Commonwealth v. Parrish, 2015 Ky. LEXIS 1865

Background

At ~12:04 a.m. on Nov. 18, 2010, Officer Cobb stopped Adrian Parrish for traffic violations, smelled alcohol, and Parrish volunteered he had three drinks in the prior 30 minutes.
Officer Cobb administered field sobriety tests and a preliminary breath test (PBT); he displayed the PBT result to the cruiser dash camera but recorded only that the PBT detected alcohol (no numeric result) on the citation.
At the station an Intoxilyzer breath test at 12:49 a.m. registered 0.086 and Parrish was charged with DUI, first offense under KRS 189A.010(1)(a).
Parrish’s counsel made an informal pretrial request for the dash video and was told it did not exist; no formal discovery request was made. At trial Officer Cobb testified the cruiser automatically records and that he had shown the PBT result to the camera but was unaware why the video was not available.
The district court (bench trial) convicted Parrish on the per se 0.08 theory, expressly noting it was aware of the missing video and found no bad faith by police; the court accepted the Commonwealth’s proof under the totality of the evidence.
The circuit court reversed for a new trial, finding a Brady violation and concluding (in rehearing) that the video’s absence reflected police bad faith; the Court of Appeals affirmed. This Court granted review and reversed the appellate rulings, reinstating the district court judgment.

Issues

Issue	Parrish's Argument	Commonwealth's Argument	Held
Whether failure to preserve/provide dash-cam PBT evidence violated Brady/Youngblood	Missing dash video and PBT numeric result were potentially exculpatory; police destroyed or failed to preserve it, requiring reversal	No Brady violation: defense knew of PBT and video’s nonexistence before trial, explored it at trial; no bad faith shown	No Brady/Youngblood violation—appellant failed to show bad faith and had opportunity at trial to address missing evidence; conviction reinstated
Whether appellate (circuit) court could make contrary factual finding of bad faith	Circuit court inferred intentional suppression and bad faith from absence of video	Appellate court improperly substituted its factual finding for the trial court’s credibility determination	Circuit court erred; appellate courts cannot make independent fact findings that contradict trial court credibility findings
Whether failure to make a formal discovery request or seek continuance waives relief	Parrish argued he only learned the potentially exculpatory content at trial and was entitled to relief	Commonwealth argued the defense knew of the PBT and dash video issue pretrial and could have sought production or continuance	Held against Parrish: defense knew of PBT and absence of video pretrial and did not seek formal discovery or continuance, so cannot now claim Brady relief
Whether negligence in evidence preservation suffices as Brady bad faith	Parrish contended loss/nonproduction amounted to bad faith	Commonwealth relied on Youngblood/Collins: negligence does not equal bad faith; must prove intentional or in bad faith	Held: negligence alone insufficient; no record evidence of intentional destruction or bad faith, so Youngblood standard not met

Key Cases Cited

Brady v. Maryland, 373 U.S. 83 (1963) (suppression of favorable, material evidence violates due process)
Arizona v. Youngblood, 488 U.S. 51 (1988) (when government fails to preserve potentially useful evidence, defendant must show police bad faith)
Collins v. Commonwealth, 951 S.W.2d 569 (Ky. 1997) (negligence in evidence preservation does not establish bad faith)
Nunley v. Commonwealth, 393 S.W.3d 9 (Ky. 2013) (no Brady violation where defense knew issue at trial and had opportunity to explore it)
Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002) (Brady applies to information known to prosecution but unknown to defense)
Commonwealth v. Bussell, 226 S.W.3d 96 (Ky. 2007) (Brady/related standards and review analyzed)
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (standard for admissibility of expert scientific testimony)