Argued May 27, 2014
As Amended October 16, 2014.
[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE BRADLEY G. ZELL, Judge.
MARTY J. JACKLEY, Attorney General, PAUL S. SWEDLUND, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
JEFF LARSON, Sioux Falls, South Dakota and CHERI SCHARFFENBERG of Olson, Waltner & Scharffenberg Tea, South Dakota, Attorneys for defendant and appellant.
GILBERTSON, Chief Justice. ZINTER and SEVERSON, Justices, and MILLER, Retired Justice, concur. KONENKAMP, Justice, dissents. MILLER, Retired Justice, sitting for WILBUR, Justice, disqualified.
GILBERTSON, Chief Justice
[¶1] A South Dakota circuit court sentenced Rodney Scott Berget to death for the murder of corrections officer Ronald Johnson, a crime he committed while incarcerated at the South Dakota State Penitentiary in Sioux Falls. On direct appeal of that sentence, in State v. Berget ( Berget I ), this Court determined that the circuit court may have improperly considered, for sentencing purposes, statements made by Berget in a psychological evaluation procured to determine his competency to stand trial. 2013 S.D. 1, ¶ ¶ 92, 119, 826 N.W.2d 1, 28, 37. We remanded Berget's death sentence for the limited purpose of resentencing " without the use of or consideration of" the psychological evaluation unless Berget opted to call its author to testify, and otherwise " on the existing record." Id. ¶ ¶ 118, 120, 826 N.W.2d at 37. Berget now appeals the circuit court's amended judgment of conviction sentencing him to death. We affirm.
[¶2] The details of Berget's crime and the procedural posture of his first appeal are set out in Berget I, 2013 S.D. 1, ¶ ¶ 2-10, 826 N.W.2d at 8-10. This appeal concerns the limited remand instructed in Berget I and proceedings subsequent thereto. The relevant facts are provided below.
[¶3] In Berget I, this Court affirmed Berget's death sentence on eleven of twelve issues. See id. ¶ 121, 826 N.W.2d at 37. The twelfth issue regarded the circuit court's potentially improper consideration of aggravating evidence in rendering Berget's death sentence. Id. ¶ ¶ 91-118, 826 N.W.2d at 28-37. Specifically, we noted that after the sentencing hearing, when the circuit court announced its sentence, the court indicated that it had considered Berget's early acceptance of responsibility for the murder of Ronald Johnson as mitigation. Id. ¶ 92, 826 N.W.2d at 28. However, the circuit court then cited an admission Berget gave during a psychiatric evaluation, which was contained in a report to determine Berget's fitness to stand trial. The evaluation had previously been sealed and was not admitted as evidence in the sentencing hearing. Id. It contained Berget's admission to the psychiatrist, Dr. David Bean, that he pleaded guilty to Johnson's murder because he " wish[ed] it would be over." Id. The circuit court stated that this admission did not reflect the intentionality that made early acceptance a mitigating factor. Id. On appeal, we agreed with Berget that the circuit court might have committed prejudicial error by improperly considering this admission as aggravating evidence. Id. ¶ ¶ 116-118, 826 N.W.2d at 36-37.
[¶4] To address this error, this Court concluded its opinion with instructions: " Pursuant to SDCL 23A-27A-13(2), we remand to the circuit court for the purpose of conducting a sentencing without this error. Per this statute, it is to be conducted on the existing record without reference to, or considering of, the report of Dr. Bean."  Id. ¶ 120, 826 N.W.2d at 37.
[¶5] On the day after this Court handed down its opinion and judgment, the State filed a motion for a hearing consistent with the opinion of this Court. The State acknowledged in its motion that it would not object to Berget introducing the psychiatric report " with such supplemental direct and cross-examination testimony of the psychiatrist as Berget might choose to place on the record." Berget filed a petition for rehearing on the appeal, which we subsequently denied by order entered January 22, 2013.
[¶6] A month after we handed down our opinion and judgment, Berget sent a letter to the circuit court, pursuant to SDCL 15-12-21.1, requesting that it disqualify itself from the remanded proceeding on grounds of judicial bias. In his affidavit supporting recusal, Berget
claimed three instances of bias: (1) the circuit court had to find against Berget's assertions of fact at sentencing or it would risk contradicting its findings of fact and jeopardizing the death sentence in the case of Berget's co-defendant, Eric Robert, (2) the Supreme Court had found that the circuit court committed error in its presentence hearing verdict, and (3) the circuit court had rendered its sentencing decision " through legal analysis only." The circuit court denied Berget's request for recusal on February 22, 2013. The Presiding Circuit Judge of the Second Judicial Circuit entered an order on March 8, 2013, denying Berget's formal recusal request. The Presiding Judge based the order on Berget's waiver of his right to disqualify the circuit court, pursuant to SDCL 15-12-24, by him having already " submitted multiple arguments and proofs in support of motions" to the court prior to his request for recusal.
[¶7] Berget also filed a demand for a new sentencing hearing to introduce new evidence. That evidence, allegedly obtainable only after his original sentencing, showed that " Berget has established a meaningful relationship with his son, his daughter-in-law, and his two grandchildren," and that the relationship " has made a positive impact on the lives of [Berget's] family, even while [Berget is] in prison for the rest of his life." Berget argued, in spite of this Court's clear directions on remand, that the circuit court " ha[d] the inherent power to grant a new [sentencing] hearing" and that his federal constitutional rights required it do so.
[¶8] The circuit court held a motions hearing on Berget's demand for a hearing on April 16, 2013. Berget repeatedly declined the circuit court's offer to have Dr. Bean testify. He reasserted his federal constitutional law arguments and contention that the circuit court had the authority to grant a new sentencing hearing in the face of contrary remand directions by this Court. Berget further argued that our remand instructions were improper because we could not rely on SDCL 23A-27A-13(2) to justify our limited remand for resentencing and that our directions on remand were otherwise unclear. Finally, Berget reinforced his argument that his father-son relationship evidence was new and had not been withheld for dilatory reasons. The circuit court rejected Berget's arguments by noting that our instructions on remand were clear, that as a circuit court it was bound to limit its jurisdiction on remand to those instructions, and that a new sentencing hearing would violate our directive. The circuit court declined to make a ruling on Berget's constitutional arguments because it determined that they were outside its limited remand jurisdiction. After considering Berget's offer of proof--and without further evidence to consider beyond the evidence, argument and allocution it considered in Berget's original sentencing--the circuit court determined that another sentence hearing would serve no purpose given our remand instructions, and it orally denied Berget's demand for a new sentencing hearing.
[¶9] The circuit court entered a written order on May 7, 2013, denying Berget's motions for a sentencing hearing, to introduce new mitigation evidence, and to disqualify itself. That same day, the court entered its amended presentence hearing verdict. Thereafter, both the State and Berget submitted proposed findings of fact and conclusions of law. After considering the proposed amended findings of fact and conclusions of law from Berget and the State, and the objections thereto, the circuit court notified the parties that it would adopt the State's amended findings and conclusions in the court's e-mail of June 7, 2013. The court's amended findings of
fact and conclusions of law were entered that day. The court entered an amended judgment of conviction and sentence, and the death warrant, on June 24, 2013. Berget timely appealed. This Court entered an order for stay of execution on August 7, 2013.
[¶10] Berget now raises three issues in appealing his resentence on remand. Berget's first and second arguments derive from the circuit court's denial of Berget's demand for a new sentencing hearing. He argues the court erred (1) by failing to consider his newly discovered mitigation evidence in reimposing his death sentence and (2) by preventing him from being present and being able to allocute when it reimposed its sentence. Berget's third argument is that the circuit court erred by refusing to recuse itself from resentencing. In addition to Berget's issues, ...