White v. Commonwealth, 500 S.W.3d 208

Background

Karu Gene White was convicted in 1980 of three capital murders and sentenced to death; an IQ test shortly after sentencing showed an IQ of 81.
In 2004 White sought post-conviction relief claiming intellectual disability under Atkins; the trial court ordered a mental evaluation and later disputes arose over funding and who should conduct it.
The trial court denied payment for a private expert under KRS 31.185, ordered White to submit to evaluation by the Kentucky Correctional Psychiatric Center (KCPC), and warned that refusal would waive the claim.
This Court previously reviewed related interlocutory writs and set the controlling standard: KRS 31.185’s ‘‘impractical use’’ requirement must be applied together with Mills v. Messer’s ‘‘reasonably necessary’’ test for appointing and funding private experts.
The Supreme Court’s decision in Hall v. Florida (2014) requires courts to treat IQ scores as ranges (accounting for standard error) and to consider adaptive functioning evidence when scores fall within that margin of error.
The Kentucky Supreme Court affirms denial of public funding for a private expert, reverses the trial court’s finding that White waived his intellectual-disability claim by refusing evaluation, and remands for proceedings consistent with Hall.

Issues

Issue	White's Argument	Commonwealth's Argument	Held
Whether KRS 31.185 requires publicly funded independent private evaluation	KRS 31.185 entitles indigent defendants to private evaluation when state facilities are impractical; White needed a private expert and public funds	Statute allows use of state facilities and trial court discretion to deny public funding absent impracticality; KCPC is adequate	Court: No statutory right to public funds for a private expert; trial court did not abuse discretion in denying funding when KCPC was found adequate
Standard for ordering/ funding private expert (Mills application)	Private expert testimony was reasonably necessary for full presentation	KCPC evaluation was sufficient; private expert not reasonably necessary	Court: Apply Mills (‘‘reasonably necessary’’); here trial court correctly found private expert not reasonably necessary
Whether refusing KCPC exam constituted waiver of Atkins/Hall claim	Refusal should not automatically forfeit claim; Hall requires consideration of score margin of error	Trial court can deem refusal waiver because defendant bears burden to prove disability per KRS 532.135	Court: Refusal alone does not irrevocably waive claim; trial court’s waiver ruling reversed and remanded to allow evaluation consistent with Hall
Retroactivity of Hall v. Florida	Hall is a new rule affecting evaluation standards	(Commonwealth) not argued to be non-retroactive	Court: Hall is substantive (limits state power to execute intellectually disabled persons) and must be applied retroactively
Whether KCPC is statutorily/ constitutionally barred from performing post-conviction evaluation or violating confidentiality/ Fifth Amendment rights	White: KCPC lacks statutory authority and threatens confidential defense communications; private expert necessary	KCPC is authorized and can be ordered to evaluate; safeguards can protect confidentiality and privilege	Court: KCPC is authorized to do post-conviction evaluations; constitutional concerns can be addressed with trial-court safeguards; no constitutional violation found

Key Cases Cited

Atkins v. Virginia, 536 U.S. 304 (2002) (Eighth Amendment bars execution of intellectually disabled persons)
Teague v. Lane, 489 U.S. 288 (1989) (rules on retroactivity of new constitutional rules)
Mills v. Messer, 268 S.W.3d 366 (Ky. 2008) (funding standard: expert testimony must be reasonably necessary)
White v. Payne, 332 S.W.3d 45 (Ky. 2010) (applies Mills and Paisley standards to funding for mental‑retardation evaluations)
White v. Commonwealth, 671 S.W.2d 241 (Ky. 1983) (direct-appeal decision affirming convictions)
Binion v. Commonwealth, 891 S.W.2d 383 (Ky. 1995) (court-appointed neutral expert may not satisfy due-process right to private expert)
Bowling v. Commonwealth, 377 S.W.3d 529 (Ky. 2012) (procedures for post-conviction Atkins claims)
Hall v. Florida, 134 S. Ct. 1986 (2014) (IQ score must be treated as a range; consider adaptive deficits when score within margin of error)