Hodge v. Com.

• Decision Date: 27 September 2001
• Docket Number: No. 1999-SC-0050-MR.,No. 1999-SC-0498-MR.,No. 1999-SC-0051-MR.,No. 1999-SC-0499-MR.,1999-SC-0050-MR.,1999-SC-0498-MR.,1999-SC-0051-MR.,1999-SC-0499-MR.
• Citation: 68 S.W.3d 338
• Parties: Benny Lee HODGE, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee, and Roger Dale Epperson, Appellant, v. Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

68 S.W.3d 338

Benny Lee HODGE, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee, and Roger Dale Epperson, Appellant, v. Commonwealth of Kentucky, Appellee.

No. 1999-SC-0050-MR.

No. 1999-SC-0498-MR.

No. 1999-SC-0051-MR.

No. 1999-SC-0499-MR.

Supreme Court of Kentucky.

September 27, 2001.

As Modified on Denial of Rehearing March 21, 2002.

John Palombi, Assistant Public Advocate, Department of Public Advocacy,

Frankfort, Elizabeth A. Shaw, Richmond, Counsel for Appellant Hodge.

A.B. Chandler III, Attorney General of Kentucky, Ian G. Sonego, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.

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

A.B. Chandler III, Attorney General of Kentucky, Connie Vance Malone, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.

JOHNSTONE, Justice.

Appellants, Roger Dale Epperson and Benny Lee Hodge, were convicted of robbery, burglary, attempted murder, and murder in the Letcher Circuit Court. Each received the death penalty. We affirmed their convictions and sentences on direct appeal to this Court. Epperson v. Commonwealth, Ky., 809 S.W.2d 835 (1990), cert. denied, Hodge v. Kentucky, 502 U.S. 1037, 112 S.Ct. 885, 116 L.Ed.2d 789 (1992); cert. denied, Epperson v. Kentucky, 502 U.S. 1065, 112 S.Ct. 955, 117 L.Ed.2d 122 (1992). Subsequently, both Epperson and Hodge filed motions to vacate the judgments pursuant to RCr 11.42. Both requested an evidentiary hearing on the allegations raised in their motions. The trial court denied the motions without holding an evidentiary hearing. We reverse the denial of an evidentiary hearing on certain issues and remand these cases with directions to hold an evidentiary hearing on those issues set out below.

Except where necessary, we will not attempt to wade through the extraordinary facts proven, alleged, or otherwise alluded to surrounding this case. Rather, our discussion is limited to whether Epperson's and Hodge's RCr 11.42 motions established a sufficient basis for granting relief or for holding an evidentiary hearing on the issues presented.

JURY TAMPERING

Both Epperson and Hodge made the following factual allegations in their RCr 11.42 motions:

1. Jurors in this case were supplied with newspapers, access to television, visits, and alcoholic beverages during the time that they were sequestered.

2. The Commonwealth's Attorney maintained at least daily ex parte contact with the jury, either directly or through other parties.

3. Before the evidence was completed and the case was submitted to the jury for deliberation, the jury had already chosen a foreman, had deliberated the case and, further, had already decided that its verdict would be guilty and that it would recommend the death penalty for both defendants.

The trial court summarily disposed of the jury tampering issue stating:

None of the allegations as to jury misconduct are supported by the record of the trial, and there is no specific factual support asserted for them. The Movants do not indicate what evidence they rely on to show that these alleged incidents happened or what witnesses they intend to call. Because of this, the Court finds no prima facie showing of constitutional error is made . . . .

Findings of Fact and Conclusions of Law at 5, 85-CR-0070 (Letcher Circuit Court entered Dec. 2, 1998).

Instead of examining whether the record refuted the allegations raised, the trial court focused on whether the record supported the allegations, which is the incorrect test when addressing the question of whether an evidentiary hearing to resolve issues raised in an RCr 11.42 is required.

The initial question to be asked is whether the alleged error is such that the movant is entitled to relief under the rule. "In a petition filed under RCr 11.42 the movant must show that there has been a violation of a constitutional right, a lack of jurisdiction, or such a violation of a statute as to make the judgment void and therefore subject to collateral attack." Lay v. Commonwealth, Ky., 506 S.W.2d 507, 508 (1974). If that answer is yes, then an evidentiary hearing on a defendant's RCr 11.42 motion on that issue is only required when the motion raises "an issue of fact that cannot be determined on the face of the record." Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743-44 (1993), judgment affirmed, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). In the case at bar, the allegations of juror tampering rise to the level of a potential violation of a constitutional right.

The right to an unbiased decision by an impartial jury in a criminal trial is a basic principle of due process. Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 134 (1988). Jury tampering may deprive a defendant of his right to an impartial jury so as to violate the right to due process. The U.S. Supreme Court held that jury tampering in a criminal trial is presumptively prejudicial. Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654, 655 (1954).

In Remmer, an unnamed party communicated with a juror—who later became the foreman—and suggested to the juror that he could profit by bringing in a verdict favorable to the defendant. Id. at 228, 74 S.Ct. at 450, 98 L.Ed. at 655. The juror related the incident to the judge who advised the prosecutor, but not defense counsel. Id., 74 S.Ct. at 450-51, 98 L.Ed. at 655. Defense counsel first learned of the contact after trial. Id. Subsequently, the defendant moved for a new trial and requested a hearing to determine the facts of the contact. Id., 74 S.Ct. at 451, 98 L.Ed. at 655. The district court denied the motion and the court of appeals affirmed. The Remmer Court reversed and remanded for the district court to hold a hearing to "determine the circumstances, the impact upon the juror, and whether or not it was prejudicial. . . ." Id. at 230, 74 S.Ct. at 451-52, 98 L.Ed. at 656. The jury tampering alleged in the present case is much graver than that alleged in Remmer.

Next, we conclude that the jury tampering allegations are pled with sufficient specificity. See Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 909 (1998), cert. denied, 516 U.S. 854, 116 S.Ct. 154, 133 L.Ed.2d 98 (1995) ("Conclus[ory] allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition."). Epperson and Hodge do not simply raise a blanket allegation of jury tampering. Rather, they each allege specific incidents of tampering, e.g., daily ex parte contact by the Commonwealth's Attorney, the supplying of newspapers to the jury, and providing the jury access to television, etc. The trial judge discounted these allegations because Epperson and Hodge did not supply the underlying factual bases for these charges, i.e., the facts they intended to rely on to prove the allegation.

FAILURE TO INTRODUCE MITIGATING EVIDENCE

During the penalty phase, neither defense counsel presented any witnesses to testify on either Epperson's or Hodge's behalf. Nor did defense counsel for either defendant introduce any other mitigating evidence. The only evidence presented on Epperson's behalf in the penalty phase was a stipulation that: (1) he had no significant history of prior criminal activity; (2) he voluntarily returned to Kentucky to face the charges against him; and (3) he had a wife and child. Likewise, the only evidence presented on Hodge's behalf during the penalty phase was a stipulation that: (1) he had a wife and three children; (2) he had a public-job work record; and (3) he lived and resided in Tennessee.

In his RCr 11.42, Hodge argues his defense counsel was ineffective in the penalty phase for "failing to investigate, discover, and/or present proof which was readily available at the time of trial and which would have been substantial evidence to refute the prosecution's argument that the only way to punish [Hodge] was to kill him." In support of this argument, he argues that his counsel conceded that he was unprepared to proceed with the penalty phase.

Likewise, Epperson argues in his RCr 11.42 motion that his defense counsel was

ineffective for failing to investigate, discover and present evidence readily available at the time of trial which would have cast doubt on . . . Epperson's ability to plan or even intend the crimes he was accused of, cast doubt on whether he was not acting under extreme emotional disturbance, and [would have] provided powerful mitigation explaining who. . . Epperson was, how he got to be that way, and why he may have ended up in the Acker home with Bartley and Hodge.

Both Epperson and Hodge support their arguments with a list of mitigating evidence that they claim that their defense counsel should have discovered and put before the jury.

The trial court concluded that the failure to introduce mitigating evidence was not ineffective assistance of counsel:

The record shows that the jury was made aware of mitigating circumstances for both Movants by stipulated facts read to the jury by the judge. . . . In addition, both defense counsel made impassioned and moving pleas in closing argument for their clients, asking that the death penalty not be imposed. Trial counsel has no absolute duty to present mitigating character evidence at all, Bolender v. Singletary, 16 F.3d 1547 (11th Cir.1994), nor is counsel required to present all available evidence in order to render effective assistance. Waters v. Thomas, 46 F.3d 1506 (11th Cir.1995). Also, had counsel introduced additional evidence, the prosecution might have introduced evidence in rebuttal, such as victim impact testimony, which would have made the jury more likely to impose the death penalty. All in all, the court does not find counsel's...