         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINIONIS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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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BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
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                 ,$Uyrtme (~Vurf of I'l
                               2008-SC-000878-MR




                   ON APPEAL FROM METCALFE CIRCUIT COURT
 V.                  HONORABLE PHILLIP R. PATTON, JUDGE
                               NO . 08-CR-00013



 COMMONWEALTH OF KENTUCKY                                              APPELLEE



                     MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

       Danny Ray Janes appeals as a matter of right' from his convictions

following a jury trial on two counts of assault in the first degree and one count

of wanton endangerment . Janes contends that his convictions must be

reversed because the Commonwealth improperly commented upon his

invocation of his right to remain silent and because the trial court declined to

declare a mistrial after one of the victims testified to an uncharged prior bad

act allegedly committed by Janes. Finding no reversible error, we affirm.


                     I . FACTUAL AND PROCEDURAL HISTORY.

      Janes lived with Darla Lawless for about nine years. Initially, Darla's two

sons, A.L. and A.G ., lived with Darla's father; but both eventually moved into

  Ky. Const . § 110(2)(b) .
 the home shared by Janes and Lawless . Lawless and Janes began arguing

 more frequently and intensely, culminating in Lawless calling Janes from work

 to say that she planned to leave him and live elsewhere. Janes said they would

 discuss pit when Lawless got home .           .

        When Lawless arrived home, Janes, who appeared to be intoxicated,

 asked if they were going to talk . Lawless responded that they would talk

 shortly, and she turned to put down her purse . Lawless then heard Janes fall;

 and when she turned around, Janes was lying on the floor pointing a gun at

 her. Janes fired a shot; but Lawless escaped to a neighbor's house, where she

 called 911 .

       After the authorities arrived at Janes and Lawless's house, they found

that A.L. and A.G. had each been shot in the head; and Janes had been shot in

the mouth. All three survived, but A. L. and A . G. continue to suffer problems

relating to having been shot.

       The grand jury indicted Janes on two counts of assault in the first degree

(one count for shooting A.L. and one count for shooting A. G.) and one count of

wanton endangerment in the first degree (for shooting at Lawless). Janes

proceeded to trial on all charges.

       At trial, the Commonwealth during opening statement referred to the fact

that Janes had told an officer when being questioned about the shootings that

something bad had happened ; but he was not going to talk about it. During

trial, that officer testified that he had interviewed Janes while Janes was
 hospitalized . After stating that he had informed Janes of his Miranda2 rights,

 the officer began to relate Janes's response when Janes's counsel objected.

The trial court overruled the objection; and the officer testified that Janes had

 said that "something bad happened that should not have happened, but. .

 [Danes] would only talk about it with his attorney present." The officer testified

that he then ceased questioning Janes .

       At the conclusion of the officer's testimony, the trial court admonished

the jury that it could not hold against Janes his invocation of his rights to

remain silent and to have counsel . During its closing argument, the

Commonwealth reminded the jury of Janes's statement that something bad

had happened, seemingly to impeach Janes's claim to the jury that he could

not remember what had happened on the day of the shootings.

      Also at trial, the Commonwealth asked Lawless in direct examination

about the history of her relationship with Janes. Lawless explained that she

and Janes had separated many times, including once when she had moved to

Illinois for six months. The Commonwealth asked Lawless why she had ended

the relationship with Janes on that prior occasion . Lawless answered that she

had ended the relationship at that time because of Janes's verbal, mental, and

physical abuse, describing an instance when Janes had allegedly punched her

in the face. Janes's counsel objected and requested a mistrial ; but the trial

court denied the mistrial and, instead, admonished the jury to disregard

Lawless's response .

   Miranda v. Arizona , 384 U.S. 436 (1966) .
       The jury found Janes guilty of all charges and recommended the

 minimum penalty for all three charges (ten years' imprisonment for each

 assault conviction and one year's imprisonment for the wanton endangerment

 conviction)-but recommended that all three sentences be, served consecutively,_

 for a cumulative total of twenty-one years' imprisonment. The trial court

 sentenced Janes in accordance with the jury's recommendation . This appeal

 followed.


                                   II. ANALYSIS.

       Janes raises two issues on appeal. First, he contends reversal is

required because the officer commented upon his invocation of his rights to

silence and counsel. Second, he contends the trial court erred by failing to

declare a mistrial when Lawless testified about Janes's alleged prior,

uncharged bad act of having allegedly punched Lawless . Finding no reversible

error, we affirm .

               A. No Reversible Error Because of Comments Upon
                  Invocation of Ri hg, t to Silence and Counsel .

      Janes contends reversible error occurred when the Commonwealth and

the officer each referred to his invocation of his right to silence and his right to

counsel. The comments in question occurred three times during the trial.

      First, in opening statement, the Commonwealth stated, without

objection, that the officer had asked Janes about the shootings while Janes
was in the hospital; and J nes had said that "something bad happened, but

I'm not going to talk to you about it."

       Second, when the officer who interviewed Janes testified, the

Commonwealth asked whether the officer had read Janes his-rights . . The

officer responded by testifying that he had read Janes his rights and then the

officer began to relate what Janes had said, but defense counsel immediately

objected . Portions of the ensuing bench conference are very difficult to hear,

but it appears the discussion focused upon whether the proposed testimony

was inadmissible hearsay. The trial court permitted the officer to finish

relating Janes's statement, after which the officer testified that Janes had told

him that something bad had happened that should not have happened ; but

Janes would only talk about it with his attorney present. The officer testified

that he then stopped questioning Janes .

      Shortly after that instance, the officer's testimony stopped ; and the trial

court called both Janes's counsel and the Commonwealth to the bench and

asked Janes's counsel if he wanted the jury admonished that Janes had a right

to an attorney and to remain silent and that Janes's invocation of those rights

could not be used against him . Defense counsel agreed to the giving of an

admonition . The trial court then admonished the jury that it could hold

against Janes the statements he actually made to the officer, but the jury could

not hold against Janes his invocation of his right to counsel and right to
 silence. The trial court also admonished the jury that the officer acted properly

 by ceasing questioning Janes after he invoked his right to counsel.

       Finally, during its closing argument, the Commonwealth reminded the

jury that-Danes had told.,-,the officer that something bad had . happexled, but he

 could not talk about it and that Janes had also told the jury that he could not

remember the shootings .

      The Commonwealth asserts that this issue is unpreserved because Janes

did not object to the Commonwealth's statements in opening statement and

closing argument, and the objection lodged during the officer's testimony was

only hearsay-related .

      It is uncontested that Janes lodged no contemporaneous objection to the

statements at issue made during the Commonwealth's opening statement and

closing argument . So the issue is certainly unpreserved as to those comments

by the Commonwealth . We were unable to discern any contemporaneous

statement by Janes's counsel that the testimony at issue was improper

because it was a comment upon Janes's invocation of his right to silence and

counsel.   It appears that the issue is unpreserved for our review.3 And

portions of the bench conference immediately following the objection are

inaudible. But the trial court admonished the jury not to hold against Janes

his invocation of his rights to silence and counsel, which it presumably would

not have done if the sole objection was based upon hearsay. We will exercise

  See, e.g., Charles v. Commonwealth , 634 S .W.2d 407, 409 (Ky. 1982) ("The
  grounds for the objection are different from those asserted at the trial court and,
  therefore, are not properly preserved for appellate review.").
leniency by assuming, solely for the sake of argument, that this issue is

preserved, at least as to the officer's testimony.

      Obviously, Janes had the rights to silence and to the services of

counsel .4 But we agree with., the Commonwealth that Janes did not invoke

those rights until after he had already made a statement. In other words, once

informed of his rights, Janes did not immediately invoke his rights to silence

and to counsel. Instead, he blurted out that something bad had happened but

that he would not talk about it. Only after making those comments did Janes

arguably invoke his rights to silence and counsel by saying he would not speak

further without an attorney.

      Since the prohibition against hearsay does not prohibit the admissibility

of statements of a party, such as Janes,5 there was no prohibition on the

Commonwealth's placing into evidence, by way of the officer to whom Janes

made the statement, Janes's statement that something bad had happened that

should not have happened. As the United States Supreme Court has

recognized, "a defendant who voluntarily speaks after receiving Miranda

warnings has not been induced to remain silent. As to the subject matter of



   See, e.g., Miranda, 384 U.S. at 473-74 ("Once warnings have been given, the
  subsequent procedure is clear. If the individual indicates in any manner, at any
  time prior to or during questioning, that he wishes to remain silent, the
  interrogation must cease. At this point he has shown that he intends to exercise
  his Fifth Amendment privilege; any statement taken after the person invokes his
  privilege cannot be other than the product of compulsion, subtle or otherwise.")
  (footnote omitted) .
  See Kentucky Rules of Evidence (KRE) 801A(b) (1) ("A statement is not excluded by
  the hearsay rule, even though the declarant is available as a witness, if the
  statement is offered against a party and is . . . [t]he party's own statement . . . .") .
his statements, the defendant has not remained silent at all."6 The

Commonwealth's references during opening statement and closing argument to

Janes's statement about knowing something bad had happened were also

permissible :         ..      ..             .,Y. .            ..             _         _..,. .

       The officer's reference to Janes's possible request for an attorney may

not have been absolutely impermissible . In a somewhat factually

distinguishable but legally analogous case, a federal appellate court found no

impropriety when an officer related the fact that a defendant gave a brief alibi

but "didn't wish to say any more" ; and the officer also recited the defendant's

other remark that he did not "know anything about what's going on . . . . I was

fishing all night, and . . . I'd like to talk to a lawyer."7 Likewise, it is clear in

Kentucky that not every reference to an accused's invocation of his right to

silence or counsel is improper or reversible error.$

      We need not address whether there was error in the officer's reference to

Janes's request for an attorney and refusal to speak further because the trial

court specifically admonished the jury not to hold Janes's invocation of his

rights against him. Admonitions are presumed to cure these types of errors.9

And we do not believe either of the very limited exceptions to the presumptive


  Anderson v. Charles, 447 U.S . 404, 408 (1980) .
  Lindgren v. Lane, 925 F.2d 198, 20 1 (7th Cir. 1991).
  See, e.g., Wallen v. Commonwealth, 657 S.W.2d 232, 233 (Ky. 1983) .
  Vincent v. Commonwealth, 281 S.W.3d 785, 790 (Ky. 2009) ("While evidence that a
  defendant exercised his right to remain silent should not be admitted at trial, it
  appears in context that the prosecution did not intentionally elicit reference to
  Vincent's refusal to speak to police. And the trial court offered an admonition,
  which presumably would have cured any error . . . .") (footnote omitted) .
 efficacy of admonitions applies to this case. r° Given the presumptively effective

 admonition and the overwhelming evidence arrayed against him, Janes is not

 entitled to relief.

                       No . Reversible Error in Lawless's Testimon
                       Prior Bad Acts .

          KRE 404(b) states that "[e]vidence of other crimes, wrongs, or acts is not

 admissible to prove the character of a person in order to show action in

 conformity therewith." Janes argues that the Commonwealth violated this

evidentiary prohibition in such a manner as to necessitate a mistrial when it

elicited testimony from Lawless that she had separated from Janes at one point

in their relationship because he had abused her, including having punched her

in the face. We disagree .

         The testimony in question referenced a prior, uncharged bad act falling

within the scope of KRE 404(b) . And the Commonwealth does not dispute

Janes's contention that he did not receive pretrial notice of the

Commonwealth's intent to use 404(b) material, as is required by KRE 404(c) .

Indeed, the Commonwealth does not even contend in its brief that the

testimony at issue was proper. We agree with Janes that Lawless's testimony




io   See, e.g.,Johnson v. Commonwealth, 105 S .W.3d 430, 441 (Ky. 2003) ("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.") (citation and internal quotation marks omitted) .
 violated KRE 404(b) . 11 We disagree with Janes that the error necessitated a

 mistrial .

         The trial court sustained Janes's objection ; and, as it did with the

 officer's testimony discussed previously, the trial court admonished-the jury to

 disregard the answer that contained the KRE 404(b) material . "`A jury is

 presumed to follow an admonition to disregard evidence[,]'and an admonition

 is presumed sufficient to cure errors ."12 And we do not perceive this fleeting

 reference to a prior bad act to be the rare instance in which an admonition was

insufficient to cure the error. 1 3

         Moreover, it is clear that this brief KRE 404(b) violation was not of

sufficient magnitude to necessitate a mistrial . "A court should grant a mistrial

only if it is manifestly necessary to do so" because "a mistrial is an extreme

remedy" that "should be resorted to only when there is a fundamental defect in

the proceedings . . .   ."14   We employ the abuse of discretion standard in

reviewing a trial court's decision to deny a mistrial. 15




     The prosecutor explained to the trial court that she had not expected Lawless to
     mention having been abused by Janes; rather, the prosecutor expected Lawless to
     refer to Janes's alleged alcohol usage as the impetus for her having previously
     separated from Janes. So it a_ ppears as if the KRE 404(b) violation may well have
     been unintentional .
12   Parker v. Commonwealth , 291 S .W .3d 647, 658 (Ky. 2009) (quoting Johnson ,
     105 S .W.3d at 441) .
13   Id. (quoting Johnson for the narrow exceptions to the presumption of efficacy
     attached to trial court's admonishment to a jury) .
14   Id. (quotation marks omitted; ellipsis in original) .
15




                                            10
      The evidence against Janes was overwhelming, and the comment in

question was brief. The trial court took a proper protective measure by

admonishing the jury to disregard Lawless's improper testimony . Given all of

those factors, ,the trial-court-did --not ,abuse its discretion by refusing to declare

a mistrial because the KRE 404(b) violation did not rise to the level of being a

fundamental defect in Janes's trial .


                                 III . CONCLUSION .

      For the foregoing reasons, the judgment of the trial court is affirmed.

      All sitting. All concur.
COUNSEL FOR APPELLANT:

Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 4060.1.- - .


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentuc

Susan Roncarti Lenz
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
