Reanimating the Best Evidence Rule’s Common‑Law Predicate: Masters v. Commonwealth Requires Last‑Custodian Testimony and a Diligent Search Before Admitting Duplicates Under KRE 1004

Introduction

In Joseph S. Masters v. Commonwealth of Kentucky, the Supreme Court of Kentucky issued a multifaceted opinion that both resolves case‑specific evidentiary and instructional disputes and sets an important statewide precedent on the Best Evidence Rule. The Court affirmed Masters’ convictions for murder and four counts of unlawful imprisonment, reversed his first‑degree burglary conviction, and remanded for amendment of the judgment. The sentence—thirty‑five years—remained intact because the burglary sentence ran concurrently.

The facts are stark. After his spouse reported a sexual assault by three men at a Knox County trailer he believed he was preparing to lease, Masters returned to the scene with two armed companions. He pried open the door, gathered occupants at knife point, forced them to strip, and subjected them to what he called “enhanced interrogation”—in substance, torture—demanding confessions. During the chaos, one occupant, Welsh, wrested a knife, stabbed Masters, and attempted to flee; Masters then fatally stabbed Welsh.

On appeal, Masters raised four issues:

• the trial court’s refusal to instruct on self‑defense and imperfect self‑defense;
• admission of hearsay testimony about rape kit and DNA results;
• admission of a copy of a lease for the trailer under KRE 1003/1004; and
• the adequacy of the hearing on defense counsel’s motion to withdraw.

While three of these issues resulted in affirmance, the third—concerning admission of a duplicate lease—produced a significant doctrinal development. The Court held that, notwithstanding the silence of KRE 1004, Kentucky trial courts must require two common‑law foundations before admitting secondary evidence of a writing’s contents: (1) testimony from the last known custodian of the original—or a showing of that witness’s unavailability—explaining the loss or destruction; and (2) proof of a diligent search for the original. Hearsay from an interested witness about the missing original will not suffice. The Court further clarified that authentication of a copy under KRE 901 does not substitute for the separate KRE 1004 predicate.

Summary of the Opinion

• Self‑defense and imperfect self‑defense instructions: No abuse of discretion. Masters created a “deadly scenario” by invading, disarming, terrorizing, and torturing occupants; as an initial aggressor who did not effectively withdraw, he could not reclaim deadly self‑defense when the danger turned back on him. The trial court properly refused self‑defense and imperfect self‑defense instructions.
• Rape kit/DNA hearsay: Admission of a detective’s testimony about rape kit results was error (should have been offered through the nurse and lab analyst), but not palpable error under RCr 10.26. The method of proof was defective, but the evidence’s substance was relevant and did not cause manifest injustice, especially given the EED instruction keyed to Masters’ belief at the time.
• Lease copy under KRE 1003/1004: Abuse of discretion in admitting a duplicate lease without satisfying the common‑law predicates. Authentication under KRE 901 was met, but the KRE 1004 predicate was not: the proponent did not present the last known custodian (the landlord) or show unavailability, and did not demonstrate a diligent search. The error was not harmless; the burglary conviction is reversed.
• Motion to withdraw: No procedural error or abuse of discretion. Deno does not mandate a rigid procedure. Masters showed generalized dissatisfaction, not good cause (no conflict of interest, no true breakdown tantamount to denial of counsel). A defendant cannot manufacture good cause by refusing to communicate with appointed counsel.
• Disposition: Murder and unlawful imprisonment convictions affirmed; first‑degree burglary reversed; total sentence of 35 years unaffected; remanded to amend the judgment.

Analysis

Precedents Cited and Their Influence

• Self‑defense/Initial Aggressor Doctrine:
  • Stepp v. Commonwealth, 608 S.W.2d 371 (Ky. 1980): A trial court assesses the entire circumstances to determine whether self‑defense instructions are warranted.
  • Townsend v. Commonwealth, 474 S.W.2d 352 (Ky. 1971): A defendant cannot create a dangerous scenario and then claim self‑defense to fight out of it.
  • Bowman v. Commonwealth, 686 S.W.3d 230 (Ky. 2024) and Conley v. Commonwealth, 599 S.W.3d 756 (Ky. 2019): The “provocation/initial aggressor” limitations prevent defendants from instigating events and then invoking self‑defense when violence ensues.
  • KRS 503.060(3): An initial aggressor may regain self‑defense only by (a) withdrawing and effectively communicating the withdrawal, or (b) when the victim escalates non‑deadly force to deadly force.
  • KRS 503.010(1): Defines “deadly physical force.”
  • Dunkleberger v. Commonwealth, 719 S.W.3d 17 (Ky. 2025): In genuine self‑defense, “instinct is the law.” Quoted to underscore the victim’s continued right to use deadly force within an ongoing deadly scenario.
• Hearsay and Palpable Error:
  • Peters v. Commonwealth, 345 S.W.3d 838 (Ky. 2011): Scientific/forensic results must be introduced through proper witnesses (e.g., nurse examiner, lab analyst).
  • RCr 10.26; Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006): Palpable error requires manifest injustice threatening integrity of the process.
  • McClellan v. Commonwealth, 715 S.W.2d 464 (Ky. 1986): For EED, reasonableness is judged from the defendant’s viewpoint under the circumstances as he believed them to be.
• Best Evidence Rule—Authentication versus Admissibility:
  • KRE 1002, 1003, 1004: Original required; duplicates admissible unless authenticity is genuinely at issue or unfair; and only when originals are lost/destroyed or unobtainable.
  • Savage v. Three Rivers Med. Ctr., 390 S.W.3d 104 (Ky. 2012): KRE 901 authentication can be satisfied by witness testimony explaining the origin and custody of the copy. The Court distinguishes this authentication step from the separate KRE 1004 predicate for using a duplicate.
  • Hamit v. Lawrence, 9 Ky. 366 (1820); Taulbee v. Drake, 198 S.W.2d 50 (Ky. 1946); Standard Accident Ins. Co. v. Rose, 234 S.W.2d 728 (Ky. 1950): Common‑law foundations requiring (i) testimony from the last known custodian (or showing unavailability) and (ii) a diligent search before resorting to secondary evidence.
  • Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997); Commonwealth v. Howlett, 328 S.W.3d 191 (Ky. 2010): Silence in the Rules invites application of the common law within the Rules’ framework.
  • Federal analogues: United States v. Abel, 469 U.S. 45 (1984); Daubert v. Merrell Dow, 509 U.S. 579 (1993); United States v. Mezzanatto, 513 U.S. 196 (1995); Tome v. United States, 513 U.S. 150 (1995) (Scalia, J., concurring): The Rules do not abrogate the common law by silence; commentary is not controlling over text and settled doctrine.
  • Harmless error: Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009); Kotteakos v. United States, 328 U.S. 750 (1946): Reversal required where the error had substantial influence or leaves grave doubt.
• Right to Counsel/Withdrawal:
  • Deno v. Commonwealth, 177 S.W.3d 753 (Ky. 2005); Henderson v. Commonwealth, 563 S.W.3d 651 (Ky. 2018); Grady v. Commonwealth, 325 S.W.3d 333 (Ky. 2010): High bar for substitution; no automatic right to preferred attorney; filing bar complaints or dissatisfaction do not compel withdrawal.
  • Stinnett v. Commonwealth, 364 S.W.3d 70 (Ky. 2011): Generalized complaints about contact and investigation do not establish “good cause.”
  • Baker v. Commonwealth, 574 S.W.2d 325 (Ky. App. 1978): Tactical disagreements do not show a breakdown in communications.
  • McCoy v. Louisiana, 584 U.S. 414 (2018): If a client declines to participate, counsel may guide the defense consistent with the client’s interests.

Legal Reasoning

1) Self‑Defense and Imperfect Self‑Defense Instructions

The Court framed the inquiry holistically: not whether Masters could isolate a moment of one‑on‑one struggle after being stabbed, but whether he had created a deadly physical force environment—armed entry, hostage‑taking, forced nudity, threats of death, knife assaults—such that Welsh acquired a right to use deadly force in self‑defense. Under KRS 503.060(3), an initial aggressor can regain self‑defense only by effective withdrawal or when the victim escalates non‑deadly to deadly force. Here:

• Masters’ initial aggression was inherently deadly; no escalation by the victims was required to trigger their right to respond with deadly force.
• Masters did not effectively withdraw or communicate withdrawal. Even if he briefly tried to crawl away, the broader deadly scenario persisted: three armed aggressors remained in control of the premises.

The Court emphasized Welsh’s continued entitlement to defend himself “until the deadly scenario was terminated,” and refused to second‑guess Welsh’s split‑second defensive decisions. Because Masters “created the deadly situation,” he could not “fight his way out” by later claiming self‑defense. Instructional refusal was within the trial court’s discretion.

2) Hearsay Testimony About Rape Kit Results

The Commonwealth elicited a detective’s testimony that the rape kit found no semen, saliva, or foreign DNA. Both sides acknowledged that, under Peters, such scientific results should have come from the examiner or analyst. The Court agreed the method of proof was erroneous but not palpably so:

• The content itself—whether biological evidence was found—was relevant and otherwise admissible through proper witnesses.
• Palpable error requires manifest injustice; the improper pathway did not taint the integrity of the process, especially because Masters’ EED defense turned on his belief at the time, not the ultimate truth of the alleged rape.
• Regardless of the assault’s truth, Masters’ vigilante conduct far exceeded any conceivable right to “remove” occupants; “our law frowns on vigilante justice.”

The Court noted the defense could have cross‑examined other witnesses about possible evidence destruction (e.g., bathing) or called the spouse herself, and the detective testified that no such intervening bath was reported.

3) The Best Evidence Rule and the Copy of the Lease

This is the opinion’s doctrinal centerpiece. The Commonwealth introduced a copy of a lease, obtained from Welsh’s family, to show that Powers and Welsh—not Masters—leased the Hedden Flats trailer, thereby supporting the “building of another” element of first‑degree burglary. The trial court allowed the copy over objections under KRE 1003/1004 and discovery timing.

The Supreme Court split the evidentiary inquiry in two:

• KRE 901 authentication: A signatory (Powers) can authenticate a copy by recognizing it; that was satisfied here.
• KRE 1004 predicate: Before using a duplicate to prove contents when the original is allegedly lost, the proponent must satisfy the long‑standing common‑law foundations:
  • Present testimony from the last known custodian of the original (or establish that custodian’s unavailability) explaining the loss or destruction; and
  • Prove a diligent search for the original.

The Court rejected the notion that KRE 1004’s silence abrogated these common‑law requirements. Rather, consistent with Stringer, Howlett, and federal authority like Abel, silence invites common‑law supplementation. The Court also discounted reliance on the Rules’ commentary and underscored that Kentucky has “neither adopted nor approved” the commentary as binding.

Applying those principles, the Court found a clear abuse of discretion:

• No testimony from the landlord (the last known custodian), nor any showing of his unavailability.
• No diligent search proven—only hearsay statements that the landlord misplaced the file, despite the court’s subpoena power and the Commonwealth’s investigative capacity to develop the record.
• Compounding doubts: date discrepancies on the copy and lack of the landlord’s signature.

The error was not harmless under Kotteakos/Winstead. On this contested element, the improperly admitted copy likely had “substantial influence.” Absent the copy, jurors could reasonably have credited Masters’ testimony about his oral lease and substantial expenditures, especially given his existing relationship as a tenant of the same landlord.

Notably, the dissent would have affirmed, reading KRE 104(a) and KRE 1008 to permit trial courts to rely on hearsay in resolving the preliminary “loss” question and treating last‑custodian testimony and diligent search as flexible, not mandatory. The majority, however, makes Kentucky’s requirement explicit and categorical: last‑custodian testimony (or unavailability) and diligent search are demanded before resort to secondary evidence under KRE 1004; hearsay from an interested witness will not do; and KRE 901 authentication does not satisfy KRE 1004’s separate predicate.

4) Hearing on Motion to Withdraw

The Court reaffirmed the high standard for substitution of counsel and rejected the argument that Deno prescribes a rigid procedure. Because Masters’ complaints mirrored those rejected in Stinnett—sporadic contact and dissatisfaction with investigation—he did not show a conflict of interest, complete breakdown tantamount to denial of counsel, or prejudice to legitimate interests. A defendant cannot create “good cause” by refusing to speak to counsel. The trial court’s hearing and reasoning were adequate; no abuse of discretion occurred.

Impact

A. Evidence Law and Litigation Practice

This opinion establishes a clear, practitioner‑oriented rule for KRE 1004 in Kentucky:

• Mandatory last‑custodian testimony or unavailability: The proponent must call the last known custodian of the original (or prove unavailability) to explain loss or destruction.
• Mandatory diligent search: The proponent must demonstrate concrete, reasonable efforts to locate the original before resorting to a duplicate.
• Hearsay insufficiency: An interested witness’s hearsay about the missing original does not satisfy KRE 1004.
• Separate steps: Authentication of a copy (KRE 901) is necessary but not sufficient; it does not replace the KRE 1004 predicate.

Consequences will be immediate across civil and criminal dockets whenever a party relies on duplicates to prove contents of writings (leases, contracts, medical records, promissory notes, waivers, etc.). Prosecutors and civil practitioners should:

• Identify early the last custodian of critical originals; secure testimony or preserve unavailability proof.
• Document a diligent search (who searched, where, when, how; subpoenas; office/file protocols).
• Anticipate genuine authenticity challenges that make admission of duplicates “unfair” under KRE 1003.

The opinion also clarifies Kentucky’s interpretive approach: Rules of Evidence are read against a robust common‑law backdrop; silence does not equal abrogation. Trial courts should expect more common‑law cross‑currents in future KRE interpretation disputes.

Finally, the dissent’s reliance on KRE 104(a) to permit hearsay at preliminary admissibility rulings highlights an active tension. The majority’s categorical rule will likely control future practice: when the predicate is loss/destruction under KRE 1004, direct evidence from the last custodian (or a showing of unavailability) and proof of diligent search are required, rather than mere hearsay summaries.

B. Criminal Law and Jury Instructions

• Initial aggressor framing: The Court’s “deadly scenario” lens directs trial courts to assess the full context, not isolate a late‑breaking one‑on‑one exchange, when deciding whether to instruct on self‑defense or imperfect self‑defense.
• Restoration limits: Even an initial aggressor stabbed by a victim does not automatically regain self‑defense; effective withdrawal or termination of the deadly scenario is necessary.
• EED versus self‑defense: The Court preserves the EED perspective (defendant’s belief) while limiting self‑defense for aggressors. Defense counsel should calibrate theory selection and instruction requests accordingly.

C. Preservation, Discovery, and Trial Management

• Instruction preservation: The Court reiterates preservation by tendering instructions, filing motions, or making specific pre‑charge objections (per Jerome).
• Discovery diligence: Even if the Commonwealth believes an element is uncontested, it must prepare to prove every element beyond a reasonable doubt (Taylor)—especially possession/tenancy in burglary prosecutions.
• Forensic proof: Prosecutors must call proper witnesses (nurse/analyst) for rape kit and DNA; defense should timely object to hearsay paths.
• Withdrawal motions: Trial courts should create a clear record, but no rigid script applies; defendants cannot create “good cause” by non‑cooperation.

Complex Concepts Simplified

• Best Evidence Rule (KRE 1002–1004): To prove the contents of a writing, use the original when feasible. Duplicates are fine unless there’s a real authenticity question or unfairness. If originals are lost/destroyed, you must first prove loss via the last custodian (or unavailability) and show a diligent search; only then may you use secondary evidence of contents.
• Authentication (KRE 901) versus KRE 1004 Predicate: Authentication asks, “Is this what you say it is?” The KRE 1004 predicate asks, “Are you entitled to prove contents with a copy instead of the original?” Satisfying one does not satisfy the other.
• Initial Aggressor Doctrine (KRS 503.060): Someone who starts a violent encounter generally cannot claim self‑defense. An initial aggressor regains that right only if he effectively withdraws and communicates it, or if the victim escalates non‑deadly force to deadly force.
• Deadly Physical Force (KRS 503.010(1)): Force used with the purpose of causing—or creating a substantial risk of causing—death or serious physical injury.
• Extreme Emotional Disturbance (EED): A partial defense that mitigates culpability based on a reasonable explanation for the defendant’s emotional disturbance, judged from his perspective at the time.
• Palpable Error (RCr 10.26): An unpreserved error so fundamental that it threatens the integrity of the process and results in manifest injustice.
• Abuse of Discretion: A ruling that is arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Practical Checklists

Admitting a Duplicate Under KRE 1004

• Identify the last known custodian of the original writing.
• Secure that custodian’s testimony explaining loss/destruction, or establish unavailability with specificity.
• Document a diligent search: who searched, where (files, archives, off‑site storage), when, methods, and results; issue subpoenas if needed.
• Authenticate the copy under KRE 901 (signatory recognition, chain, appearance).
• Be prepared to address authenticity concerns under KRE 1003 and fairness objections.

Proving Forensic Results

• Call the nurse examiner and/or lab analyst to introduce rape kit and DNA results.
• Lay proper chain of custody and methodological foundations.
• Anticipate and address potential contamination or evidence‑destruction issues through witnesses with personal knowledge.

Self‑Defense Instruction Requests

• Evaluate the entire encounter, not a single moment, for initial aggression and deadly force dynamics.
• If the defendant was the aggressor, show effective withdrawal or non‑deadly initiation with victim escalation to deadly force.
• Preserve by tendering proposed instructions, filing a motion, or making a specific objection before charging the jury.

Withdrawal/Substitution of Counsel

• Develop a record of concrete reasons: conflict of interest, true communication breakdown, or prejudice to legitimate interests.
• Recognize that refusal to cooperate with counsel will not itself constitute “good cause.”
• Trial courts should hear both counsel and defendant, make findings tied to the high bar for substitution, and proceed.

Conclusion

Masters v. Commonwealth delivers two principal messages. First, on the merits of the appeal, the Court reaffirms the limits of self‑defense for initial aggressors and the high threshold for palpable error, while upholding trial‑management discretion on counsel withdrawal. Second—and most significantly for future practice—it restores clarity to the Best Evidence Rule’s predicate in Kentucky. Silence in KRE 1004 does not abrogate the common law; before admitting a duplicate to prove contents, the proponent must present testimony from the last known custodian (or prove unavailability) and demonstrate a diligent search for the original. Authentication of the copy is not enough. Hearsay summaries from interested witnesses will not carry the day.

This precedent equips trial judges and litigants with a concrete roadmap for handling duplicate writings and reinforces a cohesive interpretive approach: the Kentucky Rules of Evidence are read in harmony with their common‑law roots. The decision will shape evidentiary practice across criminal and civil cases, while its self‑defense analysis provides a cautionary template for evaluating deadly encounters in their full context. The burglary reversal, even without altering the aggregate sentence, underscores the Court’s commitment to element‑by‑element proof through procedures that safeguard reliability and fairness.