FROM MCLEAN CIRCUIT COURT HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 13-CR-00027
FOR APPELLANT: Julia K. Pearson Assistant Public Advocate
Department of Public Advocacy Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Leilani K. M. Martin Assistant Attorney General Frankfort,
BEFORE: KRAMER, CHIEF JUDGE; DIXON AND NICKELL, JUDGES.
Hill Anderson entered a conditional guilty plea to
manufacturing methamphetamine and possession of drug
paraphernalia,  reserving the right to appeal several
unfavorable pretrial rulings. He brings this appeal to
challenge those rulings. For the reasons set forth below, we
1, 2013, Probation and Parole Officer Paul Newman received
information indicating Anderson, a parolee under his
supervision, was using methamphetamine and may have possessed
a tank of anhydrous ammonia. Based on this information,
Officer Newman decided to visit Anderson's residence in
Calhoun, Kentucky. Officer Newman asked deputies from the
McLean County Sheriff's Department and Pennyrile
Narcotics Task Force Detective Troy Gibson to accompany him
to Anderson's home.
the officers arrived, they found Anderson in a detached
garage by his house. Upon questioning, Anderson told the
officers he had used methamphetamine, cooked methamphetamine,
and helped other people cook methamphetamine at the home of
an acquaintance, Joshua Drury. The officers conducted a
search of Anderson's premises and discovered various
items used in the manufacture of methamphetamine: coffee
filters found in the trash, which field-tested positive for
methamphetamine residue; starting fluid and coffee filters,
found together in a toolbox; coffee filters soaked in
alcohol, found in Anderson's kitchen refrigerator; empty
pseudoephedrine packets; and a soda bottle with a hole
drilled in the cap. A deputy took several photographs of the
property and items seized during the search.
was subsequently tried and convicted of manufacturing
methamphetamine, possession of drug paraphernalia and being a
persistent felony offender in the first degree (PFO
The circuit court entered its final judgment on February 5,
2014, sentencing Anderson in conformity with the jury's
recommendation to twenty years' imprisonment. Shortly
thereafter, the Commonwealth tendered an ex parte
order requesting permission to destroy the physical evidence
in the case. The circuit court granted the order on February
10, 2014, and the McLean County Sheriff's Department
destroyed the evidence six days later.
direct appeal, the Supreme Court of Kentucky reversed and
remanded for a new trial based upon a unanimous verdict
violation. On remand, because the physical evidence had been
destroyed the Commonwealth moved to allow photographs from
Anderson's first trial to be admitted at his forthcoming
second trial. Two days later, Anderson moved the court in
limine to disallow the Commonwealth and its witnesses
from mentioning the destroyed evidence or the photographs.
After a series of hearings, the circuit court denied
Anderson's motion and granted the Commonwealth's
motion to allow use of the photographic evidence. The court
held the Commonwealth had not acted in bad faith, but had
inadvertently tendered the ex parte order
"because of some unexplained confusion or neglect."
The court further held the destroyed evidence would not have
been exculpatory. Finally, the court faulted Anderson for
failing to have the evidence tested before the first trial.
then filed a motion requesting the court give a missing
evidence instruction. The Commonwealth opposed the motion,
arguing the trial court had found no proof of bad faith in
destroying the evidence. The Commonwealth then averred a
missing evidence instruction would permit the jury to infer
evidence used in the first trial to convict Anderson would be
favorable to him at a second trial. Based on the
non-exculpatory nature of the destroyed evidence, the court
denied the requested missing evidence instruction.
l, 2016, Anderson filed another motion seeking recusal of the
trial judge and the Commonwealth's Attorney because both
would be "relevant and material witnesses in this
case." At a hearing on the motion, Anderson pointed out,
notwithstanding the court's denial of the request for a
missing evidence instruction, the defense could introduce
proof that evidence relevant to his case is now missing. The
court denied the motion, stating counsel had not shown how
the testimony of either the trial judge or the
Commonwealth's attorney was "material or relevant to
the issue the jury is to decide." Further, the court
found injecting that issue into a trial "would only
serve to mislead and confuse the jurors." It further
noted, "[t]he jury is not being impaneled to determine
whether evidence was wrongfully destroyed, but whether
[Anderson] committed the crime of manufacturing
methamphetamine." On June 13, 2016, Anderson entered his
conditional guilty plea to manufacturing methamphetamine and
possession of drug paraphernalia,  and the court sentenced him
to serve eighteen years in prison in accordance with the plea
agreement. This appeal followed.
contends the circuit court denied him due process when it
denied his motion and ruled the Commonwealth, upon retrial,
could introduce photographs of the destroyed evidence.
Generally, the standard of appellate review for a circuit
court's evidentiary rulings is abuse of discretion.
Woodward v. Commonwealth, 147 S.W.3d 63, 67 (Ky.
2004) (citation omitted). "A trial court abuses its
discretion when it renders a decision which is arbitrary,
unreasonable, unfair or unsupported by legal
principles." Williams v. Commonwealth, 229
S.W.3d 49, 51 (Ky. 2007) (citation omitted).
Commonwealth moved the trial court to permit photographs of
the physical evidence from the first trial to be utilized at
the second trial. In support of the motion, the Commonwealth
argued it had tendered the ex parte order to destroy
the evidence "through error and mistake." At a
hearing on the motion, the Commonwealth argued there was no
evidence of bad faith. In addition, the Commonwealth argued
Anderson could not now allege "some sort ...