Elijah Page

Executed July 11, 2007 10:11 p.m. CDT by Lethal Injection in South Dakota


30th murderer executed in U.S. in 2007
1087th murderer executed in U.S. since 1976
1st murderer executed in South Dakota in 2007
1st murderer executed in South Dakota since 1976


Since 1976
Date of Execution
State
Method
Murderer
(Race/Sex/Age at Murder-Execution)
Date of
Birth
Victim(s)
(Race/Sex/Age at Murder)
Date of
Murder
Method of
Murder
Relationship
to Murderer
Date of
Sentence
1087
07-11-07
SD
Lethal Injection
Elijah Page

W / M / 18 - 25

12-01-81
Chester Allan Poage

W / M / 19

03-12-00
Beating
Acquaintance
01-00-01

Summary:
Page and two other young men were convicted of killing Chester Poage, a 19 year old "friend," near the town of Spearfish in the rural west of South Dakota. Poage was kidnapped at gunpoint, then tortured for almost 3 hours before his death. He was forced to drink acid, repeatedly kicked and beaten, stabbed in the head and torso, and forced to remove his clothing in an icy creek. His body was not found until a month later. Upon his arrest in Texas, Page admitted his involvement in the murder. Page later pled guilty, received a death sentence, and waived appeals. Accomplice Briley Piper, age 19, also pled guilty and was sentenced to death. Accomplice Darrell Hoadley, age 20, is serving a sentence of life without parole.

Citations:
State v. Page, 709 N.W.2d 739 (S.D. 2006) (Direct Appeal).
State v. Hoadley, 651 N.W.2d 249, 2002 SD 109 (S.D. 2002).
State v. Piper, 709 N.W.2d 783, 2006 SD 1 (S.D. 2006).

Final/Special Meal:
Steak with A-1 sauce, jalapeno poppers with cream sauce, onion rings, and a salad with cherry tomatoes, ham chunks, shredded cheese, bacon bits, and blue cheese and ranch dressing. He wanted lemon iced tea and coffee to drink and ice cream for dessert.

Final Words:
Asked if he had any last words, Page replied, "No." Asked if he understood the question Page responded, "Yes, no last words."

Internet Sources:

South Dakota Department of Corrections

FOR IMMEDIATE RELEASE: July 9, 2007
CONTACT: Michael Winder, SD Department of Corrections

Execution date, time set for Inmate Elijah Page

Pierre, S.D. - As required in South Dakota Codified Law 23A-27A-17, Doug Weber, Director of Prison Operations and Warden of the South Dakota State Penitentiary, has set the date and time for the execution of Inmate Elijah Page for Wednesday, July 11, 2007 at approximately 10:00 p.m. CDT.

According to state law, in a capital punishment case the judge designates a week for the execution to occur, and the exact day and time of the execution is left to the warden's discretion. The warden is then required by state law to publicly announce the day and hour of the execution not less than forty-eight hours prior to the execution.

DEPARTMENT OF CORRECTIONS ADMINISTRATION
3200 East Highway 34
c/o 500 East Capitol Avenue
Pierre, SD 57501-5070
Phone: (605) 773-3478
Fax: (605) 773-3194

Reuters News

"South Dakota carries out 1st execution in 60 years," by Todd Epp. (Thu Jul 12, 2007 12:25AM EDT)

SIOUX FALLS, South Dakota (Reuters) - South Dakota carried out its first execution in 60 years on Wednesday, putting to death a 25-year-old inmate convicted of torturing and killing a 19-year-old man following a robbery.

Officials at the South Dakota State Penitentiary in Sioux Falls said Elijah Page was pronounced dead at 10:11 p.m. CDT (1501 GMT on Thursday) following an injection of lethal chemicals. He had waived all appeals and said he wanted to die.

Warden Doug Weber asked Page if he had any last words and he replied, "No." Weber repeated the question and Page responded, "Yes, no last words," officials said.

It was the first execution in South Dakota since 1947 when another convicted murderer died in the electric chair. Before Wednesday, there had been only 15 executions in the state, the first occurring in 1877 when Jack McCall was hanged for shooting Wild Bill Hickok in the back of the head as he played poker at a saloon in Deadwood when the state was still a territory. Hickok was said to have been holding eights and aces -- poker's "dead man's hand."

Page and two other men were convicted of killing Chester Poage in 2000 after stealing a car and other property from him, forcing him to drink acid and torturing him for two hours before he died. Page pleaded guilty.

Executions are rare in South Dakota because of its sparse population. At about 780,000, it ranks 46th among the 50 states. Besides Page, there were only three other men on South Dakota's death row, including one of his co-defendants.

Page was originally scheduled to be executed a year ago but Gov. Mike Rounds ordered a halt because of a conflict between state law and prison execution protocol. The Legislature later amended the law so the execution could proceed.

It was the 1,087th execution in the United States since executions resumed in the United States in 1977.

Court TV

"South Dakota carries out first execution in 60 years against man who tortured friend to death," by Emanuella Grinberg. (Updated July 12, 2007, 1:00 p.m. ET)

The state of South Dakota carried out its first death sentence in 60 years Wednesday night with the execution of an admitted killer who asked to be put to death for brutally torturing and murdering his friend.

Elijah Page, 25, was pronounced dead at 10:11 p.m. in the South Dakota State Penitentiary in Sioux Falls. He declined to deliver any last words before an audience consisting of members of the media, Gov. Mike Rounds and the mother of victim Chester Allan Poage, 19.

After the execution, Poage's mother, Dottie, showed off a childhood picture of her son as she spoke to the media. "Elijah Page had the ultimate penalty for the ultimate crime," Dottie Poage said, according to the Rapid City Journal. "I never dreamt I'd be dealing with what I have dealt with these last seven years."

Page pleaded guilty in 2000 to kidnapping Poage with two friends, forcing him to drink hydrochloric acid and torturing him to death in the wintry woods of western South Dakota so the group could burglarize Poage's Spearfish home.

Page and co-defendants Briley Piper and Darrell Hoadley told police that they kicked, stabbed and stoned Poage for over two hours before leaving him to die in a creek where his partially clad body was discovered almost a month later.

A judge sentenced Page and Piper, who were 19 when the crime occurred, to death in 2001 after they entered guilty pleas. Hoadley was sentenced to life in prison in a jury trial. After the state Supreme Court upheld Page's sentence in 2006, Page wrote a handwritten letter to the governor saying he wanted to drop his appeals and proceed with the death sentence.

In the letter, he also attempted to take blame off Piper, one of three remaining inmates on South Dakota death row, by claiming full responsibility for plotting the burglary and the murder. "Piper really wanted nothing to do with it all, but if Darryl and I were in it, we weren't going to let Piper be out of it," Page said of Piper, whose appeals are still pending. "I am writing this because I have decided to end my appeals and face execution. But before I could do this, I had to let people know. I have nothing to gain or lose from this," Page said in the January 2006 letter.

Page's death also marked the state's first execution by lethal injection since South Dakota stopped using the electric chair in 1984. He was originally scheduled to be executed in August 2006, but Gov. Rounds postponed it so the legislature could revise the 1984 statute, which provided for the use of a two-drug cocktail instead of the three-drug mixture in wide use today.

George Sitts was the last condemned prisoner to be executed in South Dakota in 1947 for killing two lawmen.

Rapid City Journal

"Elijah Page executed; Mother of slain teen says Page got ultimate penalty for the ultimate crime," by Katie Brown. (July 12, 2007)

SIOUX FALLS -- Death-row inmate Elijah Page showed no remorse or emotion as he was put to death by lethal injection Wednesday shortly after 10 p.m. CDT, witnesses said.

Page made no last statement. When asked by state penitentiary warden Doug Weber if he had any last words, Page responded with a calm but direct, "No." Weber asked again, "Do I understand you have no last words?" Page responded, "Yes, no last words."

Witnesses said as the drugs began to flow, Page stayed calm, his mouth closed and his eyes open. "I couldn't see any emotion at all," media witness Carson Walker of the Associated Press said.

Page, 25, of Athens, Texas, was pronounced dead at 10:11 p.m., just nine minutes after officials at the state penitentiary in Sioux Falls began administering the three drugs that would end his life.

Page was sentenced to death in 2001 in Lawrence County for the brutal murder of 19-year-old Chester Allan Poage in March 2000 in Higgins Gulch near Spearfish. "Mr. Page has paid with his life for the crime he committed," Lawrence County State's Attorney John Fitzgerald said. Fitzgerald prosecuted the case and witnessed Page's death. "His debt to the state of South Dakota is now paid in full," Fitzgerald said.

Page pleaded guilty to the crime, and 4th Circuit Judge Warren Johnson sentenced him to death. Briley Piper, 26, of Anchorage, Alaska, also pleaded guilty to Poage's murder and was also sentenced to death. Darrell Hoadley, 27, of Lead stood trial and was sentenced by a jury to life in prison.

Poage's mother, Dottie Poage, witnessed the execution and complimented Fitzgerald and Johnson for their work on the case. This was the first execution in South Dakota in 60 years and the state's first by lethal injection. The last execution in the state was in April 1947, when George Sitts was executed in the electric chair for murdering a law-enforcement officer.

Page was originally scheduled to be executed last August, but Gov. Mike Rounds halted that execution just hours before it was to take place. Rounds said he delayed the execution because Page was scheduled to be put to death with a three-drug cocktail although state law required the use of two drugs. A new law, allowing the use of three drugs, went into effect last week. The three-drug cocktail is the more commonly accepted method of lethal injection in the United States because it is believed to be more humane. That was the method used Wednesday night to end Page's life.

Walker and Rapid City Journal reporter Bill Harlan, who also witnessed the execution, said the procedure went smoothly and quickly. They said that, for Page, the execution appeared to be over in a matter of seconds after the lethal injections were administered at 10:02 p.m. After the drugs began flowing, Page closed his eyes, issued three small gasps and went silent. "It was very much like a snore," Harlan said. "And that was it." Only 31 minutes elapsed from the time Page left his holding cell to the time he was pronounced dead.

Several demonstrators -- both for and against the death penalty -- were set up in a grassy area at the penitentiary for most of Wednesday. The day was sunny and other than members of the media and the demonstrators, the prison grounds were calm.

In the hour before the execution, as the sun went down and the sky got pink behind the razor wire of the penitentiary, the demonstrators and media members grew quiet for a few moments in anticipation. Page ate his last meal about 6 p.m. Nearly four hours later, he was taken from a holding cell and strapped to the procedure table where intravenous lines were inserted into each of his arms. Curtains to the witness rooms were opened exactly at 10 p.m.

Page's body was taken to Sanford Health, where an autopsy will be conducted Thursday. Michael Winder, state Department of Corrections information manager, said that is standard procedure whenever a penitentiary inmate dies of natural causes or otherwise.

State law says an inmate's body is to be turned over to family members for funeral services they choose. If family members decline, the body will be buried in the county where the execution took place. A certificate of Page's death, signed by all witnesses to the execution, must be filed with the Lawrence County Clerk of Courts within 10 days.

Minneapolis Star-Tribune

"S.D. inmate executed for torture, murder," by Pam Louwagie. (July 12, 2007 – 9:19 AM)

SIOUX FALLS, S.D. – Elijah Page’s tumultuous life ended quietly Wednesday night. As he lay emotionless and strapped to a death chamber table, he gave a few snoring-like gasps as lethal drugs were injected into his veins, witnesses said. And within nine minutes, South Dakota’s first execution in 60 years was complete.

Page, 25, had wanted die, deciding more than a year ago to stop appealing his death sentence. He had pleaded guilty in the 2000 brutal torture and murder of a 19-year-old acquaintance in the remote wilderness of the Black Hills. Shortly after 10 p.m. Wednesday night, with protesters gathered outside the state penitentiary, the victim’s mother and several others watched him take his last breaths.

The procedure went “absolutely smoothly,” said reporter Bill Harlan of the Rapid City Journal, one of two reporters to witness the execution. “I think it was over for him in a matter of seconds.” “His debt to the state of South Dakota is now paid in full,” said prosecutor John Fitzgerald, also a witness.

Page’s attorney, Mike Butler, had said he’d been assured that officials would halt the execution countdown if Page changed his mind about appealing, even at the last minute.

Page received several visitors in the hours leading up to the lethal injection time, said corrections department spokesman Michael Winder. Visits from family and friends stopped by 4 p.m. His lawyer and clergy were allowed to stay with him for five hours after that. He had requested a last meal of steak, A-1 sauce, jalapeńo poppers, onion rings, salad, lemon iced tea, coffee and ice cream.

After the execution, the victim’s mother, Dottie Poage, who witnessed Page’s death, stood before a row of TV cameras and displayed photos of her son at various stages in his life. She spoke of the dreams he had for his life. “I told him a friend, a real friend, you have to earn through time and to have trust,” she said. He evidently didn’t listen to her on that one, she said.

“He supposedly came across three guys that he wanted to make a friendship with,” she said. “Who would ever do something like this to a friend? I never dreamt that I would be dealing with what I’ve dealt with this last seven years.” As the execution hour drew near, more than 80 death penalty opponents and 10 supporters gathered outside the penitentiary. A couple of them exchanged shouts across a prison entrance road, debating how the Bible should be interpreted on the subject.

Near 9:30 p.m., a young woman played “Amazing Grace” on the bagpipes. Groups huddled in prayer, a rosary chorus of “Pray for us sinners, now and at the hour of our death” piercing the din as the sun set hazy on the horizon. A car whizzed past and its passenger interjected, “I’ll pay for the electric bill!”

For much of the day, Barb Kremer of Worthington, Minn., sat praying on the wind-whipped hill outside the penitentiary. Kremer, who frequently visits the penitentiary to do ministry work, felt compelled to come, she said, because she believes killing isn’t right for anyone. And in the case of Page, she and others said, it amounted to assisted suicide.

Robyn Keating and her 18-year-old daughter Emily Wendel came out in support of capital punishment. Keating said Page’s actions presented a clear-cut case for the death penalty. “The way he did it showed sociopathic behavior,” she said. Keating said they came to make sure Chester Poage, the murder victim, was remembered. “People are forgetting that boy was tortured for three hours, crying to go home. That’s sick,” she said. “I’m just here to support justice for this tortured boy. Maybe his mother will sleep better tonight.”

But in general, there was little public debate about the execution. Sioux Falls Argus Leader columnist David Kranz wrote in Wednesday’s edition of the newspaper that it was eliciting “little more than a contagious yawn from citizens.” That’s partly because many in this prairie city said they felt like they’d been through it last year.

Page was scheduled to die last Aug. 29, but the execution clock was halted at a late hour by Gov. Mike Rounds, citing legal concerns about how the drugs would be administered. State law at the time directed that two drugs be used, while prison officials had planned to use three — a combination that has become common in other states in recent years. Nearly a year later, with the law changed, several in Sioux Falls said they simply wanted it over with.

Page has not posed a sympathetic figure, to be sure. Poage’s death was a crime so heinous that Fitzgerald, the Lawrence County State’s Attorney, said it was an easy decision to pursue the death penalty.

Page and two others had been acquainted with Poage for about a month when they decided to hang out that fateful day in March 2000. “I don’t think [Poage] really realized what they were really like,” Fitzgerald said last week. When the three decided they wanted electronics and other stuff from Poage’s home, “they turned on him,” Fitzgerald said.

To cover up their theft, Fitzgerald said, the three set out to torture and kill their new friend. In a Black Hills gulch, they made him drink acid, stabbed him, tried to bury him nude in the snow and tried to drown him, Fitzgerald said. They laughed as Poage suffered and begged for his life, Fitzgerald said. By the time Poage’s body was found in an icy creek, Page was in Texas and co-defendant Briley Piper was in Alaska, Fitzgerald said.

Page and Piper pleaded guilty and were each sentenced to death in early 2001. The sentences were unusual because they came from a judge. Piper remains on death row. A third man was convicted and sentenced to life in prison. Dean Hopper, who does security system maintenance in Sioux Falls, had his morning coffee as usual at Michelle’s coffee shop downtown, and said that although he’s conflicted about the death penalty in general, Page made it easier by saying he wanted to stop his appeals.

His friend Bob Groman, retired from the Air Force, agreed. “This is one of those issues that I don’t care about. It doesn’t directly affect me,” Groman said. “The guy says, 'Go ahead, execute me’ — well, go ahead.” At Shear Elegance, a Sioux Falls hair salon, owner Nancy Colbert said it was a bigger topic of conversation among her clients last summer. “I think people are ready for it to be over with,” she said. “Just let justice take its course.”

At the Center for Active Generations, a senior center, there was little disagreement among a group of men having coffee early Wednesday. “Lead me to the machine. I’ll throw the switch,” said 86-year-old Ed Carlson. “Get it over with. I have no sympathy for him,” said Bud Coffin, 88.

But some said that they believe Page had to be severely depressed to decide to forgo his appeals, and that going ahead with the execution was akin to state-assisted suicide. Some had argued that Page’s upbringing gave him little chance in life. Evidence at his sentencing hearing showed Page, as a boy, was traded to people who wanted to have sex with him in exchange for drugs, Butler said last week. “If that doesn’t alter one’s outlook on the world, nothing will,” Butler said.

Kremer said that inmates talked about capital punishment during her recent prison ministry sessions. Several of the inmates were spared the death penalty even though they had at one point wished for it, too, Kremer said. “They’re fighting demons,” she said. “They’ve got inner rage.”

But, she said, some found religion and see value in living even if they won’t ever be released; they see a purpose in helping other shorter-term inmates become better people.

One inmate talked about the pending execution, she said, and called it a missed opportunity for Page to turn his life into good. “I feel really close to these guys,” Kremer said. “That makes it personal.”

Minneapolis Star-Tribune

"Little debate in South Dakota as execution approaches: Reactions to the state's first in 60 years appear to be muted," by Pam Louwagie. (July 11, 2007 – 5:23 PM)

Susan Merritt has stood at a busy intersection in Sioux Falls, S.D., almost every day for the past two weeks, her "End the Death Penalty" sign in hand, and she's been amazed by how little response she's been getting. A couple of honks in support. A few angry tirades from motorists yelling out their windows. Mostly just quiet from the passing vehicles. Elijah Page, 25, is scheduled to be strapped to a table inside the state penitentiary at a time yet to be announced this week to have a lethal dose of drugs injected into his veins for the gruesome beating death of a man in 2000.

The death penalty has resurfaced as a focal point for Merritt and some religious and justice groups. But the chatter has been nowhere near as loud as last year's rancorous statewide abortion debate, which ended when voters rescinded a highly restrictive law passed by the Legislature.

Page, who pleaded guilty, has declined to make further appeals and has said that he wants to die, making any pleas to keep him alive more difficult. His attorney, Mike Butler, said he's been assured by Gov. Mike Rounds and the state's Supreme Court chief that the execution countdown will be stopped if Page changes his mind about appealing.

"I've been assured and I am satisfied that he can stop it if he chooses to," Butler said. "He simply doesn't desire to spend the rest of his life in prison. ... There was a time when I worked very hard to persuade him otherwise. Obviously I've been unsuccessful. "I've discontinued trying to do that because I'm quite sure that Mr. Page is capable of making his own decision. It goes against everything I believe in, but that's not the point anymore."

Crime and punishment

Page and two others were convicted of taking 19-year-old Chester Poage into the Black Hills wilderness in March 2000 and beating, taunting and torturing him in an icy creek until he was dead. Page and defendant Briley Piper admitted their roles in the killing and pleaded guilty. Both were sentenced to death in early 2001. A third man convicted was sentenced to life in prison.

John Fitzgerald, who prosecuted the case in Deadwood, S.D., said it was an easy decision to seek the death penalty because of the facts of the crime. South Dakota law requires at least one "aggravating circumstance" to seek death, he said, and in this case there were four: torture, mutilation of a person while he is alive, killing somebody for money and killing somebody to eliminate him as a witness.

Fitzgerald said people need to remember the victim, who was made to drink acid, stabbed, stripped of his clothing, stoned and plunged into the water by the three acquaintances who killed him and then robbed his home. "They laughed at him as he suffered," Fitzgerald said. "He pleaded repeatedly for his life."

Law needed changing

Page was ready to be executed last Aug. 29, but the governor put a stop to it just hours beforehand, citing legal concerns about how the lethal drugs would be administered. State law at that point had directed two drugs be used, while prison officials had planned to use three -- a combination that has become common in other states in recent years. The law was rewritten, allowing prison officials to use whatever drug combination they choose, and the execution was rescheduled for this week.

Those invited to witness Page's death -- including Fitzgerald, who said he is required to witness the execution -- know when it's scheduled but are prohibited by law from saying anything. The prison warden will give 48 hours' notice to the public.

A life ending

As the execution nears, Page's family will continue to be allowed visits, but they will cease six hours before the execution time, according to prison procedures. A friend of Page's who often spoke out on his behalf, Pam Guettler of Spearfish, S.D., will not be among them; she died last weekend of undisclosed causes.

Guettler got to know Page when her daughter dated him before the murder, and said earlier this year that her family visited him monthly, and in recent weeks more often. She told the Rapid City Journal that she once favored the death penalty but their friendship changed her views. "It's taught me not to judge people," she said. "That's up to God."

Page will be led into the execution chamber, a sterile, windowed room, where he'll be strapped to a padded table with tan leather straps, and an IV will be inserted in each of his arms. Then blinds will open so that witnesses can watch his final moments. Page does not want his family to attend, Butler said.

A series of three drugs will be administered: One will make him unconscious, one will stop his breathing and one will stop his heart.

Quiet in their thoughts

Despite Page's death wish, the South Dakota Peace and Justice Center planned to hold vigils around the state starting Sunday, said Deb McIntyre, executive director.

McIntyre said about 50 people gathered for a vigil at the prison last year, which she called a good turnout. "I think when you have a smaller community, it really is a big deal for people to speak out," McIntyre said. "That's a very risky kind of thing to do. Nobody wants a neighbor to be angry at them. So people are very careful."

As the execution has neared, the governor's office has received about 100 letters, calls and e-mails from South Dakotans and a couple hundred from people outside the state and country -- "significantly fewer" than last year, said spokesman Mitch Krebs. "It's like everybody's put it out of their minds," said Merritt, the sign-carrying death penalty opponent. "I think to some people [this] sounds very just, but I think when it comes right down to laying him down and strapping a needle to this kid and killing him, I think people will have second thoughts -- too late, of course."

Police in Sioux Falls are preparing to have more officers than usual available at the penitentiary in case of heated exchanges between death penalty advocates and opponents.

Butler, who will attend, said he's read accounts of other executions to prepare himself, but doesn't know what to expect when he watches his client's life end before his eyes. "When it's somebody you've gotten to know ... one hour you're visiting with him and the next hour you're observing it, I'm not sure how you react to it," he said. "Then you have to get up and move on."

Sioux Falls Argus Leader

"Elijah Page dead; S.D. carries out first death sentence in 60 years," by Steve Young and Jonathan Ellis. (July 12, 2007)

Elijah Page died from lethal injection at 10:11 p.m. Wednesday, the first person executed in South Dakota in 60 years. With an undisclosed number of witnesses looking on, the 25-year-old Athens, Texas, man died after being administered a lethal combination of three drugs at the state penitentiary in Sioux Falls.

Asked before the execution by Warden Doug Weber if he had any last statement, Page said, "No." When Weber asked Page to confirm that he had nothing to say, witnesses said the inmate firmly responded, "Yes, no last words."

Page, dressed in an orange prison jumpsuit, was moved from his holding cell at 9:40 p.m., placed on the table in the execution chamber at 9:41 p.m., and put into restraints at 9:43 pm. Leather straps were secured across his chest, midsection and feet, witnesses said. A sheet covered the lower half of his body. Once Page was strapped to the table, intravenous lines were placed into each of his arms during the next six minutes. The witnesses then entered the viewing room at 9:51 p.m., and after Page declined to comment, the drugs began flowing at 10:02 p.m., administered by two people trained to carry out the injections. Their identities were not released.

Carson Walker of The Associated Press, one of two reporters to witness the execution, said after Page declined to comment, it was just seconds before the drugs began having an effect. The inmate first received sodium pentothal through one of the IV lines to render him unconscious. He then was given pancuronium bromide to stop his breathing and potassium chloride to stop his heart. "It was just a matter of seconds. ... and we didn't see anything or hear anything," Walker said. "The next thing we heard were several gasps, almost like a snoring. His chest heaved three times."

Bill Harlan, a reporter for the Rapid City Journal who also witnessed the execution, said once the drugs were started, there was 10 to 15 seconds of breathing on Page's part, then silence. "There was no movement," Harlan said. Walker added that from 10:02 until Page's death was announced at 10:11 p.m., "nothing happened."

The inmate's eyes were closed and within minutes, his skin started to turn color, the two reporters said. At Weber's direction, an emergency medical technician then checked Page's body and said: "I have no breathing. I have no heartbeat. The time is 10:11."

Minnehaha County Coroner Dr. Brad Randall said the official pronouncement of Page's death was made by the prison EMT because American Medical Association ethics rules prohibit doctors such as himself from actively participating in an execution. Randall did certify the death, however. Following the execution, Page's body was taken to the morgue at Sanford USD Medical Center. An autopsy was planned for this morning, which Randall said is standard procedure for any inmate who dies in prison.

The ultimate destination of Page's body was unknown early today. "The disposition of the body after the autopsy, I do not know at this point," Randall said.

Among the witnesses to Page's death was Dottie Poage, mother of murder victim Chester Allan Poage. Page was put to death for his role in the March 13, 2000, murder of Poage in Higgins Gulch outside of Spearfish. "Elijah Page had the ultimate penalty for the ultimate crime, and for that I'm proud of the state, the attorney general, the governor and everyone at the state penitentiary for doing a job well done," Dottie Poage said afterward. "I'm proud to be an American."

Attorney General Larry Long witnessed the execution, as did Lawrence County State's Attorney John Fitzgerald, who prosecuted Page and insisted on the death penalty. "His debt to the state of South Dakota is now paid in full," Fitzgerald said. A full list of witnesses must be filed in Lawrence County and thus available to the public within 10 days, though it could come sooner, spokesman Michael Winder of the state Department of Corrections said. Page was the 15th person executed in South Dakota since 1877. The last man executed, George Sitts, was electrocuted on April 8, 1947.

Outside the prison, protesters showed up throughout the day, and by 10 p.m., there were 100 people opposing the death penalty and 10 supporting it.

Page, who had given up his appeals and had asked to die, was put in a holding cell just down the hall from the death chamber several days ago. He was under constant guard since being transferred, and his last visit with friends and family was at 4 p.m. Butler had access to Page until one hour before the execution.

Page requested a last meal - served about four hours before his execution - of steak, jalapeno poppers with cream sauce, onion rings, and a salad with cherry tomatoes, ham chunks, shredded cheese, bacon bits, and blue cheese and ranch dressing. He wanted lemon iced tea and coffee to drink and ice cream for dessert.

His father, Kenneth Chapman, said before the execution that he visited his son every day for the past week at the penitentiary and told him he loved him. According to Chapman, his son was remorseful. "He wants everybody to know he feels bad for what happened. He's not a cold-hearted person like they're making him out to be," Chapman said.

Page, Briley Piper and Darrell Hoadley were convicted of stabbing and kicking Poage, bashing him with large rocks and forcing him to drink hydrochloric acid. The torture lasted two to three hours. Hoadley received life in prison. Briley also was sentenced to die and now sits on death row with Charles Rhines and Donald Moeller.

Page's execution apparently had been scheduled for weeks to be at 10 p.m. Tuesday. But Rounds' spokesman, Mitch Krebs, confirmed Wednesday that the governor delayed it 24 hours out of respect for the family of Staff Sgt. Robb Rolfing, killed June 30 in Baghdad and buried Tuesday at Woodlawn Cemetery in Sioux Falls. "The governor had a conversation with the Rolfings and came to the conclusion that it (Tuesday) was Robb's day," Krebs said.

It was the second delay in the execution. The governor postponed Page's planned Aug. 29, 2006, execution because of concerns that a 1984 state law requiring the use of two drugs for lethal injection could put prison officials at legal risk if they instead administered a three-drug combination that now is considered standard.

State lawmakers amended the law the last legislative session to allow prison officials to use whatever lethal injection mixture they choose.

Of the 38 states that have death penalty statutes since capital punishment was reinstated in 1976, only four now have not executed anybody, according to the Death Penalty Information Center, a nonprofit organization based in Washington, D.C. Those states are Kansas, New Hampshire, New Jersey and New York.

Sioux Falls Argus Leader

"Witnesses begin bracing for Elijah Page's execution," by Tery Woster. (June 24, 2007)

PIERRE - As South Dakota prepares for its first execution in six decades, the state's chief law enforcement officer says he's prepared to see a death sentence carried out. Elijah Page, convicted in the torture murder of Chester Allan Poage in 2000 near Spearfish, is scheduled to die by lethal injection the week of July 9.

Attorney General Larry Long is among the officials who are named in state law who are to be invited to witness the execution.

Long said that as a prosecutor, he has thought through the death penalty, but he has no idea how he will react to seeing a person die. "When I as a prosecutor faced the decision on whether or not to ask for the death penalty in a case, I kind of worked through that part of the issue, whether it's a proper punishment and whether I was capable of prosecuting a case with the possibility of a death sentence," Long said.

"When you work through that, you've faced the basic question," he said. "When it comes to actually watching a person die, I've only done that once. That was my father, under far different circumstances. I can't say what effect it might have. I plan to be in the room, though. The statute requires it, and I'll carry out that duty." Page, who dropped his appeals a year ago and asked to have his sentenced carried out, was to have been executed last August.

Gov. Mike Rounds issued a stay when questions arose about a conflict between state law and prison policy - the law specified two drugs, and prison policy provided for three. The 2007 Legislature passed a fix for the discrepancy, and Rounds now says the only person who could stop the execution is Page, who has told family and friends he wants to die.

Rep. Tom Hills, R-Spearfish, represents the legislative district in which the Poage murder happened, and he pushed for the change in law. "I have no second thoughts at all,'' Hills said. "Absolutely not. ... We did what we needed to do." Hills said there's been little talk of the pending execution in his area in recent months but expects there to be more as the execution nears.

Besides the attorney general, state law specifies that the prison warden is to request attendance by the trial judge, the state's attorney and sheriff of the county in which the crime was committed and no more than 10 "reputable adult citizens," including one member of the news media.

Carson Walker of the Associated Press in Sioux Falls and Bill Harlan of the Rapid City Journal will witness the execution, acting as "pool" reporters, meaning they will gather information for all media in the state. Both were scheduled to be witnesses to the execution that was stayed a year ago.

Walker said he will attempt to observe as closely as possible what happens before and during the execution, "which is pretty much the role the media historically has played.'' He's unsure what to expect and added, "Others will give perspective and context and opinions about it. My job is to record what happens and go out and share that with the rest of the media.''

Harlan said he was in the process of tying his tie before driving to the penitentiary last August when the stay was issued. This year, he says, "I'll know what the stress will be, how I'll feel as I'm getting ready.''

ProDeathPenalty.com

On March 12 -13, 2000, Briley Piper and two others, Elijah Page and Darrell Hoadley, kidnapped and killed Chester Allan Poage so that they could steal property from the home Poage lived in with his mother and sister in Spearfish, South Dakota.

Piper, Page and Hoadley, all of whom were friends with each other and with Poage, met up with Poage at approximately 8:00 p.m. on March 12, 2000. Piper had informed another friend that Poage would give him a ride to the Job Corps facilities. Poage complied with the request for the ride, and he, along with Piper, Page and Hoadley, picked the friend up and dropped him off at Job Corps. The remaining four then went to Poage’s house and played PlayStation games. Poage’s mother and sister were on vacation in Florida at this time.

While there, Piper, Page and Hoadley convinced Poage to leave his house, and the four left in Poage’s 1997 Chevrolet Blazer. Testimony as to the origin of the plot to kill Poage and steal his property varies. It is unclear whether all three of the assailants planned on stealing items in the house so they could buy LSD, 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 up.

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. All four ended up at the house in which Piper, Page and Hoadley had been staying. Once there, Page exposed a .22 caliber pistol, which he had stolen from Poage’s mother’s room at the Poage residence, and ordered Poage to get on the floor. Once Poage was on the floor, Piper kicked him in the face, knocking him unconscious.

While Poage was unconscious, he was tied up with a cord and sat upright in a chair. After he regained consciousness, Piper laid a tire iron across his feet to prevent him from moving, while Page made him drink a mixture containing crushed pills, beer and hydrochloric acid. During this time, Poage begged for an explanation as to why his alleged friends were doing this. In response, Page hit him in the face and told him to “shut up.” While Piper and Page discussed their plan to kill Poage, which included slitting the victim’s throat, Poage pleaded for his life and offered to give them everything he owned in exchange for his release.

At this point, Page asked Poage for the personal identification number for his ATM card, and Poage gave it to him. Next, the group escorted Poage to his own vehicle, placed him in the back seat and threatened his life if he attempted to escape. Piper got in the driver’s seat. The group stopped at a gas station, and then Piper drove the group to Higgins Gulch in the Black Hills, a wooded area about seven miles away from the house where Piper, Page, and Hoadley had been staying. Upon arriving at Higgins Gulch, the group forced Poage out of his vehicle into twelve-inch deep snow. Poage was forced by Piper and Page to take off all of his clothes, except his tank-top style undershirt, shoes, and socks in temperatures of about twenty-five degrees Fahrenheit. The three young men then took Poage’s wallet.

Thereafter, the three tried holding Poage down and covering him up with snow. Poage was then escorted to an icy creek, just over fifty feet from the road they had driven on to reach the gulch. Page and Piper admitted kicking him numerous times in various parts of his body and head. Page said he kicked Poage in the head so many times it "made his own foot sore." At one point in the 3-hour attack, Poage did try to escape, but upon Piper’s urging, Page recaptured him and continued to beat his near-naked body in the freezing temperatures. Poage was also made to lie in the icy creek water for a lengthy period of time.

Piper later stated he had kicked Poage at the gulch a couple of times in the body and a couple of times in the head. Throughout the beatings, Piper laughed and said things like “Ohh ... like that would suck” and “Ah, that’s got to hurt.” At one point, Poage asked to be let into his vehicle to warm himself. The record indicates that Poage said he preferred to bleed to death in the warmth rather than freeze to death in the cold. Piper agreed to grant his request, so long as he washed the blood off of his body in the creek. After rinsing in the icy waters, Piper refused to let him warm himself in the vehicle. Instead, they continued beating and taunting Poage.

Next, Poage was dragged back into the creek, where Piper and the others attempted to drown the victim. The co-defendants’ stories diverge somewhat on the final fate of Poage. One witness stated that Piper admitted standing on Poage’s neck to help Hoadley drown him, then Piper stabbed him twice or more -- once by the ear and then under the chin. Piper’s brief contends he did not participate in the drowning attempts or stabbings, but instead that he went back to Poage’s vehicle. After the drowning attempts, stabbings, beatings and stoning, Poage was still moving. According to Piper, Hoadley threw the final basketball-sized rock that killed Poage, but at that point Piper was not there to personally witness this act. Both Page and Hoadley admitted they jointly dropped large rocks on Poage’s head, actions which they believed finally killed him.

Approximately four hours after the three kidnapped Poage, and about three hours after the beatings began at the gulch, Poage was left for dead in the creek. Piper drove the three away from the secluded area in Poage’s vehicle, and they proceeded to discuss how they would divide Poage’s property. They went to Poage’s house and stole numerous items.

The group then drove to Hannibal, Missouri, together. There, they visited Piper’s sister, but upon her refusal to let them stay, they headed back to South Dakota. The group returned to Rapid City, South Dakota, using Poage’s ATM card for cash and pawning some of Poage’s property throughout the trip. Records from Poage’s bank show the ATM card was used six times in various locations in South Dakota and Nebraska. Some of Poage’s property was later found at pawnshops in Wyoming and Missouri.

When the trio returned to Spearfish, Hoadley’s juvenile girlfriend testified that she saw the three unpack the stolen PlayStation, video games and many other items from Poage’s house. She also testified that Piper confessed the murder to her in detail. She said Piper laughed about the killing as he told her about it, “and thought it was just like a really cool neat thing.” Another friend of Piper’s testified that Piper confessed to him as well and confirmed the nonchalant attitude, stating, Piper acted “a bit cocky” while telling the story of the beatings. Eventually, the three went their own ways. Piper ultimately ended up in his home state of Alaska.

On April 22, 2000, over a month after the three left Poage for dead, a woman who owned land near Higgins Gulch spotted what was later determined to be Poage’s remains in the creek. His body was found, clad in a sleeveless t-shirt, socks and shoes.

A forensic pathologist from the Clinical Laboratory in Rapid City performed an autopsy on the body. He discovered numerous head injuries and stab wounds. Some examples of the head injuries inflicted included: a stab wound that nearly severed the jugular vein, another stab wound through the skull and into the brain, and a complex, spider-web shaped skull fracture that measured five inches. Poage's ears were almost torn off from being kicked repeatedly. He determined the cause of death was the “stab wounds and the blunt force injury to the head.”

After the body was discovered, Piper became a suspect. Law enforcement from South Dakota tracked him down in Alaska, questioned him and arrested him for first degree murder. While still in Alaska, he gave a detailed statement describing Poage’s murder and his participation in it to South Dakota law enforcement. He was subsequently extradited to South Dakota. Piper was then jailed in Lawrence County, South Dakota. He later pleaded guilty to, and was convicted of, first degree felony murder; kidnapping; robbery in the first degree; burglary in the first degree; and grand theft. The circuit court ruled that the death penalty would be imposed for the first degree murder conviction.

Thereafter, co-defendant Page, who had been arrested in Texas, also pleaded guilty to the same charges, and after an extensive sentencing hearing, he was also sentenced to death by the same judge. Hoadley then stood trial in front of a jury on the same charges. He was found guilty of the same charges but the jury sentenced him to life in prison. "The sheer brutality of this crime places it among the worst of the worst," assistant attorney general Sherri Sundem Wald stated in written arguments to the high court. Piper was enthralled when describing the abduction and slaying to fellow jail inmates after he was arrested, deputy attorney general Craig Eichstadt said.

Piper feigned remorse only when he felt it would result in a more lenient sentence, the deputy attorney general said. While waiting to learn his fate, Piper tried to recruit inmates to help him kill a guard and break out of jail. Assistant attorney general Gary Campbell said said Page was a merciless killer who inflicted the greatest punishment on Poage. "We're not talking about a passive follower here."

UPDATE: Elijah Page was scheduled for execution in August 2006 but was granted a last-minute reprieve from Governor Mike Rounds, due to concerns over the legality of the mixture of drugs that were to be used for the lethal injection. South Dakota's death penalty law stated that executions would be carried out by using an "ultra-short-acting barbiturate in combination with a chemical paralytic agent" but the plan of penitentiary staff was to use the three drug protocol that most other states use. The legislature updated the death penalty statute to include the use of the three drug mixture and the new legislation becomes effective on July 1 of this year. Page is set to be executed during the week of July 9. Per South Dakota state law, the warden of the penitentiary is responsible for setting the date and time of the execution after the trial court sets the week it should be carried out. The warden cannot announce the actual date and time until 48 hours prior to the execution.

UPDATE: Elijah Page was executed shortly after 10:00 pm on July 11, 2007. Among the witnesses to Page's death was Dottie Poage, mother of murder victim Chester Allan Poage. After the execution, Poage met with reporters, leafing through a photo album of images and newspaper clippings of her son. "He was a normal, happy child. He had a mom, dad, sister and grandparents, cousins who loved him. I never dreamt I'd be dealing with what I have dealt with these last seven years," she said. Poage said that after Page and Piper confessed to Chester's murder, she asked Lawrence County State's Attorney John Fitzgerald if South Dakota had the death penalty. "When he said 'yes,' my heart rose," she said. "Elijah Page had the ultimate penalty for the ultimate crime, and for that I'm proud of the state, the attorney general, the governor and everyone at the state penitentiary for doing a job well done. I'm proud to be an American." Attorney General Larry Long also witnessed the execution, as did Fitzgerald, who prosecuted Page at his trial. "His debt to the state of South Dakota is now paid in full," Fitzgerald said. Lawrence County Sheriff Richard Mowell, who watched the execution as well, said the death penalty was the appropriate penalty for what he called "a brutal, torturous murder. I can assure you that Elijah Page had a much quieter, quicker and apparently painless death," Mowell said. "But I can assure you he will never be able to do this again."

Sioux City Journal

"Death penalty foes outnumber supporters outside prison."

SIOUX FALLS (AP) -- Death penalty opponents far outnumbered supporters Wednesday evening outside the state penitentiary as Elijah Page's planned execution approached.

Roger Elgersma, a freelance writer from Sioux Falls, said he had talked to Page's former girlfriend and was most concerned about her, though he was protesting to show his opposition to the death penalty. Page's life should be spared because Page could wind up helping people, even inside the prison, he said.

Elgersma said that after the death sentence of Thomas White Hawk was commuted in 1969, he found God and counseled other inmates during the rest of his time in prison. "He ended up doing a lot of good in this world with people we have a hard time fixing," he said. White Hawk died in prison in May 1997.

Elgersma also said he doesn't believe the death penalty deters others from committing murder. He said DNA tests have proven that some death row inmates around the nation are innocent, which shows that courts sometimes do make mistakes. Prison officials had set up separate areas for opponents and proponents to gather.

At one point, a man in support of the death penalty made his way to the other side and began distributing pamphlets stating there is biblical support for the death penalty. The man, who would not give his name to reporters, said people who oppose the death penalty are "misled." "You got to read the Bible more often," Charlotte Gadsden told him. "The word of God will set you free," he replied.

Lawrence Goodis of Sioux Falls stood in the protest area wearing a button that read "END THE DEATH PENALTY." Capital punishment is barbaric, he said. "I think the death penalty should be abolished in the United States. Being a Catholic, I believe life is sacred and the state Legislature should abolish the death penalty in South Dakota," Goodis said.

He said he also believes it is unfair because poor people cannot afford to hire the caliber of attorneys as those who represent wealthy people. Page should have received better legal advice so he could have cut a deal to get life in prison instead of death when he pleaded guilty, Goodis said.

Robyn Keating of Sioux Falls and her daughter were the lone people across the street who defended capital punishment. Posted on that side of the street were signs that read: "Justice" and "Remember CHESTER," a reference to Chester Allan Poage, Page's 19-year-old victim. "We support the execution. Everybody's entitled to their own opinion," she said. "I wish those horrible things weren't done to that boy. I wish none of us were here."

Though the death penalty supporters were few, many of the people in vehicles driving by on the street in front of the prison yelled out in support of it. Among the statements: "fry the son of a bitch" and just "fry him." But a lot of other motorists honked their horns in support of the anti-death penalty protesters lining the street.

Rapid City Journal

Index of news reports on the execution of Elijah Page.

ALIVE e.V.Voices From Inside

Age: 23 (as per November 2005)
Nationality/Ethnicity: Caucasian
Looking for: just friends to correspond with

Hello there,

my name is Elijah Page. Everyone just calls me Eli. I am putting this ad out there in hopes that I can find someone to correspond with. Allow me to tell you a little about me.

I am 23 years old, I am 6’1” tall, I weigh 215 lbs. I have brown curly hair and blue eyes. I very much like tattoos and body piercings. I am also into all sorts of different stuff, and basically I am looking for someone that shares the same interests with me.

What I hope to find is a woman who is between 18 and 35 who just wants to talk and get to know one another. I am not looking for love...just for someone to write to. Being in prison there is not a lot of opportunity to meet people, and if you do meet someone, I think the best way to get to know someone is through letters. If I sound like someone who you would like to write and maybe get to know, well then I would love to get to know you. I hope that I will hear from you.

National Coalition to Abolish the Death Penalty

Elijah Page, SD July 9-13

The state of South Dakota is set to execute Elijah Page on July 9-13 for the March 2000 murder of Allan Poage in Spearfish, SD.

South Dakota should not execute Page for his role in this crime. Executing Page would violate the right to life as declared in the Universal Declaration of Human Rights and constitute the ultimate cruel, inhuman and degrading punishment. Furthermore, Page was 18 at the time of this crime. His mother allowed drug dealers to molest him in exchange for drugs and his stepfather once use him as a human shield in a drug-related shootout. His trial judge even stated, "Most parents treated their pets better than your parents treated you." Of his two codefendents, one received the death penalty and another received a life sentence.

Page has given up his appeals. This will be South Dakota's first execution in 60 years.

Please write to Gov. Mike Rounds on behalf of Elijah Page!

State v. Page, 709 N.W.2d 739 (S.D. 2006) (Direct Appeal)

Background: Defendant entered a guilty plea, in the Circuit Court, Fourth Judicial Circuit, Lawrence County, Warren G. Johnson, J., to first-degree felony murder, kidnapping, first-degree robbery, first-degree burglary, and grand theft, and after waiver of jury trial for sentencing phase, he was sentenced to death by lethal injection. Defendant appealed. The Supreme Court remanded for proportionality review, in light of the Circuit Court, Warren G. Johnson, J., having sentenced co-defendant to life imprisonment without possibility of parole. The Circuit Court, Warren G. Johnson, J., affirmed defendant's death sentence.

Holdings: The Supreme Court, Gilbertson, C.J., held that:
(1) defendant waived statutory right to seek disqualification of sentencing judge;
(2) recusal of sentencing judge was not required, though the judge had sentenced a co-defendant;
(3) statutory aggravating factor at sentencing, relating to the murder involving torture, depravity of mind, or aggravated battery to victim, was not unconstitutionally vague, as applied by trial court as sentencer;
(4) defendant's death sentence was not excessive or disproportionate to penalty imposed in similar cases;
(5) no statutory impediment prevents a defendant who pleads guilty to capital murder in South Dakota from exercising his constitutional right to a jury at the penalty phase; and
(6) defendant's death sentence was not grossly disproportionate punishment, though co-defendant received life sentence.

GILBERTSON, Chief Justice.
On March 12-13, 2000, Elijah Page (Page) along with two other individuals, kidnapped and murdered Chester Allan Poage (Poage) in Spearfish, South Dakota. Page eventually pleaded guilty to first degree murder, kidnapping, robbery in the first degree, burglary in the first degree, and grand theft. After Page waived his right to a jury trial, and sentencing by jury, a sentencing hearing was held before the circuit court. The circuit court sentenced Page to death by lethal injection on the murder charge. Page now appeals and raises several issues for our review. We affirm on all issues.

FACTS AND PROCEDURE

On March 12, 2000, Page met up with Briley Piper (Piper), Darrell Hoadley (Hoadley), and Poage at Poage's house to play video games. Poage's mother and sister, who also lived at the house, were on vacation in Florida at this time. Eventually, Piper, Page, and Hoadley convinced Poage to leave the house, and the four left in Poage's Chevrolet Blazer, traveling to the house where Piper, Page, and Hoadley had been staying.

Shortly after arriving at their destination, Page exposed a .22 caliber pistol, ordered Poage to the floor, and told the victim, “We are jacking you of all your stuff.” FN1 Once Poage was on the floor, Piper knocked him unconscious by kicking him in the head. While Poage was unconscious, he was tied up with a cord and sat upright in a chair. When the victim regained consciousness, he started to cry and pleaded with the group to let him go. In response, the group forced Poage to drink a concoction of crushed pills, beer, and hydrochloric acid. Page asked Poage for the personal identification number for his ATM card at this time, and the victim complied. Page and Piper then openly discussed their plan to kill Poage, including slitting his throat, but decided against this particular plan because it would get too much blood in the house. This discussion concerning the “best” way to kill Poage was carried on directly in front of the victim.FN2

FN1. Page had stolen the antique .22 caliber pistol from Poage's mother's closet.

FN2. Testimony as to the origin of the plot to kill Poage varied. It is unclear whether all three of the assailants planned on stealing items in the house so they could buy drugs, or whether Piper pulled Page outside to inform him he was going to steal stereo equipment from Poage's vehicle. It is also unclear whether they initially planned to kill Poage, or just beat him. However, it is clear that the initial discussions as to killing Poage were limited to Piper and Page, and only after it was decided to kill him was Hoadley informed of the plan.

After forcing Poage into his own vehicle, the group drove approximately seven miles to a remote, wooded area in the Black Hills known as Higgins Gulch. Once at Higgins Gulch, Poage was forced out of the vehicle into a foot of snow. Page and Piper stripped Poage naked except for his undershirt, shoes, and socks. The temperature that night was only about twenty-five degrees Fahrenheit. Piper, Page, and Hoadley then took Poage's wallet.

Next, the men forced Poage to walk downhill toward a small creek. On the way to the creek, the three ordered Poage to lie down in the deep snow. At that point, Piper, Page, and Hoadley kicked snow all over the victim's exposed body. When Poage attempted to escape to save his life, Page ran him down, recaptured him, and pushed him into the icy creek. The group then began beating Poage, with Page repeatedly kicking the victim in the head. Poage cried out in pain throughout the beating, but his screams only caused more kicks. Page later admitted to kicking Poage in the head so often with his boots that it “made his own foot sore.”

Sometime after beating Poage in the river, the group decided it was time to finally kill the victim. Page was the first to stab Poage. As he lay in the freezing water, Page took Poage's head in his arms. When Poage asked him, “What are you doing?” Page responded, “Just sit there.” Page then plunged his knife all the way into the victim's neck. Piper proceeded to stab Poage in the head. During this time, Piper laughed and made jokes about the pain Poage was experiencing, to which Page “chuckled.”

Bleeding badly from his wounds, Poage asked the three to be allowed back into his vehicle to warm himself. Testimony indicated that Poage said he preferred to bleed to death in the warmth rather than in the cold. Piper told Poage he could warm up in the vehicle if he first washed the blood off himself. Poage proceeded to rinse himself off in the icy water, but as he crawled uphill toward the vehicle, Page told him they were lying and he would not be allowed into the vehicle. Page kicked the victim in the face once again. Poage was then dragged back into the creek. Approximately four hours after the ordeal began, and about three hours after the beatings started in the gulch, Page stated Hoadley and he finally ended Poage's life by dropping several heavy rocks on his head.

Piper, Page, and Hoadley drove away from the secluded area in Poage's vehicle. The group returned to the victim's house and stole several items. For his share of the victim's property, Page claimed a stereo system, clothes, and Poage's vehicle. The group then traveled to Hannibal, Missouri, to visit Piper's sister. Piper's sister refused to let them stay, however, so the three headed back to South Dakota, pawning Poage's property along the way. FN3 Upon returning to South Dakota, Piper, Page, and Hoadley each went his own way.

FN3. Some of Poage's property was later found at pawnshops in Wyoming and Missouri. In addition, records from Poage's bank showed that his stolen ATM card was used six times in various locations in South Dakota and Nebraska.

On April 22, 2000, almost a month later, a woman discovered a partially submerged body in Higgins Gulch. A forensic pathologist later identified the remains as Poage. Showing signs of head injuries and stab wounds, the mostly naked body was clad only in an undershirt, shoes, and socks. Following an autopsy, the forensic pathologist ultimately determined Poage had died from “stab wounds and the blunt force injury to the head.”

On April 25, 2000, law enforcement authorities conducted an interview with Hoadley wherein he gave a statement detailing his involvement in the murder of Poage. Based on this interview, warrants were issued for both Piper and Page. Three days later, authorities located and arrested Page in Texas. The next day, Page voluntarily described to law enforcement the details surrounding Poage's murder. Page was then extradited from Texas and jailed in Lawrence County, South Dakota. Page later pleaded guilty to and was convicted of first degree felony murder, kidnapping, first degree robbery, first degree burglary, and grand theft. The State did not offer a plea agreement to Page. Page waived his rights to both a jury trial and sentencing by jury and instead requested sentencing by the circuit court. At the conclusion of a five-day sentencing hearing, the circuit court sentenced Page to death by lethal injection, finding that the State proved beyond a reasonable doubt the following aggravating factors: (1) the defendant committed the offense for the benefit of the defendant or another for the purpose of receiving money or any other item of monetary value; (2) the offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, and an aggravated battery to the victim; (3) the offense was committed for the purpose of avoiding, interfering with, or preventing lawful arrest, or custody in a place of lawful confinement, of the defendant or another.FN4

FN4. The same circuit judge presided over the Hoadley trial. Well experienced in capital cases, the circuit judge previously sat with this Court by designation in State v. Moeller, 1996 SD 60, 548 N.W.2d 465 ( Moeller I ); State v. Moeller, 2000 SD 122, 616 N.W.2d 424 ( Moeller II ); and State v. Rhines, 1996 SD 55, 548 N.W.2d 415 ( Rhines I ).

On March 14, 2001, Page appealed his sentence to this Court. In light of a jury's subsequent imposition of life without the possibility of parole on co-defendant Hoadley, we remanded the case to the circuit court for a proportionality review. After conducting an intra-case proportionality review, the circuit court entered findings of fact and conclusions of law affirming Page's death sentence. Page now appeals and raises the following issues for our review:

1. Whether the circuit judge should have recused himself from sentencing Page after it imposed the death penalty on co-defendant Piper.

2. Whether SDCL 23A-27A-1 fails to sufficiently limit the class of persons who may be deemed eligible for the death penalty.

3. Whether the circuit court utilized a vague and overbroad aggravating factor when it determined that Page was eligible for the death penalty.

4. Whether there was insufficient evidence in the record from which the circuit court could have reasonably determined that the State met its burden of proving the aggravating factors defined in SDCL 23A-27A-1(3), (6), and (9).

5. Whether the circuit court deprived Page of an individualized sentencing hearing in violation of the Eighth and Fourteenth Amendments.

6. Whether the selective application of South Dakota's mandatory capital sentencing procedures is unconstitutional.

7. Whether Page's death sentence was grossly disproportionate to the penalty imposed in similar cases considering both the crime and the defendant.

8. Whether Page's death sentence was unconstitutionally imposed when the indictment failed to allege any aggravating circumstances.

9. Whether Page's death sentence was unconstitutionally imposed when SDCL 23A-27A-6 failed to allow a jury determination of the appropriate penalty upon a plea of guilty to the circuit court.

10. Whether Page's death sentence was grossly disproportionate to co-defendant Hoadley's life sentence.

ANALYSIS AND DECISION

1. Whether the circuit judge should have recused himself from sentencing Page after it imposed the death penalty on co-defendant Piper.

For his first point of error, Page argues that the circuit judge should have recused himself from sentencing him after imposing the death penalty on his co-defendant Piper. Page believes the circuit judge developed empathy and/or sympathy for the victim through sentencing Piper, and he asserts that these feelings compromised the judge's ability to sentence him in an objective and neutral manner. The State argues Page waived his right to disqualify the circuit judge, or in the alternative that it was not error for the circuit judge to sentence Page after sentencing Piper, given the amount of discretion normally afforded a judge's decision to preside over a case.

We have consistently recognized that a defendant's “opportunity to disqualify a judge is statutory, ... and not a constitutional right, except as it may be implicit in a right to a fair trial.” State v. Hoadley, 2002 SD 109, ¶ 32, 651 N.W.2d 249, 257 (quoting State v. Goodroad, 1997 SD 46, ¶ 25, 563 N.W.2d 126, 132 (citation omitted)). Pursuant to SDCL 15-12-21, a defendant has the right to file an affidavit seeking a change of judge. FN5 SDCL 15-12-24, however, provides:

FN5. SDCL 15-12-21 provides: Except where the right is waived or is denied by this chapter, an affidavit for change of a judge or magistrate may be filed in any action pending in the court whether originating therein or pending upon appeal from an inferior court or tribunal to the circuit court. No affidavit for such change may be filed in a criminal action prior to the completion of the preliminary hearing or waiver thereof, in any proceeding for contempt committed in the presence of the court, or habeas corpus. See SDCL 15-12-21.1 (requiring a party to informally request a judge to disqualify himself before filing an affidavit for change of judge).

The submission to a judge or magistrate of argument or proof in support of a motion or application, or upon trial, is a waiver of the right thereafter to file an affidavit for change of such judge or magistrate by any party or his counsel who submitted the same or who after notice that such matter was to be presented, failed to appear at the hearing or trial. Such waiver shall continue until the final determination of the action and includes all subsequent motions, hearings, proceedings, trials, new trials, and all proceedings to enforce, amend or vacate any order or judgment.

In this case, Page submitted a plea of guilty and presented mitigation evidence at the sentencing hearing before the circuit judge. He neither informally requested the circuit judge to disqualify himself from the sentencing proceedings nor submitted an affidavit seeking a change of judge. When this Court specifically remanded Page's appeal to the circuit court for a proportionality review in light of co-defendant Hoadley's sentence, Page did not seek to challenge the circuit judge's impartiality. In fact, this appeal marks Page's first attempt to seek recusal of the circuit judge. Thus, the time for statutorily seeking sentencing before a different judge has long since passed and is deemed waived on appeal. State v. Burgers, 1999 SD 140, ¶¶ 11-13, 602 N.W.2d 277, 279-80 (holding submission of a guilty plea waived the statutory right to seek recusal); see State v. Chamley, 1997 SD 107, ¶ 42, 568 N.W.2d 607, 619 (holding a defendant's argument and submission of motions before a judge functioned as a waiver of his right to seek recusal); see also SDCL 15-12-27 (setting out the time for seeking removal of a judge presiding in ordinary course).

Having determined that Page's statutory right to disqualify the circuit judge was waived, we must now address Page's contention that it was plain error for the circuit judge to sentence him after sentencing co-defendant Piper to death. Our plain error analysis under SDCL 23A-44-15 requires (1) error; (2) that is plain; (3) that affects substantial rights; and (4) that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43 (quoting State v. Robinson, 1999 SD 141, ¶ 17, 602 N.W.2d 730, 735). Generally, “[w]e invoke our discretion under the plain error rule cautiously and only in ‘exceptional circumstances.’ ” Robinson, 1999 SD 141, ¶ 17, 602 N.W.2d at 735 (quoting State v. Nelson, 1998 SD 124, ¶ 8, 587 N.W.2d 439, 443). Such exceptional circumstances may exist where error would “seriously affect the fairness, integrity or public reputation of judicial proceedings.” Id. (quoting Nelson, 1998 SD 124, ¶ 8, 587 N.W.2d at 443). Given the level of deference ordinarily afforded a circuit judge's decision to sit on a case, it would be rare for this Court to review such a decision under the rubric of plain error.

Even utilizing the plain error doctrine in this case, Page's argument fails because we do not believe he has shown it was error for the circuit judge to sentence him. “The decision to preside over a case lies within the sound discretion of the trial judge.” Hoadley, 2002 SD 109, ¶ 32, 651 N.W.2d at 257 (quoting Goodroad, 1997 SD 46, ¶ 25, 563 N.W.2d at 132). As we have consistently stated, this Court presumes a judge was impartial absent a specific and substantial showing to the contrary. Id. ¶ 32 (citing United States v. Walker, 920 F.2d 513, 517 (8thCir.1990) (citation omitted)). The Code of Judicial Conduct directs a judge to disqualify himself or herself where “the judge's impartiality might reasonably be questioned” due to his or her “personal bias or prejudice concerning a party....” SDCL chapter 16-2 app., Code of Jud. Conduct, Canon 3E(1)(a). In regard to judicial bias, we have recognized that:

[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Hoadley, 2002 SD 109, ¶ 32, 651 N.W.2d at 257 (quoting Von Kahl v. United States, 242 F.3d 783, 793 (8th Cir.2001) (quoting Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994))). Similarly, this Court defined prejudice in Hoadley as:

The attitude of personal enmity towards the party or in favor of the adverse party to the other party's detriment. It is not the mere possession of views regarding the law or the conduct of a party. Prejudice is in the personal sense rather than in the judicial sense and refers to a mental attitude or a disposition of the judge towards a party. In order for the alleged bias and prejudice to be disqualifying, it must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from participation in the case. Id. ¶ 33, 651 N.W.2d at 258 (citing In re C.N.H., 998 S.W.2d 553, 560 (Mo.Ct.App.1999)). Based upon these definitions, we rejected co-defendant Hoadley's argument that the circuit judge was unable to be fair and impartial during his trial because the judge had previously sentenced Piper and Page. Id. ¶¶ 31-34.

Similarly, we do not believe Page has presented any evidence to constitute a legitimate basis on which to call into question the circuit judge's impartiality. As grounds for disqualification, Page contends the circuit judge exhibited empathy and/or sympathy for the victim and did not sufficiently consider mitigation evidence.FN6 These arguments, however, do not establish a deep-seated antagonism against Page by the circuit judge or suggest Page was prejudiced from an extrajudicial source. Absent such a showing that a fair judgment was impossible, it was not error for the circuit judge to sentence Page after sentencing his co-defendant Piper, and, therefore, Page has failed to show plain error. FN6. We directly address Page's argument concerning mitigation evidence in our discussion of Issue 5.

Finally, Page argues that the circuit judge's sentencing decision should be overturned under the statutorily mandated review of SDCL 23A-27A-12, which requires this Court to determine “[w]hether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor[.]” Page reasserts his arguments that the circuit judge should have recused himself from sentencing and further points out that a juror could not have served on all three co-defendants' cases. We have already established the circuit judge's decision to sentence Page did not constitute error resulting from undue prejudice or personal bias. While it is true that a juror would have been precluded from serving in all three co-defendants' cases under SDCL 23A-20-13.1(17), no such rule for disqualifying judges exists under South Dakota law or opinions of the United States Supreme Court. Page has failed to show the circuit judge's decision to sentence him was the result of passion, prejudice, or any other arbitrary factor.

2. Whether SDCL 23A-27A-1 fails to sufficiently limit the class of persons who may be deemed eligible for the death penalty.

Page next asserts SDCL 23A-27A-1 fails to sufficiently limit the class of defendants eligible for the death penalty under South Dakota's statutory scheme in violation of the Eighth and Fourteenth Amendments. Page believes that rather than limiting the class, SDCL 23A-27A-1 functions to “place all first-degree murder defendants in peril of the death sentence.” As this claim is based upon a challenge to the constitutionality of a statute, our review is de novo. State v. Asmussen, 2003 SD 102, ¶ 2, 668 N.W.2d 725, 728.

To pass constitutional muster, a state's death penalty statutory scheme “must channel the sentencer's discretion by clear and objective standards[.]” Rhines, 1996 SD 55, ¶ 138, 548 N.W.2d at 447 (quoting Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980) (Stewart, J., plurality)). This is accomplished when the statutory scheme “genuinely narrow[s] the class of persons eligible for the death penalty” and is not based upon unconstitutionally vague factors. Id. ¶ 139 (citing Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983); and Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 2635, 129 L.Ed.2d 750 (1994)).

In order for a sentencer to consider imposing the death penalty in South Dakota, one of the following aggravating circumstances listed in SDCL 23A-27A-1 must be found beyond a reasonable doubt:

(1) The offense was committed by a person with a prior record of conviction for a Class A or Class B felony, or the offense of murder was committed by a person who has a felony conviction for a crime of violence as defined in subdivision 22-1-2(9);

(2) The defendant by the defendant's act knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;

(3) The defendant committed the offense for the benefit of the defendant or another, for the purpose of receiving money or any other thing of monetary value;

(4) The defendant committed the offense on a judicial officer, former judicial officer, prosecutor, or former prosecutor while such prosecutor, former prosecutor, judicial officer, or former judicial officer was engaged in the performance of such person's official duties or where a major part of the motivation for the offense came from the official actions of such judicial officer, former judicial officer, prosecutor, or former prosecutor;

(5) The defendant caused or directed another to commit murder or committed murder as an agent or employee of another person;

(6) The offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. Any murder is wantonly vile, horrible, and inhuman if the victim is less than thirteen years of age;

(7) The offense was committed against a law enforcement officer, employee of a corrections institution, or firefighter while engaged in the performance of such person's official duties;

(8) The offense was committed by a person in, or who has escaped from, the lawful custody of a law enforcement officer or place of lawful confinement;

(9) The offense was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of the defendant or another; or

(10) The offense was committed in the course of manufacturing, distributing, or dispensing substances listed in Schedules I and II in violation of § 22-42-2. (emphasis added). We have previously held that the aggravating factors under SDCL 23A-27A-1 are constitutional. Rhines I, 1996 SD 55, ¶¶ 74-76, 548 N.W.2d at 437 (noting that the Supreme Court upheld a virtually identical statutory scheme in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). In Moeller II, 2000 SD 122, ¶ 176 n. 18, 616 N.W.2d at 465 n. 18, we held this issue to be sufficiently resolved by our previous opinions and declined to address the issue. In this case, the circuit court found that the aggravating factors listed in SDCL 23A-27A-1(3), (6), and (9) applied to Page's convictions. We have previously upheld impositions of the death penalty based upon these specific aggravating factors in Rhines I, 1996 SD 55, ¶ 181, 548 N.W.2d at 455 (affirming sentence of death where SDCL 23A-27A-1(3) and (9) were found beyond a reasonable doubt), and Moeller II, 2000 SD 122, ¶¶ 98-120, 616 N.W.2d at 450-55 (upholding imposition of the death penalty where SDCL 23A-27A-1(6) was proved beyond a reasonable doubt). Today, we once again uphold the constitutionality of SDCL 23A-27A-1.

3. Whether the circuit court utilized a vague and overbroad aggravating factor when it determined that Page was eligible for the death penalty.

The circuit court determined that the aggravating circumstances listed in SDCL 23A-27A-1(3), (6), and (9) were present beyond a reasonable doubt in Page's case. Page contends SDCL 23A-27A-1(6) is unconstitutionally vague, and therefore the circuit court committed reversible error in finding the three aggravating factors set out in the statute. SDCL 23A-27A-1(6) provides: The offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. (emphasis added). Page points to our decision in Rhines I, 1996 SD 55, 548 N.W.2d 415, and Moeller I, 1996 SD 60, 548 N.W.2d 465, as evidence that this statute is unconstitutionally vague. We employ the de novo standard of review to this claim. Asmussen, 2003 SD 102, ¶ 2, 668 N.W.2d at 728.

Under the Eighth and Fourteenth Amendments, state statutory schemes must not “cause the death penalty to be wantonly and freakishly imposed,” and must be applied “in a manner that avoids the arbitrary and capricious infliction of the death penalty.” Rhines I, 1996 SD 55, ¶ 138, 548 N.W.2d at 447 (citing Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3099, 111 L.Ed.2d 606 (1990) and quoting Godfrey, 446 U.S. at 428, 100 S.Ct. at 1764-65, 64 L.Ed.2d 398). In order to accomplish these constitutional mandates, state death penalty statutes must “genuinely narrow the class” of defendants and the “aggravating circumstance[s] may not be unconstitutionally vague.” Id. ¶ 139 (citing Zant, 462 U.S. at 877, 103 S.Ct. at 2742, 77 L.Ed.2d 235 and Tuilaepa, 512 U.S. at 972, 114 S.Ct. at 2635, 129 L.Ed.2d 750). A statute is unconstitutionally vague if it leaves juries and reviewing courts with “open-ended discretion” in “what they must find to impose the death penalty.” Id. (citing Maynard v. Cartwright, 486 U.S. 356, 361-62, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988)).

In Rhines I and Moeller I, we held “[t]here is little doubt that the language of SDCL 23A-27A-1(6), by itself, is vague and overbroad.” 1996 SD 55, ¶ 144, 548 N.W.2d at 448; 1996 SD 60, ¶ 114, 548 N.W.2d at 491. We recognized, however, that if a trial court “further defines and limits those otherwise vague and overbroad terms so as to provide adequate guidance to the sentencer, then constitutional requirements are satisfied.” Id. (quoting Rhines I, 1996 SD 55, ¶ 145, 548 N.W.2d at 449). Accordingly, our opinion in Moeller I upheld imposition of the death penalty based in part on SDCL 23A-27A-1(6) because the trial court provided adequate guidance to the jury in the form of limiting instructions. Id. ¶ 117, 548 N.W.2d at 492.

In this case, Page accurately points out that the circuit court did not specifically articulate any jury instructions or limiting definitions in its application of SDCL 23A-27A-1(6), but this fact alone does not entitle Page to relief based on a claim of vagueness. As the Supreme Court pronounced in Walton v. Arizona:

When a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process. It is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face. That is the import of our holdings in Maynard and Godfrey. But the logic of those cases has no place in the context of sentencing by a trial judge. Trial judges are presumed to know the law and to apply it in making their decisions. If the Arizona Supreme Court has narrowed the definition of the “especially heinous, cruel or depraved” aggravating circumstance, we presume that Arizona trial judges are applying the narrower definition. It is irrelevant that the statute itself may not narrow the construction of the factor. 497 U.S. 639, 653, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990) (emphasis added), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Here, as in Walton, a circuit court, not a jury, imposed the death penalty upon Page. Thus, our operative inquiry is whether this Court has sufficiently provided narrowing interpretations of the aggravating factors found in SDCL 23A-27A-19(6).

We conclude that this Court has provided adequate guidance to South Dakota circuit courts through our narrowing interpretations of SDCL 23A-27A-1(6). In Rhines I, 1996 SD 55, ¶¶ 161-64, 548 N.W.2d at 452, and again in Moeller II, 2000 SD 122, ¶¶ 112-16, 616 N.W.2d at 453-54, we discussed and approved narrowing instructions in regard to the aggravating factor of “torture.” We further approved the trial court's limiting instructions concerning “depravity of mind” in Moeller I, 1996 SD 60, ¶ 118, 548 N.W.2d at 492-93, after noting the Supreme Court had previously validated a similar instruction in Walton, 497 U.S. at 655, 110 S.Ct. at 3058, 111 L.Ed.2d 511 (citation omitted). Limiting instructions for “aggravated battery” were similarly upheld in Moeller I, 1996 SD 60, ¶¶ 115, 118-20, 548 N.W.2d at 492-93, and affirmed by our opinion in Moeller II, 2000 SD 122, ¶¶ 117-20, 616 N.W.2d at 454-55. As we presume the circuit court was familiar with these decisions, ( supra note 4), it was not error for it to apply the aggravating factors found in SDCL 23A-27A-1(6) without specifically announcing which narrowing instructions it applied.FN7 See Sochor v. Florida, 504 U.S. 527, 536-37, 112 S.Ct. 2114, 2121-22, 119 L.Ed.2d 326 (1992) (presuming a trial judge was familiar with the state supreme court's authoritative construction of a vague aggravating factor); Walton, 497 U.S. at 653, 110 S.Ct. at 3057, 111 L.Ed.2d 511 (presuming trial judges are applying a narrower definition as articulated by the state supreme court). Page's claim for relief based upon a vagueness challenge to SDCL 23A-27A-1(6) fails.

FN7. This presumption is particularly strong here, given the fact that the circuit judge participated as a member of this Court during its formulation and issuance of the Rhines I, 1996 SD 55, 548 N.W.2d 415; Moeller I, 1996 SD 60, 548 N.W.2d 465; and Moeller II, 2000 SD 122, 616 N.W.2d 424, decisions.

4. Whether there was insufficient evidence in the record from which the circuit court could have reasonably determined that the State met its burden of proving the aggravating factors defined in SDCL 23A-27A-1(3), (6), and (9).

We now turn to Page's contention that there was insufficient evidence in the record for the circuit court to find beyond a reasonable doubt that five aggravating factors listed in subsections (3), (6) and (9) of the statute existed. Under the South Dakota capital punishment scheme, in cases where a defendant requests sentencing by the court, the circuit judge must determine that at least one aggravating factor exists beyond a reasonable doubt in order to impose the death penalty. SDCL 23A-27A-6. Pursuant to SDCL 23A-27A-12(2), this Court is required to determine whether the circuit court's finding of aggravating circumstances was supported by the evidence.

a. SDCL 23A-27A-1(3)

SDCL 23A-27A-1(3) defines one aggravating circumstance as follows: “The defendant committed the offense for the benefit of the defendant or another, for the purpose of receiving money or any other thing of monetary value.” Page argues the circuit court's finding of this aggravating factor was not supported by the evidence because he did not have the specific intent to kill Poage for his property, and because he thought the group would leave the victim alive at Higgins Gulch.

Page's argument is without merit. The record clearly supports the circuit court's determination that Page knew Poage was to be killed after the group went to Higgins Gulch. Page engaged in a conversation with Piper concerning the “best” way to kill Poage while the group was still at the house in town. When a suggestion was raised to slit Poage's throat, Page objected solely because he did not want to get blood in the house. In fact, Page, Piper, and Hoadley specifically took the victim to Higgins Gulch because they knew it was a remote area where few people went.

[¶ 34.] Additionally, Page participated in taking Poage's property both during the ordeal and after killing the victim. Page began the attack on Poage by pointing a pistol at him and announcing that the group was “jacking” him of his possessions. For his participation in the murder, Page received Poage's stereo, clothes, and vehicle, the most valuable piece of property taken by the group. As the Arizona Supreme Court recently observed:

Where as here, the killing and robbery take place almost simultaneously, we will not attempt to divine the evolution of the defendant's motive in order to discern when, or if, his reason for harming the victim shifted from pecuniary gain to personal “amusement” or some other speculative non-pecuniary drive. State v. Canez, 202 Ariz. 133, 42 P.3d 564, 594 (2002) (upholding a trial court's finding of a statutory aggravating circumstance that “the defendant committed the offense ... in expectation of the receipt of anything of pecuniary value”) (citing State v. Medina, 193 Ariz. 504, 975 P.2d 94, 103 (1999) (quoting State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454, 466 (1997))). The record contains ample evidence to support the circuit court's finding of the aggravating circumstance in SDCL 23A-27A-1(3).

b. SDCL 23A-27A-1(6)

The circuit court further found that the aggravating circumstances set out in SDCL 23A-27A-1(6) were present beyond a reasonable doubt. The relevant portion of SDCL 23A-27A-1(6) provides: “The offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Page argues that insufficient evidence existed for a finding of the aggravating circumstances under this statute because he “did not plan for Poage to die” and because he “displayed concern for the victim” at various times. As explained in our analysis of Issue 3, SDCL 23A-27A-1 is, by itself, vague. Our previous decisions, however, have provided guidance concerning acceptable interpretations of the aggravating factors contained in the statute.

i. “Torture” definition

Our opinion in Rhines I observed that an acceptable interpretation of “torture” as used in SDCL 23A-27A-1(6) included two elements: “(1) the unnecessary and wanton infliction of severe pain, agony, or anguish; and (2) the intent to inflict such pain, agony, or anguish.” 1996 SD 55, ¶ 161, 548 N.W.2d at 452. See also Moeller II, 2000 SD 122, ¶ 115, 616 N.W.2d at 454 (reaffirming this definition of “torture”). The purpose of this interpretation is to “eliminat[e] from the pool of death-eligible murderers those who intended to kill their victims painlessly or instantly or who only intended to cause pain that was incidental to death.” Moeller II, 2000 SD 122, ¶ 115, 616 N.W.2d at 454 (citing Rhines I, 1996 SD 55, ¶ 161, 548 N.W.2d at 452). As noted above, we presume the circuit court was familiar with this interpretation. See Sochor, 504 U.S. at 536-37, 112 S.Ct. at 2121-22, 119 L.Ed.2d 326.

Under this interpretation of “torture,” Page's challenge to the sufficiency of the evidence must fail. Page debated the relative methods of killing Poage in front of the conscious victim, including slitting his throat. Page forced Poage to lie in the snow and then kicked more snow on top of his naked body. When Poage attempted to escape to save his life, Page ran him down and forced him into the icy creek. By his own admission, Page kicked the victim in the head so many times and with such force that it made his own foot sore. Taking Poage's head in his arms, Page was the first to stab the victim. When Poage asked him “What are you doing?” Page told him to “just sit there” and then plunged his knife all the way into Poage's neck. Page chuckled when Piper made jokes about the amount of pain the victim was enduring. Finally, Page dropped several heavy rocks on Poage's skull before the victim finally expired in the icy creek. These events clearly support the circuit court's determination that Page inflicted severe pain, agony, and anguish upon Poage before murdering him.

ii. “Depravity of mind” and “aggravated battery” definitions

In Moeller II, we upheld a trial court's narrowing instruction of “depravity of mind” requiring a finding that the defendant acted with “indifference to the life or suffering of the victim ... [with] a corrupt, perverted or immoral state of mind on the part of the [d]efendant in excess of what was required to accomplish the murder.” 2000 SD 122, ¶¶ 103-11, 616 N.W.2d at 452-53. See Moeller I, 1996 SD 60, ¶ 118, 548 N.W.2d at 492-93. Similarly, we approved an instruction of “aggravated battery” that required findings of:

(1) the infliction of serious physical abuse upon the victim, by depriving her of a member of her body, by rendering a member of her body useless, or by seriously disfiguring her body or a part of her body; and

(2) the defendant ... had the specific intention, design, or purpose of maliciously inflicting unnecessary pain to the victim ... [which] implies suffering in excess of what was required to accomplish the murder. Moeller II, 2000 SD 122, ¶¶ 117-20, 616 N.W.2d at 454-55. See Moeller I, 1996 SD 60, ¶ 115, 548 N.W.2d at 492. We assume the circuit court was aware of and followed these narrowing interpretations. See Sochor, 504 U.S. at 536-37, 112 S.Ct. at 2121-22, 119 L.Ed.2d 326.

In light of these limiting interpretations, we reject Page's sufficiency of the evidence arguments. Page made Poage drink a mixture of pills, beer, and hydrochloric acid. Page kicked Poage in the head numerous times with great force at the gulch. On a late winter's night, Page forced the victim to lie naked in the snow and in an ice-cold creek for an extended period of time. Page talked to the victim as he stabbed him in the throat. Finally, Page dropped numerous heavy stones on Poage's head before the victim died. Page did all of these things over the span of a few hours, despite Poage's cries of pain and pleas for mercy. Viewing this evidence in the light most favorable to Page's sentence, we believe there was ample support for the circuit court's determination that Page acted with a depraved mind while committing an aggravated battery upon Poage.

c. SDCL 23A-27A-1(9)

The circuit court also determined that an aggravating circumstance existed as defined in SDCL 23A-27A-1(9): “The offense was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of the defendant or another [.]” Page argues that the evidence is insufficient to establish that he participating in murdering Poage in order to eliminate him as a witness. Rather, he contends he only participated in killing Poage at the direction of co-defendant Piper.

Page's assertion is without merit. By Page's own admission, the group took Poage to Higgins Gulch specifically because it was a secluded area where few people ever went. The group killed Poage in the gulch and then left his body in the remote area. Poage knew Page and would have been able to easily identify Page as one of his attackers, but his murder left no witness to the crime. The transporting of a robbery victim to a remote area in order to accomplish his murder can hardly be understood as anything other than a means of destroying or hiding evidence of a crime. The record contains more than sufficient evidence to support the circuit court's finding beyond a reasonable doubt that Page's conduct was an aggravating circumstance as defined by SDCL 23A-27A-1(9).

5. Whether the circuit court deprived Page of an individualized sentencing hearing in violation of the Eighth and Fourteenth Amendments.

Page next asserts that the circuit court unconstitutionally deprived him of an individualized sentencing hearing because it failed to adequately take into account the mitigation evidence he presented. Page also alleges the circuit court failed to correctly evaluate the mitigation evidence. Essentially, Page believes that the evidence in mitigation he presented was so compelling that no judge could have rationally imposed the death penalty in his case.

In order for a defendant to become eligible for capital punishment in South Dakota, one of the ten aggravating circumstances provided in SDCL 23A-27A-1 must be proved beyond a reasonable doubt. Pursuant to SDCL 23A-27A-2, “[i]n all cases in which the death penalty may be imposed,” a presentence hearing is required at which “ all relevant evidence, including ... any mitigating circumstances” must be heard. (emphasis added). “The law permits the jury to consider any mitigating circumstances, but does not impose any standard of proof regarding mitigation.” Rhines I, 1996 SD 55, ¶ 78, 548 N.W.2d at 437 (citing SDCL 23A-27A-1 and 2).

The Supreme Court has issued several opinions stressing the necessity of individualized sentencing in capital cases. In Lockett v. Ohio, the Supreme Court held that individualized sentencing in death penalty cases is constitutionally required under the Eighth and Fourteenth Amendments. 438 U.S. 586, 606, 98 S.Ct. 2954, 2966, 57 L.Ed.2d 973 (1978). Based upon this constitutional mandate, the Lockett Court held that juries in capital cases must “not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d 973. In Eddings v. Oklahoma, the Court went on to state that it would be an error of law for a sentencer to refuse to consider any relevant mitigating evidence proffered by a capital defendant. 455 U.S. 104, 113-14, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982) “(holding that a sentencer's refusal to take into account a sixteen year old capital defendant's difficult family history” and “severe emotional disturbance” violated its decision in Lockett ). Additionally, in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), the Supreme Court struck down those death penalty schemes that required juries to consider only those mitigating factors found unanimously. See Beard v. Banks, 542 U.S. 406, 410, 124 S.Ct. 2504, 2509-10, 159 L.Ed.2d 494 (2004) (holding that Mills announced a new rule of constitutional law that nevertheless may not be applied retroactively).

We have recognized and applied the rationale of Lockett and its progeny saying “[i]t is imperative that the jury be permitted to weigh all relevant mitigating evidence, and any attempt to limit consideration of such evidence is rejected by this Court.” Moeller I, 1996 SD 60, ¶ 130, 548 N.W.2d at 494 (emphasis added). See Rhines I, 1996 SD 55, ¶¶ 80-82, 548 N.W.2d at 437-38. We have recognized, however, that South Dakota law imposes no specific standard of proof in regard to mitigation. Rhines v. Weber, 2000 SD 19, ¶ 39 n. 9, 608 N.W.2d 303, 312 n. 9 ( Rhines II ) (citing SDCL 23A-27A-1 and 2). In Rhines I, we acknowledged:

We have rejected the notion that “a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.” Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 2330, 101 L.Ed.2d 155, 169 (1988). Equally settled is the corollary that the Constitution does not require a State to ascribe any specific weight to particular factors, either in aggravation or mitigation, to be considered by the sentencer. 1996 SD 55, ¶ 82, 548 N.W.2d at 438 (quoting Harris v. Alabama, 513 U.S. 504, 512, 115 S.Ct. 1031, 1035, 130 L.Ed.2d 1004 (1995)). In addition, we have also held that “South Dakota law does not require the weighing of aggravating circumstances against mitigating factors. Although the jury is free to consider all mitigating circumstances, they need only find one statutory aggravating factor beyond a reasonable doubt to impose the death penalty.” Rhines II, 2000 SD 19, ¶ 53, 608 N.W.2d at 314 (citing Rhines I, 1996 SD 55, ¶¶ 78-82, 169, 548 N.W.2d at 437-38, 453).

As required by the Federal Constitution and South Dakota law, the circuit court allowed Page to offer an extensive amount of evidence in mitigation. In its findings of fact and conclusions of law, the circuit court wrote that it “[gave] due consideration to the mitigating circumstances” presented by Page. The court noted that Page had called nineteen witnesses on his behalf at the sentencing hearing, each of which the circuit judge named from the bench. At the sentencing hearing, the circuit court acknowledged the mitigating circumstances in Page's case, saying:

I've considered the evidence in mitigation. I've considered your young age and your background. Your early years must have been a living hell. Most people treat their pets better than your parents treated their kids.

It's also apparent from your background that there was a point in time when people and professional people offered help in the form of foster care, group care, psychological treatment, psychiatric counseling. Some of these people have testified on your behalf.

Despite this mitigating evidence, however, the circuit court believed the specific circumstances of Page's case justified the imposition of the death penalty. As detailed under our analysis in Issue 4, the circuit court determined that several aggravating factors were present in Page's case. The circuit court was not required to utilize any specific formula to weigh Page's mitigating evidence against the particularly heinous aggravating circumstances it found in this case. See Rhines II, 2000 SD 19, ¶ 53, 608 N.W.2d at 314. The fact that the court imposed the death penalty does not mean that it ignored Page's evidence in mitigation-“[t]he law permits mercy but does not require it.” Rhines I, 1996 SD 55, ¶ 182, 548 N.W.2d at 455. The record does not support Page's argument that he was deprived of individualized sentencing.

6. Whether the selective application of South Dakota's mandatory capital sentencing procedures is unconstitutional.

Although Page argued this issue before our ruling in Moeller v. Weber, 2004 SD 110, 689 N.W.2d 1 ( Moeller III ), our decision in that case fully resolved the identical question. Moeller III, 2004 SD 110, ¶¶ 42-51, 689 N.W.2d at 14-18. Thus, we need not reexamine it here. In accord with our holding in Moeller III, Page did not suffer an unconstitutional application of South Dakota's capital sentencing procedures.

7. Whether Page's death sentence was grossly disproportionate to the penalty imposed in similar cases considering both the crime and the defendant.

In every case where the death penalty is imposed, this Court is required to conduct an independent review of the sentence. SDCL 23A-27A-9. We must determine: (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in § 23A-27A-1; and (3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. SDCL 23A-27A-12; Moeller II, 2000 SD 122, ¶ 163, 616 N.W.2d at 462-63; Rhines I, 1996 SD 55, ¶ 180, 548 N.W.2d at 454-55.

First, we must determine whether Page's sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. We have already rejected Page's claim that it was error for the circuit court to sentence him after it sentenced co-defendant Piper to death. We have also determined that the circuit court adequately considered the evidence in mitigation presented by Page at the sentencing hearing. We conclude no extenuating circumstance influenced Page's sentence and decline to reverse his sentence on any of these grounds.

Next, we must determine whether the evidence supported the circuit court's finding of the alleged aggravating circumstances in Page's case beyond a reasonable doubt. After rejecting Page's constitutional challenges to the aggravating factors set out in SDCL 23A-27A-1, we concluded under our analysis of Issue 4 that ample evidence existed to support the circuit court's findings of the aggravating factors listed in SDCL 23A-27A-1(3), (6), and (9). Thus, Page is entitled to no relief based upon any of his theories challenging the evidence of aggravating factors in his case.

Third, we must address whether Page's sentence is disproportionate when compared to sentences in similar South Dakota cases, considering both the crime and the defendant. SDCL 23A-27A-13 provides that “[t]he court shall include in its decision a reference to those similar cases which it took into consideration.” In Rhines I, we stated:

We conclude that similar cases for purposes of SDCL 23A-27A-12(3) are those cases in which a capital sentencing proceeding was actually conducted, whether the sentence imposed was life or death. “Because the aim of proportionality review is to ascertain what other capital sentencing authorities have done with similar capital murder offenses, the only cases that could be deemed similar ... are those in which imposition of the death penalty was properly before the sentencing authority for determination.” 1996 SD 55, ¶ 185, 548 N.W.2d at 455-56 (quoting Tichnell v. State, 297 Md. 432, 468 A.2d 1, 15-16 (1983) (citation omitted)). With this holding, we rejected the defendant's argument that “the pool of similar cases for proportionality review should encompass all homicide cases that were prosecuted or could have been prosecuted under the State's current capital punishment scheme.” Id. ¶ 184, 548 N.W.2d at 455. Our opinion in Moeller II rejected a similar argument. 2000 SD 122, ¶ 167, 616 N.W.2d at 463. Accordingly, we decline to address Page's contention that the proper universe of similar cases is all convictions for Class A felonies in South Dakota.

Instead, we consider only those cases that resulted in a capital sentencing proceeding. Since the 1979 enactment of South Dakota's current capital punishment scheme, thirteen capital sentencing proceedings, including those of Page and his co-defendants Piper and Hoadley, have been conducted. In seven of those proceedings, the jury declined to impose the death penalty and sentenced the defendant to life imprisonment. Our opinion in Rhines I summarized six of these cases. See 1996 SD 55, ¶¶ 187-204, 548 N.W.2d at 456-57; see also Moeller II, 2000 SD 122, ¶ 168, 616 N.W.2d 424, 463-64 (taking judicial notice of the case summaries set out in Rhines I ). Co-defendant Hoadley's conviction represents the seventh case. Hoadley, 2002 SD 109, 651 N.W.2d 249. In Rhines I, 1996 SD 55, 548 N.W.2d 415, Moeller I, 1996 SD 60, 548 N.W.2d 465 and State v. Anderson, 2003 SD 65, 664 N.W.2d 48 (Anderson II), the jury imposed the death sentence. We take judicial notice of the summaries of each of these cases as set forth in Rhines I, 1996 SD 55, ¶ 196, 548 N.W.2d at 456 (summarizing Moeller I ) and Moeller II, 2000 SD 122, ¶¶ 169-171, 616 N.W.2d at 464 (summarizing Rhines I, Anderson I and Anderson II ). FN8 We take further judicial notice of co-defendant Piper's case. State v. Piper, 2006 SD 1, 709 N.W.2d 783.

FN8. The facts supporting Anderson's death penalty sentence are reviewed in Moeller II, 2000 SD 122, ¶¶ 169-171, 616 N.W.2d at 464. However, due to Anderson's suicide in 2003, the full facts that resulted in his conviction for the kidnapping and murder of Larisa Dumansky, and the rape and murder of Piper Streyle are not contained in Anderson II, 2003 SD 65, 664 N.W.2d 48. Additional facts pertaining to his conviction for the kidnapping of Streyle are contained in State v. Anderson, 2000 SD 45, 608 N.W.2d 644 ( Anderson I ).

After comparing Page's sentence of death with the other cases in the proportionality pool, we conclude his sentence was not disproportionate considering Page's criminal actions. First, we note the only other case that involved the presence of as many aggravating factors as were found in Page's case was in defendant Rhine's case. Since 1979, only defendants Moeller, Rhines, and Anderson have approached the sheer brutality exhibited by Page, FN9 and all three defendants received the death penalty.

FN9. See the analysis in Piper, 2006 SD 1, ¶¶ 40-43, 709 N.W.2d at 802, for a separate analysis of co-defendant Piper's acts.

There is ample evidence in this case that Page subjected Poage to injury and pain far in excess of what was required to accomplish his murder. The amount of torture present in this case was unprecedented in South Dakota. Although the aggravating factor of torture was found in the cases of Rhines, Moeller, and Anderson, the evidence in this case shows that Page tortured Poage for at least three and one-half hours before Page was satisfied Poage was dead.

During that time Page, along with one of his co-defendants, rendered Poage helpless by tying him up with an extension cord. Page admitted to delivering multiple “full football kicks” to Poage's skull with his boots, so many times that his own foot was sore. Page forced the victim to drink a hydrochloric acid concoction while tied up and unable to move. Page stabbed the victim at least once, forcing his knife as far as he could into Poage's neck.

Directly in front of the conscious victim, Page discussed the “best” way to murder Poage, including slitting his throat. Page forced the almost completely nude Poage to endure freezing temperatures for an extended period of time. Like Rhines, Page taunted the victim throughout the ordeal. Page “chuckled” at the amount of pain the victim was experiencing. After stabbing Poage, Page allowed the victim to wash himself off in the icy stream in the false hope he would be allowed to bleed to death in the warmth, rather than in the cold. Finally, Page dropped several heavy stones on the victim's head until Page concluded he was dead. Poage suffered terribly at the hands of Page.

“The disparity in suffering endured by victims is an important and legitimate consideration when evaluating the proportionality of a death sentence.” Rhines I, 1996 SD 55, ¶ 207, 548 N.W.2d at 458. Based on the sheer brutality and torture inflicted upon the victim in this case, we conclude the imposition of the death penalty upon Page was neither excessive nor disproportionate.FN10

FN10. The only two sentencing options before the circuit court were life in prison without possibility of parole or death. In either case, baring executive clemency, the defendant would not ever be released back into society. Thus, the issue of rehabilitation is not of major concern. “Clearly there are some acts of such a criminal magnitude that they justify a life sentence [or death] whether the perpetrator is capable of rehabilitation or not. In such instances the sentence is not disproportionate to the crime.” State v. Milk, 2000 SD 28, ¶ 18, 607 N.W.2d 14, 20.

8. Whether Page's death sentence was unconstitutionally imposed when the indictment failed to allege any aggravating circumstances.

In Moeller III, we dealt with this identical issue and held that failure to allege aggravating circumstances in an indictment is not unconstitutional under Ring, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556. Since our holding in Moeller III, other state courts have likewise concluded that aggravating factors need not be pleaded in a state indictment. See Bustamante v. Wall, 866 A.2d 516, 522-23 (R.I.2005) (holding no constitutional requirement that aggravating factors be set forth in grand jury indictment); McKaney v. Foreman ex rel County of Maricopa, 209 Ariz. 268, 100 P.3d 18, 22 (2004) (no requirement that aggravating factors be pleaded in indictment). As in Moeller III, the State's formal notice of aggravating factors here provided sufficient notice to Page under both our federal and state constitutions.

9. Whether Page's death sentence was unconstitutionally imposed when SDCL 23A-27A-6 failed to allow a jury determination of the appropriate penalty upon a plea of guilty to the circuit court

Having rejected Page's first claim based upon Ring, we now turn to his contention that the death penalty was unconstitutionally imposed. Page also relies on Ring to argue his case was unconstitutionally conducted because the circuit court, rather than a jury, made the factual findings that the State had proved the existence of aggravating circumstances beyond a reasonable doubt.FN11

FN11. The analysis of this issue is based upon this Court's analysis of the same issue raised in Moeller III, 2004 SD 110, 689 N.W.2d 1. Given the seriousness of the penalty herein, we re-state the Moeller III analysis as applicable to this opinion. See also Piper, 2006 SD 1,¶¶ 47-68, 709 N.W.2d at 803-10.

Specifically, Page asserts that SDCL chapter 23A-27A is unconstitutional because it does not provide defendants who plead guilty to a capital offense with an opportunity to have the aggravating circumstances found by a jury as opposed to a judge. Although in this case the circuit court offered Page the opportunity to have a sentencing hearing in front of a jury, an option which Page declined to exercise and instead specifically asked for the court to sentence him, Page argues the circuit court did not have the authority under South Dakota law to present him this option.

We agree with Page's argument that under Ring, a capital sentencing scheme would be unconstitutional if it prevented a defendant who pleaded guilty from having alleged aggravating circumstances found by a jury. See Ring, 536 U.S. at 609, 122 S.Ct. at 2443, 153 L.Ed.2d 556. We do not believe, however, that there is any statutory impediment preventing a defendant who pleads guilty in a South Dakota state court from exercising his right to a jury at the penalty phase.

The South Dakota sentencing scheme involves two procedural statutes: SDCL 23A-27A-2 and SDCL 23A-27A-6. SDCL 23A-27A-2, which governs the procedure to be followed in capital cases where a jury makes the sentencing determination, requires the court to conduct a presentencing hearing before a jury. SDCL 23A-27A-2 provides:

In all cases in which the death penalty may be imposed and which are tried by a jury, upon a return of a verdict of guilty by the jury, the court shall resume the trial and conduct a presentence hearing before the jury. Such hearing shall be conducted to hear additional evidence in mitigation and aggravation of punishment. At such hearing the jury shall receive all relevant evidence, including: (1) Evidence supporting any of the aggravating circumstances listed under § 23A-27A-1; (2) Testimony regarding the impact of the crime on the victim's family; (3) Any prior criminal or juvenile record of the defendant and such information about the defendant's characteristics, the defendant's financial condition, and the circumstances of the defendant's behavior as may be helpful in imposing sentence; (4) All evidence concerning any mitigating circumstances. SDCL 23A-27A-6, which governs the procedure to be followed in capital cases where a jury trial is waived and the court makes the sentencing determination, provides:

In nonjury cases the judge shall, after conducting the presentence hearing as provided in § 23A-27A-2, designate, in writing, the aggravating circumstance or circumstances, if any, which he found beyond a reasonable doubt. Unless at least one of the statutory aggravating circumstances enumerated in § 23A-27A-1 is so found, the death penalty shall not be imposed. (emphasis added).

We have long recognized the general rule that “[w]hen interpreting a statute we presume the legislature intended to enact a valid statute, and where ‘a statute can be construed so as not to violate the constitution,’ we will adopt such a construction.” State v. Martin, 2003 SD 153, ¶ 26, 674 N.W.2d 291, 300 (quoting State v. Allison, 2000 SD 21, ¶ 25, 607 N.W.2d 1, 2). Therefore, we interpret SDCL 23A-27A-2 and SDCL chapter 23A-27 in general as providing for a sentencing hearing wherein a jury will determine the presence or absence of alleged aggravating factors when a defendant pleads guilty to a capital offense. We must reject as unconstitutional any reading of SDCL chapter 23A-27A that would prevent a capital defendant from having the opportunity to have a sentencing hearing before a jury.

The statutory scheme in SDCL chapter 23A-27A regulates the sentencing procedure. An examination of all relevant statutes reflects that SDCL 23A-27A-2 and 6 do not purport to regulate the right to jury sentencing in capital cases. There is certainly no language in either statute that clearly, or otherwise, states that the jury hearing on aggravating circumstances is inapplicable in nonjury cases when a defendant has pleaded guilty as Page claims. Instead, a correct reading reflects that the statutes simply do not speak to the subject of the right to jury sentencing. Indeed, the purpose of SDCL 23A-27A-2 is to describe the procedure to be followed in cases “which are tried by a jury,” and SDCL 23A-27A-6 describes the procedure to be followed in “ nonjury cases.” (emphasis added.) This emphasized language, cases “which are tried by a jury” and “ nonjury cases,” demonstrates that these statutes do not purport to “prevent” the right of jury sentencing. Rather, this emphasized language demonstrates that the statutes presume that the right to jury trial has been determined elsewhere.

Therefore, the South Dakota statutes are unlike the Arizona statutes that were invalidated in Ring, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556. The Ring statutes expressly governed the right to jury sentencing because they explicitly provided that only a judge could consider the aggravating circumstances and impose a death sentence.FN12 Id. at 592, 122 S.Ct. at 2434, 153 L.Ed.2d 556. In contrast, the South Dakota statutes are simply silent on the subject of the right to jury sentencing. This silence is hardly surprising because most provisions in our criminal code fail to expressly grant or deny the right to a jury trial. Rather, the code provisions leave it to the state and federal constitutions and specific implementing statutes to regulate the right to a jury trial.

The Arizona statutes stated: “[t]he hearing shall be conducted before the court alone. The court alone shall make all factual determinations required by this section or the constitution of the United States or this state.” Ring, 536 U.S. at 592, 122 S.Ct. at 2434, 153 L.Ed.2d 556 (emphasis added) (quoting Ariz. Rev. Stat. Ann. § 13-703(C)(2001), amended by 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1).

The state and federal constitutions provide the foundation for South Dakota's jury implementing statutes. The Sixth Amendment to the United States Constitution guarantees the right to a jury trial in capital cases without qualification.FN13 Article VI, section 6 and section 7 of the South Dakota Constitution also grant that right. The South Dakota language provides: FN13. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed[.]” US Const. amend. VI.

The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy[.][§ 6].

In all criminal prosecutions the accused shall have the right ... to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. [§ 7]. “The obvious purpose of these [c]onstitutional provisions is to guarantee an accused the right to trial by jury. It is a right [that] cannot be denied or withheld by the state.” State v. Thwing, 84 S.D. 391, 394, 172 N.W.2d 277, 278 (1969) (emphasis added). And, the scope of the right is broad. It extends to all cases “where such right existed at common law.” See State v. Mitchell, 3 S.D. 223, 226, 52 N.W. 1052, 1052 (1892). Because the right to a jury trial in capital cases existed under the common law at the time our Federal Constitution was adopted, there is no dispute that the South Dakota Constitution guarantees that right in capital cases today. See 1887 Dakota Terr. Compiled Laws §§ 7322-7336, 7484, 7489; McCall v. United States, 1 Dak 320, 46 N.W. 608 (Dakota Terr.1876).

This constitutional guarantee has been implemented by two statutes not considered by Page. The first, SDCL 23A-18-1 (Rule 23(a)), affords the right to jury trial in all cases contemplated by the constitutions. The statute provides that: “[c]ases required to be tried by a jury shall be so tried unless the defendant waives a jury trial in writing or orally on the record with the approval of the court and the consent of the prosecuting attorney.” Id. (emphasis added). Because it is well settled that both the guilt and sentencing phases of capital cases are required to be tried by a jury,FN14 SDCL 23A-18-1 implements the constitutional guarantee and affirmatively directs that a jury shall be utilized. Thus, even if SDCL 23A-27A-2 and 23A-27A-6 fail to explicitly afford the right of jury sentencing, SDCL 23A-18-1 cures the alleged omission.

FN14. See Ring, 536 U.S. at 609, 122 S.Ct. at 2443, 153 L.Ed.2d 556 (observing that “[t]he right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death”).

The second statute, SDCL 23A-45-13, further authorized the circuit court's offer of a jury sentencing in this case. In analyzing SDCL 23A-45-13, it must be reiterated that SDCL 23A-27A-2 and 23A-27A-6 are procedural statutes that do not expressly speak to the right of jury trial. FN15 Therefore, in cases like this where there is no statutory prohibition on the procedural right to a jury, SDCL 23A-45-13 authorizes the trial court to proceed “in any lawful manner.” It provides “[i]f no procedure is specifically prescribed by statute or rule, a court may proceed in any lawful manner not inconsistent with this title or with any other applicable statute.” SDCL 23A-45-13.

There is no dispute that the Ring right of sentencing by jury is a matter of procedure. The United States Supreme Court so held, explaining:

A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. See Bousley [ v. United States, 523 U.S. 614] at 620-621, 118 S.Ct. 1604[, 1609-1610, 140 L.Ed.2d 828 (1998) ] (rule “hold[s] that a ... statute does not reach certain conduct” or “make[s] conduct criminal”); Saffle [ v. Parks, 494 U.S. 484,] 495, 110 S.Ct. 1257[,108 L.Ed.2d 415 (1990) ] (rule “decriminalize[s] a class of conduct [or] prohibit[s] the imposition of ... punishment on a particular class of persons”). In contrast, rules that regulate only the manner of determining the defendant's culpability are procedural. See Bousley, supra, at 620, 118 S.Ct. 1604[, 140 L.Ed.2d 828]. Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442 (2004). Schriro went on to hold that “judged by this standard,” the Ring right to have a jury determine aggravating circumstances in imposing the death penalty “is properly classified as procedural.” Id.

Thus, even if we were to accept Page's offered construction of SDCL chapter 23A-27A, that it does not authorize jury sentencing in capital cases following a guilty plea, other statutes provide that right. SDCL 23A-45-13 fills the void by authorizing a trial court to “proceed in any lawful manner.” And, SDCL 23A-18-1 not only authorized, but required the circuit court to offer a jury hearing and sentencing. As this Court has previously noted, trial courts must use this latter statute to properly guarantee a defendant's constitutional rights and to “provide an effective manner to try the case.” State v. Goodman, 384 N.W.2d 677, 680 (S.D.1986).

In this case, however, Page specifically asked to be sentenced by the circuit court, thereby waiving his constitutional right to have a jury determine whether the alleged aggravating circumstances in his case existed beyond a reasonable doubt. “Even fundamental rights can be waived.” State v. Garber, 2004 SD 2, ¶ 25, 674 N.W.2d 320, 327 (quoting State v. Henjum, 1996 SD 7, ¶ 13, 542 N.W.2d 760, 763). The circuit court properly presented Page with the option of exercising his right to sentencing by a jury as provided by South Dakota's capital punishment statutory scheme. It appears that Page may well have waived his right to a jury trial because he could not afford to have a jury hear the horrendous facts of his case, and he apparently believed that he might receive more favorable treatment before the circuit court.

Now on appeal, dissatisfied with his choice, he asks this Court to invalidate his voluntary waiver of a jury sentencing. Page argues that even though he did not want a jury sentencing, if he would have wanted one, that sentencing would have been unavailable. Page contends that the circuit court had no authority to offer jury sentencing, and therefore, the circuit judge's offer of jury sentencing was “illusory.” In circular reasoning, Page concludes that such an illusory offer is insufficient to overcome an unconstitutionally imposed death sentence.

Page is mistaken in three respects. First, as was explained above, the circuit court was authorized to offer a jury hearing at the sentencing phase of this capital case. Even assuming that the circuit court had no specific authority to offer a jury sentencing under the capital sentencing statutes, SDCL 23A-18-1 and 23A-45-13 explicitly authorized, and in fact required, use of a jury unless waived. Thus, the circuit court's offer was not illusory.

Second, even if one were to assume that there was no statutory authority to offer jury sentencing, the waiver was still valid because the Ring analysis is inapplicable when a defendant waives the right to jury sentencing. While Page offers absolutely no authority for his contrary conclusion, all courts that have considered the issue uphold such waivers. The courts recognize that the Ring analysis is inapplicable because the defendant in Ring pleaded not guilty and went to trial, but was deprived of jury sentencing. Because Ring is limited to cases where a defendant is deprived of a requested jury sentencing, the authorities hold that guilty pleas and waivers are valid even if the underlying sentencing scheme explicitly and unequivocally precludes the defendant from receiving a jury sentence. Colwell v. State, 118 Nev. 807, 59 P.3d 463 (2002); Moore v. State, 771 N.E.2d 46 (Ind.2002).

For example, in Colwell, the Nevada Supreme Court considered this issue and concluded that “ Ring is not applicable to [a defendant's] case [when], unlike Ring, [the defendant pleads] guilty and waive[s] his right to a jury trial.” 59 P.3d at 473. The Nevada Supreme Court reached that conclusion even though the Nevada statutory framework, like Arizona's, FN16 unequivocally eliminated the right to a jury at sentencing. Id. FN17 Colwell distinguished Ring because Ring pleaded not guilty and went to trial, unlike Colwell who pleaded guilty and waived his right to a jury trial. Id. Colwell ultimately observed that because the Supreme Court “has held that the valid entry of a guilty plea in a state criminal court involves the waiver of several federal constitutional rights[, a]mong these ... ‘the right to trial by jury’[,] Colwell's guilty plea included an express waiver of his right to a jury trial and was valid.” Id. at 474 (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)).

FN16. Colwell described the Arizona sentencing scheme that was overturned in Ring as one in which, “following a jury adjudication of a defendant's guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.” 59 P.3d at 469.

FN17. The Nevada statute provided “that when a defendant pleads guilty to first-degree murder and the State seeks a death sentence, a panel of three district judges must ‘conduct the required penalty hearing to determine the presence of aggravating and mitigating circumstances, and give sentence accordingly.’ ” Id. at 469 n. 60 (citing Nev.Rev.Stat. § 175.558, repealed by 2003 Nev. Laws, c. 366, § 8).

The Indiana Supreme Court reached the same conclusion in Moore, 771 N.E.2d at 49. In Moore, the Indiana statutes, like those in Nevada, unequivocally, and unconstitutionally, foreclosed any possibility of a right to jury sentencing following a plea of guilty. Id. FN18 Nevertheless, the Indiana Supreme Court concluded that the defendant's voluntary plea of guilty to three counts of murder waived his entitlement to argue that the “Indiana capital sentencing statute violated the federal and state constitutions by depriving him of a jury determination of the aggravating circumstances that made him eligible for the death sentence.” Id. Moore observed that because the defendant knew that his guilty plea would deprive him of access to a jury, he had forfeited his right to “have a jury recommend to the trial court whether or not a death penalty should be imposed against” the defendant. Id.

FN18. “At the time of the offense, the statute, Indiana Code § 35-50-2-9 (Supp. 1979), provided in relevant part, ‘If the defendant was convicted of murder in a jury trial, the jury shall reconvene for the sentencing hearing; if the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing.’ Ind. Code § 35-50-2-9(d) (Supp. 1979).” Id. at 49 (emphasis in original).

It must be further observed that Page's waiver is also valid under United States Supreme Court authority and a prior decision of this Court. The United States Supreme Court has long held that a waiver of the right to a jury is valid even though the underlying right waived does not exist. See Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930) (waiving the right to a jury composed of twelve persons) ( abrogated on other grounds by, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970)). Similarly, in Thwing, 84 S.D. 391, 172 N.W.2d 277, this Court upheld waiver of a right to a jury trial even though the underlying right, an alleged right to a court trial, did not exist. This Court did so because “[t]he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.” Id. at 395-96, 172 N.W.2d at 279 (quoting Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965)).

As was previously pointed out, the law is quite settled that even assuming Page had no statutory right to a jury hearing at sentencing, his decision to waive that “nonexistent” statutory right and proceed with sentencing before the circuit court was a valid waiver of his constitutional right to jury sentencing. See Colwell, 59 P.3d 463; Moore, 771 N.E.2d 46. See also Sanchez v. Superior Court, 102 Cal.App.4th 1266, 126 Cal.Rptr.2d 200, 206 (2002) (holding that after Ring, a defendant may validly waive his or her right to have the jury determine the degree of murder); People v. Jackson, 199 Ill.2d 286, 263 Ill.Dec. 819, 769 N.E.2d 21, 27 (2002) (stating that “[e]very fact necessary to establish the range within which a defendant may be sentenced is an element of the crime and thus falls within the constitutional rights of a jury trial and proof beyond a reasonable doubt, made applicable to the states by the due process clause of the fourteenth amendment. But by pleading guilty, a defendant waives exactly those rights.” ); People v. Chandler, 321 Ill.App.3d 292, 254 Ill.Dec. 967, 748 N.E.2d 685, 690 (2001) (stating that “[h]aving waived a jury trial on all issues, defendant cannot now claim that he was deprived of the right to have a jury determine the issue of his future dangerousness”); State v. Edwards, 810 A.2d 226, 234 (R.I.2002) (holding that “[b]y waiving a jury, defendant accepted the procedure as followed in this case, that the trial justice, after finding him guilty of the offense of first-degree domestic murder, would proceed to find, as she did, that the aggravating circumstance of torture and aggravated battery had been proven beyond a reasonable doubt”).

It must also be observed that Page's argument against following settled waiver jurisprudence would shift to a capital defendant the exclusive right to control the sentence he or she receives. In order to control the sentence, a defendant need merely waive the right to jury, or presumably some other constitutional right, at sentencing. Should the defendant not receive the life sentence requested from the trial court, he or she then need only appeal arguing a denial of the constitutional right that he or she had expressly waived. See People v. Rhoades, 323 Ill.App.3d 644, 257 Ill.Dec. 342, 753 N.E.2d 537, 544 (2001). Because the reasoning advanced by Page requires the invalidation of sentences when this appellate argument is made, and because a life sentence must be imposed under SDCL 23A-27A-14 whenever a death sentence is invalidated by this Court, the procedural maneuvering sanctioned would guarantee a capital defendant the absolute right to obtain a life sentence. The Legislature could not have intended such an absurd result in enacting SDCL 23A-27A-2, 6, and 14.

It must be finally noted that Page's third and final argument on this issue is based upon a hypothetical that he might have asked for jury sentencing. However, Page lacks standing to assert the invalidity of his waiver based upon a hypothetical. Because Page waived the right to jury sentencing, he may not now argue that the statutes are unconstitutional as applied to him or someone else who might have requested a jury sentence. As the Supreme Court has explained:

[a] party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.FN19

FN19. “A limited exception has been recognized for statutes that broadly prohibit speech protected by the First Amendment. This exception has been justified by the overriding interest in removing illegal deterrents to the exercise of the right of free speech.” Allen, 442 U.S. at 155, 99 S.Ct. at 2223, 60 L.Ed.2d 777 (internal citation omitted). County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 154-155, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979) (citing Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973)).FN20 This Court has also rejected such claims based on hypotheticals. “Judicial machinery should be conserved for problems which are real and present or imminent, not squandered on problems which are abstract or hypothetical or remote.” Gottschalk v. Hegg, 89 S.D. 89, 95, 228 N.W.2d 640, 643-644 (1975) (citation omitted). Therefore, in determining the constitutionality of statutes, “ ‘the mere fact that there might be a case[,] where to apply the provisions of [the statute] would result in [a constitutional violation,] does not render the [statute] unconstitutional, but merely prevents its application in such a case.’ ” City of Pierre v. Russell, 89 S.D. 70, 73, 228 N.W.2d 338, 341 (1975) (quoting Clark Implement Co. v. Wadden, 34 S.D. 550, 556-57, 149 N.W. 424, 426 (1914)). Page fails to acknowledge that although he has construed the capital sentencing scheme in such a way that it could be applied to violate the Sixth Amendment right to jury, it was not so applied in his case.

FN20. In Broadrick, 413 U.S. at 610-611, 93 S.Ct. at 2915, 37 L.Ed.2d 830, the United States Supreme Court explained why hypothetical challenges are not allowed: Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. A closely related principle is that constitutional rights are personal and may not be asserted vicariously. These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws. (internal citations omitted.)

In summary, Page argues that the South Dakota capital sentencing statutes are unconstitutional, believing that they “prevent” the right of jury trial at sentencing. However, Page fails to consider two relevant South Dakota statutes that provide for that right. Additionally, even if the right of jury trial is not allowed under the statutes, Page's argument on waiver is not only unsupported, but is refuted by the United States Supreme Court, this Court, and the other State Supreme Courts that have considered this issue.

Page, by pleading guilty and expressly declining the circuit court's offer to empanel a jury to consider his sentence, waived his right to challenge the jury sentencing scheme. Therefore, even if we read the capital sentencing statutes as failing to specifically mention the right of jury sentencing following a plea; in fact, even if we read them to explicitly “prevent” such jury sentencing, Page voluntarily waived that right. Waivers are no stranger to our criminal procedure jurisprudence. We will not, without any supporting authority, sanction the remarkable proposition that a defendant may waive the right to a jury at sentencing, allow the trial court to impose a sentence in accordance with the defendant's wishes, and then, to avoid an unfavorable sentence, invalidate the waiver on appeal by arguing a deprivation of the constitutional right that the defendant did not want to exercise. See Rhoades, 257 Ill.Dec. 342, 753 N.E.2d at 544 (stating that a “[d]efendant should not be able to waive a right, receive a sentence he subjected himself to, and then contend that the right was violated”). This reasoning is illogical. More fundamentally, it is at odds with cases from this Court, the United States Supreme Court, and other state Supreme Courts.

10. Whether Page's death sentence was grossly disproportionate to co-defendant Hoadley's life sentence.

After a jury sentenced Page's co-defendant Hoadley to life imprisonment, we remanded Page's first appeal to the circuit court for an intra-case proportionality review as articulated by our opinion in State v. Bonner, 1998 SD 30, 577 N.W.2d 575. See Hoadley, 2002 SD 109, 651 N.W.2d 249 (affirming co-defendant Hoadley's life sentence without the possibility of parole). On remand, the circuit court held a hearing and subsequently entered findings of fact and conclusions of law affirming Page's death sentence. Page goes beyond Eighth Amendment proportionality analysis and also addresses our statutory review under SDCL chapter 23A-27A and its interpretative case law in a comparison of the culpability of himself as compared to Hoadley. Since both statutory and constitutional reviews are invoked, we address each.

This Court's proportionality review as set out in Bonner, 1998 SD 30, 577 N.W.2d 575, is derived from the Eighth Amendment's prohibition against cruel and unusual punishment. In this case, Page claims his death sentence was unconstitutionally imposed because his co-defendant Hoadley received a sentence of life imprisonment. As we recognized in Bonner: [I]f the words “Equal Justice Under Law” call for more than just a lofty inscription, then our vigilance ought to be aroused when extremely divergent sentences are imposed for the same offense. Gross disparity in punishment erodes public confidence in our institutions of justice[.] Of course, equal treatment in sentencing does not mean senseless uniformity, but when a sentence is so out of proportion to the offense and so different from what others have received for the same conduct, then decency and conscious urge us to examine it more closely. 1998 SD 30, ¶ 12, 577 N.W.2d at 578-79 (emphasis added) (internal citation omitted). Thus, our task is to determine if Page and Hoadley were sentenced for the same conduct, and if so, whether the divergent sentences imposed upon them resulted in gross disparity in punishment.

Since our opinion in Bonner, we have employed the following well-established principles in reviewing the proportionality of a given sentence:

[T]o assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court. If these circumstances fail to suggest gross disproportionality, our review ends. If, on the other hand, the sentence appears grossly disproportionate, we may, in addition to examining the other Solem factors, conduct an intra- and inter-jurisdictional analysis to aid our comparison or remand to the circuit court to conduct such comparison before resentencing. We may also consider other relevant factors, such as the effect upon society of this type of offense. Id. ¶ 17 (citing Harmelin v. Michigan, 501 U.S. 957, 1000, 111 S.Ct. 2680, 2704, 115 L.Ed.2d 836 (1991)).

The Legislature sanctioned capital punishment for murder when at least one aggravating circumstance exists. SDCL 23A-27A-1. In Page's case, the circuit court found five aggravating circumstances.FN21 As discussed above, the sentencing judge had ample factual justification for determining those aggravators were present in this case.

FN21. The circuit court found that five aggravating circumstances had been proven beyond a reasonable doubt by the State. Three aggravators were proven under SDCL 23A-27A-1(6), in that the offense included torture, depravity of mind and aggravated battery to the victim. The fourth aggravator was proven under SDCL 23A-27A-1(3), in that circuit court found beyond a reasonable doubt that the offense was committed for the pecuniary benefit of the defendant and co-defendants. The fifth aggravator was proven under 23A-27A-1(9), in that the offense was committed in order to eliminate Poage as a witness.

In this case, Page pleaded guilty to first degree felony murder, kidnapping, first degree robbery, first degree burglary, and grand theft. Page's first degree murder conviction constituted a Class A felony carrying with it the maximum penalty of death, provided that the procedures outlined in SDCL chapter 23A-27A were followed and met. Page waived his right to sentencing by jury and instead actively sought sentencing by the circuit court. His co-defendant Hoadley pleaded not guilty but was convicted by a jury of the same offenses to which Page pleaded guilty. However unlike Page, Hoadley sought sentencing by a jury. The jury found the same aggravating factors present in Hoadley's case as were found in Page's case: SDCL 23A-27A-1(3), (6), and (9). After hearing the relevant evidence in mitigation and aggravation, the jury decided to impose life imprisonment upon Hoadley rather than the death penalty. For his proportionality argument, Page primarily relies on the fact that Hoadley was convicted of the same crimes to which Page pleaded guilty and the fact that the jury found the same aggravating factors in Hoadley's case as the circuit court determined were present in his case.

First, we note this Court has consistently held capital punishment is not cruel and unusual in violation of the Eighth Amendment or the South Dakota Constitution. Moeller I, 1996 SD 60, ¶¶ 96-109, 548 N.W.2d at 487-489; Moeller II, 2000 SD 122, ¶ 176 n18, 616 N.W.2d at 465. We also recognize “death is a different kind of punishment from any other which may be imposed in this country” and that “[t]he penalty of death is qualitatively different from a sentence of imprisonment, however long.” Lankford v. Idaho, 500 U.S. 110, 125, 125 n. 21, 111 S.Ct. 1723, 1732 n. 21, 114 L.Ed.2d 173 (1991) (citing Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977), and Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)). This qualitative difference between Page's death sentence and Hoadley's life sentence does not render the sentences per se disproportionate. In order for Page's sentence to be disparate under our Bonner analysis, he must first show his and Hoadley's “past records, demeanor, [and] degree of criminal involvement ... are sufficiently similar as to cause the sentence disparity between them to be unjust.” See Garber, 2004 SD 2, ¶ 32, 674 N.W.2d at 328 (citing Bonner, 1998 SD 30, ¶ 20, 577 N.W.2d at 581 (emphasis added)). Absent such a showing, we will not reverse the circuit court's sentencing decision because disparate treatment of co-defendants is permissible where one of the defendants is more culpable than a co-defendant. Id. ¶ 33.

It must be noted that although the Supreme Court has addressed cases where one defendant received the death penalty while another did not, it has never held that all co-defendants convicted for the same capital offense must receive the same sentence. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Research has not revealed any state supreme court that has so held, nor was Page able to cite to such authority in his briefs to this Court. Indeed, the majority of states have explicitly held the opposite after concluding it was constitutionally permissible for one co-defendant to receive the death penalty while another receives a less severe sentence. See Gavin v. State, 891 So.2d 907 (Ala.Crim.App.2003) (“There is not a simplistic rule that a co-defendant may not be sentenced to death when another co-defendant receives a lesser sentence.”) (affirming death sentence dismissal of capital charges against co-defendant) (quoting Williams v. State, 461 So.2d 834, 839 (Ala.Crim.App.1983), rev'd on other grounds, 461 So.2d 852 (Ala.1984)); Taylor v. State, 808 So.2d 1148, 1201 (Ala.Crim.App.2000) ( “[W]hile our statute obliges us to consider the punishment given any accomplices, it does not require that every defendant involved in a crime receive the same punishment.”) (affirming capital sentence despite life sentence of co-defendant) (quoting McNair v. State, 706 So.2d 828, 845 (Ala.Crim.App.1997)); State v. Taylor, 838 So.2d 729, 757 (La.2003) (“As a general rule, the fact a co-defendant has received a more lenient sentence does not necessarily indicate the [death] penalty imposed on defendant is excessive.”) (affirming death sentence even though co-defendant sentenced to life for the same murder in subsequent trial) (citing State v. Day, 414 So.2d 349, 352 (La.1982)); State v. Jaynes, 353 N.C. 534, 549 S.E.2d 179, 203 (2001) (“[T]he fact that a defendant is sentenced to death while a co-defendant receives a life sentence for the same crime is not determinative of proportionality.”) (affirming capital sentence where co-defendant received sentence of life-imprisonment) (quoting State v. McNeill, 349 N.C. 634, 509 S.E.2d 415, 427 (1998)); State v. Morris, 24 S.W.3d 788, 800 (Tenn.2000) (“Similarly, that a defendant in a similar case or even the same case has received a sentence less than death does not render a death sentence arbitrary, excessive, or disproportionate.”) (citing State v. Cauthern, 967 S.W.2d 726, 741 (Tenn.1998) (affirming death penalty)).

These above-cited cases are consistent with the general proposition recognized in the non-capital Garber opinion, 2004 SD 2, ¶ 33, 674 N.W.2d at 328, that held the level of culpability for an offense is not always the same, even where a defendant has pleaded guilty to the same offense. Today, we hold this general proposition as applicable to our review of capital sentencing cases as well as non-capital cases.

The Supreme Court has twice addressed situations where multiple co-defendants were convicted of the same capital offense. In Enmund, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, the Supreme Court reversed the death sentence of a defendant who was present in the getaway car used in an armed robbery that resulted in two murders. The defendant, Enmund, received the death penalty along with the co-defendant who actually committed the murders. The Supreme Court reversed:

Because the Florida Supreme Court affirmed the death penalty in this case in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken, we reverse the judgment upholding the death penalty and remand for further proceedings not inconsistent with this opinion. Id. at 801, 102 S.Ct. at 3378-79, 73 L.Ed.2d 1140. Therefore, under Enmund, an accomplice to a felony may not be sentenced to death unless he either killed or intended a killing to occur: “For purposes of imposing the death penalty, Enmund's criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt.” Id. In sum, a defendant's capital sentence must be based upon his own culpability in a murder and not upon his co-defendant's actions.

The Supreme Court clarified its holding in Tison, wherein the Court affirmed the capital sentence of two appellants who had helped two convicted murderers escape from an Arizona penitentiary. 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127. During the escape, the appellants watched while the two escaped convicts murdered a family of four that had pulled over to help the men with a flat tire. Id. at 141, 107 S.Ct. at 1679, 95 L.Ed.2d 127. Upholding the death sentences of the two appellants, the Tison Court ruled:

[W]e hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result. 481 U.S. at 157-58, 107 S.Ct. at 1688, 95 L.Ed.2d 127. This holding was based on the Court's reasoning that the Enmund culpability requirement may be established through “major participation in the felony committed, combined with reckless indifference to human life.” Id. Thus, under Enmund and Tison, a defendant's death sentence must be rooted in his own culpability for the capital offense, as demonstrated by his actual killing, intent or knowledge that killing would occur, or through major participation in a crime involving reckless indifference to human life.

Accordingly, in reviewing situations where multiple defendants were involved in the commission of a capital offense, state courts have focused upon the relative culpability of the particular defendant. The Florida Supreme Court has stated that “[u]nderlying our relative culpability analysis is the principle that equally culpable co-defendants should be treated alike in capital sentencing and receive equal punishment.” Shere v. Moore, 830 So.2d 56, 60 (Fla.2002) (citations omitted). However, “[w]here co-perpetrators are not equally culpable, the death sentence of the more culpable defendant is not disproportionate where the other receives a life sentence.” Caballero v. State, 851 So.2d 655, 663 (Fla.2003) (citing Jennings v. State, 718 So.2d 144, 153 (Fla.1998)). Generally, in determining the relative culpability of an appellant, state courts seek to distinguish between those co-defendants who were “active participants” in the crime from those who were only “passive participants.” People v. Caballero, 206 Ill.2d 65, 276 Ill.Dec. 356, 794 N.E.2d 251, 269-71 (2002) (“[E]vidence that defendant was a follower, rather than a leader, in the commission of the crime has been held to be a significant factor in the analysis of disparate sentences.”) (citing People v. Jackson, 145 Ill.2d 43, 163 Ill.Dec. 859, 582 N.E.2d 125 (1991) (citing People v. Gleckler, 82 Ill.2d 145, 44 Ill.Dec. 483, 411 N.E.2d 849 (1980))). Accord Kormondy v. State, 845 So.2d 41, 47-48 (Fla.2003) (upholding capital sentence where defendant was the “dominant force in the killing” and the “triggerman”); Marquard v. State, 850 So.2d 417, 424 (Fla.2002) (affirming death penalty where facts tended to show the defendant was the “dominant person in this entire course of events” including driving the group to a secluded area and ordering another co-defendant to stab the victim); Taylor, 838 So.2d at 757 (recognizing that capital sentences are “invariably returned by juries when defendant was the shooter”); Simmons v. State, 869 So.2d 995, 1007-08 (Miss.2004) (upholding death penalty where defendant “actively planned and participated” in a robbery and murder even though he was not the leader, planner, or instigator of the killing); Cauthern, 967 S.W.2d at 741 (affirming capital sentence where defendant could be characterized as “the leader in the perpetration of this crime; he knew the victims and planned the offenses”); State v. Lafferty, 20 P.3d 342, 375 (Utah 2001) (death sentence upheld where defendant was the “principle actor” who had “masterminded the scheme” that resulted in the deaths); Harlow v. State, 70 P.3d 179, 203-04 (Wyo.2003) (utilizing the language of Tison in upholding the death sentence for a defendant who was a “major participant in a murder” and “acted with reckless indifference to human life”).

Having determined that the proportionality of co-defendants' disparate sentences should be grounded in the difference in their relative culpability for the crime, we must address the nature of the evidence upon which this determination may be based. In Lafferty, 20 P.3d at 375, the Supreme Court of Utah spoke in terms of “ample” evidence and “clear weight of the evidence” in determining that the defendant's culpability in the crime was not disproportionate to his death sentence. In Cauthern, the Tennessee Supreme Court detailed the facts of the case and concluded that “sufficient evidence” existed on which to base disparate sentences of co-defendants convicted of the same felony. 967 S.W.2d at 741. In a recent opinion, the Court of Criminal Appeals of Alabama upheld a defendant's capital sentence conviction based largely upon the testimony of one of his accomplices. Gavin, 891 So.2d at 975-77. In that case, the court found the accomplice's testimony to be “sufficiently corroborated” by the evidence in the case. Id.

With these recent decisions in mind, it appears that most state supreme courts are deferential to the facts as established by the finder of fact, whether it be a jury or trial court. According to the Florida Supreme Court, “a trial court's determination concerning the relative culpability of the co-perpetrators in a first-degree murder case is a finding of fact and will be sustained on review if supported by competent substantial evidence.” Marquard, 850 So.2d at 424 (quoting Puccio v. State, 701 So.2d 858, 860 (Fla.1997)).

SDCL 23A-27A-10 provides that this Court shall render its decision based on “the factual substantiation of the verdict, and the validity of the sentence.” Although chapter 23A-27A is not specific as to the appropriate standard of review of proportionality in death penalty cases, statutes seem to contemplate a heightened review by this Court. We agree with the Arizona Supreme Court in Arizona v. Watson, 129 Ariz. 60, 628 P.2d 943, 946 (1981), when it observed: The question before us is not whether the trial court properly imposed the death penalty, but whether, based upon the record before us, we believe that the death penalty should be imposed. A finding merely that the imposition of the death penalty by the trial court was “factually supported” or “justified by the evidence” is not the separate and independent judgment by this court that the death penalty warrants. This is in keeping with the mandate of the United States Supreme Court that we must review carefully and with consistency death penalty cases and not engage in “cursory” or “rubber stamp” type of review. (citing Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)).

Nevertheless the trial court remains the finder of fact as this Court does not resolve conflicts in evidence, pass on credibility of the evidence, or weigh the evidence in a court trial any more than it does in a jury case. State v. Romero, 269 N.W.2d 791 (S.D.1978). Having no witnesses appear before us, we are unable to resolve conflicts in the evidence, pass on witness credibility, or weigh evidence. State v. Burtzlaff, 493 N.W.2d 1, 4-5 (S.D.1992).

In sum, the Supreme Court's opinions in Enmund and Tison require this Court to focus upon the relative culpability of each co-defendant in the commission of the capital offense. See Enmund, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140; Tison, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127. In gauging the culpability of each defendant, this Court will first seek to ascertain whether or not the defendant actively participated in the crime or crimes and whether the defendant either intended to murder the victim or acted with reckless disregard for human life. The purpose of this inquiry is to distinguish the more passive accomplices from those who were more active in committing the capital offense. In order to make this distinction, this Court will focus upon the relative actions and roles exhibited by the defendants. Jurisprudence from other jurisdictions strongly suggests that factors such as leadership in the crime or having been the “triggerman” are relevant and should be established by substantial, competent evidence. See supra ¶ 103.

The statements of Piper, Page and Hoadley are not all consistent as between themselves. A review of the record shows that the three perpetrators' individual behavior is distinguishable. Although there are certainly conflicts among each defendant's self-serving statements, Piper's and Page's admitted facts disclose a common thread revealing that Hoadley was less culpable than Piper and Page. Therefore, even discounting Hoadley's self-serving versions of the incident, and only considering Page's own statements, this voluminous record contains significant evidence establishing the absence of gross disproportionality between the sentences.

This Court will only consider Page's own statements concerning his actions and his differentiations between his acts and those of Hoadley as against the statements of Piper and Hoadley. The circuit court indicated on the record it did the same.FN22 We do so because Piper, Page and Hoadley never testified under oath and were never subject to cross-examination. Page's statement given at the time of arrest, sought to minimize his individual involvement to some extent and place the bulk of the blame for the planning and execution of this crime on Piper. Nevertheless, this does not require this Court to accept at face value all the evidence and inferences brought forward by Page. See State v. Anderberg, 89 S.D. 75, 80, 228 N.W.2d 631, 634 (1975).

FN22. The circuit court addressed Page at his sentencing hearing, noting: Today you need not be concerned by the statements of Briley Piper or that he would blame you or you would be held accountable for things he says that you did. I've relied on your statements to officers, as well as the forensic evidence and other evidence in the case. I have not referred to or relied on the statements of co-defendants in determining your level of participation in this case.

After an extensive review of the record, we conclude that there were genuine and substantial differences between the actions of Page and Hoadley, which made Page more morally culpable for the violence and torture inflicted upon Poage. First, the evidence and Page's own admission show Page was the most violent of the three murderers. Page was the only one of the three to use a firearm.

Additionally, Page confirmed a critical portion of Hoadley's version of the facts. Page never alleged that Hoadley was involved in planning or initiating the events that led to the murder and robbery of Poage. Page admitted that he instigated the crime by pulling the gun out, telling Poage they were going to “jack” him, and forcing him to the floor. While admitting that he and Piper hit the victim in the face, Page denied Hoadleys participation. Significantly like Piper, Page's description of the initiation of this tragedy fails to even mention Hoadley, other than the fact that he was in another room playing Play Station.

Finally, it is highly significant that in describing the details at the creek, Page tended to put more of the blame on Piper, just as Piper had done in his interview with respect to Page. Although there was a claim by Page that Hoadley also kicked Poage at Higgins Gulch, there was no evidence that either Hoadley or Piper kicked the victim as many times and with as much force as Page. Hoadley did not claim any injury to his foot from the force or the number of kicks to Poage's head, that “injury” was only sustained by Page despite the fact he was wearing heavy boots. Perhaps most telling of all, when Poage attempted to escape his attackers at Higgins Gulch, it was Page who chased him down and forced him back into the icy creek. Once again, Poage's attempt at escape was blocked by Page. Nor does the record show that Hoadley engaged in the torture of Poage to the extent exhibited by Page. Page and Piper discussed the various ways of killing the victim directly in front of a conscious Poage, including slitting his throat. Page “chuckled” during Poage's torture, seemingly amused at the extreme amount of pain the victim was experiencing. After giving the victim false hope he would be allowed to warm himself in his vehicle, it was Page who told Poage they were “liars” and then kicked the victim in the face.

Poage especially drew the wrath of Page when Poage failed to cooperate in his attempted drowning in the creek by Page: I put my foot on his head, but I couldn't stand there. It was like too slippery because he was too far into the creek. And I had to stand on rocks, so I couldn't keep my balance.... So I put my foot on his head, but I couldn't keep my balance because he kept on moving so I just was like fuck it, I'm not falling in the creek.

In addition, the record strongly suggests Page was the planner and initiator of much of the violence inflicted upon Poage. In contrast, none of the group members identified Hoadley as the planner or instigator of the attack. Page began the ordeal by pointing a pistol at Poage, a pistol he had previously stolen from the victim's house. Page and Piper rendered the victim helpless by tying him up with a cord, an idea first expressed by Page. Page engaged in a discussion concerning how the group would murder Poage. Both at the house and at the gulch, Page prevented Poage's escape or opportunity to escape. By his own admission, Page was the first to stab the victim. In fact, when the other two assailants first expressed reluctance about stabbing Poage, Page apparently had little qualms, saying “Fuck it, I'll do it.” Page also admitted to a psychologist, Dr. Mark Perrenoud, that Page did the most physical damage to Poage of any of the three defendants.FN23 After finally murdering Poage, it was Page who received the victim's vehicle, the most valuable of the property stolen by the group.

FN23. Dr. Perrenoud also concluded Page was sane at the time of the killing and of average intelligence.

Subsequent to listening to Page's explicit description of the above events, the DCI Agent asked, “What would have justified that?” Rather than responding with any type of remorse over the anguish suffered by Poage, Page casually responded, “He never done any wrong to us. I mean he was always nice. He just tried to be our friend and stuff.” Page's only emotion was that he personally felt better after the interview as it was good to get it off his chest.

In the final analysis, the record reflects that Page often tended to minimize his culpability by blaming Piper, but Page never alleged Hoadley was the leader, planner, or the major participant in the execution of this tragic incident. If one actually examines the record, the difference in culpability between Page and Hoadley is evident. This difference in culpability permits the imposition of different sentences for joint actors involved in the commission of the same offense. As the circuit court noted, Page was no follower in the commission of this crime. At Page's sentencing, the judge remarked, “There may have been a follower out there that day, but it wasn't you. You and Piper were two of a kind.”

The circuit court found as fact that Hoadley was remorseful for his actions and we have no reason to conclude to the contrary. Page gave a statement of remorse to the circuit court and the Poage family just prior to his sentencing.FN24 In contrast to this statement, outside the courtroom during this period of time, Page seemed to relish discussing the murder and made threats against other prisoners and guards.FN25 Had Hoadley been absent that fateful day, there is nothing in the record to indicate that the torture/murder of Poage would not have taken place anyway. Piper and Page jointly planned and initiated it. On the other hand, if Page had not been present that day, there is no evidence to indicate that Hoadley would have planned and executed the murder, especially in the brutal manner in which it was committed. Moreover, Poage's few opportunities at escape were blocked by Page with no assistance from Hoadley. As the circuit court noted just prior to passing sentence:

FN24. Page stated just prior to his sentencing: I know I'm the last-I'm one of the last people you would want to hear from, but please let me say this to you. It may not mean anything to you, but I feel I owe at least this one thing. This is very hard for me, but I will do the best I can. Here it goes: I am sorry for what I did. I wish I could explain how sorry I am. I know that doesn't make up for what I did. I also know that nothing I do will make up for what I did. I don't expect you to forgive me; God knows I wouldn't forgive me. I'm sure you would like an explanation of why I did what I did. I can't speak for the other two, but for myself, personally, I cannot give you an answer to that question because I honestly don't know why I did it. I know that I did was wrong. I feel like the biggest piece of shit for it, and I hope I get what I deserve. I don't know what else to say. I don't expect you ever to forgive me, but I just want you to know that my apology is here. And please don't hate my family and friends for what I did. If you hate anybody, hate me.

FN25. At the sentencing hearing Page's cellmate, Eric Ollila, testified that he was Page's cellmate for seven days and that Page talked about the details of the murder each day. Page also talked daily to the other twelve prisoners in that cellblock about the crime. Page spoke of the details in a nonchalant or matter-of-fact manner with no emotion or regrets. During these numerous conversations, Page also failed to show any remorse or sympathy for Poage's family. Page's only concern was for himself and that he hoped he would not get the death penalty. When Page suspected that Ollila had been interviewed by the DCI about these conversations, Page threatened Ollila.

By your own admission, the kidnapping and killing of Allan took maybe two hours or more. You had lots of chances to change your mind and back out. Had you dropped the gun on the floor and headed out the door and ran down the street, I doubt if Piper would have chased you down. I doubt if he would have gone through with the plan, knowing that a key witness was now on the loose. You had chances to spare Allan's life.

Nor has Page's indifference to committing murder and other felonious acts of violence apparently been abated. He remains a threat to prison guards, especially female ones,FN26 and anyone who would have the potential to come into contact with him.

FN26. While in jail after the killing, Page wrote in a letter that he threatened to sodomize a female jail guard and also wrote “I hope she reads this.”

Hoadley had a terrible upbringing. Unfortunately so did Page. The circuit court noted this at sentencing when it observed “[y]our early years must have been a living hell. Most people treat their pets better than your parents treated their kids.” Page was in and out juvenile institutions that in the end unfortunately did not solve his inability to properly live in society. By the time he arrived in Spearfish, Page was active in the illegal drug and criminal cultures. While he initially came to Spearfish to live with members of a church that took him into their home and provided him with a job in an attempt to break his downward cycle of life, Page's circumstances and behaviors soon changed for the worse. While some of the previous individual criminal claims involving Page are subject to evidentiary question, his overall personality traits are not.FN27

FN27. The circuit court entered the following findings of fact on Page's background:

Defendant Page has a long history of involvement with the court systems, and he has lived in a series of foster homes and juvenile detention centers as a result of his burglaries, car thefts and anti-social behavior. Defendant Page has been placed in a series of juvenile detention facilities that have designed programs to benefit him. Defendant Page has consistently run away from these facilities and programs.

As early as March 1997, psychologists and psychiatrists noted that Defendant Page was exhibiting sociopathic traits. These traits included, uncontrollable aggression, lack of remorse and an absence of conscience. Defendant Page has a long history of not taking responsibility for his actions and anger control.

The Ozanam Boys Home in the State of Missouri found Defendant Page had made absolutely no progress while in their treatment facility, and that he exhibited no commitment whatsoever in any type of change in his antisocial behaviors. He repeatedly ran away from their facility, he was defiant, and alienated to all forms of discipline. He showed no ability to take responsibility for his behavior and blamed other people for his situation.

We observed in Rhines I: “[A] death sentence should not be invalidated simply because a jury determined that another defendant, who committed an analogous crime, deserved mercy. Proportionality review focuses not only on the crime, but also on the defendant.” 1996 SD 55, ¶ 206, 548 N.W.2d at 457 (citing SDCL 23A-27A-12(3); State v. Benn, 120 Wash.2d 631, 845 P.2d 289, 317 (1993)) (holding “[s]imply comparing numbers of victims or other aggravating factors may superficially make two cases appear similar, where in fact there are mitigating circumstances in one case to explain either a jury's verdict not to impose the death penalty or a prosecutor's decision not to seek it.”) (quoting State v. Lord, 117 Wash.2d 829, 822 P.2d 177, 223 (1991), cert. denied, 510 U.S. 944, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993)). The record shows Page's conduct and general culpability for the murder of Poage, including the particularly heinous aggravating circumstances, was not the same as Hoadley's. Therefore, under our analysis as set forth in Bonner, the circumstances of Page's case do not suggest gross disproportionality in light of Hoadley's sentence.

Affirmed.

KONENKAMP and ZINTER, Justices, concur.

SABERS and MEIERHENRY, Justices, dissent.

SABERS, Justice (dissenting).
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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