Hodge v. Commonwealth

• Decision Date: 29 October 2020
• Docket Number: 2019-SC-0137-T
• Citation: 610 S.W.3d 227
• Parties: Benny Lee HODGE, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

610 S.W.3d 227

Benny Lee HODGE, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2019-SC-0137-T

Supreme Court of Kentucky.

OCTOBER 29, 2020

COUNSEL FOR APPELLANT: Dennis James Burke, Assistant Public Advocate, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Daniel Jay Cameron, Attorney General of Kentucky, Emily Lucas, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE VANMETER

Under KRS ¹ 422.285, a person convicted of a capital offense may be entitled to DNA testing of certain evidence. In this case, we must decide whether the Laurel Circuit Court erred in denying Benny Lee Hodge's motion for DNA testing with respect to hair found at the residence of Bessie and Edwin Morris, for whose June 1985 murders, burglary and robbery, Hodge was convicted and sentenced to death. Based on the extensive record in this case, we hold that the trial court did not err and therefore affirm its Order denying Hodge's motion.

I. FACTUAL AND PROCEDURAL BACKGROUND.

On June 16, 1985, Hodge, along with Roger Epperson and Donald Bartley, participated in the offenses against the Morris's. Approximately two months later, on August 8, these three participated in similar offenses burglarizing and robbing Dr. Roscoe Acker and his twenty-three-year-old daughter, Tammy Acker, at the Acker residence in Letcher County. Tammy Acker was brutally murdered, being stabbed over ten times. Dr. Acker survived after being choked to unconsciousness and being left for dead. Almost $2,000,000 in cash, weapons and jewelry were taken by the men. Epperson v. Commonwealth , 809 S.W.2d 835 (Ky. 1990). At their June 1986 jury trial, Hodge and Epperson were convicted and both received the death penalty for these crimes. In all appeals and motions for post-conviction relief, the Letcher County convictions have been upheld by this Court and federal courts.²

Although the Morris murders occurred before the Acker murder, the Letcher County crimes were indicted first in August 1985, with the Jackson County offenses being indicted in July 1986. Following a change in venue from Jackson County, Hodge and Epperson were tried in Laurel Circuit Court initially in 1987; they were convicted and both received a death sentence. On direct appeal, we vacated the convictions on the Commonwealth's motion due to trial error and remanded for a new trial. Epperson v. Commonwealth , 88-SC-000712-MR (Ky. Jan. 11, 1991); see also Hodge v. Commonwealth , 17 S.W.3d 824, 834 (Ky. 2000) (stating convictions vacated on confession of error with respect to the failure of the trial court to conduct individual voir dire as to pre-trial publicity). Subsequently, Epperson and Hodge were tried separately. At these separate trials, both were again convicted, and both again received the death penalty.³ Hodge's conviction was upheld on direct appeal. Hodge , 17 S.W.3d 824. His RCr 11.42 motion for post-conviction relief was denied and that denial was upheld on appeal. Hodge v. Commonwealth , 116 S.W.3d 463 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth , 279 S.W.3d 151 (Ky. 2009). Hodge next unsuccessfully sought federal habeas corpus relief. Hodge v. Haeberlin , CIV A. 04-CV-185-KKC, 2006 WL 1895526 (E.D. Ky. 2006), aff'd, 579 F.3d 627 (6th Cir. 2009).

Hodge's current motion is brought under CR 60.02 and KRS 422.285(6)⁴ seeking DNA testing of hair that was found in the Morris home.⁵ Hodge's motion was filed in 2008, but was not ruled on at that time by the trial court because it held the matter in abeyance pending a similar request for DNA testing in Epperson's Warren Circuit Court case. The trial court decided to remove the case from abeyance in 2015.

II. STANDARD OF REVIEW.

On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). This standard of review applies to a CR 60.02 motion for DNA testing brought under KRS 422.825. Partin v. Commonwealth , 337 S.W.3d 639, 640 (Ky. App. 2010).

III. ANALYSIS.

Hodge argues that the trial court erred in denying his motion because seven hairs were found which did not match the known hair standards of the victims. His argument continues that if DNA testing were to establish that

one of the hairs collected ... from inside the home belongs to Donald Bartley, it will seriously undermine Bartley's credibility as a witness for the State. Given that there is no physical evidence linking Hodge to the crimes, and that Bartley was a critical prosecution witness, a reasonable probability exists that either the verdict or sentence would have been more favorable to Benny Hodge.

Hodge Brief on Appeal, 7.

A. Prior Opinions addressing Hodge's DNA Arguments.

Hodge has previously alleged DNA testing would benefit his cause. In his RCr 11.42 motion, one of his allegations of ineffective assistance of counsel was that defense counsel failed to request an expert to test hairs found at the crime scene, because those hairs did not match the victims and might have matched Bartley. We rejected that argument, noting the proof that Bartley was also at the crime scene that night, and referring to Sherry Hamilton's testimony that Hodge admitted to her that both Bartley and he entered the residence, robbed and shot the victim. We noted "[a]ny evidence that hairs of Bartley were inside the home would not demonstrate that Hodge was not also inside and helped to kill and rob the two victims and burglarize the residence." Hodge , 116 S.W.3d at 470. Later in the opinion we noted again the trial testimony that Hodge and two accomplices committed the crimes. Id. at 473. "As stated earlier, testimony that others were present inside the residence or assisted him in committing the crimes would not have influenced the jury to find him not guilty. It is possible that the complicity statute, KRS 502.020, would have supported his convictions in any event." Id.

Following our affirming the denial of Hodge's RCr 11.42 motion, Hodge filed a federal habeas corpus petition and included an allegation as to the failure of DNA testing. As recounted by the federal judge,

According to [Hodge], expert DNA testing could have shown that the hair fibers belonged to Donald Bartley, and then "[Hodge] would have been exonerated and either acquitted or, at least, avoided the death penalty." Because Petitioner Hodge was "denied the basic tools to present a defense" and because counsel gave ineffective assistance in obtaining this tool, he is allegedly entitled to a new trial.

2006 WL 1895526, at *77. The court rejected Hodge's allegation, stating "[a]gain [Hodge] has presented no factual or legal support for his claim. He has failed to show that the Kentucky Supreme Court's conclusions are contrary to or an unreasonable application of then-existing Supreme Court law." Id. at *78. As noted, the federal district court's decision was affirmed by the Sixth Circuit Court of Appeals. The Sixth Circuit addressed the DNA issue in that part of its opinion that it determined not to hold the case in abeyance. 579 F.3d at 636-38. The court noted that "no DNA or biological evidence was used against Hodge at trial, nor can the tests now being conducted exonerate him.... [T]he jury knew that no DNA evidence linked Hodge to the scene. Further, the results of the new DNA testing cannot exclude Hodge from the crime scene." Id. at 636.

B. KRS 422.285(6).

The foregoing demonstrates that Hodge's DNA arguments have been raised and rejected both by this Court and the federal courts. We are therefore tempted to reject his claims out-of-hand. But because of the sanction imposed, and because Hodge's motion involves a collateral attack on his conviction under Kentucky's post-conviction DNA statutes, our opinions recognize that some discussion of the crimes is necessary to frame his claim relating to DNA testing. Moore v. Commonwealth , 357 S.W.3d 470, 474 (Ky. 2011) ; see also Partin , 337 S.W.3d at 640-42 (discussing facts of crime and concluding requested DNA testing would not exonerate defendant).

In Hodge's direct appeal, we summarized the evidence, as follows:

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 semi-automatic pistol; and that at least two of the bullets were fired from the same weapon and the third could have

...