ROGER DALE EPPERSON V. COMMONWEALTH OF KENTUCKY

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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION , I THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, _ UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED:. MARCH 22, 2018 NOT TO BE PUBLISHED , ~upr:em:e filnutf nf ~:enfudtJJ . 201 7-SC-000044-MR APPELLANT ROGER DALE EPPERSON ON APPEAL FROM WARREN CIRCUIT COURT HONORABLE STEVE ALAN WILSON, JUDGE NO. 97-CR-000016 v. COMMONWEALTH OF KENTUCKY APPELLEE MEMORANDUM OPINION OF. THE COURT AFFIRMING In 2003, a Warren County jury convicted Roger Dale Epperson of two counts of complicity to commit murder, first-degree robbery, and first-degree burglary. The jury sentenced hini to death. Following an unsuccessful direct appeal,1 Epperson moved to set aside his conviction~ and sentence pursuant to RCr2 11.42, which the trial court denied after conducting evidentiary hearings. Epperson now appeals .. Upon thorough review of the record and careful consideration of his claims, we affirm. 1 Epperson v. Commonwealth, 197 S.W.3d 46 (Ky. 2006). 2 Kentucky Rules of Criminal Procedure. I. BACKGROUND. Epperson was first tried in 1987 for the murder, robbery and burglary of the victims in this case, both of whom were found dead in their home on June 17, 1985. One victim had two gunshot wounds in the back. The other had two gunshot wounds to the head and was also gagged. In that first trial, a jury convicted Epperson of robbery, burglary, and murder and sentenced him to death. However, those convictions were ultimately set aside by this Court on appeal because the trial court did not conduct individual voir dire on the issue of pretrial publicity. On retrial, a jury convicted Epperson of complicity to commit murder, robbery and burglary and sentenced him to death. On direct" appeal, this Court affirmed. Epperson then filed the underiying RCr 11.42 motion, alleging numerous violations of his constitutional right to effective assistance of counsel. / Evidentiary hearings began in 2010 and concluded in 2014. The trial court ultimately determined that all claims of error were unfounded and denied his motion for relief. Epperson now appeals as a matter of right. II. STANDARD OF REVIEW. As the movant, Epperson bears the burden of establishing ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052; 2064, 80 L.Ed.2d 674 (1984). To.be ine~fective, 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. Id. This analysis involves mixed questions of law and fact. While we will not disturb the 2 ~rial court's factual findings if they -are supported by substantial evidence, we review its conclusions of law de nova. Brown v. Commonwealth, 253. S.W.3d . . 490, 500 (Ky. 2008).. "When a defendant challenges a death senten-ce :.. , 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. at 695, 104 S.Ct. at 2069: A reasonable probabil~ty is one that is "sufficient to ·undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. III. ANALYSIS. A. Juror Issues. Epperson argued that trial counsel was ineffective for failing to ask more probing questions of the jurors during voir dire regarding whether they could 1 consider mitigating evid~nce. He claimed that his counsel's "boiler plate" voir dire, in which counsel asked jurors whether they could consider mitigating evidence, -yvas insufficient to elicit deficiencies or juror bias that would have allowed jurors to be struck for cause. During the RCr 11.42 evidentiary . hearing, Epperson attempted to introduce evidence, in the form of post-verdict affidavits, from jurors who sat on his jury panel, which he argued showed that they answered voir dire questions incompetently or untruthfully, tbus masking their inability to meaningfully consider the full range of penalties and making them unfit to serve as jurors. _ 3 As an initial matter, post-verdict juror affidavits obtained ex parte do not support any valid basis for an RCr 11.42 motion because such evidence is incompetent under rules· prohibiting jurors from being examined to establish grounds for a new trial. See RCr 10.04; Haight v. Commonwealth, 41 S.W.3d 436, 44 7 (Ki 2001), overrnled on other g~ounds by Leonard v. Commonwealth, 27,9 S.W.3q 151 (Ky. 2009r To prove juror mendacity and gain a new trial,_ "a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Adkins v. Commqnwealth, 96 S.W.3d 779, 796 (Ky. 2003) (internal quotations and citation omitted). The trial court rejected Epperson's claim, noting that voir dire is an inherently strategic part of trial, if not the most strategic part. As a matter of strategy, the court questioned what could have possibly been achieved by trial counsel questioning the jurors about specific mitigating evidence that had not yet been presented; indeed, the strategy of making ~xcuses for murder at the outset qf trial is questionable. Moreover, without any evidence having been presented yet, and no clue as to each party's theory of the case, a reasonable juror might question the relevance of such specific questions . concern~ng . mitigating evidence. As the trial court observed, the questions an attorney chooses not tb ask during voir dire, are just as important as the questions he does ask. During. the evidentiary hearing, Epperson's lead trial counsel was . not asked about his voir dire strategy.·· Second chair counsel could recail very , 4 few specifics from the trial but testified generally that adequate voir dire was necessary and .appropriate and that a juror's ability to .consider mitigating eviden<?e would be important. During the evidentiary hearing, three jurors testified. Specific questions were posed to them regarding what evidence they would have considered in mitigation. They indicated that evidence of head injuries, child abuse, good behavior in prison and military service would not have affected their decision to impose the death penalty in Epperson's case, but all stated that they would have considered it while deliberating. The jurors further testified that they followed the instructions provided to them by the court and considered all evidence presented to them. Each stated they were able to consider the full range of possible,penalties and had answered all voir dire questions honestly and to the best of their ability. Each avowed that the penalty imposed would depend on the specific facts of the case before them. With respect to their affidavits, the jurors testified that Epperson's postconviction counsel had appeared on their doorsteps unannounced, years after the trial, asking them questions about their thoughts on mitigation, and executing an affidavit which the jurors signed. With respect to this approach taken by post-conviction counsel, we take the liberty of quoting the trial court's findings on this. issue, as we could not have said it any better: For years, Epperson's post-conviction counsel has called these jurors, shown up at their house to conduct interviews, and subpoenaed them into this court for further proceedings. Counsel has done this for the sole purpose of attacking the effectiveness of · Epperson's trial attorneys, not to allege wrongdoing or misconduct by the jurors themselves. This court can state, without hesitancy, 5 the rationale of the Maras [v. Commonwealth, 470 S.W.3d 332 (Ky. 2015)] court is sound. This court believes these jurors did say, and would have said, whatever needed to be said just for Epperson's post-conviction attorneys and investigators to stop questioning them. One juror expressed his dissatisfaction with the court system as a whole, stated he lacked confidence that the difficult decision he faced will be honored, and swore he would never participate on another jury. The constant disruption of fellow citizens,. lives,, who are ordered into court to perform. their civic duty for a mere $12.50 per day, serves only to poison the confidence our society has in its participation in criminal justice ·matters. This court does respect the decision this jury rendered and ·understands that asking someone to consider taking human life is a decision carefully measured - by most. It was proper to try those who extrajudicially sentenced and executed [the victims]; it was improper to try the jurors who judicially sentenced Eppersoh to a similar fate. The trial court found that rione of the post-verdict juror affidavits should have been admitted and declined to consider them. In so ruling, the court noted that "[a] juror cannot be examined to establish ground ·for a new tdal, except to establish that the .verdict was made by lot." RCr 10.04. The trial court relied on this Court's recent decision in Maras, wherein we clarified that in limited circumstances, the rule set forth in RCr 10.04 must yield to constitutional demands. However, those limited circumstances "can be summed up rather simply: juror testimony is permitted when it 'concern[s] any overt acts of misconduct by which extraneous and potentially prejudicial ·information is presented to the jury[.]"' Maras, 470 S.W.3d at 335 (quoting Commonwealth v. Abnee, 375·S.W.3d 49, 54 (Ky. 2012)). Here, Epperson did not allege that "arty overt acts of misconduct by which extraneous and potentially prejudicial information" occurred with this , jury. Epperson has not demonstrated that any of these three jurors failed to 6 answer honestly a material question posed during voir dire, thus we need not address whether a correct answer would have served as a basis for a challenge for cause. As we stated in Maras, "[w]ithout more, e.g., indication of overt influence, a facially valid jury.verdict will not be upset based on posttrial juror statements." 470 S.W.3d at 337. Epperson has further failed to present any evidence to overcome the presumption that trial counsel's· approach to voir dire was a result of trial strategy. We ·agree with the trial . ' court that Epperson's claimed errors with respect to voir 'dire and juror misconduct are wholly unsupported. B. Guilt Phase Issues. Epperson asserted· that trial counsel was ineffective during the guilt phase of his trial by failing to investigate and present evidence of alternative suspects, by presenting inconsistent .defenses, and by failing to impeach codefendant Donald Bartley. We disagree. i. Alternative Suspects. Epperson argued that trial counsel was ineffective for failing to investigate whom he termed "alternative suspects." In support, he pointed to the police reports in this. investigation which referred to other persons who were investigated for these crimes but ultimately not charged. This police investigation, which was ongoing for a year before Epperson and his codefendants were arrested, documented certain individuals' claims that people other than Epperson had committed the crimes. For instance, one police report documented a statement made by a confidential informant that certain 7 individuals (other than Epperson) would regularly conl.e to his house and ask about developments in this case. Notably, that police report also expressed concern about the reliability of this information. Another police report documented that an individual told detectives that two young boys had been bragging about having committed the murders. At trial, the jury was informed that this case had been un,der _investigation for more than a year before Epperson and his co-defendants were arrested. The jury was also advised that Epperson's arrest was made only after co-defendant Donald Bartley confessed to the murders, implicating Epperson and defendant Hodge. No "alternative suspects" testified ill any proceeding. Epperson maintained that trial couns_el's failure to investigate - "alternative suspects" undermined the innocence defense that counsel presented. At the evidentiary hearing, Epperson's lead counsel was not asked about any investigation of alternative suspects. Second chair counsel was questioned and testified that he recalled reviewing police reports involving other suspects but did not recall conducting an independent investigatiQn into other suspects. He conceded that any other alternatives to Epperson's involvement would have been important. This Court has held that the failure t<;:> investigate a defense and present crucial witnesses to the defense inay constitute ineffective assistance of . counsel. Commonwealth v. B'flssell, 226 S.W.3d 96, 106 (Ky. 2007). The movant must show: (1) a reasonable investigation would have uncovered the defense; (2) the failure to present a defense was not a tactical decision by trial 8 counsel; and (3) there is a reasonable. Rrobability that, but for counsel's I . · failures, the result would have been different. Id. "If the decision was tactical,. it is given a strong presu~ption of correctness, and the inquiry is generally at an end." Id. (internal quotations omitted). "On review, as a court far removed from the passion and grit of the courtroom, we must be especially careful not to second-guess or condemn in hindsight the decision of defense counsel. .A defense attorney must enjoy great discretion in trying a case, especially with regard to trial strategy and tactics." Harper v. Commonwealth, 978 S.W.2d 311,317(Ky.1998). Here, the information documented in the police reports regarding "alternative suspects" was insufficient to warrant arresting any of those individuals during the year-long investigation of these crimes. Epperson has not shown that these individuals would have testified that he was not guilty, or otherwise would have corroborated his defense. The trial court held that given the limited potential exculpatory value of these individuals as witnesses, the decision of tri?-1 counsel not to pursue an independent investigation into these _leads was not objectively unreasonable. Further, even if the failure to investigate these alleged suspects was objectively unreasonable, the trial court was unconvinced that a reason~ble"probability exists that the outcoi:ne of Epperson's trial would have been different, especially given that the evidence against these individuals was not strong enough to merit anyi arrests. We agree with the trial court that this claim of error dbes not merit RCr 11.42 relief. 9 ii. Inconsistent Defense. Epperson asserted that trial counsel was ineffective for presenting two mutually exclusive defenses', thus destroying the credibility of either. Epperson was charged·with both murder and complicity to commit murder, as well as robbery and burglary. He argued that trial counsel's position that he did not kn~w the victims, and concession that Epperson might have been the get-away driver because he di~ not want to be recognized by the victims, was mutually exclusive and prevented the jury from returning a not guilty verdict on the ' . . murder charges. However, as the trial court noted, suggesting that Epperson· did not want to be recognized does not concede that he knew the victims. He ( could have been complicit in the robbery and burglary and .feared being seen and described by the victims at a later time. That would indicate that Epperson believed the·victims would survive, and perhaps the jury could have been persuaded that murder was never part of his plan. Further, as the trial court noted, the Commonwealth presented substantial evidence that robbery and burglary were indeed Epperson's main objectives. Thus, Epperson's defense was not objectively unreasonable or inconsistent: deny all involvement, but if involved, deny involvement in the murders. In fact~ as the trial court pointed out, this defense strategy likely built credibility with the jury_ and succeeded to some measure. Epperson was indicted for, among other things, tw9 counts of murder. The jury disregarded the Commonwealth's theory of the case and found him guilty of complicity to 10 commit murder, effectively finding that he was not the principal actor. Iri terms of trial strategy, the trial court observed: Admitting involvement in the robbery and burglary does not c·onceqe an agreement to commit murder, and trial counsel's .. choice to build some credibility with the jurors in order to spare Epperson's life at a later point could have been an e,ffective strategic decision. However, this trial strategy must also be considered in light of the fact that Epperson had already been incarcerated for thirteen years at the time of his second trial in 2003. Thus, if the jury convicted him only on the robbery and ~ burglary charges, the minimum sentence could have been two 20year sentences served concurrently. Epperson, being eligible for parole after serving 85% of the sentence, could _have potentially served out his sentence after an additional four years. It was not unreasonable to strat~gically concede involvement in the robbery and burglary once the Commonwealth presented its case in chief. Considering the foregoing, we believe the trial court properly concluded \ that Epperson had failed to meet his burden of proving that trial counsel presented ~ inadequate defense to the charges so as to merit RCr 11.42 relief. I . iii. Impeachment of Co-defendant Bartley. Epperson asserted that trial couQ.sel was ineffective for failing to impeach co-defendant Bartley, who implicated him in the murders. Epperson argued ·, that trial counsel should have followed up on Bartley's alleged false statement regarding the sentence he received in return for his testimony at Epperson's trial, and should have confronted Bi::l.rtley with respect to his inconsistent confessions, including one in which Bartley allegedly stated that he had framed Epperson to save his own life. These general allegations are set forth in only three sentences of Epperson's appellate brief, and he failed to. elaborate or identify any resulting prejudice. Accordingly, we will only address these claims ( 11 to the extent he raised them in this Court. We decline to address any other claims not expressly raised before this Court. Epperson alleged that Bartley falsely told the jury that he had received a sentence of life with parole eligibility in 25 years in exchange for his testimony in this case, when he actually received a 45-year sentence. The record shows that Bartley did receive a 45-year sentence for his involvement. However, as the trial court noted, the relevant take away for the jury was that Bartley essentially agreed to spend the rest of his life in prison in exchange for his testimony in Epperson's case, and that point was made clear to the jury. The court concluded that counsel's decision not to obtain the judgment imposing sentence upon Bartley to impeach him with respect to this distinction was not objectively unreasonable. And even if it was, no reasonable probability exists that the difference between a 25-year sentence -and 45-year sentence for _Bartley would have affected the jury's verdict on Epperson's guilt'.) We agree. C. DNA Issues. Ed Taylor, a serologist at the Kentucky State Crime Lab, testified at . Epperson's first trial that no physical evidence linked Epperson to the crime scene. Nevertheless, the jury still retqrrted a verdict of guilty and a sentence of death. Thereafter, but prior to Epperson's retrial, at Epperson's request; his DNA was tested along with 2 hairs retrieved from the victims' bodi~s. Taylor analyzed the test results, which indicated that one hair was. not testable, artd the other hair that was found on one of the_ victim's nightgown did not match Epperson or his co-defendants. Evidently, Taylor did not forward the test f 12 results to Epperson or the Commonwealth's Attorney. At Epperson's retrial, Taylor's testimony from his first trial was read into evidence since Taylor was unavailable to testify at retrial. Taylor's testimony from the first trial made no mention of the DNA test results since the testing had not yet been performed at that time. In 2008, Epperson's post-conviction counsel discoveredin the record Epperson's motion forDNA testing and the court order authorizing it. At that time, Epperson filed a motion for a new trial and amended his RCr 11.42 motion to add claims relating to DNA testing. -Epperson argued that Taylor, as a state employee, had knowledge of the test results before Epperson's retrial and thus the Commonwealth, as a government agency, also was charged with knowledge and failed to provide the re.sults to him, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d. 215 (1963). Epperson maintained that because Taylor's testimony from the first trial was read into the. record on retrial, without alteration to include the .DNA test results, the · Commonwealth knowingly submitted materially false information to the jury. Notably, Epperson did not argue that anyone in the Commonwealth's Attorney's office knew of the DNA test results prior to 2008; instead, he .. asserted that because the record contained his motion for DNA testing and the court order authorizing it, the Commonwealth had a duty to seek the results of that testing. Epperson further alleged that his own trial counsel was ineffective for failing to obtain the results and failing to present those results to the jury. 13 The burden is upon the party collaterally attacking a conviction to prove the elements of a Brady violation. Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). Brady obviously does not apply to information that is not wholly within the control of the prosecution. There is no Brady violation where a. defendant knew or should have known the essential facts . permitting him to take advantage of any exculpatory information, or where the information is available from another source, because in such cases. there is really nothing for the government to disclose. Id. (internal quotations and citations omitted). In other words, "Brady only applies to information which had been known to the prosecution but unknown . ' to the defense." Commonwealth v. Bussell, 226 S.W.3d 96, 100 (Ky .. 2007) (internal quotations and footnote omitted). "Brady does not give a defendant a second chance after trial once he becomes dissatisfied with the outcome if he had a chance at trial to addre.ss the evidence complained of." Commonwealth v. Parrish, 471 S.W.3d 694, 698 ·(Ky. 2015) .(internal quotations and citation omitted). The trial court bifurcated the evidentiary hearing ~n Epperson's DNArelated claims from the hearing on his remaining RCr 11.42 claims by agreement of the parties, all of whom believed that if Epperson preva~led on the DNA claims, then a new trial would be the appropriate result. At the , evidentiary hearing, Epperson's lead trial counsel testified that he did not recall receiving any DNA test result~ during his representation of Epperson and did not recall if ·any DNA test results were in ·the record when he took over the case in 2000. He further testified that he and co-counsel decided not to have 14 Epperson's DNA tested to see if it matched the victim's hair becaus~ the Commonwealt_h did not have any scientific evidence linking Epperson to the crime scene; thus, counsel did not see the need to rebut the absence of any such evidence. Counsel s~ated that had he known of the DNA test results, he would have attempted.to introduce those results into evidence, but that the existence of the DNA test results did not alter his argument to the jury that no scientific evidence linked Epperson to the crime scene. He stated that the J existence of the ·test results would not have altered the trial strategy ~ince the results did not exonerate Epperson or show he was not at the scene of the crime; they simply showed the hair on t~e victim was not his. Following the evidentiary hearing, the trial court" entered an order denying Epp~rson's motiori for a new trial, finding that the DNA testing was performed at Epperson's request, and no one employed at the Commonwealth's Attorney's Office received the test results, or even knew about them until 2008. Thus, the court found no Brady violation occurred since the Commonwealth did not even have the evidence in its possession to suppress. We agree. The \. Commonwealth was under no obligation to obtain resl'.llts· of testing performed at the behest of defense counsel simply because a ~tate agency facilitated the transfer of samples. To·suggest otherwise would place a burden on the Commonwealth to keep track of defen"se counsel's motions .. Epperson made the DNA request himself, thus had the responsibility to obtain the test results and provide them to the Commonwealth through reciprocal discovery. 15 I With respect to Epperson's claim that the Commonwealth presented false testimony through Taylor, who testified at Epperson's first trial that no physical evidence linked Epperson to the crime sce~e, the trial court held.that Taylor's testimony was still accurate and not perjured, and the existence of the DNA test results did not significantly alter it~ despite Epperson's argument that excluding someone as a source of a hair was more exonerating than simply not . finding any evidence ·of a person at a- crime scene. Even assuming Taylor's . testimony should have been supplemented to include the test results, the court found no reasonable probability exists that the outcome of Epperson's retrial , would have been any different as a result. We agree. Lastly, the trial court noted that Epperson's motion requesting DNA testing, and the court order authorizing it, had beeri in the record and readily available to Epperson's counsel since 1998. Accordingly, the court concluded that Epperson's trial counsel had been deficient for failing to thoroughly review the record. That said, the court held that no reasonable probability exists that · th~ outco~e of his trial would have been different had the test resu'its been presented to the jury. Epperson speculated that the jury's verdict or sentence would have been different, but the jury was not persuaded that Epperson committed the murders himself; thus, they convicted him of complicity to commit murder. The fact that a hair taken from the body of a victim did not match Epperson's hair is entirely consistent with this verdict and would not have necessarily excluded· Epperson from the crime scene. Accordingly, even though his trial counsel failed to uncover or present the DNA test results, we 16 agree with the trial court that no prejudice resulted that would merit postconviction relief. D. Sentencing Issues. Epperson alleged that trial counsel was ineffective for failing to investigate his past to uncover mitigating evidence and present that evidence during the sentencing phase of trial. Specifically, he averred that the jury should have been advised that he had been born "blue," had grown up impoverished, ~ad been subjected to physical and emotional abuse by his father, had difficulties at school, witnessed friends die in violent circumstances, and suffered some form of brain damage caused by head injuries. He claimed that had trial counsel present~d this mitigating evidence to the jury, it might have imposed a sentence other than death; thus, counsel's . . ·decision not to present this evidence was inherently unreasonable. Trial counsel has a clear "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. However, "Strickland does not ' require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case." Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 2541, 156 L.Ed.2d 471 (2003). The question before the Wiggins court was "not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation ;:;upporting counsel's decision not to 17 introduce evidence of Wiggins' background was itselfreas~nable." 1d. at 523, 123 S.Ct. at 2536. "In assessing the reasonableness of an attorney's . _I investigation, however, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Id. at 527, 123 S.Ct. at 2538. Here, most of the mitigating evidence was presented by corrections officers who t~stified that Eppers_on was a model prisoner, implying that he ~as not a current danger to anyone. Epperson's mother, father, and sister also testified during sentencing, but none of the,m addressed any abuse during ( Epperson's childhood. For summary .purposes, they testified that Epperson grew up in a normal childhood home. Trial counsel's closing argument quring sentencing was essentially a collateral attack on the death penalty as an institution; counsel did not attempt to make excuses for Epperson's actions. Epperson argued that trial counsel should have presented certain mitigation evidence, su~h as the Dr. Peter Young report and the mitigation report generated by Anna Chris Brown. Prior to Epperson's retrial, Dr. Young generated a report noting that Epperson may have suffered from brain injuries that occurred during his childhood. Also prior to retrial, Epperson's former counsel retained mitigation specialist Anna Chris Brown, who conducted an interview with Epperson and his mother, and noted that Epperson's father whipped him with a mining belt; Epperson had an impoverished childhood; and he witnessed a close fri_~nd die after being shot by a constable deputy. During that interview, Epperson also stated that his father threw a brick at the 18 back of his head, which knocked him to the ground but did not knock him unconscious; he reported to the treating physician that he had fallen while drunk. Epperson also claimed that his father had hit him in the head with a claw hammer. In that same interview, Epperson discussed his fortune in having "never been hurt" and "never even had a black eye." Both Dr. Young's and.Anna Chris Brown's. reports were in Epperson's case file and available to trial counsel. Eppe_rson's position is that these reports should have generated red flags and caused trial counsel to investigate further. At the evidentiary hearing, Epperson's lead trial counsel was unable to .·recall whether he contacted Anna Chris Brown, but stated that he did not retain a mitigation specialist for retrial. He was unable·to recall several files that were presented to him, including memorandums regarding Epperson's family life, but he stated that he did interview Epperson's family. He was unable to recall whether he learned of Epperson's alleged child abuse prior to trial, or after the fact in subsequent interviews with post-conviction counsel. He did recall learning that Epperson had witnessed close friends dying. Counsel testified that it would be good practice to investigate allegations of abuse and tr~uma if there was a valid reason to do so. Lead counsel stated that the only additional medical evidence he pursued with regards to Epperson's alleged brain injuries, beyond the reports in the file, were hospital records that reflected an automobile accident. He did l)Ot recall communicating with Dr. Young about his report with respect to Epperson's potential brain injuries but remembered reviewing psychologi~al reports that 19 revealed nothing of mitigating_ value, and counsel consciously \,chose not to produce those reports at sentencing. Lead counsel further testified that he believed introducing evidence of head injuries, emotional abuse and trauma . during the sentencing phase of a capital murder trial must be evaluated on a case by case basis. Co-counsel testified at the evidentiary hearing that he had worked on capital murder cases before Epperson's, but customarily did not perform sentencing work. Based on his interactions with Epperson, he did not suspect Epperson· suffered from any brain damage. The trial court found that lead counsel had reviewed the case file containing evidence of mitigating value but did not interview the authors of the reports contained in the case file. The court further found that co-counsel · communicated with Epperson's family but performed no either investigation into mitigating evidence. The court concluded that neither counsel . communicated with any mitigation specialist during their representation of Epperson, but they did have access to documents generated by a previouslyretained mitigation specialist. Based on the testimony and the documents presented, the court found that a reasonable probability exists that a juror could have concluded that Epperson suffered traumatic brain injuries, as well as physical and emotional abuse as a child, and was deprived of oxygen at b~rth. Still, the court found Epperson's allegations of child abuse to be wanting, considering the inconsistent statements he made during his mitigation interview that he had "never been hurt," and his mother's trial testimony that he had lived in a 20 normal childhood home. The court also questioned just how much mitigating weight a jury would have. afforded Dr. Young's report had it been presented; his report also concluded that Epperson exhibited antisocial behaviors, though stopped short of diagnosing Epperson as antisocial. The court noted that the clinical attributes of antisocial behavior as defined in Dr. Young's report . include a person who is "narcissistic, fearless, pugnacious, daring, blunt, aggressive, assertive, irresponsible, impulsive, ruthless, victimizing, . intimidating, dominating, self-reliant, revengeful, vindictive, dissatisfied, and resentful.". The court observed that these descriptions aligned with the Commonwealth's the.ory of the case; that is, Epperson was the "straw boss"· and intelligent enough to plan murder. They further supported trial counsel's implicit conclusion that presentation of this report was not in Eµ:person's best . ) interest. Lastly, the trial court questioned how evidence in the form of death certificates of the friends who Epperson witnessed die would have shed any light on lead counsel's testimony that he was aware that Epperson had witnessed friends' deaths. Moreover, the court expressed doubt about how Epperson's witnessing death would lead a jury to show mercy for premeditated murder. Many people have witnessed loved ones die but did not engage in robbery, burglary, and murder of others as a result. The trial court distinguished this case from Wiggins, in that Epperson's trl.al counsel had the detailed reports in the case file; in Wiggins, trial counsel was found to be ineffective since they could have obtained mitigating reports 21 had they investigated further. 539 U.S. at 524-526, 123 S.Ct. at.2537:-38. The trial court noted that no meaningful evidence had. been presented during Epperson's evidentiary hearing that counsel should have discovered, but failed to discover, evidence due to poor investigatory work. ·Rather, most of the reports Epperson cited were already in the file, which led -the trial court to conclude that because the evidence in the file was so detailed, counsel's decision not to present this mitigation· evidence was a strategic one. The court further held that even if it was to find that trial counsel was deficient for failing to investigate ancl present certain mitigating evidence, no reasonable probability exists that Epperson's sentence would have been any different. The court found that the cold-blooded execution of the victims was beyond mitigating, and no juror would have granted him. sympathy. To wit, Epperson has been twice convicted and sentenced to death for these crimes: 24 individuals have sat in judgment of him, and all found him guilty of robbing the victims. In his first trial, 12 jurors concluded that he also murdered the victims. The 12 jurors wh_o sat on his second trial found him guilty of complicity to murder the victims. All 24 jurors sentenced him to death. E. Cumulative Error. Since we have found no merit in any of Epperson's individual claims, no cumulative error can exist. IV. CONCLUSION. ( As the trial court noted, "trials are never perfect, and with. decades to sit ', and wonder ~hat could have been, it becomes easy to latch onto small 22 imperfections and believe tbey made the difference." We agree with the trial ·court that Epperson has failed to meet his burden to obtain relief under RCr ' . I .1\1.42. For the foregoing reasons, we affirm the Warr~n Circuit Co"4rt's order denying Epperson's RCr 11.42 motion for post-conviction relief. . \ Minton, C.J.; Cunningham, Hughes, Keller, VahMeter and Venters, JJ., concur. Wright, J., not sitting. COUNSEL FOR APPELLANT: . David Michael Barron Katherine Blair . Assistant Public Advocate Department of Public Advocacy COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan David Bryan Abner Assistant Attorney General 23 .

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