IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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ACTION.
,$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