S.D. inmate Rodney Berget's death sentence overturned in prison guard killing

(AP) SIOUX FALLS, S.D. - The South Dakota Supreme Court has overturned a state prison inmate's death sentence for the killing of a prison guard nearly two years ago.

In an opinion released Thursday, the justices said Rodney Berget, 50, must get a new sentencing hearing because the circuit judge who sentenced him to die improperly considered a statement Berget made to a psychiatrist.

The high court said it could not conclude that the use of the statement, in which Berget said he deserves the death penalty for taking Ronald "R.J." Johnson's life and destroying a family, was harmless beyond a reasonable doubt.

The high court had weighed 12 issues raised by Larson and ruled in the state's favor in 11 of them, including determining that Berget knowingly and intelligently waived his right to be sentenced by a jury. But it ruled in Berget's favor on the use of the psychiatrist's statement and sent the case back to the trial court for a new sentencing hearing.

Despite that, state Attorney General Marty Jackley said in a statement that the court's ruling affirms the "appropriateness of a death sentence for Berget's crime."

The state presented substantial evidence demonstrating the heinousness of the crime and Berget's extensive criminal history, little chance of rehabilitation and multiple escape attempts, Jackley said.

"I am pleased that the Supreme Court has affirmed the overwhelming majority of the evidence was appropriately considered," Jackley said. "The single remaining issue surrounding psychological evaluation may be conducted on the existing record without causing excessive delay."

Berget and another inmate, Eric Robert, attacked Johnson on April 12, 2011 - the prison guard's 63rd birthday - and beat him to death. Robert then donned Johnson's uniform and tried to push Berget, hidden inside a box, outside the gate of the South Dakota State Penitentiary in Sioux Falls.

Both men pleaded guilty and were sentenced to death. Robert was executed in October. A third inmate, Michael Nordman, was given a life sentence for providing materials used in the slaying.

The high court said Circuit Judge Bradley Zell, of Sioux Falls, should not have considered a statement Berget made to Dr. David Bean during a competency evaluation because it violated Berget's right to be free from self-incrimination.

"They'll never see their father again or husband," Berget said in the statement. "He will never walk through that door again. I made sure of that by my actions. I'm not going to beg the Court or ask the Court to spare my life. I believe I deserve the death penalty for what I've done."

By a 4-1 margin, the high court sent the case back to circuit court for resentencing without the use of or consideration of the doctor's report, unless Berget opts to call Bean to testify.

Chief Justice David Gilbertson said in the court's opinion that the existence of the report had been disclosed to the state and the circuit court with the understanding that it would be kept under seal unless Bean was called by Berget as a witness.

Retired Justice Robert Miller, who subbed in for Justice Lori Wilbur on the case, was the lone dissenter. Miller said he believes Berget's sentence would have been death even if the court had not considered Berget's statement.