Dissenting.
I respectfully dissent from the majority opinion because the RCr 11.42 motions of Epperson and Hodge, do not establish a sufficient basis for granting the relief requested or for holding an evidentiary hearing on the issues presented.
Initially, the RCr 11.42 motion by the defendants claiming jury tampering failed to allege any specific facts or sources of evidence to support the conclusory allegations. The circuit judge properly rejected these claims because there was no specific factual support for them. The alleged supporting facts which the defendants argue before this Court were not presented to the circuit court until after the RCr 11.42 motion was denied and the notice of appeal had been filed. Each allegation was stated in a single sentence without citation to the record. It has been held that conclusory allegations of juror misconduct or information from anonymous sources is not sufficient to require a hearing on the alleged jury misconduct. See Sanborn v. Commonwealth, Ky., 975 S.W.2d 905 at 911 (1998); Smith v. Commonwealth, Ky., 734 S.W.2d 437 at 445 (1987).
The allegations of jury tampering do not ascend to the level of even a potential violation of any constitutional right. The obviously lengthy 51 page RCr 11.42 motion with innumerable attachments does not provide the necessary specifics to support the complaint that is made here. This Court has held that as to each individual claim in an RCr 11.42 motion, the motion must set forth all facts necessary to establish the existence of a constitutional violation and the court will not presume that facts omitted from the motion establish the existence of such a violation. See Stanford v. Commonwealth, Ky., 854 S.W.2d 742 at 748 (1993); Skaggs v. Commonwealth, Ky., 803 S.W.2d 573 at 576 (1990). Wilson v. Commonwealth, Ky., 975 S.W.2d 901 (1998), indicated that even if an evidentiary hearing was necessary *347regarding some of the claims, a reviewing court should limit that hearing to only those issues which were not refuted by the record. It should be noted that trial counsel for Hodge was not constitutionally ineffective at the penalty phase of the case because defense counsel was able to prevent the prosecution from introducing the prior felony convictions of Hodge and to persuade the prosecutor to enter a stipulation regarding the background and family relationships of Hodge.
Finally, it appears that the attorneys representing the defendants were aware that their original motion was inadequate because after the RCr 11.42 motions were denied, they filed a CR 59.05 motion alleging more specific facts and containing statements from a former deputy sheriff. It would appear that this would be a strong indication that the complaint relative to the failure to introduce mitigating evidence was actually trial strategy and not ineffective assistance of counsel.
I would affirm the order of the circuit court overruling the RCr 11.42 motions.
GRAVES, J., joins this dissent.