KARU GENE WHITE V. HON. GARY D. PAYNE COURT (SPECIAL JUDGE) AND COMMONWEALTH OF KENTUCKYAnnotate this Case
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MODIFIED : MARCH 24, 2011
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KARU GENE WHITE
IN SUPREME COURT
HON . GARY D . PAYNE (SPECIAL JUDGE)
COMMONWEALTH OF KENTUCKY
REAL PARTY IN INTEREST
OPINION OF THE COURT BY JUSTICE VENTERS
DENYING PETITION FOR WRIT OF PROHIBITION
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,
"Ordinarily, proceedings under CR 76 .36 involve original proceedings filed in the
Court of Appeals and then reviewed by the Supreme Court." Martin v.
Administrative Office of Courts, 107 S.W.3d 212, 214 (Ky. 2003) . See also SCR
1 .030(3) ("Proceedings in the nature of mandamus or prohibition against a circuit
judge shall originate in the Court of Appeals ."). However, because this petition
involves a matter affecting the imposition of the death penalty, original jurisdiction
lies with this Court. Skaggs v. Commonwealth, 803 S.W.2d 573, 577 (Ky . 1990)
("the Court of Appeals is without authority to review any matter affecting the
imposition of the death sentence .") .
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 (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
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
In Atkins, 536 U .S . 304, 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
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
2 In Bowling v. Commonwealth, 163 S.W.3d 361, 365 (Ky. 2005), we held that CR
60 .02 is the appropriate vehicle for this type of claim.
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 .
"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 l, 10 (Ky. 2004) It has been established that a
writ of prohibition "is an `extraordinary remedy' that Kentucky courts `have
KRS 31 .185(1) provides that "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 concerned may authorize the use of private facilities to
be paid for on court order from the special account of the Finance and Administration
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(l) . 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" standard 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 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 .
In Hicks v. Commonwealth, 670 S.W.2d 837, 838 (Ky.1984) the standard for
determining whether a criminal defendant is entitled to funds for expert assistance
was stated as whether such assistance is reasonably necessary. In Stopher v.
Conliffe, 170 S .W.3d 307, 309-310 (Ky. 2005) (overruled in part by Hodge v.
Coleman, 244 S .W .3d 102 (Ky. 2008)), we held that KRS 31 .185 applied only to
attorneys representing an indigent defendant at trial, and that the statute does not
apply to post-conviction proceedings at all. As noted, in Paisley, 201 S .W.3d 34, we
held that it was an abuse of discretion for . a trial court to order the Finance and
Administration Cabinet to pay for a private psychologist without the requisite
showing that the use of state facilities was somehow impractical .
In Binion v. Commonwealth, 891 S .W .2d 383 (Ky. 1995) we recognized that in the
situation where a defendant is asserting an insanity defense that a neutral mental
health expert was insufficient to satisfy the constitutional requirement of due
process, and that a personal mental health expert should be provided so as to
permit that expert to conduct an appropriate examination and assist in the
evaluation, preparation and presentation of the defense . We noted that "[t]he
benefit sought was not only the testimony of a mental health professional, but also,
the assistance of an expert to interpret the findings of the expert used by the
prosecution and to aid in the presentation of cross-examination of such an expert ."
Id. at 386. Binion, however, was concerned with trial proceedings involving an
unconvicted defendant, whereas the present case, like Mills, involves a postconviction proceeding . Thus Mills, not Binion, is the applicable standard .
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, 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 postconviction 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
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
6 Moreover, the substance of our review will apply with equal force in the event the
trial court denies expert funding under the Mills standard, and, upon such denial, a
second writ of prohibition by White would be redundant and, therefore, frivolous.
one of the bases identified by White,? 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 no realistic threat to White's "state and federal constitutional
rights to confidential defense communications" as a result of a KCPC
evaluation . White does not identify with specificity the sorts of
communications that may be compromised, and this argument appears to rest
largely upon speculation . 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. It stands to
reason that "confidential defense communications" will be minimally
implicated . Moreover, upon proper motion by trial counsel, safeguards may be
7 Because we find no irreparable injury not redressable by appeal, we need not
consider each of these claims upon the merits.
implemented by the trial court to protect any confidential defense
communications as due process may require . "`Great and irreparable injury'
means `something of a ruinous nature :' Newell Enterprises, Inc., 158 S .W.3d
at 754 . That is not the situation here . If White is ultimately adjudged not to be
mentally retarded by the trial court, and if he is able to demonstrate that the
disclosure of "confidential defense communications" affected the proceedings,
reversal of the trial court's determination would be an obtainable appellate
Similarly, 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 . 8
Moreover, if, as part of the evaluation and testing, it becomes necessary for
White to discuss other crimes he may have committed (which is unlikely
considering this will be an IQ evaluation), the trial court may. impose
appropriate safeguards to prevent KCPC from divulging this information to the
Commonwealth . Because this claim is speculative and the right may be
protected by appropriate safeguards, we are not persuaded that this allegation
entitles White to a writ of prohibition to prevent the KCPC evaluation.
8 Mitchell v. U.S., 526 U.S . 314, 326 (1999) ("[A]s a general rule, that where there can
be no further incrimination, there is no basis for the assertion of the [Fifth
Amendment] privilege [against self-incrimination] . We conclude that principle
applies to cases in which the sentence has been fixed and the judgment of
conviction has become final. See, e.g., Reina v. United States, 364 U.S. 507, 513,
81 S.Ct. 260, 5 L.Ed.2d 249 (1960) . If no adverse consequences. can be visited
upon the convicted person by reason of further testimony, then there is no further
incrimination to be feared."))
Finally, White's claim that he will be permanently deprived of his right to
a full and fair hearing is vague, speculative, and unpersuasive . If, ultimately,
unforeseen detriments result from the KCPC evaluation, this problem will be
redressable on appeal . If White's reservations concerning a KCPC evaluation
come to fruition, we discern no potential problem which may not be redressed
on appeal, at which time we will have the full record of the proceedings before
In summary, because White has not identified an irreparable injury or
great injustice which would result from, the KCPC evaluation, and which would
not be redressable on appeal, we are constrained to deny his petition for a writ
of prohibition .
For the foregoing reasons, White's petition for a writ of prohibition
against Special Judge Payne is denied .
All sitting. All concur .
COUNSEL FOR PETITIONER:
Kevin M. McNally
513 Capital Avenue
P O Box 1243
Frankfort, Kentucky 40602
P O Box 4815
Frankfort, Kentucky 40604
Hon . Gary D . Payne, Special Judge
3195 Paris Pike
Lexington, Kentucky 40511
COUNSEL FOR REAL PARTIES IN INTEREST:
Susan Roncarti Lenz
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
Muriel B . Varhely
208 Boone Way
Richmond, Kentucky 40475
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KARU GENE WHITE
IN SUPREME COURT
HON . GARY D . PAYNE (SPECIAL JUDGE)
COMMONWEALTH OF KENTUCKY
REAL PARTY IN INTEREST
ORDER DENYING THE PETITION FOR REHEARING BUT
GRANTING IN PART THE PETITION FOR MODIFICATION
The Petition for Rehearing, filed by the Commonwealth of
Kentucky, Real Party in Interest, of the Opinion of the Court, rendered
August 26, 2010, is DENIED .
The Opinion of the Court rendered on August 26, 2010, is
MODIFIED, in part, by substitution of the attached Opinion in lieu of the
original Opinion . Said modification does not affecting the holding of the
Opinion as originally rendered
All sitting . All concur.
ENTERED : March 24, 2011 .