White v. Commonwealth, 2014-SC-000725-MR

600 S.W.3d 176

Larry Lamont WHITE, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2014-SC-000725-MR

Supreme Court of Kentucky.

MARCH 26, 2020

COUNSEL FOR APPELLANT: Timothy G. Arnold, Frankfort, Director, Post Trial Division, Department of Public Advocacy, Kathleen Kallaher Schmidt, Susan Jackson Balliet, Erin Hoffman Yang, Assistant Public Advocates, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Daniel Jay Cameron, Attorney General of Kentucky, Stephanie Lynne McKeehan, Assistant Attorney General, Emily Lucas, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE VANMETER

In 2014, Larry Lamont White was convicted of rape in the first degree and murder for the 1983 killing of Pamela Armstrong. The jury recommended a sentence of death for Armstrong's murder and twenty years’ imprisonment for the rape. After our affirmance of his matter of right¹ appeal, the United States Supreme Court vacated the judgment, and remanded White's case back to this Court for further consideration in light of Moore v. Texas , ––– U.S. ––––, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017), and its analysis regarding the execution of intellectually disabled defendants. Since the Supreme Court's remand, White has also pro se asked this Court to waive his intellectual disability claim, so he can move forward with post-conviction proceedings. After additional review of the record, and recent Kentucky and federal case law, we hold that—due to his death sentence—White may not pro se waive his pending intellectual disability claim. Further, based on the holdings of Moore and Woodall v. Commonwealth , 563 S.W.3d 1 (Ky. 2018), White has produced enough evidence to form a reasonable doubt as to his intellectual capabilities so as to warrant a hearing on the issue. Thus, we remand this case to the Jefferson Circuit Court with instructions to conduct an evidentiary hearing on White's intellectual disability claim.

I. Factual and Procedural Background.

The facts of this case are set out by this Court in its original opinion as follows:

Armstrong was murdered on June 4, 1983. Her body was discovered that same day in a public alley, with her pants and underwear pulled down around her legs and shirt pulled up to her bra line. She suffered from two gunshot wounds. One wound was observed on the left side of the back of her head, while the other wound was in virtually the same spot on the right side. The medical examiner was unable to determine which shot was fired first, but did opine that neither shot alone would have caused immediate death.

Although Appellant was originally a suspect, Armstrong's murder remained unsolved for more than twenty years. Yet, in 2004, the Louisville Metro Police Department ("LMPD") Cold Case Unit reopened Armstrong's case. Through the use of DNA profiling, Detectives sought to eliminate suspects. LMPD officers were able to obtain Appellant's DNA from a cigar he discarded during a traffic stop. Appellant's DNA profile matched the DNA profile found in Armstrong's panties.

On December 27, 2007, a Jefferson County Grand Jury returned an indictment charging Appellant with rape in the first degree and murder. During the trial, DNA evidence and evidence of Appellant's other murder convictions were introduced to the jury. On July 28, 2014, Appellant was found guilty of both charges.

Appellant refused to participate during the sentencing stage of his trial. The jury ultimately found the existence of aggravating circumstances and recommended a sentence of death for Armstrong's murder plus twenty years for her rape. The trial court sentenced Appellant in conformity with the jury's recommendation. Appellant now appeals his conviction and sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution and Kentucky Revised Statute ("KRS") 532.075.

White v. Commonwealth , 544 S.W.3d 125, 133 (Ky. 2017), as modified (Mar. 22, 2018), cert. granted , judgment vacated sub nom. White v. Kentucky , ––– U.S. ––––, 139 S. Ct. 532, 202 L. Ed. 2d 643 (2019), and abrogated by Woodall v. Commonwealth , 563 S.W.3d 1 (Ky. 2018).

One year after our decision in White , we held that KRS ² 532.130(2) —the statute requiring a showing of an IQ of 70 or less to determine intellectual disability—was unconstitutional. Woodall , 563 S.W.3d at 2. When the United States Supreme Court remanded White's case to this Court for reconsideration in light of Moore v. Texas , 137 S. Ct. 1039, this Court ordered supplemental briefing on the issue. White then pro se sent a letter to the Attorney General, stating his disagreement with his attorneys’ decision to pursue an intellectual disability defense. Thereafter, White pro se filed a "motion" with this Court objecting to the intellectual disability defense "asking this Court to dismiss the issue[,]" as he was not "retarded" nor "guilty of this crime." White subsequently filed additional "motions" that both assert similar arguments attempting to waive the intellectual disability claim before this Court. We directed both White's appellate counsel and the Commonwealth to file supplemental briefs regarding White's ability to waive this claim. Both briefs were filed, and both issues are now ripe for determination.

II. A Defendant Cannot Waive a Pending Claim of Intellectual Disability in a Death Penalty Case.

The Commonwealth argues that White has the ability to pro se waive his claim of intellectual disability currently pending before this Court. White's attorneys disagree. Both sides discuss, at length, the relationship between attorney and client, and White's Sixth and Eighth Amendments rights. However, we need not decide the broader attorney-client question of whether a defendant can pro se waive any pending or potential claim because we hold that Atkins v. Virginia , 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), and its progeny—extending to Moore —have placed an absolute bar against imposing the death penalty on the intellectually disabled.

"The Eighth Amendment of the United State Constitution prohibits the execution of a person who has an intellectual disability." Woodall , 563 S.W.3d at 2–3 (citing Hall v. Florida , 572 U.S. 701, 704, 134 S. Ct. 1986, 1990, 188 L. Ed. 2d 1007 (2014) ; Atkins , 536 U.S. at 321, 122 S.Ct. 2242 ). The United States Supreme Court in Hall v. Florida held that some punishments are prohibited by the Eighth Amendment "as a categorical matter." Id. at 708, 134 S. Ct. 1986. These punishments include 1) the denaturalization of a natural-born citizen; 2) sentencing a juvenile to death; and 3) sentencing "persons with [an] intellectual disability" to death. Id. The Supreme Court expounded in Moore that "the Constitution ‘restrict[s] ... the State's power to take the life of’ any intellectually disabled individual." 137 S. Ct. at 1048 (quoting Atkins , 536 U.S. at 321, 122 S.Ct. 2242 ). We take the Moore court's emphasis on "any" to include any individual who has not yet been determined to have an intellectual disability, but who is entitled to an evidentiary hearing by showing "some evidence creating a [reasonable] doubt as to whether he is [intellectually disabled]." Wilson v. Commonwealth , 381 S.W.3d 180, 186 (Ky. 2012) (citation omitted); see also Brumfield v. Cain , 576 U.S. 305, 135 S. Ct. 2269, 2281, 192 L. Ed. 2d 356 (2015) (favorably reviewing a Louisiana statute which required a defendant to show a "reasonable doubt as to his intellectual disability to be entitled to an evidentiary hearing[ ]") (citation omitted).

Moore further held that "[m]ild levels of intellectual disability, although they may fall outside Texas citizens’ consensus, nevertheless remain intellectual disabilities, and States may not execute anyone in ‘the entire category of [intellectually disabled] offenders[.]’ " 137 S. Ct. at 1051 (quoting Roper v. Simmons , 543 U.S. 551, 563–64, 125 S. Ct. 1183, 1192, 161 L. Ed. 2d 1 (2005) (citations omitted) (emphasis added)). Thus, when a punishment is prohibited by the Eighth Amendment blocking an entire category of individuals from a certain penalty, and evidence has been established creating a reasonable doubt as to whether a defendant is a member of that category, the issue cannot be waived. Accordingly, as discussed infra , because White has met his burden to receive an evidentiary hearing on his intellectual disability claim, this Court cannot allow him to pro se waive this issue, as that would impose the death penalty on a potentially intellectually disabled defendant—something the Commonwealth is without power to do.

III. White has Met the Burden to Receive an Evidentiary Hearing Regarding his Intellectual Capacity.

This Court was specifically directed to review White's intellectual disability claim under the standard set forth in Moore , 137 S. Ct. 1039. We last reviewed Moore in Woodall , wherein we declared KRS 532.130(2) unconstitutional, holding that "a criminal defendant automatically cannot be ruled intellectually disabled and precluded from execution simply because he or she has an IQ of 71 or above, even after adjustment for statistical error[.]" 563 S.W.3d at 6. Thus, as a preliminary matter, the statute we reviewed White's initial appeal under is no longer good law.

This Court, based on Moore , created the Woodall test to provide guidance to all future courts of this Commonwealth analyzing a claim of intellectual disability. See id. at 6–7 (citing Moore , 137 S. Ct. at 1045 ). Under the Woodall test, a defendant must show "(1) intellectual-functioning deficits (indicated by an IQ score ‘approximately two standard deviations below the mean’—i.e. , a score of roughly 70 —adjusted for the ‘standard error of measurement’; (2) adaptive deficits (‘the inability to learn basic skills and adjust behavior to changing circumstances,’); and (3) the onset of these deficits while still a minor." Id. at 6–7 (quoting Moore , 137 S. Ct. at 1045 ) (emphasis added). Lastly, "in addition to ascertaining intellectual disability using this test,...