The Supreme Court of Kentucky has affirmed the conviction of Roger D. Epperson, who is awaiting execution in the August 8, 1985, murder of Tammy Dee Acker, and the attempted murder of her father, Dr. Roscoe J. Acker, during a robbery that netted $1.9 million from a safe in the family’s home at Fleming.
Epperson and Bennie Lee Hodge were sentenced to die in June 1986, less than a year after they and a third defendant, Donald Bartley, were arrested in the Acker murder. Bartley pleaded guilty and testified against Epperson and Hodge. He was sentenced to life without the possibility of parole for 25 years.
Hodge was accused of stabbing Tammy Acker 12 times in the back with a kitchen knife while Epperson and Bartley strangled her father with a lamp cord.
Epperson, who Bartley testified was the “straw boss” of the robbery and ordered the other two to kill the witnesses, has appealed his conviction and sentence before, variously alleging that DNA evidence would exonerate him, that the jury in his trial was tampered with and that his lawyer was ineffective in representing him.
While Epperson and Hodge once gained a favorable ruling from the Supreme Court of Kentucky remanding the case to the Letcher Circuit Court for an evidentiary hearing, that hearing did not go well for the two defendants. Their conviction was upheld, and they appealed again and lost again. Hodge asked for a rehearing and lost, and then appealed again, taking the case to the U.S. Supreme Court, where his conviction was once again affirmed.
Epperson did not join the appeal to the U.S. Supreme Court.
In the latest case, Epperson claimed that the Kentucky Office of Attorney General improperly intervened in the case during post — trial proceedings, again claimed that his attorney was ineffective because he did not bring up child abuse he allegedly suffered at the hands of his father, and that the prosecution tampered with the jury.
The high court systematically denied all three reasons for appeal.
The court ruled that the special prosecutor Rick Bartley, Commonwealth’s Attorney in Pike County, had requested the assistance of the Attorney General, and that his letter was sufficient to meet the requirements of the law. The court also ruled that while Epperson’s counsel was ineffective in that he did not present evidence of child abuse as a mitigating circumstance, the error was not sufficient to warrant a new trial.
The justices ruled that evidence of child abuse was contradictory. While some evidence seemed to show he suffered head injuries from abuse, and there were “poor economic conditions in the coal mining camp where he grew up,” other evidence suggested his father had only administered “a more benign form of corporal punishment for discipline,” and noted that the trial court had described him as “the scion of a relatively will to do family given every opportunity.”
“Having considered the mitigation evidence weighing in (Epperson’s) favor, there is no reasonable probability that even one juror would not have sentenced the Appellant to death had such mitigation evidence been introduced,” the justices wrote.
On the claim of jury tampering, the court again ruled against Epperson. While Epperson made the same claims put forth by Hodge – that the jury was provided with alcohol, that the prosecution had communications with the jury, and that the jury had decided the verdict before the end of the trial – the court ruled that there was no reliable evidence to that effect.
The court noted that the primary witness, then Deputy Sheriff Gary Rogers was in charge of guarding the jury, and that his testimony was “confused, inconsistent and contradictory.”
The court also ruled that Epperson’s argument that alternate juror Marsha Hogg Thursty was “unpersuasive.” Thursty testified at the hearing on jury tampering that no tampering occurred.
In addition to the Acker case, Epperson and Hodge were sentenced to be executed for the murders of Edwin and Bessie Morris at Grayhawk, Ky., in Jackson County. The elderly couple were killed two months before Tammy Acker in another home — invasion robbery.