Grasso v. State

CHAPEL, Judge,

specially concurring:

Under the unique facts of this case, I conclude Thomas Grasso’s conviction and sentence of death should be affirmed. However, I am concerned about the issues raised by this case and the impact that this case will have on future cases. Although Grasso’s desire to be executed may seem unusual, this case is not unique. 1 Over ten percent of the executions in the United States since 1976 have been carried out on individuals who, at some point, elected to die. State v. Dodd, 120 Wash.2d 1 , 838 P.2d 86, 103 (1992); Dieter, Ethical Choices for Attorneys Whose Clients Elect Execution, 3 Geo.J.Legal Ethics 799, 800 (1990). Because this case raises difficult and troubling issues, I specially concur to explain my concerns and address the problems raised when a defendant, who having been convicted of First Degree Murder, seeks the imposition of the death penalty.

The first area of concern is the issue of a defendant's competency to waive his appeals and seek the imposition of the death penalty. By waiving his discretionary appeal, a defendant will expedite and may render certain the imposition of death. Such a waiver begs the question of the defendant’s competence and the permanence of his decision. As former Pennsylvania Supreme Court Justice Musmanno once noted:

It can be stated as a universal truth stretching from nadir to zenith that regardless of circumstances, no one wants to die. Some person may, in an instant of spiritual or physical agony express a desire for death as an anodyne from in *811 tolerable pain, but the desire is never full-hearted because there is always the reserve of realization that the silken cord of life is not broken by a mere wishing. There is no person in the actual extremity of dropping from the precipe of life who does not desperately reach for a crag of time to which to cling even for a moment against the awful eternity of silence below. With all its “slings and arrows of outrageous fortune,” life is yet sweet and death is always cruel.

Commonwealth v. Elliott, 371 Pa. 70 , 89 A.2d 782, 787 (1952) (Musmanno, J., dissenting).

Given the basic human desire to live in spite of tremendous adversity and difficulties, a defendant’s decision to be executed is fraught with questions and concerns. Commentators have noted that it is not unusual for a defendant facing the death penalty to at some point express the desire to die only to recant that desire later. White, supra at 853-861; Kaine, supra at 487 n. 14; Strafer, supra at 874 n. 54. See e.g. Potts v. Zant, 638 F.2d 727 (5th Cir.1981). When ultimately facing death most people agree with the observations of Claudio in Shakespeare’s Measure for Measure:

The weariest and most loathed worldly life

That age, ache, penury, and imprisonment

Can lay on nature is a paradise

To what we fear of death.

W. Shakespeare, Measure for Measure, act III, scene i, li. 129-133. See White, supra at 871-872.

Further, the State of Oklahoma has a keen interest in assuring that its system of justice is not being manipulated or abused by a defendant. The State must not become an unwitting partner in a defendant’s suicide by placing the personal desires of the defendant above the societal interests in assuring that the death penalty is imposed in a rational, non-arbitrary fashion. See Commonwealth v. McKenna, 476 Pa. 428 , 383 A.2d 174, 181 (1978) (in refusing to allow execution of defendant who was sentenced to death under an invalid death penalty statute, the court noted a defendant’s right to waive certain rights “was never intended as a means for allowing a criminal defendant to choose his own sentence. Especially is this so where, as here, to do so would result in state aided suicide”).

The State’s interest in assuring the rational and appropriate application of the death sentence and Grasso’s interest in asserting his personal desire to waive his appeal must be balanced. Although the consequences and risks that attend waiving an appeal in a capital case are high, a defendant should not be precluded from waiving his discretionary appeals. In other contexts, a competent defendant’s ability to waive his rights is well recognized. For example, under appropriate circumstances, a defendant may waive his right to counsel, Westbrook v. Arizona, 384 U.S. 150 , 86 S.Ct. 1320 , 16 L.Ed.2d 429 (1966), he may waive his right to silence, Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and he may waive trial by pleading guilty to an offense. Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1972).

I agree with the majority that a capital defendant may waive his statutory right to a direct appeal, although he may not waive his right to the mandatory sentence review. I also agree with the majority that the standard for determining whether a capital defendant is competent to waive his direct appeal is whether (1) the defendant has the capacity to understand the choice between life and death, and (2) the defendant has the capacity to knowingly and intelligently waive any and all rights to appeal his sentence. My concern is with the application of this standard to Grasso and future criminal defendants seeking to waive their capital appeals.

The Washington Supreme Court in State v. Dodd, 120 Wash.2d 1 , 838 P.2d 86, 95, 100 (1992), employed the competency standard, which we adopt today, that to determine if a capital defendant is competent to waive his discretionary appeals the court must examine whether the defendant understands and appreciates the choice between life and death and knowingly and *812 intelligently waives any and all rights to appeal his sentence. In Dodd , after defendant was sentenced to death, he stated he wished to waive his discretionary appeal and submit only to the mandatory sentence review. The court assigned new counsel to represent defendant on appeal and allowed defendant’s trial counsel to act as amicus curiae. The court then ordered a fact finding hearing to determine Dodd’s competency to waive his appeal. Two doctors testified that Dodd was oriented, did not possess any thought disorder, and did not suffer from hallucinations. One of the doctors opined an individual can rationally choose to die and Dodd had rationally made that choice. The other doctor stated he found Dodd understood the proceedings against him and the consequences of waiving his appeal. A social worker, who had met with Dodd on several occasions, also testified that Dodd was coherent, intelligent, and free from delusion. She concluded Dodd was competent, understood he faced a sentence of death and he could assist in his defense. Dodd also testified the proceedings were fair, he understood he could die if he waived his appeals, and he accepted the reality of his death. Dodd’s appellate counsel also stated Dodd was competent, had weighed his options, and had rationally chosen death. The trial court, based on its observations of Dodd, agreed Dodd was competent to waive his appeal. The Washington Supreme Court found the record supported the conclusion that Dodd was competent to waive his appeal.

In another case concerning competency, Hays v. Murphy, 663 F.2d 1004 (10th Cir.1981), the Tenth Circuit addressed whether an Oklahoma defendant, who had been convicted of murder and sentenced to death, was competent to waive further appeals after this Court affirmed Hays’ conviction and sentence of death. Hays’ mother argued in federal court that her son was not competent to waive further appeals. In determining Hays’ competency, the Tenth Circuit looked at whether Hays had the “ ‘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.’ ” Id. at 1008 , quoting, Rees v. Peyton, 384 U.S. 312, 314 , 86 S.Ct. 1505, 1506 , 16 L.Ed.2d 583 (1966). Using this standard, the Tenth Circuit found that the psychiatric examinations Hays had undergone were insufficient to determine the question of competency. The examiners had met with Hays for only a brief period of time, and there was a significant lack of psychological tests being administered. Further, the Tenth Circuit found there were serious questions regarding Hays’ competency based on his history of mental commitments, his suicidal tendencies, his lengthy alcoholism, the possibility he had suffered a concussion, and evidence he experienced delusions. At least one psychologist noted that Hays understood that he was to be executed but that he did not understand that he was going to die. Id. at 1010 n. 11. Based on the lack of an adequate psychological examination and Hays’ past mental health problems, the court stayed Hays’ execution and remanded the case to the district court so that Hays could undergo further psychological testing.

Reviewing the factors and evidence other courts have relied upon to determine the competency of a capital defendant to waive his appeals provides a useful guide to this Court. A competency evaluation should address the defendant’s ability to truly comprehend his own death. The examiner should determine whether the defendant understands all of his options and that his perception of those options is rational, coherent, and based on reality. The defendant’s mental health history and I.Q. should be closely scrutinized. Any suicidal or paranoid tendencies, which may distort the defendant’s ability to make a rational decision, should be addressed and carefully examined. It seems the competency examination, as best as is possible, should also address the possibility that the defendant may change his mind. Thus, it seems that once a defendant decides to waive his appeals, a separate and independent evalúa *813 tion of the defendant should be conducted to address the unique issues surrounding competency to waive capital discretionary appeals as set out in the competency standard we adopted today.

In reviewing the record in this case and the observations that this Court has made of Grasso, I agree with the majority that Grasso is competent to waive his discretionary appeal. The factors that persuade me are the consistent, across-the-board opinion that Grasso is competent, Grasso’s statements to the lower court and this Court, and Dr. Cooper’s observations that Grasso is coherent, free of delusional thought, and of average intelligence. I am troubled by the prior superficial suicide attempt by Grasso and by the lack of a separate and independent evaluation devoted solely to the issue of his competency to waive his appeals. However, because there is nothing in the record to suggest that Grasso is not wholly and completely competent to waive his appeal, I concur in the Court’s judgment. 2

Nonetheless, many individuals facing the death penalty may very well be burdened by mental or emotional problems that would render them incompetent to waive their appeals. For example, the record in this case would hardly be adequate for an individual who was borderline mentally retarded and sought to waive an appeal of his death sentence. Nor would the record before us today be adequate for someone with a history of mental illness or who had been diagnosed with a mental illness such as paranoid schizophrenia. The cursory record prepared in this case may very well be rejected in the next case in which a person facing the sentence of death seeks to waive his appeal so that he can die. I conclude that a separate competency evaluation conducted by an appropriate mental health professional should be conducted to specifically determine competency to waive one’s appeals.

Further, in my view, a waiver of a discretionary capital appeal must be viewed with great caution. This Court is obligated to ensure that the death penalty be carried out only in a rational manner which comports with the Oklahoma and federal constitutions. Simply because a defendant chooses to waive his sentence of death does not mean that this Court is obligated to carry out the defendant’s wishes. See Commonwealth v. McKenna, 476 Pa. 428 , 383 A.2d 174 (1978). This Court must examine a capital defendant’s attempt to waive his discretionary appeals and, in any event, the mandatory sentence review must be conducted.

In addition, I am greatly concerned about the possibility that a defendant could manipulate the judicial system and on the eve of the execution change his mind and seek review in federal court claiming incompetence, ineffective assistance of counsel, and a whole myriad of other issues. 3 By carefully assuring on the record that the defendant is competent and that he is knowingly, voluntarily and intelligently waiving his appeal, this potential problem will be minimized.

As to the mandatory sentence review, I also agree that the evidence presented below supports the imposition of the sentence *814 of death. 4 However, I feel that allowing amicus curiae to participate would have aided the Court in its review of Grasso’s sentence. Nonetheless, based on the record before this Court, I agree that the imposition of the sentence of death was proper in this case. 5

In conclusion, I believe Grasso can waive his right to appeal and he is competent to waive that appeal. However, the State of Oklahoma’s interest in assuring that the death penalty is applied in a rational, non-arbitrary fashion outweighs the interests of Grasso. Safeguards must be implemented to assure that the State of Oklahoma is not simply assisting in someone’s death wish and to assure that an incompetent person is not rushed through the system and put to death. Because the evidence demonstrates Grasso is competent to waive his appeal and the imposition of the death sentence was proper, I concur in the judgment of the Court.

. See e.g. Lenhard v. Wolff, 444 U.S. 807 , 100 S.Ct. 29 , 62 L.Ed.2d 20 (1979); Gilmore v. Utah, 429 U.S. 1012 , 97 S.Ct. 436 , 50 L.Ed.2d 632 (1976); Rees v. Peyton, 384 U.S. 312 , 86 S.Ct. 1505 , 16 L.Ed.2d 583 (1966) (per curiam); Hays v. Murphy, 663 F.2d 1004 (10th Cir.1981); Davis v. Austin, 492 F.Supp. 273 (N.D.1980); State v. Brewer, 170 Ariz. 486 , 826 P.2d 783 (1992); State v. Dodd, 120 Wash.2d 1 , 838 P.2d 86 (1992); Franz v. Arkansas, 296 Ark. 181 , 754 S.W.2d 839 (1988); State v. Hightower, 214 N.J.Super. 43 , 518 A.2d 482 (1986); State v. Felde, 422 So.2d 370 (La.1982); People v. Chadd, 28 Cal.3d 739 , 621 P.2d 837 , 170 Cal.Rptr. 798 (1981); Goode v. State, 365 So.2d 381 (Fla.1978); Commonwealth v. McKenna, 476 Pa. 428 , 383 A.2d 174 (1978). See also W.S. White, Defendants who Elect Execution, U.Pitt.L.Rev. 853 (1987); G.R. Stafer, Volunteering for Execution: Competency, Voluntariness and the Propriety of Third Party Intervention, 74 J.Crim.L. & Criminology 860 (1983); T. Kaine, Capital Punishment and the Waiver of Sentence Review, 18 Harv.C.R.-C.L.L.Rev. 483 (1983).

. It should be noted that the mental health evaluation of Grasso was conducted to determine his competency to stand trial rather than his competency to waive his appeals. Because of the overwhelming evidence of Grasso’s competency, the competency examination conducted in this case is sufficient. See Godinez v. Moran, — U.S. -, 113 S.Ct. 2680 , 125 L.Ed.2d 321 (1993) (Supreme Court found once defendant is determined competent to stand trial due process does not require separate competency examination to determine defendant’s competency to waive his right to counsel).

. A further concern is the syndrome that commentators call the "murder-suicide” phenomenon which "refers to the clinically recognized syndrome in which an individual intentionally commits murder in a state with a death penalty hoping that, once caught, the State will execute him and thereby accomplish [the suicide that] he himself cannot bring about by his own hand.” Strafer, supra at 863 n. 12. See White, supra at 871-877. The classic case is James French who was executed by Oklahoma in 1966 for the murder of his prison cell mate. According to some commentators, French was unable to carry out his own suicide. French’s motive in murdering his cell mate was to force the’ State to execute him. Strafer, supra at 864-866; White, supra at 871-877.

. It is possible that a defendant’s effort to have the death sentence imposed upon him could, in and of itself, constitute an arbitrary factor rendering the death sentence invalid. See Lenhard v. Wolff, 444 U.S. 807 , 100 S.Ct. 29 , 62 L.Ed.2d 20 (1979) (Marshall, J., dissenting); White, supra at 866. Although I do not find that Grasso’s actions inserted an improper and arbitrary element into the sentencing process in this case, there may be cases in the future where this would be a problem.

. During the sentencing phase below, Grasso instructed his attorneys not to put on any mitigating evidence. One commentator has argued, and at least one court has found, that absence of mitigating evidence distorts the sentencing process and prevents the imposition of a rational, non-arbitrary sentence. L.E. Carter, Maintaining Systemic Integrity In Capital Cases: The Use of Court-Appointed Counsel to Present Mitigating Evidence When the Defendant Advocates Death, 55 Tenn.L.Rev. 95, 106, 116-129 (1987); State v. Hightower, 214 N.J.Super. 43 , 518 A.2d 482 (App.Div.1980). In spite of the serious concerns raised by waiving mitigating evidence, I believe that the right can be waived. However, I believe that the waiver should be clear and on the record and that the trial court must make a determination that the defendant is competent to waive the presentation of mitigating evidence.