BENNY LEE HODGE V. COMMONWEALTH OF KENTUCKYAnnotate this Case
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: AUGUST 25, 2011
NOT TO BE PUBLISHED
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BENNY LEE HODGE
ON APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
Appellant, Benny Lee Hodge, appeals the denial of his RCr 11.42 motion.
In 1986, he was tried and convicted of murder, robbery, and burglary and
sentenced to death. The charges arose from the invasion of the home of Dr.
Roscoe Acker, wherein Hodge and two others used a ruse to gain entry into the
home and thereafter assaulted Dr. Acker, killed his daughter, and stole
approximately two million dollars from a home safe. In a combined appeal with
his co-defendant, the conviction was affirmed by this Court in Epperson and
Hodge v. Commonwealth, 809 S.W.2d 835 (Ky. 1990).
In 1992, Hodge filed a motion, pursuant to RCr 11.42, alleging inter alia
ineffective assistance of counsel and jury tampering. The trial court denied the
motion without a hearing. Hodge appealed that judgment to this Court.
Agreeing that an evidentiary hearing should have been conducted, we
remanded the matter to the Letcher Circuit Court.
Hodge v. Commonwealth,
68 S.W.3d 338 (Ky. 2001). The trial court held a joint hearing on the issue of
jury tampering, which also considered an identical claim raised by Hodge's codefendant, Roger Epperson. A second hearing concerning Hodge's claim of
ineffective assistance of counsel was held shortly thereafter. Ultimately, the
trial court denied both motions. Hodge now appeals that judgment.
In his RCr 11.42 motion, Hodge alleged several instances of juror
misconduct and jury tampering. First, he claimed that the jury foreman at his
trial had contact with the Commonwealth's Attorney, James Craft, during the
trial. Additionally, he asserted that, while sequestered, jurors were provided
alcohol, watched television, and had access to newspapers. More egregious,
Hodge claims that the jury decided the case before the close of evidence.
To support these claims at the evidentiary hearing, Hodge presented the
testimony of four live witnesses and the deposition testimony of five others.
Gary Rogers, a deputy sheriff who was responsible for overseeing the
sequestered jury, was a primary witness. Rogers was less than forthcoming at
the evidentiary hearing, even attempting to invoke a Fifth Amendment privilege.
On at least eight occasions, the court had to order him to testify. When he did
answer questions, he often contradicted his own testimony from moments
before or contradicted his own prior statements to investigators.
What can be gleaned from Rogers' testimony with any reliability is that
he worked with the jury during the trial and guarded them at the hotel. He
also admitted that he is a convicted felon. Inexplicably, Rogers testified that
the conviction arose from his attempts to assist Hodge and Epperson.
However, it was established that he was convicted in a matter wholly unrelated
to this case.
Specifically relating to Hodge's claims, Rogers did testify that he saw the
jury foreman talking to Craft at the courthouse, though he did not overhear the
conversation. He also testified that he saw Craft in the parking lot of the hotel
where the jury was sequestered. Rogers remembered that one of the jurors was
provided three bottles of vodka and others with televisions and newspapers.
However, at various points during his testimony, Rogers contradicted or
outright denied portions of his own testimony given moments before. Despite
his contradictory testimony moments before, he later emphatically testified that
no one approached any juror and that no juror had access to television or
Six other persons—all DPA attorneys or DPA investigators—had spoken
with Rogers over the years and had taken statements from him regarding these
allegations of jury tampering. Rogers denied ever speaking to or giving a
statement to any of them, though all testified regarding their conversations
with him. At times, his testimony at the evidentiary hearing comported with a
prior statement, while at other times it diverged significantly. Additionally, his
own statements to the investigators contradicted one another. In short, Rogers'
testimony was confused, inconsistent, and contradictory.
In addition to Rogers and the DPA representatives, the trial court heard
the testimony of Marsha Hogg Thursty, who served as an alternate juror at the
trial. She acknowledged that she suffered from post traumatic stress disorder
and bipolar disease. She testified that no jurors were allowed visitors during
sequestration and that no one communicated with the jury. She further
testified that the jury did not discuss the case and that she had no knowledge
of anyone watching television or listening to the radio. Thurtsy also denied
Hodge's allegation that she gave a "thumbs-up" sign to anyone during the trial,
nor did she witness any other juror do so.
In considering an RCr 11.42 motion, the trial court's findings of fact will
not be disturbed unless they are clearly erroneous. CR 52.01. Here, the trial
court very accurately described Rogers' testimony as "inconsistent with itself
and inconsistent with the various inconsistent statements he made to
investigators and attorneys for Hodge . . . ." There is more than the requisite
substantial evidence on the record to support the trial court's ultimate
conclusion that Hodge failed to present competent and credible evidence
supporting any of his allegations of jury tampering or misconduct. Hodge's
contention that portions of Rogers' and Thursty's testimony went uncontested
by the Commonwealth and, therefore, must be taken as true by the trial court,
is unavailing. The fact-finder—here, the trial court—is free to believe all of a
witness' testimony, portions of it, or none of it.
Commonwealth v. Anderson,
934 S.W.2d 276, 278 (Ky. 1996).
The parties disagree as to whether the presumption of prejudice
established in Remmer v. United States, 347 U.S. 227 (1954) was overruled in
Smith v. Phillips, 455 U.S. 209 (1982). See generally Parker v. Head, 244 F.3d
831, 839 n.6 (11th Cir. 2001). We need not address the parties' arguments
because there has been no credible evidence presented to support ,a conclusion
that any jury tampering or misconduct occurred. Therefore, we need not
assess any resulting prejudice.
Hodge's RCr 11.42 motion on the grounds of jury tampering was properly
Ineffective Assistance of Counsel
Hodge alleges ineffective assistance of counsel because his trial counsel
failed to investigate or present any evidence in mitigation during the penalty
phase. Rather, the parties agreed to the following stipulation, which was read
to the jury: "Benny Lee Hodge has a loving and supportive family—a wife and
three children. He has a public job work record and he lives and resides
permanently in Tennessee." He argues that the failure to present mitigation
evidence regarding his dramatically abusive childhood rendered the jury's
sentence of death unreliable.
At the outset, we reiterate Hodge's burden in establishing ineffective
assistance of counsel. In order to be ineffective, performance of counsel must
fall below the objective standard of reasonableness and be so prejudicial as to
deprive a defendant of a fair trial and a reasonable result.
Washington, 466 U.S. 668 (1984). This analysis involves mixed questions of
law and fact. While we will not disturb the trial court's factual findings if they
are supported by substantial evidence, we review its conclusions of law de
novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).
Here, the Commonwealth concedes that the performance of Hodge's
defense counsel was deficient in conducting a reasonable investigation to find
mitigation evidence. Thus, the inquiry must focus only on the prejudicial effect
of this deficiency. "When a defendant challenges a death sentence . . . , the
question is whether there is a reasonable probability that, absent the errors,
the sentencer—including an appellate court, to the extent it independently
reweighs the evidence—would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death." Strickland, 466 U.S. 668
at 695. A reasonable probability is one that is "sufficient to undermine
confidence in the outcome." Id. at 694. Hodge's burden in this respect is
"highly demanding." Williams v. Taylor, 529 U.S. 362, 394 (2000).
Bearing this standard in mind, we turn to a review of the mitigation
evidence that was available at the time of Hodge's trial. His mitigation case
would have been based on his childhood, which was marked by extreme
poverty, sustained physical violence, and constant emotional abuse. The trial
court's characterization of Hodge's childhood as "difficult" is not inaccurate,
but certainly inadequate.
The evidence established that Hodge's mother, Kate, was married to six
different men, all of whom were substance abusers and some of whom were
physically abusive to Kate. She married Billy Joe when Hodge was eight years
old. The majority of Hodge's evidence concerned the extreme violence he
suffered at the hands of his stepfather. Again, the trial court's description of
Billy Joe as "particularly abusive" is insufficient.
Billy Joe was described by at least four witnesses as a "monster." His
rage was explosive and violent, often triggered by Kate's shows of affection
towards her children. At other times, he was incited for no apparent reason
and the household lived in constant fear as a result. He would regularly rape
Kate, threaten her with a gun, and beat her. On one occasion, Billy Joe
assaulted Hodge's mother so violently that she suffered a miscarriage. Hodge's
sisters testified that, more than once, they thought Kate had been beaten to
Hodge's mother and sisters agreed that Billy Joe was more violent and
abusive towards him than any other person in the house. This is perhaps
because Hodge, being the only male child in the home, often tried to defend his
mother and sisters from physical attacks. He was regularly beaten with a belt
and metal buckle, which left bruises and welts on his body that were observed
by family members and neighbors alike. At other times, he was kicked, thrown
against walls, and punched. Hodge's half-sister specifically recalled an
occasion when Billy Joe rubbed Hodge's face in his own feces. His sisters
testified that Billy Joe made Appellant watch while he brutally killed the boy's
dog. Because his mother, who was evidently paralyzed by fear and substance
abuse, refused to protect Hodge, he often ran away from home.
School records indicate that Hodge was of normal intelligence and
received average grades through elementary school. After Billy Joe entered the
home, his grades declined, he became withdrawn, and he was often truant. He
began stealing at the age of twelve and was sentenced to a juvenile detention
facility when he was fifteen.
There was testimony that, at the Tennessee residential facility, Hodge
was subjected to regular beatings. He escaped from the facility twice and once
refused to return after a furlough. After finally being released at the age of
sixteen, Hodge assaulted his stepfather, which resulted in his return to the
juvenile facility until he was eighteen years old.
At the age of twenty, Hodge pled guilty to his first felonies: burglary and
grand larceny. He escaped from custody four days later. Following his capture
and eventual parole, he was convicted of a separate armed robbery. Again, he
escaped and was recaptured. After serving nearly eight years in prison for that
felony, Hodge was again paroled. He was thirty-four years old at the time he
killed Tammy Acker. He had been married three times and had fathered three
At the evidentiary hearing, Hodge presented the expert opinions of two
psychologists, both of whom had assessed him in 2009. Both agreed that the
violence in Hodge's childhood home was ruinous to his development and
compounded by the physical abuse occurring at the Tennessee residential
facility. One of the psychologists diagnosed Hodge with post traumatic stress
disorder (PTSD) and opined that it was present at the time of Hodge's crimes
and trial. This expert further testified that PTSD can render a person violent,
hypervigilant, aggressive, and erratic. Both psychologists found it particularly
interesting to note that Hodge did not inflict any abuse on his own children and
was described by all as a loving father.
We now turn to the primary inquiry before us, i.e., whether the result of
the penalty phase would have been any different had this mitigation evidence
been presented to the sentencing jury. In doing so, we must weigh this
mitigation evidence against other aggravating circumstances. First, we
consider, as did the trial court, that the evidence of Hodge's abusive childhood
would have also included the damaging evidence of his long and increasingly
violent criminal history, his numerous escapes from custody, and the obvious
failure of several rehabilitative efforts.
And, we must also consider the heinous nature of Hodge's crime. See
Epperson and Hodge v. Commonwealth, 809 S.W.2d 835 (Ky. 1990). The
assault on Dr. Acker and the murder of his daughter were not just brutal and
vicious, but calculated and exceedingly cold-hearted. The sentencing jury was
aware that Hodge and his two co-defendants carefully planned the robbery
after learning of the large quantity of cash kept in the home safe, that they
traveled from out of state to carry out the plan, and that they packed weapons
and tools in advance. They posed as FBI agents to gain entry into the elderly
doctor's home and followed him to the kitchen where they pretended to take his
statement regarding a former business partner's supposed fraud. They had the
doctor call his daughter to the room to witness the statement. At that point,
Hodge brandished a handgun. They covered the heads of both the father and
the daughter. They restrained Tammy, a young college student due to go back
to school the next day, alone in a bedroom. She begged them not to hurt her
father. After forcing Dr. Acker to open the safe, Hodge's accomplice strangled
him with an electrical cord until he lost consciousness. Hodge went to
Tammy's bedroom and stabbed her at least ten times, then stole a bracelet and
watch from her wrist. Afterwards, he coolly told Epperson that he knew
Tammy was dead because the knife had gone "all the way through her to the
floor." Autopsy reports confirmed this boast.
Believing both victims were dead, they left the home. The three men
then fled to Florida. Along with their girlfriends, they brazenly spent the stolen
money on a lavish lifestyle and luxury goods, including a Corvette. A former
cellmate testified that Hodge recounted spreading all the money out on a bed
and having sex with his girlfriend on top of it.
We have considered the totality of evidence before Hodge's sentencing
jury, including the proposed mitigation evidence. Parrish v. Commonwealth,
272 S.W.3d 161, 169 (Ky. 2008) (reviewing court must consider totality of the
evidence in considering prejudice prong of ineffective assistance of counsel
claim). Balancing all of the available evidence in mitigation and aggravation,
we are compelled to reach the conclusion that there exists no reasonable
probability that the jury would not have sentenced Hodge to death. There is no
doubt that Hodge, as a child, suffered a most severe and unimaginable level of
physical and mental abuse. Perhaps this information may have offered insight
for the jury, providing some explanation for the career criminal he later
became. If it had been admitted, the PTSD diagnosis offered in mitigation
might have explained Hodge's substance abuse, or perhaps even a crime
committed in a fit of rage as a compulsive reaction. But it offers virtually no
rationale for the premeditated, cold-blooded murder and attempted murder of
two innocent victims who were complete strangers to Hodge. Many, if not
most, malefactors committing terribly violent and cruel murders are the
subjects of terrible childhoods. Even if the sentencing jury had this mitigation
evidence before it, we do not believe, in light of the particularly depraved and
brutal nature of these crimes, that it would have spared Hodge the death
penalty. We, therefore, affirm this portion of the trial court's judgment.
As a final matter, there is nothing in the record to support Hodge's
allegation that the trial court abdicated its judicial function to the
Commonwealth. We find nothing improper in the trial court assigning to the
Commonwealth the clerical task of memorializing, in writing, its oral findings of
fact and conclusions of law.
For the foregoing reasons, the judgments of the Letcher Circuit Court are
All sitting. All concur.
COUNSEL FOR APPELLANT:
Dennis James Burke
Assistant Public Advocate
Department of Public Advocacy
207 Parker Drive, Suite One
LaGrange, KY 40031
Laurence E. Komp
P. 0. Box 1785
Manchester, MO 63011
COUNSEL FOR APPELLEE:
Julie. Scott Jernigan
William Robert Long, Jr.
Assistant Attorneys General
Office of the Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
Rickey Lee Bartley
115 Caroline Avenue
Pikeville, KY 41501-1101