RENDERED: OCTOBER 29, 2020
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0137-T
BENNY LEE HODGE APPELLANT
ON TRANSFER FROM COURT OF APPEALS
V. NO. 2019-CA-0165
LAUREL CIRCUIT COURT NO. 92-CR-00180
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE VANMETER
AFFIRMING
Under KRS1 422.285, a person convicted of a capital offense may be
entitled to DNA testing of certain evidence. In this case, we must decide
whether the Laurel Circuit Court erred in denying Benny Lee Hodge’s motion
for DNA testing with respect to hair found at the residence of Bessie and Edwin
Morris, for whose June 1985 murders, burglary and robbery, Hodge was
convicted and sentenced to death. Based on the extensive record in this case,
we hold that the trial court did not err and therefore affirm its Order denying
Hodge’s motion.
1 Kentucky Revised Statutes.
1
I. FACTUAL AND PROCEDURAL BACKGROUND.
On June 16, 1985, Hodge, along with Roger Epperson and Donald
Bartley, participated in the offenses against the Morris’s. Approximately two
months later, on August 8, these three participated in similar offenses
burglarizing and robbing Dr. Roscoe Acker and his twenty-three-year-old
daughter, Tammy Acker, at the Acker residence in Letcher County. Tammy
Acker was brutally murdered, being stabbed over ten times. Dr. Acker survived
after being choked to unconsciousness and being left for dead. Almost
$2,000,000 in cash, weapons and jewelry were taken by the men. Epperson v.
Commonwealth, 809 S.W.2d 835 (Ky. 1990). At their June 1986 jury trial,
Hodge and Epperson were convicted and both received the death penalty for
these crimes. In all appeals and motions for post-conviction relief, the Letcher
County convictions have been upheld by this Court and federal courts.2
Although the Morris murders occurred before the Acker murder, the
Letcher County crimes were indicted first in August 1985, with the Jackson
County offenses being indicted in July 1986. Following a change in venue from
Jackson County, Hodge and Epperson were tried in Laurel Circuit Court
initially in 1987; they were convicted and both received a death sentence. On
2 Epperson v. Commonwealth, 2014-SC-000662-MR, 2016 WL 5245215 (Ky.
Sept 22, 2016) (affirming denial of Epperson’s motion for relief under Kentucky Rule of
Criminal Procedure (RCr) 11.42)); Hodge v. Commonwealth, 2009-SC-000791-MR,
2011 WL 3805960 (Ky. Aug 25, 2011) (affirming denial of Hodge’s motion for relief
under RCr 11.42), cert. denied, 568 U.S. 1056 (2012); Hodge v. Coleman, 244 S.W.3d
102 (Ky. 2008) (granting Hodge and Epperson state funds for travel expenses of out-of-
county witnesses); Hodge v. Commonwealth, 68 S.W.3d 338 (Ky. 2001) (reversing and
remanding for trial court to conduct hearing on Hodge’s and Epperson’s motions for
relief under RCr 11.42); Epperson, 809 S.W.2d 835 (Ky. 1991) (affirming Hodge’s and
Epperson’s convictions and sentence on direct appeal), cert. denied, 502 U.S. 1037
(1992).
2
direct appeal, we vacated the convictions on the Commonwealth’s motion due
to trial error and remanded for a new trial. Epperson v. Commonwealth, 88-SC-
000712-MR (Ky. Jan. 11, 1991); see also Hodge v. Commonwealth, 17 S.W.3d
824, 834 (Ky. 2000) (stating convictions vacated on confession of error with
respect to the failure of the trial court to conduct individual voir dire as to pre-
trial publicity). Subsequently, Epperson and Hodge were tried separately. At
these separate trials, both were again convicted, and both again received the
death penalty.3 Hodge’s conviction was upheld on direct appeal. Hodge, 17
S.W.3d 824. His RCr 11.42 motion for post-conviction relief was denied and
that denial was upheld on appeal. Hodge v. Commonwealth, 116 S.W.3d 463
(Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279
S.W.3d 151 (Ky. 2009). Hodge next unsuccessfully sought federal habeas
corpus relief. Hodge v. Haeberlin, CIV A. 04-CV-185-KKC, 2006 WL 1895526
(E.D. Ky. 2006), aff’d, 579 F.3d 627 (6th Cir. 2009).
Hodge’s current motion is brought under CR 60.02 and KRS 422.285(6)4
seeking DNA testing of hair that was found in the Morris home.5 Hodge’s
3 At Epperson’s separate trial in Warren Circuit Court, he was convicted of two
counts of complicity to murder, first-degree robbery and first-degree burglary.
Epperson v. Commonwealth, 197 S.W.3d 46, 51 (Ky. 2006). Epperson’s post-
conviction relief motion under RCr 11.42 was denied and that denial was affirmed.
Epperson v. Commonwealth, 2017-SC-000044-MR, 2018 WL 3920226 (Ky. Aug 16,
2018), cert. denied, 139 S.Ct. 924 (Jan. 14, 2019).
4 Hodge’s original motion was based on KRS 422.285(3). This statute was
originally enacted in 2002 to provide a means of DNA testing for persons convicted of
and sentenced to death for a capital offense. KRS 422.285(1) (effective Jul. 15, 2002).
The statute was revised in 2013 to expand testing to any person convicted of a capital
offense, a Class A or B felony. Act of Mar. 22, 2013, ch. 77 §1, 2013 Ky. Acts. As a
result of the 2013 amendments, the subsection which provides Hodge’s remedy, if any,
is now KRS 422.285(6).
5 One of Hodge’s allegations in his RCr 11.42 motion was that his counsel had
been ineffective.
3
motion was filed in 2008, but was not ruled on at that time by the trial court
because it held the matter in abeyance pending a similar request for DNA
testing in Epperson’s Warren Circuit Court case. The trial court decided to
remove the case from abeyance in 2015.
II. STANDARD OF REVIEW.
On appeal, we review the denial of a CR 60.02 motion for an abuse of
discretion. The test for abuse of discretion is whether the trial court’s decision
was “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)
(citations omitted). This standard of review applies to a CR 60.02 motion for
DNA testing brought under KRS 422.825. Partin v. Commonwealth, 337
S.W.3d 639, 640 (Ky. App. 2010).
III. ANALYSIS.
Hodge argues that the trial court erred in denying his motion because
seven hairs were found which did not match the known hair standards of the
victims. His argument continues that if DNA testing were to establish that
one of the hairs collected . . . from inside the home belongs to
Donald Bartley, it will seriously undermine Bartley’s credibility as
a witness for the State. Given that there is no physical evidence
linking Hodge to the crimes, and that Bartley was a critical
prosecution witness, a reasonable probability exists that either the
verdict or sentence would have been more favorable to Benny
Hodge.
Hodge Brief on Appeal, 7.
A. Prior Opinions addressing Hodge’s DNA Arguments.
Hodge has previously alleged DNA testing would benefit his cause. In his
RCr 11.42 motion, one of his allegations of ineffective assistance of counsel was
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that defense counsel failed to request an expert to test hairs found at the crime
scene, because those hairs did not match the victims and might have matched
Bartley. We rejected that argument, noting the proof that Bartley was also at
the crime scene that night, and referring to Sherry Hamilton’s testimony that
Hodge admitted to her that both Bartley and he entered the residence, robbed
and shot the victim. We noted “[a]ny evidence that hairs of Bartley were inside
the home would not demonstrate that Hodge was not also inside and helped to
kill and rob the two victims and burglarize the residence.” Hodge, 116 S.W.3d
at 470. Later in the opinion we noted again the trial testimony that Hodge and
two accomplices committed the crimes. Id. at 473. “As stated earlier,
testimony that others were present inside the residence or assisted him in
committing the crimes would not have influenced the jury to find him not
guilty. It is possible that the complicity statute, KRS 502.020, would have
supported his convictions in any event.” Id.
Following our affirming the denial of Hodge’s RCr 11.42 motion, Hodge
filed a federal habeas corpus petition and included an allegation as to the
failure of DNA testing. As recounted by the federal judge,
According to [Hodge], expert DNA testing could have shown that
the hair fibers belonged to Donald Bartley, and then “[Hodge]
would have been exonerated and either acquitted or, at least,
avoided the death penalty.” Because Petitioner Hodge was “denied
the basic tools to present a defense” and because counsel gave
ineffective assistance in obtaining this tool, he is allegedly entitled
to a new trial.
2006 WL 1895526, at *77. The court rejected Hodge’s allegation, stating
“[a]gain [Hodge] has presented no factual or legal support for his claim. He has
failed to show that the Kentucky Supreme Court’s conclusions are contrary to
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or an unreasonable application of then-existing Supreme Court law.” Id. at
*78. As noted, the federal district court’s decision was affirmed by the Sixth
Circuit Court of Appeals. The Sixth Circuit addressed the DNA issue in that
part of its opinion that it determined not to hold the case in abeyance. 579
F.3d at 636-38. The court noted that “no DNA or biological evidence was used
against Hodge at trial, nor can the tests now being conducted exonerate him. . .
. [T]he jury knew that no DNA evidence linked Hodge to the scene. Further, the
results of the new DNA testing cannot exclude Hodge from the crime scene.”
Id. at 636.
B. KRS 422.285(6).
The foregoing demonstrates that Hodge’s DNA arguments have been
raised and rejected both by this Court and the federal courts. We are therefore
tempted to reject his claims out-of-hand. But because of the sanction imposed,
and because Hodge’s motion involves a collateral attack on his conviction
under Kentucky’s post-conviction DNA statutes, our opinions recognize that
some discussion of the crimes is necessary to frame his claim relating to DNA
testing. Moore v. Commonwealth, 357 S.W.3d 470, 474 (Ky. 2011); see also
Partin, 337 S.W.3d at 640-42 (discussing facts of crime and concluding
requested DNA testing would not exonerate defendant).
In Hodge’s direct appeal, we summarized the evidence, as follows:
On June 16, 1985, Edwin and Bessie Morris were murdered
in their home in Gray Hawk, Jackson County, Kentucky. Edwin
Morris’s body was found lying on the kitchen floor, gagged, with
his hands tied behind his back, and with a pillow near his head.
Bessie Morris’s body was found on a bed in the bedroom with her
hands tied behind her back and her feet tied together. A pillow
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was also found near her body. The medical examiner testified that
Edwin Morris had been shot twice, once in the forehead and once
in the right side of the head, and that either wound would have
been fatal. One bullet was recovered from his body; the other had
passed through his body. The examiner testified that even if the
bullet wounds had not been fatal, Mr. Morris would have
suffocated from the gag. Bessie Morris died of two gunshot
wounds to the back, both of which were fatal, but death did not
immediately result from either. One bullet was recovered from her
body and the other had passed through her body.
A ballistics expert testified that one of the two bullets
recovered from the victims’ bodies was definitely a .38 caliber
bullet and the other was either a .38 caliber or a .357 magnum
caliber. Both bullets had been fired from the same weapon, which
could have been either a .38 caliber or a .357 caliber handgun.
Two additional bullets were recovered from the crawl space under
the kitchen floor where Edwin Morris’s body was found and a third
from the box springs of the mattress on the bed where Bessie
Morris’s body was found. The ballistics expert testified that these
were all 9–mm Lugar bullets, which appeared to have been fired
from a semi-automatic pistol; and that at least two of the bullets
were fired from the same weapon and the third could have been
fired from the same weapon. The two pillows found near the
bodies contained large holes surrounded by gunshot residue
consistent with a bullet being fired through each pillow to muffle
the sound.
[Hodge] was first tried, convicted and sentenced to death for
these murders in 1987. The convictions were vacated on a
confession of error by the Commonwealth, i.e., that the trial judge
had not conducted individual voir dire on the issue of pre-trial
publicity. See Morris v. Commonwealth, Ky., 766 S.W.2d 58 (1989).
Donald Bartley had been a witness for the Commonwealth at the
1987 trial and a redacted transcript of his testimony was read to
the jury at the 1996 trial. According to Bartley, he, [Hodge] and
Roger Epperson went to the Morrises’ residence with the intent to
commit robbery. [Hodge] was armed with a .38 caliber handgun
and Epperson with a 9–mm pistol. [Hodge] and Epperson went to
the door and were admitted by Mrs. Morris. Bartley stayed outside
to keep a lookout, but was able to view some of the proceedings
through a patio door. He saw both [Hodge] and Epperson brandish
their weapons, then knock Mr. Morris to the kitchen floor. Bartley
then heard shots, following which [Hodge] and Epperson came out
of the house with a sack full of money and their pockets stuffed
with more money. A subsequent count revealed they had stolen
$35,000.00 in cash from the Morrises. They also stole a diamond
cluster ring, a set of diamond earrings, and a .38 caliber handgun.
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Later, they disassembled the 9–mm pistol, wiped all three
handguns clean of fingerprints, and threw them from a bridge into
a river in the Daniel Boone National Forest. They then burned
[Hodge]’s blood-stained shirt and tennis shoes.
[Hodge]’s former wife, Sherry Hamilton, testified at the 1996
trial that [Hodge] told her that he and Bartley (not Epperson) had
entered the Morrises’ residence and that he shot Edwin Morris
following a scuffle which ensued when Morris reached for a gun on
the refrigerator. Bartley then took Bessie Morris into the bedroom
and shot her. When Bartley emerged from the bedroom, [Hodge]
asked him if Mrs. Morris was dead and Bartley replied that he
thought she was; whereupon [Hodge] went into the bedroom and
shot Mrs. Morris again to make sure she was dead. Hamilton
testified that [Hodge] usually carried a .38 caliber handgun and
that Bartley usually carried a 9–mm handgun. She also testified
that [Hodge] gave her the diamond ring and earrings and that she
subsequently sold them to a “fence” in Tennessee.
Hodge, 17 S.W.3d at 833–35.
Hodge characterizes Bartley as the Commonwealth’s “star witness”
motivated to concoct his testimony to receive leniency from the Commonwealth.
He describes Hamilton as an “accomplished liar” and a spurned woman
seeking revenge against Hodge. And, he repeatedly points out that no physical
evidence connected Hodge to the scene.
The trial court, in denying Hodge’s motion, noted the “overwhelming and
substantial evidence placing [Hodge] at the scene from multiple witnesses and
corroborating findings from medical experts consistent with these witnesses’
testimonies.” In this case, Pam Reams, a United States Forest Service
employee, testified that Carole Malone, an alias of Epperson’s wife, rented a
campground site at Holly Lake from June 8 to June 16. This testimony
corroborated Bartley’s and Hamilton’s testimony that Hodge, Hamilton,
Epperson, Malone, and Bartley camped there during that time period, and were
in close proximately to the murder scene.
8
Harold Clontz, a long-time friend of Epperson, testified that on the
afternoon of June 16, Epperson, accompanied by Hodge and Bartley, borrowed
Clontz’s Chevrolet van, and returned it late that night. The van was variously
described as white, blue, or blue and white. The Commonwealth’s Exhibits 49
and 50, were identified by Clontz as his van. This testimony corroborated
Bartley’s testimony as to the vehicle the three used in going to and from the
Morrises’ residence, as well as the date and general time frame. In addition,
Clontz testified that he picked up a tent at the camp ground that belonged to
the group.
Roger McQueen and Gary Wilkerson, employees at a used car lot in
London, testified that on June 18, Epperson and Malone bought a 1978 Olds
Delta 88, tendering twenty-four $100 bills, which was then titled in Malone’s
name. This corroborated Bartley’s and Hamilton’s testimony concerning the
purchase of the vehicle.
Charles Frank Baldwin and Michael Riley, two teenagers in 1985, both
testified that after leaving the Hilltop Drive-In late on the night of June 16, as
they approached the Morris’s house, a van pulled out in front of them from
between the Morris’s house and garage. Although neither witness saw the
driver or occupants, they both identified the van, as shown in Commonwealth’s
Exhibits 49 and 50. This testimony corroborated Bartley’s testimony that the
van and by inference, Hodge, Epperson and Bartley were at the Morris’s
residence that night. It also corroborates Bartley’s testimony that they left
hurriedly.
9
Bobby Morris, the victims’ son, testified that his parents were known to
have sums of money in their house, a fact known in the community of Gray
Hawk; that his father, as a used car dealer, regularly attended car auctions in
London; that his father was a good friend of Ep Epperson, father of Roger
Epperson; that Bobby had attended a London car auction with his father and
had seen Epperson and Hodge together approximately two to four weeks prior
to the crimes; that his father kept a .38 or .357 pistol on top of the refrigerator
in the kitchen; that the Morris’s residence had a sun room built that looked out
to the service station and post office; and that his mother had a diamond ring
and earrings. In describing the crime scene, he stated that his father’s billfold
had been taken. On cross-examination, Bobby also testified that he had seen
Epperson, Hodge and a third man dressed alike, and all three had yellow
peroxide hair. This testimony corroborated Bartley’s testimony as to how
Epperson gained access to the house, since he knew Ed Morris; Bartley’s
description of the house and sun room as a glass patio; Bartley’s description of
a real big set of diamond earrings and a big diamond ring; Bartley’s description
of having taken a .38 from the house; his description of a billfold taken from
the house that was burned along with Hodge’s clothes. This testimony also
corroborated Hamilton’s description of Hodge’s confession to her the following
day, June 17, that “Mr. Morris went for a gun up on top of the refrigerator.
And when he went for the gun, they scuffled and Benny Hodge shot Mr.
Morris.” Bobby Morris’ testimony also corroborated Hamilton’s testimony as to
Hodge attempting to change his appearance by peroxiding his hair immediately
before a criminal job.
10
As to the testimony and proof, two Laurel County juries, the Laurel
Circuit Court, not to mention one Warren County jury and the Warren Circuit
Court (as to Epperson’s separate trial), as well as this Court in its prior
opinions, and a federal district judge and three federal appellate circuit judges,
have all determined that the three men, Hodge, Epperson and Bartley, devised
and carried out a plan to rob Ed and Bessie Morris. The proof established
beyond a reasonable doubt that Hodge committed two murders, robbery and
burglary. Hodge’s brief appears to suggest that testing seven hairs may prove
that Bartley entered the house with Hodge, thereby casting doubt on his
otherwise corroborated testimony. Two points. One, the jury heard the
discrepancy in Hamilton’s and Bartley’s testimony, and regardless of which
witness they believed, both testified that Hodge entered carrying a .38 pistol,
his preferred weapon. Both Ed Morris and Bessie Morris were shot with a .38,
as well as a 9-mm. Hodge’s direct involvement inside the residence is not just
beyond a reasonable doubt, it is beyond any doubt. Second, following the guilt
phase, the jury heard of Hodge’s conviction in the Letcher County case
involving the murder of Tammy Acker and attempted murder of her father, Dr.
Roscoe Acker, and the concomitant robbery and burglary. We previously
addressed and affirmed the use of this conviction in the penalty phase. Hodge,
17 S.W.3d at 852. No reasonable probability exists that Hodge’s “verdict or
sentence would have been more favorable if the results of DNA testing and
analysis had been available at the trial leading to the judgment of conviction; or
DNA testing and analysis will produce exculpatory evidence[.]” KRS
422.285(6)(a).
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IV. CONCLUSION.
The Laurel Circuit Court’s Order is affirmed.
Minton, C.J.; Hughes, Keller, Lambert, Nickell and VanMeter, JJ., sitting.
All concur. Wright, J., not sitting.
COUNSEL FOR APPELLANT:
Dennis James Burke
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
Emily Lucas
Assistant Attorney General
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