Outside the prison, protesters showed up
throughout the day, and by 10 p.m., there were 100 people opposing
the death penalty and 10 supporting it.
Page, who had given up his appeals and had asked
to die, was put in a holding cell just down the hall from the death
chamber several days ago. He was under constant guard since being
transferred, and his last visit with friends and family was at 4
p.m. Butler had access to Page until one hour before the execution.
Page requested a last meal - served about four
hours before his execution - of steak, jalapeno poppers with cream
sauce, onion rings, and a salad with cherry tomatoes, ham chunks,
shredded cheese, bacon bits, and blue cheese and ranch dressing. He
wanted lemon iced tea and coffee to drink and ice cream for dessert.
His father, Kenneth Chapman, said before the
execution that he visited his son every day for the past week at the
penitentiary and told him he loved him. According to Chapman, his
son was remorseful. "He wants everybody to know he feels bad for
what happened. He's not a cold-hearted person like they're making
him out to be," Chapman said.
Page, Briley Piper and Darrell Hoadley were
convicted of stabbing and kicking Poage, bashing him with large
rocks and forcing him to drink hydrochloric acid. The torture lasted
two to three hours. Hoadley received life in prison. Briley also was
sentenced to die and now sits on death row with Charles Rhines and
Donald Moeller.
Page's execution apparently had been scheduled
for weeks to be at 10 p.m. Tuesday. But Rounds' spokesman, Mitch
Krebs, confirmed Wednesday that the governor delayed it 24 hours out
of respect for the family of Staff Sgt. Robb Rolfing, killed June 30
in Baghdad and buried Tuesday at Woodlawn Cemetery in Sioux Falls. "The
governor had a conversation with the Rolfings and came to the
conclusion that it (Tuesday) was Robb's day," Krebs said.
It was the second delay in the execution. The
governor postponed Page's planned Aug. 29, 2006, execution because
of concerns that a 1984 state law requiring the use of two drugs for
lethal injection could put prison officials at legal risk if they
instead administered a three-drug combination that now is considered
standard.
State lawmakers amended the law the last
legislative session to allow prison officials to use whatever lethal
injection mixture they choose.
Of the 38 states that have death penalty statutes
since capital punishment was reinstated in 1976, only four now have
not executed anybody, according to the Death Penalty Information
Center, a nonprofit organization based in Washington, D.C. Those
states are Kansas, New Hampshire, New Jersey and New York.
Background: Defendant entered a guilty plea, in
the Circuit Court, Fourth Judicial Circuit, Lawrence County, Warren
G. Johnson, J., to first-degree felony murder, kidnapping, first-degree
robbery, first-degree burglary, and grand theft, and after waiver of
jury trial for sentencing phase, he was sentenced to death by lethal
injection. Defendant appealed. The Supreme Court remanded for
proportionality review, in light of the Circuit Court, Warren G.
Johnson, J., having sentenced co-defendant to life imprisonment
without possibility of parole. The Circuit Court, Warren G. Johnson,
J., affirmed defendant's death sentence.
Holdings: The Supreme Court, Gilbertson, C.J.,
held that:
(1) defendant waived statutory right to seek disqualification of
sentencing judge;
(2) recusal of sentencing judge was not required, though the judge
had sentenced a co-defendant;
(3) statutory aggravating factor at sentencing, relating to the
murder involving torture, depravity of mind, or aggravated battery
to victim, was not unconstitutionally vague, as applied by trial
court as sentencer;
(4) defendant's death sentence was not excessive or disproportionate
to penalty imposed in similar cases;
(5) no statutory impediment prevents a defendant who pleads guilty
to capital murder in South Dakota from exercising his constitutional
right to a jury at the penalty phase; and
(6) defendant's death sentence was not grossly disproportionate
punishment, though co-defendant received life sentence.
GILBERTSON, Chief Justice.
On March 12-13, 2000, Elijah Page (Page) along with two other
individuals, kidnapped and murdered Chester Allan Poage (Poage) in
Spearfish, South Dakota. Page eventually pleaded guilty to first
degree murder, kidnapping, robbery in the first degree, burglary in
the first degree, and grand theft. After Page waived his right to a
jury trial, and sentencing by jury, a sentencing hearing was held
before the circuit court. The circuit court sentenced Page to death
by lethal injection on the murder charge. Page now appeals and
raises several issues for our review. We affirm on all issues.
FACTS AND PROCEDURE
On March 12, 2000, Page met up with Briley Piper
(Piper), Darrell Hoadley (Hoadley), and Poage at Poage's house to
play video games. Poage's mother and sister, who also lived at the
house, were on vacation in Florida at this time. Eventually, Piper,
Page, and Hoadley convinced Poage to leave the house, and the four
left in Poage's Chevrolet Blazer, traveling to the house where Piper,
Page, and Hoadley had been staying.
Shortly after arriving at their destination, Page
exposed a .22 caliber pistol, ordered Poage to the floor, and told
the victim, “We are jacking you of all your stuff.” FN1 Once Poage
was on the floor, Piper knocked him unconscious by kicking him in
the head. While Poage was unconscious, he was tied up with a cord
and sat upright in a chair. When the victim regained consciousness,
he started to cry and pleaded with the group to let him go.
In
response, the group forced Poage to drink a concoction of crushed
pills, beer, and hydrochloric acid. Page asked Poage for the
personal identification number for his ATM card at this time, and
the victim complied. Page and Piper then openly discussed their plan
to kill Poage, including slitting his throat, but decided against
this particular plan because it would get too much blood in the
house. This discussion concerning the “best” way to kill Poage was
carried on directly in front of the victim.FN2
FN1. Page had stolen the antique .22 caliber
pistol from Poage's mother's closet.
FN2. Testimony as to the origin of the plot to
kill Poage varied. It is unclear whether all three of the assailants
planned on stealing items in the house so they could buy drugs, or
whether Piper pulled Page outside to inform him he was going to
steal stereo equipment from Poage's vehicle. It is also unclear
whether they initially planned to kill Poage, or just beat him.
However, it is clear that the initial discussions as to killing
Poage were limited to Piper and Page, and only after it was decided
to kill him was Hoadley informed of the plan.
After forcing Poage into his own vehicle, the
group drove approximately seven miles to a remote, wooded area in
the Black Hills known as Higgins Gulch. Once at Higgins Gulch, Poage
was forced out of the vehicle into a foot of snow. Page and Piper
stripped Poage naked except for his undershirt, shoes, and socks.
The temperature that night was only about twenty-five degrees
Fahrenheit. Piper, Page, and Hoadley then took Poage's wallet.
Next, the men forced Poage to walk downhill
toward a small creek. On the way to the creek, the three ordered
Poage to lie down in the deep snow. At that point, Piper, Page, and
Hoadley kicked snow all over the victim's exposed body. When Poage
attempted to escape to save his life, Page ran him down, recaptured
him, and pushed him into the icy creek. The group then began beating
Poage, with Page repeatedly kicking the victim in the head. Poage
cried out in pain throughout the beating, but his screams only
caused more kicks. Page later admitted to kicking Poage in the head
so often with his boots that it “made his own foot sore.”
Sometime after beating Poage in the river, the
group decided it was time to finally kill the victim. Page was the
first to stab Poage. As he lay in the freezing water, Page took
Poage's head in his arms. When Poage asked him, “What are you doing?”
Page responded, “Just sit there.” Page then plunged his knife all
the way into the victim's neck. Piper proceeded to stab Poage in the
head. During this time, Piper laughed and made jokes about the pain
Poage was experiencing, to which Page “chuckled.”
Bleeding badly from his wounds, Poage asked the
three to be allowed back into his vehicle to warm himself. Testimony
indicated that Poage said he preferred to bleed to death in the
warmth rather than in the cold. Piper told Poage he could warm up in
the vehicle if he first washed the blood off himself. Poage
proceeded to rinse himself off in the icy water, but as he crawled
uphill toward the vehicle, Page told him they were lying and he
would not be allowed into the vehicle. Page kicked the victim in the
face once again. Poage was then dragged back into the creek.
Approximately four hours after the ordeal began, and about three
hours after the beatings started in the gulch, Page stated Hoadley
and he finally ended Poage's life by dropping several heavy rocks on
his head.
Piper, Page, and Hoadley drove away from the
secluded area in Poage's vehicle. The group returned to the victim's
house and stole several items. For his share of the victim's
property, Page claimed a stereo system, clothes, and Poage's vehicle.
The group then traveled to Hannibal, Missouri, to visit Piper's
sister. Piper's sister refused to let them stay, however, so the
three headed back to South Dakota, pawning Poage's property along
the way. FN3 Upon returning to South Dakota, Piper, Page, and
Hoadley each went his own way.
FN3. Some of Poage's property was later found at
pawnshops in Wyoming and Missouri. In addition, records from Poage's
bank showed that his stolen ATM card was used six times in various
locations in South Dakota and Nebraska.
On April 22, 2000, almost a month later, a woman
discovered a partially submerged body in Higgins Gulch. A forensic
pathologist later identified the remains as Poage. Showing signs of
head injuries and stab wounds, the mostly naked body was clad only
in an undershirt, shoes, and socks. Following an autopsy, the
forensic pathologist ultimately determined Poage had died from “stab
wounds and the blunt force injury to the head.”
On April 25, 2000, law enforcement authorities
conducted an interview with Hoadley wherein he gave a statement
detailing his involvement in the murder of Poage. Based on this
interview, warrants were issued for both Piper and Page. Three days
later, authorities located and arrested Page in Texas. The next day,
Page voluntarily described to law enforcement the details
surrounding Poage's murder. Page was then extradited from Texas and
jailed in Lawrence County, South Dakota. Page later pleaded guilty
to and was convicted of first degree felony murder, kidnapping,
first degree robbery, first degree burglary, and grand theft. The
State did not offer a plea agreement to Page. Page waived his rights
to both a jury trial and sentencing by jury and instead requested
sentencing by the circuit court.
At the conclusion of a five-day
sentencing hearing, the circuit court sentenced Page to death by
lethal injection, finding that the State proved beyond a reasonable
doubt the following aggravating factors: (1) the defendant committed
the offense for the benefit of the defendant or another for the
purpose of receiving money or any other item of monetary value; (2)
the offense was outrageously or wantonly vile, horrible, or inhuman
in that it involved torture, depravity of mind, and an aggravated
battery to the victim; (3) the offense was committed for the purpose
of avoiding, interfering with, or preventing lawful arrest, or
custody in a place of lawful confinement, of the defendant or
another.FN4
FN4. The same circuit judge presided over the
Hoadley trial. Well experienced in capital cases, the circuit judge
previously sat with this Court by designation in State v. Moeller,
1996 SD 60, 548 N.W.2d 465 ( Moeller I ); State v. Moeller, 2000 SD
122, 616 N.W.2d 424 ( Moeller II ); and State v. Rhines, 1996 SD 55,
548 N.W.2d 415 ( Rhines I ).
On March 14, 2001, Page appealed his sentence to
this Court. In light of a jury's subsequent imposition of life
without the possibility of parole on co-defendant Hoadley, we
remanded the case to the circuit court for a proportionality review.
After conducting an intra-case proportionality review, the circuit
court entered findings of fact and conclusions of law affirming
Page's death sentence. Page now appeals and raises the following
issues for our review:
1. Whether the circuit judge should have recused
himself from sentencing Page after it imposed the death penalty on
co-defendant Piper.
2. Whether SDCL 23A-27A-1 fails to sufficiently
limit the class of persons who may be deemed eligible for the death
penalty.
3. Whether the circuit court utilized a vague and
overbroad aggravating factor when it determined that Page was
eligible for the death penalty.
4. Whether there was insufficient evidence in the
record from which the circuit court could have reasonably determined
that the State met its burden of proving the aggravating factors
defined in SDCL 23A-27A-1(3), (6), and (9).
5. Whether the circuit court deprived Page of an
individualized sentencing hearing in violation of the Eighth and
Fourteenth Amendments.
6. Whether the selective application of South
Dakota's mandatory capital sentencing procedures is unconstitutional.
7. Whether Page's death sentence was grossly
disproportionate to the penalty imposed in similar cases considering
both the crime and the defendant.
8. Whether Page's death sentence was
unconstitutionally imposed when the indictment failed to allege any
aggravating circumstances.
9. Whether Page's death sentence was
unconstitutionally imposed when SDCL 23A-27A-6 failed to allow a
jury determination of the appropriate penalty upon a plea of guilty
to the circuit court.
10. Whether Page's death sentence was grossly
disproportionate to co-defendant Hoadley's life sentence.
ANALYSIS AND DECISION
1. Whether the circuit judge should have recused
himself from sentencing Page after it imposed the death penalty on
co-defendant Piper.
For his first point of error, Page argues that
the circuit judge should have recused himself from sentencing him
after imposing the death penalty on his co-defendant Piper. Page
believes the circuit judge developed empathy and/or sympathy for the
victim through sentencing Piper, and he asserts that these feelings
compromised the judge's ability to sentence him in an objective and
neutral manner. The State argues Page waived his right to disqualify
the circuit judge, or in the alternative that it was not error for
the circuit judge to sentence Page after sentencing Piper, given the
amount of discretion normally afforded a judge's decision to preside
over a case.
We have consistently recognized that a
defendant's “opportunity to disqualify a judge is statutory, ... and
not a constitutional right, except as it may be implicit in a right
to a fair trial.” State v. Hoadley, 2002 SD 109, ¶ 32, 651 N.W.2d
249, 257 (quoting State v. Goodroad, 1997 SD 46, ¶ 25, 563 N.W.2d
126, 132 (citation omitted)). Pursuant to SDCL 15-12-21, a defendant
has the right to file an affidavit seeking a change of judge. FN5
SDCL 15-12-24, however, provides:
FN5. SDCL 15-12-21 provides: Except where the
right is waived or is denied by this chapter, an affidavit for
change of a judge or magistrate may be filed in any action pending
in the court whether originating therein or pending upon appeal from
an inferior court or tribunal to the circuit court. No affidavit for
such change may be filed in a criminal action prior to the
completion of the preliminary hearing or waiver thereof, in any
proceeding for contempt committed in the presence of the court, or
habeas corpus. See SDCL 15-12-21.1 (requiring a party to informally
request a judge to disqualify himself before filing an affidavit for
change of judge).
The submission to a judge or magistrate of
argument or proof in support of a motion or application, or upon
trial, is a waiver of the right thereafter to file an affidavit for
change of such judge or magistrate by any party or his counsel who
submitted the same or who after notice that such matter was to be
presented, failed to appear at the hearing or trial. Such waiver
shall continue until the final determination of the action and
includes all subsequent motions, hearings, proceedings, trials, new
trials, and all proceedings to enforce, amend or vacate any order or
judgment.
In this case, Page submitted a plea of guilty and
presented mitigation evidence at the sentencing hearing before the
circuit judge. He neither informally requested the circuit judge to
disqualify himself from the sentencing proceedings nor submitted an
affidavit seeking a change of judge. When this Court specifically
remanded Page's appeal to the circuit court for a proportionality
review in light of co-defendant Hoadley's sentence, Page did not
seek to challenge the circuit judge's impartiality. In fact, this
appeal marks Page's first attempt to seek recusal of the circuit
judge. Thus, the time for statutorily seeking sentencing before a
different judge has long since passed and is deemed waived on
appeal. State v. Burgers, 1999 SD 140, ¶¶ 11-13, 602 N.W.2d 277,
279-80 (holding submission of a guilty plea waived the statutory
right to seek recusal); see State v. Chamley, 1997 SD 107, ¶ 42, 568
N.W.2d 607, 619 (holding a defendant's argument and submission of
motions before a judge functioned as a waiver of his right to seek
recusal); see also SDCL 15-12-27 (setting out the time for seeking
removal of a judge presiding in ordinary course).
Having determined that Page's statutory right to
disqualify the circuit judge was waived, we must now address Page's
contention that it was plain error for the circuit judge to sentence
him after sentencing co-defendant Piper to death. Our plain error
analysis under SDCL 23A-44-15 requires (1) error; (2) that is plain;
(3) that affects substantial rights; and (4) that “seriously affects
the fairness, integrity, or public reputation of judicial
proceedings.” State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43
(quoting State v. Robinson, 1999 SD 141, ¶ 17, 602 N.W.2d 730, 735).
Generally, “[w]e invoke our discretion under the plain error rule
cautiously and only in ‘exceptional circumstances.’ ” Robinson, 1999
SD 141, ¶ 17, 602 N.W.2d at 735 (quoting State v. Nelson, 1998 SD
124, ¶ 8, 587 N.W.2d 439, 443). Such exceptional circumstances may
exist where error would “seriously affect the fairness, integrity or
public reputation of judicial proceedings.” Id. (quoting Nelson,
1998 SD 124, ¶ 8, 587 N.W.2d at 443). Given the level of deference
ordinarily afforded a circuit judge's decision to sit on a case, it
would be rare for this Court to review such a decision under the
rubric of plain error.
Even utilizing the plain error doctrine in this
case, Page's argument fails because we do not believe he has shown
it was error for the circuit judge to sentence him. “The decision to
preside over a case lies within the sound discretion of the trial
judge.” Hoadley, 2002 SD 109, ¶ 32, 651 N.W.2d at 257 (quoting
Goodroad, 1997 SD 46, ¶ 25, 563 N.W.2d at 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 (8thCir.1990)
(citation omitted)). The Code of Judicial Conduct directs a judge to
disqualify himself or herself where “the judge's impartiality might
reasonably be questioned” due to his or her “personal bias or
prejudice concerning a party....” SDCL chapter 16-2 app., Code of
Jud. Conduct, Canon 3E(1)(a). In regard to judicial bias, we have
recognized that:
[O]pinions formed by the judge on the basis of
facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for
a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.
Hoadley, 2002 SD 109, ¶ 32, 651 N.W.2d at 257 (quoting Von Kahl v.
United States, 242 F.3d 783, 793 (8th Cir.2001) (quoting Liteky v.
United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474
(1994))). Similarly, this Court defined prejudice in Hoadley as:
The attitude of personal enmity towards the party
or in favor of the adverse party to the other party's detriment. It
is not the mere possession of views regarding the law or the conduct
of a party. Prejudice is in the personal sense rather than in the
judicial sense and refers to a mental attitude or a disposition of
the judge towards a party. In order for the alleged bias and
prejudice to be disqualifying, it must stem from an extrajudicial
source and result in an opinion on the merits on some basis other
than what the judge learned from participation in the case. Id. ¶
33, 651 N.W.2d at 258 (citing In re C.N.H., 998 S.W.2d 553, 560 (Mo.Ct.App.1999)).
Based upon these definitions, we rejected co-defendant Hoadley's
argument that the circuit judge was unable to be fair and impartial
during his trial because the judge had previously sentenced Piper
and Page. Id. ¶¶ 31-34.
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.FN6 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. FN6. We
directly address Page's argument concerning mitigation evidence in
our discussion of Issue 5.
Finally, Page argues that the circuit judge's
sentencing decision should be overturned under the statutorily
mandated review of SDCL 23A-27A-12, which requires this Court to
determine “[w]hether the sentence of death was imposed under the
influence of passion, prejudice or any other arbitrary factor[.]”
Page reasserts his arguments that the circuit judge should have
recused himself from sentencing and further points out that a juror
could not have served on all three co-defendants' cases. We have
already established the circuit judge's decision to sentence Page
did not constitute error resulting from undue prejudice or personal
bias. While it is true that a juror would have been precluded from
serving in all three co-defendants' cases under SDCL
23A-20-13.1(17), no such rule for disqualifying judges exists under
South Dakota law or opinions of the United States Supreme Court.
Page has failed to show the circuit judge's decision to sentence him
was the result of passion, prejudice, or any other arbitrary factor.
2. Whether SDCL 23A-27A-1 fails to sufficiently
limit the class of persons who may be deemed eligible for the death
penalty.
Page next asserts SDCL 23A-27A-1 fails to
sufficiently limit the class of defendants eligible for the death
penalty under South Dakota's statutory scheme in violation of the
Eighth and Fourteenth Amendments. Page believes that rather than
limiting the class, SDCL 23A-27A-1 functions to “place all
first-degree murder defendants in peril of the death sentence.” As
this claim is based upon a challenge to the constitutionality of a
statute, our review is de novo. State v. Asmussen, 2003 SD 102, ¶ 2,
668 N.W.2d 725, 728.
To pass constitutional muster, a state's death
penalty statutory scheme “must channel the sentencer's discretion by
clear and objective standards[.]” Rhines, 1996 SD 55, ¶ 138, 548 N.W.2d
at 447 (quoting Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct.
1759, 1764-65, 64 L.Ed.2d 398 (1980) (Stewart, J., plurality)). This
is accomplished when the statutory scheme “genuinely narrow[s] the
class of persons eligible for the death penalty” and is not based
upon unconstitutionally vague factors. Id. ¶ 139 (citing Zant v.
Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235
(1983); and Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct.
2630, 2635, 129 L.Ed.2d 750 (1994)).
In order for a sentencer to consider imposing the
death penalty in South Dakota, one of the following aggravating
circumstances listed in SDCL 23A-27A-1 must be found beyond a
reasonable doubt:
(1) The offense was committed by a person with a
prior record of conviction for a Class A or Class B felony, or the
offense of murder was committed by a person who has a felony
conviction for a crime of violence as defined in subdivision
22-1-2(9);
(2) The defendant by the defendant's act
knowingly created a great risk of death to more than one person in a
public place by means of a weapon or device which would normally be
hazardous to the lives of more than one person;
(3) The defendant committed the offense for the
benefit of the defendant or another, for the purpose of receiving
money or any other thing of monetary value;
(4) The defendant committed the offense on a
judicial officer, former judicial officer, prosecutor, or former
prosecutor while such prosecutor, former prosecutor, judicial
officer, or former judicial officer was engaged in the performance
of such person's official duties or where a major part of the
motivation for the offense came from the official actions of such
judicial officer, former judicial officer, prosecutor, or former
prosecutor;
(5) The defendant caused or directed another to
commit murder or committed murder as an agent or employee of another
person;
(6) The offense was outrageously or wantonly vile,
horrible, or inhuman in that it involved torture, depravity of mind,
or an aggravated battery to the victim. Any murder is wantonly vile,
horrible, and inhuman if the victim is less than thirteen years of
age;
(7) 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;
(8) 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;
(9) The offense was committed for the purpose of
avoiding, interfering with, or preventing a lawful arrest or custody
in a place of lawful confinement, of the defendant or another; or
(10) The offense was committed in the course of
manufacturing, distributing, or dispensing substances listed in
Schedules I and II in violation of § 22-42-2. (emphasis added). We
have previously held that the aggravating factors under SDCL
23A-27A-1 are constitutional. Rhines I, 1996 SD 55, ¶¶ 74-76, 548
N.W.2d at 437 (noting that the Supreme Court upheld a virtually
identical statutory scheme in Gregg v. Georgia, 428 U.S. 153, 96
S.Ct. 2909, 49 L.Ed.2d 859 (1976)). In Moeller II, 2000 SD 122, ¶
176 n. 18, 616 N.W.2d at 465 n. 18, we held this issue to be
sufficiently resolved by our previous opinions and declined to
address the issue. In this case, the circuit court found that the
aggravating factors listed in SDCL 23A-27A-1(3), (6), and (9)
applied to Page's convictions. We have previously upheld impositions
of the death penalty based upon these specific aggravating factors
in Rhines I, 1996 SD 55, ¶ 181, 548 N.W.2d at 455 (affirming
sentence of death where SDCL 23A-27A-1(3) and (9) were found beyond
a reasonable doubt), and Moeller II, 2000 SD 122, ¶¶ 98-120, 616 N.W.2d
at 450-55 (upholding imposition of the death penalty where SDCL
23A-27A-1(6) was proved beyond a reasonable doubt). Today, we once
again uphold the constitutionality of SDCL 23A-27A-1.
3. Whether the circuit court utilized a vague and
overbroad aggravating factor when it determined that Page was
eligible for the death penalty.
The circuit court determined that the aggravating
circumstances listed in SDCL 23A-27A-1(3), (6), and (9) were present
beyond a reasonable doubt in Page's case. Page contends SDCL
23A-27A-1(6) is unconstitutionally vague, and therefore the circuit
court committed reversible error in finding the three aggravating
factors set out in the statute. SDCL 23A-27A-1(6) provides: The
offense was outrageously or wantonly vile, horrible, or inhuman in
that it involved torture, depravity of mind, or an aggravated
battery to the victim. (emphasis added). Page points to our decision
in Rhines I, 1996 SD 55, 548 N.W.2d 415, and Moeller I, 1996 SD 60,
548 N.W.2d 465, as evidence that this statute is unconstitutionally
vague. We employ the de novo standard of review to this claim.
Asmussen, 2003 SD 102, ¶ 2, 668 N.W.2d at 728.
Under the Eighth and Fourteenth Amendments, state
statutory schemes must not “cause the death penalty to be wantonly
and freakishly imposed,” and must be applied “in a manner that
avoids the arbitrary and capricious infliction of the death
penalty.” Rhines I, 1996 SD 55, ¶ 138, 548 N.W.2d at 447 (citing
Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3099, 111
L.Ed.2d 606 (1990) and quoting Godfrey, 446 U.S. at 428, 100 S.Ct.
at 1764-65, 64 L.Ed.2d 398). In order to accomplish these
constitutional mandates, state death penalty statutes must
“genuinely narrow the class” of defendants and the “aggravating
circumstance[s] may not be unconstitutionally vague.” Id. ¶ 139
(citing Zant, 462 U.S. at 877, 103 S.Ct. at 2742, 77 L.Ed.2d 235 and
Tuilaepa, 512 U.S. at 972, 114 S.Ct. at 2635, 129 L.Ed.2d 750). A
statute is unconstitutionally vague if it leaves juries and
reviewing courts with “open-ended discretion” in “what they must
find to impose the death penalty.” Id. (citing Maynard v.
Cartwright, 486 U.S. 356, 361-62, 108 S.Ct. 1853, 1858, 100 L.Ed.2d
372 (1988)).
In Rhines I and Moeller I, we held “[t]here is
little doubt that the language of SDCL 23A-27A-1(6), by itself, is
vague and overbroad.” 1996 SD 55, ¶ 144, 548 N.W.2d at 448; 1996 SD
60, ¶ 114, 548 N.W.2d at 491. We recognized, however, that if a
trial court “further defines and limits those otherwise vague and
overbroad terms so as to provide adequate guidance to the sentencer,
then constitutional requirements are satisfied.” Id. (quoting Rhines
I, 1996 SD 55, ¶ 145, 548 N.W.2d at 449). Accordingly, our opinion
in Moeller I upheld imposition of the death penalty based in part on
SDCL 23A-27A-1(6) because the trial court provided adequate guidance
to the jury in the form of limiting instructions. Id. ¶ 117, 548 N.W.2d
at 492.
In this case, Page accurately points out that the
circuit court did not specifically articulate any jury instructions
or limiting definitions in its application of SDCL 23A-27A-1(6), but
this fact alone does not entitle Page to relief based on a claim of
vagueness. As the Supreme Court pronounced in Walton v. Arizona:
When a jury is the final sentencer, it is
essential that the jurors be properly instructed regarding all
facets of the sentencing process. It is not enough to instruct the
jury in the bare terms of an aggravating circumstance that is
unconstitutionally vague on its face. That is the import of our
holdings in Maynard and Godfrey. But the logic of those 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. If the Arizona Supreme Court has narrowed the definition
of the “especially heinous, cruel or depraved” aggravating
circumstance, we presume that Arizona trial judges are applying the
narrower definition. It is irrelevant that the statute itself may
not narrow the construction of the factor. 497 U.S. 639, 653, 110
S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990) (emphasis added), overruled
on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428,
153 L.Ed.2d 556 (2002). Here, as in Walton, a circuit court, not a
jury, imposed the death penalty upon Page. Thus, our operative
inquiry is whether this Court has sufficiently provided narrowing
interpretations of the aggravating factors found in SDCL
23A-27A-19(6).
We conclude that this Court has provided adequate
guidance to South Dakota circuit courts through our narrowing
interpretations of SDCL 23A-27A-1(6). In Rhines I, 1996 SD 55, ¶¶
161-64, 548 N.W.2d at 452, and again in Moeller II, 2000 SD 122, ¶¶
112-16, 616 N.W.2d at 453-54, we discussed and approved narrowing
instructions in regard to the aggravating factor of “torture.” We
further approved the trial court's limiting instructions concerning
“depravity of mind” in Moeller I, 1996 SD 60, ¶ 118, 548 N.W.2d at
492-93, after noting the Supreme Court had previously validated a
similar instruction in Walton, 497 U.S. at 655, 110 S.Ct. at 3058,
111 L.Ed.2d 511 (citation omitted). Limiting instructions for
“aggravated battery” were similarly upheld in Moeller I, 1996 SD 60,
¶¶ 115, 118-20, 548 N.W.2d at 492-93, and affirmed by our opinion in
Moeller II, 2000 SD 122, ¶¶ 117-20, 616 N.W.2d at 454-55.
As we
presume the circuit court was familiar with these decisions, ( supra
note 4), it was not error for it to apply the aggravating factors
found in SDCL 23A-27A-1(6) without specifically announcing which
narrowing instructions it applied.FN7 See Sochor v. Florida, 504
U.S. 527, 536-37, 112 S.Ct. 2114, 2121-22, 119 L.Ed.2d 326 (1992)
(presuming a trial judge was familiar with the state supreme court's
authoritative construction of a vague aggravating factor); Walton,
497 U.S. at 653, 110 S.Ct. at 3057, 111 L.Ed.2d 511 (presuming trial
judges are applying a narrower definition as articulated by the
state supreme court). Page's claim for relief based upon a vagueness
challenge to SDCL 23A-27A-1(6) fails.
FN7. This presumption is particularly strong
here, given the fact that the circuit judge participated as a member
of this Court during its formulation and issuance of the Rhines I,
1996 SD 55, 548 N.W.2d 415; Moeller I, 1996 SD 60, 548 N.W.2d 465;
and Moeller II, 2000 SD 122, 616 N.W.2d 424, decisions.
4. Whether there was insufficient evidence in the
record from which the circuit court could have reasonably determined
that the State met its burden of proving the aggravating factors
defined in SDCL 23A-27A-1(3), (6), and (9).
We now turn to Page's contention that there was
insufficient evidence in the record for the circuit court to find
beyond a reasonable doubt that five aggravating factors listed in
subsections (3), (6) and (9) of the statute existed. Under the South
Dakota capital punishment scheme, in cases where a defendant
requests sentencing by the court, the circuit judge must determine
that at least one aggravating factor exists beyond a reasonable
doubt in order to impose the death penalty. SDCL 23A-27A-6. Pursuant
to SDCL 23A-27A-12(2), this Court is required to determine whether
the circuit court's finding of aggravating circumstances was
supported by the evidence.
a. SDCL 23A-27A-1(3)
SDCL 23A-27A-1(3) defines one aggravating
circumstance as follows: “The defendant committed the offense for
the benefit of the defendant or another, for the purpose of
receiving money or any other thing of monetary value.” Page argues
the circuit court's finding of this aggravating factor was not
supported by the evidence because he did not have the specific
intent to kill Poage for his property, and because he thought the
group would leave the victim alive at Higgins Gulch.
Page's argument is without merit. The record
clearly supports the circuit court's determination that Page knew
Poage was to be killed after the group went to Higgins Gulch. Page
engaged in a conversation with Piper concerning the “best” way to
kill Poage while the group was still at the house in town. When a
suggestion was raised to slit Poage's throat, Page objected solely
because he did not want to get blood in the house. In fact, Page,
Piper, and Hoadley specifically took the victim to Higgins Gulch
because they knew it was a remote area where few people went.
[¶ 34.] Additionally, Page participated in taking
Poage's property both during the ordeal and after killing the victim.
Page began the attack on Poage by pointing a pistol at him and
announcing that the group was “jacking” him of his possessions. For
his participation in the murder, Page received Poage's stereo,
clothes, and vehicle, the most valuable piece of property taken by
the group. As the Arizona Supreme Court recently observed:
Where as here, the killing and robbery take place
almost simultaneously, we will not attempt to divine the evolution
of the defendant's motive in order to discern when, or if, his
reason for harming the victim shifted from pecuniary gain to
personal “amusement” or some other speculative non-pecuniary drive.
State v. Canez, 202 Ariz. 133, 42 P.3d 564, 594 (2002) (upholding a
trial court's finding of a statutory aggravating circumstance that
“the defendant committed the offense ... in expectation of the
receipt of anything of pecuniary value”) (citing State v. Medina,
193 Ariz. 504, 975 P.2d 94, 103 (1999) (quoting State v. Rienhardt,
190 Ariz. 579, 951 P.2d 454, 466 (1997))). The record contains ample
evidence to support the circuit court's finding of the aggravating
circumstance in SDCL 23A-27A-1(3).
b. SDCL 23A-27A-1(6)
The circuit court further found that the
aggravating circumstances set out in SDCL 23A-27A-1(6) were present
beyond a reasonable doubt. The relevant portion of SDCL 23A-27A-1(6)
provides: “The offense was outrageously or wantonly vile, horrible,
or inhuman in that it involved torture, depravity of mind, or an
aggravated battery to the victim.”
Page argues that insufficient
evidence existed for a finding of the aggravating circumstances
under this statute because he “did not plan for Poage to die” and
because he “displayed concern for the victim” at various times. As
explained in our analysis of Issue 3, SDCL 23A-27A-1 is, by itself,
vague. Our previous decisions, however, have provided guidance
concerning acceptable interpretations of the aggravating factors
contained in the statute.
i. “Torture” definition
Our opinion in Rhines I observed that an
acceptable interpretation of “torture” as used in SDCL 23A-27A-1(6)
included two elements: “(1) the unnecessary and wanton infliction of
severe pain, agony, or anguish; and (2) the intent to inflict such
pain, agony, or anguish.” 1996 SD 55, ¶ 161, 548 N.W.2d at 452. See
also Moeller II, 2000 SD 122, ¶ 115, 616 N.W.2d at 454 (reaffirming
this definition of “torture”).
The purpose of this interpretation is
to “eliminat[e] from the pool of death-eligible murderers those who
intended to kill their victims painlessly or instantly or who only
intended to cause pain that was incidental to death.” Moeller II,
2000 SD 122, ¶ 115, 616 N.W.2d at 454 (citing Rhines I, 1996 SD 55,
¶ 161, 548 N.W.2d at 452). As noted above, we presume the circuit
court was familiar with this interpretation. See Sochor, 504 U.S. at
536-37, 112 S.Ct. at 2121-22, 119 L.Ed.2d 326.
Under this interpretation of “torture,” Page's
challenge to the sufficiency of the evidence must fail. Page debated
the relative methods of killing Poage in front of the conscious
victim, including slitting his throat. Page forced Poage to lie in
the snow and then kicked more snow on top of his naked body. When
Poage attempted to escape to save his life, Page ran him down and
forced him into the icy creek. By his own admission, Page kicked the
victim in the head so many times and with such force that it made
his own foot sore. Taking Poage's head in his arms, Page was the
first to stab the victim. When Poage asked him “What are you doing?”
Page told him to “just sit there” and then plunged his knife all the
way into Poage's neck. Page chuckled when Piper made jokes about the
amount of pain the victim was enduring. Finally, Page dropped
several heavy rocks on Poage's skull before the victim finally
expired in the icy creek. These events clearly support the circuit
court's determination that Page inflicted severe pain, agony, and
anguish upon Poage before murdering him.
ii. “Depravity of mind” and “aggravated battery”
definitions
In Moeller II, we upheld a trial court's
narrowing instruction of “depravity of mind” requiring a finding
that the defendant acted with “indifference to the life or suffering
of the victim ... [with] a corrupt, perverted or immoral state of
mind on the part of the [d]efendant in excess of what was required
to accomplish the murder.” 2000 SD 122, ¶¶ 103-11, 616 N.W.2d at
452-53. See Moeller I, 1996 SD 60, ¶ 118, 548 N.W.2d at 492-93.
Similarly, we approved an instruction of “aggravated battery” that
required findings of:
(1) the infliction of serious physical abuse upon
the victim, by depriving her of a member of her body, by rendering a
member of her body useless, or by seriously disfiguring her body or
a part of her body; and
(2) the defendant ... had the specific intention,
design, or purpose of maliciously inflicting unnecessary pain to the
victim ... [which] implies suffering in excess of what was required
to accomplish the murder. Moeller II, 2000 SD 122, ¶¶ 117-20, 616
N.W.2d at 454-55. See Moeller I, 1996 SD 60, ¶ 115, 548 N.W.2d at
492. We assume the circuit court was aware of and followed these
narrowing interpretations. See Sochor, 504 U.S. at 536-37, 112 S.Ct.
at 2121-22, 119 L.Ed.2d 326.
In light of these limiting interpretations, we
reject Page's sufficiency of the evidence arguments. Page made Poage
drink a mixture of pills, beer, and hydrochloric acid. Page kicked
Poage in the head numerous times with great force at the gulch. On a
late winter's night, Page forced the victim to lie naked in the snow
and in an ice-cold creek for an extended period of time. Page talked
to the victim as he stabbed him in the throat. Finally, Page dropped
numerous heavy stones on Poage's head before the victim died. Page
did all of these things over the span of a few hours, despite
Poage's cries of pain and pleas for mercy. Viewing this evidence in
the light most favorable to Page's sentence, we believe there was
ample support for the circuit court's determination that Page acted
with a depraved mind while committing an aggravated battery upon
Poage.
c. SDCL 23A-27A-1(9)
The circuit court also determined that an
aggravating circumstance existed as defined in SDCL 23A-27A-1(9):
“The offense was committed for the purpose of avoiding, interfering
with, or preventing a lawful arrest or custody in a place of lawful
confinement, of the defendant or another [.]” Page argues that the
evidence is insufficient to establish that he participating in
murdering Poage in order to eliminate him as a witness. Rather, he
contends he only participated in killing Poage at the direction of
co-defendant Piper.
Page's assertion is without merit. By Page's own
admission, the group took Poage to Higgins Gulch specifically
because it was a secluded area where few people ever went. The group
killed Poage in the gulch and then left his body in the remote area.
Poage knew Page and would have been able to easily identify Page as
one of his attackers, but his murder left no witness to the crime.
The transporting of a robbery victim to a remote area in order to
accomplish his murder can hardly be understood as anything other
than a means of destroying or hiding evidence of a crime. The record
contains more than sufficient evidence to support the circuit
court's finding beyond a reasonable doubt that Page's conduct was an
aggravating circumstance as defined by SDCL 23A-27A-1(9).
5. Whether the circuit court deprived Page of an
individualized sentencing hearing in violation of the Eighth and
Fourteenth Amendments.
Page next asserts that the circuit court
unconstitutionally deprived him of an individualized sentencing
hearing because it failed to adequately take into account the
mitigation evidence he presented. Page also alleges the circuit
court failed to correctly evaluate the mitigation evidence.
Essentially, Page believes that the evidence in mitigation he
presented was so compelling that no judge could have rationally
imposed the death penalty in his case.
In order for a defendant to become eligible for
capital punishment in South Dakota, one of the ten aggravating
circumstances provided in SDCL 23A-27A-1 must be proved beyond a
reasonable doubt. Pursuant to SDCL 23A-27A-2, “[i]n all cases in
which the death penalty may be imposed,” a presentence hearing is
required at which “ all relevant evidence, including ... any
mitigating circumstances” must be heard. (emphasis added). “The law
permits the jury to consider any mitigating circumstances, but does
not impose any standard of proof regarding mitigation.” Rhines I,
1996 SD 55, ¶ 78, 548 N.W.2d at 437 (citing SDCL 23A-27A-1 and 2).
The Supreme Court has issued several opinions
stressing the necessity of individualized sentencing in capital
cases. In Lockett v. Ohio, the Supreme Court held that
individualized sentencing in death penalty cases is constitutionally
required under the Eighth and Fourteenth Amendments. 438 U.S. 586,
606, 98 S.Ct. 2954, 2966, 57 L.Ed.2d 973 (1978).
Based upon this
constitutional mandate, the Lockett Court held that juries in
capital cases must “not be precluded from considering, as a
mitigating factor, any aspect of a defendant's character or record
and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” 438 U.S. at
604, 98 S.Ct. at 2964-65, 57 L.Ed.2d 973. In Eddings v. Oklahoma,
the Court went on to state that it would be an error of law for a
sentencer to refuse to consider any relevant mitigating evidence
proffered by a capital defendant. 455 U.S. 104, 113-14, 102 S.Ct.
869, 876-77, 71 L.Ed.2d 1 (1982) “(holding that a sentencer's
refusal to take into account a sixteen year old capital defendant's
difficult family history” and “severe emotional disturbance”
violated its decision in Lockett ). Additionally, in Mills v.
Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and
McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d
369 (1990), the Supreme Court struck down those death penalty
schemes that required juries to consider only those mitigating
factors found unanimously. See Beard v. Banks, 542 U.S. 406, 410,
124 S.Ct. 2504, 2509-10, 159 L.Ed.2d 494 (2004) (holding that Mills
announced a new rule of constitutional law that nevertheless may not
be applied retroactively).
We have recognized and applied the rationale of
Lockett and its progeny saying “[i]t is imperative that the jury be
permitted to weigh all relevant mitigating evidence, and any attempt
to limit consideration of such evidence is rejected by this Court.”
Moeller I, 1996 SD 60, ¶ 130, 548 N.W.2d at 494 (emphasis added).
See Rhines I, 1996 SD 55, ¶¶ 80-82, 548 N.W.2d at 437-38. We have
recognized, however, that South Dakota law imposes no specific
standard of proof in regard to mitigation. Rhines v. Weber, 2000 SD
19, ¶ 39 n. 9, 608 N.W.2d 303, 312 n. 9 ( Rhines II ) (citing SDCL
23A-27A-1 and 2). In Rhines I, we acknowledged:
We have rejected the notion that “a specific
method for balancing mitigating and aggravating factors in a capital
sentencing proceeding is constitutionally required.” Franklin v.
Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 2330, 101 L.Ed.2d 155,
169 (1988). Equally settled is the corollary that the Constitution
does not require a State to ascribe any specific weight to
particular factors, either in aggravation or mitigation, to be
considered by the sentencer. 1996 SD 55, ¶ 82, 548 N.W.2d at 438 (quoting
Harris v. Alabama, 513 U.S. 504, 512, 115 S.Ct. 1031, 1035, 130 L.Ed.2d
1004 (1995)).
In addition, we have also held that “South Dakota law
does not require the weighing of aggravating circumstances against
mitigating factors. Although the jury is free to consider all
mitigating circumstances, they need only find one statutory
aggravating factor beyond a reasonable doubt to impose the death
penalty.” Rhines II, 2000 SD 19, ¶ 53, 608 N.W.2d at 314 (citing
Rhines I, 1996 SD 55, ¶¶ 78-82, 169, 548 N.W.2d at 437-38, 453).
As required by the Federal Constitution and South
Dakota law, the circuit court allowed Page to offer an extensive
amount of evidence in mitigation. In its findings of fact and
conclusions of law, the circuit court wrote that it “[gave] due
consideration to the mitigating circumstances” presented by Page.
The court noted that Page had called nineteen witnesses on his
behalf at the sentencing hearing, each of which the circuit judge
named from the bench. At the sentencing hearing, the circuit court
acknowledged the mitigating circumstances in Page's case, saying:
I've considered the evidence in mitigation. I've
considered your young age and your background. Your early years must
have been a living hell. Most people treat their pets better than
your parents treated their kids.
It's also apparent from your background that
there was a point in time when people and professional people
offered help in the form of foster care, group care, psychological
treatment, psychiatric counseling. Some of these people have
testified on your behalf.
Despite this mitigating evidence, however, the
circuit court believed the specific circumstances of Page's case
justified the imposition of the death penalty. As detailed under our
analysis in Issue 4, the circuit court determined that several
aggravating factors were present in Page's case. The circuit court
was not required to utilize any specific formula to weigh Page's
mitigating evidence against the particularly heinous aggravating
circumstances it found in this case. See Rhines II, 2000 SD 19, ¶
53, 608 N.W.2d at 314. The fact that the court imposed the death
penalty does not mean that it ignored Page's evidence in
mitigation-“[t]he law permits mercy but does not require it.” Rhines
I, 1996 SD 55, ¶ 182, 548 N.W.2d at 455. The record does not support
Page's argument that he was deprived of individualized sentencing.
6. Whether the selective application of South
Dakota's mandatory capital sentencing procedures is
unconstitutional.
Although Page argued this issue before our ruling
in Moeller v. Weber, 2004 SD 110, 689 N.W.2d 1 ( Moeller III ), our
decision in that case fully resolved the identical question. Moeller
III, 2004 SD 110, ¶¶ 42-51, 689 N.W.2d at 14-18. Thus, we need not
reexamine it here. In accord with our holding in Moeller III, Page
did not suffer an unconstitutional application of South Dakota's
capital sentencing procedures.
7. Whether Page's death sentence was grossly
disproportionate to the penalty imposed in similar cases considering
both the crime and the defendant.
In every case where the death penalty is imposed,
this Court is required to conduct an independent review of the
sentence. SDCL 23A-27A-9. We must 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. SDCL 23A-27A-12; Moeller II, 2000 SD 122, ¶ 163, 616
N.W.2d at 462-63; Rhines I, 1996 SD 55, ¶ 180, 548 N.W.2d at 454-55.
First, we must determine whether Page's sentence
of death was imposed under the influence of passion, prejudice, or
any other arbitrary factor. We have already rejected Page's claim
that it was error for the circuit court to sentence him after it
sentenced co-defendant Piper to death. We have also determined that
the circuit court adequately considered the evidence in mitigation
presented by Page at the sentencing hearing. We conclude no
extenuating circumstance influenced Page's sentence and decline to
reverse his sentence on any of these grounds.
Next, we must determine whether the evidence
supported the circuit court's finding of the alleged aggravating
circumstances in Page's case beyond a reasonable doubt. After
rejecting Page's constitutional challenges to the aggravating
factors set out in SDCL 23A-27A-1, we concluded under our analysis
of Issue 4 that ample evidence existed to support the circuit
court's findings of the aggravating factors listed in SDCL
23A-27A-1(3), (6), and (9). Thus, Page is entitled to no relief
based upon any of his theories challenging the evidence of
aggravating factors in his case.
Third, we must address whether Page's sentence is
disproportionate when compared to sentences in similar South Dakota
cases, considering both the crime and the defendant. SDCL 23A-27A-13
provides that “[t]he court shall include in its decision a reference
to those similar cases which it took into consideration.” In Rhines
I, we stated:
We conclude that similar cases for purposes of
SDCL 23A-27A-12(3) are those cases in which a capital sentencing
proceeding was actually conducted, whether the sentence imposed was
life or death. “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.” 1996 SD
55, ¶ 185, 548 N.W.2d at 455-56 (quoting Tichnell v. State, 297 Md.
432, 468 A.2d 1, 15-16 (1983) (citation omitted)).
With this
holding, we rejected the defendant's argument that “the pool of
similar cases for proportionality review should encompass all
homicide cases that were prosecuted or could have been prosecuted
under the State's current capital punishment scheme.” Id. ¶ 184, 548
N.W.2d at 455. Our opinion in Moeller II rejected a similar
argument. 2000 SD 122, ¶ 167, 616 N.W.2d at 463. Accordingly, we
decline to address Page's contention that the proper universe of
similar cases is all convictions for Class A felonies in South
Dakota.
Instead, we consider only those cases that
resulted in a capital sentencing proceeding. Since the 1979
enactment of South Dakota's current capital punishment scheme,
thirteen capital sentencing proceedings, including those of Page and
his co-defendants Piper and Hoadley, have been conducted. In seven
of those proceedings, the jury declined to impose the death penalty
and sentenced the defendant to life imprisonment. Our opinion in
Rhines I summarized six of these cases. See 1996 SD 55, ¶¶ 187-204,
548 N.W.2d at 456-57; see also Moeller II, 2000 SD 122, ¶ 168, 616
N.W.2d 424, 463-64 (taking judicial notice of the case summaries set
out in Rhines I ). Co-defendant Hoadley's conviction represents the
seventh case. Hoadley, 2002 SD 109, 651 N.W.2d 249. In Rhines I,
1996 SD 55, 548 N.W.2d 415, Moeller I, 1996 SD 60, 548 N.W.2d 465
and State v. Anderson, 2003 SD 65, 664 N.W.2d 48 (Anderson II), the
jury imposed the death sentence. We take judicial notice of the
summaries of each of these cases as set forth in Rhines I, 1996 SD
55, ¶ 196, 548 N.W.2d at 456 (summarizing Moeller I ) and Moeller II,
2000 SD 122, ¶¶ 169-171, 616 N.W.2d at 464 (summarizing Rhines I,
Anderson I and Anderson II ). FN8 We take further judicial notice of
co-defendant Piper's case. State v. Piper, 2006 SD 1, 709 N.W.2d
783.
FN8. The facts supporting Anderson's death
penalty sentence are reviewed in Moeller II, 2000 SD 122, ¶¶
169-171, 616 N.W.2d at 464. However, due to Anderson's suicide in
2003, the full facts that resulted in his conviction for the
kidnapping and murder of Larisa Dumansky, and the rape and murder of
Piper Streyle are not contained in Anderson II, 2003 SD 65, 664
N.W.2d 48. Additional facts pertaining to his conviction for the
kidnapping of Streyle are contained in State v. Anderson, 2000 SD
45, 608 N.W.2d 644 ( Anderson I ).
After comparing Page's sentence of death with the
other cases in the proportionality pool, we conclude his sentence
was not disproportionate considering Page's criminal actions. First,
we note the only other case that involved the presence of as many
aggravating factors as were found in Page's case was in defendant
Rhine's case. Since 1979, only defendants Moeller, Rhines, and
Anderson have approached the sheer brutality exhibited by Page, FN9
and all three defendants received the death penalty.
FN9. See the analysis in Piper, 2006 SD 1, ¶¶
40-43, 709 N.W.2d at 802, for a separate analysis of co-defendant
Piper's acts.
There is ample evidence in this case that Page
subjected Poage to injury and pain far in excess of what was
required to accomplish his murder. The amount of torture present in
this case was unprecedented in South Dakota. Although the
aggravating factor of torture was found in the cases of Rhines,
Moeller, and Anderson, the evidence in this case shows that Page
tortured Poage for at least three and one-half hours before Page was
satisfied Poage was dead.
During that time Page, along with one of his co-defendants,
rendered Poage helpless by tying him up with an extension cord. Page
admitted to delivering multiple “full football kicks” to Poage's
skull with his boots, so many times that his own foot was sore. Page
forced the victim to drink a hydrochloric acid concoction while tied
up and unable to move. Page stabbed the victim at least once,
forcing his knife as far as he could into Poage's neck.
Directly in front of the conscious victim, Page
discussed the “best” way to murder Poage, including slitting his
throat. Page forced the almost completely nude Poage to endure
freezing temperatures for an extended period of time. Like Rhines,
Page taunted the victim throughout the ordeal. Page “chuckled” at
the amount of pain the victim was experiencing.
After stabbing
Poage, Page allowed the victim to wash himself off in the icy stream
in the false hope he would be allowed to bleed to death in the
warmth, rather than in the cold. Finally, Page dropped several heavy
stones on the victim's head until Page concluded he was dead. Poage
suffered terribly at the hands of Page.
“The disparity in suffering endured by victims is
an important and legitimate consideration when evaluating the
proportionality of a death sentence.” Rhines I, 1996 SD 55, ¶ 207,
548 N.W.2d at 458. Based on the sheer brutality and torture
inflicted upon the victim in this case, we conclude the imposition
of the death penalty upon Page was neither excessive nor
disproportionate.FN10
FN10. The only two sentencing options before the
circuit court were life in prison without possibility of parole or
death. In either case, baring executive clemency, the defendant
would not ever be released back into society. Thus, the issue of
rehabilitation is not of major concern. “Clearly there are some acts
of such a criminal magnitude that they justify a life sentence [or
death] whether the perpetrator is capable of rehabilitation or not.
In such instances the sentence is not disproportionate to the crime.”
State v. Milk, 2000 SD 28, ¶ 18, 607 N.W.2d 14, 20.
8. Whether Page's death sentence was
unconstitutionally imposed when the indictment failed to allege any
aggravating circumstances.
In Moeller III, we dealt with this identical
issue and held that failure to allege aggravating circumstances in
an indictment is not unconstitutional under Ring, 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 556. Since our holding in Moeller III, other
state courts have likewise concluded that aggravating factors need
not be pleaded in a state indictment. See Bustamante v. Wall, 866
A.2d 516, 522-23 (R.I.2005) (holding no constitutional requirement
that aggravating factors be set forth in grand jury indictment);
McKaney v. Foreman ex rel County of Maricopa, 209 Ariz. 268, 100
P.3d 18, 22 (2004) (no requirement that aggravating factors be
pleaded in indictment). As in Moeller III, the State's formal notice
of aggravating factors here provided sufficient notice to Page under
both our federal and state constitutions.
9. Whether Page's death sentence was
unconstitutionally imposed when SDCL 23A-27A-6 failed to allow a
jury determination of the appropriate penalty upon a plea of guilty
to the circuit court
Having rejected Page's first claim based upon
Ring, we now turn to his contention that the death penalty was
unconstitutionally imposed. Page also relies on Ring to argue his
case was unconstitutionally conducted because the circuit court,
rather than a jury, made the factual findings that the State had
proved the existence of aggravating circumstances beyond a
reasonable doubt.FN11
FN11. The analysis of this issue is based upon
this Court's analysis of the same issue raised in Moeller III, 2004
SD 110, 689 N.W.2d 1. Given the seriousness of the penalty herein,
we re-state the Moeller III analysis as applicable to this opinion.
See also Piper, 2006 SD 1,¶¶ 47-68, 709 N.W.2d at 803-10.
Specifically, Page asserts that SDCL chapter
23A-27A is unconstitutional because it does not provide defendants
who plead guilty to a capital offense with an opportunity to have
the aggravating circumstances found by a jury as opposed to a judge.
Although in this case the circuit court offered Page the opportunity
to have a sentencing hearing in front of a jury, an option which
Page declined to exercise and instead specifically asked for the
court to sentence him, Page argues the circuit court did not have
the authority under South Dakota law to present him this option.
We agree with Page's argument that under Ring, a
capital sentencing scheme would be unconstitutional if it prevented
a defendant who pleaded guilty from having alleged aggravating
circumstances found by a jury. See Ring, 536 U.S. at 609, 122 S.Ct.
at 2443, 153 L.Ed.2d 556. We do not believe, however, that there is
any statutory impediment preventing a defendant who pleads guilty in
a South Dakota state court from exercising his right to a jury at
the penalty phase.
The South Dakota sentencing scheme involves two
procedural statutes: SDCL 23A-27A-2 and SDCL 23A-27A-6. SDCL
23A-27A-2, which governs the procedure to be followed in capital
cases where a jury makes the sentencing determination, requires the
court to conduct a presentencing hearing before a jury. SDCL
23A-27A-2 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: (1) Evidence supporting any of the aggravating
circumstances listed under § 23A-27A-1; (2) Testimony regarding the
impact of the crime on the victim's family; (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; (4) All evidence concerning any mitigating
circumstances. SDCL 23A-27A-6, which governs the procedure to be
followed in capital cases where a jury trial is waived and the court
makes the sentencing determination, provides:
In nonjury cases the judge shall, after
conducting the presentence hearing as provided in § 23A-27A-2,
designate, in writing, the aggravating circumstance or
circumstances, if any, which he found beyond a reasonable doubt.
Unless at least one of the statutory aggravating circumstances
enumerated in § 23A-27A-1 is so found, the death penalty shall not
be imposed. (emphasis added).
We have long recognized the general rule that
“[w]hen interpreting a statute we presume the legislature intended
to enact a valid statute, and where ‘a statute can be construed so
as not to violate the constitution,’ we will adopt such a
construction.” State v. Martin, 2003 SD 153, ¶ 26, 674 N.W.2d 291,
300 (quoting State v. Allison, 2000 SD 21, ¶ 25, 607 N.W.2d 1, 2).
Therefore, we interpret SDCL 23A-27A-2 and SDCL chapter 23A-27 in
general as providing for a sentencing hearing wherein a jury will
determine the presence or absence of alleged aggravating factors
when a defendant pleads guilty to a capital offense. We must reject
as unconstitutional any reading of SDCL chapter 23A-27A that would
prevent a capital defendant from having the opportunity to have a
sentencing hearing before a jury.
The statutory scheme in SDCL chapter 23A-27A
regulates the sentencing procedure. An examination of all relevant
statutes reflects that SDCL 23A-27A-2 and 6 do not purport to
regulate the right to jury sentencing in capital cases. There is
certainly no language in either statute that clearly, or otherwise,
states that the jury hearing on aggravating circumstances is
inapplicable in nonjury cases when a defendant has pleaded guilty as
Page claims. Instead, a correct reading reflects that the statutes
simply do not speak to the subject of the right to jury sentencing.
Indeed, the purpose of SDCL 23A-27A-2 is to describe the procedure
to be followed in cases “which are tried by a jury,” and SDCL
23A-27A-6 describes the procedure to be followed in “ nonjury
cases.” (emphasis added.) This emphasized language, cases “which are
tried by a jury” and “ nonjury cases,” demonstrates that these
statutes do not purport to “prevent” the right of jury sentencing.
Rather, this emphasized language demonstrates that the statutes
presume that the right to jury trial has been determined elsewhere.
Therefore, the South Dakota statutes are unlike
the Arizona statutes that were invalidated in Ring, 536 U.S. 584,
122 S.Ct. 2428, 153 L.Ed.2d 556. The Ring statutes expressly
governed the right to jury sentencing because they explicitly
provided that only a judge could consider the aggravating
circumstances and impose a death sentence.FN12 Id. at 592, 122 S.Ct.
at 2434, 153 L.Ed.2d 556.
In contrast, the South Dakota statutes are
simply silent on the subject of the right to jury sentencing. This
silence is hardly surprising because most provisions in our criminal
code fail to expressly grant or deny the right to a jury trial.
Rather, the code provisions leave it to the state and federal
constitutions and specific implementing statutes to regulate the
right to a jury trial.
The Arizona statutes stated: “[t]he hearing shall
be conducted before the court alone. The court alone shall make all
factual determinations required by this section or the constitution
of the United States or this state.” Ring, 536 U.S. at 592, 122
S.Ct. at 2434, 153 L.Ed.2d 556 (emphasis added) (quoting Ariz. Rev.
Stat. Ann. § 13-703(C)(2001), amended by 2002 Ariz. Sess. Laws, 5th
Spec. Sess., ch. 1, § 1).
The state and federal constitutions provide the
foundation for South Dakota's jury implementing statutes. The Sixth
Amendment to the United States Constitution guarantees the right to
a jury trial in capital cases without qualification.FN13 Article VI,
section 6 and section 7 of the South Dakota Constitution also grant
that right. The South Dakota language provides: FN13. “In all
criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed[.]” US Const. amend. VI.
The right of trial by jury shall remain inviolate
and shall extend to all cases at law without regard to the amount in
controversy[.][§ 6].
In all criminal prosecutions the accused shall
have the right ... to a speedy public trial by an impartial jury of
the county or district in which the offense is alleged to have been
committed. [§ 7]. “The obvious purpose of these [c]onstitutional
provisions is to guarantee an accused the right to trial by jury. It
is a right [that] cannot be denied or withheld by the state.” State
v. Thwing, 84 S.D. 391, 394, 172 N.W.2d 277, 278 (1969) (emphasis
added). And, the scope of the right is broad. It extends to all
cases “where such right existed at common law.” See State v.
Mitchell, 3 S.D. 223, 226, 52 N.W. 1052, 1052 (1892).
Because the
right to a jury trial in capital cases existed under the common law
at the time our Federal Constitution was adopted, there is no
dispute that the South Dakota Constitution guarantees that right in
capital cases today. See 1887 Dakota Terr. Compiled Laws §§
7322-7336, 7484, 7489; McCall v. United States, 1 Dak 320, 46 N.W.
608 (Dakota Terr.1876).
This constitutional guarantee has been
implemented by two statutes not considered by Page. The first, SDCL
23A-18-1 (Rule 23(a)), affords the right to jury trial in all cases
contemplated by the constitutions. The statute provides that:
“[c]ases required to be tried by a jury shall be so tried unless the
defendant waives a jury trial in writing or orally on the record
with the approval of the court and the consent of the prosecuting
attorney.” Id. (emphasis added).
Because it is well settled that
both the guilt and sentencing phases of capital cases are required
to be tried by a jury,FN14 SDCL 23A-18-1 implements the
constitutional guarantee and affirmatively directs that a jury shall
be utilized. Thus, even if SDCL 23A-27A-2 and 23A-27A-6 fail to
explicitly afford the right of jury sentencing, SDCL 23A-18-1 cures
the alleged omission.
FN14. See Ring, 536 U.S. at 609, 122 S.Ct. at
2443, 153 L.Ed.2d 556 (observing that “[t]he right to trial by jury
guaranteed by the Sixth Amendment would be senselessly diminished if
it encompassed the factfinding necessary to increase a defendant's
sentence by two years, but not the factfinding necessary to put him
to death”).
The second statute, SDCL 23A-45-13, further
authorized the circuit court's offer of a jury sentencing in this
case. In analyzing SDCL 23A-45-13, it must be reiterated that SDCL
23A-27A-2 and 23A-27A-6 are procedural statutes that do not
expressly speak to the right of jury trial. FN15 Therefore, in cases
like this where there is no statutory prohibition on the procedural
right to a jury, SDCL 23A-45-13 authorizes the trial court to
proceed “in any lawful manner.” It provides “[i]f no procedure is
specifically prescribed by statute or rule, a court may proceed in
any lawful manner not inconsistent with this title or with any other
applicable statute.” SDCL 23A-45-13.
There is no dispute that the Ring right of
sentencing by jury is a matter of procedure. The United States
Supreme Court so held, explaining:
A rule is substantive rather than procedural if
it alters the range of conduct or the class of persons that the law
punishes. See Bousley [ v. United States, 523 U.S. 614] at 620-621,
118 S.Ct. 1604[, 1609-1610, 140 L.Ed.2d 828 (1998) ] (rule “hold[s]
that a ... statute does not reach certain conduct” or “make[s]
conduct criminal”); Saffle [ v. Parks, 494 U.S. 484,] 495, 110 S.Ct.
1257[,108 L.Ed.2d 415 (1990) ] (rule “decriminalize[s] a class of
conduct [or] prohibit[s] the imposition of ... punishment on a
particular class of persons”). In contrast, rules that regulate only
the manner of determining the defendant's culpability are procedural.
See Bousley, supra, at 620, 118 S.Ct. 1604[, 140 L.Ed.2d 828].
Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 2523, 159
L.Ed.2d 442 (2004). Schriro went on to hold that “judged by this
standard,” the Ring right to have a jury determine aggravating
circumstances in imposing the death penalty “is properly classified
as procedural.” Id.
Thus, even if we were to accept Page's offered
construction of SDCL chapter 23A-27A, that it does not authorize
jury sentencing in capital cases following a guilty plea, other
statutes provide that right. SDCL 23A-45-13 fills the void by
authorizing a trial court to “proceed in any lawful manner.” And,
SDCL 23A-18-1 not only authorized, but required the circuit court to
offer a jury hearing and sentencing. As this Court has previously
noted, trial courts must use this latter statute to properly
guarantee a defendant's constitutional rights and to “provide an
effective manner to try the case.” State v. Goodman, 384 N.W.2d 677,
680 (S.D.1986).
In this case, however, Page specifically asked to
be sentenced by the circuit court, thereby waiving his
constitutional right to have a jury determine whether the alleged
aggravating circumstances in his case existed beyond a reasonable
doubt. “Even fundamental rights can be waived.” State v. Garber,
2004 SD 2, ¶ 25, 674 N.W.2d 320, 327 (quoting State v. Henjum, 1996
SD 7, ¶ 13, 542 N.W.2d 760, 763).
The circuit court properly
presented Page with the option of exercising his right to sentencing
by a jury as provided by South Dakota's capital punishment statutory
scheme. It appears that Page may well have waived his right to a
jury trial because he could not afford to have a jury hear the
horrendous facts of his case, and he apparently believed that he
might receive more favorable treatment before the circuit court.
Now on appeal, dissatisfied with his choice, he
asks this Court to invalidate his voluntary waiver of a jury
sentencing. Page argues that even though he did not want a jury
sentencing, if he would have wanted one, that sentencing would have
been unavailable. Page contends that the circuit court had no
authority to offer jury sentencing, and therefore, the circuit
judge's offer of jury sentencing was “illusory.” In circular
reasoning, Page concludes that such an illusory offer is
insufficient to overcome an unconstitutionally imposed death
sentence.
Page is mistaken in three respects. First, as was
explained above, the circuit court was authorized to offer a jury
hearing at the sentencing phase of this capital case. Even assuming
that the circuit court had no specific authority to offer a jury
sentencing under the capital sentencing statutes, SDCL 23A-18-1 and
23A-45-13 explicitly authorized, and in fact required, use of a jury
unless waived. Thus, the circuit court's offer was not illusory.
Second, even if one were to assume that there was
no statutory authority to offer jury sentencing, the waiver was
still valid because the Ring analysis is inapplicable when a
defendant waives the right to jury sentencing. While Page offers
absolutely no authority for his contrary conclusion, all courts that
have considered the issue uphold such waivers.
The courts recognize
that the Ring analysis is inapplicable because the defendant in Ring
pleaded not guilty and went to trial, but was deprived of jury
sentencing. Because Ring is limited to cases where a defendant is
deprived of a requested jury sentencing, the authorities hold that
guilty pleas and waivers are valid even if the underlying sentencing
scheme explicitly and unequivocally precludes the defendant from
receiving a jury sentence. Colwell v. State, 118 Nev. 807, 59 P.3d
463 (2002); Moore v. State, 771 N.E.2d 46 (Ind.2002).
For example, in Colwell, the Nevada Supreme Court
considered this issue and concluded that “ Ring is not applicable to
[a defendant's] case [when], unlike Ring, [the defendant pleads]
guilty and waive[s] his right to a jury trial.” 59 P.3d at 473. The
Nevada Supreme Court reached that conclusion even though the Nevada
statutory framework, like Arizona's, FN16 unequivocally eliminated
the right to a jury at sentencing. Id. FN17 Colwell distinguished
Ring because Ring pleaded not guilty and went to trial, unlike
Colwell who pleaded guilty and waived his right to a jury trial. Id.
Colwell ultimately observed that because the Supreme Court “has held
that the valid entry of a guilty plea in a state criminal court
involves the waiver of several federal constitutional rights[,
a]mong these ... ‘the right to trial by jury’[,] Colwell's guilty
plea included an express waiver of his right to a jury trial and was
valid.” Id. at 474 (citing Boykin v. Alabama, 395 U.S. 238, 243, 89
S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)).
FN16. Colwell described the Arizona sentencing
scheme that was overturned in Ring as one in which, “following a
jury adjudication of a defendant's guilt of first-degree murder, the
trial judge, sitting alone, determines the presence or absence of
the aggravating factors required by Arizona law for imposition of
the death penalty.” 59 P.3d at 469.
FN17. The Nevada statute provided “that when a
defendant pleads guilty to first-degree murder and the State seeks a
death sentence, a panel of three district judges must ‘conduct the
required penalty hearing to determine the presence of aggravating
and mitigating circumstances, and give sentence accordingly.’ ” Id.
at 469 n. 60 (citing Nev.Rev.Stat. § 175.558, repealed by 2003 Nev.
Laws, c. 366, § 8).
The Indiana Supreme Court reached the same
conclusion in Moore, 771 N.E.2d at 49. In Moore, the Indiana
statutes, like those in Nevada, unequivocally, and
unconstitutionally, foreclosed any possibility of a right to jury
sentencing following a plea of guilty. Id. FN18
Nevertheless, the
Indiana Supreme Court concluded that the defendant's voluntary plea
of guilty to three counts of murder waived his entitlement to argue
that the “Indiana capital sentencing statute violated the federal
and state constitutions by depriving him of a jury determination of
the aggravating circumstances that made him eligible for the death
sentence.” Id. Moore observed that because the defendant knew that
his guilty plea would deprive him of access to a jury, he had
forfeited his right to “have a jury recommend to the trial court
whether or not a death penalty should be imposed against” the
defendant. Id.
FN18. “At the time of the offense, the statute,
Indiana Code § 35-50-2-9 (Supp. 1979), provided in relevant part,
‘If the defendant was convicted of murder in a jury trial, the jury
shall reconvene for the sentencing hearing; if the trial was to the
court, or the judgment was entered on a guilty plea, the court alone
shall conduct the sentencing hearing.’ Ind. Code § 35-50-2-9(d)
(Supp. 1979).” Id. at 49 (emphasis in original).
It must be further observed that Page's waiver is
also valid under United States Supreme Court authority and a prior
decision of this Court. The United States Supreme Court has long
held that a waiver of the right to a jury is valid even though the
underlying right waived does not exist. See Patton v. United States,
281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930) (waiving the right
to a jury composed of twelve persons) ( abrogated on other grounds
by, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446
(1970)). Similarly, in Thwing, 84 S.D. 391, 172 N.W.2d 277, this
Court upheld waiver of a right to a jury trial even though the
underlying right, an alleged right to a court trial, did not exist.
This Court did so because “[t]he ability to waive a constitutional
right does not ordinarily carry with it the right to insist upon the
opposite of that right.” Id. at 395-96, 172 N.W.2d at 279 (quoting
Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630
(1965)).
As was previously pointed out, the law is quite
settled that even assuming Page had no statutory right to a jury
hearing at sentencing, his decision to waive that “nonexistent”
statutory right and proceed with sentencing before the circuit court
was a valid waiver of his constitutional right to jury sentencing.
See Colwell, 59 P.3d 463; Moore, 771 N.E.2d 46. See also Sanchez v.
Superior Court, 102 Cal.App.4th 1266, 126 Cal.Rptr.2d 200, 206
(2002) (holding that after Ring, a defendant may validly waive his
or her right to have the jury determine the degree of murder);
People v. Jackson, 199 Ill.2d 286, 263 Ill.Dec. 819, 769 N.E.2d 21,
27 (2002) (stating that “[e]very fact necessary to establish the
range within which a defendant may be sentenced is an element of the
crime and thus falls within the constitutional rights of a jury
trial and proof beyond a reasonable doubt, made applicable to the
states by the due process clause of the fourteenth amendment. But by
pleading guilty, a defendant waives exactly those rights.” ); People
v. Chandler, 321 Ill.App.3d 292, 254 Ill.Dec. 967, 748 N.E.2d 685,
690 (2001) (stating that “[h]aving waived a jury trial on all issues,
defendant cannot now claim that he was deprived of the right to have
a jury determine the issue of his future dangerousness”); State v.
Edwards, 810 A.2d 226, 234 (R.I.2002) (holding that “[b]y waiving a
jury, defendant accepted the procedure as followed in this case,
that the trial justice, after finding him guilty of the offense of
first-degree domestic murder, would proceed to find, as she did,
that the aggravating circumstance of torture and aggravated battery
had been proven beyond a reasonable doubt”).
It must also be observed that Page's argument
against following settled waiver jurisprudence would shift to a
capital defendant the exclusive right to control the sentence he or
she receives. In order to control the sentence, a defendant need
merely waive the right to jury, or presumably some other
constitutional right, at sentencing. Should the defendant not
receive the life sentence requested from the trial court, he or she
then need only appeal arguing a denial of the constitutional right
that he or she had expressly waived. See People v. Rhoades, 323
Ill.App.3d 644, 257 Ill.Dec. 342, 753 N.E.2d 537, 544 (2001).
Because the reasoning advanced by Page requires the invalidation of
sentences when this appellate argument is made, and because a life
sentence must be imposed under SDCL 23A-27A-14 whenever a death
sentence is invalidated by this Court, the procedural maneuvering
sanctioned would guarantee a capital defendant the absolute right to
obtain a life sentence. The Legislature could not have intended such
an absurd result in enacting SDCL 23A-27A-2, 6, and 14.
It must be finally noted that Page's third and
final argument on this issue is based upon a hypothetical that he
might have asked for jury sentencing. However, Page lacks standing
to assert the invalidity of his waiver based upon a hypothetical.
Because Page waived the right to jury sentencing, he may not now
argue that the statutes are unconstitutional as applied to him or
someone else who might have requested a jury sentence. As the
Supreme Court has explained:
[a] party has standing to challenge the
constitutionality of a statute only insofar as it has an adverse
impact on his own rights. As a general rule, if there is no
constitutional defect in the application of the statute to a
litigant, he does not have standing to argue that it would be
unconstitutional if applied to third parties in hypothetical
situations.FN19
FN19. “A limited exception has been recognized
for statutes that broadly prohibit speech protected by the First
Amendment. This exception has been justified by the overriding
interest in removing illegal deterrents to the exercise of the right
of free speech.” Allen, 442 U.S. at 155, 99 S.Ct. at 2223, 60
L.Ed.2d 777 (internal citation omitted). County Court of Ulster
County, N.Y. v. Allen, 442 U.S. 140, 154-155, 99 S.Ct. 2213, 2223,
60 L.Ed.2d 777 (1979) (citing Broadrick v. Oklahoma, 413 U.S. 601,
610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973)).FN20
This Court has
also rejected such claims based on hypotheticals. “Judicial
machinery should be conserved for problems which are real and
present or imminent, not squandered on problems which are abstract
or hypothetical or remote.” Gottschalk v. Hegg, 89 S.D. 89, 95, 228
N.W.2d 640, 643-644 (1975) (citation omitted). Therefore, in
determining the constitutionality of statutes, “ ‘the mere fact that
there might be a case[,] where to apply the provisions of [the
statute] would result in [a constitutional violation,] does not
render the [statute] unconstitutional, but merely prevents its
application in such a case.’ ” City of Pierre v. Russell, 89 S.D.
70, 73, 228 N.W.2d 338, 341 (1975) (quoting Clark Implement Co. v.
Wadden, 34 S.D. 550, 556-57, 149 N.W. 424, 426 (1914)). Page fails
to acknowledge that although he has construed the capital sentencing
scheme in such a way that it could be applied to violate the Sixth
Amendment right to jury, it was not so applied in his case.
FN20. In Broadrick, 413 U.S. at 610-611, 93 S.Ct.
at 2915, 37 L.Ed.2d 830, the United States Supreme Court explained
why hypothetical challenges are not allowed: Embedded in the
traditional rules governing constitutional adjudication is the
principle that a person to whom a statute may constitutionally be
applied will not be heard to challenge that statute on the ground
that it may conceivably be applied unconstitutionally to others, in
other situations not before the Court.
A closely related principle
is that constitutional rights are personal and may not be asserted
vicariously. These principles rest on more than the fussiness of
judges. They reflect the conviction that under our constitutional
system courts are not roving commissions assigned to pass judgment
on the validity of the Nation's laws. (internal citations omitted.)
In summary, Page argues that the South Dakota
capital sentencing statutes are unconstitutional, believing that
they “prevent” the right of jury trial at sentencing. However, Page
fails to consider two relevant South Dakota statutes that provide
for that right. Additionally, even if the right of jury trial is not
allowed under the statutes, Page's argument on waiver is not only
unsupported, but is refuted by the United States Supreme Court, this
Court, and the other State Supreme Courts that have considered this
issue.
Page, by pleading guilty and expressly declining
the circuit court's offer to empanel a jury to consider his
sentence, waived his right to challenge the jury sentencing scheme.
Therefore, even if we read the capital sentencing statutes as
failing to specifically mention the right of jury sentencing
following a plea; in fact, even if we read them to explicitly
“prevent” such jury sentencing, Page voluntarily waived that right.
Waivers are no stranger to our criminal procedure jurisprudence.
We
will not, without any supporting authority, sanction the remarkable
proposition that a defendant may waive the right to a jury at
sentencing, allow the trial court to impose a sentence in accordance
with the defendant's wishes, and then, to avoid an unfavorable
sentence, invalidate the waiver on appeal by arguing a deprivation
of the constitutional right that the defendant did not want to
exercise. See Rhoades, 257 Ill.Dec. 342, 753 N.E.2d at 544 (stating
that a “[d]efendant should not be able to waive a right, receive a
sentence he subjected himself to, and then contend that the right
was violated”). This reasoning is illogical. More fundamentally, it
is at odds with cases from this Court, the United States Supreme
Court, and other state Supreme Courts.
10. Whether Page's death sentence was grossly
disproportionate to co-defendant Hoadley's life sentence.
After a jury sentenced Page's co-defendant
Hoadley to life imprisonment, we remanded Page's first appeal to the
circuit court for an intra-case proportionality review as
articulated by our opinion in State v. Bonner, 1998 SD 30, 577 N.W.2d
575. See Hoadley, 2002 SD 109, 651 N.W.2d 249 (affirming co-defendant
Hoadley's life sentence without the possibility of parole).
On
remand, the circuit court held a hearing and subsequently entered
findings of fact and conclusions of law affirming Page's death
sentence. Page goes beyond Eighth Amendment proportionality analysis
and also addresses our statutory review under SDCL chapter 23A-27A
and its interpretative case law in a comparison of the culpability
of himself as compared to Hoadley. Since both statutory and
constitutional reviews are invoked, we address each.
This Court's proportionality review as set out in
Bonner, 1998 SD 30, 577 N.W.2d 575, is derived from the Eighth
Amendment's prohibition against cruel and unusual punishment. In
this case, Page claims his death sentence was unconstitutionally
imposed because his co-defendant Hoadley received a sentence of life
imprisonment. As we recognized in Bonner: [I]f the words “Equal
Justice Under Law” call for more than just a lofty inscription, then
our vigilance ought to be aroused when extremely divergent sentences
are imposed for the same offense. Gross disparity in punishment
erodes public confidence in our institutions of justice[.]
Of
course, equal treatment in sentencing does not mean senseless
uniformity, but when a sentence is so out of proportion to the
offense and so different from what others have received for the same
conduct, then decency and conscious urge us to examine it more
closely. 1998 SD 30, ¶ 12, 577 N.W.2d at 578-79 (emphasis added)
(internal citation omitted). Thus, our task is to determine if Page
and Hoadley were sentenced for the same conduct, and if so, whether
the divergent sentences imposed upon them resulted in gross
disparity in punishment.
Since our opinion in Bonner, we have employed the
following well-established principles in reviewing the
proportionality of a given sentence:
[T]o assess a challenge to proportionality we
first determine whether the sentence appears grossly
disproportionate. To accomplish this, we consider the conduct
involved, and any relevant past conduct, with utmost deference to
the Legislature and the sentencing court. If these circumstances
fail to suggest gross disproportionality, our review ends. If, on
the other hand, the sentence appears grossly disproportionate, we
may, in addition to examining the other Solem factors, conduct an
intra- and inter-jurisdictional analysis to aid our comparison or
remand to the circuit court to conduct such comparison before
resentencing. We may also consider other relevant factors, such as
the effect upon society of this type of offense. Id. ¶ 17 (citing
Harmelin v. Michigan, 501 U.S. 957, 1000, 111 S.Ct. 2680, 2704, 115
L.Ed.2d 836 (1991)).
The Legislature sanctioned capital punishment for
murder when at least one aggravating circumstance exists. SDCL
23A-27A-1. In Page's case, the circuit court found five aggravating
circumstances.FN21 As discussed above, the sentencing judge had
ample factual justification for determining those aggravators were
present in this case.
FN21. The circuit court found that five
aggravating circumstances had been proven beyond a reasonable doubt
by the State. Three aggravators were proven under SDCL 23A-27A-1(6),
in that the offense included torture, depravity of mind and
aggravated battery to the victim. The fourth aggravator was proven
under SDCL 23A-27A-1(3), in that circuit court found beyond a
reasonable doubt that the offense was committed for the pecuniary
benefit of the defendant and co-defendants. The fifth aggravator was
proven under 23A-27A-1(9), in that the offense was committed in
order to eliminate Poage as a witness.
In this case, Page pleaded guilty to first degree
felony murder, kidnapping, first degree robbery, first degree
burglary, and grand theft. Page's first degree murder conviction
constituted a Class A felony carrying with it the maximum penalty of
death, provided that the procedures outlined in SDCL chapter 23A-27A
were followed and met. Page waived his right to sentencing by jury
and instead actively sought sentencing by the circuit court. His co-defendant
Hoadley pleaded not guilty but was convicted by a jury of the same
offenses to which Page pleaded guilty. However unlike Page, Hoadley
sought sentencing by a jury. The jury found the same aggravating
factors present in Hoadley's case as were found in Page's case: SDCL
23A-27A-1(3), (6), and (9).
After hearing the relevant evidence in
mitigation and aggravation, the jury decided to impose life
imprisonment upon Hoadley rather than the death penalty. For his
proportionality argument, Page primarily relies on the fact that
Hoadley was convicted of the same crimes to which Page pleaded
guilty and the fact that the jury found the same aggravating factors
in Hoadley's case as the circuit court determined were present in
his case.
First, we note this Court has consistently held
capital punishment is not cruel and unusual in violation of the
Eighth Amendment or the South Dakota Constitution. Moeller I, 1996
SD 60, ¶¶ 96-109, 548 N.W.2d at 487-489; Moeller II, 2000 SD 122, ¶
176 n18, 616 N.W.2d at 465. We also recognize “death is a different
kind of punishment from any other which may be imposed in this
country” and that “[t]he penalty of death is qualitatively different
from a sentence of imprisonment, however long.” Lankford v. Idaho,
500 U.S. 110, 125, 125 n. 21, 111 S.Ct. 1723, 1732 n. 21, 114
L.Ed.2d 173 (1991) (citing Gardner v. Florida, 430 U.S. 349, 357, 97
S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977), and Woodson v. North
Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944
(1976)).
This qualitative difference between Page's death sentence
and Hoadley's life sentence does not render the sentences per se
disproportionate. In order for Page's sentence to be disparate under
our Bonner analysis, he must first show his and Hoadley's “past
records, demeanor, [and] degree of criminal involvement ... are
sufficiently similar as to cause the sentence disparity between them
to be unjust.” See Garber, 2004 SD 2, ¶ 32, 674 N.W.2d at 328
(citing Bonner, 1998 SD 30, ¶ 20, 577 N.W.2d at 581 (emphasis
added)). Absent such a showing, we will not reverse the circuit
court's sentencing decision because disparate treatment of
co-defendants is permissible where one of the defendants is more
culpable than a co-defendant. Id. ¶ 33.
It must be noted that although the Supreme Court
has addressed cases where one defendant received the death penalty
while another did not, it has never held that all co-defendants
convicted for the same capital offense must receive the same
sentence. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982); and Tison v. Arizona, 481 U.S. 137, 107 S.Ct.
1676, 95 L.Ed.2d 127 (1987).
Research has not revealed any state
supreme court that has so held, nor was Page able to cite to such
authority in his briefs to this Court. Indeed, the majority of
states have explicitly held the opposite after concluding it was
constitutionally permissible for one co-defendant to receive the
death penalty while another receives a less severe sentence. See
Gavin v. State, 891 So.2d 907 (Ala.Crim.App.2003) (“There is not a
simplistic rule that a co-defendant may not be sentenced to death
when another co-defendant receives a lesser sentence.”) (affirming
death sentence dismissal of capital charges against co-defendant) (quoting
Williams v. State, 461 So.2d 834, 839 (Ala.Crim.App.1983), rev'd on
other grounds, 461 So.2d 852 (Ala.1984)); Taylor v. State, 808 So.2d
1148, 1201 (Ala.Crim.App.2000) ( “[W]hile our statute obliges us to
consider the punishment given any accomplices, it does not require
that every defendant involved in a crime receive the same punishment.”)
(affirming capital sentence despite life sentence of co-defendant) (quoting
McNair v. State, 706 So.2d 828, 845 (Ala.Crim.App.1997)); State v.
Taylor, 838 So.2d 729, 757 (La.2003) (“As a general rule, the fact a
co-defendant has received a more lenient sentence does not
necessarily indicate the [death] penalty imposed on defendant is
excessive.”) (affirming death sentence even though co-defendant
sentenced to life for the same murder in subsequent trial) (citing
State v. Day, 414 So.2d 349, 352 (La.1982)); State v. Jaynes, 353
N.C. 534, 549 S.E.2d 179, 203 (2001) (“[T]he fact that a defendant
is sentenced to death while a co-defendant receives a life sentence
for the same crime is not determinative of proportionality.”) (affirming
capital sentence where co-defendant received sentence of life-imprisonment)
(quoting State v. McNeill, 349 N.C. 634, 509 S.E.2d 415, 427
(1998)); State v. Morris, 24 S.W.3d 788, 800 (Tenn.2000) (“Similarly,
that a defendant in a similar case or even the same case has
received a sentence less than death does not render a death sentence
arbitrary, excessive, or disproportionate.”) (citing State v.
Cauthern, 967 S.W.2d 726, 741 (Tenn.1998) (affirming death penalty)).
These above-cited cases are consistent with the
general proposition recognized in the non-capital Garber opinion,
2004 SD 2, ¶ 33, 674 N.W.2d at 328, that held the level of
culpability for an offense is not always the same, even where a
defendant has pleaded guilty to the same offense. Today, we hold
this general proposition as applicable to our review of capital
sentencing cases as well as non-capital cases.
The Supreme Court has twice addressed situations
where multiple co-defendants were convicted of the same capital
offense. In Enmund, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140,
the Supreme Court reversed the death sentence of a defendant who was
present in the getaway car used in an armed robbery that resulted in
two murders. The defendant, Enmund, received the death penalty along
with the co-defendant who actually committed the murders. The
Supreme Court reversed:
Because the Florida Supreme Court affirmed the
death penalty in this case in the absence of proof that Enmund
killed or attempted to kill, and regardless of whether Enmund
intended or contemplated that life would be taken, we reverse the
judgment upholding the death penalty and remand for further
proceedings not inconsistent with this opinion. Id. at 801, 102 S.Ct.
at 3378-79, 73 L.Ed.2d 1140.
Therefore, under Enmund, an accomplice
to a felony may not be sentenced to death unless he either killed or
intended a killing to occur: “For purposes of imposing the death
penalty, Enmund's criminal culpability must be limited to his
participation in the robbery, and his punishment must be tailored to
his personal responsibility and moral guilt.” Id. In sum, a
defendant's capital sentence must be based upon his own culpability
in a murder and not upon his co-defendant's actions.
The Supreme Court clarified its holding in Tison,
wherein the Court affirmed the capital sentence of two appellants
who had helped two convicted murderers escape from an Arizona
penitentiary. 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127. During
the escape, the appellants watched while the two escaped convicts
murdered a family of four that had pulled over to help the men with
a flat tire. Id. at 141, 107 S.Ct. at 1679, 95 L.Ed.2d 127.
Upholding the death sentences of the two appellants, the Tison Court
ruled:
[W]e hold that the reckless disregard for human
life implicit in knowingly engaging in criminal activities known to
carry a grave risk of death represents a highly culpable mental
state, a mental state that may be taken into account in making a
capital sentencing judgment when that conduct causes its natural,
though also not inevitable, lethal result. 481 U.S. at 157-58, 107
S.Ct. at 1688, 95 L.Ed.2d 127.
This holding was based on the Court's
reasoning that the Enmund culpability requirement may be established
through “major participation in the felony committed, combined with
reckless indifference to human life.” Id. Thus, under Enmund and
Tison, a defendant's death sentence must be rooted in his own
culpability for the capital offense, as demonstrated by his actual
killing, intent or knowledge that killing would occur, or through
major participation in a crime involving reckless indifference to
human life.
Accordingly, in reviewing situations where
multiple defendants were involved in the commission of a capital
offense, state courts have focused upon the relative culpability of
the particular defendant. The Florida Supreme Court has stated that
“[u]nderlying our relative culpability analysis is the principle
that equally culpable co-defendants should be treated alike in
capital sentencing and receive equal punishment.” Shere v. Moore,
830 So.2d 56, 60 (Fla.2002) (citations omitted).
However, “[w]here
co-perpetrators are not equally culpable, the death sentence of the
more culpable defendant is not disproportionate where the other
receives a life sentence.” Caballero v. State, 851 So.2d 655, 663 (Fla.2003)
(citing Jennings v. State, 718 So.2d 144, 153 (Fla.1998)). Generally,
in determining the relative culpability of an appellant, state
courts seek to distinguish between those co-defendants who were
“active participants” in the crime from those who were only “passive
participants.” People v. Caballero, 206 Ill.2d 65, 276 Ill.Dec. 356,
794 N.E.2d 251, 269-71 (2002) (“[E]vidence that defendant was a
follower, rather than a leader, in the commission of the crime has
been held to be a significant factor in the analysis of disparate
sentences.”) (citing People v. Jackson, 145 Ill.2d 43, 163 Ill.Dec.
859, 582 N.E.2d 125 (1991) (citing People v. Gleckler, 82 Ill.2d
145, 44 Ill.Dec. 483, 411 N.E.2d 849 (1980))). Accord Kormondy v.
State, 845 So.2d 41, 47-48 (Fla.2003) (upholding capital sentence
where defendant was the “dominant force in the killing” and the “triggerman”);
Marquard v. State, 850 So.2d 417, 424 (Fla.2002) (affirming death
penalty where facts tended to show the defendant was the “dominant
person in this entire course of events” including driving the group
to a secluded area and ordering another co-defendant to stab the
victim); Taylor, 838 So.2d at 757 (recognizing that capital
sentences are “invariably returned by juries when defendant was the
shooter”); Simmons v. State, 869 So.2d 995, 1007-08 (Miss.2004) (upholding
death penalty where defendant “actively planned and participated” in
a robbery and murder even though he was not the leader, planner, or
instigator of the killing); Cauthern, 967 S.W.2d at 741 (affirming
capital sentence where defendant could be characterized as “the
leader in the perpetration of this crime; he knew the victims and
planned the offenses”); State v. Lafferty, 20 P.3d 342, 375 (Utah
2001) (death sentence upheld where defendant was the “principle
actor” who had “masterminded the scheme” that resulted in the deaths);
Harlow v. State, 70 P.3d 179, 203-04 (Wyo.2003) (utilizing the
language of Tison in upholding the death sentence for a defendant
who was a “major participant in a murder” and “acted with reckless
indifference to human life”).
Having determined that the proportionality of co-defendants'
disparate sentences should be grounded in the difference in their
relative culpability for the crime, we must address the nature of
the evidence upon which this determination may be based. In Lafferty,
20 P.3d at 375, the Supreme Court of Utah spoke in terms of “ample”
evidence and “clear weight of the evidence” in determining that the
defendant's culpability in the crime was not disproportionate to his
death sentence. In Cauthern, the Tennessee Supreme Court detailed
the facts of the case and concluded that “sufficient evidence”
existed on which to base disparate sentences of co-defendants
convicted of the same felony. 967 S.W.2d at 741. In a recent opinion,
the Court of Criminal Appeals of Alabama upheld a defendant's
capital sentence conviction based largely upon the testimony of one
of his accomplices. Gavin, 891 So.2d at 975-77. In that case, the
court found the accomplice's testimony to be “sufficiently
corroborated” by the evidence in the case. Id.
With these recent decisions in mind, it appears
that most state supreme courts are deferential to the facts as
established by the finder of fact, whether it be a jury or trial
court. According to the Florida Supreme Court, “a trial court's
determination concerning the relative culpability of the co-perpetrators
in a first-degree murder case is a finding of fact and will be
sustained on review if supported by competent substantial evidence.”
Marquard, 850 So.2d at 424 (quoting Puccio v. State, 701 So.2d 858,
860 (Fla.1997)).
SDCL 23A-27A-10 provides that this Court shall
render its decision based on “the factual substantiation of the
verdict, and the validity of the sentence.” Although chapter 23A-27A
is not specific as to the appropriate standard of review of
proportionality in death penalty cases, statutes seem to contemplate
a heightened review by this Court. We agree with the Arizona Supreme
Court in Arizona v. Watson, 129 Ariz. 60, 628 P.2d 943, 946 (1981),
when it observed: The question before us is not whether the trial
court properly imposed the death penalty, but whether, based upon
the record before us, we believe that the death penalty should be
imposed. A finding merely that the imposition of the death penalty
by the trial court was “factually supported” or “justified by the
evidence” is not the separate and independent judgment by this court
that the death penalty warrants. This is in keeping with the mandate
of the United States Supreme Court that we must review carefully and
with consistency death penalty cases and not engage in “cursory” or
“rubber stamp” type of review. (citing Proffitt v. Florida, 428 U.S.
242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)).
Nevertheless the trial court remains the finder
of fact as this Court does not resolve conflicts in evidence, pass
on credibility of the evidence, or weigh the evidence in a court
trial any more than it does in a jury case. State v. Romero, 269 N.W.2d
791 (S.D.1978). Having no witnesses appear before us, we are unable
to resolve conflicts in the evidence, pass on witness credibility,
or weigh evidence. State v. Burtzlaff, 493 N.W.2d 1, 4-5 (S.D.1992).
In sum, the Supreme Court's opinions in Enmund
and Tison require this Court to focus upon the relative culpability
of each co-defendant in the commission of the capital offense. See
Enmund, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140; Tison, 481
U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127. In gauging the culpability
of each defendant, this Court will first seek to ascertain whether
or not the defendant actively participated in the crime or crimes
and whether the defendant either intended to murder the victim or
acted with reckless disregard for human life. The purpose of this
inquiry is to distinguish the more passive accomplices from those
who were more active in committing the capital offense. In order to
make this distinction, this Court will focus upon the relative
actions and roles exhibited by the defendants. Jurisprudence from
other jurisdictions strongly suggests that factors such as
leadership in the crime or having been the “triggerman” are relevant
and should be established by substantial, competent evidence. See
supra ¶ 103.
The statements of Piper, Page and Hoadley are not
all consistent as between themselves. A review of the record shows
that the three perpetrators' individual behavior is distinguishable.
Although there are certainly conflicts among each defendant's self-serving
statements, Piper's and Page's admitted facts disclose a common
thread revealing that Hoadley was less culpable than Piper and Page.
Therefore, even discounting Hoadley's self-serving versions of the
incident, and only considering Page's own statements, this
voluminous record contains significant evidence establishing the
absence of gross disproportionality between the sentences.
This Court will only consider Page's own
statements concerning his actions and his differentiations between
his acts and those of Hoadley as against the statements of Piper and
Hoadley. The circuit court indicated on the record it did the
same.FN22 We do so because Piper, Page and Hoadley never testified
under oath and were never subject to cross-examination. Page's
statement given at the time of arrest, sought to minimize his
individual involvement to some extent and place the bulk of the
blame for the planning and execution of this crime on Piper.
Nevertheless, this does not require this Court to accept at face
value all the evidence and inferences brought forward by Page. See
State v. Anderberg, 89 S.D. 75, 80, 228 N.W.2d 631, 634 (1975).
FN22. The circuit court addressed Page at his
sentencing hearing, noting: Today you need not be concerned by the
statements of Briley Piper or that he would blame you or you would
be held accountable for things he says that you did. I've relied on
your statements to officers, as well as the forensic evidence and
other evidence in the case. I have not referred to or relied on the
statements of co-defendants in determining your level of
participation in this case.
After an extensive review of the record, we
conclude that there were genuine and substantial differences between
the actions of Page and Hoadley, which made Page more morally
culpable for the violence and torture inflicted upon Poage. First,
the evidence and Page's own admission show Page was the most violent
of the three murderers. Page was the only one of the three to use a
firearm.
Additionally, Page confirmed a critical portion
of Hoadley's version of the facts. Page never alleged that Hoadley
was involved in planning or initiating the events that led to the
murder and robbery of Poage. Page admitted that he instigated the
crime by pulling the gun out, telling Poage they were going to
“jack” him, and forcing him to the floor. While admitting that he
and Piper hit the victim in the face, Page denied Hoadleys
participation. Significantly like Piper, Page's description of the
initiation of this tragedy fails to even mention Hoadley, other than
the fact that he was in another room playing Play Station.
Finally, it is highly significant that in
describing the details at the creek, Page tended to put more of the
blame on Piper, just as Piper had done in his interview with respect
to Page. Although there was a claim by Page that Hoadley also kicked
Poage at Higgins Gulch, there was no evidence that either Hoadley or
Piper kicked the victim as many times and with as much force as Page.
Hoadley did not claim any injury to his foot from the force or the
number of kicks to Poage's head, that “injury” was only sustained by
Page despite the fact he was wearing heavy boots. Perhaps most
telling of all, when Poage attempted to escape his attackers at
Higgins Gulch, it was Page who chased him down and forced him back
into the icy creek. Once again, Poage's attempt at escape was
blocked by Page. Nor does the record show that Hoadley engaged in
the torture of Poage to the extent exhibited by Page. Page and Piper
discussed the various ways of killing the victim directly in front
of a conscious Poage, including slitting his throat. Page “chuckled”
during Poage's torture, seemingly amused at the extreme amount of
pain the victim was experiencing. After giving the victim false hope
he would be allowed to warm himself in his vehicle, it was Page who
told Poage they were “liars” and then kicked the victim in the face.
Poage especially drew the wrath of Page when
Poage failed to cooperate in his attempted drowning in the creek by
Page: I put my foot on his head, but I couldn't stand there. It was
like too slippery because he was too far into the creek. And I had
to stand on rocks, so I couldn't keep my balance.... So I put my
foot on his head, but I couldn't keep my balance because he kept on
moving so I just was like fuck it, I'm not falling in the creek.
In addition, the record strongly suggests Page
was the planner and initiator of much of the violence inflicted upon
Poage. In contrast, none of the group members identified Hoadley as
the planner or instigator of the attack. Page began the ordeal by
pointing a pistol at Poage, a pistol he had previously stolen from
the victim's house. Page and Piper rendered the victim helpless by
tying him up with a cord, an idea first expressed by Page. Page
engaged in a discussion concerning how the group would murder Poage.
Both at the house and at the gulch, Page prevented Poage's escape or
opportunity to escape. By his own admission, Page was the first to
stab the victim. In fact, when the other two assailants first
expressed reluctance about stabbing Poage, Page apparently had
little qualms, saying “Fuck it, I'll do it.” Page also admitted to a
psychologist, Dr. Mark Perrenoud, that Page did the most physical
damage to Poage of any of the three defendants.FN23 After finally
murdering Poage, it was Page who received the victim's vehicle, the
most valuable of the property stolen by the group.
FN23. Dr. Perrenoud also concluded Page was sane
at the time of the killing and of average intelligence.
Subsequent to listening to Page's explicit
description of the above events, the DCI Agent asked, “What would
have justified that?” Rather than responding with any type of
remorse over the anguish suffered by Poage, Page casually responded,
“He never done any wrong to us. I mean he was always nice. He just
tried to be our friend and stuff.” Page's only emotion was that he
personally felt better after the interview as it was good to get it
off his chest.
In the final analysis, the record reflects that
Page often tended to minimize his culpability by blaming Piper, but
Page never alleged Hoadley was the leader, planner, or the major
participant in the execution of this tragic incident. If one
actually examines the record, the difference in culpability between
Page and Hoadley is evident. This difference in culpability permits
the imposition of different sentences for joint actors involved in
the commission of the same offense. As the circuit court noted, Page
was no follower in the commission of this crime. At Page's
sentencing, the judge remarked, “There may have been a follower out
there that day, but it wasn't you. You and Piper were two of a kind.”
The circuit court found as fact that Hoadley was
remorseful for his actions and we have no reason to conclude to the
contrary. Page gave a statement of remorse to the circuit court and
the Poage family just prior to his sentencing.FN24 In contrast to
this statement, outside the courtroom during this period of time,
Page seemed to relish discussing the murder and made threats against
other prisoners and guards.FN25 Had Hoadley 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 Page had not been
present that day, there is no evidence to indicate that Hoadley
would have planned and executed the murder, especially in the brutal
manner in which it was committed. Moreover, Poage's few
opportunities at escape were blocked by Page with no assistance from
Hoadley. As the circuit court noted just prior to passing sentence:
FN24. Page stated just prior to his sentencing: I
know I'm the last-I'm one of the last people you would want to hear
from, but please let me say this to you. It may not mean anything to
you, but I feel I owe at least this one thing. This is very hard for
me, but I will do the best I can. Here it goes: I am sorry for what
I did. I wish I could explain how sorry I am. I know that doesn't
make up for what I did. I also know that nothing I do will make up
for what I did. I don't expect you to forgive me; God knows I
wouldn't forgive me. I'm sure you would like an explanation of why I
did what I did. I can't speak for the other two, but for myself,
personally, I cannot give you an answer to that question because I
honestly don't know why I did it. I know that I did was wrong. I
feel like the biggest piece of shit for it, and I hope I get what I
deserve. I don't know what else to say. I don't expect you ever to
forgive me, but I just want you to know that my apology is here. And
please don't hate my family and friends for what I did. If you hate
anybody, hate me.
FN25. At the sentencing hearing Page's cellmate,
Eric Ollila, testified that he was Page's cellmate for seven days
and that Page talked about the details of the murder each day. Page
also talked daily to the other twelve prisoners in that cellblock
about the crime. Page spoke of the details in a nonchalant or matter-of-fact
manner with no emotion or regrets. During these numerous
conversations, Page also failed to show any remorse or sympathy for
Poage's family. Page's only concern was for himself and that he
hoped he would not get the death penalty. When Page suspected that
Ollila had been interviewed by the DCI about these conversations,
Page threatened Ollila.
By your own admission, the kidnapping and killing
of Allan took maybe two hours or more. You had lots of chances to
change your mind and back out. Had you dropped the gun on the floor
and headed out the door and ran down the street, I doubt if Piper
would have chased you down. I doubt if he would have gone through
with the plan, knowing that a key witness was now on the loose. You
had chances to spare Allan's life.
Nor has Page's indifference to committing murder
and other felonious acts of violence apparently been abated. He
remains a threat to prison guards, especially female ones,FN26 and
anyone who would have the potential to come into contact with him.
FN26. While in jail after the killing, Page wrote
in a letter that he threatened to sodomize a female jail guard and
also wrote “I hope she reads this.”
Hoadley had a terrible upbringing. Unfortunately
so did Page. The circuit court noted this at sentencing when it
observed “[y]our early years must have been a living hell. Most
people treat their pets better than your parents treated their kids.”
Page was in and out juvenile institutions that in the end
unfortunately did not solve his inability to properly live in
society. By the time he arrived in Spearfish, Page was active in the
illegal drug and criminal cultures. While he initially came to
Spearfish to live with members of a church that took him into their
home and provided him with a job in an attempt to break his downward
cycle of life, Page's circumstances and behaviors soon changed for
the worse. While some of the previous individual criminal claims
involving Page are subject to evidentiary question, his overall
personality traits are not.FN27
FN27. The circuit court entered the following
findings of fact on Page's background:
Defendant Page has a long history of involvement
with the court systems, and he has lived in a series of foster homes
and juvenile detention centers as a result of his burglaries, car
thefts and anti-social behavior. Defendant Page has been placed in a
series of juvenile detention facilities that have designed programs
to benefit him. Defendant Page has consistently run away from these
facilities and programs.
As early as March 1997, psychologists and
psychiatrists noted that Defendant Page was exhibiting sociopathic
traits. These traits included, uncontrollable aggression, lack of
remorse and an absence of conscience. Defendant Page has a long
history of not taking responsibility for his actions and anger
control.
The Ozanam Boys Home in the State of Missouri
found Defendant Page had made absolutely no progress while in their
treatment facility, and that he exhibited no commitment whatsoever
in any type of change in his antisocial behaviors. He repeatedly ran
away from their facility, he was defiant, and alienated to all forms
of discipline. He showed no ability to take responsibility for his
behavior and blamed other people for his situation.
We observed in Rhines I: “[A] death sentence
should not be invalidated simply because a jury determined that
another defendant, who committed an analogous crime, deserved mercy.
Proportionality review focuses not only on the crime, but also on
the defendant.” 1996 SD 55, ¶ 206, 548 N.W.2d at 457 (citing SDCL
23A-27A-12(3); State v. Benn, 120 Wash.2d 631, 845 P.2d 289, 317
(1993)) (holding “[s]imply comparing numbers of victims or other
aggravating factors may superficially make two cases appear similar,
where in fact there are mitigating circumstances in one case to
explain either a jury's verdict not to impose the death penalty or a
prosecutor's decision not to seek it.”) (quoting State v. Lord, 117
Wash.2d 829, 822 P.2d 177, 223 (1991), cert. denied, 510 U.S. 944,
114 S.Ct. 382, 126 L.Ed.2d 331 (1993)).
The record shows Page's conduct and general
culpability for the murder of Poage, including the particularly
heinous aggravating circumstances, was not the same as Hoadley's.
Therefore, under our analysis as set forth in Bonner, the
circumstances of Page's case do not suggest gross disproportionality
in light of Hoadley's sentence.
Affirmed.
*****
KONENKAMP and ZINTER, Justices, concur.
SABERS and MEIERHENRY, Justices, dissent.
