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RENDERED: OCTOBER29, 2009 TO BE PUBLISHED
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2008-SC-000085-MR
ANDRE FINNELL APPELLAN
ON APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
NO. 07-CR-00130

COMMONWEALTH OF KENTUCKY APPELLEE
OPINIONOF THE COURTBY JUSTICE NOBLE

AFFIRMINGIN PARTREVERSINGIN PART
AND REMANDING

Appellant Andre Finnell was convicted by the Kenton Circuit Court of facilitation of first-degree robbery, reckless homicide, and of being a persistent felony offender (PFO) in the second degree. On appeal, Appellant claims that the Commonwealth failed to timely disclose evidence that he could have used to impeach a Commonwealth witness, that the trial court erroneously failed to instruct the jury on facilitation to reckless homicide, and that the trial court erroneously allowed the Commonwealth to prove his criminal history during the penalty phase with testimony based on an unofficial source. For the reasons set forth below, Appellant's convictions of facilitation of first-degree robberyand reckless homicide are affirmed, but his sentence is set aside and this case is remanded for a newpenalty phase.
I. Background
Howard Edwards robbed, shot, and killed James Clowers on January 21,
2006. Appellant testified at trial that he was at the scene of the crime because
he was selling crack cocaine to Clowers. During the sale, Edwards pushed him
to the side, produced a pistol, and announced that he was robbing Clowers,
whowas sitting in the driver's seat of his van and began to roll up his driver's

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Kentucky Law