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,;VUyrrMr Courf -of

2005-SC-000728-MR

ON APPEAL FROM McCRACKEN CIRCUIT COURT

V. HONORABLE CRAIG Z. CLYMER, JUDGE

NO . 04-CR-00156-002

RENDERED : AUGUST 23, 2007

NOT TO BE PUBLISHED

Eq-13 'F C v . ~C-.

JAMES ERIC DALTON APPELLANT

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

James Eric Dalton and Michael Gaines were jointly tried and convicted of firstdegree robbery. Dalton was also found to be a second-degree persistent felony

offender and sentenced to an enhanced term of twenty years' imprisonment. Dalton

brings this appeal, raising as his sole issue the contention that the trial court erred in

failing to grant a mistrial after a juror revealed overhearing Gaines's mother tell a

prospective juror that one of the defendants was her son and "that's what drugs will do

to you." We affirm because we conclude that Dalton has failed to preserve this issue for

appellate review or otherwise demonstrate error in the trial proceeding.

I . FACTS .

Dalton and Gaines admitted that they robbed Taco John's restaurant, and they

were charged with first-degree robbery. The case went to trial because they had used a

toy gun to commit the robbery; and they sought, at most, to be convicted of second-
degree robbery, which has a lesser penalty than first-degree robbery. First-degree

robbery requires for conviction the additional element of possession of a deadly weapon

or the use of a dangerous instrument.

Police Sergeant Mike Weaver testified at trial that Dalton immediately confessed

his involvement in the robbery. Dalton told Weaver that he put the "gun" to the

restaurant manager's head and demanded that she give him the money. Dalton also

admitted ordering two other restaurant employees into the walk-in cooler and blocking

the cooler door to keep them there. According to Dalton's statement to Weaver, the

manager retrieved the money as instructed and put it in a bag for Dalton, who then fled

the scene and dropped the "gun" by a nearby trailer . Sergeant Weaver also testified

that he interviewed Gaines, who admitted using a toy gun in the robbery and carrying

the money out of the store.

Sergeant Weaver also testified that he found the toy gun near the trailer where

Dalton had stated he threw it . Dalton's counsel asked Weaver on cross-examination

whether Dalton had appeared intoxicated to him . Weaver testified that he did not recall

thinking that Dalton was intoxicated.

After a lunch break following Weaver's testimony, the trial court announced that a

juror had reported overhearing the mother of one of the two defendants talking to a

prospective juror:who was not selected to hear the case-in the restroom and the

mother saying something to the effect of "that's what drugs will do to you ." The trial

court then conducted a hearing on the allegations.

Gaines's mother, Joyce McKinney, admitted to the trial court that she had spoken

to a prospective juror, "a friend of a friend," in the restroom during a break in the trial .
McKinney had asked the prospective juror whether she recognized her and whether she

realized that Gaines was McKinney's son . The prospective juror replied that she was

unaware of the relationship and stated, "I'm sorry." McKinney then told the prospective

juror "that's what drugs will do to you."

The trial court called the juror who had reported overhearing the conversation

and asked her about her recollections of the conversation in the restroom . This juror

reported seeing McKinney walk up to the prospective juror and hearing her ask if she

realized that one of the defendants was her son . The juror did not know which

defendant was McKinney's son. The juror then recalled that McKinney told the

prospective juror that "he" [presumably referring to McKinney's son] knew what he was

getting into and could not get out of it and that "that's what drugs will do to you ." The

juror then stated that overhearing this conversation was "not going to affect my thinking

process ." She was then asked whether any other jurors had been present in the

restroom when the conversation occurred.

The juror then identified a second juror who had been present in the restroom at

the same time . This second juror was then called in by the trial court. The second juror

recalled McKinney talking about one of the defendants being her son but stated she had

not heard anything else. The trial court then called the rest of the jurors into the

courtroom to ask if any of them had witnessed a conversation about the case in a

restroom during a break. None of the other jurors reported hearing anything about the

case in a restroom.

The trial court then instructed the two jurors who had overheard the conversation

in the restroom to "put out of your minds what you heard" and to "not consider it ." The
court further asked the two jurors if what they heard would make any difference to them.

They replied that it would not.

The trial court then called the attorneys to the bench for a conference . Gaines's

counsel requested a mistrial because of the prejudicial effects of a juror overhearing the

reference to drugs, never specifically stating that Dalton joined in her motion . The

Commonwealth argued against a mistrial. Dalton's counsel neither joined in the motion

for a mistrial nor objected to the court's handling of the dustup over the restroom

conversations. The trial court denied the motion for a mistrial, stating it was not even

sure that the reference to drug use would be prejudicial and the trial continued.

At the conclusion of the evidence, the jury was instructed on both first-degree

robbery and second-degree robbery. The jurors found both Dalton and Gaines guilty of

first-degree robbery, and they found Dalton guilty of being a second-degree persistent

felony offender. The jury recommended a sentence of twelve years' imprisonment for

Dalton for first-degree robbery, enhanced to twenty years' imprisonment for seconddegree persistent felony offender. The trial court then entered its judgment in

accordance with the jury's verdict.

II . ANALYSIS.

A . Dalton Failed to Preserve this Issue for Review.

As the Commonwealth correctly points out, Dalton failed to join in his codefendant's motion for a mistrial or to otherwise make an objection to the trial court's

handling of the problem of contact occurring between Gaines's mother and jurors in the

restroom . So Dalton has failed to preserve this issue for review.
We have held that a co-defendant's objection does not preserve an issue for

review for an appellant who fails to demonstrate on the record that he has joined in the

objection :

"[O]bjection of [an] attorney for one [co-defendant] will not be deemed to

be [an] objection for other [co-defendants] unless counsel has made it

clear that in making [an] objection it is made for both defendants." The

fact that co-defendant's counsel made an objection on the issue of which

Appellant seeks review is unavailing.'

We have further explained that:

[W]here two or more defendants are being tried together, it is incumbent

upon each party to timely make the court aware of his objection to any of

the proceedings . This may be done on behalf of one of the parties or

jointly on behalf of others, but the court must be informed of the position

taken by a party or he cannot later complain.

So Dalton has not properly preserved the issue for appellate review. And in light of the

fact that Dalton admitted his involvement in the robbery, we cannot find that his

conviction reflects a "manifest injustice" resulting from any error, meaning that he is not

entitled to relief for palpable error under Kentucky Rules of Criminal Procedure

(RCr) 10.26.

B. Even if Issue Were Preserved. Dalton Would

Not Be Entitled to Relief on Appeal.

In any event, we note that the trial court admonished the jurors who heard

conversations relating to the case in the restroom to put these conversations out of their

minds and not to consider them in their deliberations . This admonition is presumed to

cure the error, if any. 3 And in light of the fact that the issue at trial was whether the

Rice v. Commonwealth , 199 S.W.3d 732, 738 (Ky. 2006) (emphasis added) (quoting

Brown v. Commonwealth , 780 S .W.2d 627, 629 (Ky. 1989) (footnote omitted)) .

Id. (quoting Price v. Commonwealth , 474 S.W.2d 348, 350 (Ky. 1971)).

Johnson v. Commonwealth, 105 S.W .3d 430,441 (Ky. 2003).
robbery victims perceived the toy gun to be a real gun, the overheard comment

concerning drug use was not "devastating" to Dalton, nor was it "inflammatory" or

"highly prejudicial ." No valid exception to the general efficacy of the presumption of

cure applies here.

Since the admonition cured any potential error, the trial court did not err in

denying the motion for mistrial . Thus, Dalton is not entitled to relief on appeal.

III . CONCLUSION .

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

All sitting . Lambert, CJ; Cunningham, Minton, Noble, Schroder, and Scott, JJ .,

concur.

Id. ("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 andthere 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 andwas `inflammatory' or `highly prejudicial ."') (citations omitted) .
COUNSEL FOR APPELLANT:

Karen Maurer

Assistant Public Advocate

Department of Public Advocacy

100 Fair Oaks Lane, Suite 302

Frankfort, KY 40601

COUNSEL FOR APPELLEE :

Gregory D . Stumbo

Attorney General of Kentucky

Todd D. Ferguson

Assistant Attorney General

Office of Attorney General

Criminal Appellate Division

1024 Capital Center Drive

Frankfort, KY 40601-8204