NOT FOR PUBLISHED
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
MEMORANDUM OPINION OF THE COURT
Appellant, Roger Epperson, along with his co-defendant, Benny Lee Hodge, were convicted of robbery, burglary, attempted murder, and murder, in Letcher Circuit Court. Both received the death penalty. Their convictions and sentences were affirmed on direct appeal. Epperson v. Commonwealth, 809 S.W.2d 835 (Ky. 1990). Appellant subsequently filed a motion to vacate the judgment pursuant to RCr 11.42. The trial court denied the motion without holding an evidentiary hearing. The Supreme Court of Kentucky reversed and remanded. The Court ordered the trial court to hold an evidentiary hearing on two issues: 1) jury tampering; and 2) failure to introduce mitigating evidence during the sentencing stage of trial.
On remand, the trial court held a joint hearing on the jury tampering issue that included evidence introduced by Appellant and Hodge. The trial court denied both parties' relief. This Court affirmed in an unpublished decision. Hodge v. Commonwealth, No. 2009-SC-000791-MR, 2011 WL 3805960 (Ky. Aug. 25, 2011) rehearing denied Feb. 23, 2012. Appellant was not a party to that appeal. Hodge sought relief from the Supreme Court of the United States. Hodge v. Kentucky, 133 S.Ct. 506 (2012). The Court denied his petition for writ of certiorari on December 3, 2012. Id. Justice Sotomayor dissented.
In a separate hearing on the issue of failure to present mitigating evidence, the trial court determined that there was no reasonable probability that Appellant would have received a lesser sentence had the mitigation evidence been introduced. Appellant now appeals the trial court's judgment on the issues of mitigation evidence and jury tampering.
Factual Background
Because this Court has already discussed and decided several issues that are nearly identical to those raised herein, we will rely, in part, on our previous rulings in Epperson and Hodge. We summarized the mutual facts in Epperson as follows:
On August 8, 1985, Donald Bartley and Hodge entered the home of the victim and her father posing as F.B.I. agents. Once inside, Hodge produced a gun and tied the father while Bartley took the daughter into a back bedroom and tied her. Both the father and the daughter had their heads covered. Epperson, who had been waiting in an automobile outside the home, was radioed and told to enter. The three men ransacked the house until a safe was found and the father was forced to open it. Almost $2 million in cash, some weapons and jewelry were found by the three men. Hodge is charged with then killing the daughter by stabbing her twelve times in the back with a large kitchen knife, while Epperson and Bartley choked the father into unconsciousness with an electric cord. The three men then left the home. All three were arrested in Florida and returned to Kentucky for trial. Bartley turned prosecution witness and gave a detailed statement identifying both Hodge and Epperson as principals in the crimes.
Bartley, testifying for the prosecution, referred to Epperson as the straw boss or mastermind of the operation.
Epperson, 809 S.W.2d at 838.
Analysis
Before we address the two primary claims at issue here, we must first address Appellant's argument that the Attorney General impermissibly involved himself in the post-judgment proceedings before the trial court. According to Appellant, the Commonwealth Attorney had litigated this case from the indictment through trial, including the guilt phase. Prior to final sentencing, Appellant's counsel and the Commonwealth Attorney were in the process of negotiating a plea agreement offering Appellant a sentence of life without parole in exchange for a waiver of Appellant's right to appeal or challenge the trial court's judgment.
When Appellant's counsel appeared at a pre-sentencing hearing (allegedly expecting to finalize the terms of the anticipated plea agreement), an Assistant Attorney General ("AG"), appeared on behalf of the Commonwealth. The AG informed the court and counsel that there would be no plea deal and that the Commonwealth sought to impose the sentence recommended by the jury—death. The court subsequently imposed that sentence.
Prior to the AG's appearance on behalf of the Commonwealth, the Commonwealth Attorney, and special prosecutor in this case, Rick Bartley, wrote to the AG:
Enclosed is an Order setting a Status Conference on Roger Epperson for November 18, 2011 at 10:30 a.m. Although this is a Letcher Circuit court case, Pike Circuit Judge Eddy Coleman has been holding these hearings in his courtroom in the Hall of Justice in Pikeville. His courtroom is on the fourth floor left.
On October 21, 2011, I asked the judge for an additional month to sort out the issues in this case. That is the reason for the status conference.
As we discussed, if this matter is going to continue being heard, I would request your office take the lead role. I will be happy to sit second chair and will make my courthouse office available for any needs. My, office is on the fourth floor of the Hall of Justice.
Appellant argues, as he did before the trial court, that this letter is insufficient to satisfy KRS 15.190. The trial court disagreed and declined to hear testimony concerning prior plea negotiations.
KRS 15.190 details the requirements that the AG must undertake before formally assisting in a case. It provides:
County and Commonwealth attorneys may request in writing the assistance of the Attorney General in the conduct of any criminal investigation or proceeding. The Attorney General may take such action as he deems appropriate and practicable under the circumstances in the rendering of such assistance.
Contrary to Appellant's argument, the letter tendered by the Commonwealth Attorney to the AG is more than sufficient to satisfy KRS 15.190. It is also worth noting that RCr 11.42(4) requires the clerk to provide the AG with notice of a post-trial proceeding initiated under that rule. Therefore, motions raised under RCr 11.42 clearly contemplate, and in fact require, the attention of the AG. See also St. Clair v. Commonwealth, 140 S.W.3d 510, 531 (Ky. 2004) (concluding that while it would be better practice for the Attorney General's office to make a record of its authority to prosecute, a presumption of regularity attaches in such cases). It is also clear that a final plea agreement had not been executed. Therefore, Appellant could not have relied on the agreement to his detriment. See Workman, v. Commonwealth, 580 S.W.2d 206, 207 (Ky. 1979), overruled on other grounds, Morton v. Commonwealth, 817 S.W.2d 218 (Ky. 1991). As such, the AG's presence in the post-convictions proceedings here was proper.
Ineffective Assistance of Counsel
The Commonwealth concedes that Appellant's counsel was deficient in failing to introduce mitigation evidence during the sentencing phase of trial. Therefore, "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 v. Washington, 466 U.S. 668, 695 (1984). A reasonable probability is one that is "sufficient to undermine confidence in the outcome." Id. at 694. Our analysis involves mixed questions of law and fact. We review the trial court's factual findings for clear error and its conclusions of law under a de novo standard. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).
Due to the concerns raised by Justice Sotomayor in her dissenting opinion in Hodge v. Kentucky, 133 S.Ct. 506 (2012), it is necessary to provide further clarification of the standard of review employed by this Court in such matters as the present case. We are keenly aware that "the only relevant question is whether the proposed mitigation evidence would give a jury `a reason to impose a sentence more lenient than death.'" Id. at 510 (quoting Smith v. Texas, 543 U.S. 37, 44-45 (2004)). Therefore, we do not require proof of a "nexus" between the mitigation evidence and the crime.
Numerous witnesses testified at the evidentiary hearing, including Appellant's family members and experts in various fields of neurology and psychology. The expert testimony generally indicated that Appellant's addictions, impairments, and other negative behavior were the result of the various traumas Appellant endured as a child. In resolving the matter, however, the trial court adopted the Commonwealth's proposed findings of fact and conclusions of law verbatim which provided in part:
The court cannot say that, had the jury learned that [Appellant] was spanked by his father, received several head injuries and was a drug and alcohol addict there is a reasonable probability that the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.
. . .
The portrait of [Appellant] as the scion of a relatively well to do family given every financial opportunity who choose [sic] to squander his opportunities in favor of a life of drugs, alcohol and crime would likely have outweighed any sympathy created by harsh discipline.
The trial court declined to consider the testimony of Appellants' neurological and psychological experts because it determined that, contrary to the expert evidence presented, that their testimony would not have been available in 1986 when Appellant was sentenced. The court specifically determined that Appellant, through counsel, "declined to be interviewed by mental health experts in preparation of trial."
To the contrary, the record fails to indicate that Appellant declined mental health evaluations. However, the record does indicate that Appellant's trial counsel filed a notice that Appellant "does not wish to be examined by a Court appointed psychiatrist or psychologist to determine his competency to stand trial in the above action." (Emphasis added). Of course, waiving one's right to a competency evaluation does not foreclosure access to examinations concerning other potential claims or defenses.
On the issue of childhood trauma, there was significant testimony indicating that Appellant suffered brutal physical and emotional abuse by his father. This included several instances of serious head injuries. There was also testimony that Appellant endured oxygen deprivation at birth. Appellant introduced additional evidence of his developmental deficiencies, poor academic record, and the poor economic conditions of the coal mining camp where he was raised.
This is a far cry from the trial court's description of Appellant as "the scion of a relatively well to do family given every opportunity."
However, additional evidence indicated that Appellant's alleged abuse at the hands of his father was a more benign form of corporal punishment issued as a disciplinary measure. Other evidence painted a much less sinister picture of Appellant's childhood and a more positive view of Appellant's academic record. Nevertheless, the trial court's failure to even consider the previously cited evidence weighing in Appellant's favor constitutes clear error. Yet, we cannot say that the trial court's legal conclusion was erroneous. Having considered the mitigation evidence weighing in Appellant's favor, there is no reasonable probability that even one juror would not have sentenced Appellant to death had such mitigation evidence been introduced.
As previously discussed, Hodge also involved an RCr 11.42 claim that involved trial counsel's failure to present mitigation evidence during the sentencing phase of trial. In affirming the trial court's denial of post-conviction relief, we considered the following evidence: 1) Hodge's abhorrent childhood that included severe physical and emotional abuse by his step-father; 2) Hodge's poor academic performance; 3) his extensive adult and juvenile criminal history; and 4) expert psychological testimony diagnosing Hodge with post-traumatic stress disorder (PTSD). In regards to Hodge's childhood, we notably stated the following:
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.
Hodge, 2011 WL 3805960 at *5.
In addition to the heinous nature of the crime which was a calculated and extremely brutal affair, it is also relevant in the present case that Appellant, unlike Hodge, was identified by a testifying trial witness as "the straw boss or mastermind of the operation." Epperson, 809 S.W.2d at 838.
As terrible as Appellant's childhood may have been, the evidence favoring Appellant's argument does not exceed the level and scope of the mitigation evidence discussed in Hodge. This is not to say that Hodge is the metric by which all other cases must be measured. However, we cannot neglect our reasoning advanced in Hodge, due to its obvious relationship to the present case. Therefore, in light of our reasoning in Hodge as well as the specific mitigation and aggravation evidence at issue in this case, there is no reasonable probability that even one juror would not have sentenced Appellant to death had such mitigation evidence been introduced.
Jury Tampering Issues
Appellant also asserts that the trial court erred by denying his request for post-trial relief on the issue of jury tampering. We addressed this identical issue in Hodge. Appellant echoes Hodge's argument that the jury was provided with alcohol during deliberations, that the prosecutor engaged in ex parte communications with the jury, and that the jury had decided the case before the close of evidence. The primary witness who testified at the RCr 11.42 in the present case and Hodge was Gary Rogers, "a deputy sheriff who was responsible for overseeing the sequestered jury. . . ." Hodge, 2011 WL 3805960 at *1. After reviewing the evidence, the Court ultimately concluded that "Rogers' testimony was confused, inconsistent, and contradictory." Id. at *2. Appellant has failed to provide any additional evidence or arguments that require the Court to depart from our conclusion in Hodge.
Similarly, we find Appellant's arguments concerning the testimony of Marsha Hogg Thursty to be unpersuasive. Ms. Thursty was an alternate juror in Appellant's trial who testified at Appellant's hearing on the jury tampering issue. Her testimony indicated an absence of jury tampering. Contrary to Appellant's assertion, the fact that Thursty was not present during the jury's deliberations does not change the impact of her testimony. The trial court relied on her testimony concerning events that occurred prior to deliberations. Therefore, we affirm the trial court's judgment on the jury tampering issue.
Conclusion
For the foregoing reasons, we hereby affirm the judgment of the Letcher Circuit Court.
Minton, C.J.; Cunningham, Hughes, Keller, Noble, and Venters JJ., sitting. Minton, C.J.; Cunningham, Keller, Noble, and Venters, JJ., concur. Hughes, J., concurs in result only. Wright, J., not sitting.
