State v. Berget
Decision Date | 02 January 2013 |
Docket Number | 26318-aff in pt, rev in pt & rem-DG |
Parties | STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. RODNEY SCOTT BERGET, Defendant and Appellant. |
Court | South Dakota Supreme Court |
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.
[¶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.
[¶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.
[¶4.] At the change of plea hearing, Berget provided the following factual basis:
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. WhenHall 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
[¶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.
[¶11.] When a sentence of death is imposed, SDCL 23A-27A-12 requires that this Court make three determinations. This section provides:
[¶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 afinding 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.
[¶18.] Issue 3: Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases,...
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State v. Charles, 27691
...of a constitutional deprivation" unless the statement is "so unduly prejudicial that it renders the trial fundamentally unfair." State v. Berget , 2013 S.D. 1, ¶ 83, 826 N.W.2d 1, 26 (quoting Payne , 501 U.S. at 825, 111 S.Ct. at 2608 ); People v. Willis , 210 Ill.App.3d 379, 155 Ill.Dec. 1......