MICHAEL D. ST. CLAIR, APPELLANT,
COMMONWEALTH OF KENTUCKY, APPELLEE
Released for Publication March 12, 2015.
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ON APPEAL FROM HARDIN CIRCUIT COURT. NOS. 91-CR-00207-002 AND 92-CR-00002-002. HONORABLE THOMAS O. CASTLEN, JUDGE.
FOR APPELLANT: Susan Jackson Balliet, Robert Chung-Hua Yang, Assistant Public Advocates Department of Public Advocacy, Frankfort, Kentucky; Samuel N. Potter, Assistant Public Advocate Department of Public Advocacy, Frankfort, Kentucky.
FOR APPELLEE: Jack Conway, Attorney General, William Robert Long, Jr., Assistant Attorney General Office of Criminal Appeals, Office of the Attorney General, Frankfort, Kentucky.
Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ., sitting. All concur.
Michael D. St. Clair was convicted of capital kidnapping and other crimes, and was sentenced to death. In this matter-of-right appeal, conducted concurrently with this Court's mandatory review of the death sentence, he raises 35 claims of error. This Court ultimately concludes that evidence of another murder allegedly committed by St. Clair and evidence of that murder victim's background were improperly admitted in this prosecution for kidnapping.
That evidence was prejudicial, and thus St. Clair's convictions are reversed.
St. Clair actually has two independent cases related to the same victim, one for capital murder and one for capital kidnapping, each tried in a different county. Convictions in both lines of cases have previously been reversed, and St. Clair has been retried and again convicted in both lines. This Court has affirmed his most recent murder conviction and sentence of death. See St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 WL 4113014 (Ky. Aug. 21, 2014) ( St. Clair Bullitt II ). This appeal arises from the parallel kidnapping case, which was re-tried in 2012.
The facts of the underlying offenses have been described in detail in the opinions addressing St. Clair's prior appeals. See St. Clair v. Commonwealth, 140 S.W.3d 510, 524-25 (Ky. 2004) (St. Clair Bullitt 1); St. Clair v. Commonwealth, 174 S.W.3d 474, 477 (Ky. 2005) ( St. Clair Hardin ). Nevertheless, because this appeal stems from a retrial of the entire kidnapping case, 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. He and another inmate, Dennis Gene Reese, escaped from jail in a stolen truck. Soon after, they invaded the home of Vernon Stephens, and stole his truck, and a .357 Magnum Ruger Black Hawk revolver and ammunition that were used in later crimes. They then fled the state.
St. Clair claimed at trial that they soon separated in Texas, with Reese travelling to Colorado and New Mexico before meeting up again in Texas. St. Clair claimed he remained in Texas. Reese, however, claimed they travelled together to Colorado. There, according to Reese, they kidnapped Timothy Keeling and stole his pick-up 1998 trial in Kentucky, and was given consecutive life sentences for them. truck. They drove through New Mexico and, before entering Texas, one of them shot Keeling to death. (At trial, each claimed the other committed this murder.)
From Texas, St. Clair and Reese travelled through several southern states before ending up in Hardin County, Kentucky in October 1991.
In Hardin County, Frances Brady (also known as Frank Brady) was kidnapped and his pick-up truck was stolen. Shortly thereafter, he was killed in nearby Bullitt County.
St. Clair claimed that he was not involved in these crimes, testifying that Reese approached Brady alone and got into his truck and that the men drove away. St. Clair claimed he next saw Reese some time later when he returned alone with Brady's truck.
Reese testified that St. Clair participated in kidnapping Brady and that they transported Brady to Bullitt County together, where St. Clair murdered the man execution style. They then returned to Hardin County.
Regardless of what led them there, both men's stories converge with their setting fire to Keeling's truck in Hardin County shortly after Brady was killed. Witnesses to the fire called the Kentucky State Police and described Brady's truck, which had been seen near the fire. Kentucky State Trooper Herbert Bennett saw a truck matching the description and pulled it over
in Hardin County. Reese and St. Clair were in the truck, which turned out to be the one stolen from Brady. A fight ensued, with St. Clair firing two shots in the trooper's direction. One of the shots hit the radiator of the police car. This allowed Reese and St. Clair to flee the scene and elude the trooper in a high-speed chase after his car died. St. Clair and Reese soon parted ways and were later arrested. separately. St. Clair was caught in Oklahoma.
In December 1991, St. Clair was indicted in Hardin County for the kidnapping of Brady, the attempted murder of Trooper Bennett, two counts of receiving stolen property (both pick-up trucks), and second-degree arson (for burning Keeling's pick-up truck). In 1992, he was indicted in Bullitt County for the murder of Brady.
At that time, St. Clair was in Oklahoma waiting to be extradited to Kentucky. The Commonwealth decided that the Indictments should be tried together and moved ex parte to have venue changed in the Hardin County case so that it could be joined with the Bullitt County case. The motion was granted, and the Hardin County offenses (kidnapping and others) were transferred to be tried with the Bullitt County offenses (murder and others). After his extradition, St. Clair moved to have the indictments severed, arguing lack of notice of the change of venue motion, which was not served on St. Clair as required by KRS 452.220(1), and that the Commonwealth had not shown an inability to obtain a fair trial as required by KRS 452.210. That motion was granted, and the kidnapping indictment was returned to Hardin County.
The Bullitt County murder case went to trial first, in 1998, and St. Clair was convicted and sentenced to death. (Although that conviction was reversed, St. Clair has since been re-convicted and again sentenced to death, and after further appeals, that judgment has now been affirmed.) At some point after that first Bullitt County murder trial, the Commonwealth gave notice of its intent to seek the death penalty for the kidnapping offense in Hardin County on the basis that Brady had not been released alive. While the Bullitt County murder conviction was on appeal, St. Clair sought a writ of prohibition barring death as a possible sentence in the Hardin County kidnapping case, arguing that such a sentence would violate double jeopardy. This Court disagreed. See St. Clair v. Roark, 10 S.W.3d 482, 486, 46 15 Ky. L. Summary 22 (Ky. 1999) ( Roark ). In 2001, St. Clair was convicted in the Hardin County kidnapping case and sentenced to death. See St. Clair Hardin, 174 S.W.3d at 476. This Court reversed the conviction. Id. at 486.
On remand, the Hardin County kidnapping case finally went to trial again in 2009, but it was terminated before verdict by a finding of mistrial. During the Commonwealth's opening statement, indirect references were made to uncharged crimes (specifically, the murder of Timothy Keeling), which the trial court had previously ruled was inadmissible. Based on this, St. Clair moved for a mistrial, which was granted.
Before the case could be tried yet again, St. Clair petitioned this Court for a writ barring his retrial, arguing that retrial would violate both the Interstate Agreement on Detainers and his federal and state constitutional rights to a speedy trial. St. Clair v. Coleman, No. 2007-SC-000901-0A, 2008 WL 2484715 (Ky. June 19, 2008) (unpublished opinion). We denied the petition. Id.
The case went to trial a third time in 2012. By that time, a new judge had been assigned the case. The evidence in the case was largely the same as it had been in the first case, though the court admitted evidence of St. Clair's other crimes and bad acts, specifically as to the killing of Timothy Keeling, that had previously been excluded.
The jury found St. Clair guilty of all counts, except for the arson charge, for which he was convicted of the lesser-included offense of criminal facilitation of second-degree arson. In the sentencing phase the jury found all three aggravating circumstances listed in the instructions, namely, that the kidnapping victim was not released alive, that St. Clair had a prior record of conviction for a capital offense, and that the kidnapping was committed during a robbery. The jury recommended that St. Clair be sentenced to death for the kidnapping. The jury also recommended sentences of twenty years in prison for attempted murder of the trooper, five years for each count of receiving stolen property, and five years for facilitation of arson, all to be served consecutively for a total of thirty-five years. The trial court sentenced St. Clair in accordance with the jury's recommendation.
St. Clair has now appealed this conviction and sentence as a matter of right to this Court. See Ky. Const. § § 110(2)(b) & 115.
St. Clair has raised 35 claims to this Court. Because we are reversing his conviction and remanding for a new trial, we address only those issues necessary to the decision--either because they would give him a greater remedy than reversal and remand (such as his double jeopardy claim), require the reversal (some of the series of evidentiary errors discussed below), or make it easier to discuss other issues even though there was no error (some of the other alleged evidentiary issues)--and those issues that are likely to recur on retrial and have not been sufficiently addressed elsewhere.
Before turning to St. Clair's claims, however, this Court observes that many of the difficulties with trying this case arose because the capital-kidnapping indictment was tried separately from the murder indictment in Hardin County. That need not have been the case.
Although St. Clair is responsible for this in part, because he moved to undo the change of venue that resulted in the cases being joined for a time, at least some of the blame falls on the Commonwealth. Although venue of the kidnapping offense was proper in Hardin County, it was also proper in Bullitt County. Offenses occurring partly in one county and partly in another may be tried in either county. See KRS 452.550. More specifically, " [w]here the offense consists of kidnapping, ... the prosecution may be in any county in which the person is seized or confined or through or into which he has been carried or brought." KRS 452.600. Frank Brady was originally seized in Hardin County and was then brought into Bullitt County. Thus, venue for kidnapping was proper in both counties.
And there is little question that the capital kidnapping and murder of Brady, if brought in the same county, could have been tried together. See RCr 6.18; cf. Wood v. Commonwealth, 178 S.W.3d 500, 514 (Ky. 2005) (defendant tried for murder and kidnapping of same victim, and kidnapping of another victim). Criminal Rule 6.18 " provides for the liberal joinder of offenses," Peacher v. Commonwealth, 391 S.W.3d 821, 837 (Ky. 2013), and a defendant is entitled to separate trials only if he
would be unduly prejudiced by the joinder, see id.; RCr 9.16.
But the Commonwealth nevertheless chose to try these cases separately once St. Clair was able to get the original venue change undone, rather than simply correcting the venue-change errors by giving proper notice. This duplication of trials has caused evidentiary issues to arise that would have been obviated in a single joint trial. Thus, this Court must wade through the evidentiary difficulties brought about by those separate trials.
Before addressing the merits of this case, 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). And generally speaking, death-penalty cases are subject to more expansive and searching review than ordinary criminal cases. See Meece v. Commonwealth, 348 S.W.3d 627, 645 (Ky. 2011) (" [T]he invocation of the death penalty requires a more expansive standard of review than is normally necessary in the criminal justice process." ). Indeed, even unpreserved errors are reviewable. See Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky. 1990). This is because " [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" ).
It is with these principles in mind that we turn to the errors alleged in this case.
A. Double jeopardy did not bar St. Clair's retrial.
St. Clair's first, and most expansive claim, is that his retrial should have been barred by double jeopardy because his second trial resulted in a mistrial that, he claims, was the product of prosecutorial misconduct or provocation. This Court disagrees.
At St. Clair's second trial, at least three orders from the judge in the first trial (Janet Coleman) and other judges who had been assigned the case were still in effect. Those orders allowed introduction of evidence of Timothy Keeling's kidnapping and carjacking but barred the admission of evidence that Keeling had been murdered (including circumstances of the death, such as the fact that two shots had been fired in the process and that Keeling had been shot).
Nevertheless, the prosecutor at the 2009 trial discussed Keeling's murder in his opening statement. The prosecutor began by describing the jail escape in Oklahoma. He then turned to the invasion of Vernon Stephens's home, at which point defense counsel sought a bench conference to inquire whether the prosecutor intended to mention St. Clair's other crimes, including the Keeling murder. The prosecutor stated: " I intend to comply with the previous rulings of Judge Coleman in this matter." Defense counsel argued that the Commonwealth
should not be allowed to mention either Keeling's or Brady's murder because, after Roark, 10 S.W.3d at 486, murder was not an element of capital kidnapping and the prejudicial effect of evidence of murder would outweigh any probative value. The trial court sustained the objection.
The prosecutor resumed his opening statement, and described how Reese and St. Clair had kidnapped Keeling and drove off in the man's truck; how in New Mexico they had stopped in the middle of nowhere, and St. Clair had gotten out of the truck and taken a handcuffed Keeling with him; and how Reese, who was sitting in the truck, " hears two gunshots and the defendant gets back in the truck ... only the defendant gets back in the truck."
At this point, the judge immediately called a bench conference and said, " Judge Coleman said that was not to be admitted." The prosecutor disagreed, stating that Judge Coleman had approved " from the bench" that " they stopped, he got out, there were gun shots," and argued that the only thing forbidden by Judge Coleman's earlier ruling was the word " murder." The judge stated that " the ruling was that the killing would not come into [evidence]." The judge turned to defense counsel, asking, " Do you have a motion ...?" Defense counsel moved for a mistrial.
The judge recessed court to look for the earlier orders before ruling on the motion. After the orders were found, the prosecutor argued that he had technically complied with Judge Coleman's order because it only forbade saying " two shots were fired and Tim Keeling was shot," even though he had specifically stated in his opening that Reese heard two shots. Eventually, the prosecutor admitted that the various orders barred his mention of " two shots," but argued that this fact was admissible under the law of the case based on this Court's approval of such evidence in the parallel ...