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## ACTION.RENDERED: AUGUST 16, 2018

NOT TO BE PUBLISHED

2017-SC-000044-MR



## , 

## b<-

ROGER DALE EPPERSON APPELLANT

V. ON APPEAL FROM WARREN CIRCUIT COURT

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 thetrial 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 ofstrategy, 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 honestlyand 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 codefendant 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

8co-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, especiallyregarding 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

10exclusive 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

11unreasonable 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

12court 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

13a 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 DNArelated 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.

15Following 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.

16Lastly, 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

17injuries. 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

18grew 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

19retain 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

20reports 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 previouslyretained 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 ”

21and 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

22different. 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 aboveaverage 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.

23Additionally, 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

24presented, 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.

25E. 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 Amendmentsecured 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

26and 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

27reiterated 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

28declines 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.

29Because 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

ROGER DALE EPPERSON APPELLANT

V. ON APPEAL FROM WARREN CIRCUIT COURT

HONORABLE STEVE ALAN WILSON, JUDGE

CASE NO. 97-CR-000016

COMMONWEALTH OF KENTUCKY APPELLEE

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.