Criminal Law – Former cellmate testimony, notice: Andre Finnell v. Commonwealth of Kentucky (SC 10/29/2009)

Andre Finnell v. Commonwealth of Kentucky
2008-SC-000085-MR October 29, 2009
Opinion by Justice Noble. All sitting; all concur.

Finnell was convicted of facilitation of first-degree robbery, reckless homicide and PFO-2 for his role in a homicide that occurred during a narcotics transaction. On appeal, Finnell argued that the trial court should not have permitted testimony from a former cellmate, since the prosecution did not disclose its agreement with the witness until after voir dire had begun. The Court held that Finnell had adequate, if not timely, notice and since he was able to cross-examine the witness about the agreement with the prosecution, the delay did not rise to the level of reversible error. The Court also rejected Finnell’s argument that the jury should have been given an instruction on facilitation to reckless homicide, noting that facilitation requires knowledge that a person intends to commit a crime. Since a person cannot “intend” to commit reckless homicide, one cannot facilitate reckless homicide. The Supreme Court affirmed the conviction, but remanded for a new penalty phase, holding that it was improper for the prosecutor to rely upon an unofficial record (CourtNet) to establish Finnell’s prior convictions.

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