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NOT TO BE PUBLPS'HED OPINION

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THIS OPINI'O'NIS DESIGNA TED "NO T TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PR OCED URE PR OMUL GA TED B.Y THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL .NOT BE CITED OR USED AS A UTUORITY IN ANY OTHER CASE IN ANY CO UR T OF THIS STA TE.

RENDERED : MAY 18, 2006 NOT TO BE PUBLISHED

WILLIAM HOPKINS APPEAL FROM PIKE CIRCUIT COURT HON. EDDY COLEMAN, JUDGE 03-CR-00100-002 COMMONWEALTH OF KENTUCKY MEMORANDUM OPINION OF THE COURT AFFIRMING I . Introduction Appellant, William Hopkins, was convicted of complicity to murder and complicity to first-degree robbery. He alleges four errors on this appeal: (1) that the Commonwealth gave insufficient notice of its intent to introduce KRE 404(b) evidence and that the evidence was not admissible under KRE 404(b); (2) the trial court's refusal to grant a continuance after his codefendant, who was facing the death penalty, pled guilty the morning of trial; (3) the trial court's failure to give the jury instructions including facilitation of the murder and robbery as lesser-included offenses ; and (4) the trial court's denial of his motions to strike three jurors for cause. Finding no merit in his claims of error, we affirm. if. Background Between 6:30 a.m . and 7:00 a .m. on November 21, 2001, Patrick Etherton, Raymond French, and Appellant drove together to Thompson's Market, located in

Raccoon, Kentucky. They stopped the car a short distance away. Etherton got out of the car and entered the store. He was wearing a ski mask and carrying a gun . entering the store, he encountered the owner, Charles Thompson . Etherton demanded money, and Thompson complied . Though the details are not clear, it appears that Etherton shot Thompson in the stomach while in the store. Thompson followed Etherton out of the store, pushing him as he went through the doorway toward the parking lot. Etherton fell to the ground, shot Thompson a second time, this time in the

chest, and ran to the car where French and Appellant were waiting. Etherton got in the car, and the three men drove away. Charles Thompson died at the scene. On April 16, 2003, Etherton and Appellant were indicted for first-degree robbery and murder. That same day, French approached the police to make a statement. He later pled guilty to facilitation of robbery and received a 2.5 year sentence in exchange for testifying against Etherton and Appellant at trial. Before trial, the Commonwealth had indicated its intent to seek the death penalty against Etherton . The Commonwealth had agreed not to seek the death penalty against Appellant, but was still planning to seek the other aggravated penalties . On June 28, 2003, the first day of the trial, Appellant's attorney filed a motion in limine to prohibit the introduction of KRE 404(b) evidence, or at least for a continuance, arguing that she had inadequate time to prepare because the Commonwealth's formal notice of intent to introduce such evidence was not filed until June 25, 2003. The trial court held a short hearing to consider the motion, the details of which are discussed in more detail below. Etherton pled guilty almost immediately following the hearing, having agreed to testify against Appellant in exchange for a sentence of life without the possibility of

parole for twenty-five years . Following the guilty plea, Appellant's attorney asked for a continuance to "revamp" her case. This discussion is also described in more detail below. The trial court then proceeded to voir dire, which lasted until about 5:30 that afternoon . The court then recessed until 1 :00 p .m . the next day, when the attorneys began their opening statements . The Commonwealth called seven witnesses during its case in chief and the bulk of their testimony related to the events leading up to the robbery and shooting described above . The testimony established that Etherton, French, Joe Hopkins (Appellant's brother), and Appellant gathered at Appellant's trailer in Pike County on November 20, 2001 . (Etherton and French were also living in Appellant's trailer at the time.) While at the trailer that night, Etherton took some Valium, and French smoked marijuana . The four men left in two vehicles and traveled to Velocity Market, which they intended to burglarize . Etherton and French testified that Appellant told Etherton to enter the market and rob it, while Appellant's brother acted as a lookout some distance away. Etherton attempted to break in through a window, but an alarm sounded, and he ran back to the car. The men left the scene and returned to Appellant's trailer, where Appellant's brother indicated that he knew of some local pharmacies they could burglarize. Tammy Hopkins (who was then Appellant's girlfriend, and later his wife) testified that after the attempted break-in at Velocity Market, the men planned to break into some pharmacies . She also testified that Etherton indicated he would not participate 'without anything," meaning without drugs, and that Appellant's brother then gave Etherton more Valium . She also claimed that Etherton went to his room and retrieved a .380 handgun, a ski mask, and a hooded sweatshirt, and that she did not know whether Appellant knew that

Etherton had the gun with him that night. She testified that Etherton had told her that he had obtained the gun by trading marijuana for it. Tammy's testimony in this regard conflicted with that of the other witnesses. French testified that Appellant had bought the gun as a Christmas present for Etherton and had kept it locked in a drawer, but that it was in the glove box of Appellant's car the night of the crime . French also testified that while Appellant's brother brought the drugs

to the trailer, it was Appellant who actually gave Etherton the Valium. Appellant's brother testified that Appellant owned a .380 handgun, but that he did not see it that night. He also testified that he did not see Etherton take any pills that night. testified that he obtained Valium from both Appellant and his brother that night. The four men left the trailer again, this time driving to a Rite-Aid pharmacy in' Elkhorn City, Kentucky. Again, Etherton attempted to break in, but he was unable to get into the building. The men drove around for several hours, and Appellant's brother left the group. At approximately 6:00 a .m., the three remaining men drove to Zebulon, Kentucky and stopped near a convenience store called Happy Mart . French testified that they discussed robbing the store, but decided against it because two women were working there . Etherton could not recall any discussion of robbing the Happy Mart . The three men then started to drive back to Appellant's trailer, and stopped at Thompson's Market. French and Etherton testified that Appellant gave Etherton the .380 handgun, told him to go into the store, and rob it. Both men also testified that Appellant told Etherton to shoot the store owner in the leg "if he had to." Etherton put on a ski mask and approached the store. Appellant and French drove down the road out of sight of'the store and parked in a driveway . According to French, they heard a gunshot a few minutes later. Appellant pulled out of the driveway, and Etherton ran up

to the car and got in . They then drove back to Appellant's trailer. Appellant and

French

put the gun and the money from the robbery in a plastic bag and then buried them . They burned the ski mask and Etherton's shoes. Tammy testified that she Appellant later dug up the gun and threw it in a river. The jury convicted Appellant of complicity to both first-degree robbery and murder, and he was sentenced to thirty-five years in prison . He appeals to this Court as a matter of right. Ky. Const.

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