Epperson v. Com., No. 2003-SC-0595-MR.

• Decision Date: 23 February 2006
• Docket Number: No. 2003-SC-0595-MR.
• Parties: Roger EPPERSON, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

197 S.W.3d 46

Roger EPPERSON, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2003-SC-0595-MR.

Supreme Court of Kentucky.

February 23, 2006.

Rehearing Denied August 24, 2006.

Randall L. Wheeler, Assistant Public Advocate, Department of Public Advocacy, Julia K. Pearson, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Ian G. Sonego, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

WINTERSHEIMER, Justice.

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 burglary.

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), cert. 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, 544 U.S. 931, 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), cert. denied, West v. Seabold, 518 U.S. 1027, 116 S.Ct. 2569, 135 L.Ed.2d 1086 (1996).

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), cert. 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 indictment.

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.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 those crimes.

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 the defense.

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 case.

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. Hayes 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...