Michael Dale St. Clair v. Commonwealth of Kentucky

MODIFIED : SEPTEMBER 23, 2010
RENDERED : APRIL 22, 2010
TO BE PUBLISHED

uprtme (~Vurf of 'Ptrufurh
2005-SC-000828-MR

MICHAEL DALE ST. CLAIR

ON APPEAL FROM BULLITT CIRCUIT COURT
V. HONORABLE THOMAS WALLER, JUDGE
NO. 92-CR-00010-002

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

REVERSING AND REMANDING

Michael St . Clair was convicted of capital murder and sentenced to

death . On appeal, this Court affirmed his capital murder conviction but

reversed his death sentence and remanded the case to the trial court for a new

capital sentencing trial.' Following the new sentencing trial, St. Clair was

again sentenced to death . This appeal followed .

We now must reverse the death sentence imposed following the new

sentencing trial because the trial court failed to comply with this Court's

directive to follow the statutory language in instructing the jury on the

applicable aggravator required to support a death sentence. The trial court

instead fashioned an erroneous jury instruction that deprived St. Clair of his

' St. Clair v. Commonwealth, 140 S.W.3d 510, 572 (Ky. 2004) . We will occasionally refer
to our opinion on St . Clair's first appeal of his capital murder conviction and death
sentence as "St. Clair 1" for the sake of clarity .
right to a unanimous verdict. Although we reverse solely on this issue, we also

address other issues raised in this appeal that are likely to recur upon remand .

1 . FACTS .

The facts underlying St. Clair's murder conviction appear in detail in our

opinion on his first appeal . Briefly summarized, the facts are that St. Clair and

a co-defendant, Dennis Reese, were indicted for the 1991 murder of Frank

Brady in Bullitt County, Kentucky .

Brady was shot and killed just a few weeks after St. Clair and Reese

escaped from an Oklahoma jail where St. Clair was awaiting sentencing after a

jury there convicted him of two murders . During the weeks between the escape

and Brady's murder, St. Clair and Reese travelled widely across the

southwestern United States on a crime spree that included the kidnapping and

murder of Timothy Keeling . Eventually, they reached Hardin County,

Kentucky, where they kidnapped Frank Brady and took his pickup truck.

Reese and St. Clair set fire to Keeling's truck to destroy incriminating evidence

and took Brady into a secluded area of Bullitt County, where he was shot

execution- style . 2 Soon after this murder, a Kentucky state trooper stopped

Reese and St. Clair in Brady's vehicle in Hardin County; and St . Clair fired

shots at the trooper's vehicle . 3 Reese and St . Clair fled the scene and soon

parted ways.

2 Id. at 524.
St. Clair was tried in Hardin County for various offenses, including attempted
murder, arson, and capital kidnapping . He was found guilty and sentenced to
death by the Hardin Circuit Court. We reversed and remanded due to various
errors in St. Clair v. Commonwealth, 174 S .W .3d 474 (Ky. 2005) (Hardin County
case) .
 After St. Clair and Reese were jointly indicted in Bullitt County for

Brady's murder, Reese pled guilty and agreed to testify against St. Clair.

St. Clair pled not guilty, and a trial ensued in which St. Clair testified and

claimed an alibi defense . The primary factual issue at trial was whether Brady

had been killed by St. Clair, Reese, or an unidentified accomplice . The jury

convicted St. Clair of the murder, and the trial court sentenced St. Clair to

death in accordance with the jury's recommendation . 4 'Although we affirmed

the conviction, we remanded for a new capital sentencing phase trial .

II . WE MUST REVERSE BECAUSE TRIAL COURT ERRED
IN NOT CONFORMING WITH STATUTORY LANGUAGE
IN INSTRUCTING JURY ON AGGRAVATOR.

This case must be reversed and sent back again for re-sentencing

because the trial court failed to comply with this Court's clear directive to

instruct the jury on the germane aggravating circumstance in conformance

with the statutory language describing this aggravating circumstance . In

St. Clair I, we reversed because the trial court failed to instruct the jury on the

availability of life without parole (LWOP) as a sentencing option . St. Clair I also

addressed other issues likely to recur on remand, including proper jury

instructions concerning the statutory aggravating circumstance at issue here,

which is described in Kentucky Revised Statutes (KRS) 532 .025(2)(x)(1) : "[t]he

offense of murder or kidnapping was committed by a person with a prior record

4 St. Clair I, 140 S .W.3d at 524-25 .
of conviction for a capital offense . . . ."5 Specifically, we directed the trial court

to follow this statutory language in instructing the jury on this aggravator. 6

In the first appeal, St. Clair argued, "that the trial court's capital

sentencing phase jury instructions erroneously reformulated the

KRS 532 .025(2)(a)(1) aggravating circumstance." 7 The trial court's instruction

on aggravating circumstances in the penalty phase of the first trial stated as

follows:

In fixing a sentence for the Defendant for the offense of
murder, you shall consider the following aggravating sentence
which you may believe from the evidence beyond a reasonable
doubt to be true :

1 . The Defendant has a prior record of conviction for
murder, a capital offense.

And this Court concluded, "[g]iven our construction of the KRS 532 .025(2)(a)(1)

aggravating circumstance, we agree with [St . Clair's] contention that the trial

court's articulation of that aggravating circumstance changed its meaning." 8 In

the opinion, we explained that the statutory language required that the

defendant actually have the prior record of conviction for a capital offense at

the time the instant offense of murder (or kidnapping) was committed: "We

find KRS 532 .025(2)(a)(1) susceptible to but one natural and reasonable

construction : the aggravating circumstance is implicated only when the

defendant has already been convicted of a capital offense prior to the

5 We recognize that KRS 532 .025(2)(a)(1) also recognizes another aggravator for cases
where "the offense of murder was committed by a person who has a substantial
history of serious assaultive criminal convictions[,]" which is not at issue before us
now.
St. Clair I, 140 S.W.3d at 571 .
7 Id. at 563 .
8 Id. at 571 .
 commission of the present capital offense ." 9 This Court directed that.: "Upon

remand, the trial court should instruct the jury in accordance with the

statutory language, i.e. `the murder was committed by a person with a prior

record of conviction of a capital offense . "O Now, despite our directive to follow

the statutory language of KRS 532 .025(2)(a)(1), we again face an improper jury

instruction on the same aggravating circumstance .

This time, the trial court's instruction asked the jury to determine

whether the following aggravator was established: "[t]he murder was

committed by the Defendant and the Defendant has a prior record of conviction

of murder, a capital offense." As St. Clair argues, this instruction did not

require the jury to find that St. Clair had a capital conviction at the time the

Brady murder was committed . This issue was properly preserved in the second

sentencing trial by St . Clair's tendering a jury instruction that tracked precisely

the statutory language of KRS 532 .025(2)(a)(1) :

In fixing a sentence for the Defendant for the offense of
Murder, you shall consider the following aggravating circumstance
which you may believe from the evidence beyond a reasonable
doubt to be true:
(1) The offense of murder was committed by a person with
a prior record of conviction for a capital offense.

This Court explained in the first appeal that the statutory language

required that the defendant actually have the prior record of conviction for a

capital offense at the time the instant offense of murder (or kidnapping) was

Id. at 568 .
10 Id. at 571 .
committed . I' And we agree with St. Clair that the trial court's instruction at

issue in this appeal could erroneously allow a jury to find this aggravating

factor even if the defendant did not have a prior record of conviction of a capital

offense at the time the instant offense was committed but, simply, had accrued

such a prior record of conviction by the time of trial . Because the jury was

presented with evidence of many convictions for capital offenses, some of which

pre-dated the commission of the Brady murder and some of which did not, one

cannot determine whether the jury based its finding of this aggravator on a

qualifying or a non-qualifying conviction . So the trial court's instruction not

only failed to follow this Court's explicit directive following the first appeal, but

the instruction, as given, deprived St. Clair of his right to a unanimous verdict.

And "the denial of a unanimous verdict - where the error is properly

preserved - is not subject to a harmless error analysis ."12 .

As Justice Scott points out in his dissent on this issue, at first glance, it

may appear that we approved a similarly worded instruction in our opinion

reversing St. Clair's Hardin County capital kidnapping conviction, despite our

disapproval of the instruction given by the trial court in this appeal and the

previous appeal of the Bullitt County murder conviction . 13 In the Hardin

County case, we authorized the trial court to instruct the jury on the

Id. at 568 ("We find KRS 532 .025(2)(a)(1) susceptible to but one natural and
reasonable construction : the aggravating circumstance is implicAed only when the
defendant has already been convicted of a capital offense prior to the commission of
the present capital offense .") .
.
12 Bumett v. Commonwealth, 31 S .W.3d 878, 883 (Ky. 2000).
13 See Hardin County case, 174 S .W.3d at 483 ("The second part of instruction number
3 was correct. The trial court properly concluded that St . Clair had a prior record
of conviction for murder.") . The second part of instruction number 3 stated : "The
Defendant has a prior record of conviction for Murder, a capital offense ." Id. at 481 .
6
aggravator at issue; and, despite any imprecise language, we did not intend to

retreat from the direction to follow statutory language in fashioning an

instruction on this aggravator, which we clearly made in our opinion on the

original appeal in St . Clair's Bullitt County murder case. We note that a

possible inconsistency was not raised by the parties in the case now before us.

Any apparent inconsistency between our resolutions of jury instruction

issues in the Hardin County case versus the Bullitt County case must be

resolved in favor of enforcing the directions we gave to the Bullitt Circuit Court

upon remand in the original appeal in this case, however. Our 2005 opinion in

the Hardin County kidnapping appeal was rendered after our 2004 opinion in

the original appeal of the present case and explicitly took note of our resolution

of this issue. 14 But our opinion in the Hardin County appeal did not overrule,

limit, or modify in any way our opinion rendered in the original appeal in this

case . So it is obvious that despite our unfortunately imprecise language, we

did not intend for there to be any discrepancy between those opinions .

Instead, we merely intended to inform the Hardin Circuit Court upon remand

that it could properly instruct the jury to consider whether it found the

aggravating circumstance identified in KRS 532 .025(2)(a)(1) ("The offense of

murder or kidnapping was committed by a person with a prior record of

conviction for a capital offense") . The propriety of offering such an instruction

on this particular aggravator was supported by evidence of qualifying

convictions of capital offenses, namely the 1991 murder convictions.

14 Id. at 483-84, citing St. Clair 1, 140 S .W.3d at 568-71 (noting holdings in original
appeal that aggravator at issue was not unconstitutionally vague, that directed
verdict motion on this aggravator was properly denied, and that a jury's verdict of
guilt was sufficient "prior record of conviction for a capital offense .") .
7
 In stating that "[a]s a matter of law, St. Clair had two prior capital

convictions for the 1991 murders before he committed the kidnapping[, 1" 15 we

perhaps inartfully tried to state that any finding of the aggravator at issue

could be based upon evidence of the 1991 murder convictions (and perhaps

implicitly suggested that such a finding could not be based upon evidence of

the 1994 murder convictions) . Obviously, while reversing St. Clair's Hardin

County capital kidnapping conviction on other grounds, we tried briefly to offer

some guidance on penalty phase jury instructions in our opinion in that case,

covering three different aggravators in just a few pages and not explicitly

discussing how the trial court should deal with the 1994 murder convictions in

its penalty phase instructions . 16

To the extent that the guidance concerning penalty phase instructions

provided to the Hardin Circuit Court in the capital kidnapping case might seem

inconsistent with the more specific analysis and directions given to the Bullitt

Circuit Court in our opinion on the first appeal of this case, obviously, the

more specific analysis and directions provided given to the same trial court (the

Bullitt Circuit Court) must prevail. In other words, the Bullitt Circuit Court

was not excused from following our previous clear directions to it by any failure

of ours to provide similarly specific and explicit directions on remand to a

different trial court in a different case involving the same defendant.

Although the members of this Court may well conclude from our own

review of the evidence that the statutory aggravator is adequately proven, the

United States Supreme Court has made clear that such a judicial finding of an

is Hardin County case, 174 S .W.3d at 484 .
16 See id. at 481-84 .
aggravator does not satisfy Constitutional requirements . Rather, such a

finding must be made by a properly instructed jury to satisfy the Sixth

Amendment. 17 Thus, with all due respect to our dissenting colleagues, we

cannot affirm a death sentence based upon a finding of harmless error where

the jury has not properly been instructed .

In addition to the statutory definition of the aggravator at issue,

St . Clair's tendered instruction in the second sentencing trial also instructed

the jury that: "You are further instructed that the Defendant's convictions in

Choctaw County, Oklahoma[,] in 1994 (CRF-90=145) do not meet the statutory

criteria for consideration as an aggravating circumstance ." We reject St . Clair's

proposal for this additional language .

The better course would be to identify specifically the one or more

convictions that could qualify as a "prior record of conviction for a capital

offense" to avoid any possibility that the jury's verdict is not unanimous . For

example, a proper instruction could read:

In fixing a sentence for the Defendant for the offense of
Murder, you shall consider the following aggravating circumstance,
which you may believe from the evidence beyond a reasonable
doubt to be true

The offense of murder was committed by a person with
a prior record of conviction for a capital offense: the
September 1991 Murray County, Oklahoma,

17 Ring v. Arizona, 536 U.S . 584, 609 (2002) (holding that Sixth Amendment requires
that jury, not sentencing judge, must find aggravating factors that would subject
defendant to imposition of death penalty because such aggravating factors "operate
as `the functional equivalent of an element of a greater offense' . . . .") .
9
 conviction for the first-degree murder of William Henry
Kelsey, Jr. 18

By specifically identifying qualifying convictions that can be used as

aggravators, the trial court ensures that the jury may not rely on convictions

that could not qualify. In the present case, for instance, the 1994 Choctaw

County, Oklahoma, convictions for the first-degree murders of Mary Louise

Smith and Edward Jefferson Large would not qualify because those convictions

occurred after Brady's murder . In the analogous situation of persistent felony

offender jury instructions, specific felony convictions are identified to ensure

that the jury has relied on a felony conviction qualified for PFO considerations .

For example, 1 COOPER, KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL) § 12 .29

recommends that part of a second-degree persistent felony offender jury

instruction would instruct a jury to find whether:

A. That prior to (date of present offense), the Defendant
was convicted of (ID felony) by final judgment1l 9 1 of the
(ID court) on (date-2 [ofjudgment]) .

To avoid any possibility that the jury has relied upon a non-qualifying

conviction in finding the aggravator at issue here, we hold that in this case and

in any similar future cases, the jury instruction must require the jury

is In the alternative, "Ronnie St. Clair" could be substituted for "William Henry Kelsey,
Jr." St. Clair was convicted for both the first-degree murder of William Henry
Kelsey, Jr., and the first-degree murder of Ronnie St. Clair by a Murray County,
Oklahoma, jury verdict in September 1991, before the murder of Frank Brady in
Kentucky in October 1991 . In St. Clair I, we held that a jury verdict of guilt was
enough to establish a conviction for purposes of KRS 532 .025(2)(a)(1) . 140 S .W.3d
at 570. The judgment of the trial court sentencing St. Clair for the murders of
Kelsey and Ronnie St . Clair was not entered until November 1991 - after the Brady
murder had already occurred in Kentucky. Id.
19 We held in St. Clair I that a final judgment was not required to satisfy the

"conviction" requirement of the aggravator at issue here, 140 S .W .3d at 570 ; we
decline to hold here whether such a "final judgment" requirement is proper in the
context of PFO proceedings or express any opinion on the propriety of the PFO form
instructions quoted here .
10
specifically to identify the conviction that the jury uses to find this particular

aggravator: "[t]he offense of murder or kidnapping was committed by a person

with a prior record of conviction for a capital offense . . . ."20

Because the trial court's instruction on the particular statutory

aggravator at issue here did not follow this Court's specific directive to conform

to the statutory language and did not ensure that a finding of the aggravator

was unanimously made by the jury based on a qualifying prior conviction for a

capital offense, we must vacate St. Clair's death sentence and remand for re-

sentencing .

III . WE ADDRESS OTHER ISSUES LIKELY TO RECUR UPON REMAND .

A. Trial Court was not Required to Give Instruction
on Non-Statutory Mitigzation Factor of Brain Damage .

St. Clair contends the trial court committed reversible error in not

instructing the jury that it must consider the non-statutory mitigating factor of

his alleged brain damage. To that end, he tendered an instruction that

required the jury to consider brain damage as a factor in mitigation . He

acknowledges that the trial court's mitigation instruction did ask the jury to

consider whether the statutory mitigation factor of mental illness or retardation

or intoxication was shown even though he contends there was no proof on

these factors. But he argues that the trial court's instruction may have led

jurors to believe they were prohibited from considering his brain damage as a

20 KRS 532 .025(2)(a)(1) .
mitigating factor. Having reviewed the trial court's mitigation instruction,21

however, this Court rejects the argument that the trial court's instruction

prohibited the jury from considering St. Clair's claimed brain damage . The

instruction explicitly allowed the jury to consider "such mitigating or

extenuating facts and circumstances as have been presented to you in the

evidence as you believe to be true ." Although brain damage not resulting in

mental illness or retardation was not explicitly mentioned in the instruction,22

this Court, nonetheless, disagrees with St . Clair's argument that this

instruction prohibited the jury from considering such evidence as mitigation .

In fact, the instruction would allow the jury to consider a broad range of extra-

statutory factors as mitigation .23 Precedent states that "[t]here was no need to

21 The trial court's instruction on "Mitigating Circumstances" stated as follows:
In fixing a sentence for the Defendant for the offense of MURDER, you shall
consider such mitigating or extenuating facts and circumstances as have
been presented to you in the evidence as you believe to be true. You shall
consider those aspects of the Defendant's character, and those facts and
circumstances of the particular offense of which he has been found guilty,
which you believe from the evidence to be true.
You shall also consider whether:
At the time of the capital offense, the capacity of the Defendant to appreciate
the criminality of his conduct or to conform his conduct to the requirements
of law was impaired as a result of mental illness or retardation or
intoxication even though the impairment of the capacity of the Defendant to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of law is insufficient to constitute a defense to the crime .
22 Some authority seems to recognize that brain damage not resulting in mental
retardation or legal insanity may be considered as a mitigating factor but does not
demand that this factor be given much weight. See, e.g., Robinson v. State,
761 So .2d 269, 277 (Fla. 1999) (upholding death sentence and finding no abuse of
discretion in trial court's considering, but giving little weight to, expert evidence
that defendant had suffered brain damage because of lack of evidence that brain
damage led to crime) .
23 In closing argument, defense counsel urged the jury to take into consideration
evidence of St. Clair's brain damage .
12
instruct on any specific nonstatutory mitigators" where the trial court gave a

similarly broad instruction on mitigation . 24

St. Clair's tendered instruction would have directed the jury to consider

evidence of his brain damage as a mitigating factor .25 But this proposed

language overstepped the bounds of proper jury instructions because the jury

was not required to accept evidence of brain damage as mitigating . The jury

needed to resolve (1) whether it accepted this evidence as true and, if so, then

(2) whether the type of brain damage proven actually reduced St. Clair's

culpability or indicated that he should not receive the death penalty. In sum,

the lack of explicit mention of this particular non-statutory mitigating factor in

the trial court's mitigation instruction was not error.

We decline to address St. Clair's remaining sentencing instruction issues

because they were addressed by St. Clair I, resolved by precedent, or are

unlikely to recur upon retrial.

B. Faretta Hearing Considerations .

24 Tamme v. Commonwealth, 973 S .W.2d 13, 37 (Ky. 1998) ("The instruction on
mitigating circumstances included the catch-all provisions, `any other circumstance
or circumstances arising from the evidence which you, the jury, deem to have
mitigating value,' and `those aspects of the defendants' character and the facts and
circumstances of the offense about which he has offered evidence in mitigation."') .
25 St. Clair's tendered instruction on mitigating circumstances stated, in pertinent part:
"You are instructed to consider as a mitigating circumstance the evidence you
heard concerning Michael St . Clair's brain damage. Kentucky law requires the
consideration of a mitigating circumstance in situations where the capacity of the
defendant to appreciate the criminality of his conduct was impaired as a result of
mental illness or retardation or intoxication even though the impairment of the
capacity of the defendant to appreciate the criminality of his conduct or to conform
the conduct to the requirements of the law is insufficient to constitute a defense to
the crime ."
13
 Because we reverse on other grounds, we decline to resolve whether, as

St . Clair argues, the trial court erred by failing to conduct a Faretta26 hearing

while at the same time effectively allowing St. Clair to act as co-counsel . We

gather from the record that there was confusion at times concerning the role

that St. Clair wished for himself and his attorneys to play. At one point, he

asked the trial court to designate him as "lead counsel" and referred to himself

as "pro se lead counsel" in pleadings submitted to the trial court. He later

withdrew the motion to be designated lead counsel . But despite his stating to

the trial court that he wished to continue to be represented at trial by

appointed counsel, St. Clair continued to file what he termed "pro se" motions .

And St. Clair was even allowed to argue some "pro se" motions to the trial

court, although he never questioned witnesses or made arguments to the jury.

In response to the Commonwealth's inquiries about whether St . Clair

might wish to proceed pro se or with hybrid representation, St. Clair stated

that he did not want to represent himself and that he wished to remain

represented by counsel. But he apparently never directly stated whether or not

he desired hybrid representation, which would entail his making a limited

waiver of counsel and accepting representation only as to certain matters in the

26 Where a criminal defendant desires to represent himself at trial rather than be
represented by an attorney, the trial court must hold a hearing to determine if his
waiver of his right to counsel is knowing, voluntary, and intelligent. Faretta v.
California, 422 U.S . 806, 835 (1975). This Court held in Hill v. Commonwealth, 125
S .W.3d 221, 226-27 (Ky. 2004), that where a criminal defendant desires to make a
limited or a full waiver of counsel, the trial court must hold a Faretta hearing to
determine whether the waiver of right to counsel is made knowingly, voluntarily,
and intelligently .
14
case .2 7 Whether St. Clair chooses to elect hybrid representation can be more

clearly ascertained by the trial court upon remand .

In any event, upon remand, we would remind the trial court and the

parties that should St. Clair make an unequivocal request to proceed pro se or

with hybrid representation - in other words, to make either a full or a limited

waiver of his right to counsel - under our precedent, a Faretta hearing is

required .

C . Generally, Defendant's Guilt-Phase Testimony
From First Trial Not Per Se Inadmissible in Re-sentencinv, Trial.

We decline to address whether the reading of transcripts of St. Clair's

trial testimony from the original trial at the re-sentencing trial was forbidden by

order or agreement because this issue is not a relevant issue on remand . But

because the general admissibility of St. Clair's guilt-phase testimony from the

first trial is likely to be an issue again, we will address the general question of

whether a defendant's guilt-phase trial testimony may be admissible during a

re-sentencing trial .

We held that a defendant's testimony from an earlier trial is admissible

upon retrial in Sherley v. Commonwealth.28 As St. Clair points out, Sherley

involved a retrial of the guilt phase ; whereas, this case was sent back for a

27 Kentucky's courts, unlike some other courts, recognize that a criminal defendant
may make a limited waiver of counsel and accept representation only on certain
matters. Wake v. Barker, 514 S .W.2d 692 (Ky. 1974) . This limited waiver of
counsel is sometimes known as "hybrid representation ." This Court held that
where a criminal defendant desires to make a limited waiver of counsel, a "Faretta"
hearing must be conducted to determine whether this limited waiver is made
knowingly, voluntarily, and intelligently . Hill, 125 S .W .3d at 226-27 .
28 889 S .W.2d 794, 798 (Ky. 1994) .
15
penalty phase trial. Regardless, St. Clair waived his Fifth .Amendment rights

against self-incrimination by testifying at the first trial.

Although we have not specifically addressed the admissibility of a

defendant's testimony given during the guilt phase of the first trial when

offered in re-sentencing procedures, we did set some parameters on the

presentation of proof during a re-sentencing proceeding in Boone v.

Commonwealth.29 We acknowledged in Boone, "common sense dictates that

the second jury must be told something about what transpired during the

earlier guilt phase" of the first trial when a case is remanded solely for the

purposes of re-sentencing.30 So such matters as the charges in the indictment,

the trial court's instructions to the jury, and the jury's verdict in the first trial

should be admitted .

For practical considerations, this Court has refrained from requiring "a

complete reading to the jury of a verbatim transcript or the projection of a [full]

videotaped record of the guilt phase" and has suggested that, where possible,

the parties agree to present summaries of some portions of the original trial

testimony.31 Nonetheless, while encouraging summaries for the sake of

expediting re-sentencing trials, this Court does not require that summaries

always be presented in lieu of live testimony, reading transcripts of prior trial

testimony, or playing videotapes of prior trial testimony . As we recognized in a

case addressing the admittedly somewhat distinct issue of what kind of

evidence could be admitted upon re-sentencing in guilty plea cases, Boone does

29 821 S .W.2d 813 (Ky . 1992) .
30 Id. at 814 .
31 Id.
16
not establish rigid limits on the type of evidence that must be presented but

recognizes broad discretion on the part of the trial court in determining the

admissibility of evidence in re-sentencing.3 z

Applying this same abuse-of-discretion standard that we apply in

reviewing other evidentiary decisions by trial courts, we find no abuse of

discretion in the trial court's denying St. Clair's motion to exclude his earlier

trial testimony.33 Clearly, much of this testimony was relevant for providing

background information on the crime ; for hearing St. Clair's explanation of

what had happened; and for assessing aggravating and mitigating

circumstances, both statutory and non-statutory. Naturally, on remand, the

32 Thompson v. Commonwealth, 147 S.W.3d 22, 36-37 (Ky. 2004) (in rejecting
defendant's claim that prosecution was limited under Boone to provide only
evidence describing the crime and its elements and his guilty plea to the crime,
stating that:
"While the types of admissible evidence delineated in Boone are
guidelines for the trial court, we do not agree with Appellant that Boone
should be read as a strict limitation on the types of evidence admissible in a
penalty phase trial where the defendant has pled guilty. Nor does Boone
itself purport to create such a strict limitation : the Court in Boone provided
a list of what types of evidence `might be pertinent.' Here, because no guilt
phase trial occurred, the types of admissible evidence set forth in Boone
alone were insufficient in this case to adequately apprise the jury of the
nature of Appellant's crimes. As noted in Boone itself, the sentencing jury
cannot be expected to fix punishment `in a vacuum without any knowledge of
the defendant's past criminal record or other matters that might be pertinent
to consider in the assessment of an appropriate penalty .' With that principle
in mind, the trial court must use its discretion in admitting relevant evidence
that will sufficiently inform the jury of the crimes committed, while avoiding
undue prejudice .") .
(Footnotes omitted) . See also Neat v. Commonwealth, 95 S.W.3d 843, 851 (Ky.
2003) (in re-sentencing trial, trial court did not abuse its discretion in presenting an
edited version of videotapes from the guilt phase of the first trial since parties were
unable to agree on summaries in an effort to give the jury some information about
the crime committed.) .
33 The defendant's guilt phase testimony from the first trial should not be excluded as

hearsay. See Kentucky Rules of Evidence (KRE) 801 (c) (defining hearsay as
statements "other than one made by the declarant while testifying at the trial or
hearing . . . ...); KRE 801A(b) (1) (hearsay exception for parties' own statements) .
17
parties may argue to the trial court whether specific portions of St. Clair's trial

testimony should be redacted for various reasons; but, generally, we cannot

say the entirety of his guilt-phase testimony from the first trial is inadmissible .

D. No Abuse of Discretion in Sustaining Objection to
Reference to Executive Agreement in Opening
Statement and in Excluding Executive Agreement.

St. Clair argues that the trial court erred in sustaining the

Commonwealth's objection to defense counsel's mention in opening statement

of a 1995 executive agreement between the then-governors of Kentucky and

Oklahoma. He also seems to argue that the executive agreement should have

been admitted into evidence because he contends it was relevant to mitigation .

We reject both arguments.

The issue of whether the jury should be made aware of the executive

agreement arose during defense counsel's opening statement. Defense counsel

informed the jury that St. Clair had already received four consecutive life-

without-parole sentences in Oklahoma and then stated "[y]ou will also hear

that by agreement entered into in 1995, between the governors of Oklahoma

and Kentucky, if you sentence Michael to anything . . . ." The Commonwealth

then interrupted to request a bench conference at which it objected to any

reference to the 1995 executive agreement.

The Commonwealth argued that the agreement was irrelevant to the

current re-sentencing proceeding because the agreement did not concern

St . Clair's personal culpability and arose from "an extrajudicial proceeding,"

which the Commonwealth contended "has no place in a judicial sentencing

hearing." The defense argued it was mitigating and relevant to whether

St. Clair would pose an escape risk and further contended that the Supreme
18
Court had accepted the interstate detainer agreement as enforceable. Defense

counsel further explained that the document was not admitted into evidence in

the first trial, despite defense counsel's intention to introduce it as mitigation

evidence, because St. Clair declined to present mitigation evidence at the first

trial. After the party's arguments, the trial court sustained without further

comment the objection to the reference to the executive agreement in opening

statement.

Defense counsel later introduced the 1995 executive agreement

document through the avowal testimony of the Bullitt Circuit Clerk, who read

portions of the agreement into the record .34 Rather than re-submitting the

document into evidence, defense counsel referred to where the document had

been placed in the written record prior to the first trial. Unfortunately,

although we came across the avowal testimony itself, we are unaware of

whether there was any more discussion in the trial court regarding the

document's possible evidentiary value other than the previously mentioned

bench conference . Having reviewed both the executive agreement itself (as

presented in avowal testimony), as well as the parties' arguments concerning

34 St. Clair's brief did not reference this avowal testimony or otherwise show where he
actually preserved the issue of admissibility of this document by citing to the record
to show where he tried to have the document admitted into evidence . Instead, we
independently discovered this avowal testimony through our own review. Our
fortuitous discovery of this avowal has enabled this Court to review the 1995
executive agreement and determine whether it might actually be relevant to
sentencing . We address the issue of whether the executive agreement had any
possible relevancy here in the interest of thoroughness in this death penalty appeal.
As we do so, we reiterate that this Court will not search the record to discover
whether issues on appeal were presented to the trial court ; rather, parties must be
responsible for citing to the record to show where issues are preserved for review .
See, e.g., Copley v. Commonwealth, 854 S .W.2d 748, 750 (Ky. 1993) ("This Court
will not search the record in order to find error which counsel has failed to
present .") .
19
its evidentiary value made in the bench conference during opening statements,

we conclude that the trial court properly sustained the objection to the

references to the executive agreement in opening statement and excluded the

executive agreement from evidence .

Having thoroughly reviewed the parties' arguments before the trial court

and the executive agreement at issue, we conclude that the trial court did not

abuse its discretion in excluding the executive agreement because the

document simply did not have the mitigation value asserted by St . Clair.

According to St. Clair's brief, the agreement provided that if St. Clair were not

sentenced to death in Kentucky, he would be returned to Oklahoma to be

imprisoned in an underground maximum-security facility. However, contrary

to St. Clair's arguments, the document did not guarantee that St. Clair would

spend the rest of his life in an underground maximum-security prison if he did

not receive a death sentence in Kentucky . In fact, although it does recite that

at the time of the agreement St . Clair was serving three consecutive life-

without-parole sentences in Oklahoma, it does not guarantee that he would

actually be required to spend any particular amount of time in an Oklahoma

prison . Rather, the agreement simply provided in which state -- Kentucky or

Oklahoma -- St. Clair would be held in custody under certain events .

Having stated its factual35 and legal bases,36 the executive agreement

clearly sets forth what the Governors of Kentucky and Oklahoma actually

agreed to do:

35 The document begins by stating certain relevant facts leading up to the agreement :
namely, the serious charges then pending against St. Clair in Kentucky courts and
the fact that St . Clair was then "serving three consecutive life without parole
sentences" in Oklahoma .
20
 IT IS HEREBY AGREED by the undersigned Governor of the
Commonwealth of Kentucky and the undersigned Governor of the
State of Oklahoma that in the event said Fugitive [St. Clair] shall
be acquitted following a trial in the courts of the Commonwealth of
Kentucky, or the prosecution in the Commonwealth of Kentucky is
terminated in any manner other than by the imposition of a
judgment and sentence of death, fugitive shall be returned to the
State of Oklahoma at the expense of the Commonwealth of
Kentucky, and that the Governor, or other acting executive
authority of the Commonwealth of Kentucky, shall surrender said
Fugitive to the duly authorized agents for the State of Oklahoma.

IT IS FURTHER AGREED that, if such return to the State of
Oklahoma occurs and said Fugitive is subsequently released from
confinement by the Oklahoma Department of Corrections for any
reason while continuing to have any term of imprisonment left to
fulfill in the Commonwealth of Kentucky, said Fugitive shall be
returned to the custody of the Commonwealth of Kentucky .

In essence, the agreement simply states that if St. Clair received any sentence

less than death in Kentucky, he would be returned to custody in Oklahoma. If

returned to Oklahoma and then released from custody there, he would then be

returned into Kentucky's custody if he still had any term of imprisonment left

to fulfill in Kentucky .

Even accepting for the sake of argument that lessened escape risk is a
valid factor in mitigation under a broad definition of this term, 37 the agreement

does not have mitigation value . Other than its reference to St. Clair's serving

multiple life-without-parole sentences in Oklahoma, a fact that was abundantly

36 The document acknowledged. constitutional and statutory authority for St. Clair's
extradition to Kentucky: citing U.S . Const. Article IV, Section 2 ; 18 United States
Code Annotated (U.S .C.A.) § 3182 ; KRS 440 .220 .
37 BLACK'S LAWDICTIONARY (8th ed . 2004) offers two definitions of mitigating
circumstance relevant in the context of criminal law. The second-listed, broader
definition is "[a] fact or situation that does not bear on the question of a defendant's
guilt but that is considered by the court in imposing punishment and esp . in
lessening the severity of a sentence ." But see Jacobs v. Commonwealth, 870 S .W.2d
412, 419 (Ky. 1994) (indicating that mitigating circumstances should not be overly
broadly defined but, generally, refer to defendant's character-or record,
circumstances of the offense, or statutorily listed mitigating circumstances) .
21
established in other evidence,38 this Court finds no indication that the

executive agreement is relevant to the degree of escape risk because it does not

guarantee the length of imprisonment or degree of security of the facility . The

document is certainly not relevant to a stricter definition of mitigation relating

to a defendant's personal culpability. 39 This Court has declined in the past to

adopt a definitive definition of mitigation40 and has no need to adopt one now.

But even under a broad definition of mitigation evidence, this executive

agreement does not qualify as mitigation evidence. Because the document was

not relevant for the purposes argued by St. Clair to the trial court, the trial

court did not abuse its discretion in excluding it41 nor in sustaining the

38 if the executive agreement was offered only to show that St. Clair was already subject
to multiple life without parole sentences, the trial court could properly exclude it as
"needless presentation of cumulative evidence" under KRE 403 .
39 BLACK'S LAW DICTIONARY (8th ed. 2004) offers first a stricter definition of mitigating
circumstance relating to the defendant's culpability : "[a] fact or situation that does
not justify or excuse a wrongful act or offense but that reduces the degree of
culpability and thus may reduce the damages (in a civil case) or the punishment (in
a criminal case) ." See also Jacobs, 870 S .W.2d at 419 ("KRS 532.025 is more
expansive in that it spells out eight circumstances of mitigation that are relevant,
and it contains a catchall provision, `any mitigating circumstances otherwise
authorized by law.' This provision would permit the trial court to submit redeeming
evidence to the jury. However, we believe the evidence must contain facts or a
qualified opinion bearing on the defendant's character, prior record or
circumstances of the offense, or relative to one of the specified statutory mitigating
circumstances.") .
40 See Tamme, 973 S.W.2d at 38, quoting Waters v. Thomas, 46 F.3d 1506, 1528
(11th Cir. 1995) (jury instructions are not constitutionally required to define "`the
concept of mitigation or the function of mitigating circumstances .')
41 See KRE 402 ("Evidence which is not relevant is not admissible .") . Perhaps if the
document did guarantee that St. Clair would never be released from prison or
would remain in an especially secure area, the document might have some
relevance to the determination of a proper sentence . Of course, this possible
relevancy would not necessarily mean that the document would be admissible
because the trial court might still face other issues, such as whether the document
was properly authenticated, duplicative of other evidence, or no longer of binding
effect . See, e.g., KRE 403 (exclusion of otherwise relevant evidence on grounds of
undue prejudice, confusion, or waste of time); KRE 901 (authentication
requirements) .
22
objection to defense counsel's reference to the document in opening

statement.42

E. Trial Court Within Its Authority to Denv Allocution .

St. Clair argues that the trial court failed to accord him his right directly

to address the jury in mitigation of punishment. Through counsel, St. Clair

filed a pretrial motion requesting to "to make allocution to the jury . . . ."

Citing BLAcK's LAWDICTIONARY, he has defined allocution as an unsworn

statement to the sentencing judge or jury . 43 And he quotes Green v. United

States: 44 "The most persuasive counsel may not be able to speak for a

defendant as the defendant might, with halting eloquence, speak for himself." 4 s

But Green concerned a federal defendant's right under a federal criminal

procedural rule to make such an unsworn statement to the trial court judge.

That case is inapplicable to St. Clair's request to make an unsworn statement

to the jury, who, here, would make a sentencing recommendation but would

not impose final sentence .

42 See Mills v. Commonwealth, 310 Ky . 240, 243, 220 S .W.2d 376, 378 (1949) (opening
statements should not refer to clearly inadmissible matters) .
43 See BLACK'S LAWDICTIONARY (8th ed. 2004), defining allocution, generally, as "[a]n
unsworn statement from a convicted defendant to the sentencing judge or jury in
which the defendant can ask for mercy, explain his or her conduct, apologize for the
crime, or say anything else in an effort to lessen the impending sentence . " This
statement is not subject to cross-examination ."
44 365 U .S . 301 (1961) .

45 Id. at 304 . St . Clair also generally cites Lockett v. Ohio, 438 U.S . 586 (1978), as
authority supporting a right to allocution, although he does not specifically identify
where the United States Supreme Court addresses allocution in its decision ; and we
have been unable to find any specific references to allocution in that case.
23
 He also cites Section 11 of the Kentucky Constitution's right to be heard

by himself and counsel46 and argues that Oregon has interpreted a similar

provision in its constitution to establish a right for the defendant to an

allucatory address to the jury in a sentencing proceeding . 47 However, we have

not interpreted Section 11 of the Kentucky Constitution as establishing an

inviolate right to allocute to the jury in a sentencing proceeding, but only as

establishing rights to hybrid counsel. 48 Rather, we have recognized that the

trial court's broad discretion to conduct orderly proceedings might allow the

trial court to allow or disallow allocutory statements to the jury.49

Because we have found no right of allocution to the jury under our

Kentucky Constitution or other authority and because the trial court had broad

discretion in the conduct of its proceedings to allow or disallow such a

statement, we find no abuse of discretion in the trial court's denial of St. Clair's

allocution request. We also note that St. Clair had neither clearly requested to

be hybrid counsel or to represent himself, which would have permitted him to

make a closing argument, nor had he chosen to testify at this trial, which

would have permitted him to make a sworn statement to the jury, subject, of

course, to cross-examination .

F. Victim-Impact Testimony was Properly Admitted .

46 H e also cites, inter alia, Ky. Const . § 26 pronouncing the Kentucky Bill of Rights
inviolate and any law in violation of the Bill of Rights void.
47 See State v. Rogers, 4 P.3d 1261, 1270-72 (Or. 2000) (interpreting Oregon
constitutional provision establishing right "to be heard by himself and counsel" to
permit allocution to jury but recognizing broad discretion of trial court to establish
limits on content and duration of statement) .
48 Furnish v. Commonwealth, 267 S .W.3d 656, 663 (Ky. 2007) .

49 Id. at 664 .
24
 St . Clair contends that the trial court improperly allowed victim- impact

testimony in the re-sentencing trial. Admitting that our precedent allows for

the presentation of victim-impact testimony during the penalty phase in a

capital case,50 St . Clair argues victim-impact testimony is not specifically

allowed by our capital sentencing statute (KRS 532 .025), as opposed to our

non-capital felony sentencing statute (KRS 532 .055), and that the United

States Supreme Court case of Payne v. Tennessee' only permits the admission

of such victim-impact evidence in capital cases if allowed by state sentencing

statutes.52

Contrary to St. Clair's arguments, Kentucky's sentencing statutes allow

the presentation of victim-impact evidence during sentencing proceedings in

capital cases . Although KRS 532 .025, governing sentencing proceedings in

capital cases, does not specifically list victim-impact evidence as a potential

aggravating factor in capital sentencing, it does provide that the jury may

consider any other aggravating factors as "otherwise authorized by law . . . ."53

Because KRS 532 .055(2)(a)(7), which is part of the felony sentencing statute,

50 See, e.g., Bowling v. Commonwealth, 942 S .W.2d 293, 303 (Ky. 1997) .
51 501 U.S. 808 (1991) .
52 See id. at 827 ("We thus hold that if the State chooses to permit the admission of
victim impact evidence and prosecutorial argument on that subject, the Eighth
Amendment erects no per se bar.") .
53 KRS 532.025(2) states, in pertinent part:
"In all cases of offenses for which the death penalty may be authorized,
the judge shall consider, or he shall include in his instructions to the jury for
it to consider, any mitigating circumstances or aggravating circumstances
otherwise authorized by law and any of the following statutory aggravating or
mitigating circumstances which may be supported by the evidence: . . . [lists
of aggravating and mitigating factors] ."
25
allows the consideration of victim impact evidence,s4 this consideration is

"otherwise authorized by law." So victim impact evidence is allowable in capital

sentencing proceedings, despite the specific lack of mention of such evidence in

KRS 532 .025 . This we have recently held in an unpublished case .55

Accordingly, we reject St . Clair's argument that victim-impact evidence is not

admissible in capital sentencing proceedings in Kentucky .

The victim-impact evidence presented at, the re-sentencing proceeding in

the form of testimony of victim Frank Brady's daughter about his personality

characteristics, hobbies, and family connections covered less than ten

transcribed pages. Brady's daughter's testimony was neither inappropriate nor

excessive . It provided some description of the victim as a "unique human

being," rather than a mere statistic, without glorifying or enlarging the victim .

54 KRS 532 .055 provides :
"(2) Upon return of a verdict of guilty or guilty but mentally ill against a
defendant, the court shall conduct a sentencing hearing before the jury, if
such case was tried before a jury . In the hearing the jury will determine the
punishment to be imposed within the range provided elsewhere by law. The
jury shall recommend whether the sentences shall be served concurrently or
consecutively .
(a) Evidence may be offered by the Commonwealth relevant to sentencing
including :

(7) The impact of the crime upon the victim or victims, as defined in KRS
421 .500, including a description of the nature and extent of any physical,
psychological, or financial harm suffered by the victim or victims . . . ."
55 Stark v. Commonwealth, No . 2005-SC-000332-MR, 2007 WL 2404453 at *3-4 (Ky.
August 23, 2007) (rejecting argument that KRS 532.025(2) did not permit
admission of victim-impact evidence during capital sentencing proceedings because
such evidence was "otherwise authorized by law") .
26
So the victim-impact evidence presented was not unduly prejudicial to St. Clair

and would not warrant a reversal of his sentence.56

G. Trial Court Did Not Place Improper Limits on
Don Ed Pavne Testimony.

St. Clair asserts that the trial court improperly limited his direct

examination of witness Don Ed Payne, the lawyer who had represented

St. Clair on two murder charges in Oklahoma. Specifically, he complains that

he was not allowed to ask Payne in the jury's presence about St. Clair's family's

belief that these Oklahoma victims had injured St. Clair's family members and

about the history of mental illness in St. Clair's family . The Commonwealth

objected to these lines of inquiry on the bases of hearsay and of the defense

improperly attempting to impeach the validity of his Oklahoma convictions.

The defense argued that it was not attempting to attack the fact of the

Oklahoma convictions but to provide background into the circumstances of

St. Clair's earlier convictions - namely, that the victims of these crimes were

not strangers but people believed by his family to have harmed them. It

contended that the evidence it sought to offer was based on the witness's own

observations and that it was not offered to prove the truth of the matter

asserted, so it was not hearsay; instead, it was "state of mind." The trial court

sustained the objection but allowed defense counsel to offer the desired

evidence by avowal testimony.

56 See Bowling, 942 S.W .2d at 303, citing, e.g., Campbell v. Commonwealth, 788 S .W .2d
260 (Ky. 1990) ; Payne, 501 U.S . at 822-27 (holding that victim impact evidence
presented was not unduly prejudicial where it provided a "quick glimpse" of the
victim as a unique human being without glorifying or enlarging the victim) .
27
 Having reviewed Payne's testimony before the jury and his avowal

testimony, we find no error in the trial court's handling of this evidentiary

matter .

In the presence of the jury, Payne was asked whether, based on his own

knowledge, the two Oklahoma victims were known to St. Clair; and he replied

that they were. He was also asked whether, of his own knowledge, there had

been earlier incidents between St.Clair and the Oklahoma victims; and he

replied, "Yes." He was also asked if he became familiar with another case in

which St. Clair was convicted of murder ; and he replied, "Yes." He was then

asked whether, based on his own investigation and history with these cases,

St. Clair was accused of violence against a stranger; and he replied, "No ." He

was also asked whether, based on his own observations, there was any mental

illness in St. Clair's family. After replying in the affirmative, defense counsel

asked him to explain; and he started to refer to St. Clair's aunt. Following

objection by the Commonwealth, defense counsel asked about Payne's

observations of this aunt; and he described her as testifying at trial "that little

red and green men came to . . ." before being interrupted by the

Commonwealth's objection. So St. Clair actually was able to introduce before

the jury many of the points he wished to make: the history of mental illness in

his family, the fact that these Oklahoma victims were not strangers to him, and

the victims' history of "prior incidents" with him .

On avowal, defense counsel asked Payne whether, as a result of his

investigation, testimony presented in the courtroom and documents he

reviewed, he was "aware of any prior connection or prior history between victim

Edward Large and the St . Clair family." Payne stated yes and explained that
28
several members of the St. Clair family believed Large had shot St. Clair's

brother, resulting in paralysis. When asked the "same question" about any

knowledge of a history between victim Mary Smith and the St. Clair family,

Payne replied that members of the St . Clair family believed Mary Smith had

stabbed St. Clair's aunt, Buenavista "Chubby" Sides. He further stated that

Sides had been hospitalized for schizophrenia and testified during one of

St . Clair's Oklahoma murder trials to being visited by little red and green men

in jail. When asked whether he had any knowledge of the case against St. Clair

for the Oklahoma murder of Junior Kelsey (a case in which Payne did not

represent St. Clair), Payne said all he knew about the Kelsey matter was of

some incident of "bad feelings" or "bad blood" about an actual or perceived

injury involving the St . Clair family.

Payne did not specifically identify which members of the St. Clair family

had made statements of belief that the Oklahoma victims had injured their

family members . Nor has St. Clair shown that he was prevented from

presenting the testimony of family members about this matter . In any event,

the state of mind of St. Clair's family members was irrelevant . And while

St. Clair's own state of mind at the time of these other crimes might be a valid

consideration in the present re-sentencing, other family members' declarations

regarding St. Clair's state of mind would not be admissible because the state-

of-mind exception to the hearsay rule is only applicable when the declarant
makes a statement about his or her own state of mind. 57 The trial court did

not abuse its discretion by putting limits on Payne's testimony.

IV. CONCLUSION.

Solely because of the trial court's erroneous instruction on aggravating

circumstance, we reverse the sentence imposed by the judgment and remand

for re-sentencing proceedings in conformity with this opinion .

All sitting. Minton, C.J. ; Abramson, Noble, Schroder, and Venters, JJ.,

concur. Scott, J ., concurs, in part, and dissents, in part, by separate opinion

in which Cunningham, J ., joins. Cunningham, J ., concurs, in part, and

dissents, in part, by separate opinion in which Scott, J ., joins .

57 KRE 803(3) (recognizing hearsay exception for "[t]hen existing mental, emotional, or
physical condition . A statement of the declarant's then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant's will.") ; Moseley v. Commonwealth,
960 S.W.2d 460, 462 (Ky. 1997) ("The statements do not fall within the category of
nonhearsay statements tending to prove state of mind. The victim's mental state at
the time of her death is not an issue in this case . Nor are the statements probative
of Appellant's mental state, since he was not the recipient of the statements .
The Commonwealth posits that the statements fall within the state of mind
exception to the hearsay rule . KRE 803(3) . However, the statements were offered to
prove Appellant's state of mind; and KRE 803(3), by its very language, only applies
to prove the state of mind of the declarant, i.e., the victim in this case .") (citation
omitted) .
30
 SCOTT, J., CONCURRING, IN PART, AND DISSENTING, IN PART:

Although I concur with the majority on the other issues, I must respectfully

dissent as to its finding of a "sentencing phase instructional error," as well as

its conclusion that a Farettal Hilll hearing was required when Appellant's only

action as "de facto" co-counsel was to file pro se motions outside the presence

of the jury.

I . FARETTA/HILL HEARING.

To trigger a Farettal Hill hearing, one must at least ask to represent one's

self or to act as one's own co-counsel and then proceed unequivocally. A

disdainful filing of pro se motions in violation of the trial court's order, even

against advice of counsel -- all the while professing that you do not want to

represent yourself - does not trigger the trial court's advisory obligations,

absent an unequivocal expression of one's desire to waive, at least in part,

one's right to counsel under the Sixth Amendment of the United States

Constitution and Section Eleven of the Kentucky Constitution . See

Matthews v. Commonwealth, 168 S.W.3d 14, 23 (Ky. 2005) ("Under the

circumstances presented here, Faretta [and] Hill, supra, have no application.") .

It is, however, a cunning way to try and set up reversible error .

Thus, as we noted in Matthews,

[u]nlike the defendants in Hill, Faretta, and similar cases,
Matthews did not participate as counsel at trial in front of the jury.
He did not ask questions of the witnesses nor did he make opening
or closing statements . His only participation upon being made co-

1 Faretta v. California, 422 U.S . 806 (1975) ; Hill v. Commonwealth, 125 S .W.3d 221 (Ky.
2004) .

31
 counsel was to file pro se motions [outside the presence of the jury]
and, like other defendants, confer with his counsel. Matthews
never waived his right to counsel in any manner. [Thus, no]
Faretta for Hill] hearing was required in this circumstance .

168 S .W.3d at 23 . Absent the recognition of such a prerequisite, this

case could easily turn into St. Clair V (Ky.) or VI (Ky.), rather than

St. Clair IV (Ky.) - which it is. 2

In December 2004, prior to the sentencing phase retrial ordered by

this Court in St. Clair II (Ky.), St . Clair began filing a series of

approximately seventeen (17) pro se pre-trial motions, the first of which

included a handwritten "check-the-box" notation designating himself as

"Lead Counsel ." Thereafter, at the hearing, as the trial judge started to

inquire as to this designation, St. Clair interrupted and unequivocally

stated, "I have changed my mind and withdraw that motion ." 3 In fact,

the order entered following this hearing on January 12, 2005, reflects :

It was agreed by counsel for the Commonwealth and counsel for
the Defendant, along with the Defendant personally, that no
further Pro Se motions would be filed by the Defendant or

2 St. Clair I (Ky.) was St. Clair's Petition for Extraordinary Relief to prevent his
prosecution for capital kidnapping in Hardin County. St. Clair v. Roark, 10 S .W.3d
482 (Ky. 2000) . St. Clair II (Ky.) involved the matter now considered, wherein we
reversed and remanded for a new penalty phase hearing . St. Clair v.
Commonwealth, 140 S.W.3d 510 (Ky. 2004) . St. Clair III (Ky.) involved St. Clair's
death sentence appeal from his conviction in Hardin County for capital kidnapping,
among other convictions, which this Court also reversed . St. Clair v.
Commonwealth, 174 S.W.3d 474 (Ky. 2005) . This appeal, then, could properly be
characterized as St. Clair N (Ky.) . The designation "(Ky. )" appropriately
differentiates our cases from St. Clair's four (4) other capital murder convictions in
Oklahoma, as well as the murder in New Mexico. See St. Clair II, 140 S .W.3d at
561-71 .
3 - In fact, the trial judge had just stated, "Mr. St. Clair wants to be designated as lead
counsel . So I will take . . .," when he was interrupted by St. Clair, who said, "I have
changed my mind and withdraw that motion ."

32
 considered by the Court and, that if any Pro Se motions are filed,
they should be directed to counsel for the Defendant.

St. Clair, however, continued to file pro se motions with the court.

Thereafter, in response to his continuing pro se filings and, in particular, a

subsequent motion to fire his attorney, the Commonwealth, at the August 10,

2005 pre-trial hearing, stated that

[i]n his Pro Se Motion St. Clair does not make clear whether he's
wanting new counsel, whether he wants to proceed pro se, whether
he wants hybrid counsel . . . [I] don't know whether he's going to
withdraw [this motion] today. But if he's going to press this motion
then we need to find out what exactly it is he wants other than a
complaint in general about his lawyers.

In response, St. Clair again stated that he did not want to represent himself but

that he wanted new attorneys.4 Following the hearing, his motion to discharge

counsel was denied.

Moreover, St. Clair makes no allegation that he acted as his own counsel

or co-counsel in front of the jury during the penalty phase retrial -- claiming

only, that "[s]ince both the trial court and the defense attorneys acquiesced in

St. Clair's hybrid representation, it was incumbent upon the court to hold a

hearing." This, however, avoids any assertion that St. Clair acted as such

during the trial in front of the jury. It also avoids the essential precursor for a

Faretta/ Hill hearing - the unequivocal request, coupled with the necessary

intent to make the required waiver.

In Winstead v. Commonwealth, we noted:

4 This was six (6) days before trial in August of 2005, for a murder occurring in 1991 .

33
 Because the assistance of counsel is generally regarded as a
crucial component of a fair trial, the right to that assistance has
been characterized as a fundamental constitutional right. For the
same reason, courts indulge `every reasonable presumption against
a waiver of counsel.' To overcome that presumption and conduct
his own defense, a defendant must clearly and unequivocally seek
to represent himself. It is not enough to express dissatisfaction
with counsel or to request different counsel; the defendant, rather,
must unequivocally ask to proceed pro se. If a defendant
unequivocally invokes his right to defend himself, the trial court is
then obliged to conduct a hearing to ensure that the defendant's
waiver of the right to counsel is both knowing and voluntary. The
court's obligation does not arise, however, unless and until the
defendant clearly invokes his pro se right. Because that right does
not implicate constitutional fair-trial considerations, moreover, the
trial court has no sua sponte duty to inform the defendant of his
right to proceed pro se.

We are not persuaded that Winstead's pro se motions in his
letter to the trial court overcame his presumed reliance on counsel.

283 S.W.3d 678, 683 (Ky . 2009) (internal citations omitted) .

Both Faretta and Hill hinge on the proposition that in order to proceed

pro se, or with hybrid counsel, one must be willing and able to waive the full

benefit of representative counsel under the Sixth Amendment of the United

States Constitution and Section Eleven of the Kentucky Constitution . Faretta,

422 U .S . at 835 ("Faretta clearly and unequivocally declared to the trial judge

that he wanted to represent himself and did not want counsel.") ; Hill,

125 S.W.3d at 224 ("[O]nce counsel was appointed, Appellant requested only to

serve as co-counsel . . . so that he could perform the direct and cross-

examination of some of the witnesses."). Here, in both instances when the

subject matter was addressed, St. Clair reiterated that he did not want to

represent himself.

34
 Thus, like Matthews, there is no assertion that St. Clair participated as

counsel or co-counsel at trial in front of a jury, nor did he ever unequivocally

offer to waive his right to counsel . 168 S.W.2d at 23 ("His only ,

participation . . . was to file pro se motions and, like other defendants, confer

with counsel.") . Thus, there is nothing in this record that gives rise to a

violation of Faretta/ Hill.

II. THE SENTENCING PHASE INSTRUCTION .

Moreover, as to the "sentencing-phase instructional error," the majority

is reversing the trial court for doing what the Court directed it to do by virtue of

our pronouncements in St. Clair II (Ky.) .

St . Clair had four murder convictions in Oklahoma. Two of these

convictions were entered prior to the Bullitt County murder of Frank Brady on

October 6, 1991 . The two other murders occurred prior to Brady's death, yet

these convictions were not obtained until 1994 due to St. Clair's escape . All

four of the convictions, however, were admissible as pertinent to the jury's

sentencing functions. .KRS 532 .025(1)(b); 5 see also St. Clair11, 140 S .W.3d at

5 KRS 532
.025(1)(b) reads :
In all cases in which the death penalty may be imposed and which are tried
by a jury, upon a return of a verdict of guilty by the jury, the court shall
resume the trial and conduct a presentence hearing before the jury . Such
hearing shall be conducted in the same manner as presentence hearings
conducted before the judge as provided in paragraph (a) of this subsection,
including the record of any prior criminal convictions and pleas of guilty or
pleas of nolo contendere of the defendant. Upon the conclusion of the
evidence and arguments, the judge shall give the jury appropriate
instructions, and the jury shall retire to determine whether any mitigating or
aggravating circumstances, as defined in subsection (2) of this section, exist
and to recommend a sentence for the defendant. Upon the findings of the
jury, the judge shall fix a sentence within the limits prescribed by law.

35
571 (["W]e observe that all of them were admissible at the capital sentencing

phase pursuant to KRS 532 .025(1)(a) .") ; Fields v. Commonwealth, 274 S .W.3d

375, 418 (Ky. 2008) .

As to the aggravating circumstance, KRS 532 .025(2)(a)(1) defines it as

where "the offense of murder . . . was committed by a person with a prior

record of conviction for a capital offense . . . ." Thus, during the original trial,

the trial court crafted an "aggravating circumstance" instruction that read, "the

Defendant has a prior record of conviction for murder, a capital offense."

Thereafter, on appeal, we concluded that "for purposes of KRS 532 .025(2)(a)(1),

[a] `prior record of conviction for a capital offense' includes a plea of guilty

accepted by trial court or a jury's or a judge's verdict of guilty." St. Clair II, 140

S .W.3d at 570. We then concluded "that the trial court's articulation of [the]

aggravating circumstance changed its meaning. [Thus, upon] remand, the trial

court should instruct the jury in accordance with the statutory language, i.e.,

`the murder was committed by a person with a prior record of conviction of a

capital offense . ' Id. at 571 . St. Clair II (Ky.) was rendered in 2004.

The next year, in 2005, in St. Clair III (Ky.), we again considered this

"aggravating circumstances instruction," this time arising out of St. Clair's

Hardin County kidnapping of Francis Brady . The second aggravating

circumstances instruction there read, "[t]he Defendant has a prior record of

conviction for murder, a capital offense." 174 S .W.3d at 481 . This is the same

language for the same instruction criticized in St. Clair II (Ky.) . See 140 S.W .3d

at 562, 571 . Yet, in St. Clair III (Ky.), we concluded that "this instruction was

36
correct. The trial court properly concluded that St . Clair had a prior record of

conviction for murder ." 174 S .W.3d at 483 . We also noted, "[a]s a matter of

law, St. Clair had two prior capital convictions for the 1991 murders before he

committed the kidnapping ." Id. at 484.

Upon retrial in this case, in August of 2005, the trial court - attempting

to comply with this Court's directions - reformulated this aggravating

circumstance instruction to read, "[t]he murder was committed by the

Defendant and the Defendant has a prior record of conviction of murder,

capital offense." However, the majority now holds that "the trial court's

instructions not only failed to follow this Court's explicit directive following the

first appeal, but the instruction, as given, deprived St. Clair of his right to a

unanimous verdict. And, `the denial of a unanimous verdict - where the error

is properly preserved - is not subject to a harmless error analysis."' Slip op.

at 6 . The majority goes on to state:

The better course would be to identify specifically the one or more
convictions that could qualify as a `prior record of conviction for a
capital offense' to avoid any possibility that the jury's verdict is not
unanimous. For example, a proper instruction could read:

In fixing a sentence for the Defendant for the offense of
Murder, you shall consider the following aggravating
circumstance which you may believe from the evidence
beyond a reasonable doubt to be true:

the offense of murder was committed by a
person with a prior record of conviction for
a capital offense:

the September 1991 Murray County,
Oklahoma, conviction for the first-degree
murder of William Henry Kelsey, Jr.

37
Slip Op. at 7 . The majority also notes that Ronnie St . Clair's murder would

also qualify, and notes further that "[b]y specifically identifying qualifying

convictions that can be used as aggravators, the trial court ensures that the

jury cannot rely on convictions that cannot qualify." Id.

While I agree with the simplicity (and accuracy) of the majority's new

configuration of 'the instruction, I disagree with its underlying conclusions for

two reasons . First, in St. Clair II (Ky.), we directed the trial court to formulate

the instruction in the manner it did. And, secondly, any resulting error is

simply harmless . Indeed, how could the error be harmful when we recognized

in St. Clair III (Ky.) that "(als a matter of law, St. Clair had two prior capital

convictions for the 1991 murders before he committed the kidnapping"?

174 S.W . 3d at 484 (emphasis added) .

In St. Clair II (Ky.) and III (Ky.), we considered the same instructions . In

St. Clair II (Ky.), we directed that "[u]pon remand, the trial court should

instruct the jury in accordance with the statutory language, i.e., `the murder

was committed by a person with a prior record of conviction of a capital

offense.' 140 S.W.3d at 571 (emphasis added) . And, in St. Clair III (Ky.), we

noted the prior "instruction . . . was correct. The trial court properly concluded

that St. Clair had a prior record of conviction for murder."6 174 S .W.3d at 483.

Clearly, what we said and how we said it was, at best, murky. Thus, in

support of the trial court's attempt to understand the directions given by the

6 In fact, the majority here posits that the issue was properly preserved by St. Clair's
tendered instruction, which read: "[t]he offense of murder was committed by a
person with a prior record of conviction for a capital offense." Slip Op . at 5 .

38
court in St. Clair II (Ky.), it reformulated the aggravating circumstance

instruction to read, "[t]he murder was committed by the defendant and the

defendant has a prior record of conviction of murder, capital offense ." In so

doing, in my opinion, the trial court did what it was directed to do by this

Court. I simply cannot read the trial court's response in any other way. If we

had said there what the majority posits today, I could agree - but we did not .

In addition, in the guilt phase of the first trial, St . Clair testified that he

had been convicted by a jury of two counts of murder in Oklahoma prior to the

murder of Francis Brady. This testimony, along with the other guilt-phase

testimony, was introduced verbatim in the re-trial . Moreover, the prosecution

introduced records of the convictions. These convictions were not seriously

contested.

Thus, in my opinion, it is illogical to argue that the jury may have found

that St. Clair only had one conviction and that it .was an impermissible one,

when the logical conclusion would be -- that if they were going to err - they

would have found all four convictions of which they were permissibly aware .

St. Clair II, 140 S .W. 3d at 571 ("[W]e observe that all of them were admissible

at the capital sentencing phase pursuant to KRS 532
. And,
.")
.025(1)(a)

therefore, given that the jury undoubtedly found (at least) both permissible

convictions (of the four) - ones we took judicial notice of as a matter of law,

St . Clair III, 174 S.W. 3d at 484 - it can be said "with fair assurance that the

judgment was not substantially swayed by the error." Winstead, 283 S .W.3d at

679 (citing Kotteakos v. U.S., 328 U .S . 750 (1946)) . To suggest that lumping

39
the two impermissible convictions together with the two permissible ones might

have swayed the jury wrongfully assumes a "doubling impact" of the

convictions on the jury. This is a point I cannot accept for the reason that an

item of evidence attains its maximum impact upon a jury at the moment of

introduction (within the context of the other evidence), not upon its subsequent

review in the jury room.

For the foregoing reasons, I must respectfully dissent and would affirm

the judgment and sentence of the Bullitt Circuit Court. Cunningham, J., joins .

CUNNINGHAM, J ., CONCURRING, IN PART, AND DISSENTING, IN PART:

I join Justice Scott's opinion concurring, in part, and dissenting, in part;

however, I wish to write further concerning the sentencing phase instructions .

In September of 1991, Appellant had already been convicted of

murdering two people when he escaped from an Oklahoma jail with another

inmate. Appellant and his partner then kidnapped Timothy Keeling, stole his

truck, and executed the man in cold blood in a New Mexico desert. They made

their way to Kentucky, where they kidnapped Frances Brady, took his vehicle,

and set it afire . They then executed Brady in a secluded area of Bullitt County.

When stopped for a routine traffic check in Hardin County by Trooper Herbert

Bennett, Appellant fired shots into Bennett's police cruiser. Both fugitives tried

to flee, but Appellant was apprehended. Appellant was subsequently convicted

of the murder of Frances Brady and sentenced to death . This case has been

before us several times.

40
 KRS 532 .025(2)(a)(1) states as an aggravating circumstance that "[t]he

offense of murder or kidnapping was committed by a person with a prior record

of conviction for capital offense . . . ." The majority correctly points out that the

instruction given in this case was in error, in that it reads that the person only

has to have a prior record of conviction for capital offense at the time of trial, as

opposed to the time of the offense. However, it was obviously a harmless

miscue, since the record is clear that Appellant did have, in fact, a conviction

for a capital offense at the time he committed the offense in question. To be

honest, Appellant has killed so many people and been convicted so many times

for murder, it is difficult to sift through the record before me and ascertain

exactly when all the murders were committed and the dates of all the

convictions . He was also convicted in Oklahoma in 1994 - after the Brady

killing -- for the murders of Mary Louise Smith and Edward Jefferson Large.

The remaining portion of KRS 532 .025(2)(a)(1) reads : "or the offense of

murder was committed by a person who has a substantial history of serious

assaultive criminal convictions ." (Emphasis added.) Obviously, and as

Justice Scott points out, all of the prior murders committed by Appellant before

the trial were admissible . At least two of the capital offenses committed prior

to the murder of Brady had evolved into convictions at the time of the Brady

trial.

The erroneous wording of the instructions would loom large if Appellant

had no capital convictions prior to the murder of Brady. But that is not the

case. Appellant is a serial murderer, guilty of the cold-blooded killing of -

41
according to my count -- at least six innocent people . He is not entitled to a

perfect trial. No American is . He is only entitled to a fair one, and he has had

several. This is his fourth 'or fifth trip to this state's highest court. It makes

one tired to consider the amount of litigation he has likely engendered within

the borders of the other states he has terrorized. He has received his ample

allotment of due process. I would affirm the conviction . Scott, J., joins .

COUNSEL FOR APPELLANT:

Donna Lynn Boyce
Appellate Branch Manager
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601

Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601

Linda Roberts Horsman
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601

Shannon Renee Dupree
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

David A. Smith
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204

Franklin Todd Lewis
Executive Director
Office of the Attorney General
Office of Special Prosecutions
1024 Capital Center Drive
Frankfort, Kentucky 40601

William Robert Long, Jr .
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
 ,$upruar (~ourf of ~irufurkV
2005-SC-000828-MR

MICHAEL DALE ST. CLAIR APPELLANT

ON APPEAL FROM BULLITT CIRCUIT COURT
V. HONORABLE THOMAS WALLER, JUDGE
NO. 92-CR-00010-002

COMMONWEALTH OF KENTUCKY APPELLEE

ORDER DENYING PETITION FOR REHEARING
AND MODIFYING OPINION

The Appellee having filed a Petition for Rehearing of the Opinion of the

Court by Chief Justice Minton, rendered April 22, 2010 ; and the Court

being otherwise fully and sufficiently advised;

The Court ORDERS that the Petition for Rehearing is DENIED . The

Court, sua sponte modifies the Opinion of the Court by Chief Justice

Minton, rendered April 22, 2010, to correct footnote numbering errors .

The attached opinion is SUBSTITUTED in lieu of the original . Said

modification does not affect the holding.

All sitting. Minton, C .J ., Abramson, Noble, Schroder, Scott and Venters,

JJ ., concur. Cunningham, J ., would grant.

ENTERED: September 23, 2010 .