Chapman v. Commonwealth, 265 S.W.3d 156
(2007) (Direct Appeal).
Background: Defendant pled guilty in the Circuit
Court, Boone County, Anthony Frohlich, J., to two counts of capital
murder and related offenses, and after volunteering for the death
penalty, was sentenced to death. Defendant appealed.
Holdings: The Supreme Court, Minton, J., held that:
(1) death sentence imposed on defendant was not imposed under
influence of passion, prejudice or any other arbitrary factor, nor was
it excessive or disproportionate to penalties imposed in similar
cases, considering both the crime and the particular defendant;
(2) defendant's constitutional right to proceed pro se was not
violated when trial court exercised its discretion to appoint as
standby counsel the attorneys defendant had recently fired;
(3) trial court properly refused to consider mitigation evidence
tendered by standby counsel during sentencing hearing;
(4) as an issue of first impression, a competent criminal defendant is
entitled to plead guilty to a capital offense and, furthermore, to
seek to receive the death penalty;
(5) record supported finding that trial court, after accepting
defendant's guilty plea, sentenced defendant to death because the
court believed that the death penalty was an appropriate punishment,
rather than because the judge believed he was required mechanically to
impose sentence because that was the punishment called for in plea
agreement;
(6) defendant was mentally competent to plead guilty, seek the death
penalty, waive jury sentencing, and forgo the presentation of
mitigating evidence in penalty phase; and
(7) trial court's failure to require defendant to recite at length his
involvement in the offenses to which he plead guilty to in order to
establish a factual basis for plea did not constitute reversible
error. Affirmed.
Opinion of the Court by Justice MINTON
I. INTRODUCTION.
During the course of robbing Carolyn Marksberry,
Marco Allen Chapman raped and stabbed her before stabbing her three
small children, killing two of them. Appearing in circuit court to
answer for these brutal crimes, Chapman made an unusual plea agreement
with the Commonwealth in which he agreed to plead guilty and
volunteered for the death penalty. The circuit court ultimately
accepted the plea agreement and sentenced Chapman to death.
The case before us is the review of Chapman's
conviction and sentence in which we are asked to resolve several
questions concerning the death penalty in Kentucky. The ultimate
question is whether a defendant may enter into a plea agreement to
forgo a jury trial and sentencing and volunteer for the death penalty.
We answer that question in the affirmative.
II. FACTS AND PROCEDURAL HISTORY.
The facts of this heinous crime are not disputed.
In August 2002, Chapman entered Marksberry's home in Gallatin County,
Kentucky, where he raped and stabbed Marksberry, who survived. He then
stabbed Marksberry's three young children. Cody and Chelbi died.
Courtney survived.
Chapman was quickly apprehended in West Virginia.
He told the West Virginia authorities FN1 that he was “gonna go get
some party materials and park out in the woods somewhere and die.”
Chapman also asked one of the policemen: “[H]ow about doing me a favor
and put a bullet in my forehead [?]” He told the authorities that he
hoped he would not live three weeks to turn thirty-one and that “[a]
bullet is the only help I can get.” FN1. The trial court denied
Chapman's motion to suppress the statements he made to the West
Virginia authorities; that ruling has not been challenged in this
appeal.
Chapman provided the West Virginia authorities with
many of the chilling details of his crimes against the Marksberrys. He
claimed that he and Marksberry had been involved in a sexual
relationship for about a year, and he knew that her husband was
working overseas. Chapman stated that he came to Marksberry's home on
the day in question armed with a knife. He planned to have sex with
her and to rob her afterwards. He said that they had consensual sex
but then she had “raised all kinds of hell” when he told her that he
was going to take money from her. Chapman told the authorities that he
bound Marksberry with a vacuum cleaner cord and gagged her with duct
tape. Chapman said that he first stabbed Marksberry and then stabbed
her three screaming children.
Chapman was later indicted for two counts of
capital murder, two counts of attempted murder, one count of rape in
the first degree, one count of burglary in the first degree, one count
of robbery in the first degree, and one count of being a persistent
felony offender in the second degree. Chapman's appointed counsel
filed numerous pretrial motions, including a successful motion to
change venue from Gallatin to Boone County. During pretrial
proceedings, the trial court ordered Chapman to undergo the first of
three competency evaluations at the Kentucky Correctional Psychiatric
Center (KCPC). After the first evaluation, the trial court conducted a
hearing to determine Chapman's competency to stand trial. At that
hearing, Dr. Steven Free, a psychologist from KCPC, testified that
Chapman had a history of mental health-related issues. But Dr. Free
concluded that Chapman was competent to stand trial. And at the close
of that hearing, the trial court ruled that Chapman was competent to
stand trial.
Not long after the first competency ruling, Chapman
wrote a letter to the trial court in which he stated that he wanted to
dismiss his attorneys, waive a jury trial and sentencing, plead guilty
to all the charges, and be sentenced to death. In that letter, Chapman
expressed remorse for his crimes and stated that he was “willingly
ready to accept the sentence of death ... because ... that is the only
acceptable sentence for the crimes I have [committed] against the [Marksberrys]
and humanity itself.” The trial court then ordered Chapman back to
KCPC for a second competency evaluation.
Following the second evaluation by Dr. Free, the
trial court conducted a second hearing regarding Chapman's competency
to enter into the plea agreement. At that hearing, Dr. Free testified
that he believed Chapman was competent but expressed the thought that
Chapman's decision to fire his attorneys and to ask to be executed
could possibly change if he received mental health treatment. Chapman
also testified. So the trial court delayed ruling on Chapman's motion
to plead guilty; instead, it ordered Chapman back to KCPC “for a
period of thirty days for treatment and examination.”
A few weeks later, the trial court conducted a
third hearing on Chapman's competency. This time, Dr. Free testified
that Chapman had been given an antidepressant medication (Zoloft) at
KCPC resulting in little to no change in Chapman's mental health. Dr.
Free again opined that Chapman was not incompetent. The trial court
then ruled that Chapman was competent to fire his attorneys, to plead
guilty, and to seek death. Final sentencing was set for the following
week. Over the objections of both Chapman and his former attorneys,
the trial court appointed the same attorneys Chapman fired to act as
his standby counsel.
At the final sentencing hearing, the Commonwealth
presented brief testimony to establish the essential underlying facts
of the case, including testimony by Marksberry. The trial court
reiterated to Chapman its belief that Chapman was making a mistake in
firing his attorneys and waiving his right to jury sentencing and/or
trial. But the trial court acknowledged to Chapman that there was no
legal authority preventing him from pleading guilty and seeking death.
The trial court observed that rejecting the death sentence in the plea
agreement would likely prompt Chapman to withdraw his guilty plea only
to ask a jury to sentence him to death. The trial court then stated
that it had read a psychological report delivered to chambers by
standby counsel containing mitigation evidence. The trial court made
clear that it had considered the content of the report for Chapman's
competency. The trial court stated that it had not considered the
mitigation evidence because Chapman did not want to present any
mitigation evidence.
The trial court then sentenced Chapman to death for
the murder of Cody and Chelbi, twenty years' imprisonment on each
attempted murder conviction, life imprisonment for his rape conviction,
twenty years' imprisonment for his robbery conviction, and twenty
years' imprisonment for his burglary conviction. The attempted murder
convictions, the burglary conviction, and the robbery convictions were
enhanced to sentences of life imprisonment due to Chapman's status as
a persistent felony offender in the second degree. In the trial
judge's mandatory report, the trial judge stated that “[t]he issue the
[Kentucky Supreme] Court should review is whether a defendant can
enter into a plea agreement and negotiate for the death penalty.” The
Department of Public Advocacy then filed this appeal on Chapman's
behalf.FN2
FN2. See Kentucky Revised Statutes (KRS)
532.075(1). (“Whenever the death penalty is imposed for a capital
offense, and upon the judgment becoming final in the Circuit Court,
the sentence shall be reviewed on the record by the Supreme Court.”)
For simplicity's sake, this opinion will refer to the arguments
advanced on Chapman's behalf as being advanced by Chapman himself.
III. CHAPMAN'S ISSUES ON APPEAL.
Chapman raises several arguments, many of which are
so interconnected that we will combine them in our analysis:
1) The death penalty is unconstitutional;
2) Lethal injection and electrocution violate the Eighth Amendment to
the United States Constitution's prohibition against the imposition of
cruel and unusual punishments;
3) This Court's method of conducting a proportionality review of death
sentences is unconstitutional;
4) Chapman's death sentence is arbitrary and disproportionate;
5) Residual doubt bars Chapman from receiving the death penalty;
6) Chapman's due process rights were violated when the aggravators
that made him death-eligible were not set forth in the indictment;
7) The trial court erred by requiring the same attorneys Chapman had
already fired to serve as standby counsel since those attorneys
disagreed with his stated goal of seeking the death penalty;
8) The trial court erred by refusing to consider certain mitigating
evidence ( i.e., a psychologist's report detailing Chapman's history
of mental health-related issues, including a history of physical and
substance abuse) tendered by his standby counsel;
9) The Commonwealth's Attorney acted improperly by negotiating a plea
agreement with Chapman himself during the time period when Chapman was
still represented by counsel;
10) The trial court should have used a more stringent competency
standard in light of Chapman's history of abuse and of mental health-related
issues;
11) This Court should not permit Chapman to commit “suicide by court”;
and
12) Chapman's convictions and sentence should be reversed under the
cumulative error doctrine.
IV. ANALYSIS.
A. The Death Penalty is Not Unconstitutional.
This issue, along with others, is unpreserved.
Nevertheless, we review unpreserved errors in death penalty cases,
using the following standard: “(1) whether there is a reasonable
justification or explanation for defense counsel's failure to object,
e.g., whether the failure might have been a legitimate trial tactic;
and (2) if there is no reasonable explanation, whether the unpreserved
error was prejudicial, i.e., whether the circumstances in totality are
persuasive that, minus the error, the defendant may not have been
found guilty of a capital crime, or the death penalty may not have
been imposed.” FN3 We have repeatedly ruled that Kentucky's death
penalty statute is not unconstitutional,FN4 and Chapman has presented
nothing new which causes us to change that conclusion. FN3. Johnson v.
Commonwealth, 103 S.W.3d 687, 691 (Ky.2003).
FN4. See, e.g., Thompson v. Commonwealth, 147 S.W.3d
22, 55 (Ky.2004) (“Appellant asks this Court to declare Kentucky's
death penalty statute unconstitutional. The constitutionality of the
death penalty statute is well settled. Appellant's assertion that
Kentucky's death penalty statute operates in a discriminatory and
arbitrary fashion is without merit.” (footnote omitted)).
B. Lethal Injection and Electrocution are Not
Cruel and Unusual Punishments Forbidden by the Eighth Amendment.
We have consistently held that neither lethal
injection nor electrocution is an unconstitutional violation of the
Eighth Amendment's proscription against cruel and unusual
punishment,FN6 and Chapman has not presented anything causing us to
doubt that conclusion.
FN6. Wheeler v. Commonwealth, 121 S.W.3d 173, 186 (Ky.2003)
( “Wheeler argues that the death penalty is unconstitutional under the
federal and Kentucky constitutions because the method used to carry
out the sentence, lethal injection, is cruel and unusual punishment.
Wheeler's claim that lethal injection is a violation of the Eighth
Amendment against cruel and unusual punishment is without any case law
support from Kentucky or elsewhere.... Certainly, it is not cruel and
unusual punishment. Death by electrocution also does not violate
either federal or Kentucky law. Stanford v. Kentucky, 492 U.S. 361,
109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). Wheeler has also failed to
demonstrate that either method of execution conflicts with any
societal norms.”); see also Baze v. Rees, 217 S.W.3d 207, 211-12 (Ky.2006);
Epperson v. Commonwealth, 197 S.W.3d 46, 64 (Ky.2006), cert. denied
--- U.S. ----, 127 S.Ct. 1840, 167 L.Ed.2d 337 (2007).
C. This Court's Method of Proportionality Review
is Constitutional, and Chapman is Not Entitled to Data Collected Under
KRS 532.075(6).
KRS 532.075(3)(c) requires this Court to determine
“[w]hether the sentence of death is excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime and
the defendant.” Chapman contends that our proportionality review is
flawed because our review encompasses only cases in which the death
penalty is imposed, rather than allegedly “similar” cases in which the
defendant was not sentenced to death. We have rejected such claims
that our method of proportionality review is constitutionally flawed,
FN7 and Chapman's counsel have not presented us with compelling
reasons to change that conclusion.
FN7. See, e.g., Sanders v. Commonwealth, 801 S.W.2d
665, 683 (Ky.1990); Epperson, 197 S.W.3d at 63-64 (“This Court on many
occasions has determined that the proportionality review it conducts
is in conformity with KRS 532.075(3) and is constitutional. Under all
the circumstances of this case, the death penalty is entirely
appropriate, the proportionality review conducted by this Court does
not violate due process or equal protection of either the Federal or
State Constitution.” (internal citations omitted)); Harper v.
Commonwealth, 694 S.W.2d 665, 671 (Ky.1985) (“The Public Advocate has
the curious idea that we consider all previous cases which were tried
or could have been tried as capital cases. This is a mistaken belief.
KRS 532.075(6) refers to records of all felony offenses in which the
death penalty was imposed after January 1, 1970, or such earlier date
as the court may deem appropriate.”); see also, e.g., State v. Davis,
63 Ohio St.3d 44, 584 N.E.2d 1192, 1198 (1992) ( “As our final task,
we have undertaken a comparison of the sentence in this case to those
in which we have previously imposed the death penalty. We find
appellant's death sentence to be appropriate in this case, as it is
neither excessive nor disproportionate.”) (emphasis added).
We, likewise, reject Chapman's claim that our
proportionality review is constitutionally infirm because we do not
provide defense counsel with access to the data we compile in death
penalty cases under KRS 532.075(6). FN8 We have rejected this argument
many times,FN9 and Chapman's counsel have not presented us with a
compelling reason to reconsider that holding.
FN8. KRS 532.075(6) provides as follows:
The Chief Justice shall assign to an administrative assistant who is
an attorney the following duties: (a) To accumulate the records of all
felony offenses in which the death penalty was imposed after January
1, 1970, or such earlier date as the court may deem appropriate. (b)
To provide the court with whatever extracted information it desires
with respect thereto, including but not limited to a synopsis or brief
of the facts in the record concerning the crime and the defendant. (c)
To compile such data as are deemed by the Chief Justice to be
appropriate and relevant to the statutory questions concerning the
validity of the sentence.
FN9. See, e.g., Epperson, 197 S.W.3d at 63 (“The
concerns expressed by Epperson about his inability to access the data
are without merit. This Court does not use any secret data, but simply
compares one death penalty case with all the other cases in which the
death sentence was imposed after January 1, 1970.”); Harper, 694 S.W.2d
at 670-71 (“For some reason, obscure to us, the Public Advocate keeps
insisting on access to the data collected by this court under the
provisions of KRS 532.075(6). We had thought that [ Ex Parte Farley,
570 S.W.2d 617 (Ky.1978) ], settled this question. There is no
articulated reason why the Public Advocate cannot assemble this data
for use in capital cases We state in our opinions all matters
considered by us, and in no way are mysterious and secret records or
data taken into account in our deliberations. The time and effort
expended in arguing this point would suffice to compile all the data
we consider.”); Stopher v. Commonwealth, 57 S.W.3d 787, 807 (Ky.2001)
(“Failure to provide access to data collected by this Court pursuant
to KRS 532.075(6) did not deny Appellant due process of law.”).
D. Chapman's Death Sentence is Not
Disproportionate.
Although Chapman's case is unique in that he
actively sought to receive the death penalty as a punishment for his
offenses, we have, nevertheless, engaged in the proportionality review
required by KRS 532.075(3). Chapman brutally stabbed two innocent
children to death, meaning that his sentence of death certainly is not
disproportionate to his brutal and abhorrent crimes. FN10 Based on our
review of the record, the sentence of death was not imposed under the
influence of passion, prejudice, or any other arbitrary factor. There
was ample evidence to support the finding of the statutory aggravating
factors, such as causing intentional multiple deaths and causing those
deaths during the commission of other felony offenses, burglary and
robbery. We have also reviewed all relevant cases decided since 1970
in which the death penalty was imposed, particularly those in which a
defendant was sentenced to death for multiple intentional murders.FN11
In short, our review has led us to conclude that “the sentence of
death here was not excessive or disproportionate to the penalties
imposed in similar cases considering both the crimes and the
defendants.” FN12
FN10. See, e.g., Johnson, 103 S.W.3d at 698 (“Considering
the extremely brutal nature of the murder at issue here, it cannot be
said that the penalty Appellant received was inappropriate.”). FN11.
Rather than belaboring this opinion with a string cite containing the
cases we examined during the course of our proportionality review, we
incorporate by reference the list found in Hodge v. Commonwealth, 17
S.W.3d 824, 855 (Ky.2000). We have incorporated that list in other
cases, such as Parrish v. Commonwealth, 121 S.W.3d 198, 208 (Ky.2003).
We have also reviewed the applicable cases rendered after Hodge. FN12.
Epperson, 197 S.W.3d at 64.
E. Residual Doubt Does Not Bar Chapman's Death
Sentence.
Chapman contends that residual doubt, mainly
concerning his competency, bars him from receiving the death penalty.
We will discuss the issue of Chapman's competency in detail elsewhere
in this opinion, but we see no reason to depart from our consistent
holding that residual doubt plays no role in appellate review.FN13
FN13. See, e.g., Tamme v. Commonwealth, 973 S.W.2d
13, 40 (Ky.1998); Epperson, 197 S.W.3d at 65 (“The United States
Supreme Court and this Court have held that residual doubt is not a
mitigating circumstance for the death penalty. See Franklin v. Lynaugh,
487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), accord Tamme v.
Commonwealth, supra. A finding of guilt as to aggravating
circumstances in a death penalty case is considered under the
reasonable doubt standard. Here, the evidence presented was sufficient
to establish guilt beyond a reasonable doubt so as to meet the legal
standards and constitutional requirements.”).
F. Chapman's Indictment is Not Defective Because
it Fails to Enumerate the Aggravators that Made Him Eligible for the
Death Penalty.FN14. Chapman admits this issue is unpreserved.
Under Kentucky law, a person is not eligible to
receive the death penalty unless at least one of the statutory
aggravators set forth in KRS 532.025(2)(a) is found to apply.FN15
Chapman's indictment did not describe the aggravators the Commonwealth
believed made Chapman eligible to receive the death penalty. Instead,
the same day the indictment was filed by the Gallatin Circuit Clerk,
the Commonwealth filed a notice under KRS 532.025 that it was seeking
the death penalty.FN16 That notice set forth the aggravating
circumstances that the Commonwealth believed made Chapman eligible to
receive the death penalty. The Commonwealth cited as aggravators the
fact that Chapman's acts resulted in multiple intentional deaths and
that the murders occurred during the course of Chapman committing rape
in the first degree, robbery in the first degree, and burglary in the
first degree. Chapman now contends that his constitutional rights were
violated because the indictment did not contain those aggravators.
FN15. See KRS 532.025(3) (“In all cases unless at
least one (1) of the statutory aggravating circumstances enumerated in
subsection (2) of this section is so found, the death penalty, or
imprisonment for life without benefit of probation or parole, or the
sentence to imprisonment for life without benefit of probation or
parole until the defendant has served a minimum of twenty-five (25)
years of his sentence, shall not be imposed.”).
FN16. KRS 532.025(1)(a) provides that the
Commonwealth may introduce at a capital sentencing hearing “only such
evidence in aggravation as the state has made known to the defendant
prior to his trial....”
We have rejected arguments along these lines many
times before, FN17 and we have been shown no compelling reason to
depart from that settled position. FN17. See, e.g., Soto v.
Commonwealth, 139 S.W.3d 827, 841-43 (Ky.2004); Ernst v. Commonwealth,
160 S.W.3d 744, 752 (Ky.2005) ( “Finally, although Appellant argues
that the indictment did not set forth the essential elements of the
capital kidnapping offense, we also note that the indictment is not
required to recite the aggravating circumstance necessary to seek
capital punishment so long as the Commonwealth satisfies the notice
requirement in KRS 532.025(1)(a).”).
G. The Trial Court Did Not Err When it Appointed
Chapman's Recently-Terminated Counsel as Standby Counsel.
Chapman argues that the trial court erred by
appointing standby counsel for him over his objection. He argues that
the trial court compounded its error by agreeing to the Commonwealth's
suggestion that Chapman's recently-fired attorneys should be ordered
to stay on as standby counsel over the objections of Chapman and the
attorneys. The Commonwealth contends that the appointment of standby
counsel is a practice endorsed by this Court to advance, not to hinder,
a pro se defendant's interests. Unfortunately and inexplicably,
however, the Commonwealth does not substantively address Chapman's
counsel's contention that an attorney recently fired by a defendant
should not be forced to be standby counsel for that same defendant.
A criminal defendant has a constitutional right to
be represented by counsel.FN18 “Conversely, a defendant also has a
state and federal constitutional right to proceed without a lawyer.”
FN19 But a defendant's right to proceed without a lawyer is not
absolute.FN20 For example, a trial court must hold a hearing to ensure
that a defendant's waiver of counsel has been made voluntarily and
intelligently.FN21 And a defendant's choice to waive counsel must be
competently made.FN22 The standard for determining a defendant's
competency to waive counsel is the same standard used to determine if
a defendant is competent to stand trial. FN23
FN18. See, e.g., Ky. Const. § 11 (“In all criminal
prosecutions the accused has the right to be heard by himself and
counsel....”); Hill v. Commonwealth, 125 S.W.3d 221, 225 (Ky.2004) (“The
right to counsel is protected by the Sixth Amendment to the United
States Constitution and was firmly established in the seminal case,
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963). Section 11 of the Constitution of Kentucky independently
recognizes the importance of counsel to assist the defendant in a
criminal trial. We have held that ‘[t]he right to counsel is a
fundamental constitutional right.’ [ Jenkins v. Commonwealth, 491 S.W.2d
636, 638 (Ky.1973) ].”). FN19. Hill, 125 S.W.3d at 225. FN20. Martinez
v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S.
152, 161, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). FN21. Id. at 528 U.S.
162, 120 S.Ct. 684. FN22. Commonwealth v. Berry, 184 S.W.3d 63, 65 (Ky.2005)
(“A defendant's choice to represent himself must be competent and
intelligent.”). Chapman's competency is discussed at length elsewhere
in this opinion. FN23. Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct.
2680, 125 L.Ed.2d 321 (1993) (“Nor do we think that a defendant who
waives his right to the assistance of counsel must be more competent
than a defendant who does not, since there is no reason to believe
that the decision to waive counsel requires an appreciably higher
level of mental functioning than the decision to waive other
constitutional rights.”).
Most important to this issue is the precedent
holding that a trial court may appoint standby counsel for a defendant
even if the defendant objects to such an appointment.FN24 So we reject
Chapman's contention that the trial court committed a per se error by
appointing standby counsel over his objection. But the real question
is: Did the trial court err when it appointed as standby counsel the
very attorneys it had just allowed Chapman to fire?
FN24. Martinez, 528 U.S. at 162, 120 S.Ct. 684 (“A
trial judge may also terminate self-representation or appoint ‘standby
counsel-even over the defendant's objection-if necessary.”); accord
Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975) ( “Of course, a State may-even over objection by the
accused-appoint a ‘standby counsel’ to aid the accused if and when the
accused requests help, and to be available to represent the accused in
the event that termination of the defendant's self-representation is
necessary.”); McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944,
79 L.Ed.2d 122 (1984) (“A defendant's Sixth Amendment rights are not
violated when a trial judge appoints standby counsel-even over the
defendant's objection-to relieve the judge of the need to explain and
enforce basic rules of courtroom protocol or to assist the defendant
in overcoming routine obstacles that stand in the way of the
defendant's achievement of his own clearly indicated goals.”).
The parties' briefs have not cited to a case in
which a recently-fired attorney was appointed as standby counsel over
the objection of the pro se defendant. We have located cases where a
recently-fired attorney was appointed as standby counsel with the
defendant's apparent consent.FN25 Of course, the situation in the case
at hand is vastly different because Chapman explicitly stated that he
wanted no counsel at all and, furthermore, wanted different counsel if
the trial court was determined to appoint standby counsel. FN25. See,
e.g., State v. Wilson, 252 Neb. 637, 564 N.W.2d 241 (1997).
But we see distinct advantages for Chapman in the
appointment of these recently-fired attorneys. For example, these
attorneys were already familiar with the case, meaning that the case
could have gone forward quickly and easily if Chapman had later
withdrawn his request to proceed pro se. And although Chapman's
standby counsel informed the trial court of their moral and legal
objections to Chapman's desired course of conduct, Supreme Court Rule
(SCR) 3.130(1.2)(a)-(b) states that an attorney must defer to the
client's choice of whether to plead guilty and that an attorney's
representation of a client does not constitute an endorsement of that
client's social or moral viewpoint. FN26 We are aware that SCR
3.130(1.16)(b)-(c) permits an attorney to withdraw from representing a
client if the client persists upon pursuing an objective that the
attorney considers “repugnant or imprudent.” But counsel in this case
were not required to continue as Chapman's actual counsel of record-rather,
they were required to function in the limited role of standby counsel.
And we have held that an attorney whose client is pursuing an
objective the attorney finds repugnant may not withdraw if ordered to
remain on the case by the trial court.FN27
FN26. See St. Clair v. Commonwealth, 140 S.W.3d
510, 561 (Ky.2004) (“And, although counsel may have a basis to
withdraw if the defendant's decision constitutes the pursuit ‘of an
objective that the lawyer considers repugnant or imprudent,’ SCR
3.130-1.16(b)(3), counsel may not withdraw if the tribunal orders the
representation to continue.”); see also SCR 3.130(1.16)(c) (“When
ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.”).
FN27. SCR 3.130(1.2) provides, in relevant part, as
follows:(a) A lawyer shall abide by a client's decision concerning the
objectives of representation.... In a criminal case, the lawyer shall
abide by the client's decision, after consultation with the lawyer, as
to a plea to be entered, whether to waive jury trial and whether the
client will testify. (b) A lawyer's representation of a client,
including representation by appointment, does not constitute an
endorsement of the client's political, economic, social or moral views
or activities.
A newly-appointed standby counsel would have been
similarly obligated to assist Chapman in carrying out his stated
objective of seeking the death penalty regardless of whether that
attorney believed that objective to be either legally or morally
misguided. And appointment of “fresh” counsel may have worked to
Chapman's disadvantage since that counsel would not have been as
familiar with the facts and circumstances of the already two-year old
case, meaning that the likelihood of that attorney seeking a
continuance would have been greater, thereby thwarting Chapman's
stated aim of being sentenced to death simply and quickly. Moreover, a
defendant is not entitled to a specific court-appointed counsel of his
own choosing.FN28 Finally, the alleged communication breakdown and
irreconcilable differences between Chapman and his attorneys is belied
by the fact that Chapman continued to confer with them during the
sentencing hearing-after they had become standby counsel. When the
trial court asked Chapman if he waived the preparation of a sex
offender risk assessment, Chapman consulted his standby counsel before
answering. Also, the videotape of the sentencing shows Chapman
huddling with counsel at another point, although the substance of that
whispered conversation cannot be ascertained from the tape.
FN28. See, e.g., Baker v. Commonwealth, 574 S.W.2d
325, 326-27 (Ky.App.1978) (“The expression ‘counsel of one's own
choice’ drawn from the holding of the case in Powell v. State of
Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1931) does not mean
that an indigent defendant is entitled to the appointment of any
particular attorney.”); see also 21A Am.Jur.2d Criminal Law § 1248
(2007) (“Nor does a defendant have the right to standby counsel of his
or her own choosing.”).
We recognize that this case presented unique and
challenging issues for the trial court and counsel for both sides. We
further recognize that appointing a recently-fired attorney to act as
a defendant's standby counsel may not be wise or proper in all cases.
But because a trial court possesses the inherent authority to appoint
standby counsel for a pro se defendant-regardless of whether that
defendant wants standby counsel-and that counsel is obligated to
accede to the defendant's wishes regarding entry of a guilty plea,
waiver of jury trial, and similar major decisions of constitutional
importance, under the unique circumstances of this case, we do not
find that Chapman's constitutional right to be the captain of his own
ship was violated when the trial court exercised its discretion to
appoint the attorneys Chapman had recently terminated.
H. The Trial Court Did Not Err When it Refused
to Consider the Mitigation Evidence Tendered by Standby Counsel.
Just hours before sentencing, Chapman's standby
counsel delivered to chambers, under seal, a document that they asked
the trial court to consider as mitigation evidence. During the
sentencing hearing, the trial court mentioned that it had read the
document and had considered it for purposes of determining Chapman's
competency but that it had not considered its contents for mitigation
purposes because Chapman himself did not want to present mitigation
evidence. On review by this Court, Chapman contends that the trial
court's refusal to consider the tendered mitigation evidence is
contrary to KRS 532.025's requirement that a trial court “shall”
consider mitigation evidence in death penalty cases.FN29 Chapman also
contends that we should require amicus curiae to be appointed to
present mitigation evidence in cases like this where a defendant does
not want to present mitigation evidence.FN30
FN29. See KRS 532.025(1)-(2)(“(1)(a) Upon
conviction of a defendant in cases where the death penalty may be
imposed, a hearing shall be conducted. In such hearing, the judge
shall hear additional evidence in extenuation, mitigation, and
aggravation of punishment[;] ... (2) In all cases of offenses for
which the death penalty may be authorized, the judge shall consider,
or he shall include in his instructions to the jury for it to consider,
any mitigating circumstances or aggravating circumstances otherwise
authorized by law....”) (emphasis added).
FN30. See Hollaway v. State, 116 Nev. 732, 6 P.3d
987, 998 (2000) (Rose, C.J., concurring) (“I conclude that because the
State has a strong interest in protecting against arbitrary
implementation of the death penalty, a representative should be
appointed for sentencing to prevent such arbitrary imposition of the
death penalty. This representative would act as an amicus curiae and
investigate and present mitigating factors, thus fulfilling the
aforementioned statutory directives that safeguard against random and
arbitrary death sentences.”).
Unless the context of the statute requires a
different interpretation, which KRS 532.025 does not, it is clear that
the usage of the word “shall” in a statute denotes that something is
mandatory.FN31 And the presentation of mitigation evidence in a
capital murder case is a matter of great importance.FN32 So the trial
court was obligated to consider any properly submitted mitigation
evidence. But the document in question, a psychological report, was
not properly submitted mitigation evidence.
FN31. See KRS 446.010(30) (“ ‘Shall’ is mandatory....”).
FN32. Commonwealth v. Paisley, 201 S.W.3d 34, 36 (Ky.2006) (“The
establishment of mitigating circumstances at the penalty phase is of
the greatest importance when a defendant is facing the death penalty.”
( quoting Smith v. Commonwealth, 734 S.W.2d 437, 456 (Ky.1987) (Leibson,
J., dissenting))).
Once the trial court allowed Chapman to proceed pro
se, Chapman himself became the arbiter of what, if any, evidence he
wanted to offer, including a right to waive his right to present
mitigation evidence.FN33 It is clear that a defendant may refuse to
present mitigation evidence, even if his counsel advises him to the
contrary.FN34 And a pro se defendant proceeding with standby counsel
has the right to determine what role, if any, standby counsel will
perform.FN35 In other words once a defendant has validly waived his
right to counsel and is proceeding pro se, standby counsel may not
override that pro se defendant's wishes as to what evidence, if any,
will be presented on behalf of the defense. After all, it is the
defendant “who suffers the consequences if the defense fails.” FN36
This presupposes that the pro se defendant has been given all the
warnings regarding the waiver of presentation of mitigation evidence
set forth in St. Clair.FN37
FN33. See Soto, 139 S.W.3d at 855-56 (“The United
States Supreme Court has yet to address this particular issue; however,
many jurisdictions have upheld a defendant's right to voluntarily and
intelligently waive the presentation of mitigating evidence. E.g.,
United States v. Davis, 285 F.3d 378, 381 (5th Cir.2002), cert. denied,
537 U.S. 1066, 123 S.Ct. 618, 154 L.Ed.2d 555 (2002); Singleton v.
Lockhart, 962 F.2d 1315, 1322 (8th Cir.1992); Silagy v. Peters, 905
F.2d 986, 1008 (7th Cir.1990); Nelson v. State, 681 So.2d 252, 255 (Ala.Crim.App.1995);
People v. Bloom, 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698, 715
(1989); Hamblen v. State, 527 So.2d 800, 804 (Fla.1988); State v.
Dunster, 262 Neb. 329, 631 N.W.2d 879, 906 (2001); Colwell v. State,
112 Nev. 807, 919 P.2d 403, 406 (1996); State v. Ashworth, 85 Ohio St.3d
56, 706 N.E.2d 1231, 1236-37 (1999); State v. Arguelles, 63 P.3d 731,
753 (Utah 2003) ( [A] defendant's Sixth Amendment right to represent
himself and control the course of the proceedings carries with it the
right to choose how much-if any-mitigating evidence is offered.” (internal
quotation marks omitted))).
FN34. St. Clair, 140 S.W.3d at 560. FN35. See, e.g.,
Berry, 184 S.W.3d at 64 (“We also recognize hybrid representation, or
a defendant's ability to proceed pro se with standby counsel,
controlling counsel's role in the litigation.” (emphasis added)); see
also 21A Am.Jur.2d Criminal Law § 1249 (2007) (“However, a pro se
defendant is entitled to preserve actual control over the case he or
she chooses to present to the jury, and if standby counsel's
participation over the defendant's objection effectively allows
counsel to make or substantially interfere with any significant
tactical decisions, or to control the questioning of witnesses, or to
speak instead of the defendant on any mater of importance, this right
is eroded.... But if a defendant wishes standby counsel to be involved,
to render impromptu advice, or even appear before the court, the
defendant must authorize standby counsel to do so.”). FN36. Faretta,
422 U.S. at 820, 95 S.Ct. at 2533. FN37. 140 S.W.3d at 560-61.
In the case at hand, the trial court patiently
engaged in a thorough colloquy with Chapman regarding mitigation
evidence in general, as well as the specific mitigation evidence which
Chapman had the right to present. We reject Chapman's invitation to
require the appointment of an amicus curiae to present mitigation
evidence over a capital defendant's objection. And our holding
comports with the views expressed by other states.FN38 We find no
suggestion that Chapman authorized standby counsel to tender the
report allegedly containing mitigation evidence to the trial court. So
standby counsel exceeded the scope of their authority by tendering the
report to the trial court over Chapman's objection, meaning that the
document was not properly before the court.
FN38. See, e.g., Ashworth, 706 N.E.2d at 1237-38
(“In our view, a rule requiring the presentation of mitigating
evidence would be impossible to enforce. Even if the court attempted
to require an attorney to present mitigating evidence, it cannot force
an unwilling defendant to provide that evidence to his attorney.”);
Hamblen v. State, 527 So.2d 800, 804 (Fla.1988) (“We hold that there
was no error in not appointing counsel against Hamblen's wishes to
seek out and to present mitigating evidence and to argue against the
death sentence. The trial judge adequately fulfilled that function on
his own, thereby protecting society's interests in seeing that the
death penalty was not imposed improperly.”); People v. Bloom, 48
Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698, 718-19 (1989) (“A rule
requiring a pro se defendant to present mitigating evidence would be
unenforceable, as the court has no means to compel a defendant to put
on an affirmative defense.... The threat of appellate reversal would
be not merely ineffective but counterproductive. A knowledgeable
defendant desiring to avoid the death penalty could make a timely
request for self-representation under Faretta, supra, 422 U.S. 806, 95
S.Ct. 2525, 45 L.Ed.2d 562, and then decline to present any mitigating
evidence at the penalty phase, secure in the knowledge that any death
judgment would be reversed by this court, while a defendant genuinely
desiring death could circumvent the rule by presenting a bare minimum
of mitigating evidence. A rule so easily evaded or misused is clearly
unsound. The sanction of appellate reversal is not the answer, nor has
any alternative method been suggested to compel an unwilling defendant
to present an effective penalty defense.”); Wallace v. State, 893 P.2d
504, 509 (Okla.Crim.App.1995); see also Richard J. Bonnie, The Dignity
of the Condemned, 74 Va. L.Rev. 1363, 1368 (1988) (“Specifically, some
argue that attorneys should ignore the wishes of clients who prefer
execution so as not to frustrate the judicial obligation to assure
that death sentences are valid before they are carried out. In its
strongest version, this argument would obligate an attorney to defy
his or her client's wishes by undertaking the litigation directly or
by requesting the court to appoint an amicus curiae to do so. Thus,
this line of argument is fundamentally incompatible not only with
traditional conceptions of an attorney's duty to respect the autonomy
of a competent client, but also with prevailing preferences for
judicial restraint.” (internal footnote omitted) (emphasis added)).
We also reject Chapman's argument that his waiver
of mitigation evidence is rendered ineffective by our decision in Soto
v. Commonwealth. FN39 In Soto, we held that “the right to waive
mitigating circumstances during the penalty phase of a trial is
inherently different from the right to waive a defense inconsistent
with a claim of innocence during the guilt phase.” FN40 In Soto, a
defendant waived his right to present mitigation evidence involving an
extreme emotional disturbance (EED) claim, yet his attorney asked in
voir dire if the prospective jurors could consider EED as a mitigating
factor. On appeal, Soto claimed that he was entitled to a new trial
because his attorneys mentioned EED, despite his objections. On
appeal, we rejected Soto's claims of error. Soto, however, is readily
distinguishable and not controlling in the case at hand because, as we
expressly pointed out, the defendant in Soto “never asserted his right
to self-representation or expressed a desire to proceed pro se.” FN41
FN39. 139 S.W.3d 827 (Ky.2004). FN40. Id. at 857.
FN41. Id. at 856.
Likewise, Chapman's counsel's reliance on the
recent decision of the United States Supreme Court in Abdul-Kabir v.
QuartermanFN42 is misplaced. In Abdul-Kabir, a death-sentenced
petitioner contended in post-conviction proceedings that the trial
court's jury instructions prevented the jury from meaningfully
considering the mitigation evidence the petitioner had submitted.FN43
The Supreme Court agreed and remanded the case for further proceedings.
Obviously, the situation in Abdul-Kabir is vastly different from the
case at hand in that Abdul-Kabir actually introduced mitigation
evidence, yet the trial court's instructions prevented the jury from
meaningfully considering that important evidence. Chapman, however,
never sought to introduce mitigation evidence at all. So Abdul-Kabir
is not controlling. Perhaps the mitigation evidence tendered by
Chapman's counsel would have been beneficial in the trial court's
difficult decision about whether to sentence Chapman to death. But the
decision on whether to tender that evidence was Chapman's, not that of
standby counsel. We will not compel a competent capital defendant to
present mitigation evidence against that defendant's wishes. This view
is in accordance with that expressed by other courts. For example, in
Ashworth, the Ohio Supreme Court noted:
FN42. 550 U.S. 233, 127 S.Ct. 1654, 167 L.Ed.2d 585
(2007). FN43. Id. at 127 S.Ct. 1659 (“Petitioner Jalil Abdul-Kabir,
formerly known as Ted Calvin Cole, contends that there is a reasonable
likelihood that the trial judge's instructions to the Texas jury that
sentenced him to death prevented jurors from giving meaningful
consideration to constitutionally relevant mitigating evidence.” (footnote
omitted)).
Since Ashworth was competent to waive the
presentation of mitigation, the only question remaining is whether, in
spite of his waiver, there is some constitutional or statutory
requirement that compels the presentation of mitigating evidence. In
our view, a rule requiring the presentation of mitigating evidence
would be impossible to enforce. Even if the court attempted to require
an attorney to present mitigating evidence, it cannot force an
unwilling defendant to provide that evidence to his attorney. In Gray
v. Lucas (C.A.5, 1982), 677 F.2d 1086, the defendant steadfastly
maintained that he did not want anyone to testify on his behalf and
refused to identify any witnesses for the sentencing phase. The court
said that the refusal did not negate the attorney's duty to
investigate, but added that ‘the scope of that duty was limited by [the
defendant's] refusal.’ Id. at 1094. [ See also ] Hamblen v. State (Fla.1988),
527 So.2d 800, 804 (‘There is no power that could have compelled [the
defendant] to cooperate and divulge such information.’).
Society does have an interest in executing only
those who meet the statutory requirements and in not allowing the
death penalty statute to be used as a means of state-assisted suicide.
However, ‘[s]ociety's interest in the proper administration of justice
is preserved by giving a defendant the right freely to present
evidence in mitigation, by requiring the sentencing body to find
aggravating factors before imposing the death penalty, and by
requiring that a sentence of death be reviewed by this court. These
practices are to assure that the death penalty will not be imposed
arbitrarily.’ Hamblen, 527 So.2d at 804, quoting People v. Silagy
(1984), 101 Ill.2d 147, 181, 77 Ill.Dec. 792, 461 N.E.2d 415, 432.
Admittedly, the Eighth Amendment does impose a high
requirement of reliability on the determination that death is the
appropriate penalty in a particular case. See, e.g., Johnson v.
Mississippi (1988), 486 U.S. 578, 584, 108 S.Ct. 1981, 1986, 100 L.Ed.2d
575, 584; Mills v. Maryland (1988), 486 U.S. 367, [383-84], 108 S.Ct.
1860, 1870, 100 L.Ed.2d 384, 399. However, the United States Supreme
Court has never suggested that this requires or justifies forcing an
unwilling defendant to accept representation or to present an
affirmative penalty defense in a capital case.
‘Indeed, the lack of any legal or practical means
to force a [ ] defendant to present mitigating evidence, or indeed any
defense at all, compels the conclusion that the death-verdict-reliability
requirement cannot mean that a death verdict is unsound merely because
the defendant did not present potentially mitigating evidence. Rather,
the required reliability is attained when the prosecution has
discharged its burden of proof at the trial and penalty phases
pursuant to the rules of evidence and within the guidelines of a
constitutional death penalty statute[.] A judgment of death entered in
conformity with these rigorous standards does not violate the Eighth
Amendment reliability requirements.’ People v. Bloom (1989), 48 Cal.3d
1194, 1228, 259 Cal.Rptr. 669, 690, 774 P.2d 698, 719; People v.
Sanders (1990), 51 Cal.3d 471, [525-26], 273 Cal.Rptr. 537, [569-70],
797 P.2d 561, [593-94].) FN44
FN44. 706 N.E.2d at 1237-38.
Consequently, we find no error in the trial court's
refusal to consider the improperly tendered mitigation evidence at
hand.FN45
FN45. Cf. St. Clair, 140 S.W.3d at 560 (“Although
KRS 532.025 and KRS 532.055(2)(b) permit a defendant to introduce
mitigating evidence, the defendant, is ‘master of his own defense and
pilot of the ship[,]’ [ Jacobs v. Commonwealth, 870 S.W.2d 412, 418 (Ky.1994)
], and thus may elect to ignore the advice of his counsel and to waive
the presentation of mitigating evidence.”); see also Wallace, 893 P.2d
504 (holding that a defendant who sought to receive the death penalty
had the right to refuse to present mitigation evidence).
I. The Commonwealth's Attorney's Alleged Plea
Negotiations With Chapman While Chapman Was Represented by Counsel Do
Not Compel Reversal. FN46
FN46. Chapman admits this issue is unpreserved.
Chapman contends that the Commonwealth's Attorney
violated our Rules of Professional Conduct by negotiating a plea
agreement with him at a time when he was still represented by counsel.
Chapman is unable to cite to anything specific in the record to
support this serious allegation. Instead, Chapman merely contends that
the Commonwealth's Attorney must have had advance notice of Chapman's
request to plead guilty by virtue of the fact that the Commonwealth's
Attorney stated that she had recently spoken to Dr. Free and had
determined that Dr. Free would be available to reevaluate Chapman.
Chapman also inexplicably chastises the Commonwealth's Attorney for
“outlin[ing] for the trial court the steps it needed to take to
institute guilty plea proceedings[,]” and for quickly preparing for
Chapman's signature a lengthy motion to enter a guilty plea.
We agree with Chapman that an attorney must not
communicate directly about a pending case with a party the attorney
knows is represented by counsel. FN47 But Chapman has offered nothing
concrete to show that the Commonwealth's Attorney had improper contact
with him at a time when he was still represented by counsel.
Speculation and innuendo are not proper bases for an appellate court
to reverse a criminal conviction.
FN47. See SCR 3.130(4.2) (“In representing a client,
a lawyer shall not communicate about the subject of the representation
with a party the lawyer knows to be represented by another lawyer in
the matter, unless the lawyer has the consent of the other lawyer or
is authorized by law to do so.”).
Furthermore, nothing inherently improper occurred
when the Commonwealth's Attorney offered advice to the trial court
about the procedures necessary to effectuate Chapman's guilty plea,
nor did anything necessarily impermissible or unethical occur when the
Commonwealth's Attorney prepared plea agreement documents before the
trial court had formally accepted Chapman's plea.
We reject Chapman's argument to reverse this case
based upon what is, at best, speculation regarding the Commonwealth's
Attorney's alleged improper contact.
J. Chapman Was Competent to Plead Guilty and
Seek the Death Penalty.
Chapman contends that the competency standard for
pleading guilty and seeking the death penalty is higher than that
required of a typical defendant who wishes to plead guilty. And
Chapman contends that the trial court erred by using a less rigorous
standard of competency generally used to determine a defendant's
competency to stand trial. So we must first determine what competency
standard a trial court should use to determine whether a defendant is
competent to seek to receive the death penalty, and we then must
determine whether Chapman met that standard. In the course of
answering those ultimate questions, however, it will be necessary for
us to address several other related issues.
1. General Standards of Competency.
We begin with the unassailable proposition that a
defendant found to be incompetent to stand trial may not be “tried,
convicted or sentenced so long as the incompetency continues.” FN48
And the General Assembly has defined “incompetent to stand trial” to
mean that a defendant is incompetent if, “as a result of mental
condition, [the defendant lacks the] capacity to appreciate the nature
and consequences of the proceedings against one or to participate
rationally in one's own defense[.]” FN49 Although it recognized that
each state could adopt a more stringent standard, the United States
Supreme Court has “reject[ed] the notion that competence to plead
guilty or to waive the right to counsel must be measured by a standard
that is higher than (or even different from)” the standard normally
used to determine if a defendant is competent to stand trial.FN50
FN48. KRS 504.090; see also Godinez, 509 U.S. at
396, 113 S.Ct. at 2685 (“A criminal defendant may not be tried unless
he is competent.”). FN49. KRS 504.060(4); see also Dusky v. United
States, 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960) (holding
that the test of competency is “whether he [the defendant] has
sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding-and whether he has a
rational as well as factual understanding of the proceedings against
him.” (internal quotation marks omitted)). FN50. Godinez, 509 U.S. at
398, 113 S.Ct. at 2686.
A competency determination is based on the
preponderance of the evidence standard.FN51 We may disturb a trial
court's competency determination only if the trial court's decision is
clearly erroneous ( i.e., not supported by substantial evidence).FN52
FN51. Thompson, 147 S.W.3d at 32. FN52. Id. at 33
(“Little of this evidence places Appellant's competency in doubt and
most of it supports the trial court's ultimate ruling that Appellant
was competent to plead guilty. Thus, we conclude that the trial
court's ruling was supported by substantial evidence and, therefore,
was not clearly erroneous.”) ( citing United States v. Branham, 97
F.3d 835, 855 (6th Cir.1996), for the proposition that competency
determinations are findings of fact).
2. The Trial Court Did Not Err In Finding
Chapman Competent to Plead Guilty.
Although recognizing Chapman's history of substance
abuse and of suicidal thoughts, Dr. Free firmly and repeatedly
testified that Chapman was competent. Thus, the trial court's
conclusion that Chapman was competent to stand trial is supported by
substantial evidence. Accordingly, we find that the trial court was
not clearly erroneous when it held that Chapman was competent to stand
trial. We then must determine the correctness of the trial court's
decision that Chapman was competent to plead guilty.
As stated previously, the United States Supreme
Court has ruled that the same standard applies to a defendant's
competency to stand trial and a defendant's competency to waive
counsel and plead guilty. We find the following logic expressed by the
Court to be especially convincing: all criminal defendants-not merely
those who plead guilty-may be required to make important decisions
once criminal proceedings have been initiated. And while the decision
to plead guilty is undeniably a profound one, it is no more
complicated than the sum total of decisions that a defendant may be
called upon to make during the course of a trial.... This being so, we
can conceive of no basis for demanding a higher level of competence
for those defendants who choose to plead guilty. If the Dusky standard
is adequate for defendants who plead not guilty, it is necessarily
adequate for those who plead guilty. FN53. Godinez, 509 U.S. at
398-99, 113 S.Ct. at 2686.
In addition, Kentucky precedent supports a
conclusion that there is no heightened standard of competency required
in order to enter a guilty plea. FN54 Thus, we reject Chapman's
contention that a defendant seeking to plead guilty to any offense
must be held to a higher standard of competency than that generally
required of a defendant to stand trial.
FN54. Littlefield v. Commonwealth, 554 S.W.2d 872,
873 (Ky.App.1977) (“Kentucky has adopted the latter view, holding that
competence to plead guilty and competence to stand trial are subject
to the same strict standard.”); Thompson v. Commonwealth, 56 S.W.3d
406, 408 (Ky.2001) (“Under Kentucky law, the competency to plead
guilty and the competency to stand trial are identical.”).
Since we have found that the trial court did not
clearly err in finding Chapman competent to stand trial, it logically
follows that the trial court did not err in finding Chapman competent
to plead guilty. But that is not the end of our competency inquiry as
we now turn to the heart of this case: Chapman's contention that a
higher standard of competency is required for a defendant who wishes
to plead guilty in order to seek the death penalty than would apply to
a typical defendant who wishes to plead guilty in order to receive a
lesser sentence. In order to resolve that question, however, we must
first determine whether a defendant may ever plead guilty to a capital
offense in order to seek the death penalty.
3. A Defendant May Plead Guilty to a Capital
Offense In Order to Seek the Death Penalty.
Chapman contends that a defendant who seeks to
receive the death penalty is inherently incompetent. Chapman argues
that we should adopt the Arkansas position that a defendant may not
waive a jury trial on the issue of sentencing or guilt in a capital
case FN55 because a defendant who seeks to waive those constitutional
protections and seeks his own execution simply has not voluntarily and
intelligently FN56 waived his rights.FN57 We disagree.
FN55. See Newman v. State, 353 Ark. 258, 106 S.W.3d
438, 456-57 (2003) (“Arkansas Rule of Criminal Procedure 31.4
prohibits a defendant charged with capital murder from waiving either
a jury trial on the issue of guilt or the right to have his sentence
determined by a jury unless (1) the court determines the waiver is
voluntary and was made without compulsion or coercion, (2) the death
penalty has been waived by the State, and (3) the State has assented
to the defendant's waiver of his right to a jury trial, and such
waiver has been approved by the trial court.”). FN56. See Martinez,
528 U.S. at 161, 120 S.Ct. at 691 (“As the Faretta opinion recognized,
the right to self-representation is not absolute. The defendant must
voluntarily and intelligently elect to conduct his own defense[.]”) (internal
quotation marks omitted). FN57. See State v. Shank, 410 So.2d 232, 233
(La.1982) (“Moreover, a defendant's election to represent himself for
the purpose of acquiescing in his conviction of a capital offense and
in his death sentence cannot be sanctioned as an intelligent choice.”).
As noted earlier, in Kentucky, the death penalty is
a constitutionally permissible punishment for certain capital offenses.
And there is certainly nothing inherently unconstitutional about a
person deciding to take responsibility for his or her criminal
misconduct without having first undergone a full-blown trial.FN58
Adhering to a defendant's choice to seek the death penalty honors the
last vestiges of personal dignity available to such a defendant.FN59
Therefore, we hold that a competent criminal defendant is entitled to
seek to plead guilty to a capital offense and, furthermore, to seek to
receive the death penalty.FN60 Thus, we reject Chapman's argument that
the state's overriding interest in assuring that the death penalty is
meted out in a constitutionally permissible manner invariably
overrides a defendant's right to accept criminal responsibility for
his past misconduct. The safeguards contained in this opinion for a
defendant who pleads guilty to a capital offense in order to seek the
death penalty-such as ensuring that the defendant is competent, that a
factual basis exists to support the imposition of the death penalty,
and our proportionality review-amply protect the state's interests.
Indeed, the rights of citizens of a free society to make these types
of choices concerning their own future are essential to the proper
functioning of society as a whole,FN61 as well as our system of
criminal justice.FN62
FN58. See Barry J. Fisher, Judicial Suicide or
Constitutional Autonomy? A Capital Defendant's Right to Plead Guilty,
65 Alb. L.Rev. 181 (2001) (“However, in reviewing the history of the
capital guilty plea, Anglo-American law suggests that an across-the-board
prohibition against capital guilty pleas violates the fundamental
notion of due process. The right of an accused, even one facing the
death penalty, to plead guilty unconditionally to the charges against
him was explicitly recognized at common law. It has been widely and
almost uniformly acknowledged and honored by state and federal courts
since the Colonial period. Further, this right remains protected in
the statutes and court decisions of all states but Arkansas, Louisiana,
and New York.” (footnotes omitted)); Bonnie, 74 Va. L.Rev. at 1376 (“A
convicted prisoner does not become a pawn of the state. Even a
prisoner sentenced to death retains a constitutionally protected
sphere of autonomy-of belief, expression, and, to a limited extent,
action. The state is bound to respect a convicted prisoner's
inalienable freedom of conscience. He is free to admit his guilt and
to repent, just as he is free to proclaim his innocence in defiance of
the verdict under which he stands convicted. He is free to resign
himself to the social decree, acknowledging the justice of the
punishment, just as he is free to decry it. A condemned prisoner may
believe that the sentence of death is justly deserved and should be
carried out, notwithstanding the existence of doubts about its
validity. A condemned prisoner may prefer the unknowable fate of
execution to the known pains of imprisonment, the only option likely
to be available. As long as the prisoner is competent to make an
informed and rational choice, the argument for respecting this choice
would appear to be a powerful one.”).
FN59. See Alex Kozinski, Tinkering With Death, The
New Yorker, Feb. 10, 1997, at 48, 51 (“It has been said that capital
punishment is cruel and unusual because it is degrading to human
dignity.... But the dignity of human life comes not from mere
existence, but from that ability which separates us from the beasts-the
ability to choose; freedom of will When we say that a man-even a man
who has committed a horrible crime-is not free to choose, we take away
his dignity just as surely as we do when we kill him. Thomas Baal has
made a decision to accept society's punishment and be done with it. By
refusing to respect his decision, we denigrate his status as a human
being.”).
FN60. See e.g., Lenhard v. Wolff, 443 U.S. 1306,
1312-13, 100 S.Ct. 3, 61 L.Ed.2d 885 (Rehnquist, Circuit Justice 1979)
(“The idea that the deliberate decision of one under sentence of death
to abandon possible additional legal avenues of attack on that
sentence cannot be a rational decision, regardless of its motive,
suggests that the preservation of one's own life at whatever cost is
the summum bonum, a proposition with respect to which the greatest
philosophers and theologians have not agreed and with respect to which
the United States Constitution by its terms does not speak.”); Smith
v. State, 686 N.E.2d 1264, 1271 (Ind.1997) (holding that a defendant
could enter into a plea agreement which called for the defendant to
receive the death penalty); State v. Brewer, 170 Ariz. 486, 826 P.2d
783, 792 (1992) (“Defendant is not the first, and likely not the last,
person to plead guilty in a death penalty case. We cannot say he is
incompetent or prone to self-destructive impulses simply because he
desires to do so.” (internal footnote omitted)).
FN61. See, e.g., Minnick v. Mississippi, 498 U.S.
146, 167, 111 S.Ct. 486, 498, 112 L.Ed.2d 489 (1990) (Scalia, J.,
dissenting) (“While every person is entitled to stand silent, it is
more virtuous for the wrongdoer to admit his offense and accept the
punishment he deserves. Not only for society, but for the wrongdoer
himself, ‘admissio[n] of guilt ..., if not coerced, [is] inherently
desirable,’ because it advances the goals of both ‘justice and
rehabilitation’ ” (internal citations omitted)).
FN62. See, e.g., United States v. Willis, 75 F.Supp.
628, 630 (D.D.C.1948) (“The power of a court to accept a plea of
guilty is traditional and fundamental. Its existence is necessary for
the purpose of serving the practical ends of the administration of the
criminal law.”).
Furthermore, we decline to declare that a defendant
may not waive his right to have a jury fix his sentence. Such a
holding would appear to be in conflict with RCr 9.26,FN63 as well as
our previous recognition that a defendant has the concomitant right to
waive a trial by jury.FN64 We have not been cited to any authority
that moves us to find that a defendant loses the right to waive jury
sentencing simply because that defendant has pleaded guilty to a
capital offense. So we decline Chapman's invitation to join the
minority viewpoint found in Arkansas's ban on a defendant's right to
waive jury sentencing in a case involving the death penalty.
FN63. RCr 9.26(1) provides that “[c]ases required
to be tried by jury shall be so tried unless the defendant waives a
jury trial in writing with the approval of the court and the consent
of the Commonwealth.” FN64. Marshall v. Commonwealth, 60 S.W.3d 513,
522 (Ky.2001) (“It is now well settled that an accused, in the
exercise of a voluntary and intelligent choice, may waive his right to
a jury trial.”); see also 28 Am.Jur.2d Estoppel and Waiver § 213
(2007) (“As a general proposition, rights guaranteed by the state or
federal constitutions may be waived.”).
4. When a Defendant Pleads Guilty to a Capital
Offense and Seeks the Death Penalty, the Trial Court is Not Required
to Sentence the Defendant to Death.
Although we have held that a defendant is entitled
to enter into a plea agreement under which the defendant pleads guilty
to a capital offense and seeks the death penalty, it is vital for the
bench and bar of the Commonwealth to understand that our trial courts
are not obligated to accept those plea agreements. And we must assure
ourselves that the trial court in this case did not accept Chapman's
plea agreement simply because it believed that it was obligated to do
so.
Generally, the trial courts of the Commonwealth
have the discretion either to accept or to reject plea agreements.FN65
We find no reason to depart from that standard in situations where the
plea agreement calls for a defendant to receive the death penalty.
Thus, a trial court may treat a plea agreement calling for imposition
of the death penalty like other plea agreements-it must exercise
discretion to determine whether the plea agreement will be accepted or
rejected.
FN65. See Hoskins v. Maricle, 150 S.W.3d 1, 20-24 (Ky.2004).
No trial court, including the one in the case at
hand, is obligated to sentence a defendant to death simply because
that sentence is called for in the plea agreement. Sentencing a
defendant to death because the defendant volunteers to be executed is
improper and is an abuse of discretion. Rather, an acceptance (or
rejection) of a guilty plea is a decision that must be made on a
case-by-case basis. Before accepting any plea agreement, a trial court
must assure itself that the agreement is legally permissible and
represents an appropriate resolution and punishment for the crime(s)
to which the defendant seeks to plead guilty. Thus, a trial court
abuses its discretion by automatically accepting or rejecting a guilty
plea without first making the particularized and case-specific
determinations that the plea is legally permissible and, considering
all the underlying facts and circumstances, appropriate for the
offense(s) in question.
We must examine the record to assure that the trial
judge sentenced Chapman to death because the judge believed that death
was an appropriate sentence for Chapman's crimes and not because the
judge believed he was required mechanically to impose the sentence
called for in the plea agreement.
We have some concerns here because the trial court
commented at sentencing that since the death penalty was a
constitutionally permissible punishment for Chapman's capital offenses
and Chapman had decided to seek the death penalty of his own free will,
then a decision to reject Chapman's plea agreement could be construed
as an abuse of discretion. The trial court also generally commented to
the effect that rejecting the plea agreement would, essentially, be a
meaningless exercise because if it rejected the plea agreement,
Chapman would simply refuse to present evidence and would personally
ask the jury to sentence him to death.
Despite those concerns, we are satisfied that the
trial court in this case did, in fact, sentence Chapman to death
because the court believed that the death penalty was an appropriate
punishment for Chapman, not simply because that was the punishment
called for in Chapman's plea agreement. Our conclusion is based upon
the fact that the trial court (1) informed Chapman of the entire range
of punishment for his offenses (including punishments less than death);
(2) informed Chapman of the consequences if it rejected Chapman's plea
agreement (such as Chapman then having a right to withdraw his guilty
plea); (3) engaged in several patient and thorough colloquies with
Chapman in order to determine that Chapman was not incompetent and was
not seeking to plead guilty to expedite the proceedings against him
for an improper or irrational reason (such as getting out of solitary
confinement or getting away from being housed in the local jail); (4)
found both orally and in writing that numerous statutory aggravating
factors were present; and (5) wrote in the final judgment that it took
into account the testimony of Dr. Free, Chapman's history and
character, and the nature and circumstances of the crime, before
sentencing Chapman to death. Thus, we find that the record
demonstrates that the trial court sentenced Chapman to death based
upon its careful consideration of the unique nature and circumstances
of Chapman and his offenses.FN66 So we conclude that Chapman was not
sentenced to death merely because the trial court believed that the
plea agreement precluded other sentencing options.
FN66. Cf. Abdul-Kabir, 550 U.S. at ----, 127 S.Ct.
at 1674, 167 L.Ed.2d at ---- (“Our line of cases in this area has long
recognized that before a jury can undertake the grave task of imposing
a death sentence, it must be allowed to consider a defendant's moral
culpability and decide whether death is an appropriate punishment for
that individual in light of his personal history and characteristics
and the circumstances of the offense.”). Presumably, a judge must
consider the same factors before sentencing a defendant to death.
5. Chapman's Guilty Plea Was Not State-Assisted
Suicide.
We reject Chapman's related contention that a
defendant who pleads guilty in order to receive the death penalty is
committing state-assisted suicide. As previously noted, any guilty
plea in a capital case in which a defendant seeks to receive the death
penalty must be closely scrutinized to ensure that it protects the
constitutional rights of the defendant, as well as the Commonwealth's
interest in ensuring that the death penalty is not used to further a
defendant's suicidal motives. That scrutiny negates the possibility
that a defendant is using the capital punishment scheme as a method to
commit suicide.FN67 Thus, we refuse to issue a blanket holding that a
competent defendant's plea of guilty in which he seeks a legally
permissible sentence devolves into an unconstitutional plea because
the sentence sought by the defendant is death.FN68 And our review of
the record in this case, as demonstrated in this opinion, shows that
Chapman's plea was competently, knowingly, intelligently, and
voluntarily made. Furthermore, the death penalty is not a
disproportionate sentence for Chapman's heinous offenses. So Chapman's
plea is not an impermissible “suicide by court.”
FN67. See, e.g., State v. Passaro, 350 S.C. 499,
567 S.E.2d 862, 866 (2002) (“We disagree with appellate counsel's
argument that allowing an individual to plead guilty to murder, be
sentenced to death and waive his right to general appellate review is
tantamount to State assisted suicide.”); Bloom, 259 Cal.Rptr. 669, 774
P.2d at 715-16 (“Second, if the trier of penalty has determined death
to be the appropriate punishment, and the death judgment meets
constitutional standards of reliability, the judgment cannot
reasonably be regarded as the defendant's doing (other than by his
commission of the capital crimes) or its execution as suicide.”).
FN68. Bonnie, 74 Va. L.Rev. at 1375 (“The
prisoner's interest in controlling his own fate is often denigrated by
proponents of aggressive judicial review as amounting to nothing more
than ‘state-administered suicide.’ This is hyperbole, of course; only
if execution of a lawfully imposed death sentence amounts to homicide
is the state an agent of suicide when it executes a competent prisoner
who has declined to contest his death sentence.” (internal footnotes
omitted) (emphasis added)).
6. The Competency Standard to Be Used When a
Defendant Seeks the Death Penalty.
Having determined that it is generally permissible
for a defendant to plead guilty to a capital offense in order to seek
the death penalty and having determined that Chapman's plea is not
state-assisted suicide, we now must determine whether the specific
plea at issue in this case passes constitutional muster. In order to
make that assessment, Chapman argues that we (and any court presiding
over a case in which a defendant desires to plead guilty in order to
seek the death penalty) are required to apply the heightened
competency standard set forth by the United States Supreme Court in
Rees v. Peyton. FN69. 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583
(1966).
In Rees, a death-sentenced Rees sought habeas
corpus relief, which was denied by the trial and appellate courts.
Rees then consented to his attorney's filing a petition for certiorari,
but he later asked his attorney to withdraw the certiorari petition.
Rees was then subjected to psychiatric evaluations, after which one
psychiatrist opined that he was incompetent, while other psychiatrists
were unable conclusively to offer an opinion due to Rees's lack of
cooperation. Those psychiatrists “expressed doubts” that Rees was “insane.”
FN70. Rees, 384 U.S. at 313, 86 S.Ct. at 1506.
Before deciding whether Rees's certiorari petition
should be dismissed, the Supreme Court remanded the matter to the
district court to issue a report concerning Rees's competence. The
Supreme Court ordered the district court “to determine Rees'[s] mental
competence in the present posture of things, that is, whether he has
capacity to appreciate his position and make a rational choice with
respect to continuing or abandoning further litigation or on the other
hand whether he is suffering from a mental disease, disorder, or
defect which may substantially affect his capacity in the premises.”
FN71. Id. at 384 U.S. 314, 86 S.Ct. at 1506.
We agree that Rees is the standard of competency
the trial courts of this Commonwealth must use when a defendant
desires to plead guilty, waive jury sentencing and presentation of
mitigation evidence, and asks the trial court to be sentenced to death.
Although Rees involved the abandonment of post-conviction proceedings
and Chapman's request is pre-trial, this is essentially a distinction
without a difference. Pursuant to a guilty plea, the standard would be
“whether he has capacity to appreciate his position and make a
rational choice with respect to [pleading guilty, waiving jury
sentencing, waiving mitigating evidence, and seeking the death penalty]
or on the other hand whether he is suffering from a mental disease,
disorder, or defect which may substantially affect his capacity in the
premises”
7. Applying the Rees Standard, the Trial Court
Did Not Err When it Found Chapman Competent to Plead Guilty, Waive
Mitigation Evidence and Jury Sentencing, and Seek the Death Penalty.
In the case at hand, the trial court required
Chapman to undergo evaluation at KCPC three times, including twice
after Chapman expressed his desire to plead guilty and to seek death.
The purpose of the first evaluation was to evaluate whether Chapman
was competent to stand trial. Stewart H. Free, J.D., PhD., a licensed
psychologist, prepared a twenty page report dated September 15, 2004,
which explained the methodology used for evaluation and testing, and
the results of each test that was administered. Dr. Free's extensive
report concluded that:
The results of medical examination and
psychological testing suggested that Mr. Chapman does not suffer from
an organic impairment or brain damage. The results of the total
evaluation at KCPC suggested that Mr. Chapman does not suffer from a
thought disorder or psychotic dysfunction. Mr. Chapman was seen as
suffering from Polysubstance Dependence, from a long-standing
Dysthymic Disorder, and from symptoms of Post-Traumatic Stress
Disorder. Mr. Chapman was believed to suffer from a Personality
Disorder involving both Antisocial and Borderline Features. Mr.
Chapman was seen as competent to stand trial and as lacking
substantial grounds to argue an inability to bear criminal
responsibility. And, Mr. Chapman appears to be in need of counseling
to assist him to deal with his chronically depressed mood and his
post-traumatic symptoms. Such services could and should be provided in
the period prior to a disposition of his charges and thereafter. The
trial court found Chapman competent to stand trial and the parties
readied for trial.
The focus changed when Chapman wrote and sent a
four page letter to the trial court seeking to discharge his attorneys,
plead guilty, and seek the death penalty. Competency was again brought
to the forefront. The trial court sent Chapman back to KCPC for
another evaluation. Dr. Free again conducted the evaluation and
prepared a report dated October 20, 2004, and testified at a
competency hearing on October 21, 2004.
Dr. Free incorporated his first report's findings
and conclusions into a second report and made supplements thereto. Dr.
Free knew the second evaluation was triggered by Chapman's request to
discharge counsel, enter a plea of guilty, and to seek the death
penalty. In this second evaluation, Chapman explored the opportunities
available to him. Chapman explained his tactics and articulated a
logically thought out and thorough analysis of his situation, his
options available, and his reasons for proceeding his way. He was
coherent and under no delusions. Much of the first report was
discussed. Dr. Free testified that he stood by his first report that
Chapman has depression and his insight is impaired somewhat as a
result, but overall, he is competent to stand trial, and to proceed as
he wishes. Although Dr. Free was not aware of a different competency
standard to stand trial than to discharge counsel, plead guilty and
seek death, his report concluded that:
Psychological testing during his prior KCPC stay,
and collateral information about previous testing elsewhere suggested
that Mr. Chapman is not mentally retarded. The results of
psychological testing and medical examination suggested that Mr.
Chapman does not suffer from an organic impairment or brain damage.
The results of the total evaluation at KCPC suggested that Mr. Chapman
does not suffer from a thought disorder or psychosis. There was
nothing in Mr. Chapman's presentation, responses, or testing results
today to change those conclusions. Mr. Chapman appears to have a
rational understanding of his legal situation, and a settled plan for
the disposition of his charges that is consistent with the legal
process that must be followed.
Dr. Free acknowledged that Chapman's decision to
plead guilty was colored by his history of depressed mood and his
situation, but believed he was competent to make the decision. The
trial court inquired of Dr. Free whether Chapman's chronically
depressed mood would affect his ability to choose the outcome of his
case, or to be the “master of his own ship.” Dr. Free opined that an
individual could have a depression of such a quality, but that it did
not appear to him that Chapman's depressed mood rose to that level.
When asked by the trial court if Chapman were to be treated for his
depression, whether or not Chapman would change his mind about
pleading guilty and seeking the death penalty, Dr. Free stated that it
was possible.
While neither the court nor counsel appeared aware
of Rees, the trial court recognized that there must be a higher
standard of competency for an individual that wants to discharge
counsel, enter a plea, and seek the death penalty, than the standard
of competency to stand trial. After extensive questioning of Chapman,
and even after twice advising Chapman to follow his attorney's advice,
the trial court ordered Chapman back to KCPC for further treatment for
his depression for a period of thirty days, or as needed, for
treatment of Chapman's depression, and for further testing. Chapman
was admitted to KCPC on October 28, and discharged on December 5,
2004.
On December 7, the trial court continued the
competency hearing started on October 21. The court reexamined Dr.
Free and Chapman. Dr. Free testified that on November 2, Chapman was
prescribed Zoloft and continues on this medication to treat his
depression. Dr. Free opined the effects of Zoloft should be felt
within a few days to a few weeks, but patients are generally told two
to four weeks. Dr. Free opined that Chapman's depression could not be
cured in thirty days; that Chapman still has depression, but that it
does not affect his legal competency. Chapman expressed his desire to
the trial court that he still wanted to proceed by firing his counsel,
enter a guilty plea, waive jury sentencing, and request the death
penalty.
After both sides were permitted to question Dr.
Free, the trial court found: 1) The Court finds there is no evidence
of any mental condition present in the Defendant that would impair the
Defendant's ability or show a lack of capacity to appreciate his legal
situation. 2) The Court does not find any evidence of a medical
condition present in the Defendant that would impair the Defendant or
show a lack of capacity to understand the nature and consequences of
the proceedings against him. 3) The Court does not find any evidence
of a mental condition present in the Defendant that would impair his
ability or show a lack of ability to participate rationally in his own
defense. 4) The Court finds the Defendant, Marco Allen Chapman,
competent to stand trial and competent to participate in these
proceedings against him. 5) The Court finds that the Defendant's
letter of October 13, 2004 entitled “Guilty Plea” was written solely
by Mr. Chapman, and that the document was knowingly, intelligently and
voluntarily prepared by the Defendant. 6) The Defendant is competent
to choose to fire his Attorneys. 7) The Defendant is competent to
represent himself. 8) The Defendant, Chapman's eyes are wide open to
the consequences of his choices. 9) The Defendant's assertion to his
right of self-representation is knowingly, intelligently and
voluntarily made. 10) The Defendant understands the dangers and
disadvantages of self-representation. 11) The Defendant has knowingly
and voluntarily waived his right to counsel.
We opine that the trial court's findings are wholly
consistent with the Rees standard, and do show that Chapman had the
capacity to appreciate his position and make a rational choice with
respect to pleading guilty, waiving jury sentencing, waiving
mitigating evidence, and seeking the death penalty, or on the other
hand, that Chapman was not suffering from a mental disease, disorder
or defect which may substantially affect his capacity in the premises.
Also, the trial court's decision is not clearly erroneous because it
is supported by substantial evidence in the form of Dr. Free's
testimony and the trial court's colloquies with Chapman. Accordingly,
we affirm the trial court's conclusion that Chapman was competent to
plead guilty in order to seek the death penalty.
8. Factual Basis for Plea.
As a final contention that his guilty plea must be
reversed, Chapman argues that the trial court did not sufficiently
assure itself that a factual basis existed for the plea.
During the trial court's several meticulous
colloquies with Chapman, the trial court informed him of his rights
and repeatedly asked him if he was aware of his rights and was sure
that he wanted to waive them. The trial court went through possible
mitigation evidence available to Chapman, including his history of
physical and substance abuse. In fact, the trial court repeatedly took
the extraordinary step of telling Chapman that it disagreed with his
decision to fire his attorneys and to plead guilty in order to receive
the death penalty.
We reject Chapman's contention that his guilty plea
was invalidated by the fact that the trial court did not require him
personally to recite the factual basis for his guilty plea. Chapman
has cited to no binding authority requiring a trial court to obtain a
factual basis underlying a guilty plea by requiring a defendant
personally to recite the factual basis for a guilty plea. FN72 In fact,
the rule appears to be that a trial court can satisfy itself that
there is a factual basis for a guilty plea in any number of ways, FN73
many of which do not involve a defendant personally reciting his
involvement in the underlying facts which gave rise to the criminal
charges. FN74 Even Santobello principally relied upon by Chapman, does
not absolutely require a defendant personally to recite the factual
basis underlying his guilty plea. Rather, Santobello only provides
that one method of acquiring a factual basis underlying a guilty plea
is from a recitation by a defendant. Indeed, it has been held that the
requirement for a factual basis is satisfied in cases that do not
involve unduly complicated crimes if a summary of the charges is read
to the defendant and the defendant admits to having committed the
offense.FN75
FN72. Federal Rules of Criminal Procedure 11(b)(3)
provides that “[b]efore entering judgment on a guilty plea, the court
must determine that there is a factual basis for the plea.” Notably,
Kentucky Rules of Criminal Procedure (RCr) 8.08, which governs pleas,
does not expressly contain that requirement that a trial court
ascertain a factual basis before accepting a guilty plea. FN73.
Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d
427 (1971) (“Fed.Rule Crim.Proc. 11, governing pleas in federal courts,
now makes clear that the sentencing judge must develop, on the record,
the factual basis for the plea, as, for example, by having the accused
describe the conduct that gave rise to the charge.” (emphasis added)).
FN74. See, e.g., United States v. Tunning, 69 F.3d 107, 112 (6th
Cir.1995) (“The ideal means to establish the factual basis for a
guilty plea is for the district court to ask the defendant to state,
in the defendant's own words, what the defendant did that he believes
constitutes the crime to which he is pleading guilty.... This ideal
method is by no means the only method, however. We recognize that the
district court may determine the existence of the [Federal Rule of
Criminal Procedure] Rule 11(f) factual basis from a number of sources,
including a statement on the record from the government prosecutors as
well as a statement from the defendant.” ( citing United States v.
Goldberg, 862 F.2d 101, 105 (6th Cir.1988)) (internal quotation marks
omitted)); see also 21 Am.Jur.2d Criminal Law § 715 (2007). FN75. See,
e.g., United States v. Van Buren, 804 F.2d 888, 892 (6th Cir.1986) (“Where
the crime is easily understood, several courts have held that a
reading of the indictment, or even a summary of the charges in the
indictment and an admission by the defendant, is sufficient to
establish a factual basis under Rule 11.”).
In this case, the trial court carefully recited the
charges against Chapman and asked him if he committed those offenses.
Chapman answered in the affirmative. Although Chapman later claimed
not to recall portions of the events that gave rise to the charges
against him, the record documents the discussion between Chapman and
the West Virginia authorities in which Chapman set forth in greater
detail the particulars of his crimes.
Even assuming for argument that a trial court errs
by not ascertaining the factual basis underlying a guilty plea before
accepting that plea, we do not hold that a trial court must invariably
obtain that factual basis by asking a defendant to give a statement in
which he recites his involvement in the crime(s) to which he seeks to
plead guilty. Since the record contains ample evidence from which the
trial court could have ascertained the factual basis underlying
Chapman's guilty plea, we reject Chapman's argument that reversible
error occurred when the trial court failed to require him to recite at
length his involvement in the offenses at issue.
K. Cumulative Error.
Finally, Chapman contends that his convictions and
sentence must be reversed under the cumulative error doctrine by which
multiple harmless errors can be deemed to have the same deleterious
effect as one prejudicial error. However, since we have found no
errors, the cumulative error doctrine is inapplicable. FN76. See, e.g.,
Welborn v. Commonwealth, 157 S.W.3d 608, 615 (Ky.2005).
V. CONCLUSION.
For the foregoing reasons, Marco Allen Chapman's
convictions and sentence are affirmed.
All sitting. LAMBERT, C.J.; CUNNINGHAM, MINTON,
NOBLE, SCHRODER, and SCOTT, JJ., concur.
LAMBERT, C.J., also concurs by separate opinion in
which NOBLE, J., joins.
Concurring Opinion by Chief Justice LAMBERT.
While I concur with the result of the majority
opinion, I write separately to emphasize that Chapman's volunteerism
with respect to the death penalty plays no part in my concurrence.
Imposition of the death penalty is the ultimate
expression of state outrage for criminal conduct. The wishes of a
defendant, whether motivated by sincere remorse, desire to escape life
imprisonment, or to assert control, should play no part in a death
penalty determination. The death penalty should be imposed only at the
conclusion of the litigation process, after every possible legal claim
available to the defendant has been explored and determined to be
without merit.
NOBLE, J., joins this concurring opinion.
