A motion by convicted murderer Benny Lee Hodge to have his death sentence vacated because of ineffective assistance of counsel has been denied by Special Letcher Circuit Judge Eddy Coleman.
Hodge, 58, of Lake City, Tenn., and Roger Dale Epperson, 59, of Jeff in Perry County, were sentenced to death in June 1986 for the murder of Tammy Dee Acker of Fleming- Neon.
The murder occurred when Hodge, Epperson and Donald Terry Bartley entered the home of Miss Acker’s physician father, Roscoe J. Acker, on the night of August 8, 1985. The three men brutally stabbed Miss Acker to death after choking Dr. Acker unconscious and robbing his bedside safe of $1.9 million. Hodge, Epperson and Bartley were arrested in Ormond Beach, Fla., on August 15, 1985. Bartley was sentenced to life in prison without the possibility for parole after agreeing to testify against Epperson and Hodge.
Hodge and Epperson later filed appeals that resulted in the Kentucky Supreme Court sending their cases back for hearings in the trial court. Both Letcher Circuit Judge Sam Wright and Letcher Commonwealth’s Attorney Edison G. Banks had to disqualify themselves because of potential conflicts and the case was sent to Judge Coleman and Pike Commonwealth’s Attorney Rick L. Bartley.
The state Supreme Court ordered that hearings be held on two issues raised by Hodge and Epperson. The first issue was a claim that the Letcher Circuit Jury which convicted them and sentenced them to death may have received improper information from contacts while the trial was being held. After extensive hearings, Judge Coleman ruled there was no evidence to support their claims and overruled that portion of their motions.
Judge Coleman then moved to their claims that each of them received ineffective assistance during the penalty phase of the trial because their defense attorneys — Dale Mitchell for Hodge and Lester Burns for Epperson — did did not properly investigate mitigating evidence and in fact presented no mitigating evidence. Mitigating evidence is generally thought of as evidence that might have gotten some sympathy for the defendants had the jury been made aware of their rough childhood and upbringing and possible mental conditions.
In denying the relief sought by Hodge, Judge Coleman found that even though Hodge’s attorney (Mitchell) was ineffective because he did not properly investigate and present mitigating evidence during the penalty phase, the court did not believe the jury verdict would have been different if the attorney had performed effectively during this phase of the trial. The court specifically found that the acts committed by Hodge were reprehensible, outrageous and resulted in the gruesome death of Miss Acker and the assault of her father.
Coleman weighed the aggravating factors and possible mitigating evidence and found that Hodge failed to meet his burden of proving by a reasonable probability that the jury would have not sentenced him to death, if the jury had heard the mitigating evidence.
Judge Coleman will now proceed to the claims raised by Epperson that his attorney was ineffective during the penalty phase for similar reasons.
“I anticipate this portion of the case will probably take more than six months to resolve,” said prosecutor Rick Bartley.
Epperson has also raised a claim that he would like DNA testing performed on the knife used to murder Tammy Acker and the power cord used to strangle Dr. Acker. Epperson claims that DNA analysis of these items will prove that he did not handle them as described during the trial. Trial transcripts showed that Epperson was alleged to have given the knife to Benny Hodge and given a curling iron to Donald Bartley, who then used the cord from the curling iron to strangle Dr. Acker.
Following is the text of Judge Coleman’s ruling:
Commonwealth of Kentucky Vs.
Benny Lee Hodge
FINDINGS OF FACT, OPINION, ORDER AND JUDGMENT:
The defendant, Benny Lee Hodge, was convicted of robbery, burglary, attempted murder, and murder in the Letcher Circuit Court. He received the death penalty. His conviction and sentence were affirmed on direct appeal to the Kentucky Supreme Court. Hodge then filed a motion to vacate the judgment. The trial court denied the motion without holding an evidentiary hearing. The Kentucky Supreme Court reversed the denial of an evidentiary hearing on certain issues and remanded the case with directions to hold an evidentiary hearing on two issues, jury tampering and failure to introduce mitigating evidence.
The court has concluded the jury tampering evidentiary hearing on both Hodge and Roger Epperson, his co-defendant. The court has entered an order denying relief based on the jury tampering issue. The court has concluded the evidentiary hearing on Hodge’s claim of failure to introduce mitigating evidence during the penalty phase of the trial.
The Supreme Court in its Remand Order and Opinion directed this court to determine and delineate what mitigating evidence was available and what investigation regarding mitigating evidence was conducted by Hodge’s defense counsel. The Supreme Court noted that if no investigation was performed, defense counsel’s performance was deficient. The Supreme Court ordered this court to determine whether the failure to introduce mitigating evidence was trial strategy, or an abdication of advocacy. The Supreme Court ordered this court, if defense counsel’s advocacy was deficient, to make a finding of what mitigating evidence was available to counsel and thereafter to determine whether there is a reasonable probability that the jury would have weighed the mitigating and aggravating factors differently.
FROM THE TRIAL TRANSCRIPT:
The Commonwealth’s first witness was Dr. Roscoe J. Acker. He testified he was a 78-year-old physician who had practiced medicine for more than 40 years. He testified that on Aug. 8, 1985, his doorbell rang and his daughter Tammy answered it and told him two men from the F.B.I. wanted to see him. He went to the door and two men were standing there with a black briefcase and the other one grabbed Tammy and walked or carried her away from the kitchen into a farther room. He was made to lie down on the floor, had his hands and feet tied, and had a gag put in his mouth and a sheet put over his head. He was hit and kicked and made to give the men a safe combination. A third man was then seen standing in the doorway of another room and Dr. Acker was forced to open the safe. He then felt (something) on his neck tighten and he blacked out.
Dr. Acker stated that when he came to and got his hands and feet loose he ran toward Tammy’s room and she was lying in the corner of her bed. He called her name and went to lift her up and saw there was a butcher knife protruding out of her back and he knew she was “in God’s hands.”
Dr. Acker showed the jury a photograph of Tammy and told the jury that she had stayed out of a semester of college to take care of her father but had planned to go back to college the following day, August 9.
Tom Haynes testified that he responded to the scene as an EMT. He testified he went to the back room where Tammy Acker was to check her. He found no life signs. Her legs were pulled into a semifetal position and were bound. Her hands were tied behind her back and she had what looked like a bandana around her neck. He untied the bindings on her hands, wrists and legs and observed a very large knife in her back.
Kentucky State Police Detective Frank Fleming testified about his investigation and submitted photographs including a photograph of Tammy Acker with the butcher knife sticking out of her back. Det. Fleming attended the autopsy performed by Dr. George Buckley on the body of Tammy Acker. Several photographs were submitted to the jury from the autopsy showing numerous stab wounds and bruises and injuries to her neck.
Dr. George Buckley testified that he performed an autopsy on Tammy Acker and told the jury her death was caused by hemorrhage from stab wounds to the right lung and the flowing of blood from the lung to the chest cavity which caused the lung to collapse. Dr. Buckley told the jury he found a total of 12 puncture wounds. He determined that two small knife wounds in the front of the body were caused when the knife went all the way through her body from behind and came out the front.
Lawrence Smith testified he was in jail in Orange County, Florida in August 1985 and that Hodge was arrested and placed into the cell next to him for two or three weeks. Smith testified that Hodge told him he had killed the doctor’s daughter by stabbing her and that one or both of his friends attempted to kill the doctor but the doctor didn’t die. Smith said Hodge told him they robbed the doctor of $1.5 million. Smith testified that the doctor and his daughter could identify at least one of them and they weren’t going to leave any witnesses alive. He quoted Hodge as saying, “The smart thing to do is kill all witnesses when you commit any crime so nobody can testify against you.”
Smith also testified Hodge said he took the money to where he met another person, a woman, and they spread the money out on the bed and he made love to the woman on top of the money.
Donald Bartley was a co-defendant with Hodge and Epperson. Pursuant to the agreement with the Commonwealth, Bartley testified on behalf of the Commonwealth. Bartley had been friends with Hodge and Epperson for some time before the murder and robbery. He testified the three of them came to Letcher County three or four days before the murder and robbery and scouted Dr. Acker’s house. He told the jury that he and Hodge and Epperson went to the house of Dr. Acker and that he and Hodge were dressed in suits like F.B.I. or IRS agents. After Dr. Acker let the two of them in the home, Epperson then came in the home. Bartley said he tied Tammy Acker in the back bedroom and then returned to the kitchen where he choked Dr. Acker with a cord. He and Epperson thought Dr. Acker was dead. He testified Tammy Acker asked him to please not hurt her dad.
Bartley testified Epperson asking Hodge, “Which one do you want, brother?” and Hodge replied, “It don’t matter to me. I’ll take the girl.” Bartley testified Epperson tossed Hodge a knife.
Bartley testified after leaving the Acker home and Kentucky, the three of them discussed among themselves what had happened at the Acker home. Bartley told the jury Hodge said, “Well, I know the girl is dead because the knife went all the way through her to the floor.”
Hodge did not testify during the guilt or penalty phases of the trial.
Epperson did not testify.
During his closing argument, Hodge’s attorney claimed Tammy Acker was killed by Donnie Bartley, not his client.
The case was submitted to the jury, which found Hodge guilty on all counts.
Neither the Commonwealth, the attorney for Hodge, nor the attorney for Epperson put on any witnesses or evidence during the penalty phase of the trial. The parties agreed to a stipulation that was read to the jury by the court as part of its instructions. The court told the jury, “Now, it’s stipulated by and between the Commonwealth and Benny Lee Hodge that Benny Lee Hodge has a loving, supportive family — a wife and three children. He has a public job work record and he lives and resides permanently in Tennessee.”
The jury recommended that Hodge be sentenced to death.
Pursuant to the Supreme Court’s remand, this Court allowed Hodge and the Commonwealth to produce evidence regarding the failure of Hodge’s attorney to call any witnesses or produce any evidence during the penalty phase of the trial. The court has heard live testimony, reviewed transcripts and reviewed depositions submitted by Hodge.
Hodge called several witnesses to outline the evidence that would have been available for mitigation purposes at the time of the trial. The mitigation evidence available was mainly Hodge’s family members and acquaintances. Several of the witnesses testified at two other capital trials unrelated to this case in which Hodge also received the death penalty so their testimony in those cases was available by transcripts submitted.
The deposition of Dawn Jenkins was taken April 24, 2009. Jenkins is a mitigation specialist with the Kentucky State Office of Public Advocacy. Attached to Jenkins’s deposition is an exhibit detailing the mitigation evidence that would have been available. Although the court has considered all of the affidavits and testimony, the exhibit prepared by Jenkins was very helpful in summarizing the testimony available.
Hodge was born August 9, 1951 in Hamblen County, Tennessee. His mother, Kate, was married to about six different men, none of which provided a stable family atmosphere. She also had three girls. Kate married her fourth husband, Billy Joe Hodge, when Benny Hodge was eight years old.
Generally, Kate’s husbands were abusers of alcohol or other drugs and physically and verbally abusive to Kate, her other children, and Benny Hodge. School records showed that Hodge was of average intelligence and received average grades while in grade school. Billy Joe Hodge was singled out as a particularly-abusive stepfather.
Hodge’s grades declined when he was a teenager and Hodge began stealing when he was about 12 years old. Records from the State of Tennessee Department of Corrections, Division of Youth Services state that, “The child is basically a good boy but has been before the court for several thefts including at age 13 and 14 years.” Hodge was sentenced to a juvenile detention facility when he was 15 years old because of his conviction for theft of three wristwatches. Hodge escaped from the detention facility. After being caught and returned to the facility, Hodge was given a furlough but refused to go back and was classified AWOL. Months later, when he was 16, Hodge was arrested for assault on his stepfather and was sent to another juvenile detention facility where he remained until he was 18 years old. Testimony submitted indicated the justice system in Tennessee was woefully inadequate and abusive during the time Hodge was in its custody.
Upon being released from state custody, Hodge worked at menial jobs. He also began abusing illegal controlled substances. At age 19, Benny married and shortly thereafter his wife had a child, Sharon. At age 20, Hodge was arrested and pled guilty to burglary and grand larceny and received a three-year prison sentence.
After four days of being incarcerated, Hodge escaped. After being returned to prison, he was later paroled.
Shortly after being released from prison in 1973, Hodge was caught and convicted in 1974 of armed robbery and was sent to Brushy Mountain State Prison where he served more than nine years. He escaped during that incarceration. After being caught, Hodge was released on parole again in 1982. Hodge married two more times and was working in a bar in Tennessee when he met Donald Bartley and Roger Epperson. The offense in this case was committed in 1985.
Dale Mitchell testified in person. Mitchell represented Hodge in this trial. He has been licensed as an attorney in Kentucky since 1966. He was retained and paid by someone on Hodge’s behalf. Mitchell testified he was aware that Hodge had a criminal record and history of criminal activity. He had discussed with Hodge his “life story.” He and Hodge had discussions in which Hodge said he wanted to testify during the penalty phase of the trial. Mitchell assumed Hodge would be able to tell his life story to the jury at that time.
Mitchell testified that about two weeks before the trial, Hodge changed his opinion about testifying and changed their trial strategy because he learned that Lawrence Smith would be testifying about their jailhouse conversations. Mitchell did no investigation on mitigation issues, other than looking for a witness one time that he was not able to locate.
DEFICIENT PERFORMANCE OF COUNSEL:
The Commonwealth has agreed with the defendant that his counsel’s performance was deficient in conducting a reasonable investigation to find mitigating evidence.
The court finds mitigation evidence was readily available if an attorney had conducted a reasonable investigation.
The court finds Hodge’s attorney did not conduct a reasonable investigation in an attempt to uncover mitigating evidence.
Dale Mitchell’s performance in his representation of Hodge at the penalty phase of the trial was deficient because of his failure to conduct a reasonable investigation into mitigating evidence.
THE ISSUE OF PREJUDICE:
Having found Hodge’s attorney failed in his duty to make a reasonable investigation for mitigating evidence and therefore finding that his performance was deficient, the question becomes, “Whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Strickland vs. Washington 466 U.S. 668 (1984); Hodge v. Commonwealth, Ky. 68 SW3d 338, 43 (2002).
The United States Supreme Court approved the following language in explaining the prejudice issue:
Even if a petitioner shows that counsel’s performance was deficient, however, he must also show prejudice. Petitioner must show ‘that there is a reasonable probability that but for counsel’s unprofessional errors, the result…would have been different.’ [citation omitted] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome…. Indeed, it is insufficient to show only that the errors had some conceivable effect on the outcome of the proceeding, because virtually every act or omission of counsel would meet that test. The petitioner bears the ‘highly demanding’ and ‘heavy burden’ in establishing actual prejudice.
Justice Stevens also wrote that not all of the additional evidence uncovered in Williams v. Taylor, 529 U.S. 362 (2000) would be favorable to the Defendant like this defendant the new evidence included the Defendant’s past criminal record. He also instructed that the new evidence must be viewed together with the evidence adduced at the original trial. This Court’s predictive judgment must rest on an assessment of the totality of the omitted mitigation evidence in reweighing it against the evidence in aggravation.
The issue before the court now becomes whether there is a reasonable probability that the jury would have weighed the mitigating and aggravating factors differently, and quite simply, whether the outcome of the penalty phase of the trial would have been different had the jury heard the mitigating evidence.
The court finds the mitigating evidence would have both helped and hurt Hodge. While the jury may have been sympathetic to Hodge because of his difficult childhood, the jury would have also have learned that Hodge had been in and out of prison and treatment facilities since he was a teenager. The jury would also have heard evidence that Hodge began his criminal activity with petty property crimes, which progressed to more serious thefts and an assault, which progressed to burglary and grand larceny, culminating in this case of burglary, assault and murder. While the jury may have had sympathy for Hodge, the jury could just as likely have been angered even more against Hodge when they saw his continued criminal behavior, lack of rehabilitation during incarceration, and his history of escape.
The court carefully considered the trial testimony heard by the jury, because the court must try to decide what the jury would have done if it had heard the mitigating factors after hearing the gruesome trial testimony.
The court finds the acts committed by Hodge in this case were reprehensible, outrageous, and resulted in the gruesome death of a young college student and a serious assault on her elderly physician father. The court finds, as did the jury, that these acts were committed during a planned robbery during which Hodge disguised himself to gain trust to accomplish the robbery. The court finds Tammy Acker was killed by Hodge so she could not identify him as a witness to the robbery. The court further finds that Hodge stabbed Tammy Acker more than ten times, with some of the stab wounds being so vicious, that they penetrated her entire body.
Balancing and weighing these aggravating factors and mitigating evidence, the court finds Hodge has failed to meet his burden of proving that there is a reasonable probability the jury would not have sentenced him to death, if the jury had heard the mitigating evidence. The court finds Hodge has failed to prove by a reasonable probability that, absent the deficient performance, the jury would have concluded that the balance of aggravating mitigating circumstances did not warrant death.
Although the court has found that Hodge’s counsel’s performance was deficient because of a lack of investigation, and not a strategic decision, Hodge’s criminal history would almost certainly have been revealed to the jury during the presentation of the mitigating evidence. The unsympathetic portrait of Hodge may very well have outweighed any sympathy created. This is particularly true when the vicious nature of the assault on Tammy Acker was considered.
ORDER AND JUDGMENT:
Based on the foregoing, it is hereby ordered and adjudged by the court that Hodge’s Motion to Vacate the Judgment of Conviction and Sentence of Death shall be and is denied.
It is further ordered and adjudged by the court that this is a final and appealable order and judgment.
This the 14th day of October 2009.
Eddy Coleman Sitting as special judge, Letcher Circuit Court