State v. Berget

• Decision Date: 12 February 2013
• Docket Number: No. 26318.,26318.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Rodney Scott BERGET, Defendant and Appellant.
• Court: South Dakota Supreme Court

826 N.W.2d 1

2013 S.D. 1

STATE of South Dakota, Plaintiff and Appellee,

v.Rodney Scott BERGET, Defendant and Appellant.

No. 26318.

Supreme Court of South Dakota.

Argued Oct. 1, 2012.

Decided Jan. 2, 2013.

Rehearing Denied Feb. 12, 2013.

Marty J. Jackley, Attorney General, Paul S. Swedlund, Timothy J. Barnaud, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Jeff Larson and Cassandra McKeown, Sioux Falls, South Dakota, and Cheri Scharffenberg of Olson, Waltner & Scharffenberg, LLP, Tea, South Dakota, Attorneys for defendant and appellant.

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. SeeSDCL 23A–27A–10.

FACTS

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

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 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

[¶ 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. SeeSDCL 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

(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 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. SeeSDCL 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, considering both the crime and the defendant.

[¶ 19.] The final mandated...