Roger Epperson v. Commonwealth of Kentucky ( 2021 )

RENDERED: SEPTEMBER 30, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0724-MR
ROGER DALE EPPERSON APPELLANT
ON APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
NO. 97-CR-00016
V.
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
AFFIRMING
This case comes before the Court on appeal by Roger Epperson, the
Appellant, of the Warren Circuit Court’s denial of his RCr1 11.42, RCr 10.02,
CR2 60.02, and CR 60.03 motion for relief. In that motion, Epperson argued
McCoy v. Louisiana, 138 S.Ct. 1500 (2018), governed his claim that his
attorney at trial conceded guilt against his expressed desire to maintain actual
innocence of the crimes charged. The circuit court denied the motion, holding
Epperson had already presented this claim, which this Court ruled upon in
2018; Epperson v. Commonwealth, No. 2017-SC-000044-MR, 2018 WL
3920226 (Ky. Aug. 16, 2018). Thus, the circuit court believed Epperson’s claim
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Kentucky Rules of Criminal Procedure
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Kentucky Rules of Civil Procedure
was both substantively and procedurally improper. For the following reasons,
we affirm.
I. Factual and Procedural Background
After a second trial in 1996, Epperson was convicted of two counts of
complicity to murder, first-degree robbery and first-degree burglary. He was
sentenced to death for a second time.3 The details of his crimes need not be
recounted here. His conviction in 1996 was affirmed on direct appeal. Epperson
v. Commonwealth, 197 S.W.3d 46 (Ky. 2006). He then proceeded with collateral
attacks via RCr 11.42. Those claims were denied. Epperson v. Commonwealth,
No. 2017-SC-000044-MR, 2018 WL 3920226 (Ky. Aug. 16, 2018). But,
contemporaneously with the release of our initial Opinion on those issues, the
Supreme Court of the United States announced its decision in McCoy v.
Louisiana. Epperson filed a petition for rehearing so that we might consider
McCoy’s impact, if any, on his claims. We granted the petition and addressed
McCoy, noting the “facts that we have available in this record . . .” did not
persuade us that McCoy was applicable. Id. at *12.
Epperson then filed a second RCr 11.42 motion and a CR 60.02 motion.
He believed that this Court’s 2018 Opinion left the door open for him to further
develop the factual record regarding his McCoy claim. He filed an affidavit
stating he desired an actual innocence defense at trial and communicated said
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Epperson’s first trial was in 1987. He was convicted of two counts of
murder and sentenced to death, but we reversed due to an error by the
trial court during voir dire.
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desire to his counsel prior to the start of the trial. He also stated he was not
informed his counsel planned to concede he was involved with the crimes in
any way or that they would elicit testimony he was present at the scene of the
crime as a get-away driver. The specific allegations are his counsel (1) conceded
guilt to burglary and robbery during closing arguments in the guilt phase of the
trial, and (2) conceded guilt when he elicited testimony from a witness placing
Epperson in the get-away vehicle.
The circuit court refused to conduct an evidentiary hearing and denied
the motion. It held that our 2018 Opinion addressed the merits of the claim
and therefore, was controlling law. The court also held, having already been
ruled upon, it was procedurally improper to bring the claim again in a
successive collateral attack. Epperson appealed as a matter of right.
We now address the merits of the appeal.
II. Standard of Review
We apply de novo review to the circuit court’s interpretation and
application of our 2018 ruling in Epperson v. Commonwealth, as whether the
law-of-the-case has been properly followed is a question of law. Kincaid v.
Johnson, True & Guarnieri, LLP, 538 S.W.3d 901, 916-17 (Ky. App. 2017).
III. Analysis
A. The Interpretation and Application of McCoy v. Louisiana
McCoy stands for the rule that defense “counsel may not admit her
client's guilt of a charged crime over the client's intransigent objection to that
admission.” McCoy, 138 S.Ct. at 1510. When such a concession occurs, there
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is a structural error. Id. at 1511. Epperson argues for a broad reading of McCoy
in that he does not believe an objection need be made on the record before the
trial court. There is a structural error, in his view, when the desire for an
actual innocence defense is expressed to counsel, and counsel subsequently
disregards that desire by conceding any element of the offense. We do not read
McCoy so sweepingly.
At the outset of McCoy, Justice Ginsburg reiterated the rule of Florida v.
Nixon, 125 S.Ct. 551 (2006), that “when counsel confers with the defendant
and the defendant remains silent, neither approving nor protesting counsel's
proposed concession strategy[,]” there is no per se violation when the
concession is made. 138 S.Ct. at 1505. She continued, “in contrast
to Nixon, the defendant [McCoy] vociferously insisted that he did not engage in
the charged acts and adamantly objected to any admission of guilt.” Id.(emphasis added). Nevertheless, “the trial court permitted counsel, at the guilt
phase of a capital trial, to tell the jury the defendant ‘committed three murders.
. . [H]e's guilty.’” Id. (internal citation omitted). This was done over McCoy’s
objection on the record.
From McCoy’s inception then, the Supreme Court emphasized the factual
distinction between its ruling in that case and Nixon. Indeed, the Supreme
Court further elucidated that difference in Part II B of its opinion. Id. at 1509-
11. It specifically noted, “McCoy . . . opposed [his attorney's] assertion of his
guilt at every opportunity, before and during trial, both in conference with his
lawyer and in open court.” Id. at 1509. The Supreme Court also noted of the
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four state courts to have considered the issue, three had held “the defendant
repeatedly and adamantly insisted on maintaining his factual innocence
despite counsel's preferred course . . .” Id. at 1511 (emphasis added).
We do not think these several references to the “repeated,” “adamant,”
and “vociferous” objections of the defendant at trial are meaningless. To the
contrary, it is the decisive factual predicate used to distinguish McCoy from
Nixon. Thus, McCoy did not abrogate or overrule Nixon. The two govern
different scenarios. McCoy is controlling where defense counsel “admit[s] her
client's guilt of a charged crime over the client's intransigent objection to that
admission.” Id. at 1510.
This conclusion is bolstered by the Supreme Court’s reasoning regarding
the constitutional injury suffered. Because the right to be protected is the
“defendant’s autonomy” to “make the fundamental choices about his own
defense,” “the violation of McCoy's protected autonomy right was complete
when the court allowed counsel to usurp control of an issue within McCoy's
sole prerogative.” Id. at 1511 (emphasis added).4 Therefore, “counsel's
admission of a client's guilt over the client's express objection is error
structural in kind.” Id.5
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Again, we see the Supreme Court emphasizing the fact an objection to
the trial court occurred.
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The Supreme Court’s explicit holding that structural error only occurs
where an attorney concedes guilt to the crime over their client’s express
objection means that absent such objection, prejudice must still be
demonstrated. This comports with Nixon’s holding that “if counsel's
strategy, given the evidence bearing on the defendant's guilt, satisfies
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The requirement of an objection on the record is only logical. Should an
attorney concede guilt to the charged crime, the trial court can only presume
that such a concession is part of a legitimate and agreed upon strategy absent
an objection from the defendant himself. It is absurd to suggest otherwise, as
that would force the trial court to divine whether the defendant does in fact
have an objection to a concession of guilt. A competent defendant, capable of
assisting in his own defense, is also capable of lodging such an objection to the
trial court. We will not interpret McCoy in such a way that allows a defendant
to sleep on his rights and allege a structural error after his direct appeal has
proven unsuccessful.
Finally, we do not believe, contra Epperson, that McCoy applies to a
scenario in which an attorney concedes guilt as to one or more elements of a
crime, rather than to the crime in toto. It is elementary that the Commonwealth
must prove all elements of an offense beyond reasonable doubt. Hammond v.
Commonwealth, 504 S.W.3d 44, 52 (Ky. 2016). Thus, it stands to reason that
an attorney could concede guilt as to one or more elements of an offense and
yet remain within the bounds of their client’s stated objective of pursuing
actual innocence. McCoy’s facts demonstrate this.
McCoy wished to pursue an actual innocence defense by denying he was
even in Louisiana at the time the crime occurred. 138 S.Ct. at 1506. His
counsel, English, disagreed. The following scenario occurred:
the Strickland standard, that is the end of the matter; no tenable claim of
ineffective assistance would remain.” Nixon, 125 S.Ct. at 563.
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At the beginning of his opening statement at the guilt phase of the
trial, English told the jury there was ‘no way reasonably possible’
that they could hear the prosecution's evidence and reach ‘any
other conclusion than Robert McCoy was the cause of these
individuals' death.’ McCoy protested; out of earshot of the jury,
McCoy told the court that English was ‘selling him out’ by
maintaining that McCoy ‘murdered his family.’ The trial court
reiterated that English was ‘representing’ McCoy and told McCoy
that the court would not permit ‘any other outbursts.’ Continuing
his opening statement, English told the jury the evidence is
‘unambiguous,’ ‘my client committed three murders.’ McCoy
testified in his own defense, maintaining his innocence and
pressing an alibi difficult to fathom. In his closing argument,
English reiterated that McCoy was the killer. On that issue,
English told the jury that he ‘took the burden off of the prosecutor.’
The jury then returned a unanimous verdict of guilty of first-degree
murder on all three counts. At the penalty phase, English again
conceded ‘Robert McCoy committed these crimes,’ but urged mercy
in view of McCoy's ‘serious mental and emotional issues[.]’ The jury
returned three death verdicts.
Id. at 1506-07 (internal citations omitted). The Supreme Court noted English’s
trial strategy would have failed anyway because Louisiana prohibits “evidence
of a defendant's diminished capacity absent the entry of a plea of not guilty by
reason of insanity.” Id. at 1506 n.1. Thus, English’s several blatant admissions
that McCoy had committed murder could only have the legal effect of conceding
guilt to the crime charged.
Additionally, the Supreme Court highlighted the difference between
conceding elements of the offense and the crime charged. In citing to the three
state court decisions previously mentioned, the Supreme Court noted that the
defendants in those cases “repeatedly and adamantly insisted on maintaining
[their] factual innocence . . .” despite their counsel’s belief otherwise. Id. at
1510. Instead, their lawyers wanted to pursue other defenses like diminished
capacity, mental illness, and lack of premeditation. Id. Justice Ginsburg
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explained, “[t]hese were not strategic disputes about whether to concede an
element of a charged offense, [but] were intractable disagreements about the
fundamental objective of the defendant's representation.” Id. (internal citation
omitted).
Therefore, we discern an intent to distinguish between strategic disputes
about conceding an element of an offense as opposed to an attorney’s
concession of guilt to the crime charged and subsequent hope for leniency from
the jury. This interpretation comports with the facts and reasoning of McCoy.
B. Our Prior Ruling in Epperson v. Commonwealth
In 2018, our initial impression of McCoy’s application to Epperson’s case
was stated thusly,
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.’ 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.
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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.
Epperson, 2018 WL 3920226, at *12 (internal citations omitted). We see no
compelling reason to depart from this holding now.
As we held, McCoy only controls when there is an “intransigent objection”
on the record. McCoy, 138 S.Ct. at 1510. The circuit court below was correct in
refusing to hold an evidentiary hearing because it is unnecessary to hear
testimony to prove that fact. Merely citing to the record where such objections
occurred would suffice. Epperson has not done that because he did not make
any such objection. McCoy simply is not applicable to his case.6
We also believe that our initial impression of the specific objections made
by Epperson remain correct. Again, an evidentiary hearing is unnecessary to
determine if Epperson’s counsel did in fact concede guilt. Epperson has not
presented anything new which demonstrates there was a concession of guilt to
the crime charged.
IV. CONCLUSION
Epperson’s second RCr 11.42 motion did not put forth any new facts or
law that was not known to us when we issued our ruling in 2018. The circuit
court therefore correctly ruled that Epperson v. Commonwealth was controlling
law-of-the-case. We also believe it was correct to rule the motion was an
impermissible successive collateral attack. We find no merit in Epperson’s
argument that he was deprived of an impartial judge because the judge
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Hence, we need not decide whether McCoy is retroactive.
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adopted the Commonwealth’s arguments as its own. The Warren Circuit Court
is affirmed.
All sitting. Hughes, VanMeter, and Lambert, JJ. concurring. Minton,
C.J., Keller and Nickell, JJ. concur in result only.
COUNSEL FOR APPELLANT:
David M. Barron
Assistant Public Advocate
Dept. of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Robert Baldridge
Assistant Attorney General
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