Chapman v. Com.

• Decision Date: 23 August 2007
• Docket Number: No. 2005-SC-000070-MR.,2005-SC-000070-MR.
• Citation: 265 S.W.3d 156
• Parties: Marco Allen CHAPMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

265 S.W.3d 156

Marco Allen CHAPMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2005-SC-000070-MR.

Supreme Court of Kentucky.

August 23, 2007.

Concurring Opinion Ordered Published December 27, 2007.

As Modified on Denial of Rehearing April 21, 2008.

Reconsideration Denied October 23, 2008.

Donna L. Boyce, Appellate Branch Manager, Emily Holt Rhorer, Assistant Public Advocate, Randall L. Wheeler, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, David A. Smith, Assistant Attorney General, Tami Renee Stetler, Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice MINTON

I. INTRODUCTION.

During the course of robbing Carolyn Marksberry, Marco Allen Chapman raped and stabbed her before stabbing her three small children, killing two of them. Appearing in circuit court to answer for these brutal crimes, Chapman made an unusual plea agreement with the Commonwealth in which he agreed to plead guilty and volunteered for the death penalty. The circuit court ultimately accepted the plea agreement and sentenced Chapman to death.

The case before us is the review of Chapman's conviction and sentence in which we are asked to resolve several questions concerning the death penalty in Kentucky. The ultimate question is whether a defendant may enter into a plea agreement to forgo a jury trial and sentencing and volunteer for the death penalty. We answer that question in the affirmative.

II. FACTS AND PROCEDURAL HISTORY.

The facts of this heinous crime are not disputed. In August 2002, Chapman entered Marksberry's home in Gallatin County, Kentucky, where he raped and stabbed Marksberry, who survived. He then stabbed Marksberry's three young children. Cody and Chelbi died. Courtney survived.

Chapman was quickly apprehended in West Virginia. He told the West Virginia authorities¹ that he was "gonna go get some party materials and park out in the woods somewhere and die." Chapman also asked one of the policemen: "[H]ow about doing me a favor and put a bullet in my forehead[?]" He told the authorities that he hoped he would not live three weeks to turn thirty-one and that "[a] bullet is the only help I can get."

Chapman provided the West Virginia authorities with many of the chilling details of his crimes against the Marksberrys. He claimed that he and Marksberry had been involved in a sexual relationship for about a year, and he knew that her husband was working overseas. Chapman stated that he came to Marksberry's home on the day in question armed with a knife. He planned to have sex with her and to rob her afterwards. He said that they had consensual sex but then she had "raised all kinds of hell" when he told her that he was going to take money from her. Chapman told the authorities that he bound Marksberry with a vacuum cleaner cord and gagged her with duct tape. Chapman said that he first stabbed Marksberry and then stabbed her three screaming children.

Chapman was later indicted for two counts of capital murder, two counts of attempted murder, one count of rape in the first degree, one count of burglary in the first degree, one count of robbery in the first degree, and one count of being a persistent felony offender in the second degree. Chapman's appointed counsel filed numerous pretrial motions, including a successful motion to change venue from Gallatin to Boone County. During pretrial proceedings, the trial court ordered Chapman to undergo the first of three competency evaluations at the Kentucky Correctional Psychiatric Center (KCPC). After the first evaluation, the trial court conducted a hearing to determine Chapman's competency to stand trial. At that hearing, Dr. Steven Free, a psychologist from KCPC, testified that Chapman had a history of mental health-related issues. But Dr. Free concluded that Chapman was competent to stand trial. And at the close of that hearing, the trial court ruled that Chapman was competent to stand trial.

Not long after the first competency ruling, Chapman wrote a letter to the trial court in which he stated that he wanted to dismiss his attorneys, waive a jury trial and sentencing, plead guilty to all the charges, and be sentenced to death. In that letter, Chapman expressed remorse for his crimes and stated that he was "willingly ready to accept the sentence of death ... because ... that is the only acceptable sentence for the crimes I have [committed] against the [Marksberrys] and humanity itself." The trial court then ordered Chapman back to KCPC for a second competency evaluation.

Following the second evaluation by Dr. Free, the trial court conducted a second hearing regarding Chapman's competency to enter into the plea agreement. At that hearing, Dr. Free testified that he believed Chapman was competent but expressed the thought that Chapman's decision to fire his attorneys and to ask to be executed could possibly change if he received mental health treatment. Chapman also testified. So the trial court delayed ruling on Chapman's motion to plead guilty; instead, it ordered Chapman back to KCPC "for a period of thirty days for treatment and examination."

A few weeks later, the trial court conducted a third hearing on Chapman's competency. This time, Dr. Free testified that Chapman had been given an antidepressant medication (Zoloft) at KCPC resulting in little to no change in Chapman's mental health. Dr. Free again opined that Chapman was not incompetent. The trial court then ruled that Chapman was competent to fire his attorneys, to plead guilty, and to seek death. Final sentencing was set for the following week. Over the objections of both Chapman and his former attorneys, the trial court appointed the same attorneys Chapman fired to act as his standby counsel.

At the final sentencing hearing, the Commonwealth presented brief testimony to establish the essential underlying facts of the case, including testimony by Marksberry. The trial court reiterated to Chapman its belief that Chapman was making a mistake in firing his attorneys and waiving his right to jury sentencing and/or trial. But the trial court acknowledged to Chapman that there was no legal authority preventing him from pleading guilty and seeking death. The trial court observed that rejecting the death sentence in the plea agreement would likely prompt Chapman to withdraw his guilty plea only to ask a jury to sentence him to death. The trial court then stated that it had read a psychological report delivered to chambers by standby counsel containing mitigation evidence. The trial court made clear that it had considered the content of the report for Chapman's competency. The trial court stated that it had not considered the mitigation evidence because Chapman did not want to present any mitigation evidence.

The trial court then sentenced Chapman to death for the murder of Cody and Chelbi, twenty years' imprisonment on each attempted murder conviction, life imprisonment for his rape conviction, twenty years' imprisonment for his robbery conviction, and twenty years' imprisonment for his burglary conviction. The attempted murder convictions, the burglary conviction, and the robbery convictions were enhanced to sentences of life imprisonment due to Chapman's status as a persistent felony offender in the second degree. In the trial judge's mandatory report, the trial judge stated that "[t]he issue the [Kentucky Supreme] Court should review is whether a defendant can enter into a plea agreement and negotiate for the death penalty." The Department of Public Advocacy then filed this appeal on Chapman's behalf.²

III. CHAPMAN'S ISSUES ON APPEAL.

Chapman raises several arguments, many of which are so interconnected that we will combine them in our analysis:

1) The death penalty is unconstitutional;

2) Lethal injection and electrocution violate the Eighth Amendment to the United States Constitution's prohibition against the imposition of cruel and unusual punishments;

3) This Court's method of conducting a proportionality review of death sentences is unconstitutional;

4) Chapman's death sentence is arbitrary and disproportionate;

5) Residual doubt bars Chapman from receiving the death penalty;

6) Chapman's due process rights were violated when the aggravators that made him death-eligible were not set forth in the indictment;

7) The trial court erred by requiring the same attorneys Chapman had already fired to serve as standby counsel since those attorneys disagreed with his stated goal of seeking the death penalty;

8) The trial court erred by refusing to consider certain mitigating evidence (i.e., a psychologist's report detailing Chapman's history of mental health-related issues, including a history of physical and substance abuse) tendered by his standby counsel;

9) The Commonwealth's Attorney acted improperly by negotiating a plea agreement with Chapman himself during the time period when Chapman was still represented by counsel;

10) The trial court should have used a more stringent competency standard in light of Chapman's history of abuse and of mental health-related issues;

11) This Court should not permit Chapman to commit "suicide by court"; and

12) Chapman's convictions and sentence should be reversed under the cumulative error doctrine.

IV. ANALYSIS.

A. The Death Penalty is Not Unconstitutional.

This issue, along with others, is unpreserved. Nevertheless, we review unpreserved errors in death penalty cases, using the following standard: "(1) whether there is a reasonable justification or explanation for defense counsel's failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found...