White v. Judge)

• Decision Date: 26 August 2010
• Docket Number: No. 2010–SC–000280–OA.,2010–SC–000280–OA.
• Citation: 332 S.W.3d 45
• Parties: Karu Gene WHITE, Petitioner,v.Hon. Gary D. PAYNE (Special Judge), Respondent.andCommonwealth of Kentucky, Real Party in Interest.
• Court: United States State Supreme Court — District of Kentucky

332 S.W.3d 45

Karu Gene WHITE, Petitioner,

v.Hon. Gary D. PAYNE (Special Judge), Respondent.andCommonwealth of Kentucky, Real Party in Interest.

No. 2010–SC–000280–OA.

Supreme Court of Kentucky.

Aug. 26, 2010.As Modified on Denial of Rehearing

March 24, 2011.

Kevin M. McNally, Margaret O'Donnell, Frankfort, KY, Counsel for Petitioner.

Hon. Gary D. Payne, Special Judge, Lexington, KY, pro se.Jack Conway, Attorney General, Susan Roncarti Lenz, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Muriel B. Varhely, Richmond, KY, Counsel for Real Parties in Interest.Opinion of the Court by Justice VENTERS.

Petitioner, Karu Gene White, brings this original action pursuant to CR 76.36, CR 81, and SCR 1.020 ¹ seeking a writ of prohibition to prevent Respondent, Special Judge Gary D. Payne, from enforcing his December 15, 2008 order requiring White to submit to a mental retardation evaluation conducted by the Kentucky Correctional Psychiatric Center (KCPC).

White, a death row inmate, claims to be mentally retarded, and therefore ineligible for execution pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). He alleges that Judge Payne's order, that he be assessed by KCPC, is not statutorily authorized by KRS 31.185, KRS 504.080, or this Court's precedents, and instead seeks $5,000.00 in funding to retain a private psychological expert to do a mental retardation assessment, and to more generally aide in his presentation of his mental retardation claim.

For the reasons explained below, we deny White's petition for a writ of prohibition.

FACTUAL AND PROCEDURAL BACKGROUND

In 1980, White was convicted in the Powell Circuit Court of three counts of capital murder and three counts of first-degree robbery. As relevant here, White was sentenced to death for each of the three murders. His convictions and sentences were affirmed by this Court in White v. Commonwealth, 671 S.W.2d 241 (Ky.1983). His subsequent RCr 11.42 motion was denied, and that denial was also affirmed on appeal. White then petitioned for a writ of habeas corpus in the United States District Court for the Western District of Kentucky. That federal case is being held in abeyance pending the outcome of White's present claim that his execution is precluded by the fact that he is mentally retarded.

In Atkins, 536 U.S. 304, 122 S.Ct. 2242, the United States Supreme Court held that the execution of a mentally retarded person violates the Eighth Amendment of the United States Constitution. Following this ruling, White filed a motion in the Powell Circuit Court “pursuant to RCr 11.42, CR 60.02, and CR 60.03” ² to set aside his death sentences on the grounds that he is mentally retarded. The case was originally assigned to Special Judge Lewis G. Paisley.

Although White's intelligence quotient (IQ) has never been determined by testing, his petition described deficits in adaptive behavior that convinced Judge Paisley that there was sufficient “doubt as to whether he is mentally retarded” to warrant an evidentiary hearing. Bowling v. Commonwealth, 163 S.W.3d 361, 384 (Ky.2005) (“[T]o be entitled to an evidentiary hearing on a claim of entitlement to the mental retardation exemption provided by KRS 532.140(1), a defendant must produce some evidence creating a doubt as to whether he is mentally retarded.”). In a subsequent order, Judge Paisley, over the Commonwealth's objection, ordered the Finance and Administration Cabinet to pay up to $5,000.00 for mental health testing by an expert of White's choosing.

Following Judge Paisley's ruling, the Commonwealth sought a writ of prohibition in this Court seeking to prevent enforcement of the order. See Commonwealth v. Paisley, 201 S.W.3d 34 (Ky.2006) (supplemented by Mills v. Messer, 268 S.W.3d 366 (Ky.2008)). Upon review, we held that Judge Paisley abused his discretion in ordering the Finance and Administration Cabinet to pay up to $5,000.00 for a private psychologist “without the requisite showing that the use of state facilities was somehow impractical” as set forth in KRS 31.185.³ Paisley, 201 S.W.3d at 37.

On remand, the case was assigned to Special Judge Payne. Following a hearing, Judge Payne issued an opinion and order finding that “KCPC is capable of providing a competent mental retardation evaluation of White, pursuant to KRS 532.130.” The order also provided that KCPC was to conduct the evaluation and that White was to submit to its custody for evaluation.

White brings this writ of prohibition seeking relief from Judge Payne's order that KCPC conduct the mental retardation evaluation.

DISCUSSION

“A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.” Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004). It has been established that a writ of prohibition “is an ‘extraordinary remedy’ that Kentucky courts ‘have always been cautious and conservative both in entertaining petitions for and in granting such relief.’ ” Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky.2005) (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961)).

In ordering the KCPC evaluation, the trial court clearly was acting within its jurisdiction. Therefore, White's only avenue for writ relief is upon a claim that in ordering the KCPC evaluation the trial court acted erroneously in a way that would cause him to suffer great and irreparable injury for which an appeal would not be an adequate remedy.

As an initial matter, we address White's claim that Judge Payne is acting erroneously because he failed to comply with this Court's mandate in Paisley by ordering a KCPC evaluation without first making a finding that the use of the state facilities was not impractical. As previously noted, Judge Payne issued an opinion and order finding that “KCPC is capable of providing a competent mental retardation evaluation of White, pursuant to KRS 532.130.” While the order did not specifically address our mandate that the trial court make a threshold finding of whether “use of a state facility is [or is not] somehow impractical” before ruling on the issue, we construe Judge Payne's finding as the functional equivalent of a finding that the use of KCPC is not impractical, and thus a mental evaluation by the facility is not precluded by KRS 31.185(1). We accordingly conclude that Judge Payne complied with our mandate in Paisley, and is thus not acting erroneously upon that basis alone.

We also note that there has been an intervening change in the standard for expert funding since Paisley. The “impractical use” in Paisley must now be applied in conjunction with the standard advanced by Mills v. Messer, 268 S.W.3d 366 (Ky.2008), as follows: ⁴

a petitioner may be entitled to state funds for the procurement of expert testimony upon a showing that such witness is reasonably necessary for a full presentation of the petitioner's case.⁵

Id. at 367.

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.

All the same, the change in the expert funding standard does not affect the remainder of our review of White's petition for a writ of prohibition,⁶ which we now take up.

In addition to his claim that Judge Payne failed to make a proper finding concerning “impracticality,” which we have already discussed, White further contends that the trial court is acting erroneously because: (1) KRS 31.185 mandates an independent confidential defense evaluation; (2) the United States and Kentucky Constitutions mandate an independent confidential defense evaluation; and (3) KCPC is not statutorily authorized to conduct a post-conviction mental retardation evaluation.

The great injustice and irreparable injury identified by White if the KCPC evaluation is permitted to go forward is that he “will lose his state and federal constitutional rights to confidential defense communications, his right to remain silent and his right to a full and fair hearing on his claim that he is mentally retarded, constitutional rights which can never be returned to him on appeal.”

The merits of a writ of prohibition will not be considered and the petition denied if the party requesting the writ cannot first demonstrate a minimum threshold showing of harm and lack of redressability on appeal. The St. Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d 771, 774 (Ky.2005). Assuming, for purposes of our review, that the trial court is indeed acting erroneously under one of the bases identified by White,⁷ nevertheless, we are not persuaded that White has demonstrated an irreparable injury which would result by a KCPC mental retardation evaluation, and which could not be redressed by appeal from a final determination of the case on the merits. The specific concerns identified by White relate to the infringement of constitutional rights; however, “the extraordinary remedy of prohibition may not be invoked merely because a constitutional question is involved, if there is an adequate remedy by appeal.” Harrod v. Meigs, 340 S.W.2d 601, 603 (Ky.1960). As explained below, the constitutional concerns identified by White are redressable by appeal.

We discern...