Roger Epperson v. Commonwealth of Kentucky

RENDERED: SEPTEMBER 30, 2021
MODIFIED: OCTOBER 1, 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.
5
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, Lambert, and VanMeter, JJ., concur. Minton,

C.J., concurs in result only by separate opinion in which Keller and Nickell, JJ.,

join.

MINTON, C.J., CONCURRING IN RESULT ONLY: I concur with the

majority’s decision to affirm the circuit court’s denial of Epperson’s RCr 11.42

motion. Based on our 2018 decision in which we concluded that Epperson’s

counsel did not explicitly concede guilt to any offense, like the majority, I

believe that his trial counsel instead presented a trial strategy with which

Epperson now avers he did not agree. However, I concur in result only because

I disagree with the majority’s conclusion that Epperson’s claim is now

procedurally barred under McCoy v. Louisiana. In my view, McCoy does not

necessarily require a contemporaneous objection to defense counsel’s

presentation of his defense at trial. Instead, its holding is that a defendant’s

“autonomy to decide that the objective of the defense is to assert innocence” is

sacrosanct. Any violation of this autonomy is a structural error. In applying

McCoy to the present case, the majority correctly finds Epperson failed to make

a record of his objections to counsel’s presentation at trial. But, I find that a

post-conviction proceeding in which a violation of the defendant’s autonomy is

directly at issue, such as in an ineffective assistance of counsel hearing, would

be an additional time for a defendant to raise the fact that his trial counsel

conceded guilt against his explicit wishes.

Keller and Nickell, JJ., join.
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COUNSEL FOR APPELLANT:

David M. Barron
Assistant Public Advocate
Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Cameron
Attorney General of Kentucky

Robert Baldridge
Assistant Attorney General

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 Supreme Court of Kentucky
2019-SC-0724-MR

ROGER DALE EPPERSON APPELLANT

ON APPEAL FROM THE WARREN CIRCUIT COURT
V. HONORABLE STEVE ALAN WILSON, JUDGE
NO. 97-CR-00016

COMMONWEALTH OF KENTUCKY APPELLEE

ORDER MODIFYING

The Opinion issued on September 30, 2021 is hereby modified to include

a separate opinion by Chief Justice Minton. This modification does not affect

the holding of the Opinion.

ENTERED: October 1, 2021.

_______________________________________
CHIEF JUSTICE