Date: 05-06-2016

Case Style: KARU GENE WHITE V. COMMONWEALTH OF KENTUCKY

Case Number: 2013-SC-000791-MR

Judge: Bill Cunningham

Court: Supreme Court of Kentucky

Plaintiff's Attorney: Andy Beshear, Susan Roncarti Lenz

Defendant's Attorney: Margaret O'Donnell , David Michael Barron

Description: 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
1 Previous opinions of this Court have employed the term "mental retardation." In keeping with the most recent Federal case law, we will now employ the term "intellectual disability" when referencing Mr. White's claim.
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 (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 (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, 134 S.Ct. 1986 (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.
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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
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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
2 The order also stated that "[t]he parties agreed that a hearing was not necessary and the issue could be decided based upon the [] pleadings and documents."
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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).
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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){.1" Payne, 332 S.W.3d at 49. As previously
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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 KCPC is not impractical, and thus a mental evaluation
by the facility is not precluded by KRS 31.185(1)." Id.
We must now determine "whether the testimony of [an intellectual
disability] expert is reasonably necessary for a full presentation of the White's
case." Id. at 49 (citing Mills, 268 S.W.3d at 367). Judge Caudill answered that
question in the negative. We review this determination for an abuse of
discretion. Mills, 268 S.W.3d at 367 ("[t]he trial court still maintains
the discretion to deny such funds if it determines that the expert testimony is
not reasonably necessary").
It is first necessary to reiterate the type of examination for which White is
seeking public funds:
The anticipated procedure is that KCPC will perform an objectively neutral mental retardation evaluation to assess,White's eligibility for execution. As described in the record, this will principally involve an IQ test, interviews with White, and a review of his background. The aim of these tests, interviews, and reviews will be to assess White's IQ level for a determination of whether he is mentally retarded. Payne, 332 S.W.3d at 50.
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The record indicates that Judge Payne was presented with a considerable
amount of evidence, including the testimony of Dr. Steven Simon, the Director
of KCPC's Psychology department. Dr. Simon testified that he often performed
these types of evaluations. He also testified'that the evaluation would provide
testing for adaptive behavioral skills and background investigations. Like
Judge Payne, Judge Caudill also considered the record before him, as well as
White's supplemental briefing on this issue. Based on the facts presented, we
conclude that the trial court properly observed the standard set forth in Payne
and did not abuse its discretion.
Waiver and the Application of Hall v. Florida
If our Court was the final say concerning death penalty sentencing in
this state, this opinion would be coming to an end. Of course, that is not the
case. We have long been mandated to follow the dictates of the U.S. Supreme
Court concerning the trial and imposition of sentences in death penalty
prosecutions.
We cannot consider this case independently of the implications of the
2014 U.S. Supreme Court decision of Hall v. Florida, 134 S.Ct. 1986 (2014).
That case held that Florida's fixed IQ cutoff score violated the Eighth
Amendment. The holding in Hall has been aptly summarized by the United
States Court of Appeals for the Fourth Circuit as follows:
The Hall Court explained that a state's assessment of a defendant's intellectual disability should focus on whether he evidenced, beginning "during the developmental period," both (1) "significantly subaverage intellectual functioning," and (2) "deficits in adaptive
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functioning (the inability to learn basic skills and adjust behavior to changing circumstances)." The Court emphasized that these two criteria are "interrelated" and that no "single factor [is] dispositive." Accordingly, "an individual with an IQ test score between 70 and 75 or lower may show intellectual disability by presenting additional evidence regarding difficulties in adaptive functioning." Prieto v. Zook, 791 F.3d 465, 468 (4th Cir. 2015) (internal quotation marks and citation omitted).
In so holding, the Hall Court observed that "[o]nly the Kentucky and
Virginia Legislatures have adopted a fixed score cutoff identical to Florida's."
Hall, 134 S.Ct. at 1996. Therefore, KRS 532.140, KRS 532.130, and other
relevant statuary provisions are unconstitutional to the extent that the IQ score
referenced in those provisions is applied as a dispositive factor in determining
whether an offender is eligible for execution. In other words, Hall effectively
invalidated our arbitrary intelligence score standard for evaluating mental
retardation or intellectual disability.
So, the obvious question looms before us. How, if at all, does the sea
change in Hall affect the claim of Karu Gene White, the Appellant in this case?
The retroactive application of U.S. Supreme Court cases is governed by
Teague v. Lane, 489 U.S. 288 (1989). Teague held that "[u]nless they fall
within an exception to the general rule, new constitutional rules of criminal
procedure will not be applicable to those cases which have become final before
the new rules are announced." Id. at 310. (Emphasis added). Teague dealt
the criminal procedure of jury selection as it was interpreted by Baston v.
Kentucky, 476 U.S. 79 (1986). This Court has previously applied Teague in
Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). The issue in Leonard
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was whether the rule announced in Martin v. Commonwealth should be
enforced retroactively. 207 S.W.3d 1 (Ky. 2006). Martin, dealing with the rule
of criminal procedure 11.42, held that offenders are not precluded from
successfully maintaining an ineffective assistance of counsel claim based on an
alleged error that an appellate court, on direct appeal, had previously decided
was not palpable. Id.
We held that the rule in Martin was a "new rule" and, therefore, did not
apply retroactively. The rule in Martin was not to be applied retroactively
because "instead of 'clarifying the law,' Martin established a new rule."
Leonard, 279 S.W.3d at 161.
Applying this standard to the present case, unlike Teague, Leonard or
Martin, the 2014 U.S. Supreme Court case of Hall, does not deal with criminal
procedure. It is "a substantive restriction on the State's power to take the life"
of individuals suffering from intellectual disabilities. See Atkins, 536 U.S. at
321 (quoting Ford, 477 U.S. at 405). We are dealing here with a U.S. Supreme
Court directive that not only proscribes intellectually disabled people from
being put to death, but defines the manner in which the mental deficiencies of
offenders must be evaluated. Therefore, Hall must be retroactively applied. In
so holding, we are in the company of our sister state Florida which, of course
was the state in which the underlying issue in Hall first arose. See Oats v.
Florida, 181 So.3d 457 (2015).
Now we must address whether White's continued failure to submit to
KCPC's custody constitutes waiver. Simply put, offenders who raise successful
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claims under Atkins and Hall are barred from execution. KRS 532.140. This
protection to the condemned endures to the very moment of execution, in the
same manner as the Eighth Amendment bars a state from carrying out a
sentence of death upon the insane. Even if we held that White waived his
claim by refusing to be examined by KCPC, he could renew it again until the
sentence is carried out. By continuing to refuse to be examined, to his great
risk of not being spared, he simply fails in proving his ineligibility for the death
sentence. However, he does not waive such a claim in the normal sense that
we know that term.
To summarize succinctly, we do not hold today that because of Hall every
inmate in Kentucky under the sentence of death is entitled to an evaluation or
a hearing on the issue of serious intellectual disability. Nor do we hold that
White is entitled to either an evaluation or hearing. That determination was
made early in this case by Judge Paisley and has not been altered nor made a
topic of this appeal. Only the mode of examination has been contested.
Common sense dictates that there must be a prima facie showing that
there is a reasonable basis to believe that the movant suffers from a serious
intellectual disability. Some, if not most, of those currently condemned to be
executed possess average to above average intellectual ability. We anticipate
that a sufficient showing for a hearing and examination would resemble closely
that procedure established by KRS 532.135 for pre-trial mental examination.
What we do hold today is that once an evaluation has been ordered for the
purpose of determining intellectual competency, then the evaluation must meet
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the dictates of Hall. White's protestation notwithstanding, the record reflects
ample evidence that KCPC is capable of examining and evaluating White
accordingly. White shall have the benefit of our decision here today in opting
to proceed with the examination.
Statutory Authorization
White also contends that KCPC is not statutorily authorized, under
KRS 504.080 and its accompanying provisions, to conduct post-conviction
psychological evaluations. This argument is without merit. Although KCPC's
primary mission may be to evaluate pre-trial detainees and to treat post
conviction prisoners, our decision in Payne clearly indicates that KCPC is
authorized to perform post-conviction psychological evaluations.
Constitutional Claims
White further argues that the U.S. and Kentucky Constitutions require
an independent evaluation by an expert of his choosing. White has previously
raised similar constitutional arguments in Payne. However, Payne was a writ
action and, therefore, did not address the merits of White's constitutional
arguments. Nevertheless, we prospectively opined that there was "no realistic
threat to White's 'state and federal constitutional rights to confidential defense
communications' as a result of a KCPC evaluation." Payne, 332 S.W.3d at 50.
We specifically noted that:
White's Fifth Amendment right to remain silent will be minimally implicated, if at all. He has been tried and convicted of the three murders that resulted in his death sentence, and so any inquiry by the mental health professionals into these crimes would not implicate the right. Id. at 51.
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These determinations remain sound, and we adopt that reasoning here. White
also contends that our relevant case law on this matter violates the Eighth
Amendment. That argument is derivative of the U.S. Supreme Court's
decisions in Atkins and Hall. We have already addressed the constitutional
implications of both cases, neither of which requires expert funding.
It is critical to reiterate, however, that "upon proper motion by trial
counsel, safeguards may be implemented by the trial court to protect any
confidential defense communications as due process may require." Payne, 332
S.W.3d at 50. Moreover, "if, as part of the evaluation and testing, it becomes
necessary for White to discuss other crimes he may have committed . . . the
trial court may impose appropriate safeguards to prevent KCPC from divulging
this information to the Commonwealth." Id. at 51. Thus, based on the
framework advanced by Paisley, Mills, Payne, and the additional safeguards
available at the trial court level, we find no constitutional violation here.
Ex Parte Hearings
Finally, White argues that KRS 31.185(2) mandates that all future
discussions with the trial court shall be conducted ex parte. That provision
provides as follows:
The defending attorney may request to be heard ex parte and on the record with regard to using private facilities under subsection (1) of this section. If the defending attorney so requests, the court shall conduct the hearing ex parte and on the record. (Emphasis added).
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Since we have previously held that KRS 31.185(1) applies in this case, it
logically follows that Section 2 applies as well. However, this statute is of
minimal relevance here because the trial court has already determined that an
evaluation by private experts is not necessary. The only issue that remains on
remand is whether Mr. White will submit to the custody of KCPC. Thus, ex
parte hearings are unnecessary.

Outcome: For the foregoing reasons, we hereby affirm the judgment of the Powell
Circuit Court finding that White is not entitled to public funds for an expert of
his choosing. We reverse the judgment of the Powell Circuit Court on the issue
of waiver and remand this case to the trial court to conduct proceedings
consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: