Hodge v. Com., No. 1996-SC-1085-MR.
| Decision Date | 24 February 2000 |
| Docket Number | No. 1996-SC-1085-MR. |
| Citation | 17 S.W.3d 824 |
| Parties | Benny Lee HODGE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Marie Allison, John Palombi, Assistant Public Advocates, Frankfort, for appellant.
A.B. Chandler, III, Attorney General, Ian G. Sonego, Assistant Attorney General, Frankfort, for appellee.
Following a trial by jury in the Laurel Circuit Court in October 1996, Appellant Benny Lee Hodge was convicted of two counts of murder, one count of robbery in the first degree, and one count of burglary in the first degree. He was sentenced to death for each murder conviction and to twenty years each for the robbery and burglary convictions. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).
On June 16, 1985, Edwin and Bessie Morris were murdered in their home in Gray Hawk, Jackson County, Kentucky. Edwin Morris's body was found lying on the kitchen floor, gagged, with his hands tied behind his back, and with a pillow near his head. Bessie Morris's body was found on a bed in the bedroom with her hands tied behind her back and her feet tied together. A pillow was also found near her body. The medical examiner testified that Edwin Morris had been shot twice, once in the forehead and once in the right side of the head, and that either wound would have been fatal. One bullet was recovered from his body; the other had passed through his body. The examiner testified that even if the bullet wounds had not been fatal, Mr. Morris would have suffocated from the gag. Bessie Morris died of two gunshot wounds to the back, both of which were fatal, but death did not immediately result from either. One bullet was recovered from her body and the other had passed through her body.
A ballistics expert testified that one of the two bullets recovered from the victims' bodies was definitely a .38 caliber bullet and the other was either a .38 caliber or a .357 magnum caliber. Both bullets had been fired from the same weapon, which could have been either a .38 caliber or a .357 caliber handgun. Two additional bullets were recovered from the crawl space under the kitchen floor where Edwin Morris's body was found and a third from the box springs of the mattress on the bed where Bessie Morris's body was found. The ballistics expert testified that these were all 9-mm Lugar bullets, which appeared to have been fired from a semiautomatic pistol; and that at least two of the bullets were fired from the same weapon and the third could have been fired from the same weapon. The two pillows found near the bodies contained large holes surrounded by gunshot residue consistent with a bullet being fired through each pillow to muffle the sound.
Appellant was first tried, convicted and sentenced to death for these murders in 1987. The convictions were vacated on a confession of error by the Commonwealth, i.e., that the trial judge had not conducted individual voir dire on the issue of pre-trial publicity. See Morris v. Commonwealth, Ky., 766 S.W.2d 58 (1989). Donald Bartley had been a witness for the Commonwealth at the 1987 trial and a redacted transcript of his testimony was read to the jury at the 1996 trial. According to Bartley, he, Appellant and Roger Epperson went to the Morrises' residence with the intent to commit robbery. Appellant was armed with a .38 caliber handgun and Epperson with a 9-mm pistol. Appellant and Epperson went to the door and were admitted by Mrs. Morris. Bartley stayed outside to keep a lookout, but was able to view some of the proceedings through a patio door. He saw both Appellant and Epperson brandish their weapons, then knock Mr. Morris to the kitchen floor. Bartley then heard shots, following which Appellant and Epperson came out of the house with a sack full of money and their pockets stuffed with more money. A subsequent count revealed they had stolen $35,000.00 in cash from the Morrises They also stole a diamond cluster ring, a set of diamond earrings, and a .38 caliber handgun. Later, they disassembled the 9-mm pistol, wiped all three handguns clean of fingerprints, and threw them from a bridge into a river in the Daniel Boone National Forest. They then burned Appellant's bloodstained shirt and tennis shoes.
Appellant's former wife, Sherry Hamilton, testified at the 1996 trial that Appellant told her that he and Bartley (not Epperson) had entered the Morrises' residence and that he shot Edwin Morris following a scuffle which ensued when Morris reached for a gun on the refrigerator. Bartley then took Bessie Morris into the bedroom and shot her. When Bartley emerged from the bedroom, Appellant asked him if Mrs. Morris was dead and Bartley replied that he thought she was; whereupon Appellant went into the bedroom and shot Mrs. Morris again to make sure she was dead. Hamilton testified that Appellant usually carried a .38 caliber handgun and that Bartley usually carried a 9-mm handgun. She also testified that Appellant gave her the diamond ring and earrings and that she subsequently sold them to a "fence" in Tennessee.
Appellant was indicted by a Jackson County grand jury. Prior to his first trial, venue was changed from the Jackson Circuit Court to the Laurel Circuit Court. After his 1987 convictions were vacated and remanded for a new trial, Appellant moved for another change of venue. An evidentiary hearing was held at which Appellant introduced the affidavits of two witnesses and a 1994 "venue survey" prepared by an employee of the Department of Public Advocacy. The survey purported to show that citizens of Laurel County were more familiar with this case than were citizens of Warren County, the venue to which Appellant desired to have his case removed. Although 57% of Laurel County respondents stated they had read, heard or seen something about the Morris murders, only 10% could name Appellant as being one of those charged. Upon being informed that "Benny Hodge had been charged, convicted and sentenced to death on November 7, 1987 for the murders of Edwin and Bessie Morris," only 28% stated that they were aware of that fact and only 20% were aware that the convictions had been reversed for a new trial. Even after being advised of Appellant's prior convictions of these murders, only 29% stated they thought he was guilty.
The Commonwealth presented the testimonies of the County Clerk and the editor of the local newspaper, both of whom testified that they believed Appellant could receive a fair trial in Laurel County. The County Clerk also testified that the county's registered voters had increased approximately one-third since the 1987 trial. After hearing all of this evidence, the trial judge overruled the motion, but stated he was willing to reconsider the issue following voir dire.
There is no statutory entitlement to a second change of venue. KRS 452.240; Taylor v. Commonwealth, Ky., 821 S.W.2d 72 (1990), cert. denied, 502 U.S. 1100, 112 S.Ct. 1185, 117 L.Ed.2d 428 (1992), overruled on other grounds, St. Clair v. Roark, 10 S.W.3d 482 (Ky. 1999). Furthermore:
[T]he mere fact that jurors may have heard, talked, or read about a case does not require a change of venue, absent a showing that there is a reasonable likelihood that the accounts or descriptions of the investigation and judicial proceedings have prejudiced the defendant.... Prejudice must be shown unless it may be clearly implied in a given case from the totality of the circumstances.
Montgomery v. Commonwealth, Ky., 819 S.W.2d 713, 716 (1991); Brewster v. Commonwealth, Ky., 568 S.W.2d 232, 235 (1978). "It is not the amount of publicity which determines that venue should be changed; it is whether public opinion is so aroused as to preclude a fair trial." Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384, 387 (1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986), habeas granted in part on other grounds, Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir.1990), cert. denied, 499 U.S. 970, 111 S.Ct. 1608, 113 L.Ed.2d 669 (1991). A trial judge's decision not to change venue "is given great weight because he is present in the county and presumed to know the situation." Nickell v. Commonwealth, Ky., 371 S.W.2d 849, 850 (1963). The fact that a previous trial generated publicity does not automatically require a change of venue for the retrial, particularly when, as here, a substantial passage of time has occurred between the trials. Patton v. Fount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). It is significant that (1) even though Appellant had been previously tried and convicted in the Laurel Circuit Court of the Morrises' murders, only 10% of Laurel County respondents to the "venue survey" initially were aware that Appellant was accused of the crimes; and (2) even after being informed of Appellant's previous conviction of the murders, only 29% opined that he was guilty. We find no error in the trial judge's denial of Appellant's initial motion for a change of venue.
Appellant renewed his motion to change venue on the morning of trial before the jury selection process began, but did not renew his motion at the conclusion of voir dire. After excusals for cause, thirty-five potential jurors were selected; and, after the exercise of peremptory strikes, fifteen jurors were seated to try the case. Since a presumptively impartial jury was seated to try Appellant's case, and since Appellant did not renew his motion for change of venue after the jury was selected, the issue becomes whether the trial judge erred in failing to sustain any of Appellant's motions to excuse prospective jurors for cause.
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