BENNY LEE HODGE V. COMMONWEALTH OF KENTUCKY AND ROGER DALE EPPERSON V. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 27,200l
AS MODIFIED: MARCH 21, 2002
TO BE PUBLISHED
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1999-SC-0050-MR
BENNY LEE HODGE
V.
APPEALS FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
85CR-0070
COMMONWEALTH OF KENTUCKY
APPELLEE
AND
1999-SC-0051 -MR
1999-SC-0499-MR
ROGER DALE EPPERSON
V.
APPELLANT
APPEALS FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
85CR-0070
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE JOHNSTONE
APPELLEE
REVERSING AND REMANDING
Appellants, Roger Dale Epperson and Benny Lee Hodge, were convicted of
robbery, burglary, attempted murder, and murder in the Letcher Circuit Court. Each
received the death penalty. We affirmed their convictions and sentences on direct
appeal to this Court. Epperson v. Commonwealth, Ky., 809 S.W.2d 835 (1990) cert.
denied, Hedge v. Kentucky, 502 U.S. 1037, 112 S. Ct. 885, 116 L. Ed. 2d 789 (1992);
cert. denied, Epperson v. Kentucky, 502 U.S. 1065, 112 S. Ct. 955, 117 L. Ed. 2d 122
(1992). Subsequently, both Epperson and Hodge filed motions to vacate the judgments
pursuant to RCr 11.42. Both requested an evidentiary hearing on the allegations raised
in their motions. The trial court denied the motions without holding an evidentiary
hearing. We reverse the denial of an evidentiary hearing on certain issues and remand
these cases with directions to hold an evidentiary hearing on those issues set out
below.
Except where necessary, we will not attempt to wade through the extraordinary
facts proven, alleged, or otherwise alluded to surrounding this case. Rather, our
discussion is limited to whether Epperson’s and Hodge’s RCr 11.42 motions established
a sufficient basis for granting relief or for holding an evidentiary hearing on the issues
presented.
JURY TAMPERING
Both Epperson and Hodge made the following factual allegations in their RCr
11.42 motions:
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1.
Jurors in this case were supplied with newspapers, access to television,
visits, and alcoholic beverages during the time that they were
sequestered.
2.
The Commonwealth’s Attorney maintained at least daily ex parte contact
with the jury, either directly or through other parties.
3.
Before the evidence was completed and the case was submitted to the
jury for deliberation, the jury had already chosen a foreman, had
deliberated the case and, further, had already decided that its verdict
would be guilty and that it would recommend the death penalty for both
defendants.
The trial court summarily disposed of the jury tampering issue stating:
None of the allegations as to jury misconduct are supported by the record
of the trial, and there is no specific factual support asserted for them. The
Movants do not indicate what evidence they rely on to show that these
alleged incidents happened or what witnesses they intend to call.
Because of this, the Court finds no prima facie showing of constitutional
error is made . . . .
Findinas of Fact and Conclusions of Law at 5, 85CR-0070 (Letcher Circuit Court
entered Dec. 2, 1998).
Instead of examining whether the record refuted the allegations raised, the trial
court focused on whether the record supported the allegations, which is the incorrect
test when addressing the question of whether an evidentiary hearing to resolve issues
raised in an RCr 11.42 is required.
The initial question to be asked is whether the alleged error is such that the
movant is entitled to relief under the rule. “In a petition filed under RCr 11.42 the
movant must show that there has been a violation of a constitutional right, a lack of
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jurisdiction, or such a violation of a statute as to make the judgment void and therefore
subject to collateral attack.” Lay v. Commonwealth, KY., 506 S.W.2d 507, 508 (1974).
If that answer is yes, then an evidentiary hearing on a defendant’s RCr 11.42 motion on
that issue is only required when the motion raises “an issue of fact that cannot be
determined on the face of the record.” Stanford v. Commonwealth, Ky., 854 S.W.2d
742, 743-44 (1993) judgment affirmed, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d
306 (1989). In the case at bar, the allegations of juror tampering rise to the level of a
potential violation of a constitutional right.
The right to an unbiased decision by an impartial jury in a criminal trial is a basic
principle of due process. Grooms,
Ky., 756 S.W.2d 131, 134 (1988).
Jury tampering may deprive a defendant of his right to an impartial jury so as to violate
the right to due process. The U.S. Supreme Court held that jury tampering in a criminal
trial is presumptively prejudicial. Remmer v. United States, 347 U.S. 227, 229, 74 S.
Ct. 450,451, 98 L. Ed. 2d 654,655 (1954).
In Remmer, an unnamed party communicated with a juror -- who later became
the foreman -- and suggested to the juror that he could profit by bringing in a verdict
favorable to the defendant. Id. at 228, 74 S. Ct. at 450, 98 L. Ed. 2d at 655. The juror
related the incident to the judge who advised the prosecutor, but not defense counsel.
Id., 74 S. Ct. at 450-51, 98 L. Ed. 2d at 655. Defense counsel first learned of the
contact after trial. Id. Subsequently, the defendant moved for a new trial and
requested a hearing to determine the facts of the contact. Id., 74 S. Ct. at 451, 98 L.
Ed. 2d at 655. The district court denied the motion and the court of appeals affirmed.
The Remmer Court reversed and remanded for the district court to hold a hearing to
“determine the circumstances, the impact upon the juror, and whether or not it was
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prejudicial. . . .” Id. at 230, 74 S. Ct. at 451-52, 98 L. Ed. 2d at 656. The jury tampering
alleged in the present case is much graver than that alleged in Remmer.
Next, we conclude that the jury tampering allegations are pled with sufficient
specificity. See Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 909 (1998), cert.
denied, 516 U.S. 854, 116 S. Ct. 154, 133 L. Ed. 2d 98 (1995) (“Conclus[ory]
allegations which are not supported by specific facts do not justify an evidentiary
hearing because RCr 11.42 does not require a hearing to serve the function of a
discovery deposition.“). Epperson and Hodge do not simply raise a blanket allegation
of jury tampering. Rather, they each allege specific incidents of tampering, a, daily
ex oarte contact by the Commonwealth’s Attorney, the supplying of newspapers to the
jury, and providing the jury access to television, etc. The trial judge discounted these
allegations because Epperson and Hodge did not supply the underlying factual bases
for these charges, i.e., the facts they intended to rely on to prove the allegation.
FAILURE TO INTRODUCE MITIGATING EVIDENCE
During the penalty phase, neither defense counsel presented any witnesses to
testify on either Epperson’s or Hodges behalf. Nor did defense counsel for either
defendant introduce any other mitigating evidence. The only evidence presented on
Epperson’s behalf in the penalty phase was a stipulation that: (1) he had no significant
history of prior criminal activity; (2) he voluntarily returned to Kentucky to face the
charges against him; and (3) he had a wife and child. Likewise, the only evidence
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presented on Hodges behalf during the penalty phase was a stipulation that: (1) he
had a wife and three children; (2) he had a public-job work record; and (3) he lived and
resided in Tennessee.
In his RCr 11.42, Hodge argues his defense counsel was ineffective in the
penalty phase for “failing to investigate, discover, and/or present proof which was
readily available at the time of trial and which would have been substantial evidence to
refute the prosecution’s argument that the only way to punish [Hodge] was to kill him.”
In support of this argument, he argues that his counsel conceded that he was
unprepared to proceed with the penalty phase.
Likewise, Epperson argues in his RCr 11.42 motion that his defense counsel was
ineffective for failing to investigate, discover and present evidence readily
available at the time of trial which would have cast doubt on . . .
Epperson’s ability to plan or even intend the crimes he was accused of,
cast doubt on whether he was not acting under extreme emotional
disturbance, and [would have] provided powerful mitigation explaining who
. . . Epperson was, how he got to be that way, and why he may have
ended up in the Acker home with Bartley and Hodge.
Both Epperson and Hodge support their arguments with a list of mitigating
evidence that they claim that their defense counsel should have discovered and put
before the jury.
The trial court concluded that the failure to introduce mitigating evidence was not
ineffective assistance of counsel:
The record shows that the jury was made aware of mitigating
circumstances for both Movants by stipulated facts read to the jury by the
judge. . . . In addition, both defense counsel made impassioned and
moving pleas in closing argument for their clients, asking that the death
penalty not be imposed. Trial counsel has no absolute duty to present
mitigating character evidence at all, Bolender v. Sinaletarv, 16 F.3d 1547
(1 Ith Cir. 1994) nor is counsel required to present all available evidence
in order to render effective assistance. Watters v. Thomas, 46 F.3d 1506
(1 Ith Cir. 1995). Also, had counsel introduced additional evidence, the
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prosecution might have introduced evidence in rebuttal, such as victim
impact testimony, which would have made the jury more likely to impose
the death penalty. All in all, the court does not find counsel’s performance
during the penalty phase to be deficient. Although there may have been
some additional evidence that could have been introduced on behalf of
the Movants, the Court finds that Movants have failed to show a
reasonable probability that the outcome of the proceeding (the sentence
of death that they received) would have been any different if this evidence
had been admitted. . . . In this case, giv[en] the atrocious and heinous
nature of the crime, the Court cannot say there is a reasonable probability
that even had this evidence been introduced, the result of the proceeding
would have been any different.
Findinas of Fact and Conclusions of Law, supra, at 7.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), sets forth the standard of review for an ineffective assistance of counsel claim:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.
Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Further, there exists a strong
presumption that counsel’s performance was effective. Id. at 690, 104 S. Ct. at 2066,
80 L. Ed. 2d at 695.
Under Strickland, defense counsel has an affirmative duty to make reasonable
investigation for mitigating evidence or to make a reasonable decision that particular
investigation is not necessary. Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696. The
reasonableness of counsel’s investigation depends on the circumstances of the case.
Id. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
The trial court in this case relied on a pair of Eleventh Circuit Court of Appeals’
decisions to support its conclusion that defense counsel has neither the absolute duty
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to present mitigating character evidence, nor the duty to present all available mitigating
evidence. While we agree with the trial court on these points, we do not believe that
the trial court went far enough in its analysis of Eleventh Circuit cases on this issue.
An attorney has a duty to conduct a reasonable investigation, including an
investigation of the defendant’s background, for possible mitigating
evidence. In evaluating whether counsel has discharged this duty to
investigate, develop, and present mitigating evidence, we follow a threepart analysis. First, it must be determined whether a reasonable
investiaation should have uncovered such mitigating evidence. If so, then
a determination must be made whether the failure to put this evidence
before the jury was a tactical choice by trial counsel. If so, such a choice
must be given a strong presumption of correctness, and the inquiry is
generally at an end. If the choice was not tactical and the performance
was deficient, then it must be determined whether there is a reasonable
probability that, but for counsel’s unprofessional errors, the result would
have been different.
Porter v. Singletary, 14 F.3d 554, 557 (1 Ith Cir. 1994) cert. denied, 513 U.S. 1009, 115
S. Ct. 532, 130 L. Ed. 2d 435 (internal citations omitted and emphasis in original).
In the case at bar, the trial court did not determine whether either defense
counsel conducted any investigation for mitigating evidence. From the record before
us, it appears that neither Epperson’s nor Hodges defense counsel conducted any
investigation, though an evidentiary hearing might prove otherwise. If there was no
investigation, then their performance was deficient. a, e.a., Austin v. Bell, 126 F.3d
843, 849 (6th Cir. 1997), cert. denied, 523 U.S. 1079, 118 S. Ct. 1526, 140 L. Ed. 2d
677 (1998), and cert. denied, 523 U.S. 1088, 118 S. Ct. 1547, 140 L. Ed. 2d 695
(1998). The trial court then would have to determine “whether there is a reasonable
probability that, but for counsel[s’] unprofessional errors, the result would have been
different. A reasonable probability is a probability sufficient to undermine the
confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.
2d at 698. In the case at bar, this determination is made by examining whether there is
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a reasonable probability that the jury would have weighed the mitigating factors that
should have been admitted and the aggravating factors differently had counsel
performed adequately. See Skaggs v. Parker, 235 F.3d 261, 274 (6th Cir. 2000).
Instead of determining what mitigating evidence could have and should have
been admitted, the trial court merely noted that “there may have been some additional
evidence that could have been introduced on behalf of the Movants. . . .‘I This is not
sufficient. Before any possible mitigating evidence can be weighed in a meaningful
manner, that evidence first must be determined and delineated. This is the proper
function of an evidentiary hearing.
An evidentiary hearing must be held in this case to determine whether the failure
to introduce mitigating evidence was trial strategy, or “an abdication of advocacy.”
Austin, 126 F.3d at 849. And, if defense counsel’s advocacy was deficient, then a
finding must be made of what mitigating evidence was available to counsel. Thereafter,
the trial court must then determine whether there is a reasonable probability that the
jury would have weighed the mitigating and aggravating factors differently.
OTHER CLAIMS
Both Epperson and Hodge argue that they were denied effective assistance of
counsel due to each of their counsel’s failure to adequately voir dire the jury, failure to
adequately prepare for the testimony of Anthony Smith and Donald Bartley, and failure
to adequately cross-examine each of these witnesses. Further, they argue that the
Commonwealth’s Attorney failed to disclose exculpatory material to the defense in
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Finally, they each argue that they were denied effective assistance of counsel due to a
conflict of interest between Epperson’s counsel, Lester Burns, and Hodges counsel,
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Dale Mitchell. As found by the trial court, each of these allegations were addressed
and resolved on direct appeal and cannot be raised in an RCr 11.42 motion. Thacker v.
Commonwealth, Ky., 476 S.W.2d 838 (1972).
RECUSAL OF TRIAL JUDGE
Both Epperson’s and Hodges allegations of jury tampering center on charges
that the Commonwealth’s Attorney prosecuting their case, James Wiley Craft, acted
improperly. While the allegations are somewhat interwoven, they argue in part that
Craft specifically had ex parte communications with the jury foreman, Eugene Banks.
Further, they argue that Craft and Banks were good friends and -- at the time of trial -Craft was dating Banks’s stepdaughter, Bridgette Combs.
At some point during the pendency of Epperson’s and Hodges RCr 11.42
motions before the trial court, Craft’s son worked for Judge Wright as his law clerk.
Further, Judge Wright openly acknowledged that he -- like Craft -- had at one time been
romantically involved with Combs.
Epperson and Hodge first moved for Judge Wright to recuse himself, which
motion was denied. Pursuant to KRS 26A.020, Epperson and Hodge then moved this
Court for Judge Wright’s recusal on grounds that his employment of Crafts son and his
former romantic involvement with Combs prevented him from rendering an unbiased
decision on their RCr 11.42 motions. They alleged that Judge Wrights former
relationship with Combs was especially troubling because she likely would be a material
witness at any evidentiary hearing on the jury tampering charges. Their concerns were
based on the fact that Combs’s stepfather, jury foreman Banks, had died and Combs’s
testimony was necessary to fill in the blanks regarding Crafts relationship with Banks.
We denied the motion. But in Foster v. Overstreet, Ky., 905 S.W.2d 504 (1995) we
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held that a defendant who unsuccessfully seeks recusal of a judge, may still raise the
issue on appeal from an adverse final judgment. Id. at 50506.
We cannot say that the trial court abused its discretion in denying the motion to
recuse.
But we believe that, if it appears likely that Combs will be called as a witness at
the evidentiary hearing on the jury tampering allegations, then Judge Wright should
reconsider the recusal motion in order to prevent the appearance of impropriety.
CONCLUSION
For the reasons set forth above, we reverse the trial court’s denial of Epperson’s
and Hodge’s RCr 11.42 motions for an evidentiary hearing on the issues of jury
tampering and ineffective assistance of counsel as it relates to trial counsels’ failure to
introduce mitigating evidence. Therefore, we remand this case for an evidentiary
hearing on these issues.
Lambert, C.J., Cooper and Keller, JJ., concur. Wintersheimer, J., dissents by
separate opinion, with Graves, J., joining that dissent. Stumbo, J., not sitting.
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COUNSEL FOR APPELLANT HODGE:
John Palombi
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-I 133
Elizabeth A. Shaw
P. 0. Box 644
Richmond, KY 40476-0644
COUNSEL FOR APPELLEE:
A. 9. Chandler III
Attorney General of Kentucky
Ian G. Sonego
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
COUNSEL FOR APPELLANT EPPERSON:
Randall L. Wheeler
Julia K. Pearson
Assistant Public Advocates
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-I 133
COUNSEL FOR APPELLEE:
A. 9. Chandler Ill
Attorney General of Kentucky
Connie Vance Malone
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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RENDERED: SEPTEMBER 27,200l
TO BE PUBLISHED
1999-SC-0050-MR
1999-SC-0498-MR
APPELLANT
BENNY LEE HODGE
V.
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
85CR-0070
COMMONWEALTH OF KENTUCKY
APPELLEE
AND
1999-SC-0051 -MR
1999-SC-0499-MR
ROGER DALE EPPERSON
V.
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, Ill, JUDGE
85CR-0070
COMMONWEALTH OF KENTUCKY
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
APPELLEE
I respectfully dissent from the majority opinion because the RCr 11.42 motions of
Epperson and Hodge, do not establish a sufficient basis for granting the relief requested
or for holding an evidentiary hearing on the issues presented.
Initially, the RCr 11.42 motion by the defendants claiming jury tampering failed to
allege any specific facts or sources of evidence to support the conclusory allegations.
The circuit judge properly rejected these claims because there was no specific factual
support for them. The alleged supporting facts which the defendants argue before this
Court were not presented to the circuit court until after the RCr 11.42 motion was denied
and the notice of appeal had been filed. Each allegation was stated in a single
sentence without citation to the record. It has been held that conclusory allegations of
juror misconduct or information from anonymous sources is not sufficient to require a
hearing on the alleged jury misconduct. See Sanborn v. Commonwealth, Ky., 975
S.W.2d 905 at 911 (1998); Smith v. Commonwealth, KY., 734 S.W.2d 437 at 445
(1987).
The allegations of jury tampering do not ascend to the level of even a potential
violation of any constitutional right. The obviously lengthy 51 page RCr 11.42 motion
with innumerable attachments does not provide the necessary specifics to support the
complaint that is made here. This Court has held that as to each individual claim in an
RCr 11.42 motion, the motion must set forth all facts necessary to establish the
existence of a constitutional violation and the court will not presume that facts omitted
from the motion establish the existence of such a violation. See Stanford v.
Commonwealth, Ky., 854 S.W.2d 742 at 748 (1993); Skaaas v. Commonwealth, Ky.,
803 S.W.2d 573 at 576 (1990). Wilson, Ky., 975 S.W.2d 901 (1988),
indicated that even if an evidentiary hearing was necessary regarding some of the
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claims, a reviewing court should limit that hearing to only those issues which were not
refuted by the record. It should be noted that trial counsel for Hodge was not
constitutionally ineffective at the penalty phase of the case because defense counsel
was able to prevent the prosecution from introducing the prior felony convictions of
Hodge and to persuade the prosecutor to enter a stipulation regarding the background
and family relationships of Hodge.
Finally, it appears that the attorneys representing the defendants were aware that
their original motion was inadequate because after the RCr 11.42 motions were denied,
they filed a CR 59.05 motion alleging more specific facts and containing statements
from a former deputy sheriff. It would appear that this would be a strong indication that
the complaint relative to the failure to introduce mitigating evidence was actually trial
strategy and not ineffective assistance of counsel.
I would affirm the order of the circuit court overruling the RCr 11.42 motions.
Graves, J., joins this dissent.
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1999-SC-0050-MR
1999-SC-0498-MR
BENNY LEE HODGE
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
85CR-0070
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
AND
1999-SC-0051-MR
1999-SC-0499-MR
ROGER DALE EPPERSON
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
85CR-0070
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER DENYING PETITIONS FOR REHEARING
The petitions for rehearing are denied. The opinion rendered on September 27,
2001, is modified on its face by the substitution of the attached pages 1 and 5 in lieu of the
original pages 1 and 5.
All concur, except Stumbo, J., not sitting.
ENTERED: March 21,2002.
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