Parrish v. Com., No. 2006-SC-000592-MR.

• Citation: 272 S.W.3d 161
• Decision Date: 18 September 2008
• Docket Number: No. 2006-SC-000592-MR.
• Parties: Melvin Lee PARRISH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

272 S.W.3d 161

Melvin Lee PARRISH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-SC-000592-MR.

Supreme Court of Kentucky.

September 18, 2008.

Rehearing Denied January 22, 2009.

Brian Thomas Ruff, Dennis James Burke, Assistant Public Advocates, Department of Public Advocacy, LaGrange, KY, Counsel for Appellant.

Jack Conway, Attorney General, Louis Franklin Mathias, Jr., Office of the Attorney General, Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

Appellant, Melvin Lee Parrish, was convicted of multiple murders, attempted murder, and robbery, and was sentenced to death in 2000. The current appeal stems from a post-conviction collateral attack on his sentence under RCr 11.42 in which he alleges that his death sentence is unconstitutional and that he received ineffective assistance of counsel during his murder trial. The circuit court denied the motion and upheld Appellant's sentence. This Court affirms.

I. Background

At trial, evidence was introduced that Parrish and others had spent the day of the murders smoking crack cocaine. The evidence indicated that Appellant loaned his cousin Rhonda money that day and later asked for it back. When she refused, he stabbed her multiple times and took the money. Appellant then went to a back bedroom where he assaulted his cousin's two sons. One child survived and was able to testify that Parrish had attacked him and his brother. In a taped statement made to police the morning after the murders, Appellant denied attacking the children but admitted that he stabbed his cousin, stating, "I asked her twice [to borrow back the money] and she said no and I guess I killed her." The Commonwealth also introduced evidence from a jailhouse informant who testified that he was incarcerated with Appellant and that Appellant had told him that he had committed the murders and intended to avoid conviction by faking insanity.

Appellant was found guilty of two counts of intentional murder, one count of attempted murder, and one count of robbery. During the penalty phase, the jury found as an aggravating factor that the crimes were committed in the course of a robbery and sentenced Appellant to death for the murder of the child, life without parole for the murder of his cousin, 20 years enhanced to life for the attempted murder, and 20 years enhanced to 50 years for robbery. Appellant's conviction and sentence were affirmed on direct appeal to this Court in Parrish v. Commonwealth, 121 S.W.3d 198 (Ky.2003).

Appellant filed his RCr 11.42 motion with the Jefferson Circuit Court on March 4, 2005. In it, he alleged that he was mentally retarded and therefore his death sentence violated the Eighth Amendment, and that he had at least presented enough evidence to require a new sentencing hearing; that he received ineffective assistance of counsel during the guilt phase and penalty phase of his trial; that his death sentence violated international treaties; and that cumulative error required vacating his sentence. The circuit court declined to hold an evidentiary hearing and entered a 23-page Opinion and Order denying Appellant's RCr 11.42 motion.

Appellant appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). He now claims that the circuit court¹ erred in not conducting an evidentiary hearing, in its conclusions about ineffective assistance of counsel, and in its resolution of the various other legal issues he raised.

II. Analysis

A. Evidentiary Hearing

Appellant's first claim of error is that the circuit court improperly refused to hold an evidentiary hearing to resolve the factual disputes raised by his RCr 11.42 motion. It must first be said that "[e]ven in a capital case, an RCr 11.42 movant is not automatically entitled to an evidentiary hearing." Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky.1993).

Whether an RCr 11.42 movant is entitled to an evidentiary hearing is determined under a two-part test. First, the movant must show that the "alleged error is such that the movant is entitled to relief under the rule." Hodge v. Commonwealth, 68 S.W.3d 338, 342 (Ky.2001). In other words, the court must assume that the factual allegations in the motion are true, then determine whether there "`has been a violation of a constitutional right, a lack of jurisdiction, or such a violation of a statute as to make the judgment void and therefore subject to collateral attack.'" Id. (quoting Lay v. Commonwealth, 506 S.W.2d 507, 508 (Ky.1974)). "If that answer is yes, then an evidentiary hearing on a defendant's RCr 11.42 motion on that issue is only required when the motion raises `an issue of fact that cannot be determined on the face of the record.'" Id. (quoting Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky.1993)). To do this, the court must "examin[e] whether the record refuted the allegations raised" (and not "whether the record supported the allegations, which is the incorrect test"). Id. This two-part test is consistent with those cases cited in Appellant's brief. See Norton v. Commonwealth, 63 S.W.3d 175 (Ky.2001); Fraser v. Commonwealth, 59 S.W.3d 448 (Ky.2001).

Appellant argues that throughout his RCr 11.42 motion, which included a 43-item appendix, he alleged sufficient facts that both supported his claims of constitutional deprivations and could not be determined on the face of the record. Though Appellant styles this claim as a separate argument, implying that it is independent from his specific substantive claims, it is conceptually difficult to address it separately in an Opinion by this Court and would require duplicative effort. Thus, whether Appellant is entitled to an evidentiary hearing accompanies the Court's analysis of the other claims below.

B. The Constitutional Ban on Executing Mentally Retarded Defendants

Appellant claims that he is mentally retarded and therefore is not subject to the death penalty under the Eighth Amendment pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Notably, Appellant does not raise this as an issue of ineffective assistance of counsel; rather, he argues the issue of his alleged mental retardation directly as a bar on his receiving the death penalty.

Appellant's trial counsel had moved in October 2000 to have the trial court determine whether Appellant was mentally retarded and therefore not subject to the death penalty pursuant to KRS 532.130-.140, the statutory mechanism for applying Atkins in Kentucky. Appellant had been previously evaluated by a defense expert in this area: Robert Smith, Ph.D., who was retained by Appellant's original counsel. He reviewed Appellant's records, interviewed and tested Appellant. (The record does not include the results of Dr. Smith's examinations, nor why Appellant changed counsel at trial.) Leading up to a hearing on the motion, Appellant was examined and tested by Dr. Stephen Free, a psychologist at Kentucky Correctional Psychiatric Center (KCPC), who later testified that Appellant's IQ was 79 and that a previous IQ score of 68 from when Appellant was fifteen was the result of a lack of motivation. The proceedings and results of the KCPC examination were reviewed by another psychologist, Eric Drogin, Ph. D., who was retained by Appellant's final trial lawyers. Though Dr. Drogin did not testify with regard to the mental-retardation motion, he did testify during the penalty phase that the tests administered by Dr. Free were "properly administered and scored." The trial court held a hearing on the matter where Dr. Free testified about his result and conclusion that Appellant was not mentally retarded under KRS 532.130-.140. At the hearing, the court received additional evidence of Appellant's school test scores. On November 16, 2000, the trial court ruled that Appellant was not mentally retarded and was therefore not exempt from the death penalty.

To begin with, this claim is not an appropriate one for an RCr 11.42 proceeding. If Appellant wanted to challenge the substance of the trial court's ruling on this issue, he should have done so in his direct appeal, not by means of an RCr 11.42 motion. "It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should have been raised in the original proceeding, nor those that were raised in the trial court and upon an appeal considered by this court." Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky.1972): see also Mills v. Commonwealth, 170 S.W.3d 310, 326 (Ky.2005) ("[A]n RCr 11.42 motion is limited to issues that were not and could not be raised on direct appeal." (emphasis added)). Though he did not then have the benefit of Atkins, Kentucky already had in place a statutory mechanism for dealing with mentally retarded individuals facing the death penalty and Appellant took full advantage of that mechanism. Though Appellant did not raise this issue in his direct appeal, he easily could have. An RCr 11.42 motion simply is not an appropriate vehicle to raise it. While the circuit court revisited the mental retardation evidence in its order denying the RCr 11.42 motion, it was unnecessary to do so because the issue had already been addressed prior to the trial.

Regardless, Appellant's claim is clearly refuted by the record. As noted by the circuit court in its order prior to Appellant's trial and in its order denying the RCr 11.42 motion, substantial evidence indicated that Appellant's IQ was at least 70, which is the cut-off for mental retardation recognized in Atkins and required by Kentucky's statutory scheme. Ample evidence supported the trial court's ruling. That the record also contains an IQ score for Appellant of 68 from when he was younger (explained by an expert as the result of lack of motivation) does not allow this Court to overturn the factual findings by the trial court on this issue. Appellant also cites to evidence of "substantial deficits in...