Chapman v. Commonwealth

CHAPMAN, Appellant, Marco Allen Kentucky,

COMMONWEALTH

Appellee.

No. 2005-SC-000070-MR.

Supreme Kentucky. Court of

Aug. 2007. Opinion

Concurring Ordered Published

Dec. 2007. Rehearing

As on Denial of Modified

April

Reconsideration Denied Oct.

II. FACTS AND PROCEDURAL HISTORY.

The facts of this heinous crime are not disputed. In August Chapman en- Marksberry’s tered home in Gallatin Coun- ty, Kentucky, raped and stabbed where he Boyce, Appellate Donna L. Branch Man- Marksberry, He then who survived. Rhorer, ager, Emily Holt Assistant Public Marksberry’s young stabbed three chil- Advocate, Wheeler, Randall L. Assistant Cody dren. Courtney and Chelbi died. Advocate, Public Department of Public Ad- survived. Frankfort, vocacy, KY, for Appel- Counsel lant. quickly apprehended Stumbo, Gregory Attorney D. General of Virginia. West told the Virginia He West Smith, Kentucky, David A. Assistant At- authorities1 “gonna go get that he was

torney General, Stetler, Tami Renee Assis- party some materials out in park Attorney General, tant Appellate Criminal woods somewhere and die.” Division, Frankfort, KY, Counsel for Ap- policemen: also asked “[H]ow one of the pellee. in doing put about me a favor and a bullet my He told the authorities forehead[?]” Opinion of the Court Justice that hoped he he would not live three MINTON thirty-one weeks to turn and that bul- “[a] only let is the I can help get.” I. INTRODUCTION. Chapman provided Virginia the West During the course of robbing Carolyn many chilling authorities with de- Marksberry, Marco Chapman raped Allen tails of his against crimes the Marksber- stabbing stabbed her before her three rys. Marksberry He claimed that he and children, small killing Ap- two of them. had relationship been involved in a sexual pearing in circuit court to answer for these year, for about a and he knew that her crimes, brutal Chapman made an unusual working Chapman husband was overseas. plea agreement with the Commonwealth in stated that Marksberry’s he came to home

which agreed plead he guilty and volun- day question on the in armed with a knife. teered for penalty. the deаth The circuit planned He sex her have ultimately court accepted plea agree- that they rob her afterwards. He said had ment and sentenced Chapman to death. consensual then had sex but she “raised all The case before us is the review of kinds of he told hell” when her that he was Chapman’s conviction and in sentence going money Chapman to take from her. which we are asked to resolve several told the authorities that he Marks- bound questions concerning in berry with a vacuum cleaner cord and Kentucky. question ultimate gagged her with tape. Chapman duct said whether a defendant plea enter into a that he first Marksberry stabbed and then agreement forgo trial and sen- stabbed screaming her three children. tencing penal- and volunteer for the death ty. question We answer that in affir- Chapman was later indicted for two mative. murder, counts of capital two counts of authorities; Chapman’s 1. The trial court Virginia ruling denied motion to that has not been suppress the he challenged appeal. statements made to the West in this murder, change in if he received rape possibly count of ed could attempted one also Chapman burglary one mental health treatment. degree, the first count of delayed ruling robbery in the trial court degree, one of testified. So the first count in- guilty; motion being Chapman’s plead degree, the first one count of on stead, Chapman back to KCPC felony in the second it ordered persistent offender thirty days counsel for treatment degree. Chapman’s appointed period “for a motions, pretrial including filed numerous and examination.” motion from change a successful venue later, con- A the trial court few weeks County. During pretrial to Boone Gallatin hearing com- Chapman’s a third on ducted Chap- the trial court ordered proceedings, time, Free testified This Dr. petency. undergo compe- man to the first of three given antidepres- had been an Chapman tency Kentucky at Correc- evaluations (Zoloft) resulting sant medication KCPC (KCPC). Psychiatric After tional Center change Chapman’s no mental in little to evaluation, conduct- the first the trial court again opined Chap- Dr. Free health. com- hearing ed a determine incompetent. The trial court man was not hearing, to stand trial. At that petency Chapman ruled that was then Free, psychologist Dr. Steven and to attorneys, guilty, plead to fire his KCPC, had a histo- testified sentencing Final was set seek death. ry mental issues. But health-related objections week. following Over the Dr. Free concluded that attorneys, his former both competent to stand trial. And at the close appointed the same attor- the trial court hearing, ruled that standby fired to act neys Chapman as competent trial. Chapman was to stand counsel. after the rul- long competency Not first hearing, the sentencing At the final wrote trial ing, Chapman a letter to the testimony presented brief Commonwealth he to court which stated that he wanted underlying facts to the essential establish attorneys, jury his trial dismiss waive case, including testimony by Marks- of the sentencing, plead guilty and to all the Chap- trial court berry. The reiterated In charges, and be to death. sentenced making a that Chapman man its belief letter, Chapman remorse expressed waiving filing attorneys his mistake for his crimes stated that he was jury trial. sentencing his and/or “willingly ready the accept sentence Chap- acknowledged trial court But the only death ... because ... is the authority pre- no legal man that there was I have acceptable sentence the crimes for and seek- venting pleading guilty him from against [Marksberrys] and [committed] The trial observed ing death. court then or- humanity itself.” The trial court plea death sentence in the rejecting the Chapman back to sec- dered KCPC likely Chapman agreement prompt would competency evaluation. ond guilty only to ask plea his withdraw trial by Dr. him The Following evaluation to sentence to death. second psy- Free, that it had read trial court a second court then stated conducted by to chambers competency chological report delivered hearing regarding Chapman’s mitigation evi- plea standby containing At that counsel agreement. to enter into that it trial court clear Dr. Free that he believed The made hearing, testified dence. report expressed had considered content Chapman was but The trial Chapman’s competency. Chapman’s decision thought that it considered execut- stated had not attorneys and to ask to be fire his 5) mitigation Chapman evidence because did Residual doubt Chapman bars present any not want mitigation receiving evi- penalty; the death (cid:127) dence. 6) Chapman’s process rights due were violated when the aggravators that The trial court then sentenced made him death-eligible were not Cody for the murder of and Chel- indictment; set forth in the bi, twenty years’ imprisonment on each 7) trial by The court erred requiring attempted conviction, murder life impris- attorneys Chapman the samе had conviction, onment rape, twenty for his already standby fired to serve as years’ imprisonment for robbery his con- counsel attorneys since disa- those viction, twenty years’ imprisonment greed with goal seeking his stated burglary for his attempt- conviction. The penalty; convictions, burglary ed murder con- 8) The trial court erred viction, refusing to robbery and the convictions were mitigating consider certain evidence enhanced to imprisonment sentences of life (¿e., a psychologist’s report detailing due to persistent status as a Chapman’s history of mental health- felony offender in the degree. second issues, related including history judge’s mandatory report, abuse) physical and substance ten- judge stated that issue the “[t]he counsel; standby dered [Kentucky Supreme] Court should review 9) The Attorney Commonwealth’s act- is whether a defendant can enter into a improperly negotiating plea ed plea agreement negotiate for the agreement himself penalty.” Department of Public during period time Chap- when Advocacy then appeal Chap- filed this on represented by man was still coun- man’s behalf.2 sel; CHAPMAN’SISSUES III.. 10) The trial court should have used a

ON APPEAL. stringent competency more stan- in light Chapman’s history dard arguments, raises several of abuse and of mental health-relat- many of are so which interconnected that issues; ed we will analysis: combine them in our 11) permit Chap- This Court should not 1) penalty The death is unconstitution- court”; man by to commit “suicide al; and 2) injection Lethal and electrocution vi- 12) Chapman’s convictions and sentence Eighth olate the Amendment to the should be reversed under the cumu- United States Constitution’s prohibi- lative error doctrine. against tion imposition of cruel and punishments; unusual IV. ANALYSIS. 8)This Court’s conducting method of Penalty A. The Death is Not proportionality review of death sen- Unconstitutional. unconstitutional; is

tences 4)Chapman’s death issue, others, sentence is arbi- along This with is

trary and disproportionate; Nevertheless, unpreserved. we review un- (KRS) Court.") Kentucky 2. See Supreme simplicity’s Statutes For Revised 532.075(1). ("Whenever sake, penalty the death is opinion arguments will refer offense, imposed capital upon for a and Chapman's being advanced on behalf as ad- Court, judgment becoming final in the Circuit by Chapman vanced himself. the sentence shall be reviewed on the record Eighth cases, violation of in constitutional penalty errors death preserved against cruel proscription Amendment’s “(1) whether using following standard: and punishment,6 and unusual justification expla- a reasonable or there is anything causing us to presented has failure ob- nation for defense counsel’s doubt that conclusion. ject, e.g., might failure have whether the tactic; and if legitimate been a Proportionali- Method C. This Court’s explanation, wheth- there is no reasonable Constitutional, and ty Review is unpreserved prejudicial, error was er to Data Col- Chapman is Not Entitled i.e., totality the circumstances whether 532.075(6). lected Under KRS error, that, persuasive minus the are 532.075(3)(c)requires this Court to KRS may guilty not have been found “[wjhether the sentence of determine crime, penalty the death of a or disproportionate death is excessive have imposed.”3 not have been cases, con- imposed similar penalty Kentucky’s ruled that repeatedly the defen- sidering both the crime and unconstitutional,4 penalty statute is not pro- our dant.” contends that presented nothing has new our portionality review is flawed because change us to that conclusion. which causes only in which encompasses review cases imposed, rather than penalty “similar” cases in which the de- allegedly Injection B. Lethal Electrocution was not sentenced to death. We fendant are Not Cruel and Unusual Punish- rejected that our method have such claims Eighth ments Forbidden constitutionally proportionality review Amendment,5 flawed,7 Chapman’s counsel have not consistently that neither We have held reasons to presented compelling us with injection change lethal an un- that conclusion. nor electrocution is Commonwealth, Kentucky support or else- 3. Johnson v. 103 S.W.3d case law (Ky.2003). Certainly, where .... it is not cruel un- punishment. Death electrocution usual Commonwealth, e.g., Thompson v. or Ken- also does not violate either federal (Ky.2004) (“Appellant S.W.3d asks this Kentucky, tucky law. v. Stanford Kentucky’s penalty to declare Court (1989). 106 L.Ed.2d 306 statute unconstitutional. The constitutionali- demonstrate that Wheeler has also failed to ty of the death statute is well settled. any either method of execution conflicts Appellant's Kentucky’s death assertion that Rees, norms.”); see also societal Baze operates discriminatory statute in a (Ky.2006); Epperson v. 211-12 S.W.3d (foot- arbitrary fashion is without merit.” 46, Commonwealth, (Ky.2006), 197 S.W.3d 64 omitted)). note 1840, denied — U.S. —, 167 cert. (2007). L.Ed.2d 337 unpreserved. 5. This issue is also Commonwealth, 7.See, v. 801 Commonwealth, 173, Sanders v. 121 S.W.3d 6. Wheeler (Ky.1990); Epperson, 683 197 ("Wheeler S.W.2d (Ky.2003) argues ("This many Court on occa- S.W.3d at 63-64 penalty death is unconstitutional under proportionality that the sions has determined Kentucky because federal and cоnstitutions sentence, conformity in with KRS review it conducts is carry used to out the method 532.075(3) all constitutional. Under and is injection, punish- lethal is cruel and unusual case, pen- of this injection the circumstances ment. Wheeler’s claim that lethal entirely appropriate, proportionali- against alty is Eighth a violation of the Amendment any by Court does not punishment ty review conducted this cruel and unusual is without We, likewise, required by review reject Chapman’s proportionality claim the 532.075(3). Chapman brutally is constitu- KRS proportionality that our review death, provide tionally infirm because we do not stabbed two innocent children to data we meaning defense counsel with access sentence of death certain- penalty in cases under compile death KRS ly disproportionate is not his brutal and 532.075(6).8 rejected argu- this We have abhorrent crimes.10 Based on our review times,9 many Chapman’s record, ment counsel of the the sentence death was presented compelling pas- have not us with imposed under the influence holding. sion, to reconsider that any arbitrary reason fac- prejudice, or other ample support tor. There was evidence D. Death Sentence finding statutory aggravating Disproportionate. is Not factors, causing intentional multi- such as causing during those deaths Although Chapman’s unique ple case is deaths and offenses, felony in of other actively sought that he to receive the the commission robbery. have also re- punishment burglary as a for his of penalty death fenses, have, nevertheless, decided since engaged we in all relevant cases viewed (c)To by protection compile as are deemed process equal violate due or such data (in- appropriate to be the Chief Justice either the Federal or State Constitution.” omitted)); statutory questions con- Harper to the ternal v. Common relevant citations wealth, ("The cerning validity of the sentence. (Ky.1985) 694 S.W.2d idea Public Advocate has the curious ("The e.g., Epperson, at 63 197 S.W.3d previous consider all cases which were tried expressed by Epperson concerns about his capital cases. or could have been tried as inability without merit. to access the data are 532.075(6) This is a mistaken belief. KRS data, any but This Court does not use secret felony refers to records all offenses in penalty simply compares case with one imposed which the death was after all the other in which the death sen- cases 1, 1970, January earlier date as the or such 1, 1970.”); January imposed tence was after also, e.g., appropriate.”); see deem ("For Harper, 694 S.W.2d at 670-71 some Davis, State v. 63 Ohio St.3d 584 N.E.2d reason, us, Advocate the Public obscure task, (1992) (“As we have our final keeps insisting access to the data collected on comparison of the sentence in undertaken provisions of KRS under the this court previously those in which we have this case to 532.075(6). thought [Ex Parte We had penalty. appel imposed We find (Ky.1978)], Farley, settled 570 S.W.2d 617 appropriate in this lant's death sentence to be reason question. There is no articulated this case, dispropor as it is neither excessive nor this why cannot assemble the Public Advocate added). tionate.”) (emphasis We state in our cases data for use us, and in opinions all matters considered 532.075(6) provides 8.KRS as follows: records or way mysterious and secret no are assign The Chief Justice shall to an ‍​‌​​‌​​‌​​​‌‌​​​​​​​​​​‌​​​‌​‌‌‌‌​‌​‌‌​‌​​‌​​‌‌‌‍admin- deliberations. into account in our data taken attorney an arguing istrative assistant who is this expended The time and effort following compile data we point duties: all the would suffice Commonwealth, (a) consider.”); felony Stopher of all To accumulate records ("Failure pro- (Ky.2001) offenses in which the death S.W.3d 1, 1970, Court imposed January such vide to data collected after access 532.075(6) deny may ap- pursuant did not deem to KRS earlier date as the court law.”). Appellant process propriate. due (b) provide the with whatever ex- To See, Johnson, e.g., it desires with re- at 698 tracted information 10. 103 S.W.3d thereto, spect including ("Considering extremely but brutal nature of not limited the here, synopsis in the it cannot be said to a or brief of facts the murder at issue inap- concerning penalty Appellant and the received was record the crime that the propriate.”). defendant.

165 statutory aggravators penalty 1970 in which the death was im- at least one of in posed, particularly 532.025(2)(a) those which defen- set forth in KRS is found multiple dant was sentenced to death for did not de- apply.15 Chapman’s indictment short, our re- intentional murders.11 aggravators scribe the Commonwealth “the view has led us to conclude that sen- to receive Chapman eligible believed made tence of death here was not excessive or Instead, day penalty. the death the same disproportionate penalties imposed to the was filed the Gallatin the indictment considering in similar cases both the Clerk, the filed a Circuit Commonwealth crimes and the defendants.”12 that it was seek- notice under KRS 532.025 ing penalty.16 That notice set death E. Residual Doubt Does Not Bar circumstances that Chapman’s aggravating Death Sentence. forth the Chap- believed made the Commonwealth doubt, Chapman contends that residual penalty. eligible man to receive mainly concerning competency, his bars aggravators receiving penalty. him from the death We The Commonwealth cited as compe- Chapman’s will discuss issue of resulted in Chapman’s the fact that acts tency opinion, in detail elsewhere in this and that multiple intentional deaths depart but we see no reason to from our during the course of murders occurred holding consistent residual doubt Chapman committing rape the first de- plays appellate no role review.13 gree, robbery degree, in the first and bur- glary degree. Chapman in the first now F. Indictment is Not Defec rights contends his constitutional tive Because it Fails to Enumerate the indictment did were violated because Aggravators that Made Him Eli aggravators. not contain those gible Penalty.14 the Death for law, Kentucky Under a person is not rejected arguments along have these eligible to receive the death unless belaboring opinion guilt beyond 11. Rather than with a a reasonable doubt so establish string containing cite we examined cases legal constitu- as to meet the standards and during proportionality the course of our re- requirements.”). tional view, incorporate by reference the list Commonwealth, Hodge found in 17 S.W.3d unpreserved. 14. admits this issue is (Ky.2000). incorporated 855 We have cases, that list in other such as Parrish v. 532.025(3) ("In 15. See KRS all cases unless Commonwealth, (Ky. 121 S.W.3d (1) statutory aggravating cir- least one 2003). applicable We have also reviewed the in subsection cumstances еnumerated Hodge. cases rendered after found, penalty, or this section is so pro- imprisonment without benefit of for life Epperson, 197 S.W.3d at 64. imprison- parole, or the bation or sentence Commonwealth, Tamme v. probation without benefit of ment life (Ky.1998); Epperson, S.W.2d parole defendant has served a mini- until the ("The Supreme S.W.3d at 65 United States sentence, (25) years twenty-five mum of Court and this Court have held that residual imposed.”). shall not be mitigating is not a circumstance doubt penalty. Lynaugh, See Franklin v. 532.025(l)(a) provides Com- 16. KRS that the U.S. 101 L.Ed.2d at a sen- monwealth introduce (1988), Commonwealth, su- accord Tamme v. aggra- tencing hearing “only evidence in such pra. finding guilt aggravating A as to cir- to the vation as the state has made known in a death cumstances case is consid- prior to his trial....” ered under the reasonable doubt standard. Here, presented the evidence was sufficient to 166 before,17 standby not be forced to be counsel many and we have should

lines times to de- compelling been shown no reason for that same defendant.

part position. from that settled

A criminal defendant has a con Did Not Err Trial Court When G. by right represented stitutional to be couns Recently-Ter- Appointed Chapman’s it “Conversely, a defendant also has a el.18 Standby minated Counsel as Counsel. right state and federal constitutional proceed without lawyer.”19 But a de Chapman argues lawyer right proceed fendant’s without by appointing standby counsel erred example, is not For absolute.20 objection. argues that for him over his He that a hearing court must hold a to ensure by error compounded the trial court its has defendant’s waiver of counsel been sugges agreeing to the Commonwealth’s voluntarily intelligently.21 And made recently-firеd attor tion that counsel must a defendant’s choice waive neys stay should be ordered to on as competently made.22 The standard for be standby objections counsel over the of determining competency a defendant’s attorneys. Chapman and the The Com is the same standard used to appointment waive counsel monwealth contends that the competent if a defendant standby practice counsel is a endorsed determine hinder, advance, not to stand trial.23 this Court to pro defendant’s interests. Unfortunate se to this issue is the however, important Most

ly inexplicably, the Common trial court precedent holding that a substantively wealth does not address standby counsel for a defendant appoint that an at Chapman’s counsel’s contention objects to such an even if the defendant torney recently fired a defendant 636, Commonwealth, See, Commonwealth, (Ky. S.W.2d 638 139 491 17. Soto v. 827, 1973)].”). (Ky.2004); v. Com- S.W.3d 841-43 Ernst monwealth, 744, (Ky.2005) 752 160 S.W.3d Hill, 19. 125 S.W.3d at 225. argues ("Finally, although Appellant that the ele- indictment did not set forth the essential California, Appeal v. Court Martinez offense, kidnapping ments of 152, 161, Dist., Appellate U.S. 120 Fourth required note that the indictment is not also 684, (2000). S.Ct. 145 L.Ed.2d 597 aggravating circumstance neces- to recite the long sary capital punishment as the to seek so 162, 120 S.Ct. 684. 21. Id. at 528 U.S. require- satisfies the notice Commonwealth 532.025(l)(a).”). ment in KRS 63, Berry, v. 184 S.W.3d 22. Commonwealth ("A represent (Ky.2005) choice to defendant’s (“In § e.g., Ky. all criminal Const. intelligent.”). competent and himself must be right prosecutions to be the accused has length Chapman’s competency discussed at counsel_”); v. heard himself and Hill opinion. in this elsewhere Commonwealth, (Ky. 125 S.W.3d Moran, 2004) (“The protected by v. right to counsel is 23. Godinez ("Nor do 125 L.Ed.2d 321 United States S.Ct. the Sixth Amendment defendant who waives his firmly in the we think that a Constitution and was established case, right the assistance of counsel must Wainwright, 372 U.S. seminal Gideon v. 792; (1963). who does than a defendant Sec more 9 L.Ed.2d not, to believe that Kentucky inde since there is no reason tion 11 of the Constitution of requires an importance waive counsel pendently recognizes the decision to coun functioning higher appreciably level of mental trial. the defendant in a criminal sel assist other constitution- than the decision to waive to counsel is ‘[t]he have held rights."). right.' al [Jenkins fundamental constitutional easily Chap- if quickly and gone forward reject Chapman’s So we appointment.24 request later withdrawn man had a that the trial court committed contention Chapman’s although And proceed pro se. by standby counsel per appointing se error the trial court of standby counsel informed objection. question But the real over his objections Chap- legal their moral and it appoint- is: Did the trial court err when conduct, Supreme course of man’s desired standby very attorneys it ed as counsel the 3.130(1.2)(a)-(b) (SCR) states Rule Court just to fire? had allowed must defer to the client’s attorney that an have not cited to a parties’ briefs plead guilty choice of whether recently-fired attorney a was case which attorney’s representation of a client an standby counsel over the ob- appointed as an endorsement of does not constitute jection pro se defendant. We have viewpoint.26 or moral client’s social recently-fired located cases where a attor- 3.130(1.16)(b)-(c)per- are aware that SCR ney appointed standby as counsel with attorney repre- mits an to withdraw Of apparent the defendant’s consent.25 persists upon if the senting a client client course, the situation in the case at hand is attorney objective an pursuing vastly Chapman explicit- different because or But “repugnant imprudent.” considers ly stated that he wanted no counsel at all required counsel in this case were not and, furthermore, wanted different counsel actual counsel of continue as if appoint the trial court was determined to rather, they required were record — standby counsel. standby role of function in the limited But see distinct advantages have held that an attor- counsel. And we Chapman in the appointment of these re- objective an ney pursuing client is whose cently-fired attorneys. example, For these attorney repugnant may finds attorneys already were familiar with the if remain on the case withdraw ordered to ease, meaning by the case could have the trial court.27 Martinez, 162, Commonwealth, 528 U.S. at 120 S.Ct. 684 26. See St. Clair v. 140 S.W.3d ("A judge may self-repre- 510, ("And, also terminate although (Ky.2004) counsel appoint ‘standby sentation or counsel—even defen- have a basis to withdraw if ‍​‌​​‌​​‌​​​‌‌​​​​​​​​​​‌​​​‌​‌‌‌‌​‌​‌‌​‌​​‌​​‌‌‌‍the objection over the defendant’s neces- pursuit —if ‘of an dant’s decision constitutes the sary.”); California, accord Faretta v. U.S. lawyer repugnant objective that the considers 834 n. 95 S.Ct. 45 L.Ed.2d 562 3.130-1.16(b)(3), imprudent,’ SCR counsel course, (1975) ("Of may-even over State may not withdraw if the tribunal orders the objection by appoint 'standby accused— continue.”); representation SCR see also counsel’ to aid the accused if and when the 3.130(1.16)(c) ("When to do so ordered requests help, accused and to be available tribunal, lawyer representa- shall continue represent the accused in the event that termi- notwithstanding good terminat- tion cause for self-representation of the defendant's nation ing representation.”). necessary.”); Wiggins, McKaskle v. 168, 184, 79 L.Ed.2d 3.130(1.2) part, provides, in relevant 27. SCR (1984) ("A defendant’s Sixth Amendment as follows: judge rights are not violated when a trial appoints standby counsel—even over the de- (a) lawyer A shall abide a client’s decision objection judge relieve the fendant’s —to concerning objectives representa- explain the need to and enforce basic rules of case, lawyer ... a criminal shall tion. protocol courtroom or to assist the defendant decision, client’s after consul- abide overcoming routine obstacles that stand in plea lawyer, as to be tation with the way of the defendant’s achievement of his entered, jury trial and whether to waive goals.”). clearly own indicated testify. client will whether the client, (b) Wilson, lawyer's representation in- A 252 Neb. State (1997). by appointment, cluding representation N.W.2d 241 newly-appointed standby standby proper

A may counsel counsel not be wise similarly in all cases. But a trial obligated would have been to as because possesses authority to Chapman carrying appoint sist in out inherent his stated standby pro se defendant— objective of seeking re counsel-for regardless of that whether defendant gardless of attorney whether that believed standby wants that counsel counsel—and objective that legally to be either or moral to the defendant’s obligated to accede ly misguided. appointment And of “fresh” entry guilty plea, regarding wishes of a Chapman’s counsel have worked trial, major waiver of and similar disadvantage that since counsel would not importance, un- decisions constitutional have been as familiar with the facts and case, of this unique der the circumstances already two-year circumstances of the old Chapman’s we do not find that constitu- case, meaning that the likelihood of that right of his own captain tional to be the attorney seeking a continuance would have ship was violated when the trial court ex- greater, thereby thwarting Chap been attor- appoint ercised its discretion to being man’s stated aim of sentenced to neys recently Chapman had terminated. Moreover, simply death quickly. specific is not entitled to a H. The Not Err it Trial Court Did When court-appointed counsel of his own choosi Mitigation to Consider the Refused ng.28 Finally, alleged communication by Standby Evidence Tendered Coun- breakdown and irreconcilable differences sel. Chapman between attorneys and his sentencing, Just hours before belied the fact that Chapman continued standby counsel delivered during sentencing confer with them chambers, seal, document that under hearing they standby had become —after they as asked the trial court consider counsel. Chap When trial court asked mitigation During evidence. the sentenc man if he waived the preparation of a sex ing hearing, the trial court mentioned assessment, offender risk con it had read the document and had sulted standby counsel before answer purposes determining considered it for Also, ing. videotape sentencing it Chapman’s competency but had shows huddling with counsel mitigation not considered its contents for point, although another substance himself did purposes because that whispered conversation cannot be as present mitigation not evidence. want from tape. certained Court, Chapman con review On recognize presented this case con that the trial court’s refusal to tends unique challenging for the trial issues mitigation evidence is sider the tendered court and counsel for both sides. We fur- contrary requirement to KRS 532.025’s recognize appointing recently- mitiga ther that a trial court “shall” consider in attorney fired to act as a defendant’s tion evidence cases.29 gent appointment does not constitute an defendant is entitled to the endorsement of economic, political, client’s social or moral any particular attorney.”); see also 21A views or activities. (2007) ("Nor § Am.Jur.2d Criminal Law 1248 standby does a defendant have the Commonwealth, Baker choosing.”). counsel of his or her own (“The (Ky.App.1978) S.W.2d 326-27 ex- pression one’s own choice’ drawn ‘counsel of 532.025(l)-(2)("(l)(a) Upon 29. See KRS con- holding of the case in Powell v. State Alabama, viction of a defendant cases where the in of L.Ed. 158 hearing penalty may imposed, a does not mean that an indi- psychological re- question, document Chapman also contends that we should mitiga- port, properly submitted require appointed amicus curiae to be tion evidence. like present mitigation evidence cases want this where a defendant does not allowed Once the trial court present mitigation evidence.30 se, pro proceed to what, any, if the arbiter of the context of the statute re- himself became Unless offer, including a he to quires interpretation, a different which evidence wanted not, right present mitiga his to right 532.025 does it is clear that the to waive KRS that a defen in a statute tion evidence.33 It is clear usage of the word “shall” mitigation evi mandatory.31 may present dant refuse to something denotes dence, if counsel him to mitigation And evi- even advises presentation the capital contrary.34 pro in a a matter And a se defendant dence murder case is has the proceeding standby trial court counsel great importance.32 So the role, any, if stand obligated any properly right to consider to determine what words, perform.35 But will other mitigation submitted evidence. counsel right hearing, jurisdictions upheld a defendant's shall be conducted. In such have judge pres- voluntarily intelligently shall hear additional evidence in exten- waive the to uation, mitigation, aggravation punish- mitigating E.g., United entation of evidence. Cir.2002), ment[;] (2) 378, Davis, (5th ... In all cases of offenses v. 285 F.3d 381 States authorized, 1066, penalty may denied, the death which be U.S. rt. 537 ce consider, judge shall or he shall include in 618, (2002); Singleton v. 154 555 L.Ed.2d consider, his instructions to the for it to Lockhart, 1315, (8th Cir.1992); 1322 962 F.2d any mitigating aggravating circumstances or 986, Peters, (7th Silagy 905 F.2d 1008 Cir. v. circumstances otherwise authorized 252, State, 1990); 255 Nelson v. 681 So.2d law_") added). (emphasis Bloom, 1995); People 48 (Ala.Crim.App. v. 669, 698, 1194, Cal.Rptr. Cal.3d 259 774 P.2d State, 732, Holloway 30. See v. 116 Nev. 6 P.3d 800, State, (1989); Hamblen v. 527 So.2d 715 987, (Rose, C.J., (2000) ("I concurring) 998 Dunster, (Fla.1988); 262 Neb. 804 State v. strong conclude that because the State has a 329, 879, (2001); v. N.W.2d 906 Colwell 631 protecting against arbitrary imple- interest in State, 403, (1996); 406 112 Nev. 919 P.2d penalty, representa- mentation Ashworth, 56, 706 v. 85 Ohio St.3d State appointed sentencing tive should be to (1999); Arg State v. N.E.2d 1236-37 prevent arbitrary imposition such of the death ([A] uelles, (Utah 2003) 63 P.3d penalty. representative This act would as an right repre defendant’s Sixth Amendment investigate present amicus curiae and sent himself and control the course of factors, mitigating fulfilling thus the afore- right proceedings carries with it the to choose statutory safeguard mentioned directives that any mitigating is of how much—if evidence — against arbitrary random and death sen- omitted))). (internal quotation marks fered.” tences.”). 446.010(30) (" 31. See KRS 'Shall' is mandato- Clair, 140 S.W.3d at 560. 34. St. iy....”). (“We Berry, S.W.3d at 64 also Paisley, Commonwealth 201 S.W.3d recognize hybrid representation, or a defen- ("The (Ky.2006) mitigat- establishment standby ability proceed pro with dant’s se ing penalty phase circumstances at the is of counsel, controlling litiga- counsel’s role in the greatest importance when defendant is added)); (emphasis also 21A Am. tion.” see facing penalty.” (quoting Smith v. ("Howev- § 1249 Jur.2d Criminal Law Commonwealth, (Ky. 734 S.W.2d er, preserve pro se defendant is entitled J., 1987) (Leibson, dissenting))). or she chooses actual control over case he Soto, ("The standby present jury, and if counsel’s to the S.W.3d at 855-56 33. See objection participation defendant’s yet ad- over the Supreme United States Court has issue; however, many effectively to make or substan- particular allows counsel dress this validly Chapman had mitigation

once a defendant has waived his evidence which se, right proceeding pro to counsel and is present. reject Chap- standby pro counsel not override require man’s invitation to the appoint- evidence, se defendant’s wishes as what present ment of an amicus curiae to miti- any, if on behalf of the presented will gation evidence over defendant’s all, defense. After it the defendant objection. And our holding comports with consequences “who suffers the if the de- expressed by the views other states.38 We fense fails.”36 This presupposes suggestion find no author- given se has all the pro been standby report ized counsel tender the warnings presen- regarding the waiver of allegedly containing mitigation evidence to mitigation tation of evidence set forth in standby court. So counsel ex- St. Clair.37 authority scope by ceeded the of their hand, tendering report the to the trial court over pa- In the case at the trial court objection, meaning that the tiently engaged thorough colloquy Chapman’s in a Chapman regarding mitigation properly evi- document was not before the with general, specific dence in as well as the court. tially any significant appellate interfere with tactical threat of reversal would be not decisions, merely counterproductive. A questioning ineffective but or to control the of knowledgeable desiring witnesses, defendant to avoid speak or to instead of the defen- timely request penalty could make a any right importance, dant on matter of this is Faretta, self-representation supra, under eroded.... But if a defendant wishes stand- 2525, 562, 806, 95 S.Ct. 45 L.Ed.2d involved, by impromp- counsel to be to render present any mitigating then decline to advice, court, appear or tu even before the the penalty phase, in the evidence at the secure standby defendant must authorize counsel to knowledge judgment any death would be so.”). do court, gen by defendant reversed this while a uinely desiring death could circumvent Faretta, 820, at U.S. 2533. by presenting of miti rule a bare minimum easily gating evaded or evidence. A rule so 37. 140 at 560-61. S.W.3d clearly misused is unsound. The sanction of answer, appellate reversal not the nor has is Ashworth, 706 N.E.2d at 1237-38 suggested any to alternative method been ("In view, requiring presenta- our a rule compel unwilling present to an an defendant mitigating impossi- tion of evidence would be State, defense.”); Wallace v. effective attempted ble to Even if the court to enforce. 504, (Okla.Crim.App.1995); see 893 P.2d attorney mitigating require present an to evi- Bonnie, Dignity Richard J. The also Condemned, dence, unwilling an it cannot force 74 Va. L.Rev. provide attorney.”); that evidence to his argue attorneys ("Specifically, some State, (Fla. Hamblen v. 527 So.2d ignore prefer of clients who should wishes 1988) ("We hold that there was no error in judicial execution so as not to frustrate appointing against Hamblen’s not counsel obligation sentences are to assure that death present mitigating wishes to seek out and to they In its are carried out. valid before argue against version, evidence and to the death sen argument strongest would obli judge adequately fulfilled tence. The trial defy gate attorney his or her client’s an own, thereby protecting that function on his undertaking litigation directly by wishes society’s seeing interests in that the death appoint an ami- requesting the court to Thus, imposed improperly.”); Peo argu was not this line cus curiae to do so. Bloom, ple Cal.Rptr. only fundamentally incompatible v. 48 Cal.3d not ment is (1989) ("A attorney’s rule conceptions 774 P.2d 718-19 an with traditional requiring pro present duty respect autonomy miti se defendant unenforceable, client, gating preferences prevailing evidence would be as but also omitted) (internal compel judicial the court has no means to a defendant restraint.” footnote added)). (emphasis put on an defense.... affirmative evidence, yet reject argument mitigation duced Chapman’s

We also mitigation prevented that his waiver of evidence court’s instructions rendered ineffective our decision considering impor meaningfully Commonwealth,39 Soto, In held Soto however, never Chapman, tant evidence. circum- right mitigating that “the to waive mitigation evidence at sought to introduce during penalty phase of a trial stances controlling. all. So Abdul-Kabir is not inherently right different from the mitigation tendered Perhaps the evidence waive a defense a claim inconsistent with counsel would have been during guilt phase.”40 of innocence difficult deci beneficial in the trial court’s Soto, pres- a defendant waived his sion about whether to sentence mitigation involving evidence an ex- ent on to death. But the decision whether (EED) claim, treme emotional disturbance Chapman’s, tender evidence was yet attorney if the asked voir dire will not com standby that of counsel. We jurors could EED prospective consider as pel competent capital pres defendant to mitigating appeal, factor. On Soto mitigation against ent evidence that defen claimed that he was entitled to a new trial This in accordance dant’s wishes. view is EED, attorneys because his mentioned de- expressed by with that other courts. For spite objections. reject- appeal, On Ashworth, Supreme in the example, Ohio Soto, however, ed Soto’s claims of error. Court noted: readily distinguishable is and not control- Ashworth was to waive because, Since ling in the case hand as we only out, presentation mitigation, the the expressly pointed the defendant in whether, in question remaining spite is self-rep- Soto “never asserted his waiver, expressed pro- resentation or there is some constitution- desire of his 41 ceed se.” pro statutory requirеment compels that al or mitigating evidence. presentation the Likewise, Chapman’s counsel’s reliance view, requiring presen- In our a rule the on the recent decision United States evidence mitigating tation of would be Supreme Quar- in Court Abdul-Kabir v. to enforce. Even if the court impossible Abdul-Kabir, misplaced. teo~man42is In require attorney an attempted death-sentenced petitioner contended in evidence, present mitigating it cannot post-conviction proceedings that unwilling provide force an defendant to jury prevented court’s instructions attorney. Gray that evidence to his jury from meaningfully considering the (C.A.5, 1982), 1086, F.2d v. Lucas 677 mitigation petitioner evidence the had subm steadfastly maintained the defendant Supreme agreed itted.43 The Court anyone testify did not want on he proceed remanded the case for further any identify refused to Obviously, his behalf and ings. the situation in Abdul- sentencing phase. for the vastly Kabir is different from case at witnesses actually hand in that refusal did not ne- Abdul-Kabir intro court said ("Petitioner (Ky.2004). 39. 43.Id. at 127 S.Ct. 1659 Jalil Ab- 139 S.W.3d dul-Kabir, formerly Ted Calvin known as Cole, that there is a reasonable like- 40. Id. at 857. contends judge’s that the trial instructions to the lihood pre- that sentenced him to death 41. Id. at Texas giving meaningful jurors consid- vented 1654, mitigating constitutionally eration to relevant 167 L.Ed.2d (footnote omitted)). (2007). evidence.” gate attorney’s duty willing investigate, accept representa- defendant to scope duty but that ‘the tion or present added of that an affirmative penalty by was limited defense [the refusal.’ in a case. defendant’s] also] Id. at 1094. Hamblen v. [See ‘Indeed, any legal the lack of or prac- (Fla.1988), State 527 So.2d tical force a [] means to defendant to (‘There no power could have com- evidence, present mitigating indeed pelled cooperate [the defendant] all, any compels defense at the conclu- information.’). such divulge sion that death-verdict-reliability re- an Society quirement does have in exe- cannot mean that a interest death merely cuting only those who meet verdict because the the statuto- is unsound ry present potentially and in not requirements allowing not defendant did Rather, mitigating the re- death statute to be used as a evidence. quired reliability is attained when the means of state-assisted suicide. Howev- prosecution discharged its er, has burden of ‘Society’s interest ad- proper proof penalty phases at the trial and justice preserved by ministration of ' pursuant to the rules of evidence giving a defendant the right freely to within of a guidelines constitutional present mitigation, evidence re- judgment A penalty statute[.] quiring sentencing body ag- to find conformity déath entered in with these gravating factors before imposing rigorous standards does violate the penalty, requiring that a Eighth reliability require- Amendment sentence of death be reviewed (1989), ments.’ People v. Bloom practices court. These are to assure Cal.Rptr. Cal.3d will im- not be 690, 698, 719; People v. 774 P.2d Sand Hamblen, posed arbitrarily.’ 527 So.2d 471, [525-26], (1990), ers Cal.3d 273 51 804, (1984), quoting People at v. Silagy [569-70], 561, 537, CaLRptr. 797 P.2d 147, 181, 792, 101 Ill.2d 77 Ill.Dec. 461 [593-94].)44 N.E.2d 432. Admittedly, Eighth error in Consequently, Amendment we find no impose high requirement improp a does of relia- court’s refusal to consider bility erly mitigation evidence at on determination that death is tendered hand.45 appropriate penalty particular a See, Mississippi case. Johnson v. Attorney’s I. The Commonwealth’s Al- (1988), 578, 584, 108 S.Ct. leged Negotiations Chap- Plea With 575, 584; 100 L.Ed.2d Mills v. ' man Was Chapman Repre- While (1988), 367, [383-84], 486 Maryland U.S. Do Not Compel sented Counsel 1860, 1870, L.Ed.2d Reversal.46 However, 399. the United States Su- preme never suggested Court has contends Chapman Com justifies Attorney un- our requires forcing an monwealth’s violated Rules presentation at 1237-38. counsel waive the miti 706 N.E.2d and to Wallace, evidence.”); gating see also 893 P.2d Clair, 140 ("Although S.W.3d at St. Cf. sought (holding who that a defendant 532.055(2)(b) permit KRS 532.025 and KRS receive had the the death evidence, mitigating to introduce evidence). present mitigation refuse to defendant, is 'master his own defense pilot ship[,]' [Jacobs v. Common 46.Chapman unpreserved. admits this issue wealth, (Ky.1994)], S.W.2d ignore the thus elect to advice of his formally trial court had ments before the by negotiating Conduct of Professional Chapman’s plea. accepted -with him at a time when plea agreement represented he still counsel. argument to re- reject Chapman’s We anything is unable to cite to Chapman best, is, upon what at this case based verse specific support in the record to this seri- regarding the Commonwealth’s speculation Instead, Chapman merely allegation. ous Attorney’s alleged improper contact. contends that the Commonwealth’s Attor- ney must have had advance notice Competent Chapman Was J. request plead guilty by vir- Guilty and to Plead Seek tue of the fact that the Commonwealth’s Penalty. the Death Attorney recently spo- stated that she had competency that the Chapman contends ken to Dr. Free had determined seeking pleading guilty for standard Dr. Free would be available to reevaluate that re- higher than the death inexplicably also Chapman. quired typical of a defendant who wishes Attorney the Commonwealth’s chastises contends guilty. And plead “outlining] steps for for the trial court the by using a less that the trial court erred guilty plea it needed to take to institute generally rigorous competency standard of proceedings!,]” quickly preparing and for competen- a defendant’s used to determine Chapman’s signature lengthy motion cy trial. we must first deter- to stand So guilty plea. to enter a a trial competency mine what standard agree that an whether a court should use to determine attorney directly must not communicate to receive defendant is to seek pending party about case with penalty, and we then must deter- attorney by couns represented knows is Chapman met that standard. mine whether nothing But Chapman el.47 has offered answering course those ultimate however, concrete to that the Commonwealth’s necessary show it will questions, Attorney him improper had contact with other related issues. us to address several he represented time when was still Speculation Competency. not counsel. and innuendo are General Standards of for an proper appellate bases court to re begin with unassailable We verse criminal conviction. be that a defendant found to proposition Furthermore, may not be nothing inherently incompetent im- to stand “tried, long so as proper occurred when the Common- convicted sentenced Attorney And the wealth’s offered advice to the continues.”48 incompetency Assembly “incompe has necessary trial court defined procedures about General that a defen Chapman’s guilty plea, nor tent to stand trial” to mean to effectuate if, “аs a result of necessarily impermissible incompetent did or dant is anything condition, defendant lacks [the the] unethical occur when the Commonwealth’s mental capacity appreciate the nature and con- Attorney prepared plea agreement docu- Godinez, 504.090; 3.130(4.2) (“In 509 U.S. representing a 48. KRS see also 47. See SCR client, ("A lawyer about shall not communicate criminal defen- 113 S.Ct. at 2685 subject representation party of the compe- may he is dant not be tried unless lawyer represented by knows to be anoth- tent.”). matter, lawyer lawyer has er unless lawyer or is author- the consent of the other so.”). ized law to do sequences against Chapman competent one was to stand trial. proceedings rationally in We then must determine the correctness participate or to one’s own of the trial court’s decision that Although recognized it defense[.]”49 competent plead guilty. was adopt stringent each state could a more standard, Supreme the United ‍​‌​​‌​​‌​​​‌‌​​​​​​​​​​‌​​​‌​‌‌‌‌​‌​‌‌​‌​​‌​​‌‌‌‍States previously, As stated the United “reject[ed] com- Court has the notion that ruled that Supreme States Court has petence plead guilty or to waive the applies same standard to a defendant’s to counsel must be measured competency to stand trial and a defen (or higher standard that is than even dif- to waive counsel and competency dant’s from)” normally ferent the standard used following find plead guilty. logic to determine if a defendant is expressed by especially to be Court stand trial.50 convincing: merely all criminal defendants —not

A competency determination is plead guilty may re- those who be preponderance based on the of the evi — make once quired important decisions may dence a trial standard.51 We disturb have proceedings criminal been initiated. only if competency court’s determination plead guilty And the decision to while clearly the trial court’s decision is errone one, undeniably profound it is no more (i.e., supported by ous not substantial evid than the sum total of deci- ence).52 complicated a defendant called sions that Not Err In The Trial Court Did upon during to make the course of a Chapman Competent Finding so, being trial.... This we can conceive Guilty. to Plead demanding higher no level of basis for competence for those defendants who Although recognizing Chapman’s guilty. Dusky If the plead choose to history of abuse and of suicidal substance adequate for defendants who standard thoughts, firmly repeatedly Dr. Free plead guilty, necessarily not it is ade- competent. testified that was quate plead guilty.53 for those who Thus, the trial court’s conclusion addition, Kentucky precedent supports competent, to trial is stand heightened Ac a conclusion that there is no supported substantial evidence. competency required in order cordingly, we find that the trial court was standard Thus, reject clearly guilty plea.54 it to enter a erroneous when held 504.060(4); ("Little places Dusky evidence 49. KRS also v. United 52. Id. at 33 see States, 788, 789, Appellant’s competency in doubt most ruling supports it the trial court’s ultimate (1960) (holding 824 that the test of L.Ed.2d guilty. Appellant competent plead to that was competency defendant] is "whether he [the Thus, ruling we that the trial court's conclude ability present has sufficient to consult with and, supported by substantial evidence was degree lawyer his with a reаsonable of ration- therefore, erroneous.”) clearly (citing not understanding al he a ra- whether has —and Branham, 835, United v. 97 F.3d 855 States understanding tional as well as factual of the (6th Cir.1996), proposition for the that com- (internal proceedings against quotation him.” fact). findings petency are determinations omitted)). marks Godinez, 398-99, 113 S.Ct. at 53. 509 U.S. at Godinez, 398, at 50. 509 U.S. at 2686. 2686. Commonwealth, 554 S.W.2d 54. Littlefield ("Kentucky has Thompson, (Ky.App.1977) 147 S.W.3d at 32. 873

175 May Guilty 3. A Plead to Chapman’s contention that a defendant Defendant Capital a to seeking guilty any Order plead to to must offense Offense Penalty. Seek the Death higher competen- held to a standard of cy than generally that required of a defen- Chapman contends that a defen dant to trial. stand dant seeks receive death pen who to alty inherently incompetent. Chapman Since we have found that trial court argues that we the Arkan adopt should clearly did finding not err in may position sas defendant trial, logically to stand it follows a jury waive trial on the of sentenc issue finding did not err in ing guilt capital or in a case55 because a Chapman competent But plead guilty. to defendant who to those seeks waive con is not the end our competency protections stitutional and seeks his own inquiry as now turn heart of this simply voluntarily execution has not and case: Chapman’s contention that higher intelligently56 rights.57 waived his competency required standard of disagree. plead in guilty who wishes to order to seek the death penalty than would earlier, noted in Kentucky, As the death apply to a typical defendant who wishes constitutionally is a permissible plead in guilty order to receive a lesser punishment capital for certain offenses. sentence. In order to rеsolve that ques- certainly nothing inherently And there is tion, however, we must first determine a person deciding unconstitutional about whether a defendant ever plead guilty responsibility take his or her criminal capital offense in order to seek the having misconduct without undergone first death penalty. Adhering full-blown trial.58 to a defen- view, adopted Shank, holding compe- the latter State v. See So.2d plead guilty

tence competence (La. 1982) ("Moreover, and to stand a defendant’s election standard."); subject trial are to the same strict represent purpose himself for the of ac Commonwealth, Thompson v. 56 S.W.3d quiescing in capital his conviction of a offense ("Under law, (Ky.2001) Kentucky death sentence cannot be sanc competency plead guilty and competen- choice.”). intelligent tioned as an cy identical.”). to stand are Fisher, Barry 58. See J. Suicide Judicial or State, 55. See Newman v. 353 Ark. Autonomy? Capital Constitutional A Defen- (2003) ("Arkansas S.W.3d 456-57 Rule Right Guilty, dant’s to Plead Alb. L.Rev. prohibits Criminal Procedure 31.4 a defen- ("However, (2001) reviewing the histo- charged capital dant murder from waiv- ry plea, guilty Anglo-American ing jury guilt either a trial on the issue of or suggests prohibi- law that an across-the-board right to have his sentence determined against capital guilty pleas tion violates the (1) jury unless court determines the waiv- process. right fundamental of due notion voluntary er is and was made without com- accused, facing of an even one the death coercion, (2) pulsion has penally, unconditionally plead guilty to the State, been waived the State against charges explicitly recognized him was has assented to the defendant’s waiver of his widely law. It has common beеn trial, to a and such waiver has been uniformly acknowledged almost and honored court.”). approved by the trial state federal courts since the Colonial Martinez, Further, 161, period. right protected 56. See remains 528 at at U.S. 120 S.Ct. ("As opinion recognized, 691 in the statutes and court of all states the Faretta the decisions Arkansas, Louisiana, right self-representation to is but and New York.” not absolute. (footnotes Bonnie, omitted)); voluntarily The defendant must and 74 Va. L.Rev. at intelli- defense[.]”) ("A gently prisoner to elect conduct his own convicted 1376 does not become (internal omitted). quotation pawn prisoner marks a Even state. a sen- 176 pleads guilty for a who penalty opinion choice seek the death

dant’s to dignity vestiges personal honors the last of the to a offense order to seek Therefore, available to a defendant.59 such ensuring as that the penalty death —such we hold that a criminal defen- a factual ba- competent, defendant is that to a plead guilty dant is entitled to seek to the the support imposition sis to of exists and, furthermore, to capital offense to seek re- penalty, proportionality and our Thus, re- penalty.60 receive the death we the amply protect state’s interests. view— ject that Chapman’s argument the state’s Indeed, rights the of citizens of a free the overriding assuring interest society types to these of choices make in a is meted out constitu- concerning their future are essential- own tionally permissible invariably manner functioning society the as a proper to of accept a overrides defendant’s to whole,61 system our of criminal as well as responsibility past criminal fоr his miscon- justice.62 in this safeguards duct. The contained 1306, constitutionally pro- e.g., Wolff, a 60. See v. tenced to death retains Lenhard 1312-13, 3, (Rehn belief, expres- 61 885 sphere autonomy 100 S.Ct L.Ed.2d tected of —of 1979) ("The and, extent, sion, quist, idea that the Circuit Justice to a limited action. of of one under sentence deliberate decision prison- respect state is bound a convicted to legal possible death to additional abandon He is er’s inalienable freedom of conscience. be of that sentence cannot avenues attack on guilt repent, just as he free to admit his and to motive, decision, regardless its of rational proclaim is his defiance free to innocence in suggests preservation of one’s own the of verdict he stands convict- under which bonum, a at life whatever cost is summum resign ed. to He is free to himself the social greatest proposition respect to which the decree, pun- acknowledging justice of agreed philosophers theologians have not ishment, decry just free as he is to it. respect United States and with to which the prisoner may A condemned believe that speak.”); terms does not Constitution its justly sentence of death is deserved State, 1264, (Ind. N.E.2d 1271 Smith v. 686 out, notwithstanding be should carried 1997) (holding could enter that a defendant validity. A con- existence of doubts about its plea agreement called for into a which prisoner may prefer the unknowable demned penally); State defendant to receive pains fate of to the known of im- execution 783, Brewer, 792 P.2d v. 170 Ariz. prisonment, only option likely to be avail- first, (1992) (“Defendant likely is not the long prisoner competent to able. As as the is last, person plead guilty in a death not the to choice, the make an informed and rational incompe say he is case. We cannot argument respecting this choice would impulses sim prone tent self-destructive one.”). appear a powerful (internal to be ply because he desires do so.” omitted)). footnote Death, Kozinski, Tinkering

59.See Alex With Yorker, 10, 1997, ("It The New Feb. See, e.g., Mississippi, U.S. Minnick v. capital punishment has said is cruel been 146, 167, 112 L.Ed.2d degrading it is human and unusual because ("While (Scalia, J., every dissenting) dignity.... dignity life But the of human silent, person it more to stand is entitled existence, mere but from that comes wrongdoer to admit his of- virtuous for the ability separates which the beasts— us from accept punishment he fense and deserves. choose; ability of When freedom will wrongdoer only society, but for the Not ..., say himself, we who has a man—even man guilt if not ‘admissio[n] desirable,' coerced, inherently committed horrible crime—is not free because it [is] choose, away dignity just surely justice reha- goals we take his as both advances the ” (internal omitted)). when kill Baal has as we do we him. Thomas bilitation’ citations society’s punish- accept made decision Willis, By refusing F.Supp. with it. ment and done United States decision, (D.D.C.1948) ("The denigrate power a court respect status his accept plea guilty traditional and being.”). as human Furthermore, depart we de reason to from that stan- decline to find no may clare that a defendant plea agree- waive dard in situations where the to a fix Such right jury have his sentence. to ment calls for a defendant receive the holding a would to be in appear conflict Thus, may trial court penalty. a 9.26,63 RCr well as our previous as agreement calling imposi- plea treаt a recognition that a defendant has con the plea tion of the death like other right a by jury.64 comitant to waive trial agreements must exercise discretion to —it authority cited any We have not been to agreement plea determine whether the will that moves us find that a rejected. accepted be or sentencing the right jury loses to waive

simply pleaded because that defendant has court, including No trial the guilty capital to a offense. So we decline hand, is obligated one in the case join minority invitation the a death simply sentence defendant to be viewpoint found in Arkansas’s ban on a for in plea cause that sentence is called the right jury sentencing defendant’s to waive agreement. a defendant Sentencing involving penalty. in a case the death the because defendant volunteers to improper be executed is and is an abuse 4. When a Pleads to a Guilty Defendant (or Rather, acceptance discretion. an re Capital and Seeks Death Offense jection) guilty plea of a is a decision that Penalty, the Trial Court is Re- Not case-by-case must made on a be basis. quired to Sentence the Defendant accepting any plea agreement, Before Death. trial itself court must assure Although have held that de is agreement legally permissible rep plea fendant is to enter entitled into a appropriate pun resents an resolution and which agreement under the defendant crime(s) ishment for which the de pleads guilty to a offense seeks Thus, plead guilty. fendant seeks to penalty, it is vital for the bench abuses its auto court discretion bar of the Commonwealth to under matically accepting rejecting guilty obligat stand that our trial courts are not plea making particular without first ed to accept plea agreements. those And case-specific ized and determinations that we must assure ourselves that the trial and, legally plea permissible consid Chap this case did not accept ering underlying all the facts and circum plea agreement man’s simply because it offense(s) stances, appropriate for the obligated believed that it was to do so. question. Generally, the trial courts of Com-

monwealth have the discretion either to must examine the record to We accept reject agreements.65 or to plea judge assure that sentenced Commonwealth, necessary fundamental. Its existence is v. Marshall S.W.3d ("It (Ky.2001) purpose serving now well settled practical ends of accused, voluntary that an in the exercise of a law.”). the administration of criminal choice, intelligent may waive his trial.”); jury Estoppel see also 28 Am.Jur.2d 9.26(1) provides required 63.RCr that "[c]ases (2007) ("As general § prop- and. Waiver 213 by jury be tried be shall so tried unless the osition, rights guaranteed the state or fed- writing with defendant waives a trial in waived.”). eral constitutions approval of the court and the consent the Commonwealth.” Maricle, S.W.3d 20- See Hoskins (Ky.2004). plead to seeking guilty the be- and not

Chapman judge to death because was appropriate expedite proceedings against lieved that death was an sen- the him for (such and Chapman’s tence for crimes not be- an improper irrational reason as judge required cause the believed he was solitary get- of getting out confinement or mechanically impose called the sentence ting awаy being housed in the local agreement. in the plea for (4) jail); orally writing in found both and statutory aggravating fac- that numerous here We have some concerns because (5) and in the present; tors were wrote sentencing trial at the court commented into judgment final that it took account the penalty that the death was a consti- since Free, testimony Chapman’s history of Dr. tutionally permissible punishment for character, and nature circum- and the and Chapman’s capital Chapman and offenses crime, sentencing of the before stances penalty of had decided seek the death Thus, we find that the Chapman death. will, reject own then a decision to his free court record demonstrates that Chapman’s agreement could con- plea be Chapman upon strued as an The trial sentenced to death based abuse discretion. generally commented the ef- na- unique also its careful consideration of the rejecting agreement plea fect that the Chapman ture and circumstances would, essentially, meaningless be a exer- Chap- his that offenses.66 So we conclude rejected plea agree- if it the cise because merely not man was sentenced ment, simply Chapman would refuse that the because the trial court believed ask present personally evidence would plea agreement precluded other sentenc- jury the to sentence him to death. ing options. concerns,

Despite are those satisfied did, fact, that the court in case in Guilty Chapman’s Plea Was sentence to death because the Not State-Assisted Suicide. that penalty court believed was rejeсt con Chapman’s related punishment Chapman, an for appropriate guilty pleads tention that defendant who simply punish- not that the because was is penalty in to receive the death order plea agree- ment for in called pre committing suicide. As state-assisted upon ment. Our conclusion is based the noted, any plea capital in a viously guilty (1) Chap- fact trial court informed receive case in which defendant seeks to range punishment man of entire closely must scruti (including punishments his offenses less it consti nized to ensure that protects (2) death); than informed defendant, as rights tutional as well ‍​‌​​‌​​‌​​​‌‌​​​​​​​​​​‌​​​‌​‌‌‌‌​‌​‌‌​‌​​‌​​‌‌‌‍rejected consequences Chapman’s plea if it ensuring interest Commonwealth’s (such Chapman having as then agreement not to fur that the death used guilty plea); to withdraw That ther motives. a defendant’s suicidal patient thorough engaged in several de scrutiny negates possibility that a colloquies Chapman in order to deter- using punishment mine fendant incompetent Abdul-Kabir, —, appropriate is an U.S. at and decide whether death Cf. at — ("Our light punishment of his individual in S.Ct. 167 L.Ed.2d line personal history long recognized characteristics and of cases this area has offense.”). Presumably, grave before a can undertake the task of circumstances of sentence, judge before imposing must be must consider the same factors a death it allowed sentencing culpability moral death. to consider defendant's

179 tency as a by scheme method to commit suicide.67 standard set forth the United Thus, we a holding refuse to issue blanket in Supreme Peyton.69 States Rees v. Court competent plea guilty that a of defendant’s Rees, sought a death-sentenced Rees legally in he permissible which seeks a relief, habeas which was corpus denied sentence devolves into an unconstitutional appellate courts. Rees then because plea sought by the sentence attorney’s filing petition consented to his defendant is death.68 our And review of certiorari, he later but asked his attor- case, the record in this in as demonstrated ney to withdraw the certiorari petition. opinion, shows that plea subjected Rees psychiatric was then to competently, knowingly, intelligently, was evaluations, psychiatrist after which one voluntarily Furthermore, made. opined incompetent, he was while oth- death is not disproportionate psychiatrists conclusively er were unable for Chapman’s sentence heinous offenses. to Chapman’s plea opinion So an offer an due to lack of impermissible Rees’s “suicide court.” cooperation. psychiatrists Those “ex- pressed doubts” that Rees was “insane.”70 The Competency 6. Standard to Be deciding Before whether Rees’s certiora- Used When a Seeks Defendant petition dismissed, ri be should the Su- Penalty. Death preme Court remanded the to the matter Having it generally determined that report concerning district court to issue permissible plead for a to guilty defendant competence. Supreme Rees’s Court capital to a offense in to order seek the ordered the district court “to determine and having determined that competence in present Rees’[s] mental Chapman’s plea is not state-assisted sui- is, posture of things, that whether he has cide, we now must determine whether the capacity appreciate position to speсific plea at issue in this passes case make a rational choice with respect constitutional muster. In order to make continuing abandoning litigation or further assessment, argues that we (and or on the other hand whether he is suffer- any court presiding over a case ing disease, disorder, from a mental or which to plead guilty desires in order to seek defect penalty) may substantially which affect his are required apply heightened capacity compe- premises.”71 Passaro, 499, 67. proponents State v. denigrated by aggressive 350 S.C. 567 often of 862, (“We disagree S.E.2d judicial amounting nothing review as more appellate argument allowing counsel’s an hy- than suicide.’ ‘state-administered This is murder, plead guilty individual to be sen- course; perbole, only execution if general to death tenced and waive his lawfully imposed death sentence amounts appellate review is to State tantamount assist- agent homicide is the an state suicide when suicide.”); Bloom, Cal.Rptr. ed prisoner it executes a de- who has ("Second, penal- P.2d 715-16 if the trier of (internal clined to contest his sentence." ty appropriate has determined death be the omitted) added)). (emphasis footnotes punishment, judgment and the death meets reliability, constitutional standards 69. 384 U.S. 16 L.Ed.2d reasonably judgment regarded cannot as (1966). (other doing the defendant’s than his com- crimes) mission of the or its execution Rees, 384 U.S. at 86 S.Ct. at 1506. suicide.”). as Bonnie, ("The pris- 74 Va. L.Rev. at 1375 71. Id. at S.Ct. at 1506. controlling oner’s interest in his own fate is suggested that Mr. does not agree that .Rees is the stan competency thought psy- of this dard of courts suffer from disorder must use when a defen dysfunction. Commonwealth chotic Mr. plead guilty,

dant desires waive suffering Polysubstance seen as presentation of sentencing mitigation Dependence, from a long-standing Dys- evidence, and trial court to be asks the Disorder, thymic symptoms and from of in Although to death. Rees sentenced Stress Disorder. Mr. Post-Traumatic abandonment post-conviction the of volved was believed to suffer from a Chapman request pre and proceedings Personality involving Disorder both An- trial, essentially this is a distinction with Features. tisocial and Borderline Mr. guilty to a out a difference. Pursuant competent was seen as to Chapman he plea, the standard would be “whether lacking as stand trial and substantial capacity position to his and appreciate has argue inability to grounds to an bear respect a rational choice with make responsibility. criminal jury sentencing, [pleading guilty, waiving And, evidence, seeking and waiving mitigating Chapman appears Mr. to be need of penalty] on the other hand to assist him to deal with his counseling a suffering he is from mental whether mood and his chronically depressed disorder, disease, which sub or defect post-traumatic symptoms. Such ser- in the stantially capacity premis affect his provided and could should be vices es” of disposition the his period prior Standard, Trial the Rees Applying and thereafter. charges Did Err When it Found Court Not Chapman competent The found trial court Guilty, to Plead Chapman Competent readied parties trial and for stand Jury Mitigation Evidence and Waive trial. Sentencing, the Death Pen- and Seek changed Chapman The when focus alty. wrote sent a four letter page and hand, In the the trial court case at seeking discharge his trial court attor- undergo Chapman to evaluation required pen- death neys, and plead guilty, seek times, including three twice after at KCPC brought alty. again Competency was desire expressed plead his Chapman Chap- The court sent forefront. purpose to seek The guilty and death. man evaluation. back to KCPC another evaluate first evaluation was to wheth again Dr. the evaluation Free conducted was to stand trial. Chapman competent er report October prepared and dated Free, PhD., J.D., H. licensed Stewart competency testified hear- prepared twenty page re psychologist, ing on October 15, 2004, port September which ex dated incorporated report’s used for Dr. his first plained methodology evalua Free testing, and the results of each and conclusions into second re- findings tion and supplements Dr. Free’s thereto. Dr. port test that was administered. and made that: report trig- extensive concluded Free the second evaluation was knew gered by Chapman’s request discharge examination The results medical counsel, and to plea guilty, enter a seek suggested that Mr. testing psychological second evalua- penalty. organ- from an Chapman does not suffer tion, explored opportunities damage. impairment ic or brain explained his him. KCPC available to of the total evaluation at results tactics and articulated a logically thought depressed man’s mood rose to that level. thorough analysis situation, out and of his asked if Chapman When options available, his and his reasons were to be treated for depression, his proceeding way. his He was coherent and whether or change would his under no delusiоns. Much of the first pleading guilty mind about seeking report was discussed. Dr. Free testified penalty, Dr. Free that it stated he stood his report Chap- first possible. man depression has insight is im- While neither the court ap- nor counsel result, paired overall, somewhat as a but Rees, peared aware the trial court rec- trial, he is pro- to stand and to ognized that there higher must be a stan- ceed as he Although wishes. Dr. Free was dard competency of for an individual that not competency aware of different stan- counsel, discharge wants to enter a plea, dard to stand trial than to discharge coun- penalty, seek the death than the stan- sel, death, plead guilty and report seek his competency dard of to stand trial. After concluded that: questioning Chapman, extensive of Psychological testing during prior his even after twice advising Chapman to fol- stay, KCPC and collateral information advice, low attorney’s his the trial previous about testing sug- elsewhere gested Chapman that Mr. ordered back to for fur- Chapman is not mental- KCPC ly retarded. The results psychologi- of ther treatment depression for his for a testing cal and medical examination period needed, thirty days, of or as suggested that Chapman Mr. does not Chapman’s treatment of depression, and suffer from an organic impairment or for further testing. Chapman admit- was damage. brain The results of the total ted to KCPC on October and dis- evaluation suggested KCPC that Mr. 5,2004. charged on December Chapman does not suffer from a On December the trial court contin- thought psychosis. disorder or There competency hearing ued the started on nothing was Chapman’s Mr. presen- October 21. The court reexamined Dr. tation, responses, or testing results to- Chapman. Free and Dr. Free testified day change those conclusions. Mr. that on Chapman pre- November was Chapman appears to have a rational un- scribed Zoloft and continues on this medi- derstanding situation, of legal his and a depression. cation to treat his Dr. Free plan settled disposition of his opined the of effects Zoloft should be felt charges that is consistent with the legal days weeks, within a few to a few but process that must be followed. patients generally are told two to four Dr. Free acknowledged that Chapman’s opined weeks. Dr. Free that plead guilty decision to was colored his depression thirty could not be cured in history depressed of mood and his situa- days; that depression, still has tion, but believed competent he was but that it does not legal compe- affect his make the decision. The trial court in- tency. Chapman expressed his desire to quired of Dr. Free whether Chapman’s the trial court that he still to pro- wanted chronically depressed mood would affect counsel, by firing ceed his ability guilty his enter a choose the outcome of his case, plea, waive sentencing, request or to be the “master of ship.” his own penalty. Dr. Free the death opined that an individual could After both sides were depression quality, permitted Free, have a of question such but Dr.

that it did not appear Chap- to him that court found:

1) respect no a rational with The Court finds there is evidence make choice in the any present pleading guilty, waiving jury mental sentencing, condition evidence, impair the Defen- waiving mitigating seeking Defendant would ability capacity hand, a lack of penalty, dant’s the death or on the other show appreciate legal his suffering situation. was not disease, mental or defect which disorder 2) any does find evidence The Court not substantially capacity in affect his in the present of a medical condition Also, premises. the trial court’s decision the Defen- impair Defendant would clearly not it is sup- erroneous because a lack to under- capacity dant or show in the form ported substantial evidence consequences stand the nature and testimony Dr. Free’s and the trial against proceedings him. colloquies Chapman. court’s Accord- 8)The any Court does find evidence ingly, we affirm the trial court’s conclusion in the present of a mental condition plead ability impair Defendant that would penalty. in order to guilty seek ability participate or show a lack of rationally in his own defense.

4) Defendant, finds Mar- The Court Plea. Factual Basis for Chapman, competent co Allen stand that As a final contention his in competent participate and trial reversed, Chapman must guilty plea proceedings him. against these that the did not suffi argues trial court 5) finds The Court that the Defendant’s a factual ciently assure itself that basis of October 2004 entitled letter plea. for the existed “Guilty solely by Plea” Mr. was written Chapman, and that the document was During the trial several meticu- court’s voluntarily knowingly, intelligently and colloquies Chapman, trial lous by the prepared Defendant. and rights informed him re- court of his 6) choose competent The Defendant is aware of peatedly asked him if he was his Attorneys. to fire his he wanted to rights and was sure that 7) repre- through The Defendant them. The court went waive trial mitigation sent himself. available to possible evidencе history physical of Chapman, including his 8) Defendant, eyes are fact, the In trial and substance abuse. to the of his open consequences wide extraordinary repeatedly took the choices. disagreed it step telling Chapman that 9) right The Defendant’s assertion to his attorneys and with his decision to fire his intel- self-representation knowingly, to receive the plead guilty in order voluntarily made. ligently penalty. 10) the dan- The Defendant understands self-represen- gers disadvantages that his reject Chapman’s contention We tation. fact by the guilty plea was invalidated 11) knowingly and The Defendant has him require person- court did the trial not voluntarily waived to counsel. his guilty for his ally to recite the factual basis binding to no plea. Chapman has cited findings opine that trial court’s to obtain a authority requiring a trial court Rees stan- wholly are consistent with the plea by underlying guilty basis dard, had the factual and do show that to recite appreciate position requiring personally a defendant capacity to his him, record docu- charges against guilty plea.72 the factual basis for a fact, appears the rule to be that between ments the discussion satisfy court can itself that there is a factu- in Virginia authorities which and the West guilty plea any al for a in number of basis greater forth in detail Chapman set many ways,73 of which do not involve particulars of his crimes. personally reciting his involve- argument that assuming Even underlying gave

ment in the facts which ascertaining the a trial court errs not charges.74 rise to the criminal Even San- be underlying guilty plea factual basis by Chap- principally upon tobello relied plea, we do not hold accepting fore man, absolutely requirе not a defen- does invariably that a trial court must obtain personally to recite the factual dant basis by asking a defendant to that factual basis Rather, underlying guilty plea. his Santo- in give a statement which he recites only provides bello that one method crime(s) in to which he involvement acquiring underlying a factual basis the record plead guilty. seeks to Since guilty is from a recitation a defen- plea from which the ample contains evidence Indeed, it dant. has been held ascertained the fac trial court could have requirement for a factual basis is satisfied guilty underlying Chapman’s tual basis unduly compli- cases do involve argument that plea, reject Chapman’s if summary charges cated crimes is read to the defendant and the defendant reversible error occurred when having admits committed the offense.75 him to recite at require court failed to length his involvement the offenses case, carefully In this the trial court issue. charges against Chapman recited the

asked him if he committed those offenses. K. Error. Cumulative Al- Chapman answered in the affirmative. that his con- Finally, Chapman contends though Chapman later claimed to re- portions gave call of the that rise to victions and sentence must reversed events he constitutes the 72. Federal Rules of Criminal Procedure defendant did that believes 11(b)(3) provides entering judg- pleading guilty.... “[b]efore This crime to which he is guilty plea, method, ment on a the must deter- court only by ideal method is no means mine that there is factual basis for recognize that the district however. plea.” Notably, Kentucky Criminal Rules of [Federal determine the existence of the 8.08, (RCr) governs pleas, Procedure which 11(f) factu- Proсedure] Criminal Rule Rule of expressly requirement does not contain that sources, including al basis from a number a factual basis trial court ascertain govern- on the record from statement accepting guilty plea. before prosecutors as well as a statement from ment (citing v. defendant.” United States York, 257, 261, 73. Santobello v. New Cir.1988)) (6th Goldberg, 862 F.2d 495, 498, L.Ed.2d 427 92 S.Ct. (“Fed.Rule omitted)); (internal quotation marks see also governing pleas in Crim.Proc. (2007). § Criminal Law 715 21 Am.Jur.2d courts, federal now makes clear that sen- record, tencing judge develop, must on the as, Buren, 75.See, example, plea, e.g., the factual basis for the v. Van United States by having (6th Cir.1986) ("Where the conduct accused describe F.2d gave charge.” (emphasis understood, rise to the add- easily courts several crime is ed)). indictment, reading of the have held that a summary charges in indict even a Tunning, United States v. 69 F.3d defendant, ment and an admission (6th Cir.1995) ("The ideal means to a factual basis under sufficient to establish guilty plea the factual basis for a establish 11.”). Rule the defendant to for the district court to ask words, state, defendant's own what in the under the cumulative error doctrine RESOURCES,

which CHEYENNE INC. multiple harmless errors can be Construction, deemed to have the & H same deleterious effect PC However, prejudicial Inc., Appellants as one error. since errors, have found no the cumulative error inapplicable.76 doctrine is CORPORATION, ELK HORN COAL V. CONCLUSION. Appellee. reasons, foregoing For the Marco Allen No. 2006-SC-000721-DG. Chapman’s convictions and sentence are affirmed. Kentucky. Supreme Court of LAMBERT, C.J.; All sitting. Sept. CUNNINGHAM, MINTON, NOBLE, SCHRODER, SCOTT, JJ, concur.

LAMBERT, C.J., also concurs NOBLE, J.,

separate opinion in which

joins.

Concurring Opinion by Chief Justice

LAMBERT. I concur

While with the result of the

majority I opinion, separately write to em-

phasize volunteerism with

respect penalty plays part to the death no my concurrence.

Imposition of the death is the expression outrage

ultimate of state

criminal conduct. The wishes of a defen-

dant, whether motivated sincere re-

morse, escape imprisonment, desire to life control,

or to assert play part should no

a death determination. The death imposed ‍​‌​​‌​​‌​​​‌‌​​​​​​​​​​‌​​​‌​‌‌‌‌​‌​‌‌​‌​​‌​​‌‌‌‍only should be litigation process,

conclusion of the after

every possible legal claim available to the explored

defendant has been deter-

mined to be without merit.

NOBLE, J., joins concurring

opinion. Commonwealth, (Ky.2005). Welbom v. S.W.3d

Case Details

Case Name: Chapman v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Apr 21, 2008

Citation: 265 S.W.3d 156

Docket Number: 2005-SC-000070-MR

Court Abbreviation: Ky.