CONWAY — A judge on Monday rejected defense arguments that the man accused of murdering two University of Central Arkansas students in October 2008 is mentally retarded and ineligible for the death penalty.
In the ruling, Circuit Judge Charles E. Clawson cited a series of IQ tests and testimony that defendant Kelcey S. Perry played video games, often drove a car and filed grievances over problems in the Faulkner County jail.
Perry, 21, of Conway is to go on trial in April on two counts of capital murder in the drive-by shooting deaths of Ryan Henderson, 18, of Little Rock and Chavares Block, 19, of Dermott. If convicted, Perry will face the death penalty or life in prison without parole.
In his decision, Circuit Judge Charles E. Clawson Jr. wrote that the court “has had the benefit of four tests regarding” Perry’s abilities.
In 1999, Clawson wrote,tests given by the Conway public schools found that Perry had an overall IQ of 81. In March 2006, another battery of tests found Perry had an overall IQ of 65. In June of this year, defense-requested tests found that Perry had an IQ of 68, while a state-requested IQ test put it at 79.
Under Arkansas law, a person cannot be executed if he suffers from mental retardation. The law also provides that an IQ of 65 or below results in a presumption of mental retardation, Clawson wrote in his decision filed with the Faulkner County circuit clerk’s office.
“The Court notes that only one of the scores he [Perry] received even approaches the presumptive level, all other scores are higher,” Clawson said.
Defense attorney Jeff Rosenzweig of Little Rock noted in an interview Monday that Clawson’s ruling “does not in any way bind a jury.” The prosecution cannot legally tell jurors of the judge’s ruling, he said.
Further, Rosenzweig said, “You can be retarded and still be over [an IQ of] 65. The presumption is that you’re retarded under 65.”
Clawson wrote that Perry’s mother, grandmother and aunt gave conflicting testimony during a hearing about Perry’s abilities in September.
Perry’s grandmother, Ola Perry Doss, testified that he could not wash and dry clothes and had limited ability to cook, but his mother “testified that he played video games, was active in school, that he could handle money and was aware that money was deposited into his account with the sheriff’s office,” Clawson wrote.
Perry’s mother also testified that her son cooked at McDonald’s, “took care of himself and his own hygiene” and handled some household chores such as carrying out the trash, the judge wrote.
Perry did not have a driver’s license but “indicated in one of the evaluations that he frequently drove a car which belonged to his girlfriend,” Clawson added.
Further, Perry has filed jail grievances since being incarcerated. He wrote some of them, while others were filed on his behalf by someone else, Clawson wrote. Perry also has played cards in jail and “has acknowledged reading some although that was not his preferred method of passing the time,” the judge said.
Rosenzweig said the judge’s decision did not particularly surprise him. “You’ve got a situation where there’s testimony on both sides, and it’s a whole lot to ask a judge to say this [issue] shouldn’t even be sent to a jury” for consideration.
If Perry is convicted, the defense can still argue in the sentencing phase that Perry is retarded, Rosenzweig said. The defense also can appeal any death sentence for the same reason.
Earlier this month, Perry’s co-defendants - Kawin Jerod Brockman, Brandon Ricardo Wade and Mario Lavelie Toney - pleaded no contest to felony terrorist act charges and were sentenced to prison. In exchange for their negotiated pleas, they agreed to testify against Perry.
Arkansas, Pages 9 on 11/23/2010