ROGER EPPERSON V. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED : FEBRUARY 23, 2006
TO BE PUBLISHED
~ix~r~xtt w1rurf 'of
ON APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
This appeal is from a judgment based on a jury verdict that convicted Epperson of
two counts of complicity to murder, first=degree robbery and first-degree burglary . He
was sentenced to death. Epperson presents thirty-two issues on appeal . This Court
has carefully reviewed each of the allegations presented and finds no merit in any of
them. All of the claims will be treated in this Opinion.
Epperson was first tried in 1987 for the murder, robbery and burglary of the
victims in their home . He was convicted and sentenced to death for the double murders.
These convictions were ultimately set aside by this Court because the trial judge did not
conduct individual voir dire on the issue of pretrial publicity. Epperson was retried in
1996, and again convicted of capital murder, first-degree armed robbery and first-degree
The victims were found dead in their home on June 17, 1985. The wife had two
gunshot wounds in the back. The husband had two gunshot wounds to the head and
was also gagged . Epperson was sentenced to death for the murders and forty years in
prison for the noncapital felonies . This appeal followed .
A. Standard of Review
The standard of review for an unpreserved error in death penalty cases is set
forth in Sanders v. Commonwealth , 801 S .W.2d 665 (Ky. 1990), cent. denied, 502 U .S.
831, 112 S .Ct. 107,116 L.Ed .2d 76 (1991). See also Tamme v. Commonwealth , 973
S .W.2d 13 (Ky. 1998), cert. denied, 525 U.S . 1153, 119 S .Ct. 1056, 143 L .Ed .2d 61
(1999); Soto v. Commonwealth , 139 S .W.3d 827 (Ky. 2004), cert. denied, 125 S.Ct.
1670, 161 L.Ed .2d 495, 73 USLW 3556 (2005). With respect to unpreserved errors, this
Court may constitutionally require Epperson to demonstrate cause and prejudice or
ineffective assistance of counsel . See West v. Commonwealth , 780 S .W .2d 600 (Ky.
1989), cent. denied, West v. Seabold , 518 U .S. 1027, 116 S.Ct. 2569, 135 L.Ed .2d .1086
I . Indictment
Epperson argues that he was denied due process of law because elements of the
charges against him were not considered by a grand jury or alleged in the indictment .
He claims that the murder counts in the indictment are legally insufficient because they
do not allege a culpable mens rea. Upon careful review of the record, we find that the
indictment was sufficient to notify Epperson of the offenses for which he was charged .
The words of the original indictment and the reindictment are substantially the same.
The critical language of both documents charge that Epperson committed the offense of
capital murder by participating in a robbery in which the victims were killed .
Section 12 of the Kentucky Constitution provides that the prosecution must obtain
an indictment . RCr 6.10(2) states that an indictment "shall contain, and shall be
sufficient if it contains, a plain, concise and definite statement of the essential facts
constituting the specific offense with which the defendant is charged ." Consistent with
the language in RCr 6 .10, it has been held that the indictment does not need to list every
conceivable element of the offense . Caudill v. Commonwealth , 120 S.W.3d 635 (Ky.
2003), cent. denied, 542 U.S . 922, 124 S.Ct. 2877, 159 L .Ed .2d 781 (2004), and cert.
denied, Goforth v. Kentucky, 542 U.S . 922, 124 S.Ct. 2880, 159 L.Ed .2d 781 (2004);
Thomas v. Commonwealth , 931 S.W .2d 446 (Ky. 1996). Complaint that the grand jury
did not hear sufficient evidence is not a valid objection to an indictment. King v. Venters ,
595 S .W .2d 714 (Ky. 1980) ; RCr 5.10.
There is no possibility that Epperson was prosecuted under alternative theories of
liability . RCr 6.10(3) allows prosecution under alternate theories of liability consistent
with the alternatives set forth in the statute defining such offenses . See Evans v .
Commonwealth , 45 S .W.3d 445 (Ky. 2001).
Epperson was not misled by any alleged defect in the indictment because of his
previous trial . Virtually all of the evidence from the first trial was presented again at
retrial . The only significant difference in the evidence was the testimony of Sherry
Hamilton when she was recalled to testify as a defense witness regarding the account of
how the murders were committed given by Hodge . Defense counsel was aware of what
she testified to in the previous retrial of Hodge and was also aware of testimony from
Bartley during the first trial. Epperson was not misled about the nature of the crimes or
with the specific means in which those crimes were carried out and his participation
therein . Accordingly, the trial judge did not err in overruling the motion to dismiss the
II . Adequate Notice
Epperson contends that he was prevented from adequately preparing for trial
because of a defective indictment, insufficient bill of particulars and the refusal of the
prosecution to reveal the role it believed he played in the crimes charged . We disagree .
Epperson cannot complain of surprise or lack of notice by the indictment
pertaining to the charge of "participating in the robbery." Joint liability for the
commission of crimes, especially in robbery, is an age-old concept. Since the late
1800's Kentucky has allowed the conviction for complicity to stand where the indictment
charged the defendant as a principal . See, e .g ., Evans v. Commonwealth , 11
Ky .L.Rptr. 573, 12 S .W . 768 (Ky.App. 1889) (An indictment against the defendant as
principal authorized his conviction upon proof that he was present aiding and abetting .)
(memorandum case) compare Shelton v. Commonwealth , 261 Ky. 18, 86 S .W.2d 1054
(Ky. 1935) (Where indictment charged defendant with being present, aiding and
abetting named principals, but proof showed that he was neither actually nor
constructively present at time of commission of crime, indictment and proof held fatally
at variance, notwithstanding defendant might have been convicted under evidence as
an accessory before the fact.) . This concept has not diminished or been superseded .
Generally, all who are present at commission of robbery, rendering it countenance and
encouragement, and ready to assist if needed, are liable as principal actors .
Commonwealth v. Smith , 5 S .W.3d 126 (Ky. 1999) citing KRS 515.020 .
The prosecution filed a bill of particulars in which defense counsel was advised
that the statements of Bartley and Sherry Hodge Hamilton were to be relied on for the
specific conduct upon which the indictment was based. Defense counsel was aware of
the testimony of Bartley at the first trial of Epperson and the testimony of Hamilton given
at Hodge's retrial. He was also aware of the different accounts of whether Epperson
entered the premises and took an active role in committing the crimes or whether
Epperson remained outside as a lookout after having been involved in the planning of
The record demonstrates that the defendant was fully aware of the particularities
of the offenses with which he was charged . See White v. Commonwealth , 394 S .W.2d
770 (Ky. 1965). The criminal conduct was sufficiently described . The defense would not
have been any different in any event because it was a complete denial . Schambon v.
Commonwealth , 821 S.W .2d 804 (Ky. 1991) . Epperson was not misled or prejudiced in
Reliance by Epperson on Wolbrecht v. Commonwealth , 955 S .W.2d 533 (Ky.
1997) is misplaced . Wolbrecht , supra , held that the defendant was prejudiced by denial
of a continuance and a lack of pretrial notice that the prosecution was relying on a theory
of an unknown killer. That is certainly not the factual situation here . In this case,
defense counsel had sufficient information with which to prepare for the retrial of this
III . Guilt Phase Instructions
Epperson complains that the guilt phase instructions invaded the province of the jury
and denied him a fair and reliable capital trial because Bartley's name was omitted . He
contends that the jury could believe either the scenario testified to by Bartley - that
Epperson went into the house with Hodge, or the scenario testified to by Hamilton -that Epperson was the lookout while Bartley and Hodge went in .
Every issue of fact raised by the evidence and material to a defendant's defense
is required to be submitted to the jury on proper instructions . Haves v. Commonwealth ,
870 S .W .2d 786 (Ky. 1993). Here, the omission of Bartley's name was not material to
the defendant's defense . Epperson was convicted of complicity and it did not matter if
he was acting in complicity with Hodge or Bartley . Accordingly, any error in the
instructions was harmless . RCr 9.22.
IV. Other Bad Acts
Epperson claims that the admission of evidence, without notice, that he had
committed other crimes denied him due process and reliable sentencing . He directs
our attention to two different occurrences . First, he asserts that Bartley improperly
testified that he (Epperson) and others were involved with dealing drugs and using
them . The trial judge sustained the defendant's objection, but overruled the motion for
a mistrial . He also ordered the prosecutor to avoid references to other crimes. There
was no request for an admonition .
Second, Epperson maintains that Hamilton improperly testified that just prior to
the murders, Hodge, Bartley and Epperson had been in Georgia and committed an
armed robbery. Defense counsel objected to this testimony and his motion for a
mistrial was overruled . The prosecutor agreed to warn the witness from making these
types of comments .
There is no indication that the prosecutor deliberately elicited either of the
statements from these witnesses. Where, as here, evidence of other crimes is
introduced into evidence through the non-responsive answer of a witness, this Court
must look at all of the evidence and determine whether the defendant has been unduly
prejudiced by that isolated statement . Phillips v. Commonwealth , 679 S .W .2d 235 (Ky.
1984). Considering the entire record, we must conclude that Epperson was not unduly
prejudiced by the two comments .
V. Lack of Remorse
Epperson maintains that evidence of a lack of remorse at the guilt/innocence
phase was irrelevant, inflammatory and unconstitutionally diluted the presumption of
innocence. Although this issue is unpreserved, he believes it should be reviewed
because there was no possible strategic reason for the failure to preserve the issue,
particularly because an objection was made to evidence of a lack of remorse at the
penalty phase .
After Hamilton was recalled to testify as a defense witness, she was asked if she
heard a conversation among Epperson, Hodge and Bartley in which they discussed
disposing of the weapons, burning the clothing and how the murders occurred inside the
house . She answered in the affirmative and indicated that it was consistent with what
Hodge had told her earlier to the effect that he and Bartley had shot the victims . On
cross-examination, the prosecution asked Hamilton if any of the three had shown any
remorse during these conversations, and she responded in the negative . Although
objection was made to evidence of the lack of remorse at the penalty phase, there was
no objection or other motion concerning the testimony at this phase of the trial . RCr
9.22 contemplates a contemporaneous objection . Under all the circumstances, any
possible error would not be sufficiently prejudicial to rise to a reversible, manifest
VI . Address of Witness
Epperson states that the prosecution improperly concealed the whereabouts of
Hamilton and denied him a fair trial . In a footnote to a September 10, 1998 motion the
defense requested that the Commonwealth put forth proof why Hamilton's whereabouts
have been kept secret . At a contentious pre-trial hearing on October 26, 1998, the
prosecutor stated that Hamilton was afraid for her life.
Hamilton's identity was not secret, thus, the balancing test enunciated in Roviaro
v. United States, 353 U. S . 53, 77 S .Ct. 623, 1 L .Ed .2d 639 (1957) does not apply here .
Furthermore, a defendant does not have a constitutional right to gain access to every
witness he desires . United States v. Bailey , 834 F .2d 218 (1 St Cir. 1987) . United States
v. Oliver, 908 F .2d 260 (8th Cir. 1990) identified two general inquiries that should be
considered in determining whether such a right exists. First, whether the defendant has
shown reasonable diligence in attempting to obtain the requested information without
the government's assistance . Second, whether the defendant has demonstrated that
the requested information would have led to the admission of otherwise undiscoverable
evidence that is both material and favorable to the defendant .
The first question requires consideration of whether the address of Hamilton was
exclusively within the control and knowledge of the prosecutor. Oliver, supra . Here,
there is no evidence Hamilton was in hiding - the prosecution noted she was working,
nor is there any evidence that the prosecution limited her contact with the defendant . In
fact, the prosecutor recognized that the defense had a right to talk to the witness, but
he was not going to get the information for them .
Even if defense counsel exercised reasonable diligence in searching for
Hamilton, he still has not shown that her testimony would have been any more material
and favorable had a pre-trial meeting occurred . Defense counsel had an adequate
opportunity to cross-examine Hamilton at trial, especially on the alleged tape-recorded
conversations that she had with Bartley .
VII . Prior Testimony
Epperson argues that Bartley's previous testimony was not admissible at his trial
because he was not unavailable to testify . We disagree .
The trial judge ruled that Bartley could not invoke his Fifth Amendment right
against self-incrimination because he had already been convicted . Bartley then
testified in front of the jury and with the exception of a few minor matters, he indicated
that he did not remember what happened and did not remember his prior testimony.
Following his cross-examination, the prosecution moved to have Bartley declared
unavailable . The trial judge granted that motion and the prior testimony given by
Bartley was read into evidence over the defendant's objection .
We recognize that the offenses for which Epperson was being tried were
committed prior to July 1, 1992, the effective date of the Kentucky Rules of Evidence,
so the issue becomes whether Bartley's prior testimony would have been admissible
under pre-existing law. KRE 107(b) . See also Hodge v. Commonwealth , 17 S.W.3d
824 (Ky. 2000). As noted in .H odge, supra , we previously adopted the definition of
unavailability contained in Rule 804(a) of the Federal Rules of Evidence . See Crawley
v. Commonwealth, 568 S.W .2d 927 (Ky. 1978), cent. denied, 439 U .S. 1119, 99 S .Ct.
1028, 59 L .Ed .2d 79 (1979). Like our current rule, that rule states that a witness is
unavailable when he "testifies to a lack of memory of the subject matter of the
Here, Bartley's prior testimony was admissible under pre-1992 law. Moreover,
because Bartley appeared for cross-examination at the previous trial, the Confrontation
Clause places no constraints on the use of his prior testimonial statements . See
Crawford v. Washington, 541 U.S . 36, 124 S .Ct . 1354, 158 L .Ed .2d 177 (2004). There
was no error in admitting the prior testimony .
Vlll . Box of Materials
Epperson argues that the refusal of the trial judge to examine the contents of a
box of material allegedly belonging to Bartley denied Epperson effective assistance of
counsel . Defense trial counsel sought to have the trial judge examine the contents of
the box, but he denied the motion as well as a motion to include it in the appellate
At a pretrial hearing in 1998, counsel for Epperson informed the trial judge that a
box had been found at the Department for Public Advocacy which contained papers that
appeared to relate to Epperson's case. Counsel did acknowledge that the files might
have originated from Bartley's attorneys . A retired investigator for the DPA testified that
he found a letter evidencing a prosecution deal with Bartley for his testimony against
Epperson and Hodge, but which would not be completed until after his testimony in both
the Letcher and Jackson county cases. Murphy testified that "Epperson and Hodge"
was written on the outside of the box and stated that he had seen the box sometime
around 1993 . He testified that the box was not sealed when he examined it.
In October 1998, the trial judge conducted a pretrial hearing on the box question .
The trial judge read a memo Murphy had produced regarding the contents of the box
and the trial judge indicated that he did not find any exculpatory evidence and further
found no legal justification to inspect the box.
Defense counsel declined to pursue the invitation by the trial judge for an order
which directed a DPA attorney to put the facts that he presented in court in the form of
an affidavit . Defense counsel also did not pursue the invitation of the trial judge to
present additional evidence to the court at a subsequent hearing . Defense counsel
indicated that the Murphy memorandum by itself did not prove that a secret deal had
been made. Finally, Bartley testified at the pretrial hearing and denied the existence of
any tape recorded statements or letters between him and Sherry Hodge Hamilton . It
has been recognized that the attorney-client privilege continues to remain valid not only
after the case has been concluded, but even after the death of the client . Swidler &
Berlin v. United States, 524 U .S. 399, 118 S.Ct. 2081, 141 L.Ed .2d 379 (1998). This
Court has also recognized that the attorney-work product privilege protects information
compiled by counsel in the course of preparation for trial, subject to certain limitations .
Cf. Morrow v. Brown, Todd & Heyburn , 957 S .W.2d 722 (Ky. 1997) . Kyles v. Whitley ,
514 U.S . 419, 115 S .Ct. 1555, 131 L.Ed .2d 490 (1995), does not establish any principle
for a criminal defendant to obtain information collected by counsel for a codefendant. In
this situation, the trial judge acted within his discretion and properly deferred to the legal
rights of other parties in overruling the motion by Epperson .
IX. Codefendant's Death Sentence
Epperson argues that the admission of the judgment of a capital conviction and
sentence from another county, including the death sentence of a co-defendant, during
an, improperly combined penalty and truth-in-sentence phase denied him due process
and a reliable sentencing. We disagree .
The introduction of evidence of the criminal convictions in Letcher County was
permissible penalty phase evidence pursuant to KRS 532 .025(1)(b). See Templeman
v. Commonwealth, 785 S.W .2d 259 (Ky. 1990) .
There was no error in joining the capital sentencing phase and truth-insentencing phase for the other convictions . The language in KRS 532 .055(3) requiring
separation of these phases was deleted by the legislature as part of the 1998
amendment to that statue . As this Court has previously held, amendments to
sentencing laws apply to all cases tried after the effective date of the amendment .
Commonwealth v. Reneer, 734 S .W.2d 794 (Ky. 1987) .
Generally, a sentence imposed on a co-defendant is not relevant evidence . See
Neal v. Commonwealth, 95 S .W.3d 843 (Ky. 2003) . Here, reference to Hodge's
convictions and sentences in Letcher County was harmless because Epperson was
convicted of the same crimes and received an identical sentence .
Epperson complains that there is no articulated role or standard of review for
sentencing by the trial judge ; that aggravators were considered but not found beyond a
reasonable doubt; and, that the trial judge did not consider mitigation evidence .
The trial judge was within his proper discretion in upholding the jury's sentence of
death . The contention that there is no properly articulated standard of review for the trial
judge in such a circumstance is without merit. Bowlinq v. Commonwealth , 942 S .W .2d
293 (Ky. 1997), cent . denied, 522 U.S . 986, 118 S.Ct. 451, 139 L .Ed .2d 387 (1997).
We recognize that the trial judge's report is imprecise with respect to what
aggravators the jury was instructed on and found. Contrary to the report, the jury was
not instructed that Epperson's acts "created a great risk of death to more than one
person in a public place . . . " Nor was it instructed to find that the murders had been
committed "for purpose of receiving money or any other thing of monetary value, or for
profit." It was instructed to consider whether the murders were "committed by a person
with a prior record of conviction for a capital offense," but contrary to the trial judge's
report, the jury did not find those two aggravators .
Despite the imprecision in the report, we find that this unpreserved issue
amounts to harmless error. The jury was instructed on seven different aggravators and
found the existence of five of them beyond a reasonable doubt . It recommended
Epperson be sentenced to death . Other than the recognized inaccuracies, the report of
the trial judge is correct . There is no possibility that the result would be different with a
corrected report. cf. Foley v. Commonwealth , 953 S .W.2d 924 (Ky. 1997), cert. denied,
523 U.S . 1053, 118 S .Ct. 1375, 140 L .Ed .2d 522 (1998).
Reliance by Epperson on Ring v. Arizona , 536 U .S. 584, 122 S .Ct. 2428, 153
L.Ed .2d 556 (2002) is misplaced . This was not a situation where the trial judge found
statutory aggravating factors on his own in order to impose a sentence beyond that
authorized by the findings of the jury. cf. Soto v. Commonwealth , 139 S .W.3d at 841 et
seq. ("Appellant, however, interprets Ring as holding that aggravating circumstances
are, substantively, elements of the offense, not factors relevant only to sentencing . He
cites Jones for the proposition that such elements must be recited in the indictment.
Under federal law, an indictment must set forth all of the elements of the offense . . .
Regardless, we are not bound by federal law on this issue because, as noted in
Apprendi, the Fourteenth Amendment has never been construed to incorporate against .
the states "the Fifth Amendment right to 'presentment or indictment by a Grand Jury .""')
(internal citations omitted) .
Moreover, the jury was properly instructed on mitigating factors . KRS 532.025
does not require a trial judge to make findings as to mitigating circumstances when
reviewing the jury's recommended sentence of death. See Foley, supra .
XI . Courtroom Presence
Epperson asserts that it was error to allow the son of the victims, who was also
the Jackson County Circuit Clerk, to remain in the courtroom throughout the guilt phase
and then become a rebuttal witness . He also challenges the right of Morris to sit at the
prosecutor's table during the penalty phase .
KRE 615 provides in part that "[a]t the request of a party the court shall order
witnesses excluded so that they cannot hear the testimony of other witnesses and it
may make the order on its own motion." As in Smith v. Miller, 127 S .W.3d 644 (Ky.
2004), we acknowledge that the purpose of the rule is to ensure the integrity of the trial
by denying the witness an opportunity to alter testimony in the light of that presented by
other witnesses. Smith , supra , also recognizes that the separation of witness rule gives
the trial judge broad discretion to permit or refuse a witness permission to testify when
the rule is violated . The automatic exclusion of a witness from testifying who was in the
courtroom during the testimony of another witness can be an abuse of discretion.
The record does not reflect that the rule concerning separation of witnesses was
specifically invoked. Further, the mere fact that Morris was present in the courtroom
after he testified as the first witness for the prosecution, did not amount to a violation of
KRE 615 . There was no objection to either the initial testimony or that on recall. A
review of the record indicates that no other witness who testified recounted the same
facts as did Morris when he testified on recall . There was no error in allowing the
witness to sit at the prosecutor's table during the penalty phase . See Brewster v.
Commonwealth, 568 S .W .2d 232 (Ky. 1978); KRE 615(3).
XII . Victim Impact
Epperson maintains that it was error to allow the prosecution to present evidence
and give arguments designed to glorify the Morrises' character, exploit their suffering
and compare them to him . We disagree .
The son testified that he saw his father on June 16, 1985, Father's Day, at a
local restaurant. He stated that his father had been sick; that he was 65 years old, but
was active; and, he liked to trade. The son described his mother as a caring, loving
person as well as his father's faithful companion.
We have previously upheld the testimony regarding the character and
background of the victim during the guilt phase of the trial. See Bowlines
Commonwealth , supra ; Bussell v. Commonwealth , 882 S.W.2d 111 (Ky. 1994), cert.
denied, 513 U.S . 1174, 115 S .Ct. 1154, 130 L.Ed.2d 1111 (1995). The United States
Supreme Court in Payne v. Tennessee , 501 U .S. 808, 111 S .Ct. 2597, 115 L.Ed.2d 720
(1991) upheld the victim-impact testimony and argument in the penalty phase of a
death penalty trial and the opinion also recognized that it is often appropriate, even
necessary, to present some evidence about the characteristics of a victim in a guilt
There were no objections to the prosecutor's penalty phase closing argument.
Defense counsel was permitted the final penalty phase argument. Again Payne, supra,
permits the prosecution to introduce evidence regarding the impact of the crime on the
family of the victim and to argue that impact during closing argument in the penalty
phase . This Court has also acknowledged the same principles. Hodge v.
Commonwealth , 17 S.W.3d 824 (Ky. 2000). cf. Darden v. Wainwright, 477 U.S . 168,
106 S .Ct . 2464, 91 L.Ed.2d 144 (1986) (claiming that a prosecutor's argument was
inflammatory or diminished when defense counsel was given the final argument after
the prosecutor) . There was no error in regard to the arguments of the prosecution . The
argument regarding comparisons is unconvincing . Epperson was not denied any of his
rights under either the federal or state constitution .
XIII . Prison Conditions
Epperson argues that the cross-examination of a correctional officer in the
penalty phase about prison conditions was error. The corrections officer testified that
Epperson never presented any problems on death row, had never been violent and was
considered by him as a model prisoner . He stated that Epperson had lost weight
because of illness and had worked in the prison as a janitor and laundry man . On
cross-examination, the prosecutor asked the officer to discuss the daily routine on
death row which included breakfast, cleaning, an hour of exercise outside, TV in the
cells, music, and their own bed and bathroom. Defense counsel did object to the
relevance of the questions about cigar smoking by Epperson and the prosecution
agreed .to move on to another question . Redirect examination by the defense followed .
Epperson claims that during closing argument in the penalty phase, the
prosecutor recounted the evidence of amenities in prison so as to inflame the jury, and
to present to the jury a picture of a so-called country club atmosphere. He asserts that
the evidence was irrelevant . We conclude that the questions about prison confinement
and the conditions related thereto were relevant and within the scope of crossexamination . There was no error.
XIV. Aggravating Circumstances
Epperson states that he was denied due process by the use of aggravating
circumstances that were not considered by a grand jury or alleged in the indictment
against him and his sentence was improperly enhanced to death . We disagree .
Aggravating circumstances are not required to be charged in the indictment and
thus the indictment does not render the death sentence improper . RCr 8 .18 requires
that any complaint regarding an indictment other than the complete failure to show
jurisdiction in the court or to charge an offense, must be presented to a court by pretrial
motion . See also Thomas v. Commonwealth , supra . The United States Supreme
Court has also held that under the federal rules of criminal procedure any complaint
about the failure of the indictment to allege a sentence aggravating or enhancement
factor must be raised in the trial court by timely motion . United States v. Cotton , 535
U .S . 625,122 S .Ct. 1781, 152 L.Ed .2d 860 (2002), overruling Ex parte Bain , 121 U.S .
1, 7 S.Ct. 781, 30 L .Ed . 849 (1887).
This Court has ruled that aggravating circumstances need not be specifically
charged in the indictment . See Wheeler v . Commonwealth , 121 S.W .3d 173 (Ky.
2003), cert. denied, 541 U .S . 1051, 124 S .Ct. 2180, 158 L.Ed .2d 746 (2004). The
allegation that the omission of aggravating circumstances from the indictment is a
jurisdictional defect so as to invalidate the indictment and trial has been specifically
rejected by the United States Supreme Court in Cotton , supra . We also reject that
XV. Verdict Forms
Epperson asserts that he was denied due process because the penalty phase
verdict form directed the jury to fix an aggravated sentence if it found aggravating
circumstances . He maintains that the penalty verdict forms presented to the jury made
it impossible for the jury to find aggravating circumstances without fixing an aggravated
penalty. He also states that the trial court did not instruct the jury that even if it found
the aggravator, it could still impose the whole range of sentences .
The verdict forms used by the trial judge with respect to the offense of murder
left a blank space for the jury to write in which aggravating circumstance, if any, it found
existed beyond a reasonable doubt and further left a blank space for the jury to specify
the sentence to be fixed. The court provided verdict forms without aggravating
circumstances to impose a sentence for a term of years or a sentence of life in prison :
The trial judge used a verdict form found in Section 12 .10A of 1 Cooper Kentucky
Instructions to Juries (Criminal) , (4th Ed . 1993). This form had been previously
approved by this Court in Hodge v. Commonwealth , supra . The verdict form wherein
aggravating circumstances could be and were found, did not require the jury to impose
any particular sentence. The instructions when considered as a whole make it clear
that the jury was not required to impose a death sentence merely upon a finding of
aggravating circumstances . Moreover, the defense counsel in closing argument,
advised the jury they were not required to impose a death sentence regardless of any
aggravating circumstances that might be found. Pursuant to the standards set out by
the United States Supreme Court in Boyde v. California, 494 U .S. 370, 110 S.Ct. 1190,
108 L.Ed.2d 316 (1990), the verdict forms did not result in an unconstitutional death
XVI. Penalty Phase Instructions
Epperson complains that the penalty phase instructions were inadequate and
insufficient and denied him due process of law. He presents 15 sub-issues, some of
which he claims are preserved and others he recognizes as being unpreserved. By
citing Young v. Commonwealth , 50 S .W.3d 148 (Ky. 2001), he maintains that the
unpreserved issues should be reviewed because there was no possible strategic
reason for the failure to preserve them.
We have exhaustively examined the two in-chambers conferences regarding the
penalty phase instructions and find the alleged errors were not preserved. Generally,
instructions must be considered as a whole, taking into account the evidence and
closing argument of counsel . See Boyde, supra . The instructions here either taken as
a whole or individually were not unconstitutional under the precedents set forth by the
United States Supreme Court . Substantial discretion in providing capital sentencing
procedures is left to the states with only few specific limitations . See Romano v.
Oklahoma , 512 U.S . 1, 114 S .Ct. 2004, 129 L .Ed .2d 1 (1994); Tuilaepa v. California ,
512 U .S . 967, 114 S .Ct. 2630, 129 L.Ed.2d 750 (1994) . The arguments presented have
been previously rejected by this Court, are unpreserved, and any possible error would
XVII . Double Jeopardy Claim
Epperson argues that the use of a single transaction in order to convict him of
multiple crimes violated his right to be free from double jeopardy . He concedes that the
issue is unpreserved, but he asks this Court to revisit this question even though it had
been admittedly rejected in Mills v. Commonwealth , 996 S .W.2d 473 (Ky. 1999), cent.
denied, 528 U .S . 1164, 120 S .Ct . 1182, 145 L .Ed .2d 1088 (2000). The jury instructions
pertaining to the offense of murder did not require the jury to find that Epperson
participated in a robbery . We decline the invitation to revisit Mills, supra . The
defendant was not deprived of any federal or state right .
XVIII . Reuse of Two Convictions
Epperson claims that the reuse of the burglary and robbery convictions as
aggravating circumstances denied him his right to be free from double jeopardy . The
issue presented at this time is admittedly unpreserved. Nevertheless, Epperson urges
this Court to revisit earlier decisions . Again, we decline the invitation . Bowling v.
Commonwealth , supra , held that simply because the aggravating circumstance
duplicates one of the underlying offenses, it does not mean that the defendant is being
punished twice for the same offense .
XIX. Closing by Prosecution
Epperson contends that the prosecutor during the penalty phase argument noted
that the jury had already found Epperson guilty of first-degree robbery and first-degree
burglary during the guilt phase and thus in effect had already determined the factually
related aggravating circumstances needed for the death penalty had already been
found to be true beyond a reasonable doubt. Epperson admits there was no objection
to this argument. The record indicates that during an in-chambers conference
regarding the penalty-phase instructions, defense counsel specifically agreed that the
aggravating circumstances No. 3, 4, 5, 6 and 7 had already been found by the jury.
This Court has previously held that in light of the guilt-phase findings by the jury such a
closing argument is not prejudicial error. Sanders v. Commonwealth , 801 S.W .2d 665
(Ky. 1990); see also Bowling v. Parker, 138 F.Supp .2d 821 (E.D.Ky. 2001) (denying
habeas corpus for Bowling v. Commonwealth , supra), affirmed, Bowling v. Parker, 344
F .3d 487 (6 m Cir. 2003), cert. denied, 543 U.S . 842, 125 S .Ct. 281, 160 L.Ed .2d 68
(2004). There was no prosecutorial error in this instance .
XX. Photographs of Victims and Crime Scene
Epperson asserts that the photographs were not properly admissible because
they were unduly inflammatory and prejudicial. He also complains about the
introduction of the crime scene video. The trial judge agreed to block out a small part of
the tape from the view of the jury and to disengage the audio track of the video upon
request by the defense . The videotape, without audio, was then played to the jury with
two blocked portions and the jury was given an admonition to disregard the two parts
blocked . Defense objected to some, but not all of the photographs introduced .
A review of the record indicates that there was a reasonable amount of interplay
insofar as objections and trial judge intervention in regard to the photographs and video.
This Court has upheld the admission of photographic evidence and videotapes unless
the condition of the body has been materially altered by mutilation, autopsy or
decomposition or other extraneous causes unrelated to the crimes to the extent that the
images could arouse passion and prejudice . Foley v . Commonwealth , supra ; Hodge,
supra . There was no error or abuse of discretion in allowing the introduction of the
photographs of the victim and the crime scene .
XXI . Deletion by Detective
Epperson maintains that the indictment should have been dismissed because a
police detective deleted exculpatory information concerning confidential informants from
his investigative report and that this deletion violated a court order to turn over such
information . We disagree .
A motion or objection by a defense attorney for one codefendant will not be
deemed a motion or objection for the other defendant . Both attorneys must make it
clear the objection is made for both defendants . Brown v. Commonwealth , 780 S.W .2d
627 (Ky. 1989), cent. denied, 494 U .S . 1087, 110 S.Ct. 1825, 108 L .Ed .2d 954 (1990).
In other situations, counsel for Epperson made it clear when he joined a codefendant's
motion or objection . There was no notice to the trial judge that what was good for one
defendant was good for another.
This is essentially the same argument as raised in Hodge . It was clear that the
detective indicated he would attempt to obtain the information desired and supply it to
the defense and no further complaint was made . The defense did not establish that the
information was deliberately withheld so as to amount to a Bradv violation . See Coe v.
Bell , 161 F.3d 320 (6t" Cir. 1998) . The mere possibility that an item of undisclosed
information might have helped the defense or affected the outcome does not establish
materiality in a constitutional sense so as to constitute a Brady violation . United States
v. A urs, 427 U .S. 97, 96 S .Ct. 2392, 49 L.Ed .2d 342 (1976). Epperson has not
demonstrated that the alleged discovery violation was actually prejudicial or that the trial
judge committed error or otherwise abused his discretion.
XXII . Capital Kidnapping
Epperson complains that KRS 532 .025 is unconstitutional because it does not
narrow the class of persons eligible for the death penalty . We must disagree .
Epperson was not sentenced to death for capital kidnapping, but was found
guilty of two murders and multiple statutory aggravating circumstances as defined in
KRS 532.025. The proposition urged by Epperson does not apply in this case and it
does not provide the foundation for an argument that the Eighth Amendment was
violated with regard to his death sentences.
KRS 532 .025 is not facially unconstitutional and the aggravating circumstances
for which Epperson was found guilty by the jury are sufficient to authorize his death
sentence. See Tamme v. Commonwealth , supra .
XXIII . Statutory Guidance
Epperson states that there is insufficient statutory guidance for the imposition of
the death penalty. He concedes that this issue is unpreserved, but claims there was no
possible strategic reason for the failure to preserve the issue.
KRS 532.025 provides sufficient statutory guidance for the imposition of the
death penalty. The Sixth Circuit, in considering another Kentucky case, has rejected
similar concerns about the death penalty statute . McQueen v. Scroggy, 99 F .3d 1302
(6t" Cir. 1996), cert. denied, McQueen v. Parker, 520 U .S. 1257, 117 S .Ct. 2422, 138
L.Ed .2d 185 (1997) . In Tuilaepa , supra, the United States Supreme Court has
recognized that states may grant the sentencing authority vast discretion to evaluate
the circumstances relevant to the particular defendant and the crimes committed in
deciding whether to impose a death sentence. The Sixth Circuit noted in McQueen ,
supra, that the Kentucky death penalty statute and capital sentencing process is similar
to that of Georgia, which was approved by the United States Supreme Court in Gregg v.
Georgia, 428 U.S . 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The Kentucky statute is
constitutionally sufficient to authorize a death sentence .
XXIV. Death Sentences Applied
Epperson maintains that the death penalty as applied in Kentucky is
discriminatory, arbitrary and inappropriate, and that this question should be reviewed
because there is no possible strategic reason for failure to preserve it. Review is also
required by KRS 532.075 .
We find that the death sentence as applied in Kentucky is not unconstitutionally
arbitrary or discriminatory. The Sixth Circuit has rejected a similar argument in
McQueen . Recent Kentucky cases reaching the same conclusion are as follows:
Tamme v. Commonwealth, supra ; Mills v. Commonwealth , supra ; Stopher v.
Commonwealth , 57 S.W.3d 787 (Ky. 2001), cert. denied, 535 U.S . 1059, 122 S .Ct.
1921, 152 L.Ed.2d 829 (2002); Caudill v. Commonwealth , supra ; and, Thompson v.
Commonwealth , 147 S .W.3d 22 (Ky. 2004), cent. denied, 125 S .Ct. 2966, 162 L .Ed .2d
893, 73 USLW 3750 (2005). Moreover, the capital sentencing procedure in Kentucky is
in conformity with the constitutional requirements set out in McCleskey v. Kemp , 481
U.S . 279, 107 S .Ct. 1756, 95 L.Ed .2d 262 (1987) . It is conceded that an argument
about racial discrimination with respect to capital sentencing was not the subject of a
pretrial motion or any evidence prior to trial as now required by the Kentucky Racial
Justice Act, KRS 532.300 . The Kentucky capital sentencing process is constitutional
and not arbitrary or discriminatory.
XXV. Proportionality Review (Bartley's sentence)
Epperson asserts that his death sentence is unconstitutional because it is
disproportionate to the sentence imposed on co-indictee Bartley. We must disagree .
Bartley entered a plea agreement with the prosecution in which he testified for
the prosecution in this trial as well as another trial and ultimately received a sentence of
life imprisonment without possibility of parole for 25 years . The other codefendant,
Benny Hodge, was convicted of the same crimes and sentenced to death for the two
murders . Hod e, supra . Simply because Bartley did not receive a death sentence
does not elevate Epperson's punishment to the disproportionate quality under KRS
532.075 . This Court has previously rejected a similar argument in Perdue v.
Commonwealth , 916 S .W.2d 148 (Ky. 1995), citing Standefer v. United States, 447
U.S . 10, 100 S.Ct. 1999, 64 L.Ed .2d 689 (1980). In addition, this Court has also held
that sentences imposed on other defendants are not relevant in determining the validity
of a death sentence or other sentence . See Marshall v. Commonwealth , 60 S.W .3d
513 (Ky. 2001), cent. denied, 535 U.S . 1024, 122 S .Ct. 1622, 152 L .Ed .2d 633 (2002).
The sentencing procedure in a capital case requires individualized determination on the
basis of the character of the individual defendant and the circumstances of the crime .
Cf. Tuilaepa , supra . The sentences imposed here do not constitute error.
XXVI . Proportionality Review
Epperson disagrees with the manner in which this Court conducts proportionality
review pursuant to KRS 532 .075 . Both this Court and the Sixth Circuit have rejected
similar arguments . See, ec . , Thompson v. Commonwealth , supra , and McQueen . The
manner in which this Court conducts proportionality review is very similar to the method
used by other states which has been upheld . See, e.g ., State v. Cobb, 234 Conn.
735, 663 A.2d 948 (1995) . The concerns expressed by Epperson about his inability to
access the data are without -merit . This Court does not use any secret data, but simply
compares one death penalty case with all the other cases in which the death sentence
was imposed after January 1, 1970. See Harper v. Commonwealth , 694 S .W.2d 665
(Ky. 1985), cert. denied, 476 U .S. 1178, 106 S .Ct. 2906, 90 L.Ed .2d 992 (1986).
This Court on many occasions has determined that the proportionality review it
conducts is in conformity with KRS 532 .075(3) and is constitutional . See Parrish ,
supra, and Tamme . Under all the circumstances of this case, the death penalty is
entirely appropriate, the proportionality review conducted by this Court does not violate
due process or equal protection of either the Federal or State Constitution. Pursuant to
KRS 532.075(3), we have carefully reviewed the death sentence imposed herein and
conclude that it was not imposed under the influence of passion, prejudice or any other
arbitrary factor. There was ample evidence to support the finding of aggravating factors
concerning which the jury was instructed . We have also reviewed all the cases decided
since 1970 in which the death penalty was imposed. We have given particular attention
to those cases in which the defendant was sentenced to death for multiple intentional
murders. All the cases reviewed have been previously cited by this Court in numerous
decisions . See Parrish . The cases noted are adopted by reference in this opinion .
We have also considered whether the sentence of death is excessive or
disproportionate to the penalty imposed in any of these cases as required by statute
and have accordingly reviewed all the circumstances of the crime committed here and
all the evidence surrounding the defendant and his background . Information used in
considering this penalty has been compiled in accordance with KRS
532 .075(6)(a)(b)(c) . Consequently, we have determined that the sentence of death
here was not excessive or disproportionate to the penalties imposed in similar cases
considering both the crimes and the defendants .
XXVII. Lethal Injection
Epperson raises, questions about whether lethal injection as the method of
execution presents a lingering or painful death . He offers several law review articles
and other writings that present data suggesting it does. He urges this Court to rule that
lethal injection violates the Eighth Amendment and Section 17 of the Kentucky
Constitution which prohibit cruel and unusual punishment.
This Court has previously held that lethal injection is not unconstitutional .
Wheeler v. Commonwealth , supra , citing People v. Stewart, 121 111.2d 93, 520 N.E.2d
348 (1988). Execution by lethal injection is now used by 37 of the 38 states with the
death penalty, which arguably indicates a national consensus that it is a constitutional
method of execution . See , e.g. Cooper v. Rimmer , 379 F.3d 1029 (9th Cir. 2004). The
Ninth Circuit has also rejected a specific challenge to the lethal injection protocol used
by California in Beardslee v. Woodford , 395 F .3d 1064 (9th Cir. 2005), cent. denied, 125
S .Ct. 982,160 L .Ed .2d 910, 73 USLW 3432 (2005) . We find the argument is without
XXVIII . Death Qualification of Jurors
Both this Court and the United States Supreme Court have rejected the
arguments that death penalty qualification of potential jurors to sit on a case in which
the prosecution is seeking the death penalty is unconstitutional . See Lockhart v.
McCree , 476 U.S . 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); St. Clair v.
Commonwealth, 140 S.W .3d 510 (Ky. 2004) ; Caudill , supra; Thompson , supra;
Sanders , supra .
In this case, there was no error.
XXIV. Peremptory Challenges
Epperson maintains that the refusal by the trial judge to order more peremptory
challenges in this capital case violated his constitutional rights . He requested at least
20 peremptory strikes because of the unique circumstance of the case and the
possibility of a death penalty. The trial judge denied the motion, ordering that each side
would be allowed nine peremptory strikes .
The trial judge was not required to grant additional peremptory challenges
beyond the number authorized by RCr 9 .40. This Court has repeatedly held that the
decision on whether to grant additional peremptory challenges is within the sound
discretion of the trial judge, even in a death penalty case. Stopher v. Commonwealth ,
57 S.W .3d 787 (Ky. 2001). We have rejected arguments that the possibility of a death
sentence or the fact that the case was highly publicized should automatically require the
trial judge to grant additional peremptory strikes . See Thompson v. Commonwealth ,
supra; Furnish v. Commonwealth , 95 S.W .3d 34 (Ky. 2002), cert. denied, 540 U .S. 844,
124 S .Ct. 115,157 L.Ed .2d 80 (2003); Bowling v. Commonwealth , supra . The cases
cited by Epperson are unconvincing . There was no abuse of discretion or any other
XXX. Removal of Juror
Epperson states that the trial judge abused his discretion when he declined to
excuse for cause a -prospective juror who could not consider a minimum sentence for
the offense of intentional murder, and that accordingly, he was deprived of his right to
due process . We disagree .
The juror in question expressed a reluctance to consider a minimum sentence of
twenty years in the event someone were to be convicted of two counts of intentional
murder, one count of robbery and one count of burglary . The juror was ultimately
removed from the panel by a peremptory challenge by the defense. A review of all of
the answers given by the prospective juror during voir dire indicates her willingness to
consider a minimum sentence. The juror was questioned by both prosecution and
defense and in response to questions by defense counsel indicated that she would
have to listen to the evidence in the case . She stated that she could consider a term of
years depending on the facts of the case . A subsequent request for removal of the
juror by the defense was denied by the trial judge .
An analysis of the answers givens by the juror during voir dire indicates that
there was sufficient basis for her to express her willingness not to automatically vote for
the death penalty and to consider the full range of penalties . This Court has held that
the question of excusing a prospective juror comes within the sound discretion of the
trial judge, taking into account the entire voir dire answers by a specific juror. See
Hodge , supra ,
Epperson was not deprived of any of his rights . The authorities cited in the brief
are unconvincing . There was no abuse of discretion or any other error.
XXXI . Residual Doubt
Epperson argues that.there was residual doubt of a genuine nature that prevents
the imposition of a death sentence. We disagree .
The United States Supreme Court and this Court have held that residual doubt is
not a mitigating circumstance for the death penalty . See Franklin v. Lynaugh, 487 U.S .
164,108 S.Ct . 2320, 101 L.Ed .2d 155 (1988), accord Tamme v. Commonwealth , supra .
A finding of guilt as to aggravating circumstances in a death penalty case is considered
under the reasonable doubt standard . Here, the evidence presented was sufficient to
establish guilt beyond a reasonable doubt so as to meet the legal standards and
constitutional requirements .
XXXII . Cumulative Error
Epperson complains that the errors enumerated in the previous arguments
violated both federal and state constitutional requirements . His argument is without
merit. Each of the allegations made by Epperson has been exhaustively reviewed and
discussed in this opinion and is refuted by the record in this case. Repeated allegations
of error do not increase their validity. There was no individual error and thus there was
no cumulative error. Cf. Parrish , supra .
Epperson received a fundamentally fair trial devoid of any state or federal
constitutional federal violations .
The judgment of conviction and the sentences imposed are affirmed .
COUNSEL FOR APPELLANT :
COUNSEL FOR APPELLEE:
Randall L. Wheeler
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Gregory D . Stumbo
Room 118, Capitol Building
Frankfort, KY 40601
Julia K. Pearson
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Ian G. Sonego
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204