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State v. Moeller8/30/2000
closing arguments. Any argument that this issue is insignificant is zany at best. It might have been insignificant in Moeller I in view of the fact it was not a major point, but there must have been some significance of the testimony in Moeller II -- otherwise, why would this expert's testimony have focused on the rarity of gahnite in Moeller II.
[ ] 12. Whether Moeller's sentence of death was lawfully imposed.
[ ] I again adopt my dissent filed in State v. Rhines, 1996 SD 55, 548 NW2d 415.
[ ] This is an ominous task to undertake based upon the end result of proportionality review. In performing this statutorily mandated function, this Court has to determine whether or not the death sentence in South Dakota is being disproportionately imposed in similar cases. I submit that the awesome responsibility of this Court in performing such a review requires that we consider a much more extensive universe of cases then contained in the majority opinion. An example being, State v. VanEngel, CR91-2045, which is a case in our judicial system where the defendant was charged with the murder, kidnapping and rape of a twelve-year old Argus Leader newspaper carrier and was ultimately sentenced to life imprisonment. Therefore, in order to really determine whether the death sentence is being disproportionately applied in South Dakota, all cases eligible for the death penalty have to be reviewed to determine if the death penalty in South Dakota is being imposed fairly and uniformly and not in an arbitrary fashion.
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