Opinion
NO. 2012-CA-000572-DG
11-27-2013
COMMONWEALTH OF KENTUCKY APPELLANT v. ADRIAN PARRISH APPELLEE
BRIEF FOR APPELLANT: Jack Conway Attorney General Joseph C. Allison Nicholasville, Kentucky BRIEF FOR APPELLEE: David W. Thomas Nicholasville, Kentucky
NOT TO BE PUBLISHED
ON DISCRETIONARY REVIEW FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 11-XX-00005
OPINION
AFFIRMING
BEFORE: CAPERTON, CLAYTON, AND TAYLOR, JUDGES. CLAYTON, JUDGE: The Commonwealth of Kentucky appeals from the January 10, 2012 judgment of the Jessamine Circuit Court reversing the Appellee's, Adrian Parrish, conviction based on a Brady violation and a February 24, 2012 Order denying its Motion to Reconsider. For the following reasons, we affirm the circuit court's decision.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1943).
BACKGROUND SUMMARY
On November 18th, 2010, Parrish was stopped for failing to make a complete stop at two stop signs. Nicholasville Police Department Officer Cobb (Officer Cobb) administered field sobriety tests. Parrish did not exhibit any speech or balance problems, however, Officer Cobb determined that he showed signs of impairment. He then administered a preliminary breath test (PBT). Officer Cobb stated that he recorded the numerical result of the PBT by showing it to his cruiser video. He recorded on his citation that "PBT detected the presence of alcohol," however, he did not write the result down nor did he remember the result at trial.
Parrish was charged with Driving under the Influence. Based on what Parrish told Officer Cobb on the night of the stop, Officer Cobb testified that Parrish would have absorbed very little of that alcohol into his blood and, at trial, he conceded that the PBT may have been under .080%. On the day of the stop, however, he put Parrish under arrest and took him to the detention center where an Intoxilyzer Breath Alcohol Level test was administered. The Intoxilyzer result was .086%.
Prior to the trial, Parrish requested the cruiser video that allegedly contained the PBT results. The video does not exist, however, and Parrish chose not to make a discovery request so there was no hearing on the issue.
At trial, Parrish did not present an expert for an extrapolation defense nor did he make any motion regarding that defense or the use of the PBT. His defense counsel did, however, mention that he needed the PBT results for an extrapolation defense and asked the trial court to consider that the evidence was not there while conceding that the evidence was not purposefully destroyed by Officer Cobb. He did not request a continuance in order to obtain the evidence.
The Commonwealth charged Parrish with a "per se" violation of the drunk driving statute pursuant to Kentucky Revised Statutes (KRS) 189A.010(1)(a). The trial court ruled that Parrish was proven guilty beyond a reasonable doubt as the Commonwealth had met its burden of proof without the admission of the video.
By appeal to the circuit court, Parrish alleged a Brady v. Maryland violation based on Officer Cobb's failure to preserve the PBT results. The Jessamine Circuit Court found that Officer Cobb had acted in bad faith and, therefore, found a Brady violation and reversed and remanded the conviction to the trial court for a new trial with instructions to conduct a Daubert hearing on the PBT results.
Daubert v.Merrell Dow Pharmaceuticals, Inc. 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995)
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In its motion for reconsideration before the circuit court, the Commonwealth argued that the court had improperly found a Brady violation. After hearing oral arguments, the circuit court reiterated its holding that if a police officer decides to administer a PBT, then that officer should preserve the results. Otherwise, the officer could be in violation of the holding in Brady. The Commonwealth then asked for Discretionary Review before our Court, which was granted.
STANDARD OF REVIEW
Various standards of review govern our treatment of the issues on appeal. Our standard of review for a trial court's finding based on insufficient factual evidence is whether the trial court abused its discretion. Richardson v. Brunner, 327 S.W.2d 572, 574 (Ky. 1959). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Questions of law are reviewed de novo. Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App. 2001). With these standards in mind, we review the decision of the trial court.
DISCUSSION
On appeal, the Commonwealth raises various issues and seeks reversal of the opinion of the Jessamine Circuit Court, which remanded the case for a new trial and a Daubert hearing. The Commonwealth argues that: (1) the circuit court should not have found a Brady violation because it could not find bad faith as required by Allen; (2.) the circuit court abused its discretion by finding bad faith without any evidence in the record; and (3) even if the circuit court analysis was correct, the issue does not affect the outcome of the trial.
In reversing the decision of the trial court, the circuit court held that Officer Cobb's failure to preserve the PBT level amounted to a Brady violation. Specifically, it held as follows:
In this case, there is no question that a PBT result of less than .08% is exculpatory and is material if it is otherwise admissible. In Stump v. Commonwealth, 289 S.W.3d 213 (Ky. App. 2009), the Court of Appeals held that the results of a PBT may be admissible at trial to determine the defendant's blood alcohol level close in time to his operation of the car. It held that the statute arguably prohibiting its admissibility, KRS 189A.104, was not applicable because the PBT was not being offered to prove guilt. The case was remanded with directions to conduct a Daubert hearing regarding the admissibility of the PBT.
In the present case, if the PBT results had been provided to the Appellant as required, both the Commonwealth and the Appellant would have known the results and proper motions to admit or exclude could have been made. The Appellant contends that the PBT evidence was admitted without objection from the Commonwealth. In fact, the only thing admitted was the officer's testimony that he conducted the PBT and that he did not have the result. Had the result been known, the Commonwealth may have objected thereby requiring the Daubert hearing.
The Appellant argues that the PBT result should have been subject to the equivalent of a missing evidence instruction, i.e., that the trial court should consider that had said evidence been available, it may have been favorable to the accused. Tinsley v. Jackson, 771 S.W.2d 331 (Ky. 1989). A missing evidence instruction requires that "the evidence was intentionally destroyed by the Commonwealth or destroyed inadvertently outside normal practices." Estep v. Commonwealth, 64 S.W.3d 805, 809 (Ky. 2002). As argued by the Appellant, Stump was decided in 2009, and discretionary review was denied in August of that year by the Supreme Court of Kentucky. Thus, at the time the Appellant was arrested here (November 18, 2010), all law enforcement knew or
should have known that the PBT could be admissible, and preservation of PBT results should have been considered "normal practice." In spite of that, the officer failed to write the PBT result on the citation and then somehow misplaced the cruiser video which included the result. This Court therefore finds that the evidence was, at the very least, "destroyed inadvertently outside normal practices." This Court is not willing to instruct the trial court to find as a matter of fact that it is "more probable than not" that the results are below .080%, but the disappearance of the evidence in this case seems to indicate just that.
In order to prove that a Brady violation occurred, there must be a showing that: (1) exculpatory evidence existed, (2) that it was in the custody or control of the agents of the Commonwealth, (3) that it was not disclosed to the defense, and (4) that prejudice resulted from the failure to disclose.
Given that the PBT (as per the officer's testimony) was under the legal limit and given the officer's testimony regarding Parrish's performance on the field sobriety tests, we agree that there was a Brady violation by the Commonwealth in failing to preserve the results of the PBT.
We, therefore, affirm the decision of the circuit court.
ALL CONCUR. BRIEF FOR APPELLANT: Jack Conway
Attorney General
Joseph C. Allison
Nicholasville, Kentucky
BRIEF FOR APPELLEE: David W. Thomas
Nicholasville, Kentucky