#21864-a-DG
2006 SD 2
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ELIJAH PAGE, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
* * * *
HONORABLE WARREN G. JOHNSON
Judge
* * * *
LAWRENCE E. LONG
Attorney General
GARY CAMPBELL
Assistant Attorney General
CRAIG M. EICHSTADT
Deputy Attorney General
SHERRI SUNDEM WALD
GRANT GORMLEY
Assistant Attorneys General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
JOHN R. MURPHY
Rapid City, South Dakota
and
MICHAEL J. BUTLER
Butler Law Office, P.C.
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
* * * *
ARGUED MARCH 24, 2004
OPINION FILED 01/04/06
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Introduction......................................................................................................................... ¶ 1
Facts and Procedure.................................................................................................. ¶ 2 - ¶ 11
Analysis and Decision
1. Recusal of circuit judge................................................................................. ¶ 12 - ¶ 18
2. Sufficiency of statute limiting class of persons eligible for death penalty . ¶ 19 - ¶ 22
3. Use of vague and overbroad aggravating factor.......................................... ¶ 23 - ¶ 28
4. Sufficiency of evidence on aggravating factors............................................ ¶ 29 - ¶ 45
5. Denial of individualized sentencing hearing .............................................. ¶ 46 - ¶ 52
6. Selective & unconstitutional application of sentencing procedure............. ¶ 53 - ¶ 54
7. Proportionality of death sentence to similar cases...................................... ¶ 55 - ¶ 65
8. Failure of indictment to allege any aggravating circumstances ................ ¶ 66 - ¶ 67
9. Capital sentencing scheme violates right to jury trial................................ ¶ 68 - ¶ 91
10. Proportionality of sentence to co-defendant Hoadley’s sentence ............... ¶ 92 - ¶122
Dissenting Opinion, Sabers, J. ......................................................................................... ¶123
1. Capital sentencing scheme violates right to jury trial............................... ¶124 - ¶137
2. Proportionality of sentence to co-defendant Hoadley’s sentence ............... ¶138 - ¶144
GILBERTSON, Chief Justice.
[¶1.] 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
[¶2.] 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,
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and the four left in Poage’s Chevrolet Blazer, traveling to the house where Piper,
Page, and Hoadley had been staying.
[¶3.] 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.”1 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.2
[¶4.] 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
1. Page had stolen the antique .22 caliber pistol from Poage’s mother’s closet.
2. 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.
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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.
[¶5.] 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.”
[¶6.] 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.”
[¶7.] 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.
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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.
[¶8.] 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.3 Upon returning to South
Dakota, Piper, Page, and Hoadley each went his own way.
[¶9.] 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.”
[¶10.] 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.
3. 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.
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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.4
[¶11.] 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
4. 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 NW2d 465 (Moeller I); State v. Moeller,
2000 SD 122, 616 NW2d 424 (Moeller II); and State v. Rhines, 1996 SD 55,
548 NW2d 415 (Rhines I).
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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.
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ANALYSIS AND DECISION
[¶12.] 1. Whether the circuit judge should have recused himself
from sentencing Page after it imposed the death penalty
on co-defendant Piper.
[¶13.] 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.
[¶14.] 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 NW2d
249, 257 (quoting State v. Goodroad, 1997 SD 46, ¶25, 563 NW2d 126, 132 (citation
omitted)). Pursuant to SDCL 15-12-21, a defendant has the right to file an affidavit
seeking a change of judge.5 SDCL 15-12-24, however, provides:
5. 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
(continued . . .)
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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 NW2d 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 NW2d 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-
_________________________
(. . . continued)
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).
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12-27 (setting out the time for seeking removal of a judge presiding in ordinary
course).
[¶15.] 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 NW2d 37, 43 (quoting State v. Robinson, 1999 SD 141, ¶17, 602 NW2d
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 NW2d at 735 (quoting State v. Nelson, 1998 SD 124, ¶8, 587 NW2d 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 NW2d 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.
[¶16.] 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 NW2d at 257 (quoting
Goodroad, 1997 SD 46, ¶25, 563 NW2d at 132). As we have consistently stated,
this Court presumes a judge was impartial absent a specific and substantial
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showing to the contrary. Id. ¶32 (citing United States v. Walker, 920 F2d 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 NW2d at 257 (quoting Von Kahl v. United States,
242 F3d 783, 793 (8thCir 2001) (quoting Liteky v. United States, 510 US 540, 114
SCt 1147, 127 LEd2d 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 NW2d at 258 (citing In re C.N.H., 998 SW2d 553, 560 (MoCtApp
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.
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[¶17.] 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.6 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.
[¶18.] 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
6. We directly address Page’s argument concerning mitigation evidence in our
discussion of Issue 5.
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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.
[¶19.] 2. Whether SDCL 23A-27A-1 fails to sufficiently limit the
class of persons who may be deemed eligible for the
death penalty.
[¶20.] 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 NW2d 725, 728.
[¶21.] 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 NW2d at 447 (quoting Godfrey v. Georgia, 446 US
420, 428, 100 SCt 1759, 1764-65, 64 LEd2d 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 US 862, 877, 103 SCt 2733,
2742, 77 LEd2d 235 (1983); and Tuilaepa v. California, 512 US 967, 972, 114 SCt
2630, 2635, 129 LEd2d 750 (1994)).
[¶22.] 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:
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(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.
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(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 NW2d at
437 (noting that the Supreme Court upheld a virtually identical statutory scheme
in Gregg v. Georgia, 428 US 153, 96 SCt 2909, 49 LEd2d 859 (1976)). In Moeller II,
2000 SD 122, ¶176 n18, 616 NW2d at 465 n18, 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 NW2d 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 NW2d 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.
[¶23.] 3. Whether the circuit court utilized a vague and overbroad
aggravating factor when it determined that Page was
eligible for the death penalty.
[¶24.] 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.
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(emphasis added). Page points to our decision in Rhines I, 1996 SD 55, 548 NW2d
415, and Moeller I, 1996 SD 60, 548 NW2d 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 NW2d at 728.
[¶25.] 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 NW2d at 447 (citing Lewis
v. Jeffers, 497 US 764, 774, 110 SCt 3092, 3099, 111 LEd2d 606 (1990) and quoting
Godfrey, 446 US at 428, 100 SCt at 1764-65, 64 LEd2d 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 US at 877, 103
SCt at 2742, 77 LEd2d 235 and Tuilaepa, 512 US at 972, 114 SCt at 2635, 129
LEd2d 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 US 356, 361-62, 108 SCt 1853,
1858, 100 LEd2d 372 (1988)).
[¶26.] 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 NW2d at 448; 1996 SD 60, ¶114, 548 NW2d 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
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constitutional requirements are satisfied.” Id. (quoting Rhines I, 1996 SD 55, ¶145,
548 NW2d 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
NW2d at 492.
[¶27.] 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 US 639, 653, 110 SCt 3047, 3057, 111 LEd2d 511 (1990) (emphasis added),
overruled on other grounds by Ring v. Arizona, 536 US 584, 122 SCt 2428, 153
LEd2d 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).
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[¶28.] 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 NW2d at 452, and again in Moeller II, 2000
SD 122, ¶¶112-16, 616 NW2d 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 NW2d at 492-93, after noting the Supreme Court had
previously validated a similar instruction in Walton, 497 US at 655, 110 SCt at
3058, 111 LEd2d 511 (citation omitted). Limiting instructions for “aggravated
battery” were similarly upheld in Moeller I, 1996 SD 60, ¶¶115, 118-20, 548 NW2d
at 492-93, and affirmed by our opinion in Moeller II, 2000 SD 122, ¶¶117-20, 616
NW2d 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.7 See Sochor v. Florida, 504 US 527, 536-37, 112 SCt 2114,
2121-22, 119 LEd2d 326 (1992) (presuming a trial judge was familiar with the state
supreme court’s authoritative construction of a vague aggravating factor); Walton,
497 US at 653, 110 SCt at 3057, 111 LEd2d 511 (presuming trial judges are
7. 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 NW2d 415; Moeller I, 1996 SD 60,
548 NW2d 465; and Moeller II, 2000 SD 122, 616 NW2d 424, decisions.
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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.
[¶29.] 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).
[¶30.] 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.
[¶31.] a. SDCL 23A-27A-1(3)
[¶32.] 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.
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[¶33.] 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, 42 P3d 564, 594 (Ariz 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,
975 P2d 94, 103 (Ariz 1999) (quoting State v. Rienhardt, 951 P2d 454, 466 (Ariz
1997))). The record contains ample evidence to support the circuit court’s finding of
the aggravating circumstance in SDCL 23A-27A-1(3).
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[¶35.] b. SDCL 23A-27A-1(6)
[¶36.] 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.
[¶37.] i. “Torture” definition
[¶38.] 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 NW2d at 452.
See also Moeller II, 2000 SD 122, ¶115, 616 NW2d 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 NW2d at 454 (citing Rhines I, 1996 SD 55, ¶161,
548 NW2d at 452). As noted above, we presume the circuit court was familiar with
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this interpretation. See Sochor, 504 US at 536-37, 112 SCt at 2121-22, 119 LEd2d
326.
[¶39.] 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.
[¶40.] ii. “Depravity of mind” and “aggravated battery” definitions
[¶41.] 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 NW2d at 452-53. See Moeller I, 1996 SD
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60, ¶118, 548 NW2d 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 NW2d at 454-55. See Moeller I, 1996 SD 60,
¶115, 548 NW2d at 492. We assume the circuit court was aware of and followed
these narrowing interpretations. See Sochor, 504 US at 536-37, 112 SCt at 2121-22,
119 LEd2d 326.
[¶42.] 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.
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[¶43.] c. SDCL 23A-27A-1(9)
[¶44.] 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.
[¶45.] 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).
[¶46.] 5. Whether the circuit court deprived Page of an
individualized sentencing hearing in violation of the
Eighth and Fourteenth Amendments.
[¶47.] 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
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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.
[¶48.] 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 NW2d at 437 (citing SDCL 23A-27A-1
and 2).
[¶49.] 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 US 586, 606, 98 SCt
2954, 2966, 57 LEd2d 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 US at 604, 98 SCt 2964-65, 57 LEd2d 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
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capital defendant. 455 US 104, 113-14, 102 SCt 869, 876-77, 71 LEd2d 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 US 367, 108 SCt 1860,
100 LEd2d 384 (1988), and McKoy v. North Carolina, 494 US 433, 110 SCt 1227,
108 LEd2d 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 US 406, 410, 124 SCt 2504, 2509-10, 159
LEd2d 494 (2004) (holding that Mills announced a new rule of constitutional law
that nevertheless may not be applied retroactively).
[¶50.] 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 NW2d at 494 (emphasis
added). See Rhines I, 1996 SD 55, ¶¶80-82, 548 NW2d 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 n9, 608 NW2d 303, 312 n9
(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 US 164, 179, 108 SCt 2320, 2330, 101 LEd2d 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.
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1996 SD 55, ¶82, 548 NW2d at 438 (quoting Harris v. Alabama, 513 US 504, 512,
115 SCt 1031, 1035, 130 LEd2d 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
NW2d at 314 (citing Rhines I, 1996 SD 55, ¶¶78-82, 169, 548 NW2d at 437-38, 453).
[¶51.] 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.
[¶52.] 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
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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 NW2d 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, 608 NW2d
at 455. The record does not support Page’s argument that he was deprived of
individualized sentencing.
[¶53.] 6. Whether the selective application of South Dakota’s
mandatory capital sentencing procedures is
unconstitutional.
[¶54.] Although Page argued this issue before our ruling in Moeller v. Weber,
2004 SD 110, 689 NW2d 1 (Moeller III), our decision in that case fully resolved the
identical question. Moeller III, 2004 SD 110, ¶¶42-51, 689 NW2d 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.
[¶55.] 7. Whether Page’s death sentence was grossly
disproportionate to the penalty imposed in similar cases
considering both the crime and the defendant.
[¶56.] 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
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(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 NW2d at 462-63; Rhines I,
1996 SD 55, ¶180, 548 NW2d at 454-55.
[¶57.] 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.
[¶58.] 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.
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[¶59.] 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 NW2d at 455-56 (quoting Tichnell v. State, 468 A2d 1, 15-16
(Md 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 NW2d at 455.
Our opinion in Moeller II rejected a similar argument. 2000 SD 122, ¶167, 616
NW2d 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.
[¶60.] 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
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defendant to life imprisonment. Our opinion in Rhines I summarized six of these
cases. See 1996 SD 55, ¶¶187-204, 548 NW2d at 456-57; see also Moeller II, 2000
SD 122, ¶168, 616 NW2d 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 NW2d 249. In Rhines I, 1996 SD 55, 548 NW2d 415,
Moeller I, 1996 SD 60, 548 NW2d 465 and State v. Anderson, 2003 SD 65, 664
NW2d 48 (Anderson II), the jury imposed the death sentence. We take judicial
notice of the summaries of each of these cases as forth in Rhines I, 1996 SD 55,
¶196, 548 NW2d at 456 (summarizing Moeller I) and Moeller II, 2000 SD 122,
¶¶169-171, 616 NW2d at 464 (summarizing Rhines I, Anderson I and Anderson II).8
We take further judicial notice of co-defendant Piper’s case. State v. Piper, 2006 SD
1, __ NW2d __.
[¶61.] 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
8. The facts supporting Anderson’s death penalty sentence are reviewed in
Moeller II, 2000 SD 122, ¶¶169-171, 616 NW2d 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 NW2d 48.
Additional facts pertaining to his conviction for the kidnapping of Streyle are
contained in State v. Anderson, 2000 SD 45, 608 NW2d 644 (Anderson I).
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have approached the sheer brutality exhibited by Page,9 and all three defendants
received the death penalty.
[¶62.] 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.
[¶63.] 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.
[¶64.] 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
9. See the analysis in Piper, 2006 SD 1, ¶¶40-43, __ NW2d at __, for a separate
analysis of co-defendant Piper’s acts.
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dropped several heavy stones on the victim’s head until Page concluded he was
dead. Poage suffered terribly at the hands of Page.
[¶65.] “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 NW2d 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.10
[¶66.] 8. Whether Page’s death sentence was unconstitutionally
imposed when the indictment failed to allege any
aggravating circumstances.
[¶67.] 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 US 584, 122 SCt 2428, 153 LEd2d 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 Bustamonte v. Wall, 866 A2d 516, 522-23 (RI
2005) (holding no constitutional requirement that aggravating factors be set forth
in grand jury indictment); McKaney v. Foreman ex rel County of Maricopa, 100 P3d
18, 22 (Ariz 2004) (no requirement that aggravating factors be pleaded in
10. 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 NW2d 14, 20.
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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.
[¶68.] 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
[¶69.] 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.11
[¶70.] 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.
[¶71.] We agree with Page’s argument that under Ring, a capital sentencing
scheme would be unconstitutional if it prevented a defendant who pleaded guilty
11. The analysis of this issue is based upon this Court’s analysis of the same
issue raised in Moeller III, 2004 SD 110, 689 NW2d 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, __ NW2d at __ - __.
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from having alleged aggravating circumstances found by a jury. See Ring, 536 US
at 609, 122 SCt at 2443, 153 LEd2d 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.
[¶72.] 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
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statutory aggravating circumstances enumerated in § 23A-27A-
1 is so found, the death penalty shall not be imposed.
(emphasis added).
[¶73.] 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 NW2d 291, 300 (quoting
State v. Allison, 2000 SD 21, ¶25, 607 NW2d 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.
[¶74.] 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
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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.
[¶75.] Therefore, the South Dakota statutes are unlike the Arizona statutes
that were invalidated in Ring, 536 US 584, 122 SCt 2428, 153 LEd2d 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.12 Id. at 592, 122 SCt at 2434, 153 LEd2d 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.
[¶76.] 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
12. 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 US
at 592, 122 SCt at 2434, 153 LEd2d 556 (emphasis added) (quoting Ariz Rev
Stat Ann § 13-703(C)(2001), amended by 2002 Ariz Sess Laws, 5th Spec Sess,
ch1, § 1).
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qualification.13 Article VI, section 6 and section 7 of the South Dakota Constitution
also grant that right. The South Dakota language provides:
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 SD 391, 394, 172 NW2d 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 SD 223, 226, 52 NW 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 NW 608 (Dakota Terr 1876).
[¶77.] 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:
13. “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.
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“[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,14 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.
[¶78.] 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.15 Therefore, in cases like this where
14. See Ring, 536 US at 609, 122 SCt at 2443, 153 LEd2d 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”).
15. 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 US 614] at 620-621, 118 SCt
1604[, 1620-1621, 140 LEd2d 828 (1998)] (rule “hold[s] that a ...
statute does not reach certain conduct” or “make[s] conduct
criminal”); Saffle [v. Parks, 494 US 484,] 495, 110 SCt 1257[,108
LEd2d 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 SCt 1604[, 140 LEd2d 828].
(continued . . .)
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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.
[¶79.] 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 NW2d 677, 680 (SD 1986).
[¶80.] 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 NW2d 320, 327 (quoting State v. Henjum, 1996 SD 7, ¶13, 542
NW2d 760, 763). The circuit court properly presented Page with the option of
_________________________
(. . . continued)
Schriro v. Summerlin, 542 US 348, 353, 124 SCt 2519, 2523, 159 LEd2d
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.
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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.
[¶81.] 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.
[¶82.] 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.
[¶83.] 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
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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, 59 P3d 463 (Nev 2002); Moore v. State, 771 NE2d 46 (Ind 2002).
[¶84.] 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
P3d at 473. The Nevada Supreme Court reached that conclusion even though the
Nevada statutory framework, like Arizona’s,16 unequivocally eliminated the right to
a jury at sentencing. Id.17 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
16. 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 P3d at 469.
17. 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 n60 (citing NevRevStat § 175.558, repealed by 2003 Nev Laws,
c366, § 8).
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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 US 238, 243, 89 SCt
1709, 1712, 23 LEd2d 274 (1969)).
[¶85.] The Indiana Supreme Court reached the same conclusion in Moore,
771 NE2d 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.18 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.
[¶86.] 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
18. “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).
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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 US 276, 50 SCt 253, 74 LEd 854 (1930) (waiving the right to a jury
composed of twelve persons) (abrogated on other grounds by, Williams v. Florida,
399 US 78, 90 SCt 1893, 26 LEd2d 446 (1970)). Similarly, in Thwing, 84 SD 391,
172 NW2d 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 NW2d at
279 (quoting Singer v. United States, 380 US 24, 85 SCt 783, 13 LEd2d 630 (1965)).
[¶87.] 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 P3d 463; Moore, 771 NE2d 46. See also Sanchez v. Superior Court, 126
CalRptr2d 200, 206 (CalCtApp 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, 769 NE2d 21, 27 (Ill 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, 748 NE2d 685, 690 (IllAppCt 2001) (stating that
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“[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 A2d 226, 234 (RI 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”).
[¶88.] 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, 753 NE2d 537, 544 (IllAppCt2001). 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.
[¶89.] 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.
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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.19
County Court of Ulster County, N.Y. v. Allen, 442 US 140, 154-155, 99 SCt 2213,
2223, 60 LEd2d 777 (1979) (citing Broadrick v. Oklahoma, 413 US 601, 610, 93 SCt
2908, 2914, 37 LEd2d 830 (1973)).20 This Court has also rejected such claims
19. “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 US at 155, 99 SCt at 2223, 60 LEd2d 777
(internal citation omitted).
20. In Broadrick, 413 US at 610-611, 93 SCt at 2915, 37 LEd2d 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.)
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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 SD 89, 95, 228 NW2d
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 SD 70, 73, 228 NW2d 338, 341 (1975)
(quoting Clark Implement Co. v. Wadden, 34 SD 550, 556-57, 149 NW 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.
[¶90.] 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.
[¶91.] 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
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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, 753 NE2d 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.
[¶92.] 10. Whether Page’s death sentence was grossly
disproportionate to co-defendant Hoadley’s life sentence.
[¶93.] 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 NW2d 575. See Hoadley, 2002 SD 109, 651 NW2d 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
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of himself as compared to Hoadley. Since both statutory and constitutional reviews
are invoked, we address each.
[¶94.] This Court’s proportionality review as set out in Bonner, 1998 SD 30,
577 NW2d 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 NW2d 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.
[¶95.] 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
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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 US 957, 1000, 111 SCt 2680, 2704, 115
LEd2d 836 (1991)).
[¶96.] 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.21 As discussed above, the
sentencing judge had ample factual justification for determining those aggravators
were present in this case.
[¶97.] 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
21. 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.
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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.
[¶98.] 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 NW2d at 487-489; Moeller II,
2000 SD 122, ¶176 n18, 616 NW2d 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 US 110, 125, 125 n21, 111 SCt 1723, 1732
n21, 114 LEd2d 173 (1991) (citing Gardner v. Florida, 430 US 349, 357, 97 SCt
1197, 1204, 51 LEd2d 393 (1977), and Woodson v. North Carolina, 428 US 280, 305,
96 SCt 2978, 2991, 49 LEd2d 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 NW2d at 328 (citing
Bonner, 1998 SD 30, ¶20, 577 NW2d at 581 (emphasis added)). Absent such a
showing, we will not reverse the circuit court’s sentencing decision because
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disparate treatment of co-defendants is permissible where one of the defendants is
more culpable than a co-defendant. Id. ¶33.
[¶99.] 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 US 782, 102 SCt 3368, 73 LEd2d 1140
(1982); and Tison v. Arizona, 481 US 137, 107 SCt 1676, 95 LEd2d 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 So2d 907 (AlaCrimApp 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
So2d 834, 839 (AlaCrimApp 1983), rev’d on other grounds, 461 So2d 852 (Ala 1984));
Taylor v. State, 808 So2d 1148, 1201 (AlaCrimApp 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
So2d 828, 845 (AlaCrimApp 1997)); State v. Taylor, 838 So2d 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
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excessive.”) (affirming death sentence even though co-defendant sentenced to life for
the same murder in subsequent trial) (citing State v. Day, 414 So2d 349, 352 (La
1982)); State v. Jaynes, 549 SE2d 179, 203 (NC 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, 509
SE2d 415, 427 (NC 1998)); State v. Morris, 24 SW3d 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 SW2d 726, 741 (Tenn 1998)
(affirming death penalty)).
[¶100.] These above-cited cases are consistent with the general proposition
recognized in the non-capital Garber opinion, 2004 SD 2, ¶33, 674 NW2d 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.
[¶101.] The Supreme Court has twice addressed situations where multiple co-
defendants were convicted of the same capital offense. In Enmund, 458 US 782,
102 SCt 3368, 73 LEd2d 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
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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 SCt at 3378-79, 73 LEd2d 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.
[¶102.] 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 US 137, 107 SCt 1676, 95
LEd2d 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 SCt at 1679, 95 LEd2d 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.
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481 US at 157-58, 107 SCt at 1688, 95 LEd2d 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.
[¶103.] 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 So2d 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 So2d 655, 663 (Fla 2003) (citing
Jennings v. State, 718 So2d 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, 794 NE2d 251, 269-71 (Ill 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, 582 NE2d 125 (Ill 1991) (citing People v.
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Gleckler, 411 NE2d 849 (Ill1980))). Accord Kormondy v. State, 845 So2d 41, 47-48
(Fla 2003) (upholding capital sentence where defendant was the “dominant force in
the killing” and the “triggerman”); Marquard v. State, 850 So2d 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
So2d at 757 (recognizing that capital sentences are “invariably returned by juries
when defendant was the shooter”); Simmons v. State, 869 So2d 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 SW2d 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 P3d
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 P3d 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”).
[¶104.] 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 P3d at 375, the Supreme Court of Utah spoke in
terms of “ample” evidence and “clear weight of the evidence” in determining that
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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 SW2d 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 So2d at 975-77. In that case, the court found the
accomplice’s testimony to be “sufficiently corroborated” by the evidence in the case.
Id.
[¶105.] 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 So2d at 424 (quoting
Puccio v. State, 701 So2d 858, 860 (Fla 1997)).
[¶106.] 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, 628 P2d 943, 946 (Ariz 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
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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 US 242, 96 SCt 2960, 49 LEd2d 913 (1976)).
[¶107.] 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 NW2d 791 (SD 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 NW2d 1, 4-5 (SD 1992).
[¶108.] 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 US 782, 102 SCt 3368,
73LEd2d 1140; Tison, 481 US 137, 107 SCt 1676, 95 LEd2d 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
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“triggerman” are relevant and should be established by substantial, competent
evidence. See supra ¶103.
[¶109.] 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.
[¶110.] 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.22 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.
22. 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.
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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 SD
75, 80, 228 NW2d 631, 634 (1975).
[¶111.] 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.
[¶112.] 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.
[¶113.] 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
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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.
[¶114.] 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
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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.23 After finally murdering
Poage, it was Page who received the victim’s vehicle, the most valuable of the
property stolen by the group.
[¶115.] 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.
[¶116.] 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.”
23. Dr. Perrenoud also concluded Page was sane at the time of the killing and of
average intelligence.
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[¶117.] 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.24
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.25 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
24. 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.
25. 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.
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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:
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,26 and anyone who would have the potential to come into contact with
him.
[¶118.] 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
26. 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.”
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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.27
[¶119.] 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 NW2d at 457 (citing
SDCL 23A-27A-12(3); State v. Benn, 845 P2d 289, 317 (Wash1993) (holding
“[s]imply comparing numbers of victims or other aggravating factors may
27. The circuit court entered the following findings of fact on Page’s background:
37. 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.
38. 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.
39. 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.
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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, 822 P2d
177, 223 (Wash 1991), cert. denied, 510 US 944, 114 SCt 382, 126 LEd2d 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.
[¶120.] Affirmed.
[¶121.] KONENKAMP and ZINTER, Justices, concur.
[¶122.] SABERS and MEIERHENRY, Justices, dissent.
SABERS, Justice (dissenting).
[¶123.] I respectfully dissent. South Dakota’s capital sentencing scheme
prevents a defendant who pleads guilty from having the alleged aggravating
circumstances found by a jury. The scheme is therefore unconstitutional under
Apprendi, Ring and Blakely and the majority opinion violates canons of statutory
construction by ignoring statutory language to come to the conclusion that the
sentencing procedure is constitutional. I also dissent from the majority opinion’s
conclusion that Piper and Page’s sentences were not disproportionate in comparison
to their co-defendant, Hoadley. We should reverse and remand for re-sentencing to
life in prison without the possibility of parole.
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[¶124.] 1. South Dakota’s capital sentencing scheme in nonjury
trials violates the Sixth Amendment right to a jury trial
as incorporated to the states through the Fourteenth
Amendment.
[¶125.] Apprendi v. New Jersey held:
Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.
530 US 466, 490, 120 SCt 2348, 2362, 147 LEd2d 435.
[¶126.] In Ring v. Arizona, the Court applied its holding in Apprendi to
hold that a capital defendant’s Sixth Amendment rights were violated when the
judge “imposed a sentence greater than the maximum he could have imposed under
state law without the challenged factual finding.” Blakely v. Washington, 542 US
296, 303-04, 124 SCt 2531, 2537, 159 LEd2d 403 (2004) (citing Ring, 536 US at 603-
609, 122 SCt 2428, 153 LEd2d 556). Specifically, under Arizona’s capital
sentencing scheme, once the jury found a defendant guilty of first-degree murder,
the judge was required to “conduct a separate sentencing hearing to determine the
existence or nonexistence of [certain enumerated aggravating] circumstances ... for
the purpose of determining the sentence to be imposed.” The judge was required to
make all of the factual findings regarding the question whether there were any
aggravating circumstances. The Court wrote:
Based solely on the jury’s verdict finding Ring guilty of first-
degree felony murder, the maximum punishment he could have
received was life imprisonment. [] This was so because, in
Arizona, a “death sentence may not legally be imposed ... unless
at least one aggravating factor is found to exist beyond a
reasonable doubt.” [] The question presented is whether that
aggravating factor may be found by the judge, as Arizona law
specifies, or whether the Sixth Amendment’s jury trial
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guarantee, [] made applicable to the States by the Fourteenth
Amendment, requires that the aggravating factor determination
be entrusted to the jury. []
Ring, 536 US at 597, 122 SCt at 2437, 153 LEd2d 556). The Court held that the
aggravating factor determination had to be entrusted to the jury in order to
preserve defendants’ Sixth Amendment rights. Id.
[¶127.] In Blakely v. Washington, the defendant pleaded guilty to kidnapping
his wife. 542 US at 298, 124 SCt at 2534, 159 LEd2d 403. The facts supporting his
guilty plea made him eligible for a maximum sentence of 53 months. Id. at 299, 124
SCt at 2535, 159 LEd2d 403. The Court sentenced him to 90 months after making
a finding that he acted with “deliberate cruelty.” Id. The trial court received the
authority to enhance the sentence from the Washington criminal code, which
provided that a trial court was entitled to impose a sentence above the standard
range if it found “substantial and compelling reasons justifying an exceptional
sentence.” Id. at 299, 124 SCt at 2535, 159 LEd2d 403. The United States
Supreme Court overturned the sentence, relying on Ring and Apprendi, stating:
Our precedents make clear [] that the “statutory maximum” for
Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant. See Ring, at 602, 122 SCt 2428
(“’the maximum he would receive if punished according to the
facts reflected in the jury verdict alone.’” (quoting Apprendi,
supra, at 483, 120 SCt 2348)); Harris v. United States, 536 US
545, 563, 122 SCt 2406, 153 LEd2d 524 (2002) (plurality
opinion) (same); cf. Apprendi, supra, at 488, 120 SCt 2348 (facts
admitted by the defendant). In other words, the relevant
“statutory maximum” is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may
impose without any additional findings. When a judge inflicts
punishment that the jury’s verdict alone does not allow, the jury
has not found all the facts “which the law makes essential to the
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punishment,” Bishop, supra, § 87, at 55, and the judge exceeds
his proper authority.
Id. at 542 US 303-304, 124 SCt at 2537, 159 LEd2d 403 (emphasis in original).
This line of cases makes clear that absent a valid knowing and voluntary waiver of
the Sixth Amendment right to a jury trial, a judge may only sentence based on “the
facts reflected in the jury verdict or admitted by the defendant.” In other words, in
a capital case, absent valid waiver, the defendant has a right to have a jury
determine the facts regarding whether there are aggravating circumstances.
Allowing the court to impose the death penalty based on facts not admitted by the
defendant or found by the jury is a violation of the defendant’s Sixth Amendment
right to a jury trial.
[¶128.] Turning to South Dakota’s capital sentencing scheme, one can
see that the plain language of the statute dealing with nonjury trials violates the
clear principles enunciated in Apprendi, Ring and Blakely.
[¶129.] 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;
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(4) All evidence concerning any mitigating circumstances.
(emphasis added).
[¶130.] SDCL 23A-27A-6 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).
[¶131.] The majority opinion concludes that there is no “statutory impediment
preventing a defendant who pleads guilty ... from exercising his right to a jury at
the penalty phase.” Supra ¶71. However, to come to this conclusion, it is necessary
to ignore pivotal language in the pertinent statutes. First, SDCL 23A-27A-2
provides for a sentencing hearing before a jury: “[i]n all cases in which the death
penalty may be imposed and which are tried by a jury[.]” (emphasis added). The
jury hearing on aggravating circumstances is clearly inapplicable in nonjury cases.
This interpretation is supported by the fact that the Legislature provided a different
statute and procedure for sentencing in nonjury cases under SDCL 23A-27A-6.
SDCL 23A-27A-6 unequivocally requires the judge to make the factual findings
regarding aggravating circumstances in nonjury cases. See SDCL 23A-27A-6
(providing in part, “[i]n non-jury cases the judge shall [] designate, in writing, the
aggravating circumstance or circumstances, if any, which he found beyond a
reasonable doubt”).
[¶132.] The majority opinion relies solely on the phrase, “presentence hearing
as provided in § 23A-27A-2” to support its determination that a jury hearing is
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permitted by the statute. This reliance is appropriate only if the Court chooses to
wholly ignore the plain language surrounding that phrase and the plain language of
SDCL 23A-27A-2. That language makes clear that the Legislature intended that
the court, not a jury, hear the evidence and make written findings regarding
aggravating circumstances in nonjury cases. This is in direct contravention of the
Supreme Court’s holding in Apprendi, which this Court acknowledged in State v.
Hoadley, that:
it is unconstitutional for a [state] legislature to remove from the
jury the assessment of facts that increase the prescribed range
of penalties to which a criminal defendant is exposed.
Apprendi, 530 US at 490, 120 SCt at 2363, 147 LEd2d 435; Hoadley, 2002 SD 109,
¶32, 651 NW2d 249, 257.
[¶133.] I acknowledge and embrace the canon of statutory construction
requiring this Court, whenever possible, to construe statutes so as to not violate the
constitution. See majority opinion ¶73. However, that canon of statutory
construction cannot be used by the Court to simply ignore the operative language of
two statutes in order to find them constitutional. This is especially so when the
Court is considering statutes dealing with the most severe penalty under the law.
We should not broaden our rules of construction to the point of absurdity in an
effort to drive to a desired result. Instead, we should carefully consider the plain
language of the statutes and follow our constitutional duty to strike down those
statutes which violate our citizens’ rights.
[¶134.] Lacking any statutory support for its conclusions, the majority opinion
goes on to hold that the defendants waived their constitutional right to have a jury
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determine whether they would receive death or life in prison. This conclusion is
based on the erroneous premise that the “circuit court properly presented Page [and
Piper] with the option of exercising [the] right to sentencing by a jury as provided
by South Dakota’s capital punishment statutory scheme.” There is no such right for
defendants who plead guilty to capital crimes under the sentencing scheme.
Therefore, this holding has no anchor in the law. As Page notes, “the waiver of a
substantive right presupposes the existence of the right in the first place. The
language of the statute expressly limits the fact-finding role to the judge in non-jury
cases ... the judge ... had no authority to offer jury sentencing once [the defendants]
pleaded guilty.” That the circuit court made an illusory offer of jury sentencing is
no justification for upholding an unconstitutionally imposed death sentence.
Therefore, under these circumstances, the aggravating factors had to be admitted
by the defendant or found by a jury, not the judge, and the penalty of death was
unconstitutionally imposed.
[¶135.] The United States Supreme Court could not have been more clear on
this issue than when it stated that the right to a jury determination of the facts
essential to imposition of sentencing:
is no mere procedural formality, but a fundamental reservation
of power in our constitutional structure. Just as suffrage
ensures the peoples’ ultimate control in the legislative and
executive branches, jury trial is meant to ensure their control of
the judiciary.
Blakely, 542 US at 306, 124 SCt at 2538-39, 159 LEd2d 403. The defendants’
unconstitutionally imposed sentences should be reversed and the cases remanded
for re-sentencing in accordance with SDCL 23A-27A-14.
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[¶136.] In foresight, the South Dakota State Legislature has specifically
provided the appropriate remedy.
[¶137.] SDCL 23A-27A-14 provides:
In the event the death penalty for a Class A felony is held to be
unconstitutional by the South Dakota Supreme Court or the
United States Supreme Court, the court having jurisdiction over
a person previously sentenced to death for a Class A felony shall
have such person brought before the court, and the court shall
sentence such person to life imprisonment.
[¶138.] 2. Piper and Page’s death sentences were grossly
disproportionate in comparison to Hoadley’s life
sentence.28
[¶139.] Based primarily on untested, un-cross-examined and
self-serving statements by Hoadley, Piper and Page, the circuit court and the
majority opinion comes to the conclusion that Piper and Page were more culpable
and less remorseful than Hoadley, and therefore more deserving of death. In a
stunning reversal from its argument in the Hoadley case, the State now argues that
Hoadley is less culpable in this horrendous crime than Piper and Page. The
majority opinion relies on the tenuous reasoning that Hoadley did not confess to
being as violent or proactive as Piper and Page. Hoadley’s penchant for self-
preservation is a shifting foundation that is utterly insufficient to support the gross
disparity in sentencing of death for Piper and Page, and life for Hoadley. We should
28. Because the factors for consideration in all three cases (Piper, Page, and
Hoadley) are exactly the same and the facts substantially similar, I
respectfully submit the same writing, analysis and arguments in the Piper
and Page cases.
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reverse the circuit court’s determination that the sentences were not grossly
disproportionate.
[¶140.] Sifting through thousands of pages of trial transcripts, defendant
statements, and investigative reports, one could write reams detailing the atrocities
committed by Hoadley, Piper and Page. In the end, their individual behavior is so
despicable as to be indistinguishable. Yet, the circuit court and the majority
opinion parse selected facts, microanalyzing the events of the night to determine
whether Piper and Page were worse than Hoadley.
[¶141.] The problem with this analysis is that it places this Court and
the circuit court in a position of picking and choosing which untested facts to believe
and then using those facts to sentence one defendant to a life sentence and two
others to death.29 Certainly, this type of fact finding is always done in determining
29. This problem is exacerbated by the circuit court’s performance on remand.
For example, in Page’s case, the circuit court did not engage in true
comparative analysis of the actions of Hoadley and Page. Instead, the circuit
court appears to have sifted through the record and reiterated all of the facts
it could find in favor of its original sentence. The findings of fact and
conclusions of law do not compare the culpability of Page and Hoadley, they
merely restate facts regarding Page’s culpability. The majority opinion
supports this improper analysis by giving deference to those findings.
However, without any significant findings with regard to Hoadley’s actions
before, during, and after the murder, it cannot be said that “Hoadley’s ‘past
records, demeanor, [and] degree of criminal involvement’” are dissimilar
enough to warrant such disparity in sentencing.
In fact, the majority opinion ignores those facts that show Hoadley’s conduct
to be equal or more heinous than that of Piper and Page. It does so despite
the fact that the Hoadley trial and sentencing transcripts are part of the
record in this appeal. Those transcripts show that Hoadley (1) wiped up the
blood in the kitchen after the initial assault; (2) stabbed Poage in the throat;
(3) stood on the back of Poage’s head in an attempt to drown him; (4) dropped
two massive rocks on Poage’s head; (5) kept property used in the murder as
(continued . . .)
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whether there are sufficient aggravating factors to warrant imposition of the death
sentence. However, the fact finders in all of these cases have already determined
that the defendants had the same aggravating factors. Yet only one received mercy.
All of the defendants have been found guilty of the same crimes, yet two will be put
to death for those crimes. This is not a case where one defendant acted as a lookout
or drove the getaway car. As the State consistently argued below, all three
defendants actively engaged in the crimes that occurred on the evening Poage was
murdered.
[¶142.] In fact, the State charged Hoadley, Piper and Page with identical acts,
conduct and charges, all resulting in identical convictions. The same aggravating
factors were alleged and found against all three: Hoadley, Piper and Page. There
are no meaningful differences to justify life for Hoadley and death for Piper and
Page. The real substantial difference was that the jury gave life to Hoadley, and
the judge gave death to Piper and Page.
[¶143.] I respectfully submit all three, Hoadley, Piper and Page, should receive
life in prison without the possibility of parole for their substantially identical acts of
murder. See SDCL 23A-27A-14, supra ¶137.
[¶144.] MEIERHENRY, Justice, joins this dissent.
_________________________
(. . . continued)
souvenirs, including the dog leash used to bind Poage; (6) when a friend
asked him about the murder, Hoadley replied, “shit happens, dude;” and (7)
showed pictures of himself wearing Poage’s clothes to his cellmates.
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