Simeon McKinnie v. Commonwealth of Kentucky, 2016 SC 000348

McKinnie was convicted by a Kenton County jury of first-degree manslaughter, first-degree assault, two counts of first-degree robbery, and sentenced to 55 years’ imprisonment.
The offenses arose from a January 2015 drug deal in Covington where Hayes, Abney, Bowling, Knox, and Little participated; McKinnie orchestrated the plan and accompanied the group.
McKinnie accompanied Hayes and Abney to Hudson's garage, where gunfire occurred after tension over the marijuana; Hudson died from his wounds.
McKinnie arranged for Knox to follow him to Hudson's; Palmer’s involvement and whether McKinnie knew of a robbery plan are disputed.
During discovery, Hayes’s interview was not recorded or reduced to writing, and the Commonwealth did not intend to use any statements at trial; the trial court overruled the motion to compel production of the interview.
The Commonwealth’s closing argument commented on the absence of a defense witness (John Palmer), which McKinnie challenged; the court ruled the remarks permissible as credibility impeachment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by compelling production of the interview	McKinnie contends Hayes’s statements were exculpatory and subject to cross-examination	Commonwealth asserted non-recorded statements are not subject to disclosure	No error; no recorded or exculpatory statements were disclosed, and RCr 7.24(2) does not require production of non-recorded notes.
Whether the Commonwealth improperly commented on a missing witness	Commentary on Palmer’s absence violated McKinnie’s right to a fair trial	Prosecutor may comment on a defendant’s credibility and absence of witnesses	No reversible error; comments were proper credibility impeachment and did not present new facts.
Whether the court erred in refusing a facilitation instruction	Jury could infer McKinnie facilitated the robbery based on Hayes’s testimony	Evidence supported only two narratives; McKinnie did not know of or participate in the crime	No error; evidence did not support a facilitation instruction.

Yates v. Commonwealth, 958 S.W.2d 306 (Ky. 1997) (disclosure rules and materiality under Brady-like theories; nondisclosure not material here)
Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010) (prosecutor may comment on defendant's credibility; absence of witnesses allowed if probative of credibility)
Tamme v. Commonwealth, 973 S.W.2d 13 (Ky. 1998) (limits on cross-examining defense witnesses; credibility-related remarks)
Maxie v. Commonwealth, 82 S.W.3d 860 (Ky. 2002) (allowable remarks on absence of witnesses to challenge credibility)
St. Clair v. Commonwealth, 140 S.W.3d 510 (Ky. 2004) (materiality standard for undisclosed information; not satisfied here)
Smith v. Commonwealth, 722 S.W.2d 892 (Ky. 1987) (knowledge of companion’s intent required for facilitation for murder)
Chumbler v. Commonwealth, 905 S.W.2d 488 (Ky. 1995) (facilitation instruction proper when knowledge inferred from conduct)
Henson v. Commonwealth, 2008 WL 3890041 (Ky. 2008) (non-recorded statements not disclosed when no written record)