Concurring in Part and Dissenting in Part.
I concur in Parts I through V of the majority opinion. However, I dissent from Part VI because I believe the prosecutor’s comment during closing argument was a direct comment on Appellant’s failure to testify and, thus, violated his constitutional right not to be compelled to be a witness against himself.
The only person who knows where that shot was fired from exactly is the person sitting in that chair over there [indicating Appellant] and he hasn’t seen fit to tell us.
(Emphasis added.)
The Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 10-11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964), forbids comment by the prosecution on the accused’s silence at trial. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965); Lent v. Wells, 861 F.2d 972, 974-77 (6th Cir.1988) (finding reversible error where prosecutor stated in closing argument: “[The defense attorney] is going to get up here and say, well, this could’ve been, and that could’ve been. Well, could’ve been didn’t take the stand.”). In fact, such has been the statutory law of Kentucky since 1893, long before Griffin was decided:
In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create any presumption against him.
KRS 421.225 (originally enacted as KS 1645, 1893 Ky. Acts, ch. 227, § 22, at 1163) (emphasis added).
The prosecutor’s comment in this case was almost identical to the comment that *592required reversal for a new trial in Bradley v. Commonwealth, 261 S.W.2d 642 (Ky. 1953), viz:
There was one person in my opinion who could have told you, but if anybody told you I didn’t hear it.
Id. at 643. It was also similar to the comment condemned in Griffin:
These things he has not seen fit to take the stand and deny or explain. And in the whole world, if anybody would know, this defendant would know.
Griffin, 380 U.S. at 611, 85 S.Ct. at 1231.
In Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir.1979), the United States Court of Appeals for the Sixth Circuit granted a writ of habeas corpus and ordered a new trial in a Kentucky case because the prosecutor gestured toward the defendant during closing argument while remarking: “What other witnesses could the defendant’s case have put forward who were totally available to you? What other witnesses? Ask yourself that question. Who else could have testified in this case?” Id. at 278-80. A new trial was ordered despite the fact that the trial court had sustained the defendant’s objection to the remarks, but had failed to grant a mistrial or to admonish the jury to disregard the remarks. Id. The Court also rejected our conclusion that the error was harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), noting that “[i]t only takes a single comment, however, to remind a jury that the defendant has not testified and to fix in the jurors’ minds the impermissible inference that the defendant is guilty merely because of his exercise of that right.” Eberhardt, 605 F.2d at 279.
In Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir.1978), the Sixth Circuit granted a writ of habeas corpus and ordered a new trial in yet another Kentucky case, characterizing the following remarks by the prosecutor in closing argument as a “flagrant violation of Griffin
We don’t know when he was made a captive for example. We don’t know how or whether or when he was beaten. We don’t know what happened to him in the hour or two hours before he was taken up there and choked to death and dumped over the mountainside. We will never know, these men won’t tell us.
Id. at 202, 204. Of course, these remarks condemned by the Sixth Circuit in Rachel were almost identical to the prosecutor’s remarks in the case sub judice.
Even so, the majority of this Court construes the prosecutor’s comment as something other than a comment on Appellant’s failure to testify. First, the prosecutor explained to the Court during the bench conference on defense counsel’s objection:
I didn’t say anything about testifying. I said he didn’t tell. He was interviewed and he gave a statement. And they got up here and relied on his statement today as evidence in this case. And that’s what I’m talking about. I’m talking about his statement to the police. Now, I’ll clear it up and say about the police if you want.
The prosecutor then told the jury:
What I’m talking about ladies and gentlemen, is that the defendant talked to the police about this case and they asked him about it and he didn’t say, “You know, I shot it from over here.” That’s what I’m talking about. He didn’t say anything about that.
(Emphasis added.)
The problem with the prosecutor’s explanation is that the videotape of the July 14, 2000, interrogation reflects that the police never asked Appellant about the location from where the shot was fired — in fact, they never asked him if he fired the shot or even whether he killed DiGiuro. *593Instead, the interrogation focused largely on whether Appellant had told Aimee Lloyd that he killed DiGiuro. Thus, there was no basis for the prosecutor’s claim that the police “asked” Appellant during his interrogation about the location from where the shot was fired and that he had not “seen fit to tell us.” Since the prosecutor’s comment could not have referred to Appellant’s silence during the police interrogation, it could have referred only to Appellant’s failure to testify at trial.1
Like the prosecutor’s faulty attempt at an explanation, the case law cited in the majority opinion does not support the conclusion that it has reached in this case.
In three of the cases relied upon by the majority opinion, the trial court cured the error by sustaining the objection and admonishing the jury to disregard the prosecutor’s comment. Childers v. Commonwealth, 246 Ky. 751, 56 S.W.2d 352, 353 (1933) (trial court admonished jury to disregard comment); Moore v. State, 669 N.E.2d 733, 741 (Ind.1996) (trial court admonished jury to disregard comment and polled the jury to ensure that each juror could follow that admonition); State v. Neff, 978 S.W.2d 341, 344 (Mo.1998) (trial court admonished jury to disregard remark which prosecutor claimed was inadvertent). Here, the trial court overruled the objection and denied Appellant’s request to admonish the jury to disregard the prosecutor’s comment. The prosecutor made no claim that the remark was inadvertent. Further, in Moore, the Indiana Supreme Court, while noting that the trial court’s actions cured any error, specifically noted:
The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant’s silence.
Moore, 669 N.E.2d at 739, 741.
In four of the cases cited by the majority opinion, there was no direct reference to the defendant’s silence but only a general reference to the weakness of the defendant’s case. Williams v. Commonwealth, 464 S.W.2d 244, 249 (Ky.1971) (“No defense in God’s world to this brutal murder has been presented to you- [Everything that has been presented to this jury ... stands undenied, by any witness from that witness stand.”), vacated in part by Williams v. Kentucky, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972); Butler v. Rose 686 F.2d 1163, 1166-67 (6th Cir. 1982) (“He cannot do this and just get back and have an attorney say, ‘ah, she [victim] is just not telling the truth.’ Without putting one witness to show why she might be telling otherwise or how she might be telling otherwise.”); Knowles v. U.S., 224 F.2d 168, 170 (10th Cir.1955) (“not the slightest bit of explanation given to the Internal Revenue Department about it, or given to you”); Ranger v. State, 249 Ga. 315, 290 S.E.2d 63, 68 (1982) (“I’m sure [defense counsel] is going to argue a whole lot of facts up here before you, but the defense has put forward no explanation of any accident.”). Here, the prosecutor did not make a general comment on the weakness of Appellant’s case; he made a direct comment on Appellant’s failure to testify.
Similarly, in neither Bowling v. Commonwealth, 873 S.W.2d 175,178 (Ky.1993), nor Wellons v. State, 266 Ga. 77, 463 S.E.2d 868, 879 (1995), was there a direct *594reference to the defendant’s failure to testify. In Bowling, the comment was: “We can’t tell you what it [the motive] is because only the man who pulled the trigger knows.” 873 S.W.2d at 178. The prosecutor did not add, as did Appellant’s prosecutor, that “the only person who knows [the motive] is [the defendant] and he has not seen fit to tell us.” On habeas review, the Sixth Circuit held that the statement in Bowling only indicated that the prosecution had done everything it could to prove a motive. Bowling v. Parker, 344 F.3d 487, 514 (6th Cir.2003), cert. denied sub nom., Bowling v. Haeberlin, 543 U.S. 842, 125 S.Ct. 281, 160 L.Ed.2d 68 (2004). In Wellons, the statement was that “only two people know what went on in that apartment,” and “there’s only two people who can tell us how long that horror lasted.” 463 S.E.2d at 879. The prosecutor did not add, as did Appellant’s prosecutor, that “[one of them] is sitting in that chair over there and he hasn’t seen fit to tell us.”
In three eases cited by the majority opinion, the prosecutor’s comment was in response to statements made during the defendant’s closing argument. In Montgomery v. Commonwealth, 346 S.W.2d 479, 480 (Ky.1961), the defendant admitted to a police officer that he was guilty but did not testify at trial. Defense counsel stated in closing argument that “it is unusual for a person to come in and admit before a jury that he is guilty of an offense,” and the prosecutor corrected him by noting that the defendant had not testified. Id. at 481. Later, defense counsel explained that a police officer had already “testified the same thing as what this defendant could have told you.” Id. The prosecutor stated that “not one witness was called to that witness chair except by the Commonwealth.” Id. at 482. This was held a proper response to defense counsel’s closing argument. Id. at 481-82. In Brooks v. Commonwealth, 281 Ky. 415,136 S.W.2d 552, 553-54 (1940), the prosecutor mentioned the fact that the defendant had not testified only after defense counsel tried to explain to the jury why his client had not testified. Here, defense counsel made no reference in closing argument to the fact that Appellant had not testified. The fact that he pointed out a weakness in the Commonwealth’s ease did not “open the door” for the prosecutor to comment on Appellant’s failure to strengthen the Commonwealth’s case by supplying the missing information. Finally, in United States v. Robinson, 485 U.S. 25, 26, 108 S.Ct. 864, 866, 99 L.Ed.2d 23 (1988), defense counsel stated in his closing argument that the government had not allowed the defendant to explain his side of the story. The prosecutor responded that the defendant “could have taken the stand and explained it to you.” Id. Finding that defense counsel had opened the door to the prosecutor’s remark, the Court, however, also reaffirmed that “[w]here the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, Griffin holds that the privilege against compulsory self-incrimination is violated.” Id. at 32, 108 S.Ct. at 869 .(emphasis added). That is exactly what occurred in the case sub judice.
The opinions in Byrd v. Commonwealth, 825 S.W.2d 272, 275 (Ky.1992), overruled on other grounds by Shadowen v. Commonwealth, 82 S.W.3d 896, 897-98 (Ky. 2002), and Rogers v. Commonwealth, 161 Ky. 754, 171 S.W. 464, 467 (1914), do not recite what remark was made by the prosecutor or in what context, thus lend no weight to the majority opinion’s conclusion. In Thompson v. Commonwealth, 477 S.W.2d 802, 804 (Ky.1972), the defendant interrupted the prosecutor’s examination of another witness with extraneous comments to the jury. The prosecutor remarked that the defendant would have an *595opportunity to testify if he chose to do so — obviously not a comment on his silence. Id. In Dillard v. Commonwealth, 995 S.W.2d 366, 372 (Ky.1999), the prosecutor told the jury in closing argument that the defendant lied in his statement to the police. “The focus of the closing argument in that respect was not that Appellant failed to give a statement to the police, but that the statement he gave was untruthful.” Id, at 373.2
In State v. Ball, 675 N.W.2d 192 (S.D. 2004), the prosecutor stated, similarly to the prosecutor’s statement in this case, that: “the defendant knows what happened, but he’s not talking. He’s not telling us what happened.” Id. at 202. In response to arguments identical to those advanced by the Commonwealth in this case, the Court held that the remarks constituted prejudicial error because the prosecutor used the present tense, thereby dispelling any claim that he was referring to the defendant’s silence during a previous police interrogation, and referred to “us,” thereby dispelling any notion that he was referring to the defendant’s refusal to talk to the police. Id. at 202-04.
The majority opinion’s assertion that any error was cured by the judge’s “no adverse inference” instruction is specious. In the first place, the jury was instructed before the prosecutor made his improper comment. Defense counsel did not have an opportunity to remind the jury of the instruction, and the trial court refused to admonish the jury. If a prosecutor makes a statement in closing argument that is contrary to the judge’s instruction, the proper recourse is to sustain the objection and give an appropriate admonition to the jury. Thomas v. Commonwealth, 196 Ky. 539, 245 S.W. 164,166 (1922). The majority’s assertion that any error was cured by the prosecutor’s “plausible” explanation overlooks the facts that (1) the prosecutor’s explanation, though plausible, was inaccurate, and (2) the jury returned to the courtroom during deliberations for the purpose of rehearing Appellant’s videotaped confession, at which time they presumably learned for themselves that the prosecutor’s “plausible” explanation was inaccurate. Regardless, an “explanation” by an attorney is no substitute for an admonition by the court. State v. Cassidy, 236 Conn. 112, 672 A.2d 899, 909 n. 20 (1996), overruled on other grounds by State v. Alexander, 254 Conn. 290, 755 A.2d 868, 872 (2000).
The prosecutor’s comment on Appellant’s failure to testify was intentional and flagrant. His repeated statements that he (the prosecutor) did not know whether the shot was fired from under the bush served no purpose except to set the stage for the comment that invited the jury to infer Appellant’s guilt from his failure to testify. In Barnes v. Commonwealth, 91 S.W.3d 564 (Ky.2002), we held:
[W]e reverse for prosecutorial misconduct in a closing argument only if the misconduct is “flagrant” or if each of the following three conditions is satisfied:
(1) Proof of defendant’s guilt is not overwhelming;
(2) Defense counsel objected; and
(3) The trial court failed to cure the error with a sufficient admonishment to the jury.
Id. at 568 (emphasis added). Here, the misconduct was both flagrant and satisfied *596all three of the alternative conditions enumerated in Barnes. This violation of Appellant’s Fifth Amendment right not to be a witness against himself requires reversal and remand for a new trial.
Accordingly, I dissent.
LAMBERT, C.J., and JOHNSTONE, J., join this opinion.
. As for the suggestion that defense counsel “opened the door” by relying on the police interrogation during his own closing argument, the only reference made to the interrogation by defense counsel was to Appellant’s statement, when informed by the police that his room was being searched as they spoke, that "I have nothing to hide.”
. The prosecutor in Dillard also directly commented on Dillard's failure to testify, but the remark was rendered harmless because Dillard was not convicted of the offense to which the prosecutor referred at that point. 995 S.W.2d at 374. Furthermore, unlike here, the trial judge gave the jury a curative admonition reminding them of his previous written instruction regarding the defendant's right not to testify. Id.