IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 19, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0442-MR
SCOTT HURLEY APPELLANT
ON APPEAL FROM PIKE CIRCUIT COURT V. HONORABLE EDDY COLEMAN, JUDGE NO. 23-CR-00249
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Pike County jury found Scott Hurley (“Hurley”) guilty of first-degree
fleeing or evading police; tampering with physical evidence; first-degree
trafficking in a controlled substance, two or more grams of methamphetamine;
first-degree trafficking in a controlled substance, fentanyl; and being a first-
degree persistent felony offender. The Pike Circuit Court thereafter sentenced
Hurley to twenty years in prison. Hurley now appeals as a matter of right and
challenges his convictions. See KY. CONST. § 110(2)(b). Having reviewed the
record, the arguments of the parties, and the applicable law, we affirm the Pike
Circuit Court.
I. BACKGROUND
On July 4, 2022, at approximately 2:30 a.m., Officer Larry Thacker of the
Pikeville Police Department was parked on the median of U.S. Route 23 when he observed Hurley drive past him going southbound at approximately seventy
miles per hour in a red Mitsubishi Galant. The posted speed limit for this
stretch of road was fifty-five miles per hour. As a result, Officer Thacker
activated his lights and siren and pursued Hurley. Hurley continued at seventy
miles per hour for about three quarters of a mile before slowing down,
maneuvering onto a turning lane, and exiting the highway onto KY 3496.
The exit onto KY 3496 is a tight hairpin turn that takes travelers in the
opposite direction toward Downtown Pikeville. Upon maneuvering onto the
hairpin turn of KY 3496, Hurley’s two passenger-side wheels dropped onto the
gravel shoulder. Officer Thacker testified that it was at this point that he
observed Hurley throw a white object out the passenger-side window. Officer
Thacker was approximately fifteen to twenty feet behind Hurley’s vehicle when
he noticed the object fly toward the post of a KY 3496 road sign. However,
because Hurley continued driving down KY 3496, Officer Thacker was forced to
abandon the opportunity to examine the potential evidence and continue
pursuing Hurley. Officer Thacker radioed to his fellow officers, Officer Patrick
Coleman and Sergeant Sonny Buckley, for backup.
Hurley then drove on the wrong side of KY 3496 for approximately a
couple hundred feet before turning into the parking lot of a local restaurant.
Both vehicles then came to a stop, and Officer Thacker instructed Hurley to
stay in his car. Hurley exited his vehicle anyway and walked toward Officer
Thacker. Officer Thacker testified that Hurley was “acting very jittery—very—
like he was almost on a stimulant.” Officer Thacker then arrested Hurley and
2 placed him in the back of his patrol vehicle. Officer Coleman and Sergeant
Buckley then arrived on the scene, and Officer Thacker pointed his flashlight
toward the KY 3496 road sign where he believed the white object might be
located.
Officer Coleman testified that he walked straight toward the road sign
from the restaurant parking lot and retrieved a white grocery bag matching
Officer Thacker’s description. Both Officer Thacker and Officer Coleman
testified that although it was the middle of the night, this area was well-lit by
streetlights. Officer Coleman further testified that there were no other grocery
or shopping bags in that vicinity, nor was there any garbage around where the
white bag appeared to land. The white grocery bag contained two small clear
packages. One package contained what was later confirmed to be 199.7 grams
of a crystalline substance containing methamphetamine, and the other 4.8574
grams of a powdery substance containing fentanyl and flurofentantyl.
Following his arrest, Hurley declined Officer Thacker’s invitation to take
a sobriety test. Officer Thacker thereafter placed the two packages of drugs on
the passenger-side floorboard of his vehicle, and transported Hurley to the Pike
County Detention Center (“PCDC”). Officer Thacker and Hurley arrived at
PCDC at 3:16 a.m. Officer Thacker completed Hurley’s arrest citation inside the
PCDC sallyport before bringing Hurley inside at 4:05 a.m.
Lieutenant Ryan Hicks is a lieutenant at the PCDC. Part of Lieutenant
Hicks’s role at the PCDC is facilitating the arrestee booking process. Lieutenant
Hicks testified that while it is not his usual practice to help an officer with an
3 arrestee in the sallyport, he did so with Officer Thacker on the night in
question. Lieutenant Hicks could not remember why exactly he went to help
Officer Thacker at the sallyport, but he speculated that it was because Hurley
was being combative. Lieutenant Hicks explained that it can be hard for an
officer to focus and fill out the arrest citation with a combative arrestee in the
vehicle, so when that is the case, he will go to the sallyport and attempt to calm
the arrestee down.
While at the sallyport, Lieutenant Hicks noticed the two packages of
drugs seized by Officer Thacker and took photographs of the drugs with his cell
phone because it was the largest drug seizure he had ever seen. At trial,
Lieutenant Hicks could not remember the exact location of the drugs at the
time he took the photograph. Specifically, he testified that “I’m thinking it may
have been the hood [of Officer Thacker’s vehicle], but I’m not sure.” Lieutenant
Hicks further testified that his cell phone broke a few months after the
incident, so he no longer has access to any photographs he took of the drugs.
Officer Thacker, on the other hand, testified that the drugs remained on
the front, passenger-side floorboard of his vehicle the entire time. The PCDC
maintains video surveillance of the sallyport, but only stores the footage for
twelve days. As a result, the footage from the present incident was unavailable
for review by the parties.
The jury found Hurley guilty of first-degree fleeing or evading police;
tampering with physical evidence; first-degree trafficking in a controlled
substance, two or more grams of methamphetamine; first-degree trafficking in
4 a controlled substance, fentanyl; and being a first-degree persistent felony
offender. Hurley’s stipulations to his prior convictions served as the basis for
his status as a first-degree persistent felony offender. 1 In turn, the jury
recommended a total sentence of twenty years in prison, and the trial court
sentenced Hurley consistently with that recommendation. This appeal followed.
II. ANALYSIS
On appeal to this Court, Hurley alleges the trial court made four errors,
each of which requires reversal. First, he alleges that the trial court erred when
it overruled his motion for a directed verdict of acquittal on the charge of
tampering with physical evidence. Second, Hurley argues that the trial court
also erred when it overruled his motion for a directed verdict of acquittal on the
charge of fleeing or evading police in the first degree. Third, he alleges that the
testimony of the Commonwealth’s expert witness, Detective Austin King, was
irrelevant and amounted to palpable error. Finally, Hurley argues that the trial
court erred when it denied his request for a missing evidence instruction. We
address each of Hurley’s arguments in turn.
A. The trial court properly overruled Hurley’s motions for directed verdicts of acquittal.
Hurley argues that he was entitled to directed verdicts of acquittal on his
tampering with physical evidence and first-degree fleeing or evading police
1 Specifically, Hurley stipulated to his prior convictions for first-degree burglary,
first-degree promoting contraband, possession of a controlled substance, and two prior convictions for second-degree burglary.
5 charges. We hold that the trial court did not err and affirm Hurley’s convictions
as to these charges.
1. Directed Verdict Standard
This Court clearly stated the standard for directed verdicts in
Commonwealth v. Benham:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony. 816 S.W.2d 186, 187 (Ky. 1991). “So long as the Commonwealth produces
more than a mere scintilla of evidence to support the charges, a defendant’s
motion for directed verdict should be denied.” Taylor v. Commonwealth, 617
S.W.3d 321, 324 (Ky. 2020). “On appellate review, the test of a directed verdict
is, if under the evidence as a whole, it would be clearly unreasonable for a jury
to find guilt, only then the defendant is entitled to a directed verdict of
acquittal.” Benham, 816 S.W.2d at 187.
2. Tampering with Physical Evidence
Under KRS 524.100(1)(a), a defendant “is guilty of tampering with
physical evidence when . . . [he] destroys, mutilates, conceals, removes or
alters physical evidence.” Furthermore, as for the required mental state, “the
Commonwealth satisfies the intent element by showing beyond a reasonable
doubt that the defendant acted with ‘the intent to impair [the evidence’s] verity
6 or availability in the official proceeding.’” Commonwealth v. James, 586 S.W.3d
717, 725 (Ky. 2019) (citing KRS 524.100).
Here, Hurley contends that the Commonwealth failed to produce
sufficient evidence to support a conviction for tampering with physical
evidence. Specifically, Hurley argues that his throwing of the grocery bag
(containing the methamphetamine and fentanyl) out the passenger-side
window of his car in the midst of a vehicular pursuit did not constitute either a
concealment or removal of evidence under KRS 524.100(1)(a). We disagree.
In Commonwealth v. James, we addressed whether a defendant
“conceals” or “removes” evidence under the tampering statute when he “in
plain view of an officer, drops or tosses away evidence of a possessory crime in
a manner that makes the evidence easily retrievable by law enforcement.” Id.
There, a Kentucky State Police narcotics detective was investigating reports of
possible drug activity at a residence when he noticed the defendant walking
toward the target residence. Id. at 719. The defendant noticed the detective and
changed direction to walk down an alley. Id. at 720. The detective observed the
defendant discard multiple items from his waistband before eventually
arresting the defendant and returning to the location to retrieve what was later
confirmed to be a glass pipe containing methamphetamine. Id.
This Court ultimately held that the defendant in James had neither
concealed nor removed the glass pipe within the meaning of KRS 524.100
because his abandonment of the evidence was done in the direct view of law
enforcement and occurred “in a manner that left the evidence easily
7 retrievable.” Id. at 729. Accordingly, the rule we articulated in James was
twofold: “where a defendant merely drops, throws down, or abandons evidence
[(1)] in the vicinity of the defendant and in the presence and view of the police,
and [(2)] the officer can quickly, safely, and readily retrieve the evidence, the
criminal act of concealment or removal has not taken place.” Id. at 731.
Importantly, we also emphasized that KRS 524.100 involves a case-specific
inquiry. Id. Thus, efforts to conceal or remove physical evidence in the presence
of police may still form the basis for a tampering conviction:
We caution, however, that the dropping or tossing away of evidence in the presence of a law enforcement officer, even when the drugs are eventually recovered, is not always outside the reach of the tampering statute. In some scenarios, the affirmative act of dropping or throwing away the evidence even in the presence of law enforcement officers may constitute a violation of the statute, depending on the specific facts of the case. For example, where the tossing away of evidence makes the evidence “substantially more difficult or impossible” for law enforcement to recover and use in a later proceeding against the defendant, the act may result in concealment, even if the officers ultimately succeed in retrieving the evidence. Id. (emphasis added).
In the case before us, James does not compel the result that Hurley
seeks. Here, Hurley threw the bag containing methamphetamine and fentanyl
out his passenger-side window in the midst of a high-speed vehicular pursuit.
The evidence was thus necessarily located outside Hurley’s vicinity and the
immediate presence of Officer Thacker. Furthermore, Hurley did not stop his
vehicle in the same spot where the drugs ultimately landed. Instead, Hurley
pulled into a parking lot farther down the road, and Officer Thacker was forced
8 to first secure and arrest Hurley before informing his back-up officer, Officer
Coleman, of the general direction where the evidence may be located.
Accordingly, this is not a case in which Hurley “merely abandoned”
evidence in the direct view of Officer Thacker. Instead, Hurley threw the drugs
outside his vehicle during a dangerous, high-speed pursuit and purposefully
placed the evidence outside Officer Thacker’s presence. Furthermore, the mere
fact that Officer Coleman “ultimately succeed[ed] in retrieving the evidence”
does not change the fact that Hurley’s actions made such recovery
“substantially more difficult.” James, 586 S.W.3d at 731. As a result, the
Commonwealth clearly produced “more than a mere scintilla of evidence to
support the charge[]” under KRS 524.100, and we see no error in the trial
court’s denial of Hurley’s motion for a directed verdict on this matter. Taylor,
617 S.W.3d at 324.
3. First-Degree Fleeing or Evading Police
In relevant part, KRS 520.095(1)(a) provides that an individual is guilty of
fleeing or evading police in the first degree:
(1) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and at least one (1) of the following conditions exists: ... 2. The person is driving under the influence of alcohol or any other substance or combination of substances in violation of KRS 189A.010; [or] ... 4. By fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property[.]
9 Hurley first argues that the Commonwealth failed to prove that he was
operating his vehicle under the influence of a prohibited substance under KRS
189A.010, one of the potential preconditions for liability for first-degree fleeing
and evading police. Specifically, Hurley raises two arguments. First, he notes
the fact that he was acquitted on his operation of a motor vehicle under the
influence of intoxicants charge. Second, Hurley then alleges that Officer
Thacker’s testimony concerning his demeanor and conduct was insufficient to
support a finding of guilt under this charge.
Hurley alleges that his acquittal on the operation of a motor vehicle
under the influence of intoxicants charge supports his argument that there was
insufficient evidence to induce a juror to believe beyond a reasonable doubt
that he was operating his vehicle under the influence of a prohibited
substance. However, we note that jury verdicts need not be consistent, and our
analysis is constrained solely to whether there was sufficient evidence to
sustain each individual conviction. Commonwealth v. Harrell, 3 S.W.3d 349
(Ky. 1999); see also Exantus v. Commonwealth, 612 S.W.3d 871, 882 (Ky. 2020)
(holding that consistent verdicts are not required because “the only inquiry on
review [is] whether there was sufficient evidence to support an individual
conviction”). Accordingly, we see no merit in this argument.
Additionally, Hurley argues that Officer Thacker’s testimony alone was
insufficient to support a finding of guilt under the precondition relating to
operation of a motor vehicle under the influence of intoxicants. However, “[o]ur
courts have long held that a jury is free to believe the testimony of one witness
10 over the testimony of others.” Minter v. Commonwealth, 415 S.W.3d 614, 618
(Ky. 2013). “The testimony of a single witness is enough to support a
conviction.” Id. at 618 (citing Gerlaugh v. Commonwealth, 156 S.W.3d 747, 758
(Ky. 2005)). Further, “[t]he testimony of even a single witness is sufficient to
support a finding of guilt, even when other witnesses testified to the contrary if,
after consideration of all of the evidence, the finder of fact assigns greater
weight to that evidence.” Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky.
2002).
The Commonwealth relied on Officer Thacker’s testimony to prove that
Hurley was driving under the influence of a prohibited substance. Officer
Thacker testified that Hurley’s appearance and behavior led him to believe
Hurley was intoxicated. Specifically, Officer Thacker observed that, “It was his
actions, how intense, how much energy he had, how much he wouldn’t shut
up, how much he kept on talking. He was just very hyper.” Here, under the
evidence presented, it would not “be clearly unreasonable for a jury to find
guilt.” Benham, 816 S.W.2d at 187.
Next, Hurley argues that the Commonwealth also failed to prove that he
created a substantial risk of serious physical injury or death to any person or
property, the second of the two potential preconditions for liability for first-
degree fleeing and evading police, when he fled from Officer Thacker.
Whether substantial risk of serious physical injury occurred “turns on
the unique circumstances of an individual case.” Cooper v. Commonwealth, 569
S.W.2d 668, 671 (Ky. 1978). Generally, “a substantial risk is a risk that is
11 ‘[a]mple, considerable in … degree … or extent,’ and ‘[t]rue or real; not
imaginary.’” Bell v. Commonwealth, 122 S.W.3d 490, 497 (Ky. 2003) (internal
citations omitted). Where the substantial risk of serious physical injury
involves operation of a motor vehicle, our analysis necessarily “requires
consideration of the manner in which a vehicle is operated and the conditions
under which that vehicle is operated.” Culver v. Commonwealth, 590 S.W.3d
810, 817 (Ky. 2019). For example, it may be enough to establish a substantial
risk of serious physical injury where the defendant’s speeding is paired with
other factors such as:
disobeying stop signs and red lights; inclement weather; and circumstances in which other vehicles and pedestrians are at risk of serious physical injury indicated by the need to get out of the defendant's way, or likely to be put at such risk, such as in congested areas with schools and shopping centers[.] Id.
Under the facts of this case, there was sufficient evidence to show that it
was not clearly unreasonable for the jury to find that the substantial risk
element of KRS 520.095(a)(4) was satisfied. While there were no other cars on
the highway and no one else in Hurley’s vehicle, Hurley still drove seventy
miles per hour on a fifty-five-mile-per-hour road. In addition to speeding,
Hurley was also driving erratically. He abruptly turned onto KY 3496 at such a
high rate of speed that he lost control of his vehicle and momentarily swerved
off the road. Following this loss of control, Hurley then drove on the wrong side
of KY 3496 before eventually turning into a restaurant parking lot. Thus,
evidence of Hurley’s reckless driving and his speeding indicate that it was not
12 clearly unreasonable for the jury to find that the substantial risk element of
KRS 520.095(a)(4) was satisfied.
As stated earlier, under Kentucky’s directed verdict standard, in order for
a jury to consider a criminal charge, more than a scintilla of evidence must be
adduced from which a reasonable juror could conclude a defendant is guilty.
Taylor, 617 S.W.3d at 324. That standard is more than satisfied in this case.
The Commonwealth clearly presented more than a mere scintilla of evidence
concerning KRS 520.095(a)(2) and KRS 520.095(a)(4) such that a reasonable
juror could conclude that Hurley was guilty of first degree fleeing or evading
police on either condition. Accordingly, the trial court did not err in denying
Hurley’s motion for a directed verdict on this charge.
B. Testimony of Detective Austin King
Third, Hurley argues that Detective Austin King’s testimony concerning
the dangerousness and purity of the drugs that Hurley was alleged to traffic
was irrelevant and unduly prejudicial. Hurley did not object to any of this
testimony at trial. Thus, the issue is unpreserved for appeal, and we review for
palpable error pursuant to RCr 2 10.26.
Under RCr 10.26, if an unpreserved error is found to be palpable and if it
affects the substantial rights of the defendant, the appellate court may grant
appropriate relief if manifest injustice has resulted from the error. An error is
palpable when it is “easily perceptible, plain, obvious and readily noticeable.”
2 Rules of Criminal Procedure
13 Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). “When an appellate
court engages in a palpable error review, its focus is on what happened and
whether the defect is so manifest, fundamental and unambiguous that it
threatens the integrity of the judicial process.” Martin v. Commonwealth, 207
S.W.3d 1, 5 (Ky. 2006).
The Commonwealth presented Detective King’s expertise in narcotics
trafficking to distinguish between evidence of drug trafficking and evidence of
drug use. Hurley does not dispute the admissibility of this line of questioning,
but instead takes issue with two aspects of Detective King’s testimony. First, he
argues that Detective King’s testimony concerning the dangerousness of the
drugs was irrelevant and unduly prejudicial. At trial, when asked to examine
the drug exhibits presented by the Commonwealth, Detective King wore a pair
of gloves. The Commonwealth inquired whether this was his standard practice,
to which Detective King explained that he did so because of the danger of
exposure, which is especially prevalent when dealing with fentanyl. The
particular line of questioning occurred as follows:
Commonwealth: Is it your training to always wear gloves when possible when dealing with controlled substances? Detective King: Yes. Commonwealth: Why is that? Detective King: The danger of them, the exposure. Commonwealth: Is there a particular one that you’re worried about being exposed to? Detective King: The one I worry about the most is fentanyl and, typically, if I deal with fentanyl, it’ll be gloves and a face mask of some sort, especially if it’s exposed. If it’s already packaged then, typically, just gloves. Commonwealth: What is the increased risk of fentanyl?
14 Detective King: Fentanyl is extremely dangerous. Of course, it’s up to 50 times stronger than heroin and up to 100 times stronger than morphine so just the slight inhalation of fentanyl in the air can cause an overdose, especially to someone who doesn’t have an opioid tolerance. In addition to this line of questioning, Hurley also objects to Detective
King’s testimony concerning the probable origin of the methamphetamine
involved in this case and its purity level. At trial, Detective King testified that
the methamphetamine possessed by Hurley was likely manufactured in Mexico
and created in a sophisticated lab setting because it was “more crystal-like” in
appearance.
We begin by noting that relevancy is a low bar. Hall v. Commonwealth,
468 S.W.3d 814, 832 (Ky. 2015). Evidence is relevant if it has any tendency to
make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence. KRE 401. Further, all relevant evidence is admissible unless excluded
by constitution, statute, or rule. KRE 402.
Where a defendant is charged with trafficking in a particular drug, expert
testimony concerning the mechanics and characteristics specific to that drug
trade may be useful to the jury in understanding the evidence. Sargent v.
Commonwealth, 813 S.W.2d 801, 802 (Ky. 1991). We applied this rule in
Burdell v. Commonwealth, where we permitted a police narcotics expert to
testify to “the relative commercial value of powder and crack cocaine, how
crack cocaine is manufactured, and the methods for preparation and
inhalation of both powder and crack cocaine.” 990 S.W.2d 628, 634 (Ky. 1999).
15 We held that this testimony was relevant “to help the jury understand the
nature and uses of cocaine and tended to prove that Appellant possessed the
cocaine for the purpose of sale.” Id.
In this case, Detective King’s testimony concerning the dangerousness of
the drugs served merely to provide context to his use of gloves in handling the
exhibits. Furthermore, the testimony relating to the purity and origin of the
methamphetamine provided a frame of reference for the jury in placing Hurley’s
possession of the drugs in the larger manufacture-to-use chain. The testimony
tended to make it more probable that Hurley possessed the drugs with the
intent to distribute them rather than mere possession for personal use. We
perceive no “easily perceptible, plain, obvious [or] readily noticeable” error
present. Brewer, 206 S.W.3d at 349 (Ky. 2006). As a result, we conclude that
no palpable error occurred.
C. Missing Evidence Instruction
Finally, we turn to Hurley’s last argument, which concerns the trial
court’s denial of his request for a missing evidence instruction. At trial, Officer
Thacker testified that he placed the drugs he seized from Hurley on the front,
passenger-side floorboard of his vehicle before transporting Hurley to the
PCDC. Hurley thereafter attempted to raise an imperfect chain of custody
defense concerning the transport of the drugs. Based on the testimony of
Lieutenant Hicks, it was Hurley’s position that while he and Officer Thacker
were in the sallyport of the PCDC, the drugs were taken from the floorboard,
placed on the hood of the car, and photographed by a PCDC employee.
16 At trial, Hurley asked for a missing evidence instruction concerning the
absence of security footage of the PCDC sallyport. The proposed instruction
read:
If you find from the evidence that a video recording of events on July 4, 2022 in the sally port [sic] at the Pike County Detention Center (PCDC) was in fact created by the PCDC recording system, and if you further find from the evidence that [sic] Commonwealth, by and through its agents at PCDC, intentionally and in bad faith lost or destroyed the video recording, you may, but are not required to, infer that the information recorded in the video recording would be, if available, adverse to Commonwealth and favorable to the defendant. The Commonwealth countered this proposed instruction by explaining that the
PCDC has a policy of only keeping the footage for twelve days, and that they
engaged in no bad faith. The trial court thereafter denied Hurley’s request for
the missing evidence instruction.
Before this Court, Hurley alleges that the trial court erred when it denied
his request for a missing evidence instruction. At the same time, however,
Hurley also concedes that he “cannot argue to this Court that the
Commonwealth acted in bad faith when it destroyed copies of the sallyport
videos,” and instead asks that we reconsider the heightened burden placed on
criminal defendants when they seek a missing evidence instruction.
We review the trial court’s decision to provide a jury instruction under an
abuse of discretion standard:
Under the familiar standard prescribed in Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999), a trial court abuses its discretion when its decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. A decision to give or to decline to give a particular jury instruction inherently requires complete familiarity with the factual and evidentiary subtleties of the case that are best understood by the judge overseeing the trial from the bench in the
17 courtroom. Because such decisions are necessarily based upon the evidence presented at the trial, the trial judge's superior view of that evidence warrants a measure of deference from appellate courts that is reflected in the abuse of discretion standard. Downs v. Commonwealth, 620 S.W.3d 604, 613 (Ky. 2020) (quoting Sargent v.
Shaffer, 467 S.W.3d 198, 203 (Ky. 2015)) (internal quotations and citations
omitted).
In Estep v. Commonwealth, this Court gave a detailed outline of the
history and genesis of Kentucky’s missing evidence instruction standard. 64
S.W.3d 805, 809-10 (Ky. 2002). There, we reiterated that “[t]he purpose of a
‘missing evidence’ instruction is to cure any Due Process violation attributable
to the loss or destruction of exculpatory evidence by a less onerous remedy
than dismissal or the suppression of relevant evidence.” Id. at 810.
Furthermore, we also upheld our previous holdings stating that the Due
Process Clause is only implicated when the Commonwealth destroys or loses
exculpatory evidence, the potentially exculpatory nature of that evidence was
apparent when it was lost or destroyed, and the Commonwealth acted in bad
faith. Id. at 809. (citing Collins v. Commonwealth, 951 S.W.2d 569, 572 (Ky.
1997)).
This standard clearly has deep roots in Kentucky precedent, and we see
no reason to depart from our current missing evidence instruction standard in
criminal cases. As a result, we decline Hurley’s request that we reconsider our
well-settled caselaw on the subject. Applying the missing evidence instruction
standard as it exists today, we note that Hurley has not come forth with
anything more than speculation to suggest that the Commonwealth acted in
18 bad faith in “destroying” the footage from the sallyport. Instead, there was clear
evidence presented by the Commonwealth that it is the PCDC’s routine policy
to get rid of sallyport security footage after twelve days. Accordingly, the record
indicates that there was nothing to support the giving of a missing evidence
instruction, and we therefore cannot say that the trial court abused its
discretion in denying Hurley’s request for a missing evidence instruction.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Steven Jared Buck Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Russell M. Coleman Kentucky Attorney General
James Daryl Havey Assistant Attorney General