ON APPEAL FROM WHITLEY CIRCUIT COURT. HONORABLE DANIEL L. BALLOU, JUDGE. NO. 13-CR-00056.
COUNSEL FOR APPELLANT: Emily Holt Rhorer, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky; David Wayne Barr, Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE SCOTT. All sitting. All concur.
A Whitley Circuit Court jury found Appellant, Anthony Edward Spicer, guilty of criminal attempt to commit murder and first-degree criminal assault. Appellant was sentenced to twenty years' imprisonment on the attempted murder charge and twelve years' imprisonment on the assault charge, to be served consecutively. He now appeals as a matter of right, Ky. Const. § 110(2)(b), asserting (1) his convictions for both attempted murder and assault violate our statutory restraints on double jeopardy, (2) a news reporter's interview with Appellant was improperly shown to the jury, and (3) the trial court's order imposing court costs and attorney's fees should be vacated. For the following reasons, we affirm in part and reverse in part.
Appellant's girlfriend of five years, Ashley Warren, ended the relationship due to the couple's fighting and Appellant's drug use. Appellant moved out of Warren's home in October 2012, and began staying at Vincent Lawson's house. Appellant continued to see the couple's four year-old daughter on a regular basis, and would often stay with the child at Warren's home while she was at work. After work one day in February 2013, Warren agreed to give Appellant a ride to Lawson's. She attempted to find someone to ride with them, as she did not wish to be alone with Appellant, but she could not find anyone who was available.
According to Warren's testimony, on the ride to Lawson's, Appellant grew agitated with Warren, and tried unsuccessfully to get her phone from her. He wanted to know what she was doing, and accused her of being with someone else. When they arrived at Lawson's house, Appellant refused to get out of the car. He was crying, telling Warren he loved her, and saying that he did not want to be without her. Warren told Appellant that they were not good for one another. Warren testified that when Appellant realized she was not saying " I love you" back to him, he got angry.
Warren was afraid because during the ride to Lawson's she had seen Appellant fumbling with a knife he was holding down low between the passenger seat and the door. She asked him why he had the knife, but he did not respond. She asked him if he was going to kill her and if he was really going to take her away from her children. She did not exactly recall his response to this, but it was something about her " being dramatic."
Warren testified that, at that point, she knew something bad was going to happen. She jumped out of the car and began running toward Lawson's neighbor's house. Appellant followed and tackled her in the front yard. He got on top of her with his knee on her throat and started stabbing her with the knife. Warren screamed for help and attempted to fight back. She testified that " at one point" Appellant tried to drag her into the woods
so no one would hear her. Appellant stabbed Warren a total of sixteen times--on her chest, breast, back, side, hip, buttocks, and both sides of her neck. She also sustained defensive wounds on her hands and arms from trying to fight him off. During questioning at trial, the prosecution asked Warren if Appellant sad anything to her while he was attacking her. She testified that " the last time he stabbed me was in my neck, and he told me that 'if I can't have you, then nobody will have you.' Those were the last words he said to me."
Lawson's neighbor, Betty Bundy, heard Warren's screams for help and ran outside to her front yard. There, she saw Appellant stabbing Warren. She got Appellant's attention and he stopped his attack. Bundy then went inside to get her cell phone. When she came back out, Appellant was still next to Warren, but left after Bundy grabbed at his sweatshirt. Bundy called 911 to report the incident. She was frenzied, trying to tend to Warren, when the police arrived.
Once police arrived, Warren was given medical attention and the police commenced their search for Appellant. Appellant called Lawson's cell phone, and Lawson brought the phone to the police. Appellant refused to turn himself in, saying he wanted to kill himself. Police used phone tracking and K-9 dogs to locate Appellant, who was ultimately found in Lawson's home, under his bed. He had to be taken to the hospital for dog bites and other injuries. On the way to the hospital, he kept repeating that he was sorry. He made similar apologies on camera to the news reporter that interviewed him after his arrest.
The jury was instructed on both criminal assault in the first degree and criminal attempt to commit murder. Appellant was convicted on both charges and sentenced as noted above. Appellant stipulated to the estimated restitution amount of $188,000 at sentencing. The court also imposed $130.00 in court costs, a public defender fee in the amount of $450.00, and a $20.00 arrest fee. This appeal followed.
Appellant's chief argument on appeal is that his convictions for both criminal attempt to commit murder and first-degree assault violate our statutory restraints on double jeopardy. He also argues that admission of his video interview with the news reporter without a prior evidentiary hearing was improper. Finally, he argues that the trial court's order imposing court costs and attorney's fees should be vacated. We will address each argument in turn.
A. Double Jeopardy
Double jeopardy determinations are subject to KRS 505.020. We recently discussed KRS 505.020 in Kiper v. Commonwealth, 399 S.W.3d 736, 741-42 (Ky. 2012), noting:
Section 13 of the Kentucky Constitution ensures no person shall 'be twice put in jeopardy of his life or limb' for the same offense. In addition to prohibiting retrial for the same crime following a conviction or retrial following an acquittal, the 'final component of double jeopardy--protection against cumulative punishments--is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature.' Therefore, a defendant may not be convicted of multiple crimes when there was but ...