author: Justice COOPER.

text:
    Steven BRAY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
    No. 2003-SC-0656-MR.
    Supreme Court of Kentucky.
    Sept. 22, 2005.
    Rehearing Denied Dec. 22, 2005.

      Thomas M. Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Brian T. Judy, Assistant Attorney General, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice COOPER.

In the early morning hours of November 8,1982, a mobile home in Marshall County, Kentucky, burned to the ground. Inside, police found the bodies of Audrey Bray and her mother, Effie York, each with a gunshot wound to the head. Appellant, Steven Bray, who was Audrey’s husband and Effie’s son-in-law, was charged with the crimes.

In August 1998, a Marshall Circuit Court jury convicted Appellant of two counts of murder, KRS 507.020(1), and one count of arson in the first degree, KRS 513.020, and sentenced him to life in prison for each conviction. In Bray v. Commonwealth, 68 S.W.3d 375 (Ky.2002), we reversed those convictions and sentences and remanded for a new trial. Following a change of venue to the Christian Circuit Court, Appellant was retried and again convicted of two counts of murder and one count of arson in the first degree. He was sentenced to life imprisonment for each murder conviction and to forty years imprisonment for the arson conviction. He appeals to this court as a matter of right, Ky. Const. § 110(2)(b), asserting the following claims of error: (1) admission of certain hearsay statements in violation of his Sixth Amendment right to confrontation; (2) insufficiency of the evidence to support his convictions; (3) denial of his motion for a continuance for the purpose of obtaining an independent competency evaluation; (4) failure to hold a competency hearing after ordering that a competency evaluation be performed by the Kentucky Correctional Psychiatric Center (KCPC) or its designee; and (5) failure to declare a mistrial after the prosecutor introduced evidence of Appellant’s other bad acts.

I. CONFRONTATION.

Just before midnight on November 7, 1982, Ernestine Goins, a resident of Alabama, received a telephone call from her sister, Audrey Bray. Audrey told Goins that she was “scared” and needed to talk. Audrey told Goins that she was looking out her front windows and could see Appellant sitting at the bottom of the hill. She said that he had been sitting there for “quite a while” and that she knew it was Appellant because she heard him coughing and could see him lighting his cigarettes. She stated that she could see Appellant carrying a flashlight and that she “feared for her life.” Goins told her to call emergency services, but Audrey responded “I done called, and they won’t come because it’s a domestic problem and the law won’t get involved until there has been someone hurt.”

On Appellant’s first appeal, we held that Audrey’s statements identifying Appellant as the person sitting near her residence were properly admitted pursuant to the “present sense impression” exception to the hearsay rule. KRE 803(1); Bray, 68 S.W.3d at 381. During the interim, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), holding that the Confrontation Clause of the Sixth Amendment forbids admission of all testimonial hearsay statements against a defendant at a criminal trial, unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination. Id. at 68, 124 S.Ct. at 1374. Thus, the threshold issue under Crawford is whether Audrey’s hearsay statements were testimonial.

To provide guidance for lower courts, Crawford, explained:

The text of the Confrontation Clause .... applies to “witnesses” against the accused — in other words, those who “bear testimony.” “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.

Id. at 51, 124 S.Ct. at 1364 (internal citations omitted). The Court stated that, at a minimum, the term “testimonial” applies to police interrogations and to prior testimony, whether at a preliminary hearing, before a grand jury, or at a former trial. Id. at 68, 124 S.Ct. at 1374. However, because the statement at issue in Crawford, a statement given under custodial interrogation by police, was “testimonial under any definition,” id. at 61, 124 S.Ct. at 1370, the Court “[left] for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. at 68, 124 S.Ct. at 1374.

Crawford endorsed the view that statements were testimonial if, e.g., they “were made under circumstances which would lead an objective witness reasonably to believe that the statements] would be available for use at a later trial.” Id. at 52, 124 S.Ct. at 1364. The circumstances of the case sub judice did not present that situation. In Crawford, the declarant’s statements were directed to police and in response to questioning. Id. at 38-39, 124 S.Ct. at 1357. Audrey Bray’s statements, on the other hand, were spontaneous and were directed to her sister. See United States v. Lee, 374 F.3d 637, 645 (8th Cir.2004) (“[Co-defendant’s] statements to his mother do not implicate the core concerns of the confrontation clause.”); United States v. Manfre, 368 F.3d 832, 838 n. 1 (8th Cir.2004) (statements were nontesti-monial because they “were made to loved ones or acquaintances and are not the kind of memorialized, judicial-process-created evidence of which Crawford speaks”); People v. Butler, 127 Cal.App.4th 49, 25 Cal.Rptr.3d 154, 161-62 (2005) (statements held not testimonial where “[n]o government official was present .... [and][t]he statements were made spontaneously to co-workers.”); People v. Coleman, 16 A.D.3d 254, 791 N.Y.S.2d 112, 113-14 (N.Y.App.Div.2005) (statements held not testimonial where, although made to police, “did not result from structured questioning”); State v. Staten, 364 S.C. 7, 610 S.E.2d 823, 836 (App.2005) (statements held not testimonial where they were made to declarant’s cousin and roommate). Audrey Bray’s statements were not made under formal conditions that would give a witness time for reflection; they bear greater resemblance to “casual remarkfs] to an acquaintance.” Crawford, 541 U.S. at 51, 124 S.Ct. at 1364.

Many courts have held that statements made to a 911 (emergency) telephone operator under similar circumstances are not testimonial in nature. See, e.g., State v. Wright, 686 N.W.2d 295, 302-03 (Minn.Ct.App.2004) (statements to 911 operator held nontestimonial where no evidence suggested the call was handled by the 911 operator under a formalized investigatory protocol, and the victims were providing information for immediate intervention and not for eventual prosecution); Coleman, 791 N.Y.S.2d at 113 (statements made to 911 operator held nontestimonial where declarant’s “primary motivation was to call for urgent assistance, and not to phone in an anonymous accusation”); State v. Mason, 127 Wash.App. 554, 110 P.3d 245, 249 (2005) (statements made to 911 operator held nontestimonial because they were “made while in peril for the purpose of seeking protection, rather than for the purpose of bearing witness”).

Appellant asserts that because Goins lived in Alabama and could not have prevented the crime, the only plausible reason for the telephone call was testimonial, ie., to let Goins know that if she (Audrey) were subsequently killed, Appellant was the perpetrator. We disagree. Both the content and the context of the conversation indicate that Audrey telephoned Goins in the throes of fear — not to provide evidence for use at a future trial, but to seek advice and assurance. She had already sought help from the police to no avail. Her frantic statements to Goins describing her ongoing observations were not indicative of the calculated reflections engaged in by one seeking to preserve evidence.

In United States v. Arnold, 410 F.3d 895 (6th Cir.2005), statements to a 911 dispatcher that defendant had threatened her with a gun were held to be testimonial under Crawford because the declarant would reasonably expect the statements to be used to prosecute the defendant. Id. at 903-04. Arnold explained that, under its facts, “it would be antithetical ... to suggest that [declarant] made the statement for any other reason than to establish that the alleged incidents occurred.” Id. at 903. At first blush, Arnold appears to support Appellant’s contention. However, in United States v. Cromer, 389 F.3d 662 (6th Cir.2004), the Sixth Circuit explained that “in the case of a crime committed over a short period of time, a statement ... made before the crime is committed ... almost certainly is not testimonial.” Id. at 673 (quoting Richard D. Friedman,, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, 1042-43 (1998)). In this case, Audrey’s statements to her sister were made prior to the crime. A declarant’s fearful statements over the telephone that a crime may occur do not alone establish “circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial .... ” Crawford, 541 U.S. at 52, 124 S.Ct. at 1364. The statements at issue here were not testimonial in nature, thus not within the type of hearsay absolutely precluded by Crawford.

II. SUFFICIENCY OF THE EVIDENCE.

At trial, Appellant moved for directed verdicts of acquittal on all charges. His motions were overruled. On a motion for a directed verdict of acquittal, all fair and reasonable inferences are drawn in the Commonwealth’s favor. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). On appellate review, we determine whether, under the evidence viewed as a whole, it was clearly unreasonable for the jury to have found the defendant guilty. Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983).

A. MURDER.

Evidence at trial established that on October 9,1982, Audrey Bray filed for a divorce from Appellant. She began packing clothes and sheets in a foot locker, purportedly in preparation to move to Alabama. About a week before her death, two of Audrey’s friends, Teresa Hamm and Lisa Colver, accompanied her to the residence she had shared with Appellant to help her retrieve her belongings. While there, Appellant, with gun in hand, threatened Audrey that she would “never live long enough to live with anybody else,” nor would she ever “live long enough to see Alabama.” Frightened, Audrey and her Mends immediately left the residence.

November 7, 1982, was to be Audrey’s last night of work at the Country Crossroads Restaurant. She had put in her two weeks notice, explaining her intentions to move to Alabama. After she left work that day, Audrey returned to the residence of her mother, Effie York, where she had been staying since her separation from Appellant. As previously noted, just before midnight, Audrey telephoned her sister, Ernestine Goins, and told her that Appellant was sitting at the bottom of the hill just below York’s residence holding a flashlight.

The next morning, around 4:00 a.m., Danny Nelson, who lived directly across the street from York, abruptly awoke to the sound of a gunshot. A few seconds later, he heard a second gunshot. He looked out the window but could not hear or see anything, so he lay back down. Several minutes later, he noticed that it had become very bright outside. He looked out the window again and saw York’s residence engulfed in flames.

When police arrived at the mobile home, they found Audrey Bray and Effie York dead, both with gunshot wounds to the head. An expert testified at trial that the bullets used to kill the victims were .22 caliber magnum bullets. The Commonwealth proved that at the time of the murders, Appellant owned a .22 caliber magnum pistol.

Although the police immediately suspected Appellant, they could not locate him. The ensuing search and investigation led police to the Barkley Regional Airport, where, on November 11, 1982, they found Appellant’s black Chevrolet pickup truck abandoned with the keys still in the ignition. Also, two tickets had been purchased with cash for the 7:05 a.m. flight to St. Louis. Inside the vehicle, detectives found two operable flashlights and a box containing squirrel tails. Two days later, on November 13, a janitor reported finding a partial box of fifteen .22 magnum caliber bullets abandoned in the airport’s men’s restroom. Testimony at trial showed that finding ammunition at the airport was rare; since 1974, ammunition had been found there on only three or four occasions. On November 15, the police searched a dumpster at the airport and found another squirrel tail and a “TVA” patch similar to one Appellant was known to own.

Although the FBI conducted an extensive manhunt, Appellant remained at large for more than twelve years. On October 26, 1994, police received a tip that Appellant was residing in Toronto, Canada. On February 2, 1995, police spotted a person fitting Appellant’s description. When asked his name, he responded, ‘Walter Watkins.” When asked to produce identification, he produced a Canadian birth certificate in the name of “Walter George Wilkins.” After further questioning, police substantiated that the person was, in fact, Appellant and placed him under arrest. Appellant was thereafter extradited to Kentucky and tried for the murders and arson.

A person is guilty of murder when he intentionally causes the death of another person. KRS 507.020(l)(a). Appellant argues that the evidence against him was insufficient because it was entirely circumstantial. However, circumstantial evidence can suffice to support a criminal conviction. Baker v. Commonwealth, 860 S.W.2d 760, 761 (Ky.1993). A conviction may be obtained upon circumstantial evidence when the evidence taken as a whole is of such character that a jury would not be clearly unreasonable in concluding that a person is guilty beyond a reasonable doubt. Bussell v. Commonwealth, 882 S.W.2d 111, 114 (Ky.1994). The same standard applies regardless of whether a case involves direct or circumstantial evidence. Commonwealth v. Collins, 933 S.W.2d 811, 815 (Ky.1996).

There was sufficient circumstantial evidence to support the jury’s conclusion that Appellant murdered Audrey Bray and Effie York. The murders were committed one week after Appellant threatened Audrey that she would “not live to see Alabama” and on the very day Audrey intended to leave for Alabama. There was evidence tending to show that Appellant was at the crime scene and acting suspiciously just hours before the deaths were discovered. The bullets used were from a .22 caliber magnum pistol, and Appellant owned a weapon of that type. Within hours of the crime, Appellant had abandoned his vehicle at the airport. Bullets matching those at the crime scene were found discarded inside the airport. Appellant fled to Canada, was at large for more than twelve years, and concealed his identity upon being confronted by the authorities.

Appellant correctly argues that evidence of flight, standing alone, does not prove guilt beyond a reasonable doubt. Vick v. United States, 216 F.2d 228, 232 (5th Cir.1954). However, Appellant was not convicted on the basis of flight alone; as stated above, substantial other circumstantial evidence tied Appellant to the murders, e.g., motive, opportunity, and his prior threats to kill Audrey. Moreover, evidence of flight has long been considered evidence of a consciousness of guilt. Rodriguez v. Commonwealth, 107 S.W.3d 215, 218-20 (Ky.2003); Chumbler v. Commonwealth, 905 S.W.2d 488, 496 (Ky.1995); Hord v. Commonwealth, 227 Ky. 439, 13 S.W.2d 244, 246 (1928). A defendant’s attempt to conceal his true identity by providing an alias to police also shows a consciousness of guilt. Adkins v. Commonwealth, 96 S.W.3d 779, 793 (Ky.2003); Fugate v. Commonwealth, 445 S.W.2d 675, 681 (Ky.1969), overruled on other grounds by Sawhill, 660 S.W.2d at 5. See also United States v. Clark, 184 F.3d 858, 869 (D.C.Cir.1999).

Appellant asserts that he gave an adequate explanation of why he fled the country. He testified that he and Audrey’s siblings did not get along. His suspicions that they would blame him for the deaths of their loved ones and seek retribution compelled him to leave. He “just walked. Next thing [he] was close to Canada and just went on.” However, for the purpose of ruling on a motion for directed verdict, the trial court must assume that the evidence for the Commonwealth is true and reserve for the jury questions as to the credibility and weight to be given to the evidence. Benham, 816 S.W.2d at 187-88. A reasonable jury could believe beyond a reasonable doubt that Appellant murdered Audrey Bray and Effie York. Id. at 187.

B. ARSON.

Appellant asserts that the evidence was insufficient to convict him of arson in the first degree because the victims died of gunshot wounds to the head before the fire was started. Thus, he reasons, the statutory requirements for first-degree arson were not met because the residence was not “inhabited or occupied,” and he would not have had reason to believe it was; nor was any person seriously injured as a result of the fire. KRS 513.020(1). On Appellant’s first appeal we held that an instruction on first-degree arson was properly given, because the “evidence was inconclusive as to whether the victims were living or dead at the time the house was set afire,” Bray, 68 S.W.3d at 385, but that Appellant was entitled to an instruction on second-degree arson as a lesser included offense. Id.

Appellant now asserts that “as distinguished from appellant’s first trial, the evidence left no doubt as to whether the victims were dead or alive when the house was set on fire.” Brief for Appellant, at 44 (emphasis added). He argues that neither victim could have been alive due to the amount of carbon monoxide in the blood stream of each. Dr. Roberta Conrad, who performed the autopsies of both victims, testified for the prosecution during the first trial regarding the amount of carbon monoxide in the victims’ bloodstreams. During Appellant’s second trial, the prosecution played for the jury the videotape of Dr. Conrad’s testimony given at Appellant’s first trial. Obviously, the evidence regarding the victims’ times of death, whether they occurred before or after the setting of the fire, i.e., Dr. Conrad’s testimony, was exactly the same at the second trial as it was at the first trial. Thus, our determination on the first appeal that the evidence was sufficient to support Appellant’s conviction of arson in the first degree is the law of the case. Thomas v. Commonwealth, 931 S.W.2d 446, 450 (Ky.1996). Furthermore, the evidence was also not conclusive as to whether Appellant had reason to believe that both victims were still alive when he set the fire. KRS 513.020(l)(a).

III. COMPETENCY HEARING.

Prior to his first trial, Appellant moved for a mental evaluation and treatment. Dr. Robert Sivley conducted the evaluation, diagnosing Appellant with adjustment disorder and paranoid personality disorder, manifested by a pervasive distrust and suspiciousness of others. Ultimately, however, he concluded that Appellant was indeed competent to understand the charges against him and to participate rationally in his own defense. The trial court agreed, finding Appellant competent to stand trial. RCr 8.06. The issue of Appellant’s competency was not raised on the first appeal. After reversal and remand of Appellant’s first convictions, Appellant notified the Commonwealth of his intent to present evidence of his paranoid personality disorder, pursuant to RCr 7.24(3)(B)(i) (notice of evidence of mental disease or defect bearing on the issue of guilt). As a result, the Commonwealth requested a mental examination pursuant to RCr 7.24(3)(B)(ii). The trial court ordered Appellant to be evaluated by the KCPC, but the form order recited that “[pjursuant to KRS 504.100, upon motion of the Commonwealth, and the Court being satisfied that the Defendant should be reevaluated to determine his/her competency to stand trial and criminal responsibility at the time of the offense .... ”

Dr. Frank Deland conducted the evaluation. He diagnosed Appellant with “paranoid personality traits” and concluded that Appellant “does not ... lack substantial capacity to understand the procedures against him or meaningfully participate in his own defense.” Appellant immediately filed a motion for a competency hearing, asking the court to (1) find Appellant incompetent to stand trial, or, alternatively, (2) provide Appellant with funds to hire an expert on the issue of competency, and (3) continue the trial date until such evalúation could be completed. The trial court denied the motion entirely, never holding a competency hearing. On appeal, Appellant argues that it was error for the trial judge not to grant him funds and a continuance in order to allow him time to hire an independent expert. Additionally, he asserts that the failure to hold the competency hearing was reversible error.

KRS 504.100(1) requires a court to “appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant’s mental condition,” whenever it “has reasonable grounds to believe the defendant is incompetent to stand trial.” KRS 504.100(3) states, “After the filing of a report (or reports), the court shall hold a hearing to determine whether or not the defendant is competent to stand trial.” We have held that “Section (3) is clearly mandatory.” Mills v. Commonwealth, 996 S.W.2d 473, 486 (Ky.1999). However, as in Mills, the trial court’s error in this case was obviously harmless. In the first place, the Commonwealth’s request for a mental examination was not for competency purposes but to obtain evidence to rebut Appellant’s intent to present a defense of mental illness or defect. The trial court did not state a belief that Appellant might be incompetent to stand trial. He simply signed the wrong form order.

Nevertheless, the standard of review when the trial court fails to hold a competency hearing is, “Whether a reasonable judge, situated as was the trial court judge whose failure to conduct an eviden-tiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial.” Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir.1983) (quoted in Mills, 996 S.W.2d at 486). “[Ejvidenee of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant” facts for a court to consider. Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975) (emphasis added). To show that he was incompetent to stand trial, Appellant cites Dr. Deland’s report and Appellant’s own allegedly bizarre testimony at trial. However, Dr. Deland’s report specifically concludes that Appellant was competent to stand trial. More importantly, it repeats essentially the same information and conclusions as Dr. Sivley’s report, on which the trial court relied in determining prior to the first trial that Appellant was competent to stand trial. Where Siv-ley had reported, “[Appellant] expresses a strong suspicion of [the] corruptness [of the court system] and of its determination to punish him,” Deland reported, “[Appellant] believes that Judge Foust’s court is necessarily tendentious and will not yield to the principles of fairness unless forced.” Furthermore, Deland reported,

[Appellant] admits, though that the judicial system in Kentucky, overall, is as just as one could expect, his citing the successful appeal as evidence. Thus, Mr. Bray’s suspicions do not include the entire judicial process, only the process specific to his case as it is being conducted at this time. That Mr. Bray can make such a distinction strongly suggests that his paranoid thoughts are under some amount of cognitive control and that he is making a valued judgment about his course of action at this time.

(Emphasis added.) In another example, Sivley had stated that “he seems to believe that he cannot have a defense attorney who will act in his own interest.” Likewise, Deland reported, “[He is] overly suspicious of his current attorney,” but De-land further stated:

Mr. Bray states that he has no personal animosity towards his lawyer or any of the other court personnel, he only objects to their official functioning as it pertains to his case in particular. Again> that Mr. Bray can make such distinctions strongly suggests that his judgments about what actions he will take with regard to his defense strategy are considered ones and not irreversible.

(Emphasis added.) Appellant correctly points out that Deland’s report confines Appellant’s paranoia to his dealings with the court and his attorneys. However, it is that conclusion that caused Deland to more vigorously conclude that:

[Appellant] has the ability to adjust his stance and strategy such that he could work with his attorney effectively. His refusal to do so, I believe, would be a considered action on his part and not one that is mandated by blind adherence to his paranoid ideations.

Thus, Deland’s report does not support Appellant’s argument on appeal. Because the two psychological opinions were virtually identical, except that Deland’s was more emphatic, and because Appellant was deemed competent after a hearing on Siv-ley’s opinion, a reasonable judge would have no reason to further doubt Appellant’s competency. See Pate v. Commonwealth, 769 S.W.2d 46, 47 (Ky.1989) (“There is no right to a continual succession of competency hearings in the absence of some new factor.”).

Appellant additionally points to an instance during his trial testimony where he accused a local police officer of assisting him in his escape. The prosecutor, judge, and defense counsel were equally surprised by the testimony, defense counsel stating that he had never been apprised of that accusation. Appellant asserts that this bizarre accusation should have given the judge reasonable doubt as to whether he could “participate rationally in his ... defense,” RCr 8.06, thus requiring the judge to grant Appellant a continuance in order to have another evaluation performed. We disagree. That Appellant was suspicious of his defense counsel was clear after Appellant’s first mental examination by Dr. Sivley and was reinforced by Dr. Deland’s examination. However, it was clear that both doctors viewed Appellant’s suspicion as a considered action on his part, not one “mandated by blind adherence to his paranoid ideations.” His accusation at trial did not affect that opinion. Pate, 769 S.W.2d at 47. Furthermore, though bizarre, there was no proof that Appellant’s accusation was untrue.

Accordingly, a reasonable trial judge would have had no factual basis to doubt Appellant’s competence. Therefore, no error occurred in denying Appellant’s request for an additional examination, and it was harmless error for the court to deny Appellant a competency hearing. Mills, 996 S.W.2d at 486.

IV. OTHER BAD ACTS.

Appellant next alleges that a mistrial was warranted after the prosecutor cross-examined Appellant regarding the following incidents:

Q: Isn’t it trae that you weren’t supposed to have any contact with Audrey?
A: No ma’am.
Q: Do you recall ever crawling out a bathroom window after an officer tried to talk with you?
A: No ma’am.
Q: Who’s Bubba Greek?
A: [no response]
Q: Isn’t Bubba Greek the person that Audrey was going to Alabama to see?
A: No. That’s not the reason she went to Alabama.
Q: Didn’t you call Bubba Greek on the telephone and threaten him?
A: I didn’t. No ma’am.

Thereafter, defense counsel objected and requested a mistrial. He argued that this last question about a threat made to a person named Greek was irrelevant and prejudicial. The prosecutor then withdrew the question, and the trial court denied Appellant’s motion for a mistrial. Appellant did not request an admonition to the jury to disregard the testimony. On appeal, Appellant incorporates the two immediately previous questions into his argument, asserting that the three accusations were purposefully interjected into the case but were never substantiated by proper evidence. We address only the error involved in the last of the three questions because it was the only issue preserved for our review, and Appellant does not request palpable error review pursuant to KRE 103(e).

Whether to grant a mistrial is within the sound discretion of the trial court, and “such a ruling will not be disturbed absent ... an abuse of that discretion.” Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky.2004). A mistrial is an extreme remedy and should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity. Skaggs v. Commonwealth, 694 S.W.2d 672, 678 (Ky.1985), habeas corpus granted on other grounds by Skaggs v. Parker, 235 F.3d 261, 275 (6th Cir.2000). The error must be “of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way [except by grant of a mistrial].” Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky.1996).

This type of error is easily cured by an admonition. In Graves v. Commonwealth, 17 S.W.3d 858 (Ky.2000), a witness made reference to the defendant’s prior criminal conviction by stating, “I knew he wasn’t supposed to have a gun.” Id. at 865. We held that an evidentiary error of that type was easily curable by an admonition, but that an admonition was not requested. Id. A mistrial, on the other hand, was clearly unwarranted. Id. In the case sub judice, the prosecutor’s question was fleeting. It was asked, objected to, and immediately withdrawn. Had Appellant requested an admonition, any prejudicial effect that may have occurred could have been cured.

Appellant insists that reversal is required pursuant to Coates v. Commonwealth, 469 S.W.2d 346 (Ky.1971), and Woodford v. Commonwealth, 376 S.W.2d 526 (Ky.1964). The defendant in Coates, an official with access to the State Reformatory, had been tried for possession of marijuana. During cross-examination of the defendant and again during closing argument, the Commonwealth’s attorney implied that the defendant had been trafficking illicit drugs into the Reformatory. However, the Commonwealth never introduced any evidence to support its implications. Our predecessor court held that the Commonwealth had interjected a “false issue” into the case “which was highly prejudicial.” Coates, 469 S.W.2d at 348. The issue of drug trafficking at that time was a “highly inflammable matter and the public generally is incensed against those who induce the use of and supply [of] drugs.” Id. No similar prejudice was created here. In Woodford, the prosecutor asked the defendant repeatedly if he had been pursued by police officers in a chase. Although defense counsel voiced several objections, the questioning continued. Woodford, 376 S.W.2d at 527-28. No such repetition occurred here. No manifest necessity for a mistrial existed, and no abuse of discretion occurred.

Accordingly, the judgment of convictions and the sentences imposed by the Christian Circuit Court are AFFIRMED.

All concur.

      . The Supreme Court recognized that, historically, an exception has been recognized for testimonial dying declarations. Crawford, 541 U.S. at 56 n. 6, 124 S.Ct. at 1367 n. 6. However, the Court declined to decide whether the Sixth Amendment incorporates such an exception, noting that if an exception must be accepted for historical reasons, it is "sui gen-eris.” Audrey Bray's statements to her sister clearly were not dying declarations.

      . Although the Supreme Court declined to specifically declare that the Confrontation Clause applies only to "testimonial,” as opposed to non-testimonial, statements, Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, other jurisdictions have uniformly confined their analysis to the testimonial/nontestimonial distinction, allowing the introduction of non-testimonial hearsay that fits within a well-recognized ("firmly rooted”) exception to the hearsay rule or contains particularized guarantees of truthfulness. E.g., State v. Alvarez, 210 Ariz. 24, 107 P.3d 350, 355-56 (App.2005) (admission of nontestimonial hearsay statements under excited utterance exception); State v. Doe, 140 Idaho 873, 103 P.3d 967, 972 (App.2004) (same); People v. Geno, 261 Mich.App. 624, 683 N.W.2d 687, 692-93 (2004) (admission under Michigan’s residual hearsay exception of nontestimonial hearsay statements similar to statements admissible under the "state-of-mind” exception [KRE 803(3) ]); State v. Hembertt, 269 Neb. 840, 696 N.W.2d 473, 480-85 (2005) (admission of nontestimonial hearsay statements under excited utterance exception); State v. Fisher, 108 P.3d 1262, 1269 (Wash.Ct.App.2005) (admission of nontestimonial hearsay statements made for purposes of medical diagnosis); State v. Ferguson, 216 W.Va. 420, 607 S.E.2d 526, 528-29 (2004) (admission of nontestimonial hearsay statements under excited utterance exception).

      . The declarant’s post-crime statements in Arnold were made to a 911 dispatcher — another significant fact in that court's analysis. Arnold, 410 F.3d at 903.

      . The extradition was obtained under an agreement between Canadian authorities and the United States Department of Justice that prosecutors would not seek the death penalty.


source: Caselaw Access Project

author: Chief Justice LAMBERT.

license: Public Domain

text:
    James Anthony DENO, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-SC-000233-MR.
    Supreme Court of Kentucky.
    Sept. 22, 2005.
    Rehearing Denied Dec. 22, 2005.

      Donna L. Boyce, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, James Havey, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Chief Justice LAMBERT.

Appellant, James Anthony Deno, was indicted by a Jessamine county grand jury for rape in the first degree and for failing to register as a sex offender. Prior to trial, the latter charge was severed because of its prejudicial effect. At Appellant’s trial for rape, the jury found him guilty and recommended a sentence of twenty years. The trial court entered a judgment consistent with the jury’s recommendation. Appellant appeals to this Court as a matter of right asserting four claims of reversible error: (1) that the trial court erred when it informed Appellant he had no right to hybrid representation; (2) that the trial court erred when it held an inadequate hearing on Appellant’s pro se request for substitute counsel; (3) that Appellant was unfairly prejudiced when the trial court admitted evidence regarding Appellant’s refusal to voluntarily provide biological specimens; and (4) that the trial court erred when it refused to instruct the jury on sexual misconduct. Based on Appellant’s first claim of error, we reverse and remand for a new trial.

On April 5, 2003, the victim, J.M., was at Appellant’s trader with her boyfriend, Kevin Elder. J.M. and Elder were there to visit with Elder’s friends Chris Coleman and Chris’s father, Tim Coleman. The Colemans were staying with Appellant. Although J.M. knew the Colemans, she had never met Appellant nor had she ever been to Appellant’s home. That evening, J.M., Kevin Elder, the Colemans, and Appellant drank beer and watched a movie. J.M. testified that the Colemans and Appellant also smoked marijuana. Eventually, Chris Coleman went to bed and Appellant, Tim Coleman, J.M., and Elder stayed up to play cards. J.M. testified that she then began taking shots of whiskey. She estimated that over the course of the evening she drank five or six beers and took four to six shots of whiskey. J.M. became intoxicated, vomited, and then passed out on Appellant’s couch in the living room. Elder testified that he was under the impression that Appellant also found a spot on the floor to sleep.

J.M. said that throughout the night she slipped in and out of consciousness. She stated that she awoke at one point to find a male on top of her penetrating her vagina. J.M. became scared and confused and tried to stop the man on top of her by rolling over, but she was unable to do so. J.M. said at one point she heard Appellant’s voice beside her telling her to be quiet.

Around dawn the following morning J.M. testified that she woke up on the floor. She said her shirt and bra were pulled up exposing her breasts and her pants and panties were pulled down below her knees. J.M. was confused and became hysterical because she was unaware of how she ended up on the floor with her clothes as they were. When Elder awoke he saw J.M.’s condition but was unable to get J.M. to tell him what had happened. Elder testified that he saw Appellant awake, sitting on the couch. Elder said he confronted Appellant about J.M. but that Appellant denied having done anything. J.M. testified that she went to the bathroom and wiped off what she believed to be semen. Then J.M. and Elder left Appellant’s home in Elder’s car. In the car Elder asked J.M. if Appellant had raped her and J.M. said yes.

Chris Coleman testified that when J.M. and Elder left Appellant’s trailer, Appellant told the Colemans a different story about what had happened. He said he was sleeping on the couch when J.M. pulled him to the floor and started to initiate sexual intercourse. Appellant said that when J.M. saw Elder sleeping on the other side of the room, she realized that she had intercourse with the wrong man. Although Appellant claims that J.M. believed that it was Elder who was the one she had sexual intercourse with, J.M. never testified to that effect. J.M. only said that when she woke up the next morning, she had hoped the man that had been on top of her was her boyfriend. However, J.M. stated unequivocally that she did not consent to have sex with anyone that night.

Elder then took J.M. back to her apartment in Lexington. At J.M.’s apartment, her roommate, Shannon Drowen, and Drowen’s boyfriend tried to calm J.M. However, when they discovered scratches on J.M.’s back, J.M. became even more hysterical. Elder, Shannon, and Shannon’s boyfriend took J.M. to the University of Kentucky Medical Center. Kim Bennett, a nurse practitioner and a sexual assault nurse examiner, examined J.M. and collected forensic evidence. Bennett photographed two scratches on J.M.’s lower back and discovered a small tear near the bottom of J.M.’s vagina. Lab analysts found semen on a vaginal smear and on a vaginal swab taken from J.M. J.M.’s blood alcohol level that afternoon (approximately 3:00 p.m.) was .06%. Detective Tim Mar-cum from the Jessamine County Sheriffs Department came to the medical center to begin an investigation.

Two days later Detective Marcum and another deputy visited Appellant at his home. Marcum asked Appellant to voluntarily submit a biological specimen for comparison. Appellant refused. Appellant states that his refusal was based on the fact he wanted to speak to an attorney first. The following day, Marcum returned to Appellant’s home with a search warrant and to collect the biological specimens at a nearby hospital. The DNA of the semen from J.M.’s examination matched that of Appellant.

Appellant was indicted for first-degree rape and for failing to register as a sex offender. The latter charge was severed due to its prejudicial effect. On the first day of trial, Appellant made a pro se motion in limine for substitute counsel and in the alternative, a pro se motion to be co-counsel with the attorney who was currently representing him. Both motions were denied by the trial judge. Appellant was convicted of first-degree rape, and the jury recommended a sentence of twenty years. On March 5, 2004, the trial judge entered a judgment consistent with the jury’s recommendation.

Appellant’s first claim is that the trial court erred when it informed Appellant that he had no right to hybrid representation. The Kentucky Constitution guarantees a criminal defendant the right “to be heard by himself and counsel.” This right cannot be denied to a criminal defendant. The wording of Section 11 of the Kentucky Constitution, unlike that of the similar provision which appears in the United States Constitution, guarantees a criminal defendant the right: (1) to represent himself pro se; (2) to be represented by counsel; or (3) to have hybrid representation. In Wake v. Barker, we held that a criminal defendant may make a limited waiver of counsel. When a defendant makes such a waiver, the defendant’s attorney’s duty would then be confined to rendering services desired by the defendant as long as they are within the normal scope of counsel services. However, hybrid representation may only be granted to a defendant who makes a timely and unequivocal request for such representation.

In the case at bar, the Appellant informed the judge of his dissatisfaction with his appointed attorney after motions in limine had been heard. The Appellant advised the judge of how he had only met with his attorney a couple of times and felt uninformed regai'ding his defense. The Appellant said he felt information he relayed to his attorney had been disregarded. Among other things, the Appellant said he felt he had been lied to, ignored, and was not going to receive a fair trial. The trial judge allowed the Appellant’s attorney to respond to the allegations made against her. The trial judge then addressed some of the more specific complaints in regard to the use of an expert and the extent of the attorney’s contact with Appellant. The trial judge then held that it appeared that the Appellant’s attorney had prepared the case sufficiently and that the trial strategy, although unappealing to the Appellant, was within the discretion of his attorney. Appellant told the trial judge that he had reviewed the evidence and that he felt he could show J.M. was lying by pointing to inconsistencies in her story. Appellant’s attorney then asked Appellant if he would like to try the case himself or if he would want her to “sit there with him and answer questions as standby counsel.” Appellant said he wanted to be co-counsel but admitted that he would need some additional time to prepare. The trial judge informed Appellant that he had only two options, “you can’t go co-counsel. You either represent yourself or [your attorney] represents you.” The trial judge made this statement twice. The Appellant’s attorney then asked Appellant if he wanted to represent himself. Appellant, being informed that he only had two choices, said he wanted an attorney but not the one he currently had. The trial judge denied Appellant’s request stating Appellant’s attorney had performed her job adequately.

A request to proceed pro se or with counsel in a limited fashion must be timely and unequivocal. In the case at bar, Appellant’s request was .timely and unequivocal considering the circumstances under which the request was made. A request for hybrid representation is timely if made before meaningful trial proceedings have begun. Appellant proffered his request in the trial judge’s chamber before the jury was selected. Although an earlier request would have been preferable, the request was made before any part of the trial had begun. Therefore, the request was timely.

Appellant’s request was also unequivocal given the circumstances. A request for hybrid representation is unequivocal if the defendant specifies the extent of the services he desires. Neither a request for different counsel nor a request to make a closing argument is enough. During the discussion that took place in the trial judge’s chambers, Appellant’s attorney asked Appellant if he wanted to serve as co-counsel, and Appellant acknowledged that as his request. Appellant told the trial judge first he did not want to represent himself because he was not a trial attorney. However, the trial judge informed Appellant, incorrectly, that Appellant had only two choices regarding his representation, and that acting as co-counsel was not one of them. Thereafter, Appellant changed his request on the mistaken belief that he was unable to act as co-counsel during his trial. Appellant’s unequivocal request dissipated as a result of the misinformation provided to him by the trial judge. Thereafter Appellant, knowing he was insufficiently skilled to continue pro se, requested a different attorney to represent him. This request was also denied by the trial judge.

A defendant must be given his/her constitutional right (1) to represent himself pro se; (2) to be represented by counsel; or (3) to have hybrid representation. In this case, because the trial judge misstated the law, it is necessary for this Court to reverse and remand for a new trial.

Another aspect of a defendant’s limited waiver of counsel or request to proceed pro se is the requirement that the trial court hold a Faretta hearing. When a defendant makes a request to proceed pro se or for hybrid representation, the principles of Faretta become applicable. Faretta requires: (1) that “the trial court must hold a hearing in which the defendant testifies on the question of whether the waiver is voluntary, knowing, and intelligent;” (2) that “during the hearing, the trial court must warn the defendant of the hazards arising from and the benefits relinquished by waiving counsel;” and (3) that “the trial court must make a finding on the record that the waiver is knowing, intelligent and voluntary.” In the case at bar, the trial judge did not determine whether Appellant’s waiver was voluntary, knowing and intelligent because of misinformation. Therefore, upon retrial, if the Appellant decides to make a timely and unequivocal request to proceed pro se or for hybrid representation, the trial court should follow such a request with a Faret-ta hearing.

Appellant’s second claim of error is that the trial court held an inadequate hearing in regard to Appellant’s pro se motion for substitute counsel. This issue is addressed here because if Appellant, on retrial, makes a request for substitute counsel, instead of a timely and unequivocal request for hybrid representation or to represent himself pro se, then a different procedure must be taken.

An indigent defendant is not entitled to the appointment of a particular attorney, and a defendant who has been appointed counsel is not entitled to have that counsel substituted unless adequate reasons are given. When a defendant requests substitution of counsel during trial, “the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict.” Good cause has been described as: (1) a “complete breakdown of communications between counsel and defendant;” (2) a “conflict of interest;” and (3) that the “legitimate interests of the defendant are being prejudiced.” Whether good cause exists for substitute counsel to be appointed is within the sound discretion of the trial court.

When Appellant presented his concerns regarding his representation, the trial judge allowed Appellant to fully describe in detail his objections with his attorney. The trial judge then allowed Appellant’s attorney to respond to the allegations. The trial judge questioned both Appellant and his attorney regarding specific allegations of a breakdown in communication. Appellant asserted that his attorney had not kept him informed regarding the defense strategy, that his attorney had lied to him regarding the use of an expert, and that his attorney had ignored and rebuffed his ideas in regard to discrediting the victim. Appellant also stated that he felt his attorney was not invested in the case and Appellant believed he was not going to receive a fair trial. Appellant’s attorney responded to the allegations Appellant made by detailing her contact with Appellant. She also described the decision not to use an expert witness and her reasons for her trial strategy. The trial judge’s investigation into Appellant’s allegations was thorough. The trial judge held that Appellant’s attorney had sufficiently performed her job and there was not good cause for her substitution. The trial judge followed the correct procedure for addressing Appellant’s concerns with his representation. There was no error in the trial judge’s ruling denying Appellant substitute counsel.

Next, Appellant argues that the trial court erred when it admitted evidence of his refusal to submit to a voluntary specimen comparison. Appellant argues that the Commonwealth misused his legitimate assertion of his right to remain silent and not to provide self-incriminating evidence outside the presence of counsel. The Commonwealth asserts that the right against self-incrimination extends only to evidence of a testimonial nature but not to Appellant’s refusal to submit to the test. It appears from the record that this issue was not properly preserved. However, as we are reversing for retrial on other grounds, we deem it expedient to address this as it is likely to arise again.

At trial, evidence was admitted that Appellant refused the request of a detective to submit a biological specimen. Appellant refused stating that he wanted to speak to an attorney first. In his summation, the Commonwealth’s Attorney made much of Appellant’s refusal to voluntarily submit the specimen as follows:

Then when the officer goes out to talk to the defendant, does he say willingly, “yes, I’ll be happy to submit to the examination that you’re requesting”? No, he says, “No, I won’t,” and causes the detective to have to go get a search warrant and they come back out and then they get the blood and samples that they needed from him. Does that sound like somebody who’s in the right? Or does that sound like somebody who, again, is trying to avoid the consequences of his actions? Does that sound like an opportunistic rapist that took advantage of a young girl, 18 year old college freshman who’s got a lot going for her, for him to just take her and put her on the floor of that trailer and without her knowledge or consent forcing himself into her? That’s what this case is about.

The Commonwealth is correct in its assertion that the Fifth Amendment is not implicated here. The Fifth Amendment protection applies to evidence of a testimonial nature. It does not apply to physical evidence such as bodily fluids, breath, and hair. Thus, Appellant’s claim based on the Fifth Amendment is not well-taken.

We have addressed a similar issue in the context of driving while under the influence of alcohol. In Commonwealth v. Hager, we held that no Fifth Amendment or due process violation occurs when evidence of a DUI suspect’s refusal to submit to a breath or blood test is admitted as evidence of his guilt. In Hager, this Court adopted the view of the United States Supreme Court in South Dakota v. Neville which found no constitutional violations in the use of evidence of refusal to submit to an alcohol intoxication test. The issue in Neville was whether South Dakota’s statute authorizing evidence of refusal as evidence of guilt was unconstitutional, and the Supreme Court said no. Kentucky has a similar statute. KRS 189A.105 provides that the fact of refusal to submit to a blood, breath or urine test may be used at trial against the defendant as evidence of guilt under the DUI statute. Thus, the use of refusal as evidence of guilt in a DUI case is indisputable. But this was not a DUI case and the biological specimen was not of an evanescent nature.

A proper analysis of this issue is under the Fourth Amendment and Section 10 of the Constitution of Kentucky. Section 10 provides that “the people shall be secure in their persons, houses, papers, and possessions from unreasonable search and seizure.” We have held on many occasions that a warrantless search is presumed to be unreasonable. An attempted warrant-less search and seizure of Appellant’s bodily fluids occurred in this case in non-exigent circumstances. The officers came to Appellant’s home and asked him to voluntarily submit a biological specimen for comparison. Appellant refused and the fact of his refusal was used against him at trial.

We have been unable to discover Kentucky authority addressing the precise issue presented here, i.e. whether the refusal of one, other than a DUI suspect, to submit to a warrantless seizure of bodily fluids may be introduced at trial and argued as evidence of guilt. However, we have discovered two recent decisions of the United States Court of Appeals for the Ninth Circuit that seem directly on point. In United States v. Phillips, the defendant was on trial for homicide and assault arising out of an alcohol-related automobile accident. At trial the Government used the defendant’s pre-arrest refusal to submit to a blood test as evidence of her guilt. On appeal, the defendant argued that the refusal to supply a blood alcohol sample before her arrest could not be used as evidence at her trial because it violated her Fourth Amendment protection against unreasonable searches and seizures. Analyzing the claim, the Court stated that the taking of a breath test or blood sample is a search within the meaning of the Fourth Amendment and that refusal to consent to a warrantless search is privileged conduct that cannot be considered as evidence of criminality. Quoting from Newhouse v. Misterly, the Court said:

Thus, “where an underlying right to refuse such a blood test is present, it would be improper to draw adverse inferences from failure of the accused to respond to a request for a blood test because the accused would thereby be penalized for exercising his rights to refuse the test.”

The Phillips Court distinguished South Dakota v. Neville on the basis that the defendant in that case was under lawful arrest when the blood test was requested. It noted that the Government has a right to compel a blood sample after or contemporaneous with a lawful arrest, and that a defendant has no Fourth Amendment right to refuse such a test. The Court concluded as follows:

Unless there is probable cause and a valid arrest, a defendant’s refusal to submit to a blood test cannot be used as evidence of guilt.

In Duran v. Thurman, reversing the denial of habeas corpus, the Court considered a similar question:

The prosecution informed the jury two different times that Duran declined to provide blood and urine samples to the police when he turned himself in. It is undisputed that no warrant had been issued authorizing the taking of the samples. Therefore, Duran’s passive refusal to consent to the warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing. The prosecution’s repeated reference to Duran’s refusal to provide blood and urine samples violated Duran’s Fourth Amendment rights.

In U.S. v. Prescott, an apartment-dweller refused officers entry when she learned they did not have a search warrant. At trial, this fact was admitted as evidence against her. The Court held that it was prejudicial error to permit the government to prove, as evidence of the offense charged, that Prescott declined to unlock the door when the officers did not have a warrant.

When ... the officer demands entry but presents no warrant, there is a presumption that the officer has no right to enter, because it is only in certain carefully defined circumstances that lack of a warrant is excused.... One cannot be penalized for passively asserting this right, regardless of one’s motivation.

In the case at bar, at the time the detectives requested the specimen, the Appellant was not under arrest. Upon his refusal to comply with the officers’ request, a search warrant was obtained and the specimen collected the next day. Nevertheless, the fact of Appellant’s initial refusal was presented as evidence of his guilt and argued as such by the Commonwealth. We believe this to be a violation of Appellant’s rights under the Fourth Amendment and Section 10 of the Constitution of Kentucky, and upon retrial, an objection to the use of such evidence and argument should be sustained.

Finally, Appellant asserts error with the trial court’s refusal to instruct the jury on sexual misconduct. During the trial, the Appellant requested that the jury instructions include not only the charged offense of first-degree rape under KRS 510.040, but also, as a lesser included crime, sexual misconduct. The Commonwealth responded to Appellant’s instruction request with the argument that the commentary of the sexual misconduct statute, KRS 510.140, states that it is intended to apply only to cases where the defendant and victim are of a young age. The trial court denied Appellant’s request and the jury received an instruction only on the charge of first-degree rape. The Appellant now argues that it was erroneous for the trial judge to instruct the jury to convict Appellant for first-degree rape or acquit. Appellant points to the commentary to KRS 510.140 which states that the sexual misconduct statute also acts as “a useful plea-bargaining tool for the prosecution in certain cases even though some degree of forcible compulsion/incapacity to consent may be present.”

A person is guilty of sexual misconduct when “he engages in sexual intercourse or deviate sexual intercourse with another person without the latter’s consent.” Although this statute would seem to apply to the case at bar, “our ‘longstanding rule’ is that this statute was intended to apply only in cases where the victim is fourteen or fifteen and the defendant less than twenty-one, or when the victim is twelve-to-fifteen „and the defendant is less than eighteen years of age.” This rule was developed from reading KRS 510.140 as interpreted by its commentary. Therefore, because the victim was of majority age and the Appellant was of majority age, the trial judge’s refusal to instruct the jury on sexual misconduct was not erroneous.

Moreover, the evidence does not indicate that such an instruction would be appropriate. While the victim was profoundly intoxicated, there is no indication that Appellant was similarly impaired. Thus, if he engaged in sexual intercourse with the victim while she was so impaired and without her consent, KRS 510.040 is the appropriate statute.

Based on the error made by the trial judge regarding hybrid representation, this case is reversed and remanded for a new trial.

COOPER, GRAVES, JOHNSTONE, ROACH, SCOTT, and WINTERSHEIMER, JJ., concur.

      . KY. CONST. § 110(2)(b).

      . J.M. will be used to protect the victim's anonymity.

      . KY. CONST. § 11.

      . Chenault v. Commonwealth, 282 Ky. 453, 138 S.W.2d 969 (1940).

      . U.S. CONST, amend. V.

      . Hill v. Commonwealth, 125 S.W.3d 221 (Ky.2004).

      . 514 S.W.2d 692 (Ky.1974).

      . Id., 514 S.W.2d at 696.

      . Moore v. Commonwealth, 634 S.W.2d 426, 430 (Ky.1982).

      . Moore, 634 S.W.2d at 430.

      . Baucom v. Commonwealth, 134 S.W.3d 591 (Ky.2004) (citing United States v. McKenna, 327 F.3d 830, 844 (9th Cir.2003) (holding that a request is timely if made before the jury is selected or empanelled)).

      . Soto v. Commonwealth, 139 S.W.3d 827, 857 (Ky.2004) (citing Wake, 514 S.W.2d at 696).

      . Soto 139 S.W.3d at 857.

      . Hill, 125 S.W.3d at 225-26.

      . Id., at 592.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Hill, 125 S.W.3d at 226.

      . Moore, 634 S.W.2d at 430.

      . Hill, 125 S.W.3d at 226.

      . Soto, 139 S.W.3d at 857 (citing Robards, 789 F.2d at 384 (A trial court may grant an untimely request but such grant is within the sound discretion of the trial judge.))

      . Hill, 125 S.W.3d at 227.

      . See, Shegog v. Commonwealth, 142 S.W.3d 101, 105 (Ky.2004) (Faretta's principles do not control because Appellant did not assert the desire to represent himself.)

      . Baker v. Commonwealth, 574 S.W.2d 325, 326-27 (Ky.App.1978) (citing Hargrove v. Commonwealth, 362 S.W.2d 37 (Ky.1962)).

      . See, Baker, 574 S.W.2d at 325; Fultz v. Commonwealth, 398 S.W.2d 881, 882 (Ky.1966) (citing Brown v. United States, 264 F.2d 363 (D.C.Cir.1959); United States ex rel. Robinson v. Fay, 348 F.2d 705 (2nd Cir.1965)).

      . Shegog, 142 S.W.3d at 105 (citing United States v. Calabro, 467 F.2d 973, 986 (2nd Cir.1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973)). See also United States v. Welty, 674 F.2d 185, 188 (3rd Cir.1982); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976); United States v. Young, 482 F.2d 993, 995 (5th Cir.1973).

      . Baker, 574 S.W.2d at 326

      . Pillersdorf v. Department of Public Advocacy, 890 S.W.2d 616, 622 (Ky.1994).

        . Newman v. Stinson, 489 S.W.2d 826, 829 (Ky.1972). See Sholler v. Commonwealth, 969 S.W.2d 706 (Ky.1998) (self-incrimination protection does not extend to demonstrative, physical or real evidence); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

      . 702 S.W.2d 431 (Ky.1986).

      . 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (9th Cir.1983).

      . Colbert v. Commonwealth, 43 S.W.3d 777 (Ky.2001).

      . 976 F.2d 739 (9th Cir.1992) (unpublished disposition).

      . 415 F.2d 514, 518 (9th Cir.1969).

      . 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).

      . 106 F.3d 407 (9th Cir.1997) (an unpublished disposition).

      . Id.

      . 581 F.2d 1343, 1350-51 (9th Cir.1978).

      . KRS 520.140(1).

      . Johnson v. Commonwealth, 864 S.W.2d 266, 277 (Ky.1993); See also, Cooper v. Commonwealth, 550 S.W.2d 478 (Ky.1977).

      . Cooper, 550 S.W.2d at 480 ("according to KRS 500.100, the commentary accompanying the code may be used as an aid in construing the provisions of the code.”)