MICHAEL DALE ST. CLAIR 2005-SC-000828-MR MODIFIED: SEPTEMBER 23, 2010 RENDERED

: APRIL 22, 2010 TO BE PUBLISHED 

# uprtme (~Vurf 

# of 'Ptrufurh

ONAPPEAL FROM

BULLITT CIRCUIT COURT V . HONORABLE THOMAS WALLER, JUDGE NO . 92-CR-00010-002 COMMONWEALTHOF KENTUCKY APPELLEE

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

REVERSINGAND 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 newsentencing 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 followthe statutory language in instructing thejury on the applicable aggravator required to support a death sentence. The trial court instead fashioned an erroneousjury instruction that deprived St. Clair of his

' St. Clair v. Commonwealth, 140 S.W .3d 510, 572 (Ky. 2004) . Wewill 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 killedjust a few weeks after St. Clair and Reese escaped froman Oklahomajail 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. Hewas 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 Reesewerejointly 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. Thejury convicted St. Clair of the murder, and the trial court sentenced St. Clair to death in accordance with thejury's recommendation.4 'Although we affirmed the conviction, we remanded for a new capital sentencing phase trial . II . WE MUST REVERSE BECAUSE TRIALCOURT ERRED IN NOT CONFORMINGWITH STATUTORY LANGUAGE IN INSTRUCTINGJURY ONAGGRAVATOR . 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

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

to followthis statutory language in instructing thejury on this aggravator.6 sentencing phasejury 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 the first appeal, St. Clair argued, "that the trial court's capital

In fixing a sentence for the Defendant for the offense of murder, you shall consider the following aggravating sentence which you may believe fromthe 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 thejury 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 improperjury instruction on the same aggravating circumstance. This time, the trial court's instruction asked thejury 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 thejury 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 ajury instruction that tracked precisely the statutory language of KRS 532.025(2)(a)(1) :

Id. at 568. 10 Id. at 571 . In fixing a sentence for the Defendant for the offense of Murder, you shall consider the following aggravatingcircumstance which you may believe fromthe evidence beyond a reasonable doubt to be true: (1) The offense of murder was committed by a personwith 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) wascommitted. I' Andwe agree with St. Clair that the trial court's instruction at

issue in this appeal could erroneously allow ajury 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 oftrial . Because thejury 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 thejury based its finding of this aggravator on a qualifying or a non-qualifying conviction. So the trial court's instruction not only failed to followthis 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 thejury on the

12 13 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.") .

. Bumett v . Commonwealth, 31 S.W .3d 878, 883 (Ky. 2000) . See Hardin County case, 174 S.W .3d at 483 ("The second part of instruction number 3was 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 . 6aggravator at issue; and, despite any imprecise language, we did not intend to

retreat fromthe direction to followstatutory 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 ofjury 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 2005opinion 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 informthe Hardin Circuit Court upon remand that it could properly instruct thejury to consider whether it found the aggravating circumstance identified in KRS 532.025(2)(a)(1) ("The offense of murder or kidnappingwas 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, 140S.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 ajury's verdict of guilt was sufficient "prior record of conviction for a capital offense.") . 7In 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 phasejury instructions in our opinion in that case, covering three different aggravators injust 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 fromfollowing 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 maywell conclude fromour own reviewof the evidence that the statutory aggravator is adequately proven, the United States Supreme Court has made clear that such ajudicial 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 instructedjury to satisfy the Sixth Amendment. 17 Thus, with all due respect to our dissenting colleagues, we cannot affirma death sentence based upon a finding of harmless error where thejury 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 thejury 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. convictions that could qualify as a "prior record of conviction for a capital offense" to avoid any possibility that thejury's verdict is not unanimous. For example, a proper instruction could read:

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

In fixing a sentence for the Defendant for the offense of Murder, you shall consider the following aggravating circumstance, which you may believe fromthe 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,

Ring v . Arizona, 536 U

.S. 584, 609 (2002) (holding that Sixth Amendment requires that jury, not sentencingjudge, must find aggravatingfactors 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' . . . ."). 9conviction for the first-degree murder of WilliamHenry Kelsey, Jr. 18 By specifically identifying qualifyingconvictions that can be used as aggravators, the trial court ensures that thejury 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 offenderjury instructions, specific felony convictions are identified to ensure that thejury 

### has relied on a felony conviction qualified for PFOconsiderations. For example, 1 COOPER, KENTUCKYINSTRUCTIONS TOJURIES (CRIMINAL) § 12.29 recommends that part of a second-degree persistent felony offenderjury instructionwould instruct ajury to find whether:

is

19 A. That prior to (date of present offense), the Defendant was convicted of (IDfelony) by final judgment1l 9 1 of the (ID court) on (date-2 [ofjudgment]) . To avoid any possibility that thejury 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, thejury instruction must require thejury In the alternative, "Ronnie St. Clair" could be substituted for "WilliamHenry Kelsey, Jr." St. Clair was convicted for both the first-degree murder ofWilliamHenry 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 ajury verdict of guilt was enough to establish a conviction for purposes of KRS 532.025(2)(a)(1) . 140 S.W .3d at 570 . Thejudgment 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. 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 PFOproceedings or express any opinion on the propriety of the PFOform instructions quoted here. 10specifically to identify the conviction that thejury 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 followthis Court's specific directive to conform to the statutory language and did not ensure that a finding of the aggravator was unanimously made by thejury based on a qualifying prior conviction for a capital offense, we must vacate St. Clair's death sentence and remand for resentencing. III . WE ADDRESS OTHER ISSUES LIKELY TORECUR UPON REMAND.

20 KRS 532.025(2)(a)(1) .

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 thejury that it must consider the non-statutorymitigating factor of his alleged brain damage. To that end, he tendered an instruction that required thejury to consider brain damage as a factor in mitigation. He acknowledges that the trial court's mitigation instruction did ask thejury 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 fromconsidering his brain damage as amitigating factor. Having reviewed the trial court's mitigation instruction, 21

however, this Court rejects the argument that the trial court's instruction prohibited thejury fromconsidering St. Clair's claimed brain damage. The instruction explicitly allowed thejury 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 thejury fromconsidering such evidence as mitigation. In fact, the instruction would allow thejury to consider a broad range of extrastatutory 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:

22 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 ofwhich he has been found guilty, whichyou believe fromthe 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 conformhis 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 conformhis conduct to the requirements of lawis insufficient to constitute a defense to the crime. 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 thejury to take into consideration evidence of St. Clair's brain damage. 12instruct 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 thejury to consider evidence of his brain damage as a mitigating factor.25 But this proposed language overstepped the bounds of proper jury instructions because thejury was not required to accept evidence of brain damage as mitigating. Thejury 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 HearingConsiderations.

24 Tamme v

. Commonwealth, 973S.W .2d 13, 37 (Ky. 1998) ("The instruction on mitigating circumstances included the catch-all provisions, `any other circumstance or circumstances arisingfromthe evidence whichyou, thejury, deemto have mitigatingvalue,' and `those aspects ofthe 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 amitigating 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 ofthe defendant to appreciate the criminalityof his conduct was impaired as aresult of mental illness or retardation or intoxication even though the impairment ofthe capacity ofthe defendant to appreciate the criminalityof his conduct or to conform the conduct to the requirements ofthe law is insufficient to constitute a defense to the crime." 13Because we reverse on other grounds, we decline to resolve whether, as

St . Clair argues, the trial court erred by failing to conduct a Faretta 26 hearing while at the same time effectively allowing St. Clair to act as co-counsel . We gather fromthe 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 himas "lead counsel" and referred to himself as "pro se lead counsel" in pleadings submitted to the trial court. He later withdrewthe 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 thejury. In response to the Commonwealth's inquiries about whether St . Clair might wish to proceed prose 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. 14case.27 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 FromFirst Trial Not Per Se Inadmissible in Re-sentencinv, Trial . We decline to address whether the reading of transcripts of St. Clair's trial testimony fromthe original trial at the re-sentencingtrial 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 fromthe 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 froman 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 limitedwaiver 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 limitedwaiver is made knowingly, voluntarily, and intelligently. Hill, 125 S.W .3d at 226-27. 28 889 S.W

.2d 794, 798 (Ky. 1994) . 15penalty 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 secondjury 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 thejury, and thejury's verdict in the first trial should be admitted. For practical considerations, this Court has refrained fromrequiring "a complete reading to thejury of a verbatimtranscript 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, Boonedoes

29 821 S.W

.2d 813 (Ky. 1992) . 30 Id. at 814. 31 Id. 16not 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.3z 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 testimonywas relevant for providing background information on the crime; for hearing St. Clair's explanation of what had happened; and for assessingaggravating 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 limitedunder Boone to provide only evidence describingthe crime and its elements and his guilty plea to the crime, stating that: "While the types of admissible evidence delineated in Booneare guidelines for the trial court, we do not agree with Appellant that Boone should be read as a strict limitation on the types ofevidence 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 alist ofwhat 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 thejury of the nature of Appellant's crimes. As noted in Booneitself, the sentencingjury 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 admittingrelevant evidence that will sufficiently informthejury of the crimes committed, while avoiding undue prejudice."). (Footnotes omitted) . Seealso Neat v. Commonwealth, 95 S.W .3d 843, 851 (Ky. 2003) (in re-sentencing trial, trial court didnot abuse its discretion in presenting an edited version ofvideotapes from the guilt phase ofthe first trial since parties were unable to agree on summaries in an effort to give thejury some information about the crime committed.). 33The defendant's guilt phase testimony from the first trial should not be excluded as hearsay. See Kentucky Rules of Evidence (KRE) 801 (c) (defining hearsayas statements "other than one made bythe declarant whiletestifying at the trial or hearing . . . ...); KRE 801A(b) (1) (hearsay exception for parties' own statements) . 17parties 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 fromthe first trial is inadmissible.

D . NoAbuse 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 1995executive 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 ofwhether thejury should be made aware of the executive agreement arose during defense counsel's opening statement. Defense counsel informed thejury that St. Clair had already received four consecutive lifewithout-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 1995executive 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 ajudicial 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 18Court 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 anymore 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.") . 19its 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 fromevidence. 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 lifewithout-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 custodyunder certain events. Having stated its factual 35 and legal bases, 36the 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. 2 0IT IS HEREBY AGREEDby 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 FURTHERAGREEDthat, 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 termof 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 fromcustody there, he would then be returned into Kentucky's custody if he still had any termof 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'SLAWDICTIONARY (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 ofa sentence." But see Jacobs v . Commonwealth, 870S.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) . 21established 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 notjustify 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 alsoJacobs, 870S.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 thejury. 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 fromprison 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) . 2 2objection to defense counsel's reference to the document in opening

statement.4

2 St. Clair argues that the trial court failed to accord him his right directly to address thejury in mitigation of punishment. Through counsel, St. Clair filed a pretrial motion requesting to "to make allocution to thejury . . . ." Citing BLAcK's LAW DICTIONARY, he has defined allocution as an unsworn statement to the sentencingjudge orjury.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."4s But Green concerned a federal defendant's right under a federal criminal procedural rule to make such an unsworn statement to the trial courtjudge. That case is inapplicable to St. Clair's request to make an unsworn statement to thejury, who, here, would make a sentencing recommendation but would not impose final sentence.

42 See Mills v. Commonwealth, 310 Ky. 240, 243, 220S.W .2d 376, 378 (1949) (opening statements should not refer to clearly inadmissible matters) . 43

44 365 U.S. 301 (1961) . 45 E. Trial Court Within Its Authority 

### to DenvAllocution.

See BLACK'SLAW DICTIONARY(8th ed. 2004), defining allocution, generally, as "[a]n unsworn statement from aconvicted defendant to the sentencingjudge orjury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anythingelse in aneffort to lessen the impending sentence. " This statement is not subject to cross-examination." 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; andwe have been unable to find any specific references to allocution in that case. 2 3He also cites Section 11 of the Kentucky Constitution's right to be heard

by himself and counsel 46 and argues that Oregon has interpreted a similar provision in its constitution to establish a right for the defendant to an allucatory address to thejury in a sentencing proceeding.47 However, we have not interpreted Section 11 of the Kentucky Constitution as establishing an inviolate right to allocute to thejury 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 allowthe trial court to allow

or disallowallocutory statements to thejury.49 Because we have found no right of allocution to thejury under our Kentucky Constitution or other authority and because the trial court had broad discretion in the conduct of its proceedings to allow or disallowsuch 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 thejury, 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 tojury but recognizing broad discretion of trial court to establish limits on content and duration of statement) . 48 Furnishv

. Commonwealth, 267 S.W .3d 656, 663 (Ky. 2007) . 49 Id. at 664. 2 4St. Clair contends that the trial court improperly allowed victim- impact

testimonyin 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 thejury 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 51 52 See, e .g., Bowling v

. Commonwealth, 942 S.W .2d 293, 303 (Ky. 1997) . 501 U .S. 808 (1991) . See id. at 827 ("We thus hold that ifthe State chooses to permit the admission of victimimpact evidence and prosecutorial argument onthat 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 maybe authorized, thejudge shall consider, or he shall include in his instructions to thejury for it to consider, anymitigating circumstances or aggravatingcircumstances otherwise authorized by law and any of the following statutory aggravating or mitigating circumstances which maybe supported by the evidence: . . . [lists of aggravating and mitigatingfactors] ." 2 5allows the consideration of victimimpact evidence,s4 this consideration is

"otherwise authorized by law ." So victimimpact 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. Thevictim-impact evidence presented at, the re-sentencing proceeding in the formof testimony of victimFrank Brady's daughter about his personality characteristics, hobbies, and family connections covered less than ten transcribed pages. Brady's daughter's testimonywas neither inappropriate nor excessive. It provided some description of the victimas a "unique human being," rather than a mere statistic, without glorifyingor 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 thejury, if such case was tried before ajury. In the hearing thejury 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 victimor victims, as defined in KRS 421 .500, including a description of the nature and extent of any physical, psychological, or financial harmsuffered by the victimor 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") . 26So 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 EdPavneTestimony. 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 thejury's presence about St. Clair's family's belief that these Oklahomavictims 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 victimimpact evidence presented was not unduly prejudicial where it provided a "quick glimpse" of the victimas a unique human beingwithout glorifying or enlarging the victim) . 27Having reviewed Payne's testimony before thejury and his avowal

testimony, we find no error 

## in the trial court's handling ofthis evidentiary matter. In the presence of thejury, Payne was asked whether, based on his own knowledge, the two Oklahomavictims 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 ofviolence 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 himto 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 thejury many of the points he wished to make: the history of mental illness in his family, the fact that these Oklahomavictims were not strangers to him, and the victims' history of "prior incidents" with him . On avowal, defense counsel asked Paynewhether, as a result of his investigation, testimony presented in the courtroomand 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 28several members of the St. Clair family believed Large had shot St. Clair's

brother, resultingin paralysis. When asked the "same question" about any knowledge of a history between victimMary 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 injail . 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. Andwhile St. Clair's own state of mind at the time of these other crimes might be avalid consideration in the present re-sentencing, other family members' declarations regarding St. Clair's state of mind would not be admissible because the stateof-mind exception to the hearsay rule is only applicable when the declarantmakes 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 thejudgment 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 inwhich 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 ofAppellant'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 victimin this case.") (citation omitted) . 30SCOTT, J., CONCURRING, IN PART, ANDDISSENTING, 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 hearingwas required when Appellant's only action as "de facto" co-counsel was to file pro se motions outside the presence of thejury. 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 thejury. He did not ask questions of the witnesses nor did he make opening or closing statements. His only participation upon being made co1 Faretta v. California, 422 U .S. 806 (1975) ; Hill v

. Commonwealth, 125 S.W .3d 221 (Ky. 2004) . 31counsel was to file pro se motions [outside the presence of thejury]

and, like other defendants, confer with his counsel . Matthews never waived his right to counsel in any manner. [Thus, no] Faretta for Hill] hearingwas required in this circumstance. 168S.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 withdrawthat 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, alongwith the Defendant personally, that no further ProSe 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 fromhis 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 fromSt. 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 hadjust 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." 32considered 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 goingto 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 thejury 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 thejury. 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 occurringin 1991 . 33Because 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 informthe defendant of his right to proceedprose. 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 willingand 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 performthe direct and crossexamination 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. 34Thus, like Matthews, there is no assertion that St. Clair participated as

counsel or co-counsel at trial in front of ajury, 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 doingwhat the Court directed it to do by virtue of our pronouncements in St. Clair II (Ky .) . St . Clair had four murder convictions in Oklahoma. 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 thejury'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: Twoof these

In all cases inwhich the death penalty may be imposed and which are tried by ajury, upon a return of a verdict of guilty by thejury, the court shall resume the trial and conduct a presentence hearing before thejury. Such hearing shall be conducted in the same manner as presentence hearings conducted before thejudge 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, thejudge shall give thejury appropriate instructions, and thejury 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, thejudge shall fix a sentence within the limits prescribed by law . 3 5571 (["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 ajury's or ajudge's verdict of guilty." St. ClairII, 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 thejury 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 againconsidered 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 140S.W .3d at 562, 571 . Yet, in St. Clair III (Ky .), we concluded that "this instruction was 36correct. 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 followthis 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 thejury'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 whichyou may believe fromthe 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 ofWilliamHenry Kelsey, Jr.

37Slip 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 thejury 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. 38court 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. Ifwe 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 ajury of two counts of murder in Oklahoma prior to the murder of Francis Brady. This testimony, alongwith the other guilt-phase testimony, was introduced verbatimin 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 thejury 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 goingto err - they would have found all four convictions of which they were permissiblyaware. 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) .") And, therefore, given that thejury undoubtedly found (at least) both permissible convictions (of the four)

- ones we tookjudicial 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

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

have swayed thejury wrongfully assumes a "doubling impact" of the convictions on thejury. This is a point I cannot accept for the reason that an itemof evidence attains its maximum impact upon ajury at the moment of introduction (within the context of the other evidence), not upon its subsequent reviewin thejury room . For the foregoing reasons, I must respectfully dissent and would affirm thejudgment and sentence of the Bullitt Circuit Court. Cunningham, J., joins. CUNNINGHAM, J ., CONCURRING, IN PART, ANDDISSENTING, 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 froman Oklahomajail 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 byTrooper 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. 4 0KRS 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 EdwardJefferson 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 byAppellant 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 loomlarge 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 - 41according to my count -- at least six innocent people. He is not entitled to a

perfect trial . NoAmerican 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 affirmthe conviction. Scott, J., joins.

COUNSEL FORAPPELLANT: Donna Lynn Boyce Appellate Branch Manager Department of Public Advocacy 100Fair 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 40601COUNSEL FORAPPELLEE:

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 FranklinTodd Lewis Executive Director Office of the Attorney General Office of Special Prosecutions 1024 Capital Center Drive Frankfort, Kentucky 40601 WilliamRobert Long, Jr. Assistant Attorney General Criminal Appellate Division 1024 Capital Center Drive Frankfort, Kentucky 40601-8204MICHAEL DALE ST. CLAIR APPELLANT ONAPPEAL FROM

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

# ,$upruar (~ourf of ~irufurkV

2005-SC-000828-MR

COMMONWEALTH OF KENTUCKY APPELLEE

ORDERDENYINGPETITION FORREHEARING

ANDMODIFYING OPINION TheAppellee having filed a Petition for Rehearing of the Opinion of the Court by ChiefJustice Minton, rendered April 22, 2010; and the Court beingotherwise 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 ChiefJustice Minton, rendered April 22, 2010, to correct footnote numbering errors. The attached opinion is SUBSTITUTEDin 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.