RENDERED: MAY 1, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-1267-MR
KELLY GILBERT APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE W.A. KITCHEN, JUDGE CASE NO. 21-CR-00078
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: A. JONES, KAREM, AND MOYNAHAN, JUDGES.
KAREM, JUDGE: Kelly Gilbert appeals from a McCracken Circuit Court
judgment after a jury convicted her of second-degree assault. The charge stemmed
from a traffic accident in which Gilbert collided with another vehicle head-on,
seriously injuring the driver. Gilbert argues that the trial court erred in (1) denying
her motion to suppress evidence recovered in a warrantless search of her truck and purse, and (2) failing to give a missing evidence instruction for the investigating
police officer’s bodycam video. Upon careful review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The accident occurred on a bridge on Old Benton Road, a two-lane
roadway leading to Paducah. At trial, two witnesses testified they saw Gilbert
driving her truck erratically and at high speed immediately before the accident. On
the afternoon of September 12, 2020, at around 2:30, Corey Carmen observed
Gilbert trying to turn left onto Old Benton Road. Gilbert hit the curb and had to
back up four or five times before eventually making the turn. Carmen turned in
behind her. He testified that she took off really fast and was swerving over the
center line. When he slowed down for a school zone, he lost sight of her. When
he saw her next, she had collided with a small gold sedan. Gilbert had gotten out
of her truck and was stumbling around towards an ambulance. He thought this was
because she had just had a really hard impact.
Stacy Thuline testified that she was pulling out of her driveway onto
Old Benton Road when she saw Gilbert’s truck approaching well down the road.
Thuline pulled out in front of Gilbert and headed towards Paducah. After passing
three or four houses, Thuline noticed that Gilbert was right behind her. Thuline
sped up to put some distance between them. Gilbert kept crossing the center line,
as if she was going to pass, but Thuline did not think Gilbert would make it if a car
-2- was coming in the opposite direction. The next thing Thuline saw was the tail end
of Gilbert’s vehicle in the air after she collided with the sedan.
John Castens, the driver of the gold sedan, was driving on Old Benton
Road away from Paducah, to make a DoorDash delivery. At Clarks River, he
suddenly saw white. At that time, he was in his lane. When he woke up, he was
pinned in his car. Ultimately, the Jaws of Life were used to remove Castens from
his car, and he was life-flighted by helicopter to Vanderbilt University Hospital.
McCracken County Deputy Sheriff Jason Walters was the first police
officer at the scene. He observed that Gilbert had collided with Castens. He also
observed that all the gouge marks from the collision were in the outbound lane
from Paducah. He saw that Castens was trapped in his car and contacted dispatch
to tell them to have the fire department and EMS hurry up. He checked on Gilbert
and asked her if she was okay. He testified that he didn’t know if she was in shock
from the wreck or what, but she wasn’t answering any of his questions.
When Deputy, now Detective, Blake Maness arrived at the scene,
EMS was tending to Castens, so he went to check on Gilbert. She had gotten out
of her truck. He described her as lethargic, and her speech as very thick and
slurred. He did not smell alcohol, so he did not conduct a breathalyzer test, but he
suspected that she was under the influence of a controlled substance. She was
taken to an ambulance. Maness searched her truck and found an empty Suboxone
-3- pill bottle in her purse. The prescription had been written for her, on September 2,
2020, twelve days prior to the accident. He did not collect the bottle.
Maness went to the ambulance where Gilbert was sitting and
attempted to perform an HGN (Horizontal Gaze Nystagmus) test. He testified that
the test is supposed to be administered while the subject is standing, but that he felt
that at that point, any evidence he could gather would be more beneficial than just
leaving it alone. He was able to perform two parts of the test before Gilbert was
transferred to another ambulance to be transported for medical treatment. Maness
testified that Gilbert showed lack of smooth pursuit and maximum deviation,
which indicated that she was under the influence. He went to the hospital to speak
with her and gave her a citation instead of arresting her. He did not request a blood
draw.
Maness testified that the police were equipped with body cameras at
the time, but he did not have any idea whether there was any video of him or any
other officer at the accident and he did not check to see if anything was uploaded.
Gilbert was indicted on one charge of operating a motor vehicle under
the influence of alcohol/drugs, and one charge of first-degree assault. She initially
entered a plea of guilty to the charges but thereafter retained new counsel and
successfully moved the trial court to withdraw her plea.
-4- Gilbert sought to suppress the evidence recovered from the search of
her vehicle. The trial court conducted a suppression hearing and found that the
search was justified under the automobile exception to the warrant requirement. It
entered findings of fact, conclusions of law, and an order denying the motion to
suppress on April 27, 2023. Gilbert thereafter appeared in court to enter another
guilty plea, which the trial court ultimately decided not to accept.
Prior to trial, Gilbert tendered jury instructions, including a general
missing evidence instruction. At trial, she moved for a missing evidence
instruction for Deputy Maness’s body camera video. The trial court denied the
motion because of lack of proof that the Commonwealth intentionally destroyed
the video.
The jury convicted Gilbert of second-degree assault. In accordance
with the recommendation of the jury, the trial court imposed a sentence of ten
years. This appeal followed. Further facts will be set forth below as necessary.
STANDARD OF REVIEW
Gilbert’s two allegations of error are reviewed under differing
standards.
The denial of the pretrial motion to suppress is reviewed under the
following two-part standard:
First, we review the trial court’s findings of fact under a clearly erroneous standard. Under this standard, the trial
-5- court’s findings of fact will be conclusive if they are supported by substantial evidence. We then conduct a de novo review of the trial court’s application of the law to the facts to determine whether its decision is correct as a matter of law.
Whitlow v. Commonwealth, 575 S.W.3d 663, 668 (Ky. 2019) (citation omitted).
The trial court’s refusal to give a missing evidence instruction to the
jury is reviewed for an abuse of discretion. Downs v. Commonwealth, 620 S.W.3d
604, 613 (Ky. 2020). A trial court abuses its discretion when its decision is
“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id.
(citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
ANALYSIS
i) The trial court did not err in denying the motion to suppress because the warrantless search of the vehicle and purse was supported by probable cause
At the pretrial suppression hearing, Deputy Maness was the sole
witness. He testified that he responded to the scene of a collision on Old Benton
Road to investigate a suspected DUI. A witness who was driving behind Gilbert
told him that she had been traveling at a high rate of speed and swerving all over
the road. Another witness told him that she had just pulled out of her driveway
onto Old Benton Road when Gilbert drove up behind her and got very close, acting
like she was going to pass. The witness said she was looking in her rearview
mirror and saw that Gilbert was again acting like she was going to pass and that is
when Gilbert struck the other vehicle head on.
-6- Maness testified that when he talked with Gilbert, she was lethargic,
and her speech was thick and slurred. He did not smell any alcohol on her but
based on the statements of the witnesses and his own observation, he believed her
to be under the influence of an intoxicant, possibly a depressant. He did not
observe any head injury. She was taken to an ambulance, and he asked her if she
had any head injury and she responded, “No.” Had she not been taken to the
hospital for treatment, Maness believed he would have had probable cause to arrest
her for DUI.
Maness began to administer the HGN test while Gilbert was in the
ambulance. She showed lack of smooth pursuit and maximum deviation, but he
was unable to complete the test because the EMTs informed him they needed to
put her in another ambulance for transport to the hospital.
Maness searched Gilbert’s vehicle. He believed she was still in the
ambulance when he did so, but he did not ask her consent. He testified that he was
looking for any kind of controlled substance which she might have been under the
influence of at that time.
Maness found an empty prescription bottle for forty-two Suboxone
tablets that was filled on September 2, 2020. He found the bottle in her purse on
the passenger side of the vehicle. He testified, based on his training and
experience, that Suboxone is a controlled substance that is taken by individuals to
-7- curb their craving for opiates. He stated that if a user takes an excessive amount,
the user has the tendency to show signs similar to opiate use. He did not collect
the bottle.
On cross-examination, he testified that while she was in the
ambulance, Gilbert was about fifty to seventy-five yards away from the truck.
Maness described the search of the vehicle as incident to arrest, as he
would have placed Gilbert under arrest if she had not been in the ambulance going
to the hospital. Her vehicle was towed after she was taken away. Maness testified
that he would have lost the opportunity to preserve whatever evidence there would
have been in the vehicle as someone else could have accessed it.
He testified that the investigating police officers had body cameras on,
but there was no video available and nothing was preserved.
The trial court denied the motion to suppress, based on the following
findings:
On September 14, 2020, McCracken County Sheriff’s Department Deputy Blake Maness responded to the scene of a collision on Benton Rd. The collision involved two vehicles. The defendant was the operator of one vehicle, a small truck. The operator of the second vehicle sustained serious injuries. Based upon the scene, it is believed that the defendant’s vehicle hit the second vehicle head-on in the other lane of traffic.
Maness spoke to a witness who said he was following the defendant’s vehicle. The witness said that the
-8- defendant’s vehicle was traveling at a high rate of speed and swerving all over the highway.
Maness spoke to another witness at the scene who said she pulled out of her driveway and that the defendant’s vehicle was traveling at a high rate of speed and attempting to pass her in a non-passing zone.
The defendant was on the scene when Maness arrived. She was lethargic and her speech was slurred. Based upon his observations and the witness statements, Maness believed her to be under the influence of an intoxicating substance. Based on his training and experience, he believed her to be under the influence of a depressant.
Maness searched the defendant’s vehicle. He was looking for evidence of any intoxicating substance. He located a prescription bottle for Suboxone inside of a purse inside the vehicle. The prescription was filled on September 2, 2020, for forty-two tablets but was empty on the date of the collision. Suboxone is a controlled substance prescribed to treat opioid addiction. If taken to excess it can lead to intoxication.
The defendant was taken from the scene by ambulance to the hospital. She was not arrested at the scene but was rather cited to court for assault and driving under the influence.
The trial court concluded that the search of Gilbert’s truck was
justified under the automobile exception to the warrant requirement:
[A]n officer may search a legitimately stopped automobile where probable cause exists that contraband or evidence of a crime is in the vehicle. The search may be as thorough as a magistrate could authorize via a search warrant, including all compartments of the automobile and all containers in the automobile which
-9- might contain the object of the search.
Gray v. Commonwealth, 28 S.W.3d 316, 319 (Ky. App. 2000) (citations omitted).
The trial court applied Gray to the facts of the case as follows:
Deputy Maness observed evidence of a head-on collision caused by the defendant attempting to pass in a non- passing zone. He spoke to two witnesses at the scene who described aggressive and poor driving on the part of the defendant. Moreover, he personally observed the defendant following the collision, and observed signs of impairment including slurred speech and lethargy. Based upon the foregoing, Deputy Maness had probable cause to believe that the defendant was driving under the influence of an intoxicant.
While the vehicle was damaged and likely inoperable, Deputy Maness knew that the vehicle would soon be towed to another location and an opportunity to gather evidence from the vehicle could be lost.
On appeal, Gilbert argues that no exception to the warrant
requirement exists to support the warrantless seizure and search of her truck and
purse.
“The bulwark of Fourth Amendment protection, of course, is the
Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant
from a neutral and disinterested magistrate before embarking upon a search.”
Franks v. Delaware, 438 U.S. 154, 164, 98 S. Ct. 2674, 2681, 57 L. Ed. 2d 667
(1978).
-10- Gilbert argues that a government agent can conduct a warrantless
search of an area in which a person has a reasonable expectation of privacy only
when the agent has both probable cause and there are exigent circumstances. So,
for example, “[a]bsent probable cause and exigent circumstances, law enforcement
officers may not enter an individual’s private residence in order to conduct a
warrantless search.” Southers v. Commonwealth, 210 S.W.3d 173, 176 (Ky. App.
2006), overruled on other grounds by Brumley v. Commonwealth, 413 S.W.3d 280
(Ky. 2013) (emphasis supplied). Gilbert contends that the search of her truck and
purse was not supported by probable cause and the trial court never identified any
exigent circumstances.
But the automobile exception to the warrant requirement, which was
the exception relied upon by the trial court, does not require a finding of exigent
circumstances to justify a warrantless search:
The automobile exception to the warrant requirement applies when the vehicle is readily mobile and probable cause exists to believe evidence of criminal activity may be contained in the vehicle. A vehicle is considered readily mobile even if it has been secured by law enforcement or there is little to no risk a suspect or his accomplices could access the vehicle. An independent finding of exigent circumstances is not required under the automobile exception because the exception is based upon “reduced expectations of privacy” in vehicles.
Gasaway v. Commonwealth, 671 S.W.3d 298, 316–17 (Ky. 2023) (citations
omitted).
-11- The automobile exception also extends to containers, such as Gilbert’s
purse, in the vehicle: “If probable cause justifies the search of a lawfully stopped
vehicle, it justifies the search of every part of the vehicle and its contents that may
conceal the object of the search.” United States v. Ross, 456 U.S. 798, 825, 102 S.
Ct. 2157, 2173, 72 L. Ed. 2d 572 (1982).
Gilbert argues that there was no showing of probable cause that
evidence of a crime was in her purse and that Maness had at most only a “bare
suspicion” of a crime. “The test for probable cause is whether, under the totality of
the circumstances, a fair probability exists that contraband or evidence of a crime
will be found in a particular place.” Beckam v. Commonwealth, 284 S.W.3d 547,
549 (Ky. App. 2009).
Gilbert contends that bad driving and speeding do not provide
probable cause that there was evidence of a crime in her purse. She also casts
doubt on the trial testimony of the witnesses Carmen and Thuline that she was
speeding and driving erratically immediately before the accident. She has included
maps of the area around the accident site and placed pins at various locations on
the maps to show the distances traveled by the witnesses. She argues, based on her
calculations, that it was impossible for Corey Carmen to observe her speeding
unless he was speeding himself. She contends that Stacy Thuline was most likely
driving erratically when she pulled out of her driveway and that Thuline probably
-12- caused Gilbert to lose control of her vehicle. But the testimony of these two
witnesses was presented at trial, not at the suppression hearing, and none of these
arguments regarding the veracity of their testimony was presented to the trial court
as grounds for suppression. “Our review of the facts is generally limited to the
evidence presented at the suppression hearing.” Gasaway, 671 S.W.3d at 316.
The only testimony at the suppression hearing came from Deputy Maness, who
testified generally regarding what the two witnesses had told him. The jury was
free to assess the credibility of these witnesses at trial and Gilbert was free to
impeach their testimony on cross-examination. Her appellate arguments are
essentially an attempt to re-try the suppression hearing, using the testimonial
evidence that was offered years later at trial.
In any event, probable cause must be evaluated in light of what
Maness knew at the time he made the decision to conduct the warrantless search.
Obviously, Maness would not have had the time or the opportunity to measure the
distances and perform the mathematical calculations found in Gilbert’s brief in
order to test the accuracy of the Carmen and Thuline’s statements. As the trial
court found, Maness had substantial additional evidence to support a finding of
probable cause: Gilbert’s vehicle had crossed over into Casten’s lane for no
apparent reason and struck his vehicle head-on, and, based on Maness’s own
observations, Gilbert appeared to be under the influence of some kind of intoxicant
-13- or depressant. Maness was also apprehensive that any evidence relating to her
impairment that could be found in Gilbert’s truck would be lost or destroyed when
the vehicle was towed away. The trial court’s findings in this regard are supported
by substantial evidence and its application of the automobile exception was correct
as a matter of law.
ii) The trial court did not abuse its discretion in denying the motion for a missing evidence instruction because it applied the correct legal standard
Next, Gilbert argues that she was entitled to a missing evidence
instruction for Maness’s bodycam video. Maness testified that he was wearing a
bodycam when he investigated the accident, but he was not sure if it was on or not
and he did not know whether it recorded. He said that, to his best recollection, he
would have had it on. The trial court refused to give the missing evidence
instruction because there was no evidence that the video was deliberately
destroyed.
A missing-evidence instruction is one way to cure an alleged violation of due process per Brady v. Maryland, [373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)] other than dismissal of the charge altogether or exclusion of the Commonwealth’s evidence outright, the latter two being the more drastic remedies. Entitlement to the instruction arises when purportedly exculpatory evidence was destroyed by the Commonwealth intentionally or inadvertently “outside of normal practices,” or when such evidence was so significant and forever lost that it compromises the defendant’s due- process right to a fair trial. This standard, perhaps with minor modification, reflects the due-process standard
-14- established in Arizona v. Youngblood, [488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)] which held the Due Process Clause was not implicated by “the failure of the State to preserve evidentiary material of which no more can be said then that it could have been subjected to tests, the results of which might have exonerated the defendant.”
Dooley v. Commonwealth, 626 S.W.3d 487, 502–03 (Ky. 2021) (citations omitted).
In order to receive a missing evidence instruction, the criminal
defendant must demonstrate that the Due Process Clause was implicated, which
occurs “only when the failure to preserve or collect the missing evidence was
intentional and the potentially exculpatory nature of the evidence was apparent at
the time it was lost or destroyed.” Estep v. Commonwealth, 64 S.W.3d 805, 810
(Ky. 2002). “[A]bsent some degree of ‘bad faith,’ the defendant is not entitled to
an instruction that the jury may draw an adverse inference from that failure.” Id.
Gilbert does not dispute that the trial court correctly followed our
current precedent regarding missing evidence instructions but argues that the bad
faith standard for criminal defendants as it currently stands foreclosed her
opportunity for a fair trial. Specifically, she challenges what she describes as the
inequity stemming from the fact that criminal defendants must meet a higher
burden than civil litigants in seeking a missing evidence instruction. “To prove
entitlement to a missing evidence instruction in civil litigation, a litigant only [has]
to show that the opposing party had exclusive control over the evidence when it
-15- went missing and that the evidence is missing without explanation.” Sanchez v.
Commonwealth, 680 S.W.3d 911, 929 (Ky. 2023) (internal quotation marks and
citations omitted). The Kentucky Supreme Court has expressed misgivings about
the disparity between the civil and criminal standards, stating:
The Court recognizes it may soon be appropriate to reflect on the burden of proof criminal defendants sometimes bear under Youngblood and acknowledges that some authorities are critical of the current standard. The burden of proving bad faith is quite difficult to carry, and our historical imposition of a higher burden on criminal defendants than civil litigants is more than curious.
Dooley, 626 S.W.3d at 503.
In Sanchez, the Court stated that it stood by its statement in Dooley
and reiterated that it might soon have to address the disparate burdens placed on
criminal and civil litigants, but concluded that Sanchez was not the case to do it.
Sanchez, 680 S.W.3d at 929. The Court has not revisited the issue in its published
opinions.
The Court of Appeals “is bound by and shall follow applicable
precedents established in the opinions of the Supreme Court and its predecessor
court. SCR [Rules of the Kentucky Supreme Court] 1.030(8)(a). We are without
authority to overrule the established precedent set by the Supreme Court or its
predecessor Court.” Commonwealth v. Frazier, 722 S.W.3d 541, 569 (Ky. App.
2025) (internal quotation marks and citation omitted).
-16- The trial court’s decision not to allow the missing evidence instruction
was not an abuse of discretion because it was fully in accordance with our case
law. Gilbert did not demonstrate that the Commonwealth intentionally destroyed
any bodycam video; indeed, it is unclear from Maness’s testimony if bodycam
video existed at all.
CONCLUSION
For the foregoing reasons, the final judgment of the McCracken
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE
Roy Alyette Durham, II Russell Coleman Assistant Public Advocate Attorney General of Kentucky Frankfort, Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
-17-