#26213-a-DG

2012 S.D. 60

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff,

v.

ERIC DONALD ROBERT, Defendant.

* * * *

APPEAL FROM THE CIRCUIT COURT

SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE BRADLEY G. ZELL

Judge

* * * *

MARTY J. JACKLEY

Attorney General

PAUL S. SWEDLUND

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff.

MARK KADI

Minnehaha County Public Advocates

Sioux Falls, South Dakota Attorneys for defendant.

RANDAL E. CONNELLY

Rapid City, South Dakota Amicus Curiae.

* * * *

CONSIDERED ON BRIEFS

ON JULY 31, 2012

OPINION FILED 08/15/12
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GILBERTSON, Chief Justice

[¶1.] Eric Robert pleaded guilty to first-degree murder for the death of 

penitentiary guard Ronald Johnson, a 23-year veteran correctional officer at the 

South Dakota State Penitentiary in Sioux Falls. Robert waived his right to a jury’s 

determination of whether the death sentence would be imposed. The circuit court 

conducted a pre-sentence hearing and imposed the death penalty. Subsequent to 

pleading guilty, Robert has consistently sought imposition of the death penalty and 

that the execution be expedited. Even though Robert waived his right to appeal the 

death sentence, this Court is statutorily mandated to conduct a review of the death 

sentence. SDCL 23A-27A-9.

Facts

[¶2.] Robert was convicted of kidnapping in Meade County in January 2006. 

The Meade County Circuit Court sentenced him to 80 years in prison. This 

conviction resulted in Robert being incarcerated in the South Dakota State 

Penitentiary beginning in January 2006. 

[¶3.] On April 12, 2011, Robert and Rodney Berget, also an inmate at the 

South Dakota Penitentiary, entered the Pheasantland Industries’ building1 in the 

penitentiary complex.2 Because of their maximum security classifications, neither 

inmate was authorized access to this building. On this date, Johnson was working 

 

1. Pheasantland Industries is an enterprise within the walls of the State 

Penitentiary.

2. A separate appeal is currently pending in this Court in regard to Berget. See 

State v. Berget, #26318. We limit our factual review in this case to the record 

contained herein. See also n.13. 
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in the Pheasantland Industries’ building. Robert and Berget assaulted Johnson by 

striking him with a lead pipe which they had acquired earlier specifically for that

purpose. Johnson was repeatedly struck on the face and head with the lead pipe. 

An expert testified that the blows to the head continued after Johnson was on the 

ground. The attack fractured Johnson’s skull in at least three locations and 

exposed a portion of his brain. He also suffered defensive wounds to his hands and 

arms. After immobilizing Johnson with the pipe, Robert and Berget wrapped 

Johnson’s head in plastic wrap which prevented him from crying out and also from 

breathing. The inmates dragged Johnson’s body behind a large crate to conceal 

him. 

[¶4.] Robert then dressed himself in Johnson’s uniform and Berget climbed 

into a box placed on a four-wheel cart. Robert, dressed as Johnson, pushed the cart 

toward the west gate of the penitentiary. After observing that Robert did not swipe 

an ID badge, Correctional Officer Jodi Hall confronted Robert about his identity. 

When Robert’s explanation did not satisfy her, Hall notified Officer Matt Freeburg. 

Freeburg told Hall to call the Officer in Charge. At this time, Berget sprang from 

the box and he and Robert began assaulting Freeburg. The inmates used Johnson’s 

radio to beat Freeburg. Hall issued a distress call “Code Red – Code 3” on her radio. 

While Berget continued the assault on Freeburg, Robert attempted to scale the 

exterior gate of the penitentiary but became entangled in razor wire. Robert then 

attempted to grab a gun from the responding officers. When that did not work, 

Robert and Berget tried to bait the officers into shooting them. Unsuccessful and 

surrounded, Robert shook Berget’s hand and the pair surrendered. 
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[¶5.] Because Robert was wearing Johnson’s uniform, penitentiary staff 

began to search for Johnson. His body was discovered behind the crate in the 

Pheasantland Industries’ building. His face was badly disfigured and swollen from 

the beating and asphyxiation. The correctional officer who found Johnson 

attempted CPR. Life-saving efforts continued after medical personnel arrived and 

on the way to the hospital, but all efforts proved futile. Johnson was declared dead 

at the hospital. 

Procedural History

[¶6.] On September 16, 2011, Robert pleaded guilty to first-degree murder 

in violation of SDCL 22-16-1(1), 22-16-4(1), 22-16-12, and 22-3-3. Robert waived his 

right to a jury sentencing. The circuit court found Robert competent, that he was 

represented by competent counsel, and that the plea and jury waiver were entered 

voluntarily, knowingly, and intelligently.

[¶7.] Pursuant to South Dakota’s statutes, a death penalty prosecution is 

conducted in two phases. See SDCL 23A-27A-2. The first phase adjudicates the 

defendant’s guilt or innocence. Id. If a guilty verdict is returned, the trial is 

resumed “to hear additional evidence in mitigation and aggravation of punishment.” 

Id. Because Robert pleaded guilty, there was no trial on the guilt phase. Moreover, 

because he waived his right to jury sentencing, the penalty phase was tried to the 

circuit court.
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[¶8.] In order for the death penalty to be considered, the State must prove at 

least one of the aggravating circumstances enumerated in SDCL 23A-27A-13

 

3. This section provides:

Pursuant to §§ 23A-27A-2 to 23A-27A-6, inclusive, in all cases 

for which the death penalty may be authorized, the judge shall 

consider, or shall include in instructions to the jury for it to 

consider, any mitigating circumstances and any of the following 

aggravating circumstances which may be supported by the 

evidence: 

(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, 

(...continued)
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beyond a reasonable doubt. SDCL 23A-27A-6.4 Should at least one aggravating 

circumstance be proven, the death penalty can be considered. Id. At the presentence hearing, defendants are allowed to present whatever relevant mitigating 

evidence they can muster. SDCL 23A-27A-2.

[¶9.] Robert’s pre-sentence hearing began on October 24, 2011, and lasted 

four days. Following the hearing, the circuit court entered extensive findings of fact 

and conclusions of law. The circuit court found that the State proved beyond a 

________________

(...continued)

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.

4. This section 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.
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reasonable doubt the existence of two aggravating circumstances: “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,” and 

“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.” SDCL 23A27A-1(7), (8). Although evidence had been presented regarding several other 

aggravating circumstances, the circuit court found it unnecessary to make further 

findings regarding any other aggravating circumstances. Because at least one of 

the enumerated aggravating circumstances had been proven, the circuit court 

concluded that consideration of the death penalty was appropriate. 

[¶10.] The circuit court then turned to its consideration of the aggravating 

and mitigating evidence presented. See SDCL 23A-27A-2.5 The court began this 

 

5. This section 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 

(...continued)
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analysis by noting Robert’s intent and desire to die. The court concluded that such 

a wish is not an aggravating circumstance appropriately considered in the 

determination of whether the death penalty should be imposed. The court also 

noted that Robert had instructed his counsel not to present mitigating evidence on 

his behalf. However, the court indicated that it considered all mitigating evidence 

contained in the record. This mitigating evidence included Robert’s acceptance of 

responsibility and mitigating evidence from the Meade County kidnapping file, of 

which the court took judicial notice. After considering both the aggravating and 

mitigating evidence, the court concluded that “the only effective and reasonable 

retribution or punishment under the totality of the circumstances in this matter is 

the imposition of the death penalty.” 

[¶11.] The circuit court entered a Judgment of Conviction and Warrant of 

Execution on November 10, 2011. On November 16, 2011, Robert filed a Waiver of 

Appeal, waiving his right to appeal his conviction. This waiver acknowledged his 

right to appeal, acknowledged discussing his waiver with counsel, and stated that 

the waiver was free and voluntary. The waiver was signed by Robert and was 

notarized.

[¶12.] Regardless of Robert’s waiver of appeal, this Court is obligated to 

review each death sentence imposed in South Dakota. “If the death penalty is 

________________

(...continued)

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.
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imposed, and if the judgment becomes final in the trial court, the sentence shall be 

reviewed on the record by the South Dakota Supreme Court.” SDCL 23A-27A-9. 

This Court conducts this review whether or not the defendant appeals the sentence. 

When the defendant appeals, this Court’s statutorily obligated sentence review is 

consolidated with the direct appeal. Id. This Court obtained jurisdiction to conduct 

this sentence review when the circuit court clerk transmitted the record, 

transcripts, a prepared notice of the clerk, and report of the trial judge to this 

Court.6 See id. 

[¶13.] Upon obtaining jurisdiction, Robert’s position raised with this Court an 

issue of first impression. It was clear to the Court that Robert had instructed his 

appointed counsel to make no argument against imposition of the death penalty. 

This Court is aware of society’s interest in the constitutional imposition of the death 

penalty. See Commonwealth v. McKenna, 383 A.2d 174, 181 (Pa. 1978). This 

 

6. Robert’s position in this matter raised procedural issues as of yet unique to 

this State’s death penalty procedure. Pursuant to SDCL 23A-27A-9, the 

circuit court clerk is to transmit the entire record and transcript to this Court 

in order to effectuate the mandatory sentence review. The time for 

transmittal of the record from the circuit court to this Court hinges upon 

completion of the transcripts. Because Robert chose not to appeal, he did not 

order transcripts in connection with his notice of appeal. However, 

transcripts needed to be ordered and completed both to effectuate this Court’s 

sentence review and to commence the time for transmittal of the record from 

the circuit court to this Court. The circuit court, appropriately relying on 

SDCL 23A-32-1, issued an order directing the court reporters involved to 

prepare transcripts and charge the expense to the County. Completion and 

filing of the transcripts provided this Court with a complete record on which 

to conduct this mandatory sentence review and triggered the procedural 

mechanism for initiating that review when no notice of appeal was filed by 

Robert. 
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interest exists independent of the State’s interest in punishing Robert for his 

crimes. Aware that Robert’s instructions prevented his appointed counsel from 

arguing against imposition of the death penalty and that the State would be 

arguing for imposition of the death penalty, this Court appointed an experienced 

criminal trial attorney as amicus curiae to identify and raise any potential issues 

not presented due to the respective positions of Robert and the State.7 

[¶14.] Additionally, Robert’s position called into question his competency–

especially his competency to waive presentation of mitigating evidence at the presentence hearing and urge his own execution. The record revealed that Dr. 

Manlove, a psychiatrist, had evaluated Robert for the purpose of determining his 

competency to stand trial.8 While it was clear that Dr. Manlove concluded Robert 

was competent to stand trial, Robert had prevented either the State or the circuit 

 

7. Given Robert’s position of seeking the death penalty, this Court concluded it 

was appropriate to appoint an amicus curiae to act as an independent “friend 

of the Court” to call to this Court’s attention any issues which are relevant to 

its statutory and constitutional independent review of this case. The amicus 

did appropriately function in this manner. 

[T]he term “amicus curiae” literally means “a friend of the 

court.” It ordinarily implies the friendly intervention of counsel 

to call the court’s attention to a legal matter which has escaped 

or might escape the court’s consideration. The right to be so 

heard is entirely within the court’s discretion. . . . He cannot be 

partisan. Neither can he be a party nor assume the functions of 

a party to an action.

Matter of Estate of Ohlhauser, 78 S.D. 319, 322-3, 101 N.W.2d 827, 829

(1960).

8. Dr. Manlove had also evaluated Robert in connection with the Meade County 

proceedings.

 
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court from reviewing Dr. Manlove’s report. At that point, Robert had sole access to 

the report and refused to release it to the circuit court or to the State. Given the 

gravity of the issues and potential outcome, this Court, sua sponte, requested the 

parties address the issue of Robert’s competency. Specifically, this Court requested 

the parties’ analysis of the appropriate competency standard, and whether Robert 

gave any indication of failing that standard. All parties, including the amicus 

curiae, agreed that the record revealed no concern as to Robert’s competency. The 

circuit judge had found Robert competent, and Robert’s in-court statements 

throughout the circuit court proceedings were those of a competent, intelligent man. 

Nevertheless, out of an abundance of caution, this Court accepted Robert’s offer to 

review in-camera the Manlove report completed after Robert chose to plead guilty. 

The contents of this report, which remain under seal, alleviate our concerns 

regarding Robert’s competency. 

[¶15.] With amicus appointed and Robert’s competency settled, this Court 

entered an order setting a briefing schedule. Further, we ordered Robert’s 

execution stayed until such time as this sentence review was completed. Robert 

strenuously objected to the briefing schedule and the resultant delay of his 

execution, arguing that this Court was without jurisdiction to stay his execution 

absent a direct appeal. We addressed Robert’s objections in an earlier opinion. 

State v. Robert, 2012 S.D. 27, 814 N.W.2d 122. We determined that this Court has 

jurisdiction to stay Robert’s execution pending our review. Id. This Court having 
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received the briefs of Robert, the State, and amicus curiae, now proceeds to review 

Robert’s sentence.9

Analysis

[¶16.] Regardless of whether a direct appeal is filed by a defendant, this 

Court is obligated to review each sentence of death imposed in this state. “If the 

death penalty is imposed, and if the judgment becomes final in the trial court, the 

sentence shall be reviewed on the record by the South Dakota Supreme Court.” 

SDCL 23A-27A-9. This Court is required to make certain enumerated inquiries 

regarding each death sentence. 

With regard to the sentence, the Supreme Court shall 

determine:

(1) Whether the sentence of death was imposed under the 

influence of passion, prejudice, or any other arbitrary factor; and

 

9. Robert and the State both waived oral argument in this matter. As the 

parties’ respective briefs illustrated no difference in their positions on the 

statutorily mandated areas of inquiry, we accepted the waiver and review 

Robert’s sentence on the record presented. This should not be understood as 

rendering our review of Robert’s death sentence cursory. As we have 

recognized: “This is in keeping with the mandate of the Supreme Court that 

we must review carefully and with consistency death penalty cases and not 

engage in ‘cursory’ or ‘rubber stamp’ type of review.” State v. Piper, 2006 S.D. 

1, ¶ 83, 709 N.W.2d 783, 815 (quoting Arizona v. Watson, 628 P.2d 943, 946 

(1981)). See also Piper v. Weber (Piper II), 2009 S.D. 66, ¶ 6, 771 N.W.2d 352, 

355 (“‘The penalty of death is qualitatively different from a sentence of 

imprisonment, however long. Death, in its finality, differs more from life 

imprisonment than a 100-year prison term differs from one of only a year or 

two.’ Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49 

L. Ed. 2d 944 (1976). ‘The qualitative difference of death from all other 

punishments requires a correspondingly greater degree of scrutiny of the 

capital sentencing determination.’ California v. Ramos, 463 U.S. 992, 998-99, 

103 S. Ct. 3446, 3452, 77 L. Ed. 2d 1171 (1983)”). 
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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. We address each inquiry in turn.

[¶17.] (1) Whether the sentence of death was imposed under the 

influence of passion, prejudice, or any other arbitrary 

factor.

[¶18.] The pre-sentence verdict illustrates the circuit court’s thought process 

in reaching its sentencing conclusion. The conclusion was based on appropriate 

considerations including: Robert’s future dangerousness, including his threat to kill 

again; his violent history, including the 2005 kidnapping; his ability to be 

rehabilitated; and the severity and depravity of the crime. The court also 

considered any mitigating evidence it could find, despite Robert’s desire that no 

such evidence be presented. None of the considerations articulated as factoring into 

the sentencing decision evidence the influence of passion, prejudice, or any other 

arbitrary factor. 

[¶19.] Perhaps the obvious manner in which Robert fights so vigorously for 

his execution calls us to review the propriety of it. Robert’s passion toward this end 

generates an examination of the manner in which the sentence was imposed. 

Robert’s persistent efforts to hasten his own death necessitate intense scrutiny to 

guarantee his desire to die was not a consideration in the sentencing determination. 

We do not participate in a program of state-assisted suicide. “The State must not 

become an unwitting partner in a defendant’s suicide by placing the personal 
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desires of the defendant above the societal interests in assuring that the death 

penalty is imposed in a rational, non-arbitrary fashion.” Grasso v. State, 857 P.2d 

802, 811 (Okla. Crim. App. 1993) (Chapel, Judge, concurring). Indeed, had the 

sentencing determination been based in any degree on Robert’s desire to die, the 

sentence may have been impermissibly imposed based on a non-statutory arbitrary 

factor—Robert’s suicide wish. See Lenhard v. Wolff, 444 U.S. 807, 815, 100 S. Ct. 

29, 33 (1979) (Marshall, J., dissenting). If that were the case, and the record 

revealed that the circuit court based its decision on Robert’s desire to die, this Court 

would be obligated to reverse the sentence of death and remand for resentencing. 

See SDCL 23A-27A-13. It is not a statutory aggravating circumstance to invoke the 

death penalty. See SDCL 23A-27A-1. However, the circuit court went out of its way 

to make it clear that the sentencing decision was based in no part on Robert’s desire 

to die. This Court can affirm the constitutional imposition of the death penalty 

imposed in accordance with our statutes; it will not sanction state-assisted suicide.

[¶20.] As noted above, Robert waived presentation of mitigating evidence at 

the pre-sentence hearing. The circuit court recognized Robert’s right to do so. 

Schriro v. Landrigan, 550 U.S. 465, 479, 127 S. Ct. 1933, 1942, __ L. Ed. 2d __

(2007). The circuit court in Schriro engaged the defendant in an on-the-record 

colloquy regarding his waiver of presentation of mitigating evidence. Id. at 469, 127 

S. Ct. at 1937. Here, the record presents no such on-the-record colloquy specifically 

relating to Robert’s waiver of mitigating evidence. However, the Supreme Court 

indicated in Schriro that such a colloquy had never been required. Id. at 479, 127 S. 

Ct. at 1943. It also indicated that an “informed and knowing” standard for waiving 
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mitigating evidence had not been established, but it assumed that one existed. Id.

at 479, 127 S. Ct. at 1942. While it may be better practice to conduct an on-therecord colloquy with a capital defendant choosing to waive mitigating evidence, the 

record supports the conclusion that, assuming an “informed and knowing” standard 

applies to such a waiver, Robert’s waiver satisfied that standard. 

[¶21.] Recognizing that Robert had a right to waive presentation of

mitigating evidence, the circuit court considered mitigation from whatever source it 

could find. SDCL 23A-27A-1 requires that the judge “shall consider . . . any 

mitigating circumstances.” Piper, 2006 S.D. 1, ¶ 32, 709 N.W. 2d at 799 (also citing 

Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 

(1979)). Despite Robert’s waiver, the circuit court’s consideration of “any mitigating 

circumstances” was required. This the circuit court did. Robert’s death sentence 

does not appear to have been the result of passion, prejudice, or any other arbitrary 

factor. 

[¶22.] (2) Whether the evidence supports the jury’s or judge’s 

finding of a statutory aggravating circumstance as 

enumerated in § 23A-27A-1.

[¶23.] The circuit court found that the State had proven the existence of two 

of the aggravating circumstances enumerated in SDCL 23A-27A-1.10 Specifically,

the court found the existence of circumstance 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;” and circumstance 8: 

 

10. “We have previously held the aggravating factors under SDCL 23A-27A-1 to 

be constitutional.” Piper, 2006 S.D. 1, ¶ 28, 709 N.W.2d at 783.
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“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.” 

[¶24.] The evidence presented at the pre-sentence hearing included testimony 

from Douglas Weber, Director of Adult Corrections and Chief Warden for the State 

of South Dakota. He testified that on April 12, 2011, Ronald Johnson was employed 

as a corrections officer at the South Dakota Penitentiary. He also testified that, at 

the time of the murder, Johnson was on duty in the Pheasantland Industries’ 

building, covering a shift for a different corrections officer’s absence. The evidence 

presented supports the finding of the aggravating circumstance identified in SDCL 

23A-27A-1(7).

[¶25.] The record also contains the testimony of Jodi Hall and Matt Freeburg 

from the pre-sentence hearing. These two officers described the situation they 

encountered on April 12, 2011. Officer Hall described Robert’s actions as he 

approached the penitentiary gate, dressed as Johnson. She also described Robert’s 

attempt to climb through the razor wire on top of the gate after she called for the 

Officer in Charge to come to the location. Officer Hall testified: “Mr. Robert and 

Berget were attempting to escape.”11 

[¶26.] Officer Freeburg also described the events of April 12, 2011. Officer 

Freeburg testified that Robert assaulted him, then attempted to climb the gate. 

The evidence presented supports the finding of the aggravating circumstance found 

 

11. SDCL 22-11A-1 defines escape as the “departure [by a prisoner] without 

lawful authority. . . .” SDCL 22-11A-2 provides, in relevant part, Escape in 

the First Degree to be “if the prisoner effects the escape. . . . (2) From a 

secure correctional facility. . . .”
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in SDCL 23A-27A-1(8).12 In Piper, “we acknowledge[d] that once aggravating 

circumstances have been proven beyond a reasonable doubt, the lower court has 

broad discretion in determining whether to sentence a particular defendant to 

death.” 2006 S.D. 1, ¶ 28, 709 N.W.2d at 798.

[¶27.] (3) Whether the sentence of death is excessive or 

disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant.

[¶28.] The final inquiry regarding Robert’s death sentence is the 

proportionality of the sentence compared to the penalty imposed in similar cases. 

This Court is obligated “to include in its decision a reference to those similar cases 

which it took into consideration.” SDCL 23A-27A-13. We clarified the “universe” of 

cases to be considered in conducting this review in Rhines I. 

We conclude that similar cases for purposes of SDCL 23A-27A12(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.”

 

State v. Rhines (Rhines I), 1996 S.D. 55, ¶ 185, 548 N.W.2d 415, 455-56 (quoting 

Tichnell v. State, 297 Md. 432, 468 A.2d 1, 15-16 (1983) (citation omitted)). 

[¶29.] In Piper, 2006 S.D. 1, ¶ 38, 709 N.W.2d at 801, and State v. Page, 2006

S.D. 2, ¶ 60, 709 N.W.2d 739, 760-61, we identified those cases up to that point 

 

12. Furthermore, Robert admitted the existence of these two aggravating 

circumstances. All other evidence is consistent with that admission so as not 

to taint his admission by his admitted goal of seeking the death penalty. 
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falling into this category. Since that time, our records reflect that, other than 

Robert, and now Berget13, there has been one case in which a capital sentencing 

proceeding was conducted—State v. Daphne Wright. See State v. Wright, 2009 S.D. 

51, 768 N.W.2d 512. In Wright, a Minnehaha County jury, faced with the decision 

of whether to impose the death penalty, chose life in prison. Therefore, we compare 

Robert’s sentence with those cases identified in Piper and Page, as well as Wright.14 

As we did in Page and Piper, we take judicial notice of the summaries of the cases 

set forth in Rhines I, 1996 S.D. 55, ¶ 196, 548 N.W.2d at 456-57. 

 

13. As previously noted, Berget’s case is pending before this Court for review in a 

separate proceeding. See State v. Berget, #26318. We do not engage in a 

comparison of the Robert and Berget cases at this point as Berget’s appeal is 

still pending before this Court. As such, it is not a final decision of this Court 

appropriate for proportionality analysis. Moreover, Berget is contesting 

whether his actions justify a sentence of death on a proportionality basis. In 

part, he specifically relies upon a direct comparison between himself and 

Robert. To engage in such a joint analysis at this point could taint Berget’s 

right to fully argue the same issue on his behalf based upon the record in his 

case at the point when his case is ready to be considered by this Court rather 

than the record in the Robert case now before us. 

Although Page and Piper were considered and decided simultaneously, we 

limited ourselves to an examination of the individual record in each case 

when considering the statements of each defendant as to the facts of the 

homicide and culpability of each. See Page, 2006 S.D. 2, ¶ 110, 709 N.W.2d at 

775; Piper, 2006 S.D. 1, ¶ 86, 709 N.W.2d at 815. 

14. The universe of cases in which a capital sentencing proceeding was conducted 

includes: State v. Howard Adams; State v. Steven Bittner; State v. William J. 

Helmer; State v. Donald Moeller; State v. James Elmer Smith; State v. Edwin 

Swallow; State v. David Waff; State v. Charles Russell Rhines; State v. Robert 

Leroy Anderson; State v. Darrell Hoadley; State v. Elijah Page; State v. Briley 

Piper; and State v. Daphne Wright. Moving forward, the universe will include 

State v. Eric Robert and State v. Rodney Berget. 
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[¶30.] Of these cases, the sentencing authority imposed the death sentence on 

six individuals (Moeller, Rhines, Anderson, Page, Piper, and Berget) and life 

without parole on the other eight. For purposes of comparative proportionality 

review, “a death sentence is comparatively excessive if other defendants with 

similar characteristics generally receive sentences other than death for committing 

factually similar offenses in the same jurisdiction.” Rhines I, 1996 S.D. 55, ¶ 205, 

548 N.W.2d at 457 (quoting State v. Bey, 645 A.2d 685, 689 (N.J. 1994)). 

Proportionality review focuses on both the crime and the defendant. Id. ¶ 206. We 

have recognized that “the disparity in suffering endured by victims is an important 

and legitimate consideration when evaluating the proportionality of a death 

sentence.” Id. ¶ 207.

[¶31.] As this is the first time this Court has included the case of Daphne 

Wright in its proportionality review of a death sentence, a summary is appropriate. 

Fueled by jealousy, Wright murdered a friend of her girlfriend by beating her to 

death with a blunt object. The victim was also asphyxiated. Wright then attempted 

to secrete the crime by cutting the victim’s body into pieces and disposing of the 

parts in several places. The State sought the death penalty based on the depravity 

of the crime. The evidence at trial established that the victim’s body was 

dismembered post-mortem. The jury heard that Wright is deaf and that she was 

traumatized when her parents sent her to a boarding school for the deaf at age five. 

A psychological evaluation gauged Wright’s reading comprehension at a third-grade 

level, and found that she may have suffered brain damage from an infant illness 
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that caused her deafness. Wright’s mitigating evidence also included struggles with 

her sexual identity and multiple suicide attempts. 

[¶32.] Wright’s crime factually resembles Johnson’s death. Wright beat her 

victim to death with a blunt object then asphyxiated her. The State sought the 

death penalty based on the depravity of the murder. The jury found the existence of 

the depravity aggravating circumstance, but returned a sentence of life without 

parole. Distinguishing Wright’s crime from Robert’s, Wright’s victim was not an onduty corrections officer, nor was Wright attempting to escape lawful confinement at 

the time. These facts alone separate Robert’s offense from Wright’s.

[¶33.] A proportionality review focuses not only on the crime, but also on the 

defendant. Id. Wright’s jury considered mitigating factors not present in Robert’s 

case. Wright had been deaf her entire life, struggled with sexual identity issues, 

and had attempted suicide several times. A psychological evaluation concluded that 

Wright read at a third-grade level, and suggested the possibility of brain damage. 

[¶34.] None of the mitigating circumstances present in Wright are present 

here. Robert presents as an intelligent, college-educated man well able to function 

in society. He held a college degree from the University of Wisconsin and has held 

several long-term jobs. At the time of the 2006 Meade County kidnapping 

conviction, Robert had over $14,000.00 in his checking account, and over 

$200,000.00 in total assets available. Even though Robert was capable of 

functioning as a productive member of society, his past contains several instances of 

violent, abusive behavior. 
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[¶35.] Robert committed this crime while incarcerated for the 2005 

kidnapping of a young woman. At the time of the kidnapping, Robert’s vehicle 

contained rope, a shovel, and pornographic material. For the kidnapping, Robert 

received 80 years in prison. 

[¶36.] Robert’s violent history predates this murder and the kidnapping. At 

the pre-sentence hearing, the State elicited testimony from a person with whom 

Robert had had a long-term relationship. This testimony established that, before 

the kidnapping, Robert was a violent, abusive, sexually assaultive man, capable of 

violent acts against innocent victims. This witness testified that Robert physically 

assaulted her, including punching, tackling, and pointing a gun to her head. She 

also testified that Robert physically beat her until she acquiesced to sex. This 

testimony is relevant because, as noted, the excessiveness and proportionality 

inquiry focus not only on the crime, but also the defendant.15 

[¶37.] This case presents the second time that a capital sentencing phase has 

been conducted based on the potential applicability of SDCL 23A-27A-1(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.”). In State v. Bittner, Bittner stabbed two police officers responding to a call 

 

15. In his reply brief, Robert argues that because he agreed the death penalty 

was a proper sentence, the testimony concerning his past behavior was 

irrelevant. But Robert’s decision to accept the death penalty is the irrelevant 

fact in the sentencing determination, not his history. As previously noted, if 

the only relevant consideration were Robert’s decision to accept and even 

seek execution, this State would be assisting his suicide, rather than 

constitutionally imposing the most severe criminal sanction available. 
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that Bittner physically assaulted his girlfriend. One of the officers died. The jury 

did not find the existence of any aggravating circumstances. Bittner established 

various mitigating circumstances, including the use of alcohol immediately prior to 

the crime and a disavowal of any intent to deliberately kill the officer. Bittner 

received life in prison. 

[¶38.] At the time of this crime, Robert was an inmate in the penitentiary. 

Alcohol played no role in this killing. Nor has Robert disavowed his intent to kill 

Johnson. Rather, Robert confessed his intent to kill not only Johnson, but any other 

correctional officer standing in his way of escape. The nature of Johnson’s injuries 

supports Robert’s professed intent to kill Johnson. Robert’s escape attempt relied 

on immobilizing Johnson and stealing his uniform. But the intensity of the beating 

and use of the plastic wrap prove that Robert intended to assure Johnson’s death, 

even if immobilization would have sufficed. Robert’s sobriety and intent to kill 

Johnson set this case apart from Bittner’s. Robert’s death sentence is not 

disproportionate to the life sentence Bittner received. 

[¶39.] The case of Darrell Hoadley also presents a horrendous beating death. 

Hoadley received a life sentence from a jury after co-defendants Page and Piper 

both received death sentences from a judge.16 In considering the proportionality of 

Piper’s death sentence to co-defendant Hoadley, we noted that Hoadley’s 

involvement distinguished the sentences of Piper and Page. “South Dakota 

 

16. This Court reversed Piper’s death sentence in Piper v. Weber, 2009 S.D. 66, 

771 N.W.2d 352. Piper was later sentenced to death by a jury. Piper has 

appealed the jury’s death sentence to this Court, which appeal is currently 

pending. State v. Piper, #26126.
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reenacted the death penalty in 1979. Since that time, only defendants Moeller, 

Rhines, and Anderson have approached the sheer brutality exhibited by Piper and 

his co-defendant Page, and all have received the death penalty. Piper and Page 

jointly planned the murder scheme and it was only after it was agreed upon 

between them did they so inform Hoadley and involve him in its execution.” Piper, 

2006 S.D. 1, ¶ 39, 709 N.W.2d at 801. This was not merely an escape attempt on 

the spur of the moment where events spiraled out of control. Here, the record 

reflects that Robert had been planning his escape attempt, which included the 

murder of a corrections officer, for well over a month. His planning stage included 

obtaining the lead pipe eventually used to kill Johnson. 

[¶40.] The combination of the record concerning the crime and defendant 

satisfy this Court that Robert’s death sentence is neither excessive nor 

disproportionate when compared to the applicable universe of cases.

Conclusion

[¶41.] The circuit court did not base its sentencing decision on any passion, 

prejudice, or any other arbitrary factor. The evidence supports the aggravating 

circumstances found by the circuit court, and the death sentence is neither 

disproportionate nor excessive when compared to other South Dakota cases in 

which a capital sentencing phase was conducted. The death sentence is affirmed. 

This matter is remanded to the circuit court for entry of a warrant of execution 

pursuant to SDCL 23A-27A-31.

[¶42.] Affirmed.
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[¶43.] KONENKAMP, ZINTER, and SEVERSON, Justices, and MILLER, 

Retired Justice, concur.

[¶44.] MILLER, Retired Justice, sitting for WILBUR, Justice, disqualified.