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Tigue v. Commonwealth

Supreme Court of Kentucky

March 14, 2019

SHAWN TIGUE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM BELL CIRCUIT COURT HONORABLE ROBERT COSTANZO, JUDGE NO. 03-CR-00082

          COUNSEL FOR APPELLANT: Shannon Renee Dupree, Emily Holt Rhorer, Assistant Public Advocate.

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

          OPINION

          MINTON, CHIEF JUSTICE

         A circuit court jury found Shawn Tigue guilty of first-degree murder, first-degree burglary, second-degree possession of a controlled substance, third-degree possession of a controlled substance, and possession of a controlled substance not in its original container. After finding the first-degree burglary conviction to be an aggravator, the jury recommended a sentence of life without the possibility of parole, which the trial court adopted. The parties agreed on sentences for the remaining convictions: 20 years for the first-degree burglary conviction, 12 months for the two possession convictions, and 90 days for the improper-container conviction. Tigue then appealed directly to this Court as a matter of right, raising several issues for review. We reverse the portion of the judgment that contains Tigue's first-degree murder conviction, affirm the remainder of the judgment, and we remand the case to the trial court for further proceedings consistent with this opinion.

         I. FACTUAL BACKGROUND.

         At 12:55 p.m. on April 11, 2003, the dead body of elderly, bedridden Bertha Bradshaw was found lying on her bed, the victim of a gunshot wound to the back. Authorities were notified, and a neighbor reported seeing a vehicle belonging to Shawn Tigue, leaving the Bradshaw residence at 10:30 that morning. An inspection of the residence revealed pry marks on the doorjambs of the two doors leading into the house and a large hole in a door.

         Based on this information, Trooper Jeremy Lee performed a traffic stop on Tigue's maroon Chevrolet truck, in which Tigue was the passenger and his wife the driver. After a search of Tigue and the truck, Trooper Lee found a prescription pill bottle on Tigue that "had a scraped and tampered label and three types of drugs" that Tigue identified as being his medication. Inside the truck was an army bag filled with shotgun shells. Trooper Lee then brought Tigue in for questioning.

         At 6:50 that evening, Detective Don Perry interviewed Tigue, noting he appeared to be intoxicated. Tigue told Detective Perry that he bought the Xanax that was found on his person from a drug dealer. For another of the drugs found on his person, hydrocodone, Tigue claimed he had a prescription, which he claimed helped alleviate his self-diagnosed seizures. Tigue also claimed that the army bag and shotgun shells belonged to his late father.

         Tigue told Detective Perry that he left his house at around 9 or 10 that morning to visit his cousin, Buddy Tigue. Tigue then stated that he and Buddy made a run to Ferndale for illegal drugs. Tigue admitted to having ingested "about four" of the Xanax pills. Tigue also spoke about the pill bottle, stating that identifying information on it had been scratched off. Nonetheless, Tigue had the prescription filled at the Rite Aid Pharmacy. Tigue stated that he was wearing a red flannel shirt that morning but had changed his clothes.

         Tigue told Detective Perry that he "heard Bertha Bradshaw got shot just before we left. . . for . . . brother's wife's birthday party." Tigue then explained his contact with Bradshaw: "I don't know her very well. When I was little ... she would give us pops and cookies and stuff like that." Tigue denied knowing about Bradshaw's medical condition, for which she was prescribed pain killers.

         The next morning, Detective Perry took possession of several evidentiary items, including Bradshaw's purse found at a nearby Rite Aid Pharmacy, the pill bottle, and the army bag with the shotgun shells. Detective Perry then decided to interview Tigue again. He told Tigue details of what he knew from his investigation so far and proposed various scenarios as to what occurred. Tigue then stated that between 10 a.m. and noon on April 11, an individual named Danny Smith brought him the army bag, the pill bottle with the scratched-off label, and a Xanax prescription belonging to Bradshaw. Tigue stated that Smith told him to fill the prescriptions, which they would split, and to get rid of the army bag. Tigue stated that he "kind of knew that [Smith] had robbed somebody," but denied knowing that Bradshaw had been murdered. Upon conclusion of the interview, Detective Perry started looking for Smith.

         Within 30 minutes of leaving the second interview, Detective Perry was paged to return because Tigue wanted to speak with him further. Before Detective Perry began his third interview of Tigue, Tigue stated that he wanted to give a "confession." Tigue then proceeded to outline his purported involvement in the events of this case.

         According to Tigue, he drove to the Bradshaw residence, parking his truck on Bradshaw's property, but did not remember at what time this occurred. Tigue knocked on the door, but no one answered. The entrance to the residence had two doors to be opened before entry into the residence was possible. Tigue used a screwdriver to break through the first door, then "rammed his fist" through the second door. Tigue even attempted to show officers the marks on his hand from the break in.

         Tigue then entered the residence and proceeded throughout the house. Tigue admitted he intended to rob Bradshaw. He saw Bradshaw lying in bed facing the window. He entered a room across from the bedroom and found Bradshaw's husband's gun. He took the gun, stating that he did so "just to have it, just in case she got up, just to scare her with it, so I could have time to get away." Bradshaw then called out, asking, "Who's there?" Tigue then turned the safety off the gun and shot Bradshaw in the back.

         Tigue then took Bradshaw's prescription pills, her purse, the gun, and her husband's army bag with shotgun shells. Tigue stated that he was high on pills during this time, "but that ain't no excuse."

         Tigue left the residence and hid the gun at a cemetery. After the interview, Tigue led police to the location of the gun, which they recovered.

         At trial, various witnesses other than those identified above testified.

         A Rite Aid pharmacist testified to having filled Bradshaw's prescription on April 11. The pharmacist testified that a young, tall, slender, dark-haired male brought Bradshaw's bottle in to fill. The pharmacist stated that he knew it was Bradshaw's bottle based on the unique identifiers he places on each patient's prescription bottles. Although Bradshaw herself did not come in to fill the prescription, the pharmacist stated that no restrictions existed on who could get a prescription filled. According to the pharmacist, the prescription was for 60 Xanax pills, and he admitted to mixing pill brands, but not strengths, as a part of his practice. Another Rite Aid pharmacist confirmed that on April 11, an individual "brought in a pocketbook to me" having a prescription with the name "Bertha Bradshaw" on it.

         Buddy Tigue, Tigue's cousin, also testified. Buddy stated that Tigue was at Buddy's house at noon on April 11 "to purchase some pain pills from [Buddy]," having driven up in a maroon Chevrolet truck. Buddy stated that he sold Lorcet and Xanax pills to Tigue. Buddy also stated that "[Tigue] pulled a pill bottle out of his pocket and put them back in his pocket." Buddy then stated that Tigue offered to sell Buddy a gun, a "12-gauge Remington pump, blue steel, looked like a brand-new gun to me." Buddy then said that Tigue told him the gun was "hot." Buddy did not buy the shotgun.

         Charles Griffin also testified. Griffin was riding his four-wheeler to get his mail the morning of Bradshaw's murder at around 8:15 or 8:30. Griffin testified to having heard a gunshot, knowing that it was a gunshot because of his vast hunting experience. After hearing the shot, Griffin testified to having seen Danny Smith trying to get out of a tangle of vines at the bottom of a hill on the Bradshaw premises. Smith did not have anything in his hands; rather, "He was using his hands to get through the thicket."

         Fay Neal, Tigue's mother, testified. She was staying at a friend's house in Kettle Island on April 11. It was the residence of Billie Storms, and Neal was there helping care for Storms's elderly, bedridden mother, Juanita. Neal stated that Tigue came to see her at 8:30 a.m. to get the key to their shared post-office box. According to Neal, Storms and her sister, who were away from the house at the time, came back to the house and shared a smoke with Tigue. Billie Storms also testified for a very limited purpose: to tell the jury that Neal told Storms that Neal caught Tigue attempting to break into Storms's mother's room. Neal testified that Storms is "best friends" with Danny Smith's mother.

         Virginia Middleton, Danny Smith's aunt, also testified. She stated that on April 11, at about 9 or 9:30 a.m., she saw Smith "passing towards the bridge up to her brother's house" on foot. Middleton is a resident of Dorton Branch, which, according to trial testimony, is about 20 minutes from Kettle Island. Middleton testified that Smith "was wearing a camouflage jacket and a camouflage pair of pants."

         Teresa Monroe, Tigue's sister, testified at trial that Smith was like family to her and was constantly around. Monroe testified about Smith's aggressive behavior, prompting her to notify police of his behavior for fear of what he would do to her children. Although she had not heard Tigue's confession to the ultimate events of this case, Monroe was convinced that it was false.

         Lastly, Tigue himself, also acting as hybrid counsel, testified at trial. Tigue's testimony was very different from the confession he gave to Detective Perry. Tigue stated that Danny Smith killed Bradshaw. He said that while returning from the visit with his mother at Storms's house in Kettle Island, he encountered Smith, who asked him for a ride, to which Tigue agreed. Tigue stated that once in the truck, "He explained to me that he went to [Bradshaw's] house and he believed he killed her." Tigue said that he pulled the truck over, but Smith refused to get out. Tigue then said that he and Smith got into a heated argument, and Tigue felt as though his family was in danger.

         Because of this fear of Smith, Tigue agreed to drive Smith to Bradshaw's house. Tigue stated, "We went straight in, under his direction, I wiped the kitchen cabinets. I went and wiped down the cabinets. I noticed a hole and stuff on the door. I followed him back to the back of the house and checked [Bradshaw's] pulse and she was obviously deceased." Tigue then admitted to taking the purse. Tigue also stated that he "was supposed to get rid of the gun [and] purse and fill the prescription at Rite Aid."

         After he filled the prescription at Rite Aid, Tigue and Smith split the pills and Tigue "started taking them immediately." Tigue then testified that he "tried to work on my mom's brakes and then I went in and passed out." The next thing he remembered was being pulled over by the police.

         When asked about his confession, Tigue stated that he "was willing to tell [police] whatever they wanted to hear to get out of that situation" and that he was "pill sick." Additionally, "the confession is false, and anybody can see that." Tigue did not tell police about Smith because he was afraid for his family members' lives and "based on all my experience with him that day, I think he would have slammed the door on [Detective] Perry's face and made good on his threats." Tigue ended his testimony by stating, "Danny Smith is responsible for the murder of Bertha Bradshaw and nobody wants to look into it."

         II. PROCEDURAL HISTORY.

         This case originated in 2003 with the indictment against Tigue that resulted in a guilty plea. During final sentencing, Tigue requested to withdraw his guilty plea, which the trial court denied. Tigue's collateral attack upon the resulting judgment, a Kentucky Rules of Criminal Procedure ("RCr") 11.42 motion, eventually made its way to this Court. We found Tigue's counsel to have been ineffective, reversed his convictions, and remanded the case to the trial court for a new trial.[1] At the trial following the remand, the jury found Tigue guilty of the charges previously mentioned, and the trial court entered judgment sentencing him to life in prison without the possibility of parole. From that judgment, Tigue now appeals to this Court.

         III. ANALYSIS.

         A. Billie Storms's Testimony

         Tigue's first issue is an allegation of trial court error for having allowed certain testimony into evidence. This alleged error is indisputably preserved for our review on appeal. We outline the factual circumstances of this issue in detail because Tigue has alleged several errors stemming from the admission of this evidence.

         The morning of Tigue's trial, the Commonwealth brought to the attention of the trial court that it had been contacted by an individual, Billie Storms, the day before trial with apparently new information about the case. Storms did not have personal knowledge of the events that transpired in this case; rather, the extent of her knowledge was that Tigue's mother, Fay Neal, told Storms that Neal caught Tigue attempting to break into Storms's mother's room the morning of the Bradshaw murder.

         The Commonwealth offered several reasons to use this testimony. First, the Commonwealth believed that this testimony could be admitted under the identity prong of Kentucky Rules of Evidence ("KRE") 404(b)(1), because it established Tigue's modus operandi. The purported events that Storms testified to, happened the same morning that Tigue broke into Bradshaw's house. In both situations, the victim was a bedridden, elderly female. Additionally, the victims were taking pain medication. The Commonwealth argued at trial that Tigue was close enough to both victims to know of their pain-medication use.

         The Commonwealth also argued this information was admissible to establish Tigue's whereabouts on the morning of the Bradshaw murder. Lastly, the Commonwealth asserted it could use this evidence to impeach Neal, should Neal give any testimony that conflicted with it.

         The trial court noted the respective arguments of both the Commonwealth and Tigue and issued a 21-page ruling on the proposed evidence. The trial court ruled: that the evidence, i.e. Storms's testimony, could not be presented during the Commonwealth's case-in-chief under the modus operandi exception to KRE 404(b)(1), despite having found that exception to be satisfied, because the witness came to light on the eve of trial; Storms's testimony could only be admitted for the purpose of impeachment, not as substantive evidence; and that it would issue a limiting instruction to the jury to ensure that Storms's testimony would not be used as substantive evidence of Tigue's guilt.

         As it happens, during the Commonwealth's direct examination of Neal, Neal denied telling Storms that Tigue had attempted to break into Storms's mother's room. The Commonwealth proceeded to call Storms for rebuttal, to which Tigue objected. The trial court allowed Storms to testify, and she told the jury that Neal told her that Neal caught Tigue trying to break into Storms's mother's room. After Storms finished testifying, the trial court admonished the jury to use the testimony only for impeachment, not any substantive purpose. Tigue alleges a host of purported errors based on these facts: the Commonwealth should not have been able to ask Neal about what Storms told her; the Commonwealth used Storms's testimony "as a guise or subterfuge" to impeach Neal with testimony that would otherwise be inadmissible; the trial court improperly ruled that KRE 4O4(b)(1)'s identity exception was satisfied; the impeachment was improper because it was done on a collateral fact; Storms's testimony was evidence-in-chief that was improperly admitted during the rebuttal phase; Storms's testimony should have been excluded because of late notice and the defense's inability to investigate it; and finally, the Commonwealth improperly "emphasized the substantive nature of the impeachment evidence to the jury* in closing argument.

         "[W]e review a trial court's evidentiary rulings for an abuse of discretion."[2] "The test for abuse of discretion is whether the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."[3]

         The Commonwealth's stated intent as to the use of Billie Storms's testimony was clear, as was seemingly admitted by the Commonwealth in its brief: The Commonwealth wanted the jury to hear that Tigue tried to break into another person's house the same morning he broke into Bradshaw's house and killed her. This is shown by the Commonwealth's KRE 404(b)(1) modus operandi argument, by the Commonwealth's strategy of impeaching its own witness, and by the Commonwealth's argument in closing reminding the jury of Storms's testimony.

         The trial court's involvement in all of this was to allow Storms's testimony to be admitted, but only for the limited purpose of impeaching Neal. Taking advantage of this ruling, the Commonwealth impeached its own witness through its own examination of Neal and later examination of Storms. "[A]lthough a party can impeach his own witness, [4] he cannot knowingly elicit testimony from a witness as a guise or subterfuge in order to impeach the witness with otherwise inadmissible testimony."[5]

         Billie Storms's testimony was inadmissible for two reasons. First, the burglary of which Tigue was convicted and the attempted burglary that Tigue purportedly committed were not so "'strikingly similar' in factual details, such that 'if the act occurred, then the defendant almost certainly was the perpetrator" to fall under the KRE 404(b)(1) admissible-propensity evidence exception of modus operandi to prove the identity of the perpetrator.[6] Second, the fact upon which Neal was impeached was a collateral matter.[7]

          Tigue predicated his defense on a denial of involvement in the initial burglary and murder, claiming instead that Smith was the true culprit. Responding to this argument, the Commonwealth sought to introduce Storms's testimony to the effect that Neal told her that Tigue tried to break into Storms's mother's residence, using the device of KRE 404(b)(1).

         "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible: (1) If offered for some other purposes, such as . . . identity."[8] "While evidence of prior crimes, wrongs, or acts, is inadmissible to prove the propensity of an accused, such evidence may be admissible to prove the identity of a perpetrator when the evidence of other crimes indicates a modus operandi."[9]

         "To indicate modus operandi, the two acts must show 'striking similarity' in factual details, such that 'if the act occurred, then the defendant almost certainly was the perpetrator[.]' That is, the facts underlying the prior bad act and the current offense must be 'simultaneously similar and so peculiar or distinct,' that they almost assuredly were committed by the same person."[10]Professor Lawson identified the following statements, taken from the Fifth

         Circuit's decision in U.S. v. Myers, [11] as helpfully outlining the modus operandi doctrine:

The probity of evidence of other crimes where introduced for this purpose depends upon both the uniqueness of the modus operandi and the degree of similarity between the charged crime and the uncharged crime. Of course, it is not necessary that the charged crime and the other crimes be identical in every detail .... But they must possess a common feature or features that make it very likely that the unknown perpetrator of the charged crime and the known perpetrator of the uncharged crime are the same person. The more unique each of the common features is, the smaller the number that is required for the probative value of the evidence to be significant. But a number of common features of lesser uniqueness, although insufficient to generate a strong inference of identity if considered separately, may be of significant probative value when considered together.[12]

         Simply put, the trial court abused its discretion when it concluded that the KRE 404(b)(1) identity exception was satisfied. We cannot stretch the concept of the modus operandi KRE 404(b)(1) identity exception to afford admissibiliry of this testimony as evidence under that exception.

         The similarities between the two incidents, as identified by the Commonwealth, are: the defendant purportedly knew both victims; both victims were elderly women confined to bed; both were prescribed pain medication; and Tigue tried unlawfully to enter their homes. The trial court additionally noted: the geographical location was about the same; both purported burglaries occurred during the daytime; and Tigue knocked before trying to enter in both situations.

         In comparison to these incidents, we note two situations that Professor Lawson identifies as satisfying the modus operandi exception.[13] In Spencer v. Commonwealth, the defendant, dressed as a police officer and using a policelike vehicle, stopped the victim's car and asked for her driver's license, drove the victim's car to a secluded place, and committed rape.[14] In United States v. Bohr, the defendant defrauded farmers by creating a scheme in which he would purportedly sell fertilizer to farmers without actually delivering it to them and pocketing their money.[15]

         In complete contrast to those two cases, Tigue's case lacks 'striking similarity' in factual details, such that 'if the act occurred, then the defendant almost certainly was the perpetrator, '" no "facts underlying the prior bad act and the current offense" that are "'simultaneously similar and so peculiar or distinct,' that they almost assuredly were committed by the same person." Tigue's defense was that someone else committed the burglary that led to the murder of Bradshaw. While Bradshaw and Storms's mother may have been elderly and bedfast and taking pain medication, none of the facts identified by the Commonwealth or trial court conclusively identify Tigue himself as the perpetrator.

         There was no identifying fact that Tigue himself was the one who tried to enter the homes on both occasions. In other words, there was no pretending to be a police officer, [16] no pretending to be a fertilizer salesman.[17] Simply because the victims share some commonality does not make "assured" the probability that the perpetrator was the same person in both situations; on the facts identified by the Commonwealth and trial court, it could be just as likely that Tigue's alleged alternative perpetrator was the one to enter Bradshaw's home and murder her. This is the lynchpin of the modus operandi identity KRE 404(b)(1) exception. And it was not met here.

         Additionally, the trial court erred when it admitted this evidence for impeaching Neal. "[O]ur case law continues to hold that impeachment on collateral matters by extrinsic evidence is not allowed."[18] We identified in Prater that "decisions on collateralness fall within the discretion of the judge and are reviewed for abuse of that discretion . . . ."[19] We must note, however, that this rule announced in Prater applies "when a party has opened the door to such issues."[20] We also note that the party that "opened the door" to the impeachment in Prater was the opposing party.[21]

         In this case, all the door-opening was done by the Commonwealth through its own witness. The Commonwealth called Neal as a witness, asking her about why Tigue was at Storms's mother's residence the morning of the Bradshaw murder. The Commonwealth specifically asked Neal on direct examination, "Did you tell Ms. Storms, Billie Storms, that your son had attempted to break in the bedroom window where their bedridden elderly mother was while you were there?" To which Neal responded, "No, I did not." "[A]lthough a party can impeach his own witness, [22] he cannot knowingly elicit testimony from a witness as a guise or subterfuge in order to impeach the witness with otherwise inadmissible testimony."[23]

         More importantly, we can assuredly say that the Commonwealth's impeachment of Neal was done on a collateral fact. Although numerous definitions of collateral exist, [24] they need not be specifically enumerated to identify why the fact upon which the impeachment was based was collateral.

         Whether or not Shawn Tigue attempted burglary at Storms's mother's residence has nothing to do with whether he committed burglary and murder at the Bradshaw residence. The testimony of Fay Neal assisted in establishing Tigue's whereabouts the morning of the Bradshaw burglary and murder, and Billie Storms's testimony did not contradict the fact that Tigue was, in fact, at Storms's mother's residence, which was the fact to which Neal testified. What exactly Tigue was doing while he was at Storms's mother's residence, unless related to the commission of the crime at the Bradshaw residence, is completely irrelevant to the crimes charged. And, in fact, nothing about what Tigue did at Storms's mother's residence had anything to do with what he did at the Bradshaw residence, apart from the Commonwealth's insinuation that what he did at Storms's mother's residence evidenced a propensity to commit the burglary at the Bradshaw residence. But, as already identified, other-bad-acts evidence is inadmissible to show action in conformity therewith.[25]

         The Commonwealth has not shown Tigue's actions at Storms's mother's residence to be relevant to his actions at the Bradshaw residence. The only relevancy of Neal's, and therefore Storms's, testimony that the Commonwealth articulates is establishing Tigue's whereabouts and showing that the two burglaries are similar, the former uncontradicted and the latter improper. Storms's testimony as to what Tigue did at Storms's mother's residence does not conflict at all with Neal's testimony that Tigue was at Storms's mother's residence; both testimonies establish that Tigue was at Storms's mother's residence the morning of the Bradshaw burglary. And we have already determined that evidence of the similarity of the burglaries should have been ruled inadmissible for failing the KRE 404(b)(1) modus operandi exception.

         For these reasons, the trial court erred when it ruled Storms's testimony admissible for any purpose. As such, the Commonwealth's reiterating of this improper evidence in closing argument was also erroneous. Tigue also makes two arguments as to why admission of Storms's testimony was procedurally deficient. Because, as we have already determined that Storms's testimony should not have been admitted, and because these procedural issues are unlikely to arise again, we need not address these arguments.

         B. Destruction of Evidence

         Tigue next takes issue in multiple ways with the trial court's response to the destruction of possibly exculpatory and relevant evidence. This issue is preserved for our review.

         It is undisputed that Detective Perry, after Tigue's 2004 guilty plea, destroyed 31 out of the 37 pieces of evidence collected in this case and gave the remaining six items to the Bradshaw family. Tigue argues that the trial court erred at the new trial in several ways in its handling of this issue. Tigue proffers three things that the trial court should have done to rectify the harm caused by this missing evidence: (1) the indictment should have been dismissed; (2) all the evidence that was disposed of should have been suppressed and no mention of it made; or (3) a missing-evidence instruction should have been given. Lastly, Tigue argues that the limitations the trial court imposed on his ability to examine the Commonwealth's witnesses on the issue violated his right to present a defense.

         We start with the relevant facts. Recall that in 2004, Tigue pleaded guilty to the murder of Bradshaw but sought to withdraw his guilty plea. Detective Perry attended the evidentiary hearing that resulted in the trial court's denial of Tigue's guilty-plea withdrawal. The trial court made comments that Tigue argues alerted Detective Perry to the fact that Tigue's case was not final, such as, "Shawn, 111 be seeing you back. I feel relatively certain about that."

         Later, Tigue requested items from the court record to be sent to him in preparation of his pro se RCr 11.42 motion. Later that year, Teresa Monroe, Tigue's sister, voluntarily sought out Detective Perry and asked him to investigate Danny Smith's possible involvement in this case, but Detective Perry declined to do so.

         A little more than a year later, Detective Perry destroyed the 31 pieces of evidence and returned the other six. The destroyed evidence included clothing fibers, various strands of hair, a potholder, and various DNA samples harvested from the victim. Tigue suggests that some of this evidence could be used to exculpate him by its tracing to Danny Smith.

         At an evidentiary hearing before the new trial, Detective Perry stated that he destroyed the items of evidence because he thought the case was over. Detective Perry stated that he did not recall the fact that Tigue attempted to withdraw his guilty plea. He said the first time he became aware of the request to withdraw the guilty plea was when this Court ordered a new trial in 2015, ten years after the fact. Additionally, he acknowledged that the trial court never ordered destruction of the evidence but that every order involving disposition of the evidence had his police sergeant's and his own signature.

         Before Tigue's new trial, the parties engaged in extensive motion practice, disputing how and to what extent the jury should be informed about the missing evidence. Tigue proffered a variety of arguments to support a finding of bad faith on the part of Detective Perry, including that Detective Perry: violated Kentucky State Police policies and procedures; violated KRS 524.140, which purportedly requires a trial court order before the disposition of evidence with a biological substance on it; and failed to investigate further potentially exculpatory evidence.

         Ultimately, the trial court ordered that: the Commonwealth could use the destroyed evidence at trial; any statement referring to Tigue's prior guilty plea, including a purported explanation by the Commonwealth as to why the evidence got destroyed, was inadmissible; a missing-evidence instruction was not warranted for lack of bad faith on the part of Detective Perry; the jury should simply be informed that the evidence was destroyed or returned to the Bradshaw family and the parties would be allowed to "briefly explor[e] the reasons behind that"; and that the defense could not characterize Detective Perry as guilty of criminal conduct.

         During Tigue's new trial, the Commonwealth called two witnesses, Lara Mosenthin and Marci Atkins, who are employees of the Kentucky State Police crime lab. Mosenthin provided testimony about the identification value of the strands of hair found at the crime scene. Notably, Mosenthin testified that some of the strands of hair found at the crime scene did not belong to Tigue or Bradshaw's husband and could possibly have been subject to further testing to reveal to whom they belonged. Mosenthin also testified about the clothing fibers found at the Bradshaw residence, stating notably that certain blue fibers were found that had been caught in the splinters of wood from a door. Through examination of Mosenthin and Atkins, Tigue attempted to elicit testimony from them regarding Detective Perry's lack of further investigation of the DNA evidence and results, in addition to trying to show that Kentucky law somehow prohibited Detective Perry from taking certain actions.

         Over the course of Tigue's new trial, language was used to describe the destruction of the evidence, such as the evidence being disposed of "as a result of a prior court proceeding" and "as part of that case review process." The Commonwealth in its closing argument stated, "For all the hoopla about where is that evidence, they know just like this detective said, as a result of a prior legal proceeding, the detective disposed of that evidence in a proper way. Some he gave back to the family and the rest had already been tested."

         "To make out a due process violation where evidence has been destroyed, the defendant must show (1) that the State acted in bad faith in failing to preserve the evidence; (2) that the exculpatory potential of the evidence was apparent before its destruction; and (3) that the evidence was, to some extent, irreplaceable."[26] "The first two elements are interrelated. It must appear that the State deliberately sought to suppress material, potentially exculpatory evidence."[27]

         "[A] missing evidence instruction should be given when material evidence within the exclusive possession and control of a party, or its agents or employees, was lost without explanation or is otherwise unaccountably missing, or was through bad faith, rendered unavailable for review by an opposing party."[28] "When appropriately given, the missing evidence instruction allows the jury, upon finding that the evidence was intentionally and in bad faith destroyed or concealed by the party possessing it, to infer that the evidence, if available, would be adverse to that party or favorable to his opponent."[29] "When it is established that the evidence was lost due to mere negligence or inadvertence, which, in effect, negates a finding of bad faith, the missing instruction should not be given."[30]

         Ultimately, the lynchpin for a finding of a due-process violation and the giving of a missing-evidence instruction is a finding of bad faith, or, in the case of a missing-evidence instruction, that the evidence was lost without explanation. Here, there is no question what happened to the evidence, so we must determine whether Detective Perry acted in bad faith when he destroyed the 31 pieces of evidence, some of them possibly having exculpatory value.

         Considering the entirety of the factual circumstances, we are constrained to conclude that, at most, Detective Perry was careless in destroying the evidence, We cannot find any fact relayed to us by Tigue that amounts to "the State deliberately [seeking] to suppress material, potentially exculpatory evidence"[31] or any "ill motive or intention on the part of the Commonwealth."[32]

         No doubt Detective Perry should have been more careful in his handling of the evidence and later disposition of it. But he disposed of the evidence almost two years after he witnessed Tigue plead guilty. True, Tigue attempted to withdraw that guilty plea, which could be argued as an alert to Detective Perry, who was present at that hearing. But it is also true that Tigue did not pursue a direct appeal of the original judgment following the guilty plea, instead attempting pro se collateral attack on the judgment under RCr 11.42 for ineffective assistance of counsel. Under these circumstances, we cannot say that Detective Perry deliberately sought to suppress potentially exculpatory evidence or exhibited any ill will or intention when he disposed of the evidence. Rather, it appears that he simply disposed of evidence, with his sergeant's permission, in a case where a defendant pleaded guilty and did not take a direct appeal almost two years after a hearing in which the trial court denied the defendant's withdrawal of his guilty plea.

         Additionally, even assuming Tigue's allegation to be true that Detective Perry violated KSP policies and procedures, in addition to having violated KRS 524.140(3), these circumstances only offer evidentiary support in arguing bad faith. In other words, these circumstances, in and of themselves, do not equate to bad faith.[33]

         This is not to say that the trial court appropriately handled the matter. Although the trial court did not err when it did not dismiss the indictment, suppress any mention of use of the evidence, or offer a missing-evidence instruction, the trial court did abuse its discretion in its handling of the discussion of the evidence at trial before the jury.

         As the trial court noted, we made clear in Estep v. Commonwealth, that none of the rules limiting when a missing-evidence instruction may be given "precludes a defendant from exploring, commenting on, or arguing inferences from the Commonwealth's failure to . . . preserve . . . evidence. It just means that absent some degree of *bad faith,' the defendant is not entitled to an instruction that the jury may draw an adverse inference from that failure."[34]

         The circumstances involving the handling of the evidence in this case were relevant to Tigue's right to present a defense. The lead detective in Tigue's case ended up destroying possibly exculpatory evidence. Not only is this a relevant fact in assisting Tigue in his defense, but we agree with Tigue's assertion that the Commonwealth's and trial court's characterization of the matter suggested to the jury that the evidence was properly disposed of, especially the Commonwealth's characterization of the issue in its closing argument.

         At the very least, the trial court should have ascertained the merits of Tigue's argument that the evidence was improperly disposed of according to KSP policies and procedures and KRS 524.140. In its order, the trial court refused to take a position on this matter, concluding instead that, "It is not apparent to the Court how suggesting to the jury through cross-examination that Detective Perry violated criminal statutes in destroying or releasing evidence is relevant. . . ." We respect the trial court's attempt to avoid confusing the jury with matters that may appear collateral and irrelevant to the true nature of the case. But preventing an examination of the lead detective in this case about his having destroyed possibly exculpatory evidence in possible violation of Kentucky law, in addition to limiting Tigue's ability to argue this issue to the jury, was erroneous.

         While the trial court did not err in refusing to give a missing-evidence instruction, suppress evidence, or dismiss the indictment, [35] we find that the trial court did abuse its discretion in the handling of the characterization of the missing evidence in this case. Tigue should have been allowed to explore the destruction of evidence and argue his point on this matter to the jury.

         C. Expert Witness Testimony

         Tigue next alleges that the trial court erred when it restricted the testimony of the expert witness that he proffered to testify about the phenomenon of false confessions. This issue is properly preserved for our review. A trial court's determination as to whether to allow expert opinion testimony under KRE 702 is reviewed for an abuse of discretion.[36]

         As part of his defense, Tigue sought to introduce the testimony of Dr. Bruce Frumkin, who specializes in, among other things, the phenomenon of false confessions. Dr. Frumkin performed a psychological evaluation of Tigue, in which Dr. Frumkin stated the following in his ultimate report relevant to his potential testimony:

If I were to testify in court, based on the questions asked of me, I would describe Mr. Tigue's psychological functioning as discussed above, the effects of the drugs he was taking and the withdrawal from them, and the relevancy of all of that to his perceived threat from Mr. Smith combined with the manner of questioning by law enforcement. Depending on the questions posed to me, I could also integrate that data with some of the research on false confessions.
I will not give an opinion as to whether I believe Mr. Tigue likely gave a false confession. That would be inappropriate for me to do so. I will discuss the various factors outlined above so the jury can decide for themselves how much weight to give his statements.

         In a 19-page order analyzing the Commonwealth's motion to exclude Dr. Frumkin's testimony from evidence, the trial court concluded the following:

. Dr. Frumkin may not testify as to the phenomenon of false confessions. Consequently, he may not opine as to the Defendant's susceptibility of giving a false confession based upon the presence of psychological factors associated with giving false confessions. Similarly, counsel may not address the phenomenon of false confessions or the Defendant's susceptibility in presenting or arguing to the jury. Defendant may present lay evidence of the physical and psychological environment of his confession . . . and Dr. Frumkin may testify as to the nature of the Defendant's mental condition generally, and as to particular psychological characteristics that in his opinion are relevant to an interrogation setting .... Beyond this point, it will be up to counsel to make the point to the jury, to the extent thought necessary, regarding the Defendant's theory that his confession was false. The jury will be free to assess the Defendant's credibility, in confessing or recanting, as it wishes.

         Essentially, we must decide whether a criminal defendant may offer evidence under KRE 702 addressing the purportedly ...


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