           IMPORTANT NOTICE
      NOT-TO BE PUBLISHED OPINION
                                      '   (




   THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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   PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
   THIS' OPINION IS NOT TO BE PUBLISHED AND SHALL NOT , BE
   CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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   RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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                                . I

/ ACTION.                          .
                                               RENDERED: DECEMBER 14, 2017
                                                      NOT TO BE PUBLISHED




                               201 7 -SC-000206-MR


 DUSTIN SPARKS                                                          APPELLANT


                   ON APPEAL FROM ESTILL CIRCUIT COURT
V.                   HONORABLE MICHAEL DEAN, JUDGE
                              NO. 16-CR-00101


 COMMONWEALTH OF KENTUCKY                                                APPELLEE




                   MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING

       An Estill C<?unty jury convicted Dustin Sparks of murder. Spa.rks was

 sentenced to 35 years in prison and he appeals as a matter of right, alleging

. the following errors: (1) the trial court erred in refusing to suppress Sparks's

 statements after he asserted his right to remain silent and (2) the trial court

 erred by not allowing Sparks to cross-examine a police officer regarding the

officer's misstatement of the law. After careful review, we affirm the judgment

of the Estill Circuit Court.

                                 I. BACKGROUND

       On December 4, 2015, Sparks attended a party at the home of Dontarius

and Felicia Pittman. Felicia Pittman and Sparks are first cousins. Other
 individuals at the party included Derrick and Jackie Marshall, Tyler Williams,

 Dakota Hal.I, and Benjamin Brewer, the victim. The party took place in the

 Pittmans' garage where the guests played pool, listened to music, and played

 the drinking game, beer pong. There was excessive drinking and the smoking

. of marijuana.

       Sparks brought an army knife/bottle opener to the party. Sparks's

 girlfriend had given him the knife earlier that day, and Sparks was showing it

 off at the party. Sparks offered the knife/bottle opener to Jackie Marshall so

 she could open a beer.

       At some point during the party, Sparks began nudging Benjamin Brewer

 in the back with the butt of his knife. Brewer turned around and swung at

 Sparks. Sparks responded by swinging his knife at Brewer, hitting him in the

 neck, severing his jugular vein and carotid artery. Some of the individuals,

 including Sparks, tried to stop the bleeding and perform CPR on ·Brewer while

 someone else called 911. Brewer had died by the time the ambulance and

 police arrived.

       While outside of the Pittman home, Detective Tye Chavies took

 photographs of Sparks who was covered in Brewer's blood. Kentucky State

 Police Detective Jesse Armstrong interviewed the other individuals at the party,

 examined the crime scene, and arrested Sparks and interviewed him about the

 incident.

       Sparks was tried before an Estill County jury on February 27 and

 February 28, 2017. Sparks maintained that he was acting in self-defense, and

                                        2
 the trial judge instructed the jury on the law of self-protection. The jury found

 Sparks guilty of murder and the judge entered judgment sentencing Sparks to

 35 years'   imprisonm~nt.   We set forth additional facts as necessary.

                                    II. ANALYSIS

 A. The trial court -did not err in refusing to suppress Sparks's statements
 to Detective Armstrong.

       Sparks first argues that the trial judge erred by allowing Sparks's police

 interview to be played in open court after Sparks made multiple assertions of

 his right to remain sile:I?-t. Preservation of this issue is contested. Sparks's

 counsel made a motion to exclude the testimony at trial referring to a spot in

 the interview, about 10 to 11 minutes in, where Sparks says, "I'm not going to

 say another fucking word." However, Sparks's brief outlines other statements

 in which he allegedly invokes his right to remain silent, which were not raised

 at the trial court. Sparks's counsel did make a continuing objection to the

 interview, so we will treat the issue as preserved.

       Sparks's interview with Detective Armstrong was played for the jury at

 trial. As stated above, Sparks maintains that he invoked his right to remain

· silent; thus, the statements made to Detective Armstrong should have been

 suppressed. "When reviewing a trial court's denial of a motion to suppress, we

 utilize a clear error standard of review for factual findings and a de novo

 standard of review for conclusions oflaw." Sykes v. Commonwealth, 453

 S.W.3d 722, 724 (Ky. 2015) (quoting Jackson v. Commonwealth, 187 S.W.3d

 300, 305 (Ky. 2006)). Furthermore, the appellate court is bound to give "due


                                           3
weight to inferences drawn from those facts by resident judges and local law

enforcement officers." Ornelas v. United States, 517 U.S. 690, 699 (1996).

      "If the individual indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, interrogation must cease."

Michigan v. Mosley, 423 U.S. 96, 100 (1975). Sparks is correct when he says

the invocation of the right to remain silent is not required to be formal. Buster

v. Commonwealth, 364 S.W.3d 157, 162-63 (Ky. 2012). Even so, the assertion

must be unequivocal. Davis v. United States, 512 U.S. 452, 461-62 (1994);

Ragland v. Commonwealth, 191 S.W.3d 569, 586-87 (Ky. 2006).

      The beginning of the recording shows that Sparks submitted to the

interview voluntarily. In   ~act,   Sparks begins to   ma~e   his statement and

Detective Armstrong asks him to wait until after he has read him his rights.

      Sparks: I told them ... ·

      Armstrong: Before you go too far ... let me ...

      Sparks: I understand rny rights

      Ar!!1strong: Well let me tell you, tell you what they are just to make sure.

      Sparks: Okay.

      Armstrong: You've heard them before, I guess.

      Sparks: I've got the right to remain silent, anything can and will be used
      against me in a ·court of law.

      Armstrong: So you, so you've got the right to remain silent. Anything
      you say can and will be u~ed against you in a court of law. You have the
      right to an attorney. You have the right to have that attorney present
      during any questioning. If you can't afford an attorney, one will be
      appointed to you by the Court. You have the right to not answer any



                                            4
      questions or make any statements if you want to do that.                    You
      understand those rights?

      Sparks: Yes, sir.

It is apparent that Sparks heard and understood his rights.

      Sparks transcribes the relevant portions of the interview in his brief.

However, several portions of the transcribed interview are inaudible and/ or

taken out of context. For clarification, we examine each of Sparks's alleged

errors 1 , grouping similar alleged errors together.

Statement 1:

      Sparks: If I had a -bottle in my hand arid punched him and he told
      you I hit him with a bottle?

      Armstrong: So, instead, it was better to slice his throat?

      Sparks: No, I didn't slice his throat, man. I just fucking. I just
      took my shit. I was fucking defending myself, that's all I'm
      gonna say. [Inaudible].                 ·

      The emphasized portion of the above statement, "I'm gonna say," is

actually inaudible on the trial recording. The Commonwealth's brief agrees

that the· statement is inaudible and gives a possible interpretation as Sparks

saying, "That's all I done." In listening to the recording multiple times, we

believe the Commonwealth's interpretation is closer to what Sparks actually

said. Nonetheless, the Court can clearly say that Sparks's inaudible mumbling

was not an invocation of his right to remain silent ..




       1 We include more of the interview than what was transcribed in Sparks's brief
to provide context to the conversation. Any testimony that is questionable as to
content or contested is balded.

                                          5
Statement 5:

      Armstrong: All the fights you've been in, the only reason you didn't
      stab [inaudible] is because you didn't have a knife?

      Sparks: Yes, sir.

      Armstrong: Well it's a wonder you ain't been in prison for a while.

      Sparks: [Inaudible] fucking talking to you. I'm not gonna sit here
      and talk to you. I'm trying to be civil about the situation, dude.

      Armstrong: What's civil about cutting somebody's throat
      wide open?

      Statement 5 is similar to Statement 1 in that Sparks claims he said, "I'm

not gonna sit here and talk to you," while the beginning of this sentence is

actually inaudible on the recording. As stated above, this cannot be an

uneq~ivocal    invocation of Sparks's right to remain silent.

      We analyze Statements 2 through 4 together.

Statement2:

      Armstrong: Cause he wasn't, he didn't have his hands around
      your neck.

      Sparks: How, I... it could have happened, just...

      Armstrong: But it didn't.

      Sparks: I.

      Armstrong: Did he.

      Sparks: I'm not gonna say another fucking word, man.
      This is bullshit. [Inaudible.]

      Armstrong: Well, I'm just asking you, did he or did he not choke
      you?

Statement 3:

                                          '6
     "Armstrong: Here's what I'm asking you ...

      Sparks: I mean when are ya'll gonna stop man?

      Armstrong: Can I ask you a question?

      Sparks: Yes, sir.

Statement 4:

      Sparks: I am fucking scared of somebody that's fucking [inaudible].
      It didn't happen any fucking time ...

      Armstrong: He never even presented a threat to you at all.

      Sparks: Nah, I used to know Ben.

      Armstrong: Right.

      Sparks: If somebody's walking up and just starts fucking ...
      fucking throwing punches and hitting me, man, shit yeah, I'm
      fucking going to defend myself. That's all I've got to say. I'm
      defending myself.        ·

      Armstrong: Okay. So, I guess we're just on different sides in the way
      we interpret defending ourselves.

      Sparks argues that the above conversations show he invoked his right to

remain silent. The Court is not convinced. After Sparks says, "I'm not gonna

say another fucking word, man," he goes right into saying, "this is bullshit."

Then, the recording indicates Sparks continues to talk, although it is inaudible,

before Armstrong asks his next question .

     .Sparks was explaining that he was "scared" and "defending himself"

when .the above exchange took piace. The Commonwealth
                                              .
                                                      argues that Sparks's

statement
      .   he wasn't "gonna
                       .   say another fucking word" is not an assertion of

the right to remain silent but simply that Sparks was not going to say anything

else about why he was defending himself.
                                        7
      The Commonwealth's argument has some merit, however, we need not

adopt that position to find that Sparks did not invoke his right to remain silent.

"In order to invoke the right to remain silent, a suspect must clearly articulate

his desire in a manner that a reasonable police officer in the situation would

understand that the suspect wished for questioning to cease." Meskimen v.

Commonwealth, 435 S.W.3d 526, 531 (Ky. 2013) (emphasis in original). "A

suspect may waive his Miranda rights either expressly or implicitly. When a

suspect has been advised of his rights, acknowledges an understanding of

those rights, and voluntarily responds to police questioning, he may be deemed

to have waived those rights." Ragland v. Commonwealth, 191 S.W.3d 569, 586

(Ky. 2006). "The basic governing legal rule is that a court, in considering

whether a defendant has voluntarily relinquished his Fifth Amendment rights,

must examine the 'totality of circumstances surrounding the interrogation'."

United States v. Ferrer-Cruz, 899 F.2d 135, 141 (1st Cir. 1990) (internal

citations omitted).

      A defendant can waive his or her right to remain silent. The waiver must

be voluntary, meaning that it was the product of free and deliberate choice

rather than intimidation, coercion, or deception. Bartley v. · Commonwealth,

445 S.W.3d 1, 13 (Ky. 2014) (internal citations omitted). "The waiver must be

made with a full awareness of both the nature of the right being abandoned

and the consequences of abandoning it." Id. "The giving of Miranda warnings

and an uncoerced statement must also be accompanied by a showing that the

accused understood these rights." Id. "However, "[a]s a general proposition,

                                        8
the law can presume that an individual who, with a full understanding of his or

her rights, acts in a manner inconsistent with their exercise has made a

deliberate choice to relinquish the protection those rights afford." Id. (internal

citations omitted).

      Here, Sparks continued to speak voluntarily, before Detective Armstrong

responded with an additional question. The same is true with Statement 4.

Sparks said, "That's all I've got to say," but continued to speak. Sparks had

previously confirmed to Detective Armstrong that he understood his rights, but

nonetheless, Sparks voluntarily answered the Detective's questions, while only

later claiming his right to remain silent was infringed upon. It is patently true

that one who invokes his right to silence, must, in fact, remain silent.

      Sparks's comment in Statement 3 "I mean when are ya '11 gonna stop,

man?" cannot be an invocation of the right to remain silent. A defendant may

simply tell the police he does not want to talk to them; "I ain't saying nothing,"

and "I don't have anything to say," have all been sufficient to invoke the right to

remain silent. See Buster v. Commonwealth, 364 S.W.3d 1.57, 163 (Ky. 2012)

(internal citations omitted). However, in no way does   Sparks~s   Statement 3

invoke his Fifth Amendment right.

Statement 6:

      Armstrong: How long were you out .when you blacked out?

      Sparks: I'm not talking to you. I know how you all work.

      Armstrong: Like a minute or two minutes?




                                         9
      Like the analysis above, in Statement 6 Sparks states "I'm not talking to

you," but continues to speak before Detective Armstrong responds. This

statement, however, is the closest thing to an invocation of the right to remain

silent that Sparks asserts in the entire interview. Had Sparks ceased speaking

after he states,   "I'~   not talking to you," we would undoubtedly find this to be

sufficient to invoke his right to remain silent. But that is not the case before

us.

      Even if we found this to be a clear invocation of the right to remain

silent, and the admission of the interrogation to be in error, any such error is

harmless. Sparks argues that the entire interrogation should have been

suppressed, however, only the statements taken after a person invokes his

privilege can be suppressed. See Buster, 364 S.W.3d at 163 (citing Miranda v.

Arizona, 384 U.S. 436, 473-74 (1966)).

      At trial, Sparks's interrogation began playing for the jury, and Statement

6 does not occur for more than 30 minutes.2 After Statement 6, Sparks

continues to talk with Detective Armstrong. He mairttains that he was acting

in self-defense. The majority of the remainder of the recording indicates only

the sound of Detective Armstrong typing, with minimal comment by Sparks,

and the taking of statistical data by Detective Armstrong. 3 The only



      2   Recording begins playing at 11:01:58. Statement 6 occurs at 11:34:46.
       3 At 11 :44:38 you can hear Detective Armstrong typing. Sparks makes minimal
comments without being asked questions. Detective Armstrong collects statistical
data from Sparks, such as name, birthdate, social security number, weight, etc. The
recording ends at 11:58:07.

                                            10
information subsequent to this point is either cumulative to Sparks's previous

testimony or is not prejudicial to Sparks.

      "[B]efore a federal constitutional error can be held harmless, the court

must be able to declare a belief that it was harmless beyond a reasonable

doubt." St. Clair v. Commonwealth, 451 S.W.3d 597, 632 (Ky. 2014) (quoting

Chapman v. California, 386 U.S. 18, 24 (1967)). This requires "prov[ing]

beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained." Id. at 633 (internal citations omitted). "And, '[t]he State

bears the burden of proving that an error passes muster under this standard."

Id. (citing Brecht v. Abrahamson, 507 U.S. 619, 630 (1993)).

      We find the admission of anything beyond this point harmless beyond a

reasonable doubt. By the time of the making of Statement 6, Sparks had

already admitted to stabbing Brewer and adamantly claimed he was acting in

self-defense. He had already stated that he would do anything he had to do to

defend himself. The Court cannot say the admission of the remainder of the

interrogation contributed to the verdict. As such, we find no error in the trial

court refusing to suppress the interrogation video.

B. Tb.e trial court did not err in refusing to allow Sparks to cross-examine
Detective Armstrong about his misstatements of the law.

      Sparks next asserts that Detective Armstrong misstated the law of self-

protection in the interrogation recording that was played for the jury, and the

trial court erred in refusing to allow Sparks to cross-examine Detective

Armstrong about the misstatements. Sparks takes issue with two statements

made by Detective Armstrong during the interrogation: "you don't have the
                                        11
                                                              ·.
right to stab someone because they punch you, the law is very clear on that,"

and "you understand to kill someone your life has to be in danger."

According to Sparks, Detective Armstrong         le~t   out the portion of Kentucky

Revised Statute (KRS) 503.050(2) which states. that you can use deadly force to
                          '                                        ~




protect against "serious physical injury ... "

      Sparks's counsel, during cross-examination, asked Armstrong: ''You

heard tne tell the jury that the law of self-defense is basically that you have the

right to use deadly force against someone intending to kill you, or someone who

may cause you serious bodily injury. Now when yo-q questioned Mr. Sparks on

the tape you weren't exactly accurate in trying to explain to him your version of

the law were you?" The judge subsequently said, "That'll be a question of law

for the court. I don't want you to tell the jury what the law in self-defense is.

You can argue what self-defense is but as far as giving them enough to making

it self-defense you can't, sounds like that's what you're up to." The trial judge

then offered to admonis:ti the jury to not consider Detective Armstrong's

summary of the law of self-defense, and Sparks's counsel agreed. The trial

judge admonished the jury to disregard any statements made by Detective

Armstrong to Sparks regarding the Kentucky law of self-protection.

      We review a trial court's ruling limiting cross-examination for an abuse of

discretion. Davenport v. Commonwealth, 177 S.W.3d 763, 771 (Ky. 2005).

"The test for abuse of discretion is whether the trial judge's decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles."

Commonweal~h     v. English, 993 S.W.2d 941, 945 (Ky. 1999). "It has long been

                                          12
the law in Kentucky that an admonition to the jury to disregard an improper

argument cures the error unless it appears the argument was so prejudicial,

under the circumstances of the case, that an admonition could not cure it."

Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001) (citing Knuckles v.

Commonwealth, 261S.W.2d667, 671 (Ky. 1953); Thomas v. Commonwealth,

245 S.W. 164, 166 (Ky. 1922)).

       Sparks cites to two statements by Detective Armstrong regarding the law

of self-protection. The tdal judge admonished the jury, and "the jury is

presumed to follow the    admonition~"   Johnson v. Commonwealth, 105 S.W.3d

430, 441 (Ky. 2003) (citing Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky.

 1999)). "There are only two circumstances in which the presumptive efficacy of

an admonition falters: (1) when there is an overwhelming probability that the

jury will be unable to follow the court's admonition and there is a strong

likelihood that the effect of the inadmissible evidence would be devastating to

the defendant or (2) when the question was asked without a factual basis and

was 'inflammatory' or 'highly prejudicial'." Id. (internal citations omitted)

(emphasis in original).   Neither exception applies in this case. The two

statements are innocuous within the 56-minute interrogation played for the

jury. We find no abuse of discretion, and therefore, we find no error.

                                III. CONCLUSION

       For the above reasons, the judgme~t of the Estill Circuit Court is

·affirmed.
                          I
                          '~




                                         13
      Minton, C.J., Cunningham, Hughes, Keller, VanMeter and Venters, JJ.,

concur. Wright, J. not sitting.




COUNSEL FOR APPELLANT:

Ned Barry Pillersdorf
Pillersdorf, Derossett & Lane


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Perry Thomas Ryan
Assistant Attorney General




                                     14
