Lead Opinion
Opinion of the Court by
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
Chapman provided the West Virginia authorities with many of the chilling details of his crimes against the Marksber-rys. He claimed that he and Marksberry had been involved in a sexual relationship for about a year, and he knеw 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 Marks-berry 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
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 Marks-berry. The trial court reiterated to Chapman its belief that Chapman was making a mistake in filing 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
The trial court then sentenced Chapman to death for the murder of Cody and Chel-bi, 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 defendаnt 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.
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;
8)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 (¿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 un-
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,
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 “[wjhether 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,
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.
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.
F. Chapman’s Indictment is Not Defective Because it Fails to Enumerate the Aggravators that Made Him Eligible for the Death Penalty.
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.
We have rejected arguments along these
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.
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
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.
But we see distinct advantages for Chapman in the appointment of these recently-fired attorneys. For example, these attorneys were already familiar with the ease, 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.
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.
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.
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.
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.
Likewise, Chapman’s counsel’s reliance on the recent decision of the United States Supreme Court in Abdul-Kabir v. Quar-teo~man
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 ne*172 gate 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, ‘Society’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 déath 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 CaLRptr. 537, [569-70],797 P.2d 561 , [593-94].)44
Consequently, we find no error in the trial court’s refusal to consider the improperly tendered mitigation evidence at hand.
I. The Commonwealth’s Attorney’s Alleged Plea Negotiations With Chap- ' man While Chapman Was Represented by Counsel Do Not Compel Reversal.
Chapman contends that the Commonwealth’s Attorney violated our Rules
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.
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.”
A competency determination is based on the preponderance of the evidence standard.
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.53
In addition, Kentucky precedent supports a conclusion that there is no heightened standard of competency required in order to enter a guilty plea.
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
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.
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.
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 аll the underlying facts and circumstances, appropriate for the offense(s) in question.
We must examine the record to assure that the trial judge sentenced
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.
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
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.
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.”
Before deciding whether Rees’s certiora-ri 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.”
7. Aрplying 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 Dys-thymic 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
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 tеsting 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 fоr 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:
*182 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.
8)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, Marсo 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 collоquies 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
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
V. CONCLUSION.
For the foregoing reasons, Marco Allen Chapman’s convictions and sentence are affirmed.
LAMBERT, C.J., also concurs by separate opinion in which NOBLE, J., joins.
Notes
. 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.
. See Kentucky Revised Statutes (KRS) 532.075(1). ("Whenever the death рenalty 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.
. Johnson v. Commonwealth,
. See, e.g., Thompson v. Commonwealth,
. This issue is also unpreserved.
. Wheeler v. Commonwealth,
.See, e.g., Sanders v. Commonwealth,
.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.
. See, e.g., Epperson,
. See, e.g., Johnson,
. 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,
. Epperson,
. See, e.g., Tamme v. Commonwealth,
. Chapman admits this issue is unpreserved.
. 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 рrobation or parole until the defendant has served a minimum of twenty-five (25) years of his sentence, shall not be imposed.”).
. KRS 532.025(l)(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....”
. See, e.g., Soto v. Commonwealth,
. 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,
. Hill,
. Martinez v. Court of Appeal of California, Fourth Appellate Dist.,
. Id. at
. Commonwealth v. Berry,
. Godinez v. Moran,
. Martinez,
. See, e.g., State v. Wilson,
. See St. Clair v. Commonwealth,
. 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,*168 does not constitute an endorsement of the client’s political, economic, social or moral viеws or activities.
. See, e.g., Baker v. Commonwealth,
. See KRS 532.025(l)-(2)("(l)(a) Upon conviction of a defendant in cases where the death penalty may be imposed, a hearing
. See Holloway v. State,
. See KRS 446.010(30) (" 'Shall' is mandato-iy....”).
. Commonwealth v. Paisley,
. See Soto,
. St. Clair,
. See, e.g., Berry,
. Faretta,
.
. See, e.g., Ashworth,
.
. Id. at 857.
. Id. at 856.
.
.Id. at
.
. Cf. St. Clair,
.Chapman admits this issue is unpreserved.
. 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.”).
. KRS 504.090; see also Godinez,
. KRS 504.060(4); see also Dusky v. United States,
. Godinez,
. Thompson,
. 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,
. Godinez,
. Littlefield v. Commonwealth,
. See Newman v. State,
. See Martinez,
. See State v. Shank,
. 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 penally, 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 sen
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.”).
.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.”).
. See e.g., Lenhard v. Wolff,
. See, e.g., Minnick v. Mississippi,
. See, e.g., United States v. Willis,
.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.”
. Marshall v. Commonwealth,
. See Hoskins v. Maricle,
. Cf. Abdul-Kabir, 550 U.S. at —,
. See, e.g., State v. Passaro,
. 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)).
.
. Rees,
. Id. at
. 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 thаt a trial court ascertain a factual basis before accepting a guilty plea.
. Santobello v. New York,
. See, e.g., United States v. Tunning,
.See, e.g., United States v. Van Buren,
. See, e.g., Welbom v. Commonwealth,
Concurrence Opinion
Concurring Opinion by
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.