#26126-a-LSW

2014 S.D. 2

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

BRILEY W. PIPER, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FOURTH JUDICIAL CIRCUIT

LAWRENCE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JEROME A. ECKRICH, III

Judge

* * * *

MARTY J. JACKLEY

Attorney General

PAUL S. SWEDLUND

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee. 

STEVE MILLER

Sioux Falls, South Dakota Attorney for defendant

and appellant.

* * * *

ARGUED ON MARCH 18, 2013

OPINION FILED 01/08/14
#26126

-1-

WILBUR, Justice 

[¶1.] Briley Piper pleaded guilty to several offenses, including felony 

murder. The plea-taking court sentenced Piper to death on the murder charge. 

This Court affirmed Piper’s death sentence. Piper then sought habeas relief 

claiming that he did not validly waive his right to have a jury determine whether to 

impose the death penalty. This Court granted Piper’s writ of habeas corpus and 

vacated his death sentence. Once the case was remanded to the circuit court for a 

jury sentencing procedure, Piper filed a motion to withdraw his guilty pleas, which 

the circuit court denied on the merits. The case proceeded to a jury sentencing. The 

jury found the existence of three aggravating factors and sentenced Piper to death. 

Piper appeals the denial of his motion to withdraw his guilty pleas and the 

proportionality of his sentence. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶2.] In 2000, Piper was charged with five offenses, including the murder of 

Chester Allan Poage.1 On January 3, 2001, Piper appeared before Judge Warren G. 

Johnson (the plea-taking court) and pleaded guilty to the charges of first-degree 

felony murder, kidnapping, first-degree robbery, first-degree burglary, and grand 

theft. After accepting Piper’s guilty pleas to the charged offenses, the court held a 

three-day sentencing hearing, and ultimately sentenced Piper to death.2 

 

1. For a full recitation of the underlying facts of this case, see this Court’s 

opinion in State v. Piper (Piper I), 2006 S.D. 1, ¶¶ 2-11, 709 N.W.2d 783, 790-

92.

2. In separate proceedings, Piper’s co-defendant, Elijah Page, pleaded guilty to 

the same charges and was sentenced to death by the same judge. Another co-

(continued . . .)
#26126

-2-

[¶3.] This Court affirmed Piper’s conviction and sentence in State v. Piper 

(Piper I), 2006 S.D. 1, 709 N.W.2d 783. Piper then filed an application for writ of 

habeas corpus claiming that he did not validly waive his right to have a jury 

determine whether to impose the death penalty. The habeas court denied the 

application and Piper appealed that decision. 

[¶4.] In Piper v. Weber (Piper II), we noted that the plea-taking court did not 

explain to Piper that if the jury was not unanimous in its decision to impose the 

death penalty, then Piper would receive a life sentence. 2009 S.D. 66, ¶ 17, 771 

N.W.2d 352, 358. We reversed the habeas court and held that Piper did not validly 

waive his right to have a jury determine whether to impose the death penalty. Id. ¶ 

21, 771 N.W.2d at 360. Thus, we “vacate[d] Piper’s death sentence and remand[ed] 

for a new sentencing proceeding that afford[ed] Piper the right to have a jury decide 

whether the death penalty should be imposed.” Id.

[¶5.] Upon remittal and prior to his new sentencing hearing, Piper filed the 

motion that is the subject of this appeal—a motion to withdraw his guilty pleas for 

felony murder and the other four non-capital offenses. In his motion, Piper argued 

that his guilty pleas were not knowing and voluntary because the plea-taking court 

failed to advise Piper of his purported right to have a jury determine guilt on all of 

the underlying charges and then to have a sentencing hearing before the circuit 

court. Piper also alleged that the plea-taking court failed to advise him that he 

________________________

(. . . continued)

defendant, Darrell Hoadley, maintained a not guilty plea to the same charges 

and proceeded to a jury trial. The jury convicted Hoadley, but did not impose 

the death penalty.
#26126

-3-

could receive consecutive sentences upon his convictions for kidnapping, robbery, 

burglary, and grand theft. 

[¶6.] After conducting a motion hearing and familiarizing himself with the 

contents of the parties’ submissions and both files in Piper I and Piper II, Judge 

Jerome A. Eckrich III (the circuit court) denied the motion on the merits. The case 

proceeded to a jury sentencing hearing in July 2011. The jury returned a 

unanimous verdict finding the existence of three aggravating circumstances 

pursuant to SDCL 23A-27A-1(3), (6), and (9) and unanimously recommended that a 

death sentence be imposed. 

[¶7.] In addition to this Court’s automatic review of the death sentence 

pursuant to SDCL 23A-27A-9, Piper raises two issues. We review the issues 

presented in the following order:

1. Whether Piper’s motion to withdraw his guilty pleas was

improperly denied.

2. Whether Piper’s sentence was lawfully imposed under SDCL

23A-27A-9 and SDCL 23A-27A-12.3

DECISION

[¶8.] 1. Whether Piper’s motion to withdraw his guilty pleas was

improperly denied.

[¶9.] Statute, refined by case law, grants this Court broad authority to 

narrow the scope of further proceedings when judgment is remitted to the circuit 

 

3. Piper’s second presented issue (“[Whether] Piper’s death sentence is 

disproportionate to the life sentence imposed on co-[d]efendant Hoadley”) is 

part and parcel of our proportionality analysis and is considered here. 
#26126

-4-

court.4 SDCL 15-30-14 provides that “[i]n all cases the Supreme Court shall remit 

its judgment or decision to the court from which the appeal was taken, to be 

enforced accordingly; and if from a judgment, final judgment shall thereupon be 

entered in the court below in accordance therewith, except where otherwise 

ordered.” (Emphasis added.) See SDCL 15-30-11 (“[T]he settled record on appeal 

shall be remitted to the court from which the appeal was taken, and further 

proceedings shall be had in accordance therewith.”) (emphasis added), 23A-32-19 

(“The Supreme Court by its judgment may reverse, affirm, or modify the judgment 

or order appealed from . . . .”). See also SDCL 23A-32-14 (civil appellate procedure 

applies to criminal appeals unless otherwise provided). 

[¶10.] Taken together, these statutes establish that the scope of the circuit 

court’s jurisdiction must conform to the dictates of our opinion. Indeed, in 

anticipation of this deference, we release our jurisdiction when the remittitur is 

returned to the circuit court, except in the narrow circumstances of “fraud, mistake, 

or inadvertence.” Bahlkow v. Preston, 62 S.D. 36, 251 N.W. 299, 299-300 (1933). If 

the circuit court’s original jurisdiction could spontaneously resurrect on remittal, 

the defined roles of our tiered judicial system—as set forth in statute and case 

law—and the judicial certainty and efficiency they foster would be nullified.5 

 

4. Whether a circuit court conformed to our mandate is a question subject to de 

novo review. See Weins v. Sporleder, 2000 S.D. 10, ¶ 10, 605 N.W.2d 488, 

490. 

5. The United States Supreme Court examined the ramifications of a lower 

court departing from the mandate given on appeal and concluded:

(continued . . .)
#26126

-5-

[¶11.] Our directives on remittal are clear on the face of our opinions. If we 

affirm, the circuit court shall enter final judgment. See SDCL 15-30-14, 23A-32-19. 

Where we order reversal without any qualification, as in a general remand, “[t]he 

mandate . . . nullifies the judgment, findings of fact, and conclusions of law, and 

leaves the case standing as if no judgment or decree had ever been entered.” Gluscic 

v. Avera St. Luke’s, 2002 S.D. 93, ¶ 20, 649 N.W.2d 916, 920 (quoting Janssen v. 

Tusha, 67 S.D. 597, 601, 297 N.W. 119, 120 (1941)). Between these two extremes is 

the limited remand, for which our instructions must exactly govern. “When the 

scope of remand is limited, the entire case is not reopened, but rather, the lower 

tribunal is only authorized to carry out the appellate court’s mandate.” In re 

Conditional Use Permit Granted to Van Zanten, 1999 S.D. 79, ¶ 13, 598 N.W.2d 861, 

864 (citing 5 Am. Jur. 2d Appellate Review § 787 (1995)). This procedure mirrors 

that performed by the United States Supreme Court: “[W]hen the direction 

________________________

(. . . continued)

Argument to show that a subordinate court is bound to proceed 

in such an event and dispose of the case as directed . . . is 

unnecessary, as any other rule would operate as a repeal of the 

Constitution and the laws of Congress passed to carry the 

judicial power conferred by the Constitution into effect. 

Tyler v. Magwire, 84 U.S. 253, 282-83, 21 L. Ed. 576 (1872). The integrity of 

a hierarchical system of appellate review is not something to be lightly cast 

aside. As the Fourth Circuit Court of Appeals explained:

The principle of hierarchy is no empty shell. It protects the very 

value and essential nature of an appeal, namely the chance 

afforded litigants for review of a judgment and for correction, 

generally by a larger judicial body, of errors that may have 

serious consequences or work significant injustice. 

Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007).
#26126

-6-

contained in the mandate is precise and unambiguous, it is the duty of the [lower 

court] to carry it into execution, and not to look elsewhere for authority to change its 

meaning.” West v. Brashear, 39 U.S. 51, 54, 10 L. Ed. 350 (1840).

[¶12.] We strictly and purposely limited our remand instructions in Piper II

to correct the specific error that had occurred—the denial of a jury at sentencing. In 

Piper II, we “vacate[d] Piper’s death sentence and remand[ed] for a new sentencing 

proceeding that afford[ed] Piper the right to have a jury decide whether the death 

penalty should be imposed.” Piper II, 2009 S.D. 66, ¶ 21, 771 N.W.2d at 360. As 

evidenced by authorities cited in the opinion, namely State v. Apple, 2008 S.D. 120, 

¶¶ 22-23, 759 N.W.2d 283, 291, and State v. Goodwin, 2004 S.D. 75, ¶ 18, 681 

N.W.2d 847, 854, we were aware of the possibility of remanding the case to the 

circuit court for the explicit purpose of permitting Piper to withdraw his guilty 

pleas. Yet, we unanimously did not give that instruction. This was because, as 

both the circuit court and Piper acknowledged, the sufficiency of Piper’s admission 

of guilt was not before us in Piper II, and our limited scope of remand was written 

accordingly. 

[¶13.] In spite of this fact, however, the circuit court considered Piper’s 

motion to withdraw his guilty pleas and denied it on the merits. This was in excess 

of what was permitted by our limited remand. Rather, the circuit court should have 

denied the motion to withdraw on the basis of the limited nature of the remand. 

The circuit court reached the correct result—denial of the motion to withdraw—

albeit for the wrong reason. See, e.g., State v. Hart, 1998 S.D. 93, ¶ 43, n.9, 584 

N.W.2d 863, 871 n.9; Kehn v. Hoeksema, 524 N.W.2d 879, 880-81 (S.D. 1994) 
#26126

-7-

(affirming the decision of the circuit court because it reached the right result for the 

wrong reason). Thus, we affirm the denial of the motion and decline to address the 

merits of Piper’s request to withdraw his pleas as being beyond the scope of our 

remand in Piper II. 

[¶14.] 2. Whether Piper’s sentence was lawfully imposed.

[¶15.] “In every case [in South Dakota] where the death penalty is imposed, 

this Court is required to conduct an independent review of the sentence.” Piper I, 

2006 S.D. 1, ¶ 26, 709 N.W.2d at 797 (citing SDCL 23A-27A-9). We must decide:

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

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

(2) Whether the evidence supports the jury’s . . . finding of a 

statutory aggravating circumstance as enumerated in § 23A27A-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-12.6

[¶16.] Whether the sentence of death was imposed under the

influence of passion, prejudice, or any other arbitrary factor.

[¶17.] Piper’s death sentence was not imposed under the influence of passion, 

prejudice, or any other arbitrary factor. SDCL 23A-27A-12(1). The jury received 

relevant evidence regarding the impact of the crime on Poage’s mother and sister, 

 

6. Piper raises only one argument concerning the lawful imposition of the death 

sentence by the jury. He argues that, because co-defendant Hoadley testified 

at the July 2011 sentencing hearing that Piper played a less active role in the 

murder, Piper’s sentence is now internally disproportionate to Hoadley’s life 

sentence. Because our review of the imposition of the death sentence is 

mandatory under SDCL 23A-27A-9, our review must consist of an 

examination of all three statutory factors contained within SDCL 23A-27A12, including the proportionality of Piper’s sentence. 
#26126

-8-

Piper’s history, and evidence of aggravating and mitigating circumstances. Our 

review of the record contains no independent basis to invalidate the sentence due to

the influence of passion, prejudice, or any other arbitrary factor. 

[¶18.] Whether the evidence supports the jury’s finding of a statutory 

aggravating circumstance as enumerated in § 23A-27A-1.

[¶19.] There is evidence in the record from Piper’s sentencing hearing that 

supports the jury’s finding of three aggravating circumstances beyond a reasonable 

doubt. SDCL 23A-27A-12(2). See SDCL 23A-27A-1(3), (6), & (9). “In order to be 

eligible for the death penalty, one of the . . . aggravating circumstances 

[enumerated] in SDCL 23A-27A-1 must be found beyond a reasonable doubt.” Piper 

I, 2006 S.D. 1, ¶ 28, 709 N.W.2d at 797. 

[¶20.] In this case, the jury found the existence of three aggravating 

circumstances beyond a reasonable doubt pursuant to SDCL 23A-27A-1(3), (6), and 

(9). The jury determined the State proved beyond a reasonable doubt that Piper 

“committed the offense for the benefit of [himself] or another, for the purpose of 

receiving money or any other thing of monetary value” pursuant to SDCL 23A-27A1(3). The record demonstrates the jury was presented with evidence that Piper, 

Page, and Hoadley killed Poage for the purpose of stealing items from Poage’s 

house. Piper and Page initially formed the plan to rob Poage and later informed 

Hoadley of their plan. After brutally murdering Poage, the trio returned to the 

Poage home and stole electronics, antique watches, coin collections, and other items 

of limited value. Piper, Page, and Hoadley fled South Dakota in Poage’s Chevrolet 

Blazer. They obtained Poage’s ATM card and pin number and successfully

withdrew money from Poage’s bank account following Poage’s murder. 
#26126

-9-

[¶21.] Additionally, the jury found that the State proved beyond a reasonable 

doubt that “the offense was committed for the purpose of avoiding, interfering with, 

or preventing a lawful arrest or custody in a place of lawful confinement” pursuant 

to SDCL 23A-27A-1(9). The jury heard Piper’s statements to law enforcement 

during two interviews on April 28, 2000. From these statements, it can be gleaned 

that Piper, Page, and Hoadley killed Poage in order to eliminate Poage as a witness 

to the robbery—the objective of the whole scheme that evening. 

[¶22.] Furthermore, Piper and his co-defendants transported Poage to a 

wooded, sparsely-populated, and rugged location, where they murdered Poage and 

disposed of his body. Testimony at the sentencing hearing indicated that the 

nearest house to the location where Poage’s body was recovered was approximately 

2.85 miles away. There was evidence in the record that, immediately following the 

murder and the ransacking of the Poage home, Piper and his co-defendants left

South Dakota and went to Piper’s sister’s home in Missouri. Prior to their return to 

Rapid City, the group pawned many of Poage’s possessions and utilized his ATM 

card at several locations in Nebraska and South Dakota. When taken as a whole, 

there is sufficient evidence to support the jury’s finding beyond a reasonable doubt 

the alleged aggravating circumstances under SDCL 23A-27A-1(9).

[¶23.] The jury also found that “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” under SDCL 23A-27A-1(6). Depravity of the mind 

is defined as:

(1) the defendant committed torture upon the living victim; (2) 

the defendant subjected the body of the deceased victim to 
#26126

-10-

mutilation or serious disfigurement; (3) the defendant relished 

the murder; (4) the defendant inflicted gratuitous violence upon 

the victim; (5) the senselessness of the crime; or (6) the 

helplessness of the victim.

Piper I, 2006 S.D. 1, ¶ 30, 709 N.W.2d at 799 (quoting State v. Rhines (Rhines I), 

1996 S.D. 55, ¶ 143, 548 N.W.2d 415, 448). The other terms of SDCL 23A-27A-1(6) 

are defined as:

Torture requires: (1) the unnecessary and wanton infliction of 

severe pain, agony, or anguish; and (2) the intent to inflict such 

pain, agony or anguish . . . . Unnecessary pain implies suffering 

in excess of what is required to accomplish the murder. 

Aggravated battery requires the infliction of serious physical 

abuse upon the victim, by depriving him of a member of his 

body, or by rendering a member of his body useless, or by 

seriously disfiguring his body or a member thereof . . . and by 

proving specific intent to inflict unnecessary pain in excess of 

what was required to accomplish the murder. 

Piper I, 2006 S.D. 1, ¶ 30, 709 N.W.2d at 799 (internal citations and quotation 

marks omitted). 

[¶24.] The jury was presented with evidence that, after Page pointed a pistol 

at Poage and ordered Poage to the floor, Piper kicked Poage in the face hard enough 

to render Poage unconscious. Piper then watched as his co-defendants bound 

Poage’s hands and feet and placed him upright in a chair. Piper stood on a four-way

tire iron on Poage’s feet to prevent him from moving. Poage was forced to drink a 

concoction of crushed up pills, beer, and hydrochloric acid. And all the while Poage 

pleaded for an explanation as to why the men were harming him. 

[¶25.] Next, the trio ushered Poage to his Blazer, placed Poage in the 

backseat, and threatened to kill him if he tried to escape. Piper drove the group in 

Poage’s Blazer to Higgins Gulch. 
#26126

-11-

[¶26.] Once at Higgins Gulch, Poage was forced, in freezing temperatures and 

12-inches of snow, to strip his body of his clothing, except for his shoes, socks, and 

undershirt. From the evidence, Poage endured their attempt to bury him in the 

snow and to drown him in the ice-cold waters of the creek. Poage was repeatedly 

kicked, which caused disfiguring injuries to Poage’s ears and head. Piper admitted 

to law enforcement that he kicked Poage multiple times in his head and body while 

wearing combat-style boots. When Poage attempted to make an escape from the 

men, Piper ordered Page to chase Poage. The jury heard evidence that Poage asked 

to warm himself inside the Blazer, but the group refused to allow Poage to enter the 

vehicle because he was bleeding. Following instructions, Poage went to the ice-cold 

creek and washed his body. However, after complying with his captors’ demands, 

Poage was not allowed into the vehicle. Later, Page and Hoadley dropped large 

stones on Poage’s head, while Piper stood by and did nothing to aid a helpless 

Poage. Throughout the events of that evening, Poage pleaded with the codefendants offering all of his possessions to the group in exchange for his life. 

[¶27.] For the first time in open court at the sentencing hearing, Piper 

presented evidence that he took part in stabbing Poage.7 Dr. Dewey Ertz, a 

licensed psychologist who examined Piper on two occasions, testified on direct 

examination by defense counsel:

Q: Did [Piper] tell you whether or not he had stabbed Chester 

Poage?

 

7. In the opening statement, counsel for Piper stated, “And this is something 

else that I believe this evidence will show here, is that [Piper] did stab 

Chester Poage. That’s not something that’s been established before. Now we 

admit that.”
#26126

-12-

A: He told me that he had.

Q: Now, that wasn’t something that was in his interview that 

you viewed with the police officers.

A: No, it was not.

Evidence presented at the sentencing hearing revealed that Poage was stabbed 

three times in his head and neck. 

[¶28.] The jury was presented with evidence that Poage’s murder involved 

“gratuitous violence.” Indeed, Piper admitted to law enforcement that he taunted 

and laughed at the victim throughout the four-hour ordeal. 

[¶29.] Furthermore, the crime was senseless in that Piper and his codefendants gained little, monetarily, after Poage offered all of his possessions in 

exchange for his life. Based on the evidence presented at the sentencing hearing, 

there is sufficient support for the jury’s finding beyond a reasonable doubt the

alleged aggravating circumstance under SDCL 23A-27A-1(6).

[¶30.] Under SDCL 23A-27A-1, the judge “shall include in instructions to the 

jury for it to consider[ ] any mitigating circumstances[.]” SDCL 23A-27A-2, the 

presentencing hearing statute, mandates “[a]t such hearing the jury shall receive 

all relevant evidence, including . . . (4) [a]ll evidence concerning any mitigating 

circumstances.” At the sentencing hearing, the jury was presented with the 

following mitigating evidence. As a child, Piper was involved in Boy Scouts, 

swimming, football, and martial arts. Piper had problems socializing at school, was 

impulsive, was diagnosed with Attention Deficit and Hyperactive Disorder, and had

other learning issues. Following graduation, Piper began college at the University 

of Alaska at Anchorage, but eventually dropped out. And, while in prison, Piper 

completed 42 college credit hours through Ohio University and was baptized into 
#26126

-13-

the Catholic faith. Lastly, Piper provided a statement at the end of the sentencing 

hearing apologizing to both the Poage family and his own family.8

[¶31.] Whether the sentence of death is excessive or disproportionate 

to the penalty imposed in similar cases, considering both the 

crime and the defendant.

[¶32.] Finally, Piper’s death sentence is not excessive or disproportionate 

compared to the penalty imposed in similar cases when considering the nature of 

the crime and extent of Piper’s actions. SDCL 23A-27A-12(3). 

[S]imilar 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.

State v. Robert, 2012 S.D. 60, ¶ 28, 820 N.W.2d 136, 145 (quoting Rhines I, 1996 

S.D. 55, ¶ 185, 548 N.W.2d at 455-56) (internal quotation marks omitted). “For 

 

8. Piper stated in court:

I’m here because I’m responsible for the death of Allan Poage, 

and that’s a responsibility that I’m going to pay for for the rest 

of my life. When I did this I was very young, and if there was 

anything that I could do to change what I did that night I would 

do it. 

To Mrs. Poage, to you and your loved ones, I am so very sorry for 

what I have done to your son and for what this has done to you. 

I know I will never deserve your forgiveness.

To my mom and dad, what I have done I’ll never be able to make 

up to you. The shame that I brought to you, and the fact that 

you still both love me is my greatest blessing.

I owe so many other apologies, ones that I’ll never be able to 

make. And I am so sorry for what I did. 
#26126

-14-

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.’” State v. Berget, 2013 S.D. 1, ¶ 21, 826 N.W.2d 1, 12 (quoting Rhines I, 

1996 S.D. 55, ¶ 205, 548 N.W.2d at 457). We have previously recognized that “[t]he 

disparity in suffering endured by victims is an important and legitimate 

consideration when evaluating the proportionality of a death sentence.” Rhines I, 

1996 S.D. 55, ¶ 207, 548 N.W.2d at 458. 

[¶33.] Piper raises only one argument concerning the proportionality of his 

sentence. Piper asserts that his sentence is internally disproportionate; i.e., 

disproportionate to the life sentence a jury gave to Piper’s co-defendant Hoadley. 

Piper is asking this Court to revisit its earlier proportionality ruling in Piper I in 

light of Hoadley’s new testimony at the July 2011 sentencing hearing, which 

portrayed Piper as more of a bystander in the murder than an active participant. 

See 2006 S.D. 1, ¶¶ 69-96, 709 N.W.2d at 810-18. Piper now argues that Hoadley 

testified under oath and was subject to cross-examination, which, Piper contends, 

was the reason this Court gave in Piper I for not considering Hoadley’s out-of-court 

statements. 

[¶34.] We again rely on Piper’s own statements—to law enforcement, to 

friends, to cellmates, and to medical professionals—as to the degree of Piper’s 

involvement in the crime. Though Hoadley’s recent version indicates that Piper had 

minimal involvement with the events at the gulch, Hoadley earlier told a different 

version of events detailing Piper’s active involvement in the crime to friend-turned-
#26126

-15-

police-informant Danny Burkhart.9 Hoadley’s current version of events was 

testified to 11 years after the murder while Hoadley’s statements to Burkhart 

occurred shortly after the murder. And, at Piper’s sentencing hearing in July 2011, 

Hoadley admitted that in making his statements to Burkhart, he had “no motiv[e] 

to make up [a] story at that time[.]” 

[¶35.] From the evidence presented at the sentencing hearing, excluding 

Hoadley’s testimony, Piper’s degree of involvement in Poage’s murder was not equal 

to co-defendant Hoadley’s involvement. “‘[A] death sentence should not be 

invalidated simply because a jury determined that another defendant, who 

committed an analogous crime, deserved mercy.’” Id. ¶ 96, 709 N.W.2d at 818

(quoting Rhines I, 1996 S.D. 55, ¶ 206, 548 N.W.2d at 457). Piper and co-defendant 

Page initially formed the plan to rob Poage and it was not until later that they 

informed Hoadley of their plan. Piper kicked Poage in the head rendering Poage 

unconscious. Piper held Poage’s feet down with a tire iron while Page forced Poage 

to drink a toxic liquid. During these events, Piper indicated to law enforcement 

that Hoadley was a bystander. Piper drove the group to Higgins Gulch in Poage’s 

Blazer. There is evidence in the record that Piper kicked Poage several times in the 

head and body at the gulch and taunted Poage. Piper presented evidence at the 

sentencing hearing that he did take part in the stabbing of Poage. Because Piper’s 

level of involvement in the crime itself was greater than co-defendant Hoadley’s 

 

9. The statements that Hoadley made to Burkhart occurred prior to Hoadley’s 

arrest and were tape recorded. 
#26126

-16-

involvement, Piper’s death sentence is not internally disproportionate to codefendant Hoadley’s life sentence. 

[¶36.] Piper’s sentence is proportionate when compared to the penalty 

imposed in similar cases when considering the nature of the crime and extent of 

Piper’s actions. This Court has recently updated the list of cases that are applicable 

to our proportionality review. See Robert, 2012 S.D. 60, ¶¶ 29-31, 820 N.W.2d at 

145-46. We now review and include the summary of State v. Robert in our 

“universe” of cases for comparison and take judicial notice of the case summaries set 

forth in previous decisions. See id. (summarizing State v. Wright, 2009 S.D. 51, 768 

N.W.2d 512, as a case where a jury, faced with a decision of whether to impose the 

death penalty, sentenced the defendant to life in prison and taking judicial notice of 

the “universe” of cases). See also State v. Page, 2006 S.D. 2, ¶ 60, 709 N.W.2d 739, 

760-61 (taking judicial notice of co-defendant Piper’s case and the case summaries 

set forth in Rhines I and in Moeller II and stating that co-defendant Hoadley’s 

conviction was a case where the jury, faced with the decision of whether to impose 

the death penalty, imposed a life sentence); Piper I, 2006 S.D. 1, ¶ 38, 709 N.W.2d 

at 801 (taking judicial notice of co-defendant Page’s case and the case summaries 

set forth in Rhines I and in Moeller II and stating that co-defendant Hoadley’s 

conviction was a case where the jury imposed a life sentence); Rhines I, 1996 S.D. 

55, ¶¶ 187-204, 548 N.W.2d at 456-57 (summarizing six cases where the jury 

imposed a life sentence and one case where the jury imposed a death sentence).10 

 

10. 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. 

(continued . . .)
#26126

-17-

[¶37.] Eric Robert and his co-defendant, Rodney Berget, inmates at the South 

Dakota State Penitentiary, brutally assaulted correctional officer, Ronald Johnson, 

by striking him in the face and head with a lead pipe causing disfiguring injuries. 

See generally Robert, 2012 S.D. 60, 820 N.W.2d 136. The two men then wrapped 

Johnson’s head in plastic wrap to prevent Johnson from crying for help and from 

breathing. Johnson died from the injuries he received in the attack. Following the 

attack, Robert and Berget dragged Johnson’s lifeless body to a concealed area where 

Robert dressed himself in Johnson’s uniform and Berget climbed into a box placed 

on a four-wheel cart. The men attempted to escape the prison. When they were 

unsuccessful, Robert and Berget surrendered to prison officials. 

[¶38.] Robert pleaded guilty to first-degree murder and opted to have a 

sentencing hearing before the circuit court instead of a jury. The circuit court found 

that the State had proved beyond a reasonable doubt the existence of two 

aggravating circumstances: the crime was committed against a law enforcement 

official and the crime was committed by a person in lawful confinement. 

[¶39.] At Robert’s sentencing hearing, the court was presented evidence of 

Robert’s violent and abusive past, including a kidnapping conviction, his 

rehabilitative prospects, and the severity and depravity of the crime. Even though 

Robert waived the presentation of mitigating evidence, the court considered the 

________________________

(. . . continued)

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; State v. Daphne Wright; and State v. Eric Robert. Because we reversed 

Rodney Berget’s death sentence in State v. Berget, 2013 S.D. 1, ¶ 119, 826 

N.W.2d 1, 37, Berget is not considered in our “universe” of cases.
#26126

-18-

mitigating evidence it could find, including Robert’s high intelligence, college degree 

from the University of Wisconsin, and his ability, because of his education and work 

history, to function as a productive member of society. The circuit court sentenced 

Robert to death.

[¶40.] Similar to the disfiguring injuries that Robert and his co-defendant 

inflicted upon Johnson, Piper and his co-defendants caused disfiguring injuries to 

Poage. Robert and his co-defendant delivered several blows to Johnson’s head, 

which led to the exposure of Johnson’s brain in at least three locations. In the 

present case, the evidence presented to the jury indicated that Poage had been 

kicked in his head to the point that his ears had been forcibly detached. Poage had

also been stabbed several times in the head. Piper admitted to kicking Poage 

several times, once in the face at the Spearfish home, and then several more times 

in the head and body at the gulch. Piper presented evidence at trial that he took 

part in the stabbing. However, in contrast to the beating and ultimate killing of 

Johnson, the brutality and torture of Poage lasted several hours. 

[¶41.] Piper was the first of the three men to direct an assault against Poage. 

The force with which Piper kicked Poage in the face was so hard that it rendered 

Poage unconscious. Following that attack, Piper held a tire iron to Poage’s feet 

while co-defendant Page forced Poage to drink a toxic liquid. Piper drove the men 

in Poage’s vehicle to the gulch. At the gulch, evidence in the record indicates that 

Piper kicked Poage several more times and stabbed him. During this time, Piper 

made jokes and comments as to the beatings and as to the amount of pain inflicted 

upon Poage at the hands of his co-defendants. The jury heard evidence that Poage 
#26126

-19-

asked to warm himself inside the Blazer and the group refused to allow Poage to 

enter the vehicle because he was bleeding. Following instructions, Poage went to 

the ice-cold creek and washed his body. However, after complying, Poage was not 

allowed inside the vehicle. Throughout the evening, Poage begged for his life and 

repeatedly asked the men why they were hurting him. Lastly, in contrast to his 

statements of remorse at this sentencing hearing, Piper bragged when he told his 

friends and cellmate about the events of the evening. 

[¶42.] The mitigating evidence presented to the jury indicates that Piper had 

a relatively decent childhood. Piper was involved in Boy Scouts, sports, and martial 

arts. Similar to Robert, Piper had the opportunity to go to college and the record 

indicates that he did go to the University of Alaska at Anchorage for a short time 

following his graduation from high school. 

[¶43.] Perhaps, most important, the jury heard evidence of Piper’s 

manipulative personality. Piper and co-defendant Page initially decided together to 

rob Poage and later told Hoadley of their idea. When Poage attempted to escape 

from his captors at the gulch, Piper instructed Page to run after him. Furthermore, 

during Piper’s incarceration he exhibited his manipulative personality. When he 

was initially imprisoned, the jury heard evidence that Piper attempted to coerce 

other inmates to join his escape plot from the Lawrence County jail. The record also 

indicates Piper manipulated a nun by convincing her to write a letter to another 

incarcerated individual, a violation of prison policy.11 Prison officials, who have 

 

11. In response to the State’s question of whether the nun knew it was a 

violation of prison policy for an inmate to write another inmate, the nun 

(continued . . .)
#26126

-20-

worked with Piper, Page, and Hoadley, testified that Piper had a leadership 

personality while Page and Hoadley were described as “followers.” We conclude 

that Piper’s death sentence is not excessive or disproportionate compared to other 

similar cases when considering the nature of the crime and extent of Piper’s actions. 

CONCLUSION

[¶44.] We affirm the denial of Piper’s motion to withdraw his guilty pleas, not 

on the merits as determined by the circuit court, but because of the limited nature 

of our remand in Piper II. In addition, Piper’s death sentence was lawfully imposed

by the jury. Thus, we affirm Piper’s death sentence. 

[¶45.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and 

SEVERSON, Justices, concur. 

________________________

(. . . continued)

testified “I - - I did not - - I did not think of it at the time, and now, yes, I 

know that is, but I - - when I wrote the letter I did not realize it.”