Released for Publication May 14, 2015.
ON APPEAL FROM MCCREARY CIRCUIT COURT. HONORABLE DANIEL L. BALLOU, JUDGE. NO. 97-CR-0024-001.
COUNSEL FOR APPELLANT: Euva Denean Blandford, Dennis James Burke, Assistant Public Advocate, Department of Public Advocacy.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky; David Wayne Barr, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals.
Minton, C.J., Abramson, Cunningham, Keller, Noble and Venters, JJ., sitting. All concur.
Seeking post-conviction relief from a death sentence, Appellant John Roscoe Garland argued in the McCreary Circuit Court that he was deprived of due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Section 11 of the Kentucky Constitution, when, immediately after his trial, police officers acting in bad faith destroyed certain items of evidence, rendering them unavailable for DNA testing. Following an evidentiary hearing on the issue, the McCreary Circuit Court found that the officers had not acted in bad faith when the evidence was destroyed. The court denied Garland's request. Garland now appeals that ruling to this Court. For the reasons stated below, we conclude that Garland had previously abandoned his request to have those items of evidence tested by DNA analysis, and therefore, waived any complaint he may have about their unavailability for DNA testing. We also conclude that Garland failed to establish the officers acted in bad faith, and so we affirm the decision of the McCreary Circuit Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
We begin by reviewing the procedural route this case has taken to reach this point. Garland was charged with three counts of murder for the 1997 slayings of
Jean Ferrier, Crystal Conaster, and Chris Boswell. Following a jury trial in the McCreary Circuit Court, he was convicted and sentenced to death on each count. We affirmed the convictions and the death sentences in Garland v. Commonwealth, 127 S.W.3d 529 (Ky. 2003).
After his convictions were affirmed, Garland filed a motion in the circuit court to obtain DNA testing and analysis of certain evidentiary items pursuant to KRS 422.285, which permits a person convicted of murder and other specified crimes to request DNA testing of items " related to the investigation or prosecution . . . that may contain biological evidence." Garland also invoked KRS 422.287, which permits persons " being tried for a capital offense" to obtain DNA testing and analysis of items of evidence. Specifically, Garland moved the court to submit, among other things, three evidentiary items for DNA testing and analysis: the hair recovered from Jean Ferrier's left hand; hair found on a broken Ferrier fingernail; and Jean Ferrier's fingernail clippings. The McCreary Circuit Court denied Garland's motion, and he appealed that ruling to this Court. See Garla ...