Epperson v. Com.

• Decision Date: 08 November 1990
• Docket Number: Nos. 86-SC-882-M,86-SC-900-MR,s. 86-SC-882-M
• Citation: 809 S.W.2d 835
• Parties: Roger Dale EPPERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Benny Lee HODGE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 835

809 S.W.2d 835

Roger Dale EPPERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Benny Lee HODGE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 86-SC-882-MR, 86-SC-900-MR.

Supreme Court of Kentucky.

Nov. 8, 1990.

As Modified on Denial of Rehearing July 3, 1991.

Kathleen Kallaher, Randall L. Wheeler, Asst. Public Advocates, Frankfort, for appellant Roger Dale Epperson.

Michael A. Wright, Oleh R. Tustaniwsky, Asst. Public Advocates, Frankfort, for appellant Benny Lee Hodge.

Frederic J. Cowan, Atty. Gen., Elizabeth A. Myerscough, Lola Philpot Lewis, Asst. Attys. Gen., Crim. Appellate Div., Frankfort, for appellee.

WINTERSHEIMER, Justice.

These appeals are from judgments based on a jury verdict which convicted Hodge of murder, attempted murder, first degree robbery and first degree burglary for which he was sentenced to a total of 60 years in prison and to death; Epperson was also sentenced to death for murder and sentenced consecutively to twenty year terms of imprisonment for first degree robbery, first degree burglary and attempted murder.

Hodge presents 62 issues on appeal and Epperson presents 69 issues. This opinion will focus on those issues which we believe are most important, although we have considered and rejected all other assignments of error presented by each of the appellants.

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.

It was not reversible error for the trial judge to admit the statements of the nontestifying codefendant, Hodge.

While in jail in Florida, Hodge confessed his role in the murder and robbery to a fellow inmate, Lawrence Smith. At trial Hodge's confession to Smith was admitted by the redacted testimony of Smith who made reference to the other participants as "they," "he" or "his friend." Epperson sought an admonition to the jury to limit Hodge's confession as evidence only pertaining to the declarant. The motion was overruled without explanation by the trial judge. Bartley, testifying for the prosecution, referred to Epperson as the straw boss or mastermind of the operation. No request for an admonition was made by the defendant.

The failure of the trial judge to admonish the jury to restrict consideration of the nontestifying codefendant Hodge's confession only as to his culpability was harmless error. Considering this voluminous trial record as a whole, the alleged error was nonprejudicial beyond a reasonable doubt. In Stanford v. Commonwealth, Ky., 734 S.W.2d 781 (1987), we affirmed a conviction even though a nontestifying codefendant's confession was admitted in error and its impact was cumulative and significant because it did not have the devastating quality as did the other evidence of the defendant's guilt.

While the trial court's failure to give the requested admonition may amount to error under Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), we are pursuaded the harmless error rule should be applied for several reasons. First, Smith's testimony was "sanitized" and at no time did he refer to Epperson by name. Next, the testimony could have as easily referred to Bartley as to Epperson. The third and most compelling reason the evidence was harmless was that Bartley, a participant in the crime, testified fully and his evidence was devastating to Epperson.

The closing argument of the prosecution referring to Epperson as the straw boss and mastermind of the operation did not amount to reversible error. Unlike the situation in Cosby v. Commonwealth, Ky. 776 S.W.2d 367 (1989), the reference to the codefendant's confession in the closing argument was cumulative and lacked the impact of other evidence implicating the defendant. Cf. Stanford, supra. The error was also not compounded by a jury admonition.

It was not reversible error or an abuse of discretion for the trial judge to refuse to sever the trials of Epperson and Hodge. The trial judge has broad discretion to determine whether the risk of prejudice requires severance and such a decision will be overturned only upon a clear showing of an abuse of discretion. Commonwealth v. Rogers, Ky., 698 S.W.2d 839 (1985); Wilson v. Commonwealth, Ky., 695 S.W.2d 854 (1985).

The trial judge found that none of the evidence presented by either appellant was prejudicial to the degree that it would require severance under the standards of Hoskins v. Commonwealth, Ky., 374 S.W.2d 839 (1964). There were no antagonistic defenses. Neither defendant took the stand, and trial strategy indicated that counsel for both defendants suggested that Bartley was the actual murderer.

Hodge had a complete opportunity on voir dire to question each of the potential jurors about any prejudice towards Epperson's lawyer, Lester Burns. Eleven of the jurors were questioned and the fact that he did not question all the veniremen is a choice that he made and is not the basis for a claim of reversible error on appeal. Epperson's individual argument also lacks merit. Smith's statements strongly implicated Hodge but made no reference to Epperson. Any prejudice to Epperson was not direct but only through inference. It should not be the basis of reversible error.

Epperson's lawyer, Lester Burns, was indicted by a federal grand jury on multiple counts of mail fraud and conspiracy on March 12, 1986. At an April 1, 1986 pretrial hearing Epperson was informed of the indictments and asked by the trial judge outside the presence of Burns, if he wished to proceed with Burns as his counsel. Epperson chose to keep Burns responding, "I feel he is not guilty so he shouldn't have any bearing on me."

On May 4, 1986, a newspaper article outlined Burns alleged involvement in the laundering of the stolen money from this crime. On three separate occasions, the trial judge considered the effect on the trial of the new allegations against Burns and each time, the conclusion was that the effect was not prejudicial so as to warrant a separation of the trials or a change of venue.

Epperson's claim that Burns had reason not to call certain witnesses who could testify about his own activities as well as incentive to curry favor with the prosecution is without merit. Attorney Burns did attempt to call witnesses but those witnesses invoked their own privilege against self-incrimination.

Epperson, in an ineffective assistance claim, is required to satisfy both aspects of the test provided by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) which is that a defendant must prove: 1) that counsel's performance was deficient, and 2) that the deficient performance was prejudicial to a fair trial. Kentucky has adopted the Strickland test in McQueen v. Commonwealth, Ky., 721 S.W.2d 694 (1986) and limited the exception found in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) to situations of multiple representation. There was no multiple representation in this case and Cuyler, supra, does not apply.

There was no reversible error in regard to the stipulations made by Epperson's counsel at trial. Among the items stipulated was the purchase of an automobile in Florida which belonged to Epperson. He claims that the title to the automobile and the registration were under the name of McDowell. The record further reveals that it was Epperson who bought the car and then asked McDowell to register the car under McDowell's name. The record indicates that McDowell did not pay for the car and that his signature on the registration document was forged. The facts stipulated were not in dispute. The stipulations merely saved time and did not amount to the functional equivalent of a guilty plea.

The denial of the motions for a continuance by both Epperson and Hodge was not reversible error. They cannot claim unfair surprise based on the fact that the testimony of a codefendant had not been anticipated. There was no abuse of discretion by the trial judge in refusing to grant a continuance. Stump v. Commonwealth, Ky.App., 747 S.W.2d 607 (1988); RCr 9.02.

The prosecution was also correct in its response to the discovery request. Hodge's confession was part of the witness Smith's statement. The prosecution had no written or recorded statements of the codefendants until it received Bartley's recorded statement on May 12, 1986. If the defendants were misled by the prosecution's denial of the possession of any codefendants statements, it was not attributable to any action of the prosecution, and the discovery response was correct. Cf. White v. Commonwealth, Ky., 611 S.W.2d 529 (1980). As a regular witness and not an informant, the defendants were not entitled to Smith's statement until his testimony. RCr 7.26(1). Because his statement was made orally to state police, it was not discoverable pursuant to RCr 7.24(2). Hodge's oral confession to Smith under the 1986 version of RCr 7.24(1) was discoverable upon request by the defendant. Hodge made no such discovery motion and because his confession was oral and not written or recorded, the Commonwealth, pursuant...