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HODGE v. HAEBERLIN
579 F.3d 627 (2009)
United States Court of Appeals, Sixth Circuit.
Argued: October 21, 2008.
In addition to the previous testimony of Bartley, the Commonwealth introduced the testimony of Hodge's ex-wife Sherry Hamilton. Hamilton related several instances in which Hodge allegedly told her that he committed the murders. Specifically, she testified that Hodge told her that he and Bartley entered the Morrises' home in order to rob them, that Mr. Morris went for a gun on the top of the refrigerator, and that Hodge and Mr. Morris got into a scuffle that ended with Hodge's shooting Mr. Morris. Thereafter, Bartley took Mrs. Morris into the bedroom and shot her. Hodge asked if Mrs. Morris was dead and, when Bartley said that he thought so, Hodge returned to the bedroom and shot Mrs. Morris again to make
sure she was dead. Hamilton admitted that she had stated many times in the past that Hodge had not committed the murders. She also admitted to being an accomplished liar. She admitted to stealing from her employer, lying to the police, and participating in an immigration scam. She also admitted to bragging about her ability to lie effectively by mixing a bit of truth into a fabricated account. She asserted that although in the past, when she was romantically involved with Hodge, she had lied about Hodge's participation, she was now coming forward with the truth in the interest of justice. The Commonwealth also presented testimony from the victim's son, Bobby Morris. Morris testified about his acquaintance with Roger Epperson in the months leading up to the murders, about his father's well-known practice of keeping large sums of cash in the house, about the layout of his parents' home, and about other matters that set the context for the crimes committed against his parents. In the course of his testimony, Morris described some details of his father's appearance on the morning he was discovered dead. Although Morris's testimony was emotional at times, Hodge's counsel did not object to the testimony. Several of the defense's witnesses and documents are also relevant to this appeal. The defense introduced the testimony of forensic serologist Ed Taylor, who testified that none of the biological evidence collected at the scene was ever linked to Hodge. Taylor testified on cross-examination that he did not have a hair or blood sample from Hodge with which to make comparisons. The defense also introduced the testimony of fingerprint expert Sara Skees, who testified that she analyzed twenty-two finger and palm prints lifted from the crime scene. She testified that multiple prints were linked to the Morrises and that others were never identified. None of the prints were linked to Hodge or his co-defendants. The defense also introduced the video deposition of Tammy Gentry, who testified that while she and Bartley were housed in the same prison facility, Bartley told her that Bartley killed the Morrises, that Hodge and Epperson were not involved, and that he was making a favorable plea bargain with the government. The defense also introduced a certified court document in which the Commonwealth Attorney recommended a favorable probation arrangement for Bartley on several burglary charges to which Bartley pled guilty. The stated reason for the recommendation of leniency was that Bartley significantly aided the Commonwealth in the solution of several crimes and the prosecution of the perpetrators. The defense attempted unsuccessfully to introduce the testimony of Elizabeth Shaw, who served as defense counsel at Hodge's first trial. The trial court disallowed Shaw's testimony as double hearsay. Shaw then testified by avowal that Hamilton previously told her that Bartley had taken credit for both murders in the days immediately following the crimes. Additionally, the defense was unable to secure the testimony of Darcy O'Brien, an author who conducted extensive interviews with Hamilton while writing a book about another murder Hodge had committed. That murder, which occurred during the same crime spree as the Morris murders, was tried in separate proceedings and was not known to the jury until the penalty stage. At the penalty stage, the defense was unable to secure the testimony of Ann-Marie Charvat, a mitigation expert who prepared the penalty portion of the defense's case and who was unable to attend the trial because of a high-risk pregnancy. The defense nonetheless presented thirteen witnesses in mitigation, including several of Hodge's immediate family members, his eighth grade teacher,
and a judge who had dealt with complaints of sexual abuse at a juvenile institution where Hodge had been held as a teenager. The jury ultimately convicted Hodge of first degree robbery, first degree burglary, and two counts of murder. The jury sentenced him to terms of imprisonment for the robbery and burglary offenses and to death for each count of murder. The Supreme Court of Kentucky affirmed Hodge's conviction and sentence on direct review. Hodge v. Kentucky,17 S.W.3d 824 (Ky.2000) [hereinafter Hodge I]. The United States Supreme Court denied certiorari. Hodge v. Kentucky, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000). Hodge pursued state collateral review under Kentucky Rule of Criminal Procedure 11.42. The state supreme court ultimately affirmed the denial of relief. Hodge v. Kentucky,116 S.W.3d 463 (Ky.2003), overruled by Leonard v. Kentucky,279 S.W.3d 151, 159 (Ky.2009) [hereinafter Hodge II]. Hodge again sought and was denied certiorari in the United States Supreme Court. Hodge v. Kentucky,541 U.S. 911, 124 S.Ct. 1619, 158 L.Ed.2d 258 (2004). Hodge then sought habeas relief in federal district court, asserting thirty-eight claims of error. The district court denied relief, but certified Hodge's claims of ineffective assistance of counsel for appeal. This court did not certify any additional issues. Shortly before the oral argument in this case, Hodge filed a motion informing this court that he had recently learned the results of a DNA test conducted on a hair taken from Mrs. Morris's nightgown. According to the motion, Hodge's counsel recently contacted Ed Taylor, who is now retired from the state police crime lab. After speaking with Taylor and following up with the state crime lab, counsel learned that in 1998, several years after Hodge's conviction, the state collected blood samples from Hodge and his co-defendants as part of Epperson's prosecution. The results of the DNA test showed that the hair did not come from Hodge or either of his co-defendants. In conjunction with Epperson's state collateral attack on his sentence, the state court has ordered testing of other biological material found at the crime scene. Hodge recently obtained an order from the Laurel Circuit Court that allows Hodge's attorneys to get access to the forthcoming results. Hodge seeks to have his case stayed and held in abeyance, either in this court or in the district court, pending the outcome of the DNA testing and any state action taken in response to the results. II. Motion to Stay and Hold in Abeyance
1. Kentucky has since modified the way that it applies a procedural bar to ineffective assistance of counsel claims that are based on claims of error denied on direct appeal. See Leonard, 279 S.W.3d at 157-59. The Leonard court held, "While such an ineffective-assistance claim is certainly related to the direct error, it simply is not the same claim. And because it is not the same claim, the appellate resolution of an alleged direct error cannot serve as a procedural bar to a related claim of ineffective assistance of counsel." Id. at 158. Leonard appears to overrule Hodge II to the extent that Hodge II applied the previous procedural bar requirements. Id. at 159. However, the holding of Leonard in this regard does not apply retroactively, and it therefore appears that Hodge's conviction cannot now be challenged in state court on the basis of Leonard. Id. at 162. 2. The court noted that while the discovery order in question exceeded the trial court's authority, the order was valid and binding on the prosecution until overruled. Hodge I, 17 S.W.3d at 849.
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