Simeon McKinnie v. Commonwealth of Kentucky ( 2017 )

IMPORTANT NOTlcE
` NoT To BE PuBLlsHED 0PlNloN
THls 0PlNloN ls DEslGNATED “NoT To BE PuBLlsHED.”
PuRsuANT To IHE RuLEs oF clvlL PRocEDuRE
PRolvluLGATED Bv THE suPREME couRT, cR 76-.28(4)(c),
THls oPlNloN l's NoT To BE PuBLlsHED AND sHALL NoT BE
clTED oR usED As BlNDlNG PREcEDENT lN ANY oTHER
cAsE lN ANY-couRT oF THls sTATE; HoWEvER,
uNPuBLlsHED KENTucl2008 WL 3890041 (Ky. Aug. 21, 2008). In Henson, this
Court held that the Commonwealth was not required to disclose information
that a detective obtained but did not include in his official report Id. at *8. In
reaching our decision, we noted that, like the instant matter, “the '
Commonwealth had no written or recorded statement from [the witness].” Id.
at *7. Furthermore, this Court has long held that the Commonwealth is not _r
obligated to disclose information that was not recorded:
Despite the fervor with which Appellant presses this issue, he is
unable to cite, and we are unable to find, any rule or precedent
which would require the Commonwealth [to advise the defense of
additional, non-exculpatory information outside the witness’s
written statement]. RCr 7.26(1) is clear in requiring only written
statements to be made available for use by the defendant
Yates v. Commonwealth 958 S.W.2d 306, 307 (Ky. 1997).
Although it is not clear, it appears McKinnie is arguing that the
Commonwealth should be required to preserve the statements of witnesses it
interviews However, neither our rules nor our precedent require a's much of
thel Commonwealth. See Carroll v. Commonwealth, 2003-SC-000566-MR, 2005
WL 2318966 (Ky. Sept. 22, 2005), at *3 (“Though the defense would
undoubtedly love to have access to every item of paper generated, officially or
unofficially, by law enforcement officers connected with its case, the rules
simply do not sustain such a requirement”).
Finally; we note that the Commonwealth never introduced any
statements attributable to Hayes’s- interview with Detective West and the
Commonwealth’s Attorneys, nor did McKinnie ever identify what particular
statement may have been exculpatory; therefore, “the mere possibility that an
item of undisclosed information might have helped the defense, or might have
affdcted the outcome does not establish materiality in the constitutional sense.”
Id. (citing St. Clair v. Commonwealth, 140 S.W.3d 510, 541 (Ky. 2004))
(emphasis added). For these reasons, we hold that the trial court did not err by
overruling McKinnie’s motion to compel.
B. The trial court did not err by overruling McKinnie’s objection to the
Commonwealth’s comment during closing argument
During the Commonwealth’s guilt-phase closing argument, it made the
following statement to the jury:
[If the story that Simeon McKinnie told were true,] then John
Palmer was with him at the recording studio.4 _John Palmer went
With him -to DeLaun Hayes’s house, John Palmer was in the house
and then went out and got into Charles Knox’s car-the car that
originally, Mr. McKinnie said he didn’t see until Speedway but later
on, said that, ‘No, it was_ at Hayes’s house because Palmer got into
it.’ But if this wasn’t a robbery from the get-go . if it wasn’t
talked about in Hayes’s‘ house, then John Palmer could have told
you that, If the defendant didn’t know that Charles Knox was going
to be the getaway driver, John Palmer could have told you that, If
the defendant didn’t have a gun on‘him that day, John Palmer_
4 There was testimony elicited during trial that Palmer and McKinnie were
together hours before the robbery while McKinnie recorded music at a recording
studio.
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At this point, McKinnie objected, arguing that it was improper for -the
Commonwealth to speculate as to why McKinnie did not call Palmer to testify.
The Commonwealth’s Attorney responded that_he knew of no rule or precedent
prohibiting him from commenting 'on a witness’s absence-. The trial court
overruled McKinnie’s objection, and the Commonwealth continued:
If this defendant never_ if the robbery was never discussed, John
Palmer could have told you that If it wasn’t a getaway car from the
get-go, John Palmer could have told us that If the defendant- if
John Palmer was supposed to be going home and not in the car
the whole time, he could have told us that If the defendant didn’t
have a gun on him that day, John Palmer could have t_old us that_
he’s the defendant’s own brother. But we never heard'.John Palmer
say those things because John Palmer isn’t here and didn’t testify.
McKinnie now argues that the trial court erred _in overruling his objection.
As the Court stated in Brown v. Commonwealth “When the defendant l
testifies, the prosecutor is allowed_to comment on the defendant’s credibility.”
313 S.W.3d 577, 630 (Ky. 2010] (citing Tamme v. Commonwealth 973 S.W.2d
13 (Ky. 1998)). In the instant matter, the Commonwealth’s allegedly-improper
comments were directed at disproving McKinnie’s testimony on the witness
stand. In commenting on a defendant’s credibility, the Commonwealth may
note “the absence of obvious witnesses where the absence tends to belie the_
defendant’s claims.” Id. (citing Maxie»v. Commonwealth 82 S.W.3d 1860 (Ky.
2002”.
F`urthermore, although, McKinnie contends on appeal thatthe
Commonwealth was introducing facts outside of the evidence, we discern no
such conduct Each of the Commonwealth’s statements-at-issue refute
McKinnie’s testimony. “In this instance, the prosecutor’s statement was simply
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a reasonable comment on the evidence, well within the limits of acceptable
conduct.” Maxie, 82 S.W.3d at 866. As such, the trial court’s ruling was not in
error.
C. The trial court did not err by refusing to instruct the jury on a
facilitation charge.
Finally, McKinnie contends that the trial court erred when it refused to
give the jury a facilitation instruction. A defendant is guilty of facilitation when
“with knowledge that another person is committing or intends to commit a
crime, he engages in conduct which knowingly provides such person with
means or.opportunity for the commission of the crime and which in fact aids
such person to Commit the crime.” Kentucky Revised Statute (KRS)
506.080(1).
McKinnie concedes that his own testimony precluded a facilitation
instruction because he testified that he did not know about the robbery or that
any criminal activity was~plarined. However, he argues on appeal that, based
on Hayes’s testimony, the jury could have found that McKinnie was a
disinterested party who facilitated Hayes’s robbery of Hudson. '
In essence, the jury could have believed two narratives describing the
subject-incident 1) -McKinnie’s version, i.e., he had no idea the robbery was
going to occur; or 2] Hayes’s version, i.e., McKinnie was a participant in the
robbery. Both versions preclude a facilitation instruction because the former
narrative refutes the theory that McKinnie had “knowledge that another person
intended to commit a crime,” and the latter narrative suggests McKinnie’s
active participation as an accomplice to the robbery.
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Alt_hough McKinnie would have this Court believe parts of Hayes’s
v testimony while disregarding others, the jury heard the entirety of Hayes’s
testimony. The jury heard evidence that both Hayes and McKinnie were armed
at Hudson’s house; that McKinnie initiated the drug deal; that McKinnie
insisted the group go into Hudson’s garage to weigh the marijuana; that
McKinnie coordinated a getaway vehicle via Knox; that McKinnie pulled out a
pistol and shot toward Hudson and Abney; and that McKinnie ran out of the
garage with the half-pound of marijuana following the shooting The jury
heard no testimony indicating that McKinnie simply facilitated the robbery.
Compare Smith v. Commonwealth 722 S.W.2d 892, 897-98 (Ky. 1987) (“[Smith]
never asserts that he knew of his companion’s intentions ln the absence of
such knowledge, Smith could not be guilty of criminal facilitation to murders
KRS 506.080 requires knowledge of intent to commit a crime.”), with Chumbler
v. Commonwealth 905 S.W.2d 488, 498-99 (Ky. 1995) (holding that there was
sufficient evidence to support a facilitation instruction because there was no
testimony elicited from the defendant regarding whether she knew of her
companion’s intention to commit a crime and the defendant’s knowledge
thereof could be inferred from»'her condu'ct) (emphasis added). ln- the instant
matter, the testimony elicited at trial was insufficient to support a facilitation
instruction; therefore, we hold that the trial court did not err by refusing to
instruct the jury on facilitation.
III. CONCLUSION
_ For the foregoing reasons, the judgment of the Kenton Circuit Court in
this matter is affirmed.
All sitting All'concur.
COUNSEL FOR APPELLANT:
Julia Karol Pearson
Assistant Public Advocate
Department of Public Advocacy
COUNSEL `FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Gregory C. Fuchs .
Assistant Attorney General
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