstances of
      this crime, the only effective and reasonable retribution or punishment under
      the totality of the circumstances in this matter is the imposition of the death
      penalty.”


                                          -61-
#26318

[¶137.]      The State presented a substantial amount of aggravating evidence 18

demonstrating, in part, the heinousness of the crime as well as Berget’s extensive

criminal history, hopeless chance of rehabilitation, and multiple attempts of escape.

Although Berget presented mitigating evidence, the circuit court disagreed with it

or concluded that it was not criteria for determining an appropriate sentence. Thus,

in reality, the only mitigating evidence the court found relevant to its sentence-

selection determination was Berget’s early acceptance of responsibility.

[¶138.]      The aggravating evidence in this case was overwhelming. If the circuit

court had not considered Berget’s statement to Dr. Bean during the weighing

process, the mitigating evidence would still have failed to outweigh the significant

and often undisputed aggravating evidence. Thus, I firmly believe the sentence

would still have been death.

[¶139.]      Accordingly, I would affirm the judgment below and uphold the

sentence.




18.   The court considered the facts of Johnson’s murder which, due to the manner
      in which Berget caused Johnson’s death, demonstrated an extreme
      indifference to human life and an obvious attempt to end Johnson’s life.
      Moreover, the State introduced victim-impact testimony, photographs
      illustrating the circumstances of Berget’s 2003 attempted murder conviction,
      and victim testimony. The court observed that Berget showed no remorse
      except what Berget purportedly shared with his attorney and/or paralegal.
      Berget’s prior criminal record included ten convictions, three of which were
      escape convictions. Not to mention, his criminal conduct was becoming more
      violent in nature. In addition, while an inmate at the penitentiary, Berget
      was disciplined at least four times for escape activities, he was found on
      numerous occasions to have contraband on his person or under his control,
      and he was classified as a maximum security risk since 2003.

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