concurring, in part, and dissenting, in part.
Although I concur with the majority on the other issued, I must respectfully dissent as to its finding of a “sentencing phase instructional error,” as well as its conclusion that a Faretta/Hill1 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 Faretta/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,
[ujnlike 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-counsel was *320to 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 [or 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 “cheek-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 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, *321however, 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 Fa/retta/Hill hearing — the unequivocal request, coupled with the necessary intent to make the required waiver.
In Winstead, v. Commonwealth, we noted:
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, 95 S.Ct. 2525 (“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 (“[Ojnce 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.
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 *322sentencing functions. KRS 532.025(1)(b);5 see also 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 532.025(1)(a).”); Fields v. Commonwealth, 274 S.W.3d 375, 418 (Ky.2008).
As to the aggravating circumstance, KRS 532.025(2)(a)(l) 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)(l), [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 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.’ ” Op. at 306. The majority goes on to state:
The better course would be to identify specifically the one or more convictions *323that 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:
(1) 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.
Op. at 807-08. 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 “[a]s 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 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 *324S.W.3d at 571 (“[W]e observe that all of them were admissible at the capital sentencing phase pursuant to KRS 532.025(l)(a).”). And, 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, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). To suggest that lumping 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.
. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Hill v. Commonwealth, 125 S.W.3d 221 (Ky.2004).
.St. Clair I (Ky.) was St. Clair's Petition for Extraordinary Relief to prevent his prosecu- • tion 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 IV (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.
. 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.”
. This was six (6) days before trial in August of 2005, for a murder occurring in 1991.
. KRS 532.025(l)(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 conten-dere 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 juiy, the judge shall fix a sentence within the limits prescribed by law.
. 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.” Op. at 305.