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St. Clair v. Commonwealth

Supreme Court of Kentucky

August 21, 2014


Released for Publication February 19, 2015.

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COUNSEL FOR APPELLANT: Susan Jackson Balliet, Samuel N. Potter, Robert Chung--Hua Yang, Assistant Public Advocates, Department of Public Advocacy, Frankfort, Kentucky.

COUNSEL FOR APPELLEE: Jack Conway, Attorney General, William Robert Long, Jr., Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, Kentucky.

OPINION OF THE COURT BY JUSTICE NOBLE. All sitting. All concur. Cunningham, J., also concurs by separate opinion.


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Michael D. St. Clair has previously been convicted of capital murder and sentenced to death. On remand and retrial of the penalty phase of his trial, he has again been sentenced to death. In this matter-of-right appeal, conducted concurrently with this Court's mandatory review of the death sentence, he raises 32 claims of error, some of which go to his conviction. None of those claims require reversal; this Court concludes that the death sentence was legally imposed here. St. Clair's conviction and sentence are affirmed.

I. Background

The facts of the underlying offenses have been described in detail in the opinion addressing St. Clair's first direct appeal, see St. Clair v. Commonwealth, 140 S.W.3d 510, 524-25 (Ky. 2004) ( St. Clair I ), but a brief summary of those facts is necessary to frame the issues in the current appeal.

In 1991, St. Clair was in prison in Oklahoma awaiting sentencing for his conviction for two murders.[1] He and another inmate, Dennis Gene Reese, escaped from prison in a stolen truck. Soon after, they stole another truck from Vernon Stephens, and a .357 Magnum Ruger Black Hawk revolver and ammunition that were used in later crimes, and fled the state. After travelling to Colorado, they kidnapped Timothy Keeling and stole his truck. They drove through New Mexico and, before returning to Texas, murdered Keeling. They then travelled through several southern states before ending up in Hardin County, Kentucky in October 1991.

In Hardin County, they kidnapped Frances Brady (also known as Frank Brady) and stole his pickup truck. They transported Brady to Bullitt County, where they murdered him execution style.

Soon after, Kentucky State Trooper Herbert Bennett stopped Reese and St. Clair in Brady's truck in Hardin County. St. Clair fired shots at the trooper's vehicle, allowing Reese and St. Clair to flee the scene. They parted ways and were later arrested separately.

In February 1992, St. Clair and Reese were jointly indicted in Bullitt County for Brady's murder. Reese pleaded guilty and agreed to testify for the Commonwealth. St. Clair pleaded not guilty.

The case went to trial in 1998. St. Clair testified and claimed an alibi defense. The primary factual issue at trial was whether Brady had been killed by St. Clair, Reese, or an unidentified accomplice. The jury convicted St. Clair of the murder, and the trial court sentenced St. Clair to death in accordance with the jury's recommendation.[2]

This Court affirmed the conviction but remanded for a new capital sentencing phase trial because the jury was not instructed on life without the possibility of

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parole as a sentencing alternative. St. Clair I, 140 S.W.3d at 526.

In September 2005, St. Clair was again sentenced to death. In April 2010, this Court reversed that sentence and remanded for a new sentencing phase because the jury instructions on statutory aggravators did not conform to the statutory language. See St. Clair v. Commonwealth, 319 S.W.3d 300, 306-08 (Ky. 2010) ( St. Clair II ).

Shortly after, in July 2010, St. Clair moved for a new trial, claiming that new evidence about comparative bullet lead analysis (CBLA) evidence, which had been used in the guilt phase of his 1998 trial, had been discovered. Specifically, the new proof was that CBLA had been found to be unreliable and thus inadmissible. This was a collateral attack on the conviction. The circuit court did not rule on the motion until January 2011, at which time it denied the motion. Initially, St. Clair sought interlocutory relief at the Court of Appeals, but he voluntarily dismissed the action when the Commonwealth argued that the order was interlocutory and could be consolidated with the appeal of the sentence, which at that time had yet to be decided. The circuit court agreed with this argument, noting that a Criminal Rule 10.02 motion, like a new trial motion under Civil Rule 59.01, becomes part of the appeal of the judgment.

In October 2011, the circuit court again held a sentencing trial lasting nine days. The jury was chosen in the first four days, and the proof occupied the next four days. The Commonwealth's proof consisted of summaries of testimony from some of the witnesses from the guilt phase of the trial and live testimony from numerous other witnesses, including Reese. On the last day, the jury deliberated for a little over two hours and returned a death-penalty verdict. St. Clair was later sentenced in accordance with that verdict.

St. Clair's appeal, encompassing both the denial of his new-trial motion and his death sentence, is now before this Court as a matter of right. See Ky. Const. § § 110(2)(b) & 115; Leonard v. Commonwealth, 279 S.W.3d 151, 155 (Ky. 2009) ( " This Court has exclusive appellate jurisdiction over death penalty matters, even when the appeal involves a collateral attack on a sentence of death." ).

II. Analysis

St. Clair's thirty-two claims to this Court fall into two broad areas. Three of his claims, the CBLA claim plus two others, are aimed at the underlying conviction, and can only be raised at this point under limited circumstances, since his conviction has previously been affirmed by this Court. The remaining claims are part of the direct appeal of his most recent death sentence, though some of them touch on our statutory review under KRS 532.075 and are discussed with that review. Because of procedural issues affecting only the first group of claims, we address them separately.

Before turning to St. Clair's claims, however, it is useful to first lay out the scope and nature of this Court's review in a death-penalty case. As noted above, appeals of cases in which a defendant has been sentenced to death proceed to this Court as a matter of right. But this Court is also statutorily charged with reviewing death sentences. See KRS 532.075. That review requires this Court to " consider the punishment as well as any errors enumerated by way of appeal." KRS 532.075(2).

In death penalty cases, " [p]reserved errors are reviewed under normal standards." Meece v. Commonwealth, 348 S.W.3d 627, 645 (Ky. 2011). Such errors

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are subject to harmless-error review, except in certain cases. See RCr 9.24.

In ordinary criminal cases, unpreserved errors are reviewed only under the palpable error rule, RCr 10.26, a substantially higher standard than that employed in harmless-error review. But " [d]eath is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers." Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky. 1999); Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (" the penalty of death is different in kind from any other punishment imposed under our system of criminal justice" ). " Thus, the invocation of the death penalty requires a more expansive standard of review than is normally necessary in the criminal justice process." Meece, 348 S.W.3d at 645.

Under this more expansive review, " we nonetheless review allegations of these [unpreserved] quasi errors." Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky. 1990). That review proceeds as follows:

Assuming that the so-called error occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel's failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed.

Id. In other words, if the failure to object was due to trial tactics, the unpreserved error will still be given only palpable error review under the manifest injustice standard. If the failure to object has no reasonable basis, then the raised error will be reviewed for prejudice as ordinary error, although unpreserved. This standard, however, is applicable only to issues properly raised in the direct appeal. As discussed below, some of St. Clair's claims are not properly raised in this appeal, having been addressed previously or procedurally defaulted because they were not raised previously, and thus they are not subject to this standard.

A. Claims about the underlying conviction for murder.

As noted above, three of St. Clair's claims are attacks on his underlying murder conviction. Those claims are that a new guilt phase is required because of changes in this Court's interpretation of KRE 404(b), an impermissibly suggestive identification affecting St. Clair's due-process rights, and new forensic evidence about comparative bullet lead analysis (the basis of the Criminal Rule 10.02 motion).

Since St. Clair's conviction for murder has previously been affirmed, see St. Clair I, 140 S.W.3d at 523, 572, directly appealable[3] issues related to the guilt phase of his trial and addressed on appeal would ordinarily be barred in any subsequent appeal, direct or otherwise, by the law-of-the-case doctrine, see Bowling v. Commonwealth, 377 S.W.3d 529, 535 (Ky. 2012). And those issues that had not been previously raised to the trial court, but could have been, would be treated as procedurally defaulted. See Fischer v. Fischer, 348 S.W.3d 582, 588, 594 (Ky. 2011).

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1. The KRE 404(b) challenge is barred by the law-of-the-case doctrine.

St. Clair admits in his brief that he " challenges here the same prior bad acts that were challenged in his first appeal." (Appellant's Br. at 17.) This KRE 404(b) claim was litigated and rejected in his first appeal. See St. Clair I, 140 S.W.3d at 535-36. Under the law-of-the-case doctrine, " an appellate court, on a subsequent appeal, is bound by a prior decision on a former appeal in the same court." Inman v. Inman, 648 S.W.2d 847, 849 (Ky. 1982). As it applies to the circumstances in this case, the rule means that " issues decided in earlier appeals should not be revisited in subsequent ones." Brown v. Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010). That bars this Court from revisiting St. Clair's already decided issue. In simple parlance, he only gets one bite at each apple, and this apple was bitten long ago.

Nevertheless, St. Clair claims that he should be allowed to raise this issue anew, despite the law-of-the-case doctrine, because of alleged changes in the law that would now bar the admission of the complained-of evidence. He cites Estep v. Commonwealth, 64 S.W.3d 805, 812 (Ky. 2002), as supporting an exception to the law-of-the-case doctrine. In that case this Court stated:

The law of the case doctrine does not apply where the controlling law changes in the interim, and the issue is not ripe until the change in controlling law occurs; otherwise, " [a]pplication of the law of the case doctrine would require every defendant and every prosecutor to immediately challenge every aspect of the law involved in the case or forever be denied relief."

Id. at 812 (quoting Sherley v. Commonwealth, 889 S.W.2d 794, 798, 1 19 Ky. L. Summary 8, 41 13 Ky. L. Summary 28 (Ky. 1994)).

Even assuming that the law on other bad acts has changed since his initial appeal,[4] St. Clair is not entitled to relief. The exception to the law-of-the-case doctrine discussed in Estep and Sherley is not nearly as broad as St. Clair claims.

This exception is limited to instances where the issue has not previously been raised because it was " unripe" due to the law being against the defendant's position at the time. See Sherley, 889 S.W.2d at 798. Sherley suggested that the purpose of this exception is so that defendants and prosecutors do not have " to immediately challenge every aspect of the law involved in the case or forever be denied relief." Id. St. Clair strenuously litigated and appealed--and lost--the KRE 404(b) issue at his 1998 trial, and that result was upheld in the 2004 decision by this Court. St. Clair cannot take advantage of an exception designed to account for issues that have never been litigated when, in fact, he litigated the issue. The law-of-the-case doctrine exists to " serve the important interest litigants have in finality, by guarding against the endless reopening of already decided questions, and the equally important interest courts have in judicial economy, by preventing the drain on judicial resources that would result if previous

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decisions were routinely subject to reconsideration." Brown, 313 S.W.3d at 610.

This exception to the law-of-the case rule is for the " limited situation where the controlling law changes after reversal of a conviction but prior to a subsequent re-trial." Sherley, 889 S.W.2d at 798. St. Clair's conviction in the guilt phase has been affirmed and is final. His retrials have only been of the penalty phase, not the guilt phase. The exception does not apply to his situation.

St. Clair emphasizes in his reply brief that the law-of-the-case doctrine is discretionary. No doubt, the rule " is a prudential doctrine, ... not a jurisdictional one," Brown, 313 S.W.3d at 610; it " directs a court's discretion" but " does not limit the tribunal's power," id. (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). But that is why we have exceptions to the rule as described above. And St. Clair does not meet any of the exceptions.

Application of the law-of-the-case doctrine is appropriate here to " guard[] against the endless reopening of already decided questions." Id. St. Clair has already had one appeal of the KRE 404(b) questions; he does not get a second.

2. The challenge to the identification is procedurally barred because it could have been raised in the first appeal.

St. Clair admits that his claim about the purportedly suggestive identification was not raised at trial or litigated in the first appeal. At this point, appeal of that issue is procedurally barred.

First, " [i]t has long been this Court's view that specific grounds not raised before the trial court, but raised for the first time on appeal will not support a favorable ruling on appeal. Most simply put, '[a] new theory of error cannot be raised for the first time on appeal.'" Fischer, 348 S.W.3d at 588 (quoting Springer v. Commonwealth, 998 S.W.2d 439, 446, 46 6 Ky. L. Summary 38 (Ky. 1999)) (second alteration in original).

But, as St. Clair notes, the standard of review of unpreserved errors in death penalty cases is much looser than it is for regular cases. That would be an appropriate consideration if this was the first appeal.

St. Clair has already had a chance to raise this claim on appeal. He is entitled to only one appeal as a matter of right. " Generally, a litigant may not raise on a subsequent appeal any question that could have been raised as well as those that were raised upon a former appeal." Hampton v. Commonwealth, 133 S.W.3d 438, 444 (Ky. 2004) (emphasis added). " [A]n extension of the core law-of-the-case doctrine is the rule that precludes an appellate court from reviewing not just prior appellate rulings, but decisions of the trial court which could have been but were not challenged in a prior appeal." Brown, 313 S.W.3d at 610. This is " a type of waiver" that " hinges ... on the party's inaction in failing to raise the issue in a manner consistent with the court's general policy against piecemeal appeals." Id. We stated in Brown that this " waiver rule applies only where a 'ruling of law is made based on existing law and that ruling has gone unchallenged during the original appeal.'" Id. at 611 (quoting Sherley, 889 S.W.2d at 798). St. Clair has not claimed that the law on identifications has changed since his trial. In fact, one of the primary authorities on which he relies was decided in 1972. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Regardless, Brown's " existing law" limit on the waiver would not allow the issue to be raised here even if the law had changed. That limit applies when the trial court has ruled, expressly or impliedly,

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on a question, but it does not apply when the litigant fails completely to raise the issue before the trial court or on the first appeal but nevertheless could have done so. This is why issues that could have been raised on the direct appeal cannot be raised in a collateral attack. See Leonard v. Commonwealth, 279 S.W.3d 151, 156 (Ky. 2009). And if such issues cannot be raised collaterally, then obviously they cannot be raised in a subsequent direct appeal of the part of the judgment that was reversed and retried if they relate to the portion of the judgment that was affirmed. Otherwise, St. Clair would essentially get a second direct appeal of his conviction.

This Court concludes that a litigant in St. Clair's position cannot raise an issue for the first time in such a second appeal. Indeed, if his sentence had not been reversed (requiring re-trial of the penalty phase), he would have had no opportunity to raise this issue. He is not entitled to a second direct appeal of his murder conviction tacked onto the appeal of the re-tried penalty phase. His claim, therefore, is procedurally barred. Cf. Leonard, 279 S.W.3d at 156 (applying a " pure procedural bar" to issues " that could and should have been litigated in the direct appeal" ).

3. The revelations about CBLA evidence do not justify a new trial in light of the evidence of St. Clair's guilt.

St. Clair's complaint about the use of the comparative bullet lead analysis (CBLA) proof[5] in the guilt phase of his trial is properly before this Court, however, because the motion was timely and does reference a change in the science and law that had not occurred in 1998 when this case was tried to completion in the guilt phase, which has been appealed and is now final as previously mentioned.

CBLA is a technique by which an expert compares the lead in a bullet or bullet fragments to that in another bullet and, based on trace amounts of other elements in the compared specimens, attempts to determine whether they came from the same source. Using the technique, experts have suggested, for example, that different bullets " originated from the same batch of molten lead," and claimed that this suggested the bullets did, or could have, come from the same box. Ragland v. Commonwealth, 191 S.W.3d 569, 576 (Ky. 2006). The basis for this theory was the belief that a batch of bullet lead was homogenous, i.e., with the same levels of trace elements throughout, and that " analytically identical" bullets were thus from the same batch. Id. at 577.

But CBLA, which was previously thought to be based on sound science, is now known to be unreliable as it has previously been practiced--so much so, that the FBI has discontinued its use. Id. at 579-80.[6] In essence, the technique fails because the fact of two bullets being analytically identical is not statistically significant.

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Id. It has been determined that the technique cannot show, nor can it even suggest, that there is a substantial probability that a bullet came from a given box of bullets. Id. Thus, it is clear that there was a substantial change in the scientific understanding of the composition of bullet lead and the conclusions that could be drawn from it. Id. at 580 (" [N]either scientists nor bullet manufacturers are able to definitely attest to the significance of an association made between bullets in the course of bullet lead examination." (quoting Press Release, U.S. Dep't of Justice, Fed. Bureau of Investigation (Sept. 1, 2005))).

Based on this change in the science, this Court concluded that CBLA evidence, as previously understood and used, is inadmissible. See id. (" If the FBI Laboratory that produced the CBLA evidence now considers such evidence to be of insufficient reliability to justify continuing to produce it, a finding by the trial court that the evidence is both scientifically reliable and relevant would be clearly erroneous, and a finding that the evidence would be helpful to the jury would be an abuse of discretion." (citation omitted)).

The CBLA issue was brought to St. Clair's attention by a letter from the FBI to the Commonwealth in 2009, forwarded to his counsel, which stated that CBLA was not scientifically reliable and could not be used to match bullets. It also stated the FBI had previously undertaken a review of the CBLA evidence in St. Clair's case " to determine if there was a suggestion by the examiner that a bullet fragment ... was linked to a single box of ammunition without clarification that there would be a large number of other bullets or boxes of bullets that could also match those fragments" and had mistakenly concluded that the testimony had been " appropriate." The letter noted that the CBLA testimony in St. Clair's case was inappropriate because " the examiner failed to provide sufficient information to the jury to allow them to understand the number of bullets produced from a single melt of lead."

Unlike, the KRE 404(b) question discussed above, there has been a substantial change in the law concerning CBLA proof; more importantly, there has been a significant factual change in the scientific understanding of the proof used at trial. And though St. Clair did not raise the issue in the prior trial, he is not foreclosed from raising the CBLA claim because it was not ripe in 1998. At the time, the forensic scientific community, or at least the FBI and thus the courts, believed the technique was a valid one. In fact, it appears that substantial challenges to the understanding of CBLA may have only begun around the time of St. Clair's first trial. See id. at 578 (noting critical publications in 2002 and 2003).[7]

And St. Clair has litigated this issue through the proper procedural channel, a motion for a new trial under Criminal Rule 10.02, rather than attempting a

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successive matter-of-right appeal. Criminal Rule 10.02 allows a defendant to move for " a new trial for any cause which prevented the defendant from having a fair trial, or if required in the interest of justice." RCr 10.02(1). Proper grounds for such a motion include the discovery of new evidence. See RCr 10.06(1) (noting " newly discovered evidence" as grounds for a motion for a new trial).[8]

St. Clair's motion in the circuit court alleged that new evidence, specifically the letter from the FBI discussing the flaws in CLBA, had been discovered, and that this proof showed that the use of CBLA evidence in the 1998 trial was error.

In the 1998 trial, FBI Special Agent Ernest Peel testified that, based on CBLA, the bullets[9] used to kill Timothy Keeling in New Mexico were " very close in composition" to those used to kill Frank Brady, and that " [i]t would make sense that all of these [compared bullets] are from the same box." He also testified that while bullets in a single box might have some differences, " those differences are not very great" and that " if you're looking at any two pieces of lead and you find that they have the same composition, that is when you would expect if they were in the same box" or at least packaged " on or about the same date." He also testified that the bullets fired at Trooper Bennett were compositionally different from the others.

On cross-examination, Agent Peel admitted that bullets in a single box can come from different batches because there is some " mixing of different compositions" and that he couldn't rule out that the bullets had come from different boxes, even though they may have been made at the same time.

The trial court denied St. Clair's motion for a new trial on the basis that Agent Peel had been " extremely cautious in his conclusions," and emphasized that Agent Peel had admitted that the bullets could have come from different boxes. The trial court concluded that the CBLA evidence was " inconsequential" and " harmless."

On appeal, St. Clair maintains that the CBLA evidence was error, at least in light of the new evidence concerning the technique, and that he was substantially prejudiced by it. He claims that the CBLA evidence was the only evidence aside from Dennis Reese's testimony directly tying him to the murder of Timothy Keeling. He also claims that the Commonwealth emphasized the CBLA testimony in its closing argument. He claims that the evidence was so prejudicial that it tainted his 1998 conviction and the 2011 death sentence that depended on the 1998 guilty verdict.

There is no question that the CBLA evidence would not be permitted today. The change in scientific understanding of bullet lead composition is new

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evidence that, if sufficiently prejudicial, could require a new trial as it did in Ragland, albeit in the direct appeal of that case.[10] But the mere fact that such evidence would now be inadmissible does not mean that St. Clair is entitled to a new trial. Indeed, this Court has declined to reverse at least one capital conviction, despite the admission of CBLA evidence at trial, because the defendant was not sufficiently prejudiced. See Bowling v. Commonwealth, 2006-SC-000034-MR, 2008 WL 4291670, slip op. 4-5 (Ky. Sept. 18, 2008) (unpublished).

To warrant a new trial, " newly discovered evidence 'must be of such decisive value or force that it would, with reasonable certainty, change the verdict or that it would probably change the result if a new trial should be granted.'" Collins v. Commonwealth, 951 S.W.2d 569, 576, 44 11 Ky. L. Summary 21 (Ky. 1997) (quoting Coots v. Commonwealth, 418 S.W.2d 752, 754 (Ky. 1967)). And this Court reviews the trial court's denial of a new-trial motion based on newly discovered evidence for abuse of discretion. Bedingfield v. Commonwealth, 260 S.W.3d 805, 810 (Ky. 2008). This Court cannot say that the Bullitt Circuit Court abused its discretion in denying St. Clair's motion.

Simply put, the CBLA proof, which never claimed that the bullets had to have come from the same box, was only part of a large amount of evidence presented against St. Clair. As this Court previously described it, the proof consisted of Reese's testimony directly implicating St. Clair as Frank Brady's killer, along with the following:

(1) Trooper Bennett's identification of [St. Clair] as the man who had fired two shots in his direction on the night of the murder; (2) another man's identification of [St. Clair] and Reese as being in possession of a vehicle similar to Brady's vehicle at a gas station/convenience store in the area; (3) testimony relating to telephone calls made to [St. Clair's] friends and relatives back in Oklahoma from a payphone located at this same gas station/convenience store; (4) testimony identifying items found in Kentucky--on the victim's person and in his pickup truck--as similar to or the same items that [St. Clair's] then-wife had given to [St. Clair] and Reese when she met them in Texas; (5) a jailhouse informant, Scott Kincaid (" Kincaid" ), who testified that [St. Clair] had admitted his involvement in the crime; (6) ballistics evidence demonstrating that the same handgun could have fired the shots that killed both Keeling and Brady and damaged Trooper Bennett's cruiser and bullet composition evidence suggesting that bullets from the same box killed Keeling and Brady; and (7) testimony to the effect that [St. Clair's] fingerprints were found both on items recovered from inside the Brady vehicle and on the outside door of the same vehicle.

St. Clair I, 140 S.W.3d at 525.

The CBLA evidence, included under item (6), was but a small part of the overall proof. Moreover, the CBLA evidence was not the only forensic proof tying the gun to both the Keeling and Brady murders.

Additionally, FBI expert, Special Agent Richard Crum, testified about the bullets recovered from the bodies of Keeling and Brady, and bullets recovered from the scene of the attempted shooting of the state trooper. This testimony was not based on CBLA. Instead, Agent Crum did traditional ballistics analysis of the bullets,

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along with empty shell casings retrieved from the house from which the gun had been stolen in Oklahoma. Agent Crum's analysis looked at the physical markings from the barrel of the gun left on the bullets and the shell casings. He concluded that the markings on the bullets and shell casings from Reeling's and Brady's killings were all " similar," [11] and that a .357 Magnum Ruger Black Hawk, the gun that St. Clair and Reese stole in Oklahoma, " could have fired" the bullets that killed Keeling and Brady.[12] While Agent Crum's testimony was less sure of the connection than that of Agent Peel, it was nevertheless expert testimony suggesting a connection between the bullets on which the jury could have relied at least in part in finding St. Clair guilty.

More importantly, the other proof, including direct testimony from Reese that St. Clair was present and shot Frank Brady, presents a compelling case for St. Clair's guilt that does not rely on the experts' testimony. That Reese was a convicted felon and subject to various forms of impeachment does not change this, since the jury could still believe his testimony and, in fact, was the sole decider of questions of credibility and weight of the evidence.

In Ragland, this Court concluded that the CBLA evidence used in that case could not be harmless because the conviction was based only on circumstantial evidence and the CBLA evidence " was the only evidence linking [the defendant] to the murder bullet." Ragland, 191 S.W.3d at 582. That is not the case here. There was substantial evidence that St. Clair was a full participant in the crime spree with Reese and that St. Clair killed Frank Brady.

In light of that evidence, the Bullitt Circuit Court concluded that " the bullet lead composition analysis is inconsequential, and its use, if error, was harmless." In light of the other evidence in this case, there is little chance, much less a reasonable certainty, that St. Clair would have received a different verdict given what we now know about the limits of CBLA, nor is it probable that the result would change if a new trial was granted. St. Clair does not meet the requirements for a new trial under Collins and Coots. Thus, we conclude that the Bullitt Circuit Court did not abuse its discretion in denying St. Clair's motion for a new trial.

St. Clair also suggests in his opening brief that even if he is not entitled to a new trial of his guilt, the reading of a summary of the expert testimony in his sentencing re-trial requires reversal of his death sentence. However, as the Commonwealth points out, and St. Clair admits in his reply brief, Agent Peel's testimony was not summarized for the re-sentencing jury in 2011. It therefore had no effect on that jury's decision to impose a sentence of death. (The argument that this testimony had an indirect effect on the re-sentencing jury because it ...

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