White v. Commonwealth

• Decision Date: 05 May 2016
• Docket Number: 2013–SC–000791–MR
• Citation: 500 S.W.3d 208
• Parties: Karu Gene White, Appellant v. Commonwealth of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

500 S.W.3d 208

Karu Gene White, Appellant

v.Commonwealth of Kentucky, Appellee

2013–SC–000791–MR

Supreme Court of Kentucky.

MAY 5, 2016

Rehearing Denied October 20, 2016

MODIFIED: October 20, 2016

COUNSEL FOR APPELLANT: Margaret O'Donnell, David Michael Barron, Assistant Public Advocate

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Susan Roncarti Lenz, Assistant Attorney General

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

This is a death penalty case where the Appellant, Karu Gene White (“White”), raises a post-conviction intellectual disability claim.¹ For the reasons stated herein, we remand this case to the trial court to order the Kentucky Correctional Psychiatric Center (“KCPC”) to perform a psychological evaluation of Mr. White.

Factual and Procedural Background

In 1980, White was convicted by a Powell Circuit Court jury of three counts of capital murder, three counts of first-degree robbery, and one count of burglary. He was sentenced to death for each of the three murders. Less than a month after he was sentenced, White was subjected to a psychological evaluation by a “Contract Psychologist,” Henry S. Davis, Ph.D. Dr. Davis determined that White had an overall intelligence quotient (IQ) score of 81. We affirmed White's convictions and sentences in White v. Commonwealth, 671 S.W.2d 241 (Ky.1983)

, cert denied, 469 U.S. 963, 105 S.Ct. 363, 83 L.Ed.2d 299 (1984).

White's psychological evaluation was not raised as an issue in his direct appeal and we did not address it in our opinion. White's subsequent RCr 11.42

motion was denied. That denial was also affirmed on appeal.

In 2004, White filed a motion in the Powell Circuit Court pursuant to RCr 11.42

, CR 60.02, and CR 60.03 to set aside his death sentences on the grounds that he is intellectually disabled. These motions were based on the U.S. Supreme Court's decision in Atkins v. Virginia, which held that the execution of an intellectually disabled person violates the Eighth Amendment of the United States Constitution. 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). White's case was assigned to Special Judge Lewis Paisley.

It appears that White's evaluation by Dr. Davis was not considered by the trial court in ruling on these motions. It is critical to note, however, that only offenders with IQ scores of 70 or less are barred from execution under KRS 532.140

and KRS 532.130. White's IQ score of 81 was well above that threshold. But see

Hall v. Florida, ––– U.S. ––––, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014) (applying Eighth Amendment bar against executing persons with intellectual disability). The application of Hall to the present case will be discussed later in our analysis.

White's Post Conviction Claim

We will first discuss the factual and procedural posture of White's post-conviction intellectual disability claim. Judge Paisley was the first of three judges to address that claim. In an order entered on April 26, 2006, Judge Paisley ordered the Finance and Administration Cabinet to pay up to $5,000.00 for a mental health evaluation by an expert of White's choosing.

The Commonwealth sought a writ of prohibition seeking to prevent enforcement of Judge Paisley's order. Because this is a death penalty case, the writ was required to be filed in this Court. Skaggs v. Commonwealth, 803 S.W.2d 573, 577 (Ky.1990)

. We granted the Commonwealth's writ and held that the trial court abused its discretion by ordering the Finance and Administration Cabinet to pay up to $5,000.00 for a private psychologist “without the requisite showing that use of a state facility is somehow impractical” as provided in KRS 31.185. Commonwealth v. Paisley, 201 S.W.3d 34, 37 (Ky.2006).

The case was reassigned to Special Judge Gary Payne on remand. On January 31, 2008, Judge Payne held an evidentiary hearing on the matter during which several witnesses testified. White also presented the court with sworn declarations from several experts concerning KCPC's inability to conduct the necessary evaluations. After considering all of the evidence, Judge Payne determined that KCPC “is capable of providing a competent mental retardation evaluation of White, pursuant to KRS 532.130

.” The court also ordered White to submit to KCPC's custody for evaluation. White sought a writ prohibiting enforcement of Judge Payne's order. We denied White's petition and instructed the trial court to apply the standard set forth in Mills v. Messer, 268 S.W.3d 366 (Ky.2008). White v. Payne, 332 S.W.3d 45, 49 (Ky.2010). The guideline established by Mills was simply whether the expert was “reasonably necessary” for the defendant's case. On that issue, we stated as follows:

Mills

was rendered prior to Judge Payne's order denying private funding, but it is unclear whether he gave proper consideration to Mills. Thus, upon recommencement of the circuit court proceedings, the court should, as a threshold matter, apply the Mills standard for

an examination of whether the testimony of a mental retardation expert is reasonably necessary for a full presentation of the White's

case. If so, such an expert should be appointed. If not, the KCPC evaluation should proceed pursuant to Judge Payne's existing order. Id. at 49. (Emphasis added).

After considering White's argument on remand, Judge Payne, in an order entered on December 12, 2011, held that “White has not shown that [an intellectual disability] expert selected by White is reasonably necessary for a full presentation of his case.”² Because White had previously refused to cooperate with the KCPC evaluation, the court also ordered that any failure to cooperate in the future would constitute a waiver/forfeiture of White's intellectual disability claim. White filed a motion to reconsider that order and subsequently refused to cooperate with the KCPC evaluation. Judge Payne retired without ruling on the motion to reconsider.

Chief Regional Judge John David Caudill designated himself to preside over this matter. White filed a supplemental memorandum in support of his argument. In an order entered on July 31, 2013, Judge Caudill addressed White's motion to alter, amend or vacate Judge's Payne's previous order denying White's request for funding. In addressing that issue, Judge Caudill considered the reasonableness standard set forth in Mills

and found that KCPC was competent to perform White's evaluation. Judge Caudill also determined that “any order requiring such an evaluation could be structured to protect any constitutional rights.” Therefore, the court ordered that White was not entitled to state funds for a psychological evaluation.

After White indicated that he would continue to refuse evaluation by KCPC, the trial court determined that he had waived his intellectual disability claim in an order entered on November 1, 2013. In that order, the court also denied White's pending motion for a protective order and further ordered that White's case be dismissed. The court designated its ruling as a final and appealable order with no just cause for delay. White raises five primary arguments on appeal. Each will be discussed in turn.

KRS 31.185

For his first argument, White contends that KRS 31.185

requires an independent confidential defense evaluation. That statute provides in relevant part:

(1) Any defending attorney operating under the provisions of this chapter is entitled to use the same state facilities for the evaluation of evidence as are available to the attorney representing the Commonwealth. If he or she considers their use impractical, the court of competent jurisdiction in which the case is pending may authorize the use of private facilities to be paid for on court order from the special account of the Finance and Administration Cabinet. (Emphasis added).

Nothing in this provision requires the use of private psychological evaluations to be paid for with public funds. That determination is within the discretion of the trial court. White also cites the U.S. Supreme Court case of Atkins v. Virginia

in support of his argument. However, Atkins does not require the use of public funds to pay for private facilities in post-conviction proceedings. Compare Binion v. Commonwealth, 891 S.W.2d 383 (Ky.1995) (holding that the court's appointment of a neutral mental health expert was insufficient to satisfy the due process requirement that an indigent defendant be provided the services of a private mental health expert).

The purpose of our decisions in Mills

and Paisley, as applied by our 2010 decision of White v. Payne, was to craft and implement a standard governing requests for funding post-conviction mental retardation evaluations. This is well within our authority under Atkins. See also

Bowling v. Commonwealth, 377 S.W.3d 529 (Ky.2012) (establishing procedure for evaluating post-conviction claims under Atkins ). To further clarify, none of the additional cases cited by White throughout his briefs require this Court to authorize the type of post-conviction funding at issue here.

The primary issue here is whether the trial court properly implemented White v. Payne

—our most recent case concerning White's intellectual disability claim. We held in Payne that the “impractical use” standard in Paisley “must now be applied in conjunction with the standard advanced by Mills v. Messer, 268 S.W.3d 366 (Ky.2008) [.]” Payne, 332 S.W.3d at 49. As previously discussed, the Mills standard is “whether the testimony of [an intellectual disability] expert is reasonably necessary for a full presentation of the White's case.” Id. at 49. Thus, the trial court must determine whether the KCPC evaluation is impractical and whether a private expert is reasonably necessary.

Although Judge Caudill did not specifically address whether the use of KCPC facilities and personnel was impractical in this instance, we have previously held that a similar omission by Judge Payne was not fatal. Id.

Like in Payne, “we construe [Judge Caudill's] finding as the functional equivalent of a finding that the use of...