l|V|PORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

THls 0PlNloN ls DEslGNATED “NoT fo BE PuBLlsHED."
PuRsuANT To THE RuLEs oF clvlL PRocEDuRE
PRoMuLGATED BY THE suPREME couRT, cR 76.28(4)(€),
THls 0PlNloN ls NoT To BE PuBLlsHED AND sHALL NoT BE
clTED 0R..usEn As BlNDlNG PREcEDENT lN ANv oTHER
cAsE lN ANv_couRT oF Tl-us sTATE; HowEvER,
uNPuBLlsHED KENTucKY APPELLATE DEclsloNs,
RENDERED AFTER JANuARY 1, 2003, MAY BE clTEn FoR
coNleERATloN Bv THE couRT IF THERE ls No PuBLlsHED
oPlNloN THAT~WouLD ADEQuATELY-ADnREss THE lssuE
BEFoRE THE‘ couRT. 0PlNloNs clTED FoR coNs_lDERATloN
.Bv THE couRT sHALL BE sET ouT As AN uNPuBLlsHED '
DEclsloN lN THE FlLED oocuMENT AND A coP_Y oF THE
ENTlRE DEclslow sHALL BE TEND_ERED ALo'NG wlTH THE
oocuME-NT To THE cOuRT AND ALL PARTlEs To THE
AchoN.

RENDERED. JUNE 15, 2017
NoT To BE PUBLISHED

Supreme Tunrf of @HW A H:l

2016- SC- 000348- MR

DATEM@MW,/>C

SIMEON MCKINNIE 1 APPELLAN'I_`

» ON APPEAL FROM KENTON CIRCUIT COURT.
V. t HONORABLE PATRICIA M. SUMME, JUDGE
NO. 15-CR-00199-001

COMM'ONWEALTH OF KENTUCKY v ' APPELLEE

MEMORANDUM OPIHION OF THE COURT
AFFIRMING

A Kenton County jury found Simeon McKinnie guilty of` first-degree
manslaughter‘, first-degree assault, first-degree wanton endangerment, and two
counts of first-degree robbery. Consistent with the jury’s sentencing
recommendations,- the trial court fixed -his sentence at fifty-five years’
imprisonment

McKinnie now appeals as a matter of` right, Kentucky Constitution §
l 10[2)(b), arguing that the trial court erred by: (1) overruling his motion to
compel production of the-Commonwealth’s interview with a witness; (2)
' permitting the Commonwealth to make allegedly-improper statements during
-- its closing argument regarding-the absence of a defense witness; and (3)
refusing to instruct the jury on facilitation. For the reasons set-forth below, we

n affirm the trial court.

I. .BACKGROUN D1

On January 21, 2015, Simeon McKinnie sought to obtain a half-pound of
marijuana. He contacted Matthew Bowling, who then contacted David Abney.
Abney, in turn, contacted Ronald Hudson, who he knew sold marijuana The
next day, Abney met with Bowling, and the two went to pick up McKinnie on
Holman Street in Covington. McKinnie was unexpectedly accompanied by
DeLaun Hayes. The four_Abney, Bowling, McKinnie, and Hayes_traveled
together from Holman Street en route to Hudson’s house on Hand’s Pike.

In the meantime and unbeknownst to Abney and Bowling, McKinnie had
another plan. He had contacted Charles Knox prior to joining Abney and
Bowling. McKinnie asked Knox to give him a ride to obtain marijuana;
however, McKinnie never intended to ride' with Knox, rather,- he intended f`or
Knox to follow him to Hudson’s. Knox, not owning a car, contacted Tara Little,
who agreed to drive Knox to the drug deal in exchange for gas money. When
Knox and Little arrived at Hayes’s house to pick up McKinnie, he was not
there. Instead, McKinnie’s step-brother, John Palmer, got in the car and said
McKinnie was in a truck around the corner. Confused, Knox called McKinnie,
who told him to follow the truck.

Both vehicles made their way to Hudson’s house. Along the way, Little’s
vehicle was separated from Bowling’s, and Hayes called Knox to see Where he
was. I-Iayes told Knox they would wait for him at a'Speedway gas station on

Madison Avenue; McKinnie told Bowling to stop at the gas station so he could

 

1 Each witness’s account of the events that occurred Ja.nuary 22, 2015 varied
from witness to witness; therefore, our summary of the events reflects the jury verdict.

2

get something to drink. After Little’s vehicle caught up to Bowling’s, the two
vehicles continued 'to Hudson’s.2

When the group arrived at Hudson’s house, Bowling parked in the
driveway, while Little parked on a side-street`and waited with her engine
running. McKinnie and Hayes told Abney that they wanted to see the
marijuana before they bought it. Abney, not wanting to bring someone new
into Hudson’s home, went inside alone and brought a small amount of the
marijuana out to McKinnie and Hayes. The two then told Abney that they
wanted to see the entire amount weighed. Abney conveyed this information to
Hudson, who told Abney to take McKinnie and Hayes to the garage, Where he
would meet them. 4

Abney, Bowling, McKinnie, and I-Iayes got out of the car and headed into
Hudson’s garage. After they entered, I-Iayes asked again to look at the
marijuana Hudson gave him the bag and then asked if “the deal was going to
go down.” Hayes responded, “Yeah, but it’s going to go down like this” and
both Hayes and McKinnie pulled out pistols. Abney then lunged for Hayes,
attempting to knock the marijuana and gun from his hand. While it is clear
from witness testimony that both Hayes and McKinnie fired their pistols, it is
unclear who shot Whom. Ultimately, however, both Abney and Hudson were
shot, and Hudson died of his wounds.

After the shots were fired, McKinnie took the marijuana, and he and

Hayes ran from the garage. The two ran to Little’s car, and the group drove to

 

2 It appears that Bowling and Abney were unaware that a vehicle was following
them. .

3

Hayes’s grandmother’s house, Where McKinnie, Hayes, Palmer, and Knox
divided up the marijuana, and McKinnie and Hayes disposed of. their pistols.3
McKinnie was charged with first-degree manslaughter, first-degree assault, and
two counts of first-degree robbery, and these proceedings commenced. We set
forth additional facts as necessary below.
II. ANALYSIS

A. The trial court did not err by overruling McKinnie’s motion to compel.

Following his arrest, Hayes was interviewed by Detective West of the
Covington Police Department, with the Commonwealth’s Attorney and an
AssistantCommonwealth’s Attorney present. However, the Commonwealth
neither recorded I-Iayes’s statement nor obtained a written statement

During discovery, McKinnie sought to compel the Commonwealth to
produce the contents of its interview with Hayes. The Commonwealth stated it
did not intend to introduce any statements of Hayes at trial, and that none of
Hayes’s statements were exculpatory. McKinnie argued that those statements
were subject to cross-examination; thus, through impeachment, any
statements Hayes made were exculpatory.

The trial court overruled McKinnie’s motion, noting that, while Kentucky
Rule of Criminal Procedure (RCr] 7.24(1) requires the Commonwealth to
disclose the substance of any oral incriminating statement made by a

defendant to any witness, RCr 7.24(2) excludes discovery of memoranda “of

 

3 Little dropped the other four off at Hayes’s grandmother’s house and left. It
appears that she had no knowledge of the plan to rob Hudson, nor of what had
transpired at Hudson’s house.

4

police officers and agents of the Commonwealth . . . of statements made to
them by witnesses . . . .” The trial court correctly read and applied the rule.

On appeal, McKinnie argues'that the trial court’s ruling impeded his
ability to present a defense and to cross-examine I-layes. We disagree. We note
that the instant matter is not dissimilar from Henson v. Commonwealth, No.
2006-SC-000490-MR, 2008 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 Ofiicial 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 47
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-exculpatoryinformation 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 as much of
the 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
affected the outcome does not establish materiality in the constitutional sense.”
Id. (citing St. Clair v. Commonwealth 140 S.W.Bd 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 Joh'n
Palmer was with him at the recording studio.4 John Palmer went
with him to DeLaun Hayes’s house. Joh_n 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 The_re was testimony elicited during trial that Palmer and McKinnie were
together hours before the robbery while McKinnie recorded music at a recording
studio.

6

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 told 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
testifies, the prosecutor is allowed to comment on the defendant’s credibility.”
313 S.W.3d 577, 630 (Ky. 2010) (citing Tamme i). Commonwealth 973 S.W.Qd
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 the4
defendant’s claims.” Id. (citing Maxie_-v. Commonwealth 82 S.W.3d 860 (Ky.
2002».

Furthermore, although, McKinnie contends on appeal that the
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

7

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 planned. 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 l) 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.
8

Alt_hough McKinnie would have this Court believe parts of Hayes’s

- 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 l_VIcKinnie 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. In the absence of
such knowledge, Smith could not be guilty of criminal facilitation to murder.l
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 conduct] [emphasis added). In 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

10

