White v. White
| Decision Date | 16 September 2021 |
| Docket Number | CIVIL 5:02-492-KKC |
| Parties | KARU GENE WHITE, Petitioner, v. RANDY WHITE, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of Kentucky |
In 1980, Karu Gene White was convicted of the robbery and murder of three elderly shopkeepers in Powell County, Kentucky and sentenced to death. White seeks habeas relief in this Court contending that his counsel labored under a conflict of interest and was ineffective; that the prosecutor engaged in misconduct; and that his trial was fundamentally unfair. [R 14] The Court has evaluated these claims in light of the Kentucky Supreme Court's prior decision and with the assistance of further briefing by the parties. [R. 84, 90] As explained more fully below, the Court finds no grounds warranting federal habeas relief.
In the late 1970s, Charles Gross (age 75), his wife Lula Gross (age 74), and her brother Sam Chaney (age 79) operated a small grocery store in rural Haddix, Kentucky.[1] The trio also resided in the store. In 1978, White (age 20 at the time) had long heard local rumors that the shopkeepers had hidden something like $50, 000 to $70, 000 cash in the store. In the fall of 1978 White was dating Donna Jones, and told her during a conversation that he wanted to rob the store. By December 1978, White began trying to convince two of his friends - his half-brother Tommy Bowling (then age 17) and Chuck Fisher (then age 15) - to help him do so. At some point in January 1979, the three young men, along with friends Butch Napier and Henry White, went to the store together to buy some food and sodas. After they left, White told his friends that the store would be easy to rob. White brought up the idea of robbing the victims several times in the following months, and Fisher and Bowling ultimately agreed. A plan was formulated to have Fisher come through the front door to distract the victims while White and Bowling would enter through the back of the store and knock them out.[2]
The robbery took place in the evening hours of February 12, 1979. Several hours earlier that day, some of the young men had smoked marijuana and/or taken LSD. As evening approached, the trio hitched a ride from Elishamere Noble, who dropped them off near the store in Haddix. Noble, who knew Fisher, would later recall that Fisher was wearing a toboggan cap with the words “4-Wheel Drive” on it and a green and grey CPO jacket. To knock the victims out, Fisher brought an adjustable wrench with him; White found a crowbar in a truck near the store and took it; and Bowling broke off a 2½-foot limb from a tree. The young men waited about 15 minutes for it to get darker before proceeding towards the store. White and Bowling walked to a side door to wait for Fisher's signal to enter, on the way donning gloves or socks on their hands so as not to leave fingerprints, and pulling nylons over their faces so that they could not be identified.[3]
Before they could enter the store, around 6:30 p.m. eleven-year-old Bobby McIntosh approached the store to buy a soda and candy. After he had made his purchases and walked out of the store he encountered Fisher. He would later testify that as he left he saw a man at the side porch pushing against the side door with his shoulder, and that the young man he encountered outside in front of the store was wearing a toboggan with the words “4-Wheel Drive” on it. Bobby was suspicious, and proceeded home to tell his father about the man he saw.[4]
Fisher then went in the front door, picked up a soda and set it down loudly on the counter, signaling White and Bowling to enter. They broke in through the side door, encountering Lula who was in the back room. One of the men (forensic evidence would later suggest it was likely Bowling) clubbed Lula over the head and she fell to the floor. When Charlie and Sam heard a commotion from the back of the store where the living quarters were located, they headed in that direction. Fisher hit Charlie in the forehead with his wrench, knocking him down. Bowling and White, wearing nylons over their faces, came from the back of the store. Bowling hit Sam with his tree limb, sending him to the ground as well. When Sam started to move, Bowling hit him again. According to Fisher, Sam then begged for his life; Bowling, unwilling to strike Sam again, set his stick up on the counter. Undeterred, White hit Sam another time with his crowbar. When Charlie started to stand up, Fisher called out “Gene!” (White's first name). White then hit Charlie with his lug wrench, and he hit Sam another time. White was furious that Fisher had spoken his first name in front of the victims (whom he had known since childhood), and Bowling had to convince White not to hit Fisher. There were likely additional blows to the victims, some of them very severe: Charlie's nose was broken, one of his eyes was pushed entirely out of his head, and his skull was completely beaten in; Sam's brain was leaking out of a breach in his skull; blood carpeted the floor and walls of the shop; and their bodies were so broken that the victims had to be buried in “disaster pouches.”[5]
Once the victims were no longer moving or making any noise, the three young men turned off the lights and began to ransack the store and living quarters in search of the money. They found and took a blue 0.38 revolver and a wallet with $7, 000 in it, and then gathered up their weapons and left through the side door. As they fled through woods and fields they threw away each of the weapons they had used, as well as the nylons, socks, and gloves White and Bowling had worn. Police would later recover these items nearby, along with Fisher's green and grey CPO jacket. The three would be picked up later that night by a friend who drove them to a dorm at nearby Lees College. Later that evening White divided up the cash equally between them. Days later when they heard that the police had collected foot prints from the crime scene, White told Fisher and Bowling to get rid of their shoes.[6]
In the days following, Kentucky State Police detective Pat Simpson interviewed White, Bowling, and Fisher, and each told him that they had not been in Haddix that night but were instead at Lees College visiting a friend. Later, as the detective uncovered more details about the crimes, each of the young men would change his story, admitting that the group did go to Haddix, allegedly to buy marijuana. Butch Napier told police that after the robbery White had offered to sell him a brand new 0.38 Smith & Wesson pistol. Napier also said that on another occasion he had driven White to a place near the woods where White retrieved a muddy coffee can that had money in it. Henry White told police that White, Fisher, and Bowling had acknowledged that they had had some role in the crimes. Henry also said that Gene told him that he had gotten two guns (one of them blue) from the store; and he saw a blue pistol in the glove compartment of White's car. The three young men were arrested and charged in July 1979.[7]
After the arrests, Fisher's family hired attorney Kevin Charters to defend him in the case. The family of White and Bowling hired Jim Early - a lawyer who shared office space with Charters in Lexington, Kentucky - to represent the two young men. At that time, all three of the defendants professed their innocence, so the attorneys worked together to prepare a joint alibi defense contending that White, Bowling and Fisher were elsewhere and that the circumstantial evidence was simply insufficient to demonstrate that they were present at the store or had committed the crimes.[8]In December 1979, the prosecution conveyed to defense counsel offers of immunity for Fisher and Bowling in exchange for their testimony incriminating White, but those offers were declined.[9]
The prosecution indicted each of the three defendants in a separate criminal proceeding. In December 1979 discussions were had regarding a consolidated trial for all three of the defendants, but the court never ordered all of the cases consolidated, and White's case was scheduled for trial first. At a hearing in January 1980, the court engaged in an extended discussion with the prosecutors, defense counsel and their clients (including Fisher's father) explaining various scenarios under which a possible conflict of interest might arise because defense counsel were cooperating in their defense of the three defendants. During that hearing White, Bowling, and Fisher each indicated that they understood the risk that counsel “may have to do something for them at your expense” during White's trial and orally waived any claim based upon a conflict of interest. At the beginning of White's trial on February 11, 1980, the trial court granted a motion permitting the joint representation, and White, Bowling, and Fisher executed a written waiver of any conflict of interest.[10]
Three days after voir dire had commenced, Fisher agreed to testify against White and Bowling in exchange for complete immunity from prosecution. Clyde Simmons was appointed to represent Fisher the next day. Early and Charters then advised the court that the nature of White's defense had changed to not guilty by reason of intoxication and/or insanity; moved for a mistrial and to obtain a psychiatric evaluation in support of White's new defense; and moved to dismiss all of the jurors previously qualified and start voir dire anew in light of the change in their theory of the case. The request for a mistrial was denied, but a competency examination was ordered.
Dr Robert Granacher examined White over the weekend, but advised Judge Graham that in his opinion White was competent to stand trial. A...
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