Price v. Com.

• Decision Date: 22 November 2000
• Docket Number: No. 1998-SC-0760-MR.,1998-SC-0760-MR.
• Citation: 31 S.W.3d 885
• Parties: Michael Anthony PRICE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

31 S.W.3d 885

Michael Anthony PRICE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1998-SC-0760-MR.

Supreme Court of Kentucky.

November 22, 2000.

COPYRIGHT MATERIAL OMITTED

Steven R. Romines, Romines, Weis & Young, Louisville, for appellant.

A.B. Chandler, III, Attorney General, Frankfort, Courtney J. Hightower, Assistant Attorney General Office of Attorney General, Criminal Appellate Division, Frankfort, for appellee.

COOPER, Justice.

On the night of October 31, 1996, Appellant Michael Anthony Price shot and killed his wife, Carol Price, then sexually assaulted his eleven-year-old stepdaughter, L.B. A Hart County Grand Jury subsequently returned this indictment, 96-CR-00056, charging Appellant with murder and rape in the first degree. By a separate indictment, 96-CR-00057, Appellant was charged with seven additional counts of rape in the first degree allegedly perpetrated against L.B.

At the trial of this indictment, Appellant claimed that he shot his wife by accident; and though he did sexually abuse L.B., he did not have sexual intercourse with her, thus did not commit the offense of rape in the first degree. KRS 510.040. Rejecting his version of the shooting, but accepting his version of the sexual assault, the jury found Appellant guilty of the murder of Carol Price and of the attempted first-degree rape of L.B. He was sentenced to life in prison for murder and to twenty years for attempted first-degree rape, each sentence to run concurrently with the other. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), and asserts five claims of error: (1) the rape and murder charges should have been severed for purposes of trial; (2) his tape recorded confession should have been suppressed; (3) his assertion of his constitutional right to counsel should have been deleted from his confession; (4) L.B. should have been declared incompetent to testify; and (5) he should not have been excluded from the courtroom during I,.B.'s testimony.

I. SEVERANCE.

Criminal Rule 6.18 provides:

Two (2) or more offenses may be charged in the same complaint or two (2) or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment or information in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.

Criminal Rule 9.16 provides:

If it appears that a defendant or the Commonwealth is or will be prejudiced by a ... joinder for trial, the court shall order separate trials of counts ... or provide whatever other relief justice requires ....

The trial judge denied Appellant's motion for severance, finding that the rape and murder charges were "so closely intertwined that they cannot be severed." Appellant complains that the denial of his motion to sever allowed the jury to consider evidence of his prior sexual assaults of L.B. while deliberating his guilt or innocence of the unrelated murder of his wife.

Although Appellant did not deny sexually assaulting L.B. on the night of October 31, 1996, he did deny any intent to have sexual intercourse with her. Such intent is the element which elevates sexual abuse in the first degree,¹ a Class D felony, to criminal attempt to commit first-degree rape,² a Class B felony.³ Thus, the evidence of Appellant's prior sexual assaults of L.B. was admissible to prove intent, as well as motive and plan with respect to the charge of first-degree rape.⁴ The admission of this evidence may well have prejudiced Appellant's ability to defend against the murder charge; but the real issue is whether he was unduly prejudiced, i.e., whether the prejudice to him was unnecessary and unreasonable. Romans v. Commonwealth, Ky., 547 S.W.2d 128, 131 (1977). Upon reviewing the evidence and considering the parties' respective theories concerning the murder charge we conclude that Appellant's prior and subsequent sexual assaults of L.B. were, indeed, inextricably connected to the death of Carol Price.

L.B. was born on November 30, 1984. Her mother married Appellant in 1990. Soon thereafter, Appellant developed what he, himself, characterized as an uncontrollable sexual obsession with L.B. He admitted sexually assaulting her on four different occasions, the first occurring in September 1991 and the last on October 21, 1996; however, he denied ever having sexual intercourse with her. (L.B. testified that the sexual assaults occurred almost weekly over a five-year period and frequently included sexual intercourse.) After the October 21, 1996 incident, L.B. informed her mother of the sexual assaults and, upon being confronted, Appellant admitted his guilt.. The three proceeded together to the local Department for Social Services (DSS) office to "get help." One of the DSS social workers thought Appellant was suicidal, so arrangements were made to admit him to the Bowling Green Medical Center for inpatient treatment of depression.

Appellant was discharged from the hospital on October 28, 1996, at which time he learned that the DSS workers had reported his sexual offenses to law enforcement authorities. He then learned that he could not return to his home and family; that if his wife allowed him to return, she would lose custody of L.B.; and that if arrested, he would be terminated from his employment. On October 29th, Kentucky State Police Detective Steve Fitts contacted Appellant and requested that he come to his office for an interview. Appellant agreed to meet with Fitts at 1:00 p.m. on October 30th. However, instead of keeping that appointment, Appellant proceeded by bicycle to a shed located behind his residence. He took with him three handguns, a Colt .45, a Ruger .22, and a Taurus 9-mm.

Appellant hid in the shed from about noon on October 30th until about 10:30 p.m. on October 31st, observing the activities of his wife and stepdaughter and occasionally sneaking into the house for food. He wrote a suicide note in which he blamed his predicament on the social workers who had reported his crimes to the police. At approximately 10:30 p.m. on October 31st, Appellant, armed with the Colt .45 and the Ruger .22, entered the living room of his home. He testified that he intended to commit suicide (though he never explained why he needed two firearms to kill only himself). Carol Price was asleep on the sofa. Appellant testified that he knelt down beside her, placed the Ruger .22 to his temple, and cocked it; whereupon Carol suddenly awoke and grabbed his arm, which caused the weapon to fire and accidentally discharge a bullet into her left temple. Appellant then entered the adjacent bedroom where L.B. was sleeping. Appellant awakened L.B., told her that he had tied up her mother in the living room, and that he would kill her (Carol) if L.B. did not have sex with him. He forced L.B. to the floor, removed her clothing and his, then physically assaulted and sexually abused her. He claims that he then "woke up" and allowed L.B. to leave the house and go to a nearby residence to call the police.

Thus, Appellant's theory of the case was that he was so depressed over the consequences of his prior sexual abuse of L.B. that he was attempting to kill himself when he accidentally shot and killed his wife. The Commonwealth's theory was that Appellant was so sexually obsessed with L.B. that he killed his wife intentionally to get rid of her. Either way, the evidence of Appellant's prior and subsequent sexual abuse of L.B. was so inextricably connected with the issues concerning his motive and intent to kill his wife that the evidence would have been admissible even in a separate trial for murder. KRE 404(b)(1) and (2). That is a significant factor in determining whether severance is required. Spencer v. Commonwealth, Ky., 554 S.W.2d 355 (1977); cf. Rearick v. Commonwealth, Ky., 858 S.W.2d 185 (1993). Since the same evidence would have been admissible at separate trials, Appellant was not unduly prejudiced by the denial of his motion to sever the rape and murder charges. Schambon v. Commonwealth, Ky., 821 S.W.2d 804, 808-09 (1991).

II. CONFESSION: VOLUNTARINESS.

When the police arrived at his residence, Appellant placed the barrel of the Colt .45 against his head as if intending to take his own life. He did not pull the trigger. He was then placed under arrest, handcuffed by an officer of the Horse Cave Police Department, and transported to the Hart County Sheriffs office where he was interrogated by Detective Fitts and Detective Jeff Scruggs of the Kentucky State Police. After being read his Miranda rights,Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Appellant admitted that he shot his wife (but omitted to claim it was by accident). He also admitted that he sexually assaulted L.B. and that he had been sexually abusing her for five years, but denied having sexual intercourse with her. He then invoked his right to counsel, whereupon the interrogation ceased. The entire interview was recorded on an audio tape. The first five minutes of the tape consists only of the futile efforts of the detectives to remove the handcuffs from Appellant's wrists and Appellant's occasional utterance of expressions of pain as they were doing so.

Appellant asserts that his confession should have been suppressed because the "totality of [the] circumstances" indicates that it was involuntary. Mills v. Commonwealth, Ky., 996 S.W.2d 473, 481 (1999), cert. denied, ____ U.S. ____, 120 S.Ct. 1182, 145 L.Ed.2d 1088 (2000). As factual support for this assertion, he cites his suicidal mental state and the physical pain caused by the handcuffs. He makes no claim of any abuse, threats or intimidation perpetrated against him by the detectives. The trial judge held an in-chambers hearing at which Appellant was present but did not testify. After listening to the tape recording of the confession, the trial judge found that it had...