               IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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                                                     RENDERED: JUNE 15, 2017
                                                        NOT TO BE PUBLISHED

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                               2016-SC-000348-MR
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SIMEON MCKINNIE                                                         APPELLANT


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


COMMONWEALTH OF KENTUCKY                                                 APPELLEE


                    MEMORANDUM OPINION 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

affirm the trial court.
                                   I. .BACKGROUND1

       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 for

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. Hayes 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

       1Each witness's account of the events that occurred January 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 streetand 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. T-he 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.

        Abney, Bowling, McKinnie, and Hayes got out of the car and headed into

Hudson's garage. After they entered, Hayes asked again to look a:t 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 ii: 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.a

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

Assistant Commonwealth's Attorney present. However, the Commonwealth

neither recorded Hayes'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 lmowledge 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 Hayes. 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 req1,1ired 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.

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 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


                                         5
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.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.
                                         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 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

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 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 :(VIcKinnie 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.
                                          8
      Although 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 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) ("[Smithj

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.

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.




                                         9
                                 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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