dissenting.
Respectfully, I dissent.
Appellant, Nefehevious Mathews, was sentenced to life imprisonment as a result of his conviction for intentional murder. As a result of a gross violation of the rules of criminal procedure at his trial, I cannot agree with the majority’s conclusion that no reversible error occurred.
During the Commonwealth’s case-in-chief the Commonwealth called Detective Darlene Lackey to testify, based on eight to ten pages of notes, as to statements made by Mathews when she arrested him. This was the first time that appellant was *454made aware of the existence of these notes or the intent to call Lackey to the stand. Appellant made a timely objection. Appellant claims that this is an impermissible violation of his rights. I agree.
The statement in question dealt with the issue of who fired the shot which lead to the death of the victim. Detective Lackey was ready to testify that appellant told her that someone else had fired the fatal shot when she arrested him. Appellant’s position at trial was that he had fired the shot, but it had been in self-defense.
Appellant forwards three arguments as to why Lackey’s testimony should have been disclosed to the defense prior to trial. First, RCR 7.24(l)(a) mandates that the Commonwealth disclose the substance of any oral incriminating statement made by a defendant to any witness. Second, RCr 7.24(l)(a) mandates that the defendant be permitted access to any relevant written or recorded statements, whether incriminating or not. Third, Eldred v. Commonwealth, Ky., 906 S.W.2d 694 (1995), requires that all exculpatory evidence be provided to a defendant. Depending on the perspective taken, it can certainly be argued that appellant’s statement falls into all three categories.
RCr 7.24(l)(a) requires that:
[T]he attorney for the Commonwealth shall disclose the substance of any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness, and to permit the defendant to inspect and copy or photograph any relevant written or recorded statements,
(emphasis added). There are two clear parts to RCr 7.24(l)(a). The first requires that the Commonwealth “disclose the substance of any oral incriminating statement ... made by a defendant to any witness.” The second mandates that the Commonwealth give the defendant access to “any relevant written or recorded statements.” The reason that it is clear there are two separate parts to RCr 7.24(l)(a) is that the conjunction “and” is employed in the middle of the rule. Accordingly, there are two separate burdens imposed by RCr 7.24(l)(a).
RCr 7.24(l)(a) demands disclosure of “any incriminating statement.” This is not a vague or complex concept. Basically anything that the defendant has said to a witness which in any way incriminates himself or herself must be disclosed to the defense. This part of the rule does not require that the statement even be recorded, simply that the Commonwealth know of the statement. In this case, there can be no real question that the Commonwealth knew of the statement, thus the only unresolved issue is whether such a statement was in any way incriminating.
Appellant admitted to Lackey that he was present in the vehicle from which one person fired a weapon at another person. Obviously he did not incriminate himself as to being the shooter, but certainly he incriminates himself by admitting to being present in the vehicle from which the shots were fired. There are other types of criminal liability such as facilitation, conspiracy or complicity in which it is not necessary to perform the actual crime, but merely assist in some fashion. So for the majority to assert that appellant did not incriminate himself in the shooting does not deal with the issue of the other crimes for which he might have incriminated himself.
The second part of RCr 7.24(l)(a) requires that the defense be given access to any relevant written or recorded statement. This is a much broader requirement than the first portion of the rule in that the standard is not incrimination, but rather relevance. In this case I cannot believe that a serious argument against relevance can even be entertained since it was the Commonwealth who wanted this evidence admitted. Accordingly, the statement is relevant.
The majority asserts that since appellant did not write the statement in question out in longhand, it cannot be considered “written” within the meaning of RCr *4557.24(1). Written is defined as “to draw or form by or as if by scoring or incising a surface.” Webster’s Third New Int’l Dictionary 2640 (3rd ed. unabridged 1993). Even accepting arguendo, how can the majority conclude that Detective Lackey’s reduction of the statement to writing is not “recorded” within the meaning of RCr 7.24(1)? Recorded is defined as “to make an objective lasting indication of in some mechanical or automatic way.” Id. at 1898. Either this statement was written or recorded within the meaning of RCr 7.24(1). Accordingly, it should have been admitted as being a relevant written or recorded statement.
In this case the Commonwealth made a deliberate choice to not follow RCr 7.24(1). This misconduct must not be permitted. We no longer permit “trial by surprise” in the Commonwealth of Kentucky. When a party enters the courthouse, he or she has a right to expect that all members of the bar shall follow the rules. If the majority wishes to rewrite RCr 7.24(l)(a), then it certainly has the legal authority to do so; however, this revision should take place in the normal process of rule changes.
It is beyond question that the Commonwealth possesses a duty to provide an accused with any exculpatory evidence. Eldred v. Commonwealth, Ky., 906 S.W.2d 694 (1995) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 55-56, 107 S.Ct. 989, 1000, 94 L.Ed.2d 40, 57 (1987). Since the majority has incorrectly taken the view that RCr 7.24(1) does not apply because the statement in question was that someone other than appellant fired the fatal shot, logically this statement must be viewed as exculpatory. However, the majority simply states that if the statement was exculpatory then no violation of Eldred occurred because the appellant “was aware that he, in fact, made such an assertion to Detective Lackey.” Slip Op. at 451. I do not agree with this conclusion. I am unaware of any exception which, permits the prosecution to fail to produce any information that it thinks the defense possesses. I have researched the applicable state and federal cases and I am unable to find any such “defendant is aware of the statement” exception.
Eldred requires that all exculpatory information be turned over to the defense. The reason for this is fundamental fairness. Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963) (due process requires that a trial be fundamentally fair). The driving force behind any prosecution is the state. To be able to defend against the charges against him, a defendant must know what evidence the state possesses. Otherwise the result is trial by ambush. Accordingly, whether appellant knew the Commonwealth possessed this statement is of no legal significance. The Commonwealth still had a duty to produce it.
However, since the majority has taken the stance that knowledge by a defendant vitiates the need for compliance with El-dred, I will proceed along those lines. First, In this case there is no evidence that the prosecution made any effort to discern whether appellant was aware that the statement was possessed by prosecution. Appellant was arrested by Lackey in December of 1995. Appellant was tried in December of 1996. To suggest that appellant should be assumed to remember what happened one year earlier is ridiculous. The prosecution had no idea whether appellant knew it possessed the statement.
Second, Detective Lackey was a member of the Cincinnati, Ohio Police department. Perhaps appellant believed that since Lackey worked for the law enforcement agency of another state that the statement he gave to Lackey would not be passed on to the Commonwealth. This would be a foolish assumption, but then again the entire issue of appellant’s state of mind as to whether the prosecution possessed his statement or even if the statement existed is far beyond foolish.
It is a fundamental precept that a prosecutor must conduct himself with “due regard to the proprieties of his office *456and to see that the legal rights of the accused, as well as those of the Commonwealth, are protected.” (citations omitted).
Moore v. Commonwealth, Ky., 634 S.W.2d 426, 437-38 (1982). Unfortunately, in the instant case the Commonwealth has come up far short of this standard of conduct.
I do not suggest that the Commonwealth engaged in this nefarious activity for some mischievous purpose. But rather I suggest that the failure of the Commonwealth to comply with the dictates of RCr 7.24(1) and Eldred prejudiced the rights of Nefchevious Mathews. For the reasons I have stated above, I dissent and would reverse and remand for a new trial.
LAMBERT, C.J., and STUMBO, J., join in this dissenting opinion.