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Anderson v. Commonwealth

Court of Appeals of Kentucky

November 3, 2017

HOWARD HILL ANDERSON APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM MCLEAN CIRCUIT COURT HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 13-CR-00027

          BRIEF FOR APPELLANT: Julia K. Pearson Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky

          BEFORE: KRAMER, CHIEF JUDGE; DIXON AND NICKELL, JUDGES.

          OPINION

          NICKELL, JUDGE.

         Howard Hill Anderson entered a conditional guilty plea to manufacturing methamphetamine[1] and possession of drug paraphernalia, [2] reserving the right to appeal several unfavorable pretrial rulings. He brings this appeal to challenge those rulings. For the reasons set forth below, we affirm.

         On July 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.

         When 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.

         Anderson was subsequently tried and convicted of manufacturing methamphetamine, possession of drug paraphernalia and being a persistent felony offender in the first degree (PFO I).[3] 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.

         On 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.

         Anderson 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.

         On June 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, [4] and the court sentenced him to serve eighteen years in prison in accordance with the plea agreement. This appeal followed.

         Anderson 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).

         The 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 ...


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