IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: AUGUST 16, 2018 NOT TO BE PUBLISHED
2017-SC-000044-MR , b<-
ROGER DALE EPPERSON APPELLANT
ON APPEAL FROM WARREN CIRCUIT COURT V. HONORABLE STEVE ALAN WILSON, JUDGE NO. 97-CR-000016
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In 2003, a Warren County juiy convicted Roger Dale Epperson of two
counts of complicity to commit murder, first-degree robbery, and first-degree
burglary. The jury sentenced him to death. Following an unsuccessful direct
appeal, i Epperson moved to set aside his convictions and sentence pursuant to
RCr2 11.42, which the trial court denied after conducting evidentiary hearings.
Epperson now appeals. Upon thorough review of the record and careful
consideration of his claims, we affirm.
1 Epperson v. Commonwealth, 197 S.W.3d 46 (Ky. 2006). 2 Kentucky Rules of Criminal Procedure. I. BACKGROUND.
Epperson was first tried in 1987 for the murder, robbery and burglary of
the victims in this case, both of whom were found dead in their home on June
17, 1985. One victim had two gunshot wounds in the back. The other had two
gunshot wounds to the head and was also gagged. In that first trial, a jury
convicted Epperson of robbery, burglary, and murder and sentenced him to
death. However, those convictions were ultimately set aside by this Court on
appeal because the trial court did not conduct individual voir dire on the issue
of pretrial publicity. On retrial, a jury convicted Epperson of complicity to
commit murder, robbery and burglary and sentenced him to death. On direct
appeal, this Court affirmed.
Epperson then filed the underlying RCr 11.42 motion, alleging numerous
violations of his constitutional right to effective assistance of counsel.
Evidentiary hearings began in 2010 and concluded in 2014. The trial court
ultimately determined that all claims of error were unfounded and denied his
motion for relief. Epperson now appeals as a matter of right.
IL STANDARD OF REVIEW.
As the movant, Epperson bears the burden of establishing ineffective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984). To be ineffective, performance of counsel
must fall below the objective standard of reasonableness and be so prejudicial
as to deprive a defendant of a fair trial and a reasonable result. Id. This
analysis involves mixed questions of law and fact. While we will not disturb the trial court's factual findings if they are supported by substantial evidence, we
review its conclusions of law de novo. Brown u. Commonwealth, 253 S.W.3d
490, 500 (Ky. 2008). “When a defendant challenges a death sentence ..., the
question is whether there is a reasonable probability that, absent the errors,
the sentencer—including an appellate court, to the extent it independently
reweighs the evidence—would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at
695, 104 S.Ct. at 2069. A reasonable probability is one that is “sufficient to
undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.
III. ANALYSIS.
A. Juror Issues.
Epperson argued that trial counsel was ineffective for failing to ask more
probing questions of the jurors during voir dire regarding whether they could
consider mitigating evidence. He claimed that his counsel’s “boiler plate” voir
dire, in which counsel asked jurors whether they could consider mitigating
evidence, was insufficient to elicit deficiencies or juror bias that would have
allowed jurors to be struck for cause. During the RCr 11.42 evidentiary
hearing, Epperson attempted to introduce evidence, in the form of post-verdict
affidavits, from jurors who sat on his jury panel, which he argued showed that
they answered voir dire questions incompetently or untruthfully, thus
masking their inability to meaningfully consider the full range of penalties
and making them unfit to serve as jurors. As an initial matter, post-verdict juror affidavits obtained ex parte
generally do not support any valid basis for an RCr 11.42 motion because
such evidence is generally incompetent under rules prohibiting jurors from
being examined to establish grounds for a new trial. See RCr 10.04; Haight v.
Commonwealth, 41 S.W.3d 436, 447 (Ky. 2001), overruled on other grounds by
Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009); but see Brown v.
Commonwealth, 174 S.W.3d 421 (Ky. 2005) (considering affidavit of juror in
attempting to ascertain whether juror failed to answer honestly a material
question on voir dire); Bowling v. Commonwealth, 168 S.W.3d 2 (Ky. 2004)
(considering affidavit of juror in attempting to ascertain whether juror failed to
answer honestly a material question on voir dire); Taylor v. Commonwealth,
175 S.W.3d 68 (Ky. 2005) (“[A] defendant is free to establish that a juror did
not truthfully answer on voir dire....Taylor is correct that he may challenge
the juror’s answers at voir dire with her testimony given during the post
conviction hearing.”); Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017) (juror
affidavit used to show racial animus during jury deliberations). To prove juror
mendacity and gain a new trial, “a party must demonstrate that a juror failed
to answer honestly a material question on voir dire, and then further show
that a correct response would have provided a valid basis for a challenge for
cause.” Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003) (internal
quotations and citation omitted).
The trial court rejected Epperson’s claim, noting that voir dire is an
inherently strategic part of trial, if not the most strategic part. As a matter of strategy, the court questioned what could have possibly been achieved by trial
counsel questioning the jurors about specific mitigating evidence that had not
yet been presented; indeed, the strategy of making excuses for murder at the
outset of trial is questionable. Moreover, without any evidence having been
presented yet, and no clue as to each party’s theory of the case, a reasonable
juror might question the relevance of such specific questions concerning
mitigating evidence. As the trial court observed, the questions an attorney
chooses not to ask during voir dire are just as important as the questions he
does ask. During the evidentiary hearing, Epperson’s lead trial counsel was
not asked about his voir dire strategy. Second chair counsel could recall very
few specifics from the trial but testified generally that adequate voir dire was
necessary and appropriate and that a juror’s ability to consider mitigating
evidence would be important.
During the evidentiary hearing, three jurors testified. Specific questions
were posed to them regarding what evidence they would have considered in
mitigation. They indicated that evidence of head injuries, child abuse, good
behavior in prison and military service would not have affected their decision
to impose the death penalty in Epperson’s case, but all stated that they would
have considered it while deliberating. The jurors further testified that they
followed the instructions provided to them by the court and considered all
evidence presented to them. Each stated they were able to consider the full
range of possible penalties and had answered all voir dire questions honestly and to the best of their ability. Each avowed that the penalty imposed would
depend on the specific facts of the case before them.
With respect to their affidavits, the jurors testified that Epperson’s post
conviction counsel had appeared on their doorsteps unannounced, years after
the trial, asking them questions about their thoughts on mitigation, and
executing an affidavit which the jurors signed. With respect to this approach
taken by post-conviction counsel, we take the liberty of quoting the trial
court’s findings on this issue, as we could not have said it any better:
For years, Epperson’s post-conviction counsel has called these jurors, shown up at their house to conduct interviews, and subpoenaed them into this court for further proceedings. Counsel has done this for the sole purpose of attacking the effectiveness of Epperson’s trial attorneys, not to allege wrongdoing or misconduct by the jurors themselves. This court can state, without hesitancy, the rationale of the Maras [v. Commonwealth, 470 S.W.Sd 332 (Ky. 2015)] court is sound. This court believes these jurors did say, and would have said, whatever needed to be said just for Epperson’s post-conviction attorneys and investigators to stop questioning them. One juror expressed his dissatisfaction with the court system as a whole, stated he lacked confidence that the difficult decision he faced will be honored, and swore he would never participate on another jury. The constant disruption of fellow citizens’ lives, who are ordered into court to perform their civic duty for a mere $12.50 per day, serves only to poison the confidence our society has in its participation in criminal justice matters. This court does respect the decision this jury rendered and understands that asking someone to consider taking human life is a decision carefully measured - by most. It was proper to try those who extrajudicially sentenced and executed [the victims]; it was improper to try the jurors who judicially sentenced Epperson to a similar fate.
The trial court found that none of the post-verdict juror affidavits should
have been admitted and declined to consider them. In so ruling, the court
noted that “[a] juror cannot be examined to establish ground for a new trial. except to establish that the verdict was made by lot.” RCr 10.04. The trial
court relied on this Court’s recent decision in Maras, wherein we clarified that
in limited circumstances, the rule set forth in RCr 10.04 must yield to
constitutional demands. However, those limited circumstances “can be
summed up rather simply; juror testimony is permitted when it ‘concern[s]
any overt acts of misconduct by which extraneous and potentially prejudicial
information is presented to the juryj.]”’ Maras, 470 S.W.3d at 335 (quoting
Commonwealth v. Abnee, 375 S.W.3d 49, 54 (Ky. 2012)).
Here, Epperson did not allege that “any overt acts of misconduct by
which extraneous and potentially prejudicial information” occurred with this
jury. Epperson has not demonstrated that any of these three jurors failed to
answer honestly a material question posed during voir dire, thus we need not
address whether a correct answer would have served as a basis for a
challenge for cause. As we stated in Maras, “[wjithout more, e.g., indication of
overt influence, a facially valid jury verdict will not be upset based on post
trial juror statements.” 470 S.W.3d at 337. Epperson has further failed to
present any evidence to overcome the presumption that trial counsel’s
approach to voir dire was a result of trial strategy. We agree with the trial
court that Epperson’s claimed errors with respect to voir dire and juror
misconduct are wholly unsupported. B. Guilt Phase Issues.
Epperson asserted that trial counsel was ineffective during the guilt
phase of his trial by failing to investigate and present evidence of alternative
suspects, by presenting inconsistent defenses, and by failing to impeach co-
defendant Donald Bartley. We disagree.
i. Alternative Suspects.
Epperson argued that trial counsel was ineffective for failing to
investigate whom he termed “alternative suspects.” In support, he pointed to
the police reports in this investigation which referred to other persons who
were investigated for these crimes but ultimately not charged. This police
investigation, which was ongoing for a year before Epperson and his co
defendants were arrested, documented certain individuals’ claims that people
other than Epperson had committed the crimes. For instance, one police
report documented a statement made by a confidential informant that certain
individuals (other than Epperson) would regularly come to his house and ask
about developments in this case. Notably, that police report also expressed
concern about the reliability of this information. Another police report
documented that an individual told detectives that two young boys had been
bragging about having committed the murders.
At trial, the jury was informed that this case had been under
investigation for more than a year before Epperson and his co-defendants were
arrested. The jury was also advised that Epperson’s arrest was made only after
8 co-defendant Donald Bartley confessed to the murders, implicating Epperson
and defendant Hodge. No “alternative suspects” testified in any proceeding.
Epperson maintained that trial counsel’s failure to investigate
“alternative suspects” undermined the innocence defense that counsel
presented. At the evidentiary hearing, Epperson’s lead counsel was not asked
about any investigation of alternative suspects. Second chair counsel was
questioned and testified that he recalled reviewing police reports involving
other suspects but did not recall conducting an independent investigation into
other suspects. He conceded that any other alternatives to Epperson’s
involvement would have been important.
This Court has held that the failure to investigate a defense and present
crucial witnesses to the defense may constitute ineffective assistance of
counsel. Commonwealth v. Bussell, 226 S.W.3d 96, 106 (Ky. 2007). The
movant must show: (1) a reasonable investigation would have uncovered the
defense; (2) the failure to present a defense was not a tactical decision by trial
counsel; and (3) there is a reasonable probability that, but for counsel's
failures, the result would have been different. Id. “If the decision was tactical,
it is given a strong presumption of correctness, and the inquiry is generally at
an end.” Id. (internal quotations omitted). “On review, as a court far removed
from the passion and grit of the courtroom, we must be especially careful not to
second-guess or condemn in hindsight the decision of defense counsel. A
defense attorney must enjoy great discretion in trying a case, especially regarding trial strategy and tactics.” Harper v. Commonwealth, 978 S.W.2d
311, 317 (Ky. 1998).
Here, the information documented in the police reports regarding
“alternative suspects” was insufficient to warrant arresting any of those
individuals during the year-long investigation of these crimes. Epperson has
not shown that these individuals would have testified that he was not guilty, or
otherwise would have corroborated his defense. The trial court held that given
the limited potential exculpatory value of these individuals as witnesses, the
decision of trial counsel not to pursue an independent investigation into these
leads was not objectively unreasonable. Further, even if the failure to
investigate these alleged suspects was objectively unreasonable, the trial court
was unconvinced that a reasonable probability exists that the outcome of
Epperson’s trial would have been different, especially given that the evidence
against these individuals was not strong enough to merit any arrests. We
agree with the trial court that this claim of error does not merit RCr 11.42
relief.
ii. Inconsistent Defense.
Epperson asserted that trial counsel was ineffective for presenting two
mutually exclusive defenses, thus destroying the credibility of either. Epperson
was charged with both murder and complicity to commit murder, as well as
robbery and burglary. He argued that trial counsel’s position that he did not
know the victims, and concession that Epperson might have been the get-away
driver because he did not want to be recognized by the victims, was mutually
10 exclusive and prevented the jury from returning a not guilty verdict on the
murder charges. However, as the trial court noted, suggesting that Epperson
did not want to be recognized does not concede that he knew the victims. He
could have been complicit in the robbery and burglary and feared being seen
and described by the victims later. That would indicate that Epperson believed
the victims would survive, and perhaps the jury could have been persuaded I
that murder was never part of his plan.
Further, as the trial court noted, the Commonwealth presented
substantial evidence that robbery and burglary were indeed Epperson’s main
objectives. Thus, Epperson’s defense was not objectively unreasonable or
inconsistent: deny all involvement, but if involved, deny involvement in the
murders. In fact, as the trial court pointed out, this defense strategy likely
built credibility with the jury and succeeded to some measure. Epperson was
indicted for, among other things, two counts of murder. The jury disregarded
the Commonwealth’s theory of the case and found him guilty of complicity to
commit murder, effectively finding that he was not the principal actor. In
terms of trial strategy, the trial court observed:
Admitting involvement in the robbery and burglary does not concede an agreement to commit murder, and trial counsel’s choice to build some credibility with the jurors in order to spare Epperson’s life at a later point could have been an effective strategic decision. However, this trial strategy must also be considered in light of the fact that Epperson had already been incarcerated for thirteen years at the time of his second trial in 2003. Thus, if the jury convicted him only on the robbery and burglary charges, the minimum sentence could have been two 20- year sentences served concurrently. Epperson, being eligible for parole after serving 85% of the sentence, could have potentially served out his sentence after an additional four years. It was not 11 unreasonable to strategically concede involvement in the robbery and burglary once the Commonwealth presented its case in chief.
Considering the foregoing, we believe the trial court properly concluded
that Epperson had failed to meet his burden of proving that trial counsel
presented an inadequate defense to the charges to merit RCr 11.42 relief.
Hi. Impeachment of Co-defendant Bartley.
Epperson asserted that trial counsel was ineffective for failing to impeach
co-defendant Bartley, who implicated him in the murders. Epperson argued
that trial counsel should have followed up on Bartley’s alleged false statement
regarding the sentence he received in return for his testimony at Epperson’s
trial, and should have confronted Bartley with respect to his inconsistent
confessions, including one in which Bartley allegedly stated that he had framed
Epperson to save his own life. These general allegations are set forth in only
three sentences of Epperson’s appellate brief, and he failed to elaborate or
identify any resulting prejudice. Accordingly, we will only address these claims
to the extent he raised them in this Court. We decline to address any other
claims not expressly raised before this Court.
Epperson alleged that Bartley falsely told the jury that he had received a
sentence of life with parole eligibility in 25 years in exchange for his testimony
in this case, when he received a 45-year sentence. The record shows that
Bartley did receive a 45-year sentence for his involvement. However, as the
trial court noted, the relevant take away for the jury was that Bartley
essentially agreed to spend the rest of his life in prison in exchange for his
testimony in Epperson’s case, and that point was made clear to the jury. The 12 court concluded that counsel’s decision not to obtain the judgment imposing
sentence upon Bartley to impeach him with respect to this distinction was not
objectively unreasonable. And even if it was, no reasonable probability exists
that the difference between a 25-year sentence and 45-year sentence for
Bartley would have affected the jury’s verdict on Epperson’s guilt. We agree.
C. DNA Issues.
Ed Taylor, a serologist at the Kentucky State Crime Lab, testified at
Epperson’s first trial that no physical evidence linked Epperson to the crime
scene. Nevertheless, the juiy still returned a verdict of guilty and a sentence of
death. Thereafter, but prior to Epperson’s retrial, at Epperson’s request, his
DNA was tested along with 2 hairs retrieved from the victims’ bodies. Taylor
analyzed the test results, which indicated that one hair was not testable, and
the other hair that was found on one of the victim’s nightgown did not match
Epperson or his co-defendants. Evidently, Taylor did not forward the test
results to Epperson or the Commonwealth’s Attorney. At Epperson’s retrial,
Taylor’s testimony from his first trial was read into evidence since Taylor was
unavailable to testify at retrial. Taylor’s testimony from the first trial made no
mention of the DNA test results since the testing had not yet been performed at
that time.
In 2008, Epperson’s post-conviction counsel discovered in the record
Epperson’s motion for DNA testing and the court order authorizing it. At that
time, Epperson filed a motion for a new trial and amended his RCr 11.42
motion to add claims relating to DNA testing. Epperson argued that Taylor, as
13 a state employee, had knowledge of the test results before Epperson’s retrial
and thus the Commonwealth, as a government agency, also was charged with
knowledge and failed to provide the results to him, in violation of Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Epperson
maintained that because Taylor’s testimony from the first trial was read into
the record on retrial, without alteration to include the DNA test results, the
Commonwealth knowingly submitted materially false information to the jury.
Notably, Epperson did not argue that anyone in the Commonwealth’s
Attorney’s office knew of the DNA test results prior to 2008; instead, he
asserted that because the record contained his motion for DNA testing and the
court order authorizing it, the Commonwealth had a duty to seek the results of
that testing. Epperson further alleged that his own trial counsel was ineffective
for failing to obtain the results and failing to present those results to the jury.
The burden is upon the party collaterally attacking a conviction to prove
the elements of a Brady violation. Coe v. Bell, 161 F.3d 320, 344 (6th Cir.
1998).
Brady obviously does not apply to information that is not wholly within the control of the prosecution. There is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the information is available from another source, because in such cases there is really nothing for the government to disclose.
Id. (internal quotations and citations omitted). In other words, “Brady only
applies to information which had been known to the prosecution but unknown
to the defense.” Commonwealth v. Bussell, 226 S.W.3d 96, 100 (Ky. 2007)
14 (internal quotations and footnote omitted). “Brady does not give a defendant a
second chance after trial once he becomes dissatisfied with the outcome if he
had a chance at trial to address the evidence complained of.” Commonwealth
V. Parrish, 471 S.W.3d 694, 698 (Ky. 2015) (internal quotations and citation
omitted).
The trial court bifurcated the evidentiary hearing on Epperson’s DNA-
related claims from the hearing on his remaining RCr 11.42 claims by
agreement of the parties, all of whom believed that if Epperson prevailed on the
DNA claims, then a new trial would be the appropriate result. At the
evidentiary hearing, Epperson’s lead trial counsel testified that he did not recall
receiving any DNA test results during his representation of Epperson and did
not recall if any DNA test results were in the record when he took over the case
in 2000. He further testified that he and co-counsel decided not to have
Epperson’s DNA tested to see if it matched the victim’s hair because the
Commonwealth did not have any scientific evidence linking Epperson to the
crime scene; thus, counsel did not see the need to rebut the absence of any
such evidence. Counsel stated that had he known of the DNA test results, he
would have attempted to introduce those results into evidence, but that the
existence of the DNA test results did not alter his argument to the jury that no
scientific evidence linked Epperson to the crime scene. He stated that the
existence of the test results would not have altered the trial strategy since the
results did not exonerate Epperson or show he was not at the scene of the
crime; they simply showed the hair on the victim was not his.
15 Following the evidentiary hearing, the trial court entered an order
denying Epperson’s motion for a new trial, finding that the DNA testing was
performed at Epperson’s request, and no one employed at the Commonwealth’s
Attorney’s Office received the test results, or even knew about them until 2008.
Thus, the court found no Brady violation occurred since the Commonwealth
did not even have the evidence in its possession to suppress. We agree. The
Commonwealth was under no obligation to obtain results of testing performed
at the behest of defense counsel simply because a state agency facilitated the
transfer of samples. To suggest otherwise would place a burden on the
Commonwealth to keep track of defense counsel’s motions. Epperson made
the DNA request himself, thus had the responsibility to obtain the test results
and provide them to the Commonwealth through reciprocal discovery.
With respect to Epperson’s claim that the Commonwealth presented false
testimony through Taylor, who testified at Epperson’s first trial that no
physical evidence linked Epperson to the crime scene, the trial court held that
Taylor’s testimony was still accurate and not perjured, and the existence of the
DNA test results did not significantly alter it, despite Epperson’s argument that
excluding someone as a source of a hair was more exonerating than simply not
finding any evidence of a person at a crime scene. Even assuming Taylor’s
testimony should have been supplemented to include the test results, the court
found no reasonable probability exists that the outcome of Epperson’s retrial
would have been any different as a result. We agree.
16 Lastly, the trial court noted that Epperson’s motion requesting DNA
testing, and the court order authorizing it, had been in the record and readily
available to Epperson’s counsel since 1998. Accordingly, the court concluded
that Epperson’s trial counsel had been deficient for failing to thoroughly review
the record. That said, the court held that no reasonable probability exists that
the outcome of his trial would have been different had the test results been
presented to the jury. Epperson speculated that the jury’s verdict or sentence
would have been different, but the jury was not persuaded that Epperson
committed the murders himself; thus, they convicted him of complicity to
commit murder. The fact that a hair taken from the body of a victim did not
match Epperson’s hair is entirely consistent with this verdict and would not
have necessarily excluded Epperson from the crime scene. Accordingly, even
though his trial counsel failed to uncover or present the DNA test results, we
agree with the trial court that no prejudice resulted that would merit post
conviction relief.
D. Sentencing Issues.
Epperson alleged that trial counsel was ineffective for failing to
investigate his past to uncover mitigating evidence and present that evidence
during the sentencing phase of trial. Specifically, he averred that the jury
should have been advised that he had been born “blue,” had grown up
impoverished, had been subjected to physical and emotional abuse by his
father, had difficulties at school, witnessed friends die in violent
circumstances, and suffered some form of brain damage caused by head
17 injuries. He claimed that had trial counsel presented this mitigating evidence
to the jury, it might have imposed a sentence other than death; thus, counsel’s
decision not to present this evidence was inherently unreasonable.
Trial counsel has a clear “duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations unnecessary.”
Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. However, “Strickland does not
require counsel to investigate every conceivable line of mitigating evidence no
matter how unlikely the effort would be to assist the defendant at sentencing.
Nor does Strickland require defense counsel to present mitigating evidence at
sentencing in every case.” Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct.
2527, 2541, 156 L.Ed.2d 471 (2003). The question before the Wiggins court
was “not whether counsel should have presented a mitigation case. Rather, we
focus on whether the investigation supporting counsel’s decision not to
introduce evidence of Wiggins’ background was itself reasonable ” Id. at 523,
123 S.Ct. at 2536. “In assessing the reasonableness of an attorney’s
investigation, however, a court must consider not only the quantum of evidence
already known to counsel, but also whether the known evidence would lead a
reasonable attorney to investigate further.” Id. at 527, 123 S.Ct. at 2538.
Here, most of the mitigating evidence was presented by corrections
officers who testified that Epperson was a model prisoner, implying that he was
not a current danger to anyone. Epperson’s mother, father, and sister also
testified during sentencing, but none of them addressed any abuse during
Epperson’s childhood. For summary purposes, they testified that Epperson
18 grew up in a normal childhood home. Trial counsel’s closing argument during
sentencing was essentially a collateral attack on the death penalty as an
institution; counsel did not attempt to make excuses for Epperson’s actions.
Epperson argued that trial counsel should have presented certain
mitigation evidence, such as the Dr. Peter Young report and the mitigation
report generated by Anna Chris Brown. Prior to Epperson’s retrial, Dr. Young
generated a report noting that Epperson may have suffered from brain injuries
that occurred during his childhood. Also prior to retrial, Epperson’s former
counsel retained mitigation specialist Anna Chris Brown, who conducted an
interview with Epperson and his mother, and noted that Epperson’s father
whipped him with a mining belt; Epperson had an impoverished childhood;
and he witnessed a close friend die after being shot by a constable deputy.
During that interview, Epperson also stated that his father threw a brick at the
back of his head, which knocked him to the ground but did not knock him
unconscious; he reported to the treating physician that he had fallen while
drunk. Epperson also claimed that his father had hit him in the head with a
claw hammer. In that same interview, Epperson discussed his fortune in
having “never been hurt” and “never even had a black eye.” Both Dr. Young’s
and Anna Chris Brown’s reports were in Epperson’s case file and available to
trial counsel. Epperson’s position is that these reports should have generated
red flags and caused trial counsel to investigate further.
At the evidentiary hearing, Epperson’s lead trial counsel was unable to
recall whether he contacted Anna Chris Brown, but stated that he did not
19 retain a mitigation specialist for retrial. He was unable to recall several files
that were presented to him, including memorandums regarding Epperson’s
family life, but he stated that he did interview Epperson’s family. He was
unable to recall whether he learned of Epperson’s alleged child abuse prior to
trial, or after the fact in subsequent interviews with post-conviction counsel.
He did recall learning that Epperson had witnessed close friends dying.
Counsel testified that it would be good practice to investigate allegations of
abuse and trauma if there was a valid reason to do so. Lead counsel stated
that the only additional medical evidence he pursued with regards to
Epperson’s alleged brain injuries, beyond the reports in the file, were hospital
records that reflected an automobile accident. He did not recall
communicating with Dr. Young about his report with respect to Epperson’s
potential brain injuries but remembered reviewing psychological reports that
revealed nothing of mitigating value, and counsel consciously chose not to
produce those reports at sentencing. Lead counsel further testified that he
believed introducing evidence of head injuries, emotional abuse and trauma
during the sentencing phase of a capital murder trial must be evaluated on a
case by case basis. Co-counsel testified at the evidentiary hearing that he had
worked on capital murder cases before Epperson’s, but customarily did not
perform sentencing work. Based on his interactions with Epperson, he did not
suspect Epperson suffered from any brain damage.
The trial court found that lead counsel had reviewed the case file
containing evidence of mitigating value but did not interview the authors of the
20 reports contained in the case file. The court further found that co-counsel
communicated with Epperson’s family but performed no other investigation
into mitigating evidence. The court concluded that neither counsel
communicated with any mitigation specialist during their representation of
Epperson, but they did have access to documents generated by a previously-
retained mitigation specialist.
Based on the testimony and the documents presented, the court found
that a reasonable probability exists that a juror could have concluded that
Epperson suffered traumatic brain injuries, as well as physical and emotional
abuse as a child, and was deprived of oxygen at birth. Still, the court found
Epperson’s allegations of child abuse to be wanting, considering the
inconsistent statements he made during his mitigation interview that he had
“never been hurt,” and his mother’s trial testimony that he had lived in a
normal childhood home. The court also questioned just how much mitigating
weight a jury would have afforded Dr. Young’s report had it been presented; his
report also concluded that Epperson exhibited antisocial behaviors, though
stopped short of diagnosing Epperson as antisocial. The court noted that the
clinical attributes of antisocial behavior as defined in Dr. Young’s report
include a person who is “narcissistic, fearless, pugnacious, daring, blunt,
aggressive, assertive, irresponsible, impulsive, ruthless, victimizing,
intimidating, dominating, self-reliant, revengeful, vindictive, dissatisfied, and
resentful.” The court observed that these descriptions aligned with the
Commonwealth’s theory of the case; that is, Epperson was the “straw boss”
21 and intelligent enough to plan murder. They further supported trial counsel’s
implicit conclusion that presentation of this report was not in Epperson’s best
interest.
Lastly, the trial court questioned how evidence in the form of death
certificates of the friends who Epperson witnessed die would have shed any
light on lead counsel’s testimony that he was aware that Epperson had
witnessed friends’ deaths. Moreover, the court expressed doubt about how
Epperson’s witnessing death would lead a jury to show mercy for premeditated
murder. Many people have witnessed loved ones die but did not engage in
robbery, burglary, and murder of others as a result.
The trial court distinguished this case from Wiggins, in that Epperson’s
trial counsel had the detailed reports in the case file; in Wiggins, trial counsel
was found to be ineffective since they could have obtained mitigating reports
had they investigated further. 539 U.S. at 524-526, 123 S.Ct. at 2537-38.
The trial court noted that no meaningful evidence had been presented during
Epperson’s evidentiary hearing that counsel should have discovered, but failed
to discover, evidence due to poor investigatory work. Rather, most of the
reports Epperson cited were already in the file, which led the trial court to
conclude that because the evidence in the file was so detailed, counsel’s
decision not to present this mitigation evidence was a strategic one.
The court further held that even if it was to find that trial counsel was
deficient for failing to investigate and present certain mitigating evidence, no
reasonable probability exists that Epperson’s sentence would have been any
22 different. The court found that the cold-blooded execution of the victims was
beyond mitigating, and no juror would have granted him sympathy. To wit,
Epperson has been twice convicted and sentenced to death for these crimes: 24
individuals have sat in judgment of him, and all found him guilty of robbing
the victims. In his first trial, 12 jurors concluded that he also murdered the
victims. The 12 jurors who sat on his second trial found him guilty of
complicity to murder the victims. All 24 jurors sentenced him to death.
We find the trial court’s findings of fact and conclusions of law sound.
The record reveals substantial mitigating evidence that Epperson’s trial counsel
presented to the jury during the sentencing phase. More importantly, the
mitigating evidence that Epperson alleges his trial attorney should have
investigated further and presented to the jury seemingly conflicts with other
mitigating evidence that trial counsel did present to the jury, which could have
undermined all mitigating evidence presented.
For example, as it relates to Epperson’s mental health, Epperson alleges
that he suffers from brain damage; however, the same doctor WHO testified as
to this brain damage also testified that Epperson has an average to above-
average IQ. Additionally, the testimony of Epperson’s family members as to,
what they call, his “normal” and “good” childhood seriously undermines the
almost completely different picture that Epperson painted of his purportedly
horrible childhood. Differing testimony, like this, would have seriously
undermined Epperson’s credibility and may have caused the jury to think less
of the totality of the mitigating evidence presented before it.
23 Additionally, we find the Eleventh Circuit’s discussion of this issue
particularly relevant here:
[W]e have never held that counsel must present all available mitigating circumstance evidence in general, or all mental illness mitigating circumstance evidence in particular, in order to render effective assistance of counsel. To the contrary, the Supreme Court and this Court in a number of cases have held counsel’s performance to be constitutionally sufficient when no mitigating circumstance evidence at all was introduced, even though such evidence, including some relating to the defendant’s mental illness was available. In an even larger number of cases we have upheld the sufficiency of counsel’s performance in circumstances...Where counsel presented evidence in mitigation but not all available evidence, and where some of the omitted evidence concerned the defendant’s mental illness or impairment. Our decisions are inconsistent with any notion that counsel must present all available mitigating circumstance evidence, or all available mental illness or impairment evidence, in order to render effective assistance of counsel at the sentence stage.... Instead, our decisions teach that whether counsel’s performance is constitutionally deficient depends upon the totality of the circumstances viewed through a lens shaped by the rules and presumptions set down in Strickland v. Washington.
Watery. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995). Having identified in
detail the circumstances of Epperson’s case, we find that the totality of
circumstances favors a finding that trial counsel did not render ineffective
assistance of counsel for failing to present the purported mitigating evidence
that Epperson suggests should have been presented to the jury during the
sentencing phase. We cannot say that trial counsel acted “unreasonably” in his
conducting of the penalty phase or that his purported failure to act constitutes
ineffective assistance.
If Epperson’s argument is that trial counsel should have presented the
mitigating evidence he suggested, in lieu of the evidence that trial counsel
24 presented, this argument fails, as well. As stated, the evidence that Epperson
wanted trial counsel to discuss conflicted with the mitigating evidence that trial
counsel submitted. Epperson’s evidence purported to show that he was a
tormented and brain-damaged soul that should garner sympathy, while the
evidence of record purported to show that Epperson was really a good person
who acted uncharacteristically. Both theories constitute reasonable, viable
theories of mitigation; simply because one theory of mitigation failed in
hindsight does not make trial counsel’s pursuance of that theory or failure to
pursue the alternative theory unreasonable.
“When a defendant challenges a death sentence...the question is whether
there is a reasonable probability that...the sentence...would have concluded
that the balance of aggravating and mitigating circumstances did not warrant
death.” Strickland, 466 U.S. at 695. Even if we did find that counsel was
deficient for failing to introduce, investigate, or pursue the mitigating evidence
that Epperson argues should have been admitted, we agree with the trial court
that no reasonable probability exists that Epperson’s sentence would have
been any different. We fail to see how the jury would have ruled differently had
the mitigating evidence Epperson argues should have been introduced, that
Epperson allegedly suffers from brain damage and had a bad childhood, in the
face of the overwhelming evidence against Epperson, referred to as the “straw
boss” who gave orders, and the brutal nature of his crimes. The
Commonwealth also points out that it could have countered nearly all of
Epperson’s purported mitigating evidence with its own evidence.
25 E. McCoy V. Louisiana, 138 S.Ct. 1500 (2018).
Related to his assertion of ineffective assistance of counsel because of
counsel’s presentation of what Epperson refers to as “inconsistent defenses,”
Epperson alleges that the recently decided U.S. Supreme Court case of McCoy
V. Louisiana affects the propriety of his convictions. On the facts of this case
known to us at this time, we disagree.
The Court in McCoy held “that a defendant has the right to insist that
counsel refrain from admitting guilt, even when counsel’s experience-based
view is that confessing guilt offers the defendant the best chance to avoid the
death penalty. Guaranteeing a defendant the right ‘to have the Assistance of
Counsel for his defense,’ the Sixth Amendment so demands.” Id. at 1505. “[W]e
agree with the majority of state courts of last resort that counsel may not admit
her client’s guilt of a charged crime over the client’s intransigent objection to
that admission.” Id. at 1510. “Violation of a defendant’s Sixth Amendment-
secured autonomy ranks as error of the kind our decisions have called
‘structural’; when present, such an error is not subject to harmless-error
review.” Id. at 1511.
The defendant in McCoy was indicted on three counts of first-degree
murder, for which the prosecution sought the death penalty. Id. at 1506. The
defendant pleaded not guilty, and throughout the proceedings consistently
maintained that he was out-of-state at the time of the killings and that corrupt
police killed the victims when a drug deal went wrong. Id. The defendant’s
counsel determined that the evidence against the defendant was overwhelming
26 and that, absent a concession at the guilt stage that the defendant was the
killer, a death sentence would be impossible to avoid. Id.
The defendant was “furious” when told that his counsel would concede
guilt. Id. The defendant told counsel “not to make that concession,” and
counsel knew of the defendant’s “complete opposition” to the concession. Id.
The defendant pressed counsel to pursue acquittal. Id. When the defendant
and counsel sought to end their relationship, the trial court refused. Id. The
trial court stated, “You are the attorney,” when told counsel expressed
disagreement with the defendant’s wish to put on a defense case, and
additionally, “You have to make the trial decision of what you’re going to
proceed with.” Id.
At trial, during his opening statement, counsel told the jury there was
“no way reasonably possible” that they could hear the prosecution’s evidence
and reach “any other conclusion than [the defendant] was the cause of these
individuals’ death[s].” Id. The defendant protested; out of earshot of the jury,
the defendant told the trial court that counsel was “selling him out” by
maintaining the defendant’s guilt. Id. The trial court reiterated that counsel
was “representing” the defendant and that the court would not permit “any
other outbursts” from the defendant. Id. at 1506-07. Continuing his opening
statement, counsel told the jury the evidence is “unambiguous” and, “my client
committed three murders.” Id. at 1507.
The defendant testified in his own defense, maintaining his innocence
and pressing an alibi difficult to fathom. Id. In closing argument, counsel
27 reiterated that the defendant was the killer. Id. On that issue, counsel told the
jury that he “took the burden off of the prosecutor.” Id.
The jury returned a unanimous verdict of guilty of first-degree murder on
all three counts, recommending a sentence of death. Id.
In its analysis, the Court contrasted its decision in Florida v. Nixon, 543
U.S. 175 (2004), with that of McCoy. 138 S.Ct. at 1509-10. The Court held in
Nixon “that when counsel confers with the defendant and the defendant
remains silent, neither approving nor protesting counsel’s proposed concession
strategy, ‘[no] blanket rule demand[s] the defendant’s explicit consent’ to
implementation of that strategy.” Id. at 1505 (citing Nixon, 543 U.S. at 181). In
Nixon, defense counsel had several times explained to the defendant a proposed
guilt-phase concession strategy, but the defendant was unresponsive. McCoy,
138 S.Ct. at 1505 (citing Nixon, 543 U.S. at 186). Counsel did not negate the
defendant’s autonomy by overriding the defendant’s desired defense objective,
for the defendant in Nixon never asserted any such objective. McCoy, 138 U.S.
at 1509 (citing Nixon, 543 U.S. at 181).
Importantly, the defendant in Nixon complained about the admission of
his guilt only after trial, McCoy, 138 U.S. at 1509 (citing Nixon, 543 U.S. at
185), unlike the defendant in McCoy, who “opposed [counsel’s] assertion of his
guilt at every opportunity, before and during trial, both in conference with his
lawyer and in open court.” McCoy, 138 S.Ct. at 1509. In contrast to Nixon, the
defendant in McCoy “vociferously insisted that he did not engage in the charged
acts and adamantly objected to any admission of guilt.” Id. at 1505. “If a client
28 declines to participate in his defense, then an attorney may permissibly guide
the defense pursuant to the strategy she believes to be in the defendant’s best
interest.” Id. at 1509.
We highlight in detail the factual circumstances of McCoy because the
factual circumstances in the case at hand are very different. On the facts that
we have available in this record, nothing of the sort that occurred in McCoy
occurred in Epperson’s case. As discussed in our analysis of Epperson’s
“inconsistent defenses” argument, counsel for Epperson simply suggested to
the jury that Epperson’s involvement in this case, if any, was driving the
getaway car. Epperson claims that counsel elicited evidence on this fact during
cross-examination of a witness and then told the jury in closing argument that
Epperson had driven the getaway car. This fact, and this fact alone, is the only
fact that Epperson points to in the entirety of his argument on this point.
Epperson has not evidenced “intransigent” or “vociferous” objection to
trial counsel’s strategy, nor has he evidenced objection to trial counsel’s
strategy “at every opportunity, before and during trial, both in conference with
his lawyer and in open court.” Id at 1509. More importantly, it does not appear
that counsel ever explicitly conceded guilt on any of Epperson’s charges but
rather stated that Epperson may have been or was the getaway driver during
the commission of the crimes. This concession does not appear to be the type
of concession upon which McCoy’s holding is predicated. And even if it were,
the lack of evidentiary and factual support for Epperson’s claim leads us to the
conclusion that it is meritless.
29 Because we find striking dissimilarities between Epperson’s case and
McCoy, we reject Epperson’s argument on this point.
F. Cumulative Error.
Since we have found no merit in any of Epperson’s individual claims, no
cumulative error can exist.
IV. CONCLUSION.
As the trial court noted, “trials are never perfect, and with decades to sit
and wonder what could have been, it becomes easy to latch onto small
imperfections and believe they made the difference.” We agree with the trial
court that Epperson has failed to meet his burden to obtain relief under RCr
11.42. For the foregoing reasons, we affirm the Warren Circuit Court’s order
denying Epperson’s RCr 11.42 motion for post-conviction relief.
Minton, C.J.; Cunningham, Hughes, Keller, VanMeter and Venters, JJ.,
concur. Wright, J., not sitting.
COUNSEL FOR APPELLANT:
David Michael Barron Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Julie Scott Jernigan David Bryan Abner Assistant Attorney General
30 t
2017-SC-000044-MR
ON APPEAL FROM WARREN CIRCUIT COURT V. HONORABLE STEVE ALAN WILSON, JUDGE CASE NO. 97-CR-000016
ORDER GRANTING PETITION FOR REHEARING AND WITHDRAWING AND REISSUING^ PINION
The Court, being fully and sufficiently advised, ORDERS that:
1. Appellee’s motion filed April 11, 2018, to publish our opinion in
Epperson v. Commonwealth, 2017-SC-000044-MR, rendered March
22, 2018, is DENIED;
2. Appellant’s motion filed May 18, 2018, entitled “CR 76.34 motion
for leave to supplement petition for rehearing and consolidated
supplement to petition for rehearing”, is GRANTED;
3. Appellant’s motion, filed May 18, 2018, entitled “CR 76.34 motion
to stay proceedings regarding the petition for rehearing, to
maintain jurisdiction, and to issue a limited remand for the circuit
court to make additional findings and conclusions of la^v in light of r
the intervening decision of McCoy v. Louisiana, 138 S.Ct. 1500
(2018)”, is DENIED;
4. Appellant’s Petition for Rehearing is GRANTED; and,
5. The Opinion of the Court rendered herein on March 22, 2018, is
hereby withdrawn, and the attached Opinion is reissued in lieu
thereof.
Minton, C.J., Cunningham, Hughes, Keller, VanMeter and Venters, JJ.,
sitting. All concur. Wright, J., not sitting.
ENTERED: August 16, 2018.