South Dakota Supreme Court Affirms Death Penalty in Murder of Prison Guard

On August 13, 2014, the South Dakota Supreme Court in a 4-1 decision affirmed the death penalty for a man convicted of killing a prison guard at the South Dakota State Penitentiary in Sioux Falls.

While details of the crime were not included in the supreme court's decision, Rodney Berget's first death sentence for the murder of the unnamed guard was overturned by the South Dakota Supreme Court in late 2012 because the court found that the trial court may have improperly considered Berget's admission to a psychiatrist that he only pled guilty because he "wish[ed] it would be over." Under South Dakota law, early acceptance of responsibility of a crime can be considered mitigating evidence, but the trial court found Berget's statement as indicative that he was insincere. While that may allow the trial court not to consider his early plea as a mitigating factor, it could not use it as an aggravating factor to support the imposition of the death penalty, the court said.

On remand, the Supreme Court ordered the trial court to resentence Berget "on the existing record only," without reference to the psychiatrist's report. After remand, Berget filed a motion to introduce new mitigating evidence at his resentencing. Berget asserted he had established important relationships with his son and grandchildren and that he had "made a positive impact on the lives of [his] family."

The trial court, however, said it was bound by the Supreme Court’s order to consider only the original record and denied Berget's motion to supply new evidence. Moreover, the trial court reimposed the death penalty in chambers and did not allow Berget to be present and did' not allow him the right to speak in his own behalf (or allocute).

Berget appealed again, claiming his due process rights were violated by the trial court's refusal to allow him to present new evidence, failure to allow him to be present for the hearing, and denying his right of allocution. The Supreme Court rejected each of Berget's arguments and once again affirmed his death sentence.

The Supreme Court first found that the trial court complied with the "limited nature" of the remand order and properly prohibited Berget from presenting new mitigating evidence. "When the scope of the remand is limited, the entire case is not reopened, but rather, the lower tribunal is only authorized to carry out the appellate court's mandate," wrote the court.

As to Berget's claim that he had a right to be present at the resentencing and for allocution, the Supreme Court said the right to be present is "not guaranteed when presence would be useless." Berget was without any substantive grounds for asserting he was prejudiced by his physical absence because the trial court was bound by its order of remand and nothing would have changed had he been there, held the court. "A criminal defendant has no right to be present in the judge's chambers when she writes her sentencing memorandum or files it with the clerk."

Similarly, the court found that Berget's right of allocution was not violated because he was provided that right at his first sentencing and nothing had changed that would support a second allocution. Berget "already had a chance to present [ ] evidence at the original sentencing and needed no further right to allocute," read the decision.

The Supreme Court finally found that Berget's sentence was not excessive or disproportionate and affirmed the trial court in all respects. It is unknown at this time when a new date will be set for Berget's execution.

See: State v. Berget, 2014 S.D. 61 (2014)

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