Clair v. Commonwealth, No. 1999-SC-0029-MR (KY 2/19/2004), No. 1999-SC-0029-MR.

CourtUnited States State Supreme Court (Kentucky)
PartiesMichael D. St. CLAIR Appellant v. COMMONWEALTH of Kentucky Appellee.
Decision Date19 February 2004
Docket NumberNo. 1999-SC-0029-MR.

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Michael D. St. CLAIR Appellant
COMMONWEALTH of Kentucky Appellee.
No. 1999-SC-0029-MR.
Supreme Court of Kentucky.
February 19, 2004.

Appeal from Bullitt Circuit Court, Hon. Thomas L. Waller, Judge, 92-CR-0010.

Donna L. Boyce, Appellate Branch Manager, Department of Public Advocacy, Julie Namkin, Assistant Public Advocate, Frankfort, Kentucky, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, David A. Smith, Assistant Attorney General, Tami Allen Stetler, Assistant Attorney General, Brian T. Judy, Assistant Attorney General, Frankfort, Kentucky, Counsel for Appellee.


A Bullitt Circuit Court jury found Appellant, Michael D. St. Clair, guilty of murdering Frances C. Brady. At the subsequent capital sentencing proceeding, the jury found the presence of an aggravating circumstance and fixed Appellant's punishment at death. The trial court entered judgment in accordance with the jury's verdict, and Appellant now brings this matter of right appeal, KY. CONST. § 110(2)(b); KRS 532.075(1), in which he asserts fifty-eight (58)1 claims of error. After a review of the record, we affirm Appellant's Murder conviction, but reverse his death sentence and remand the case for the trial court to conduct a new capital sentencing phase because the trial court's instructions erroneously failed to permit the jury to consider a sentence of life without possibility of probation or parole ("LWOP").

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In September 1991, while he was awaiting final sentencing for two (2) Oklahoma state Murder convictions, Appellant escaped from a jail in Durant, Oklahoma, accompanied by another inmate, Dennis Gene Reese ("Reese"). The two men fled from the facility in a vehicle — a pickup truck — stolen from a jail employee and, when that truck soon ran out of gas, stole another pickup truck, a handgun, and some ammunition from the nearby home of Vernon Stephens ("Stephens") and fled Oklahoma for the suburbs of Dallas, Texas. Appellant's then-wife, Bylynn, met the men in Texas and brought them money, clothing, and other items. When Reese was subsequently arrested several months later in Las Vegas, Nevada, he confessed to his involvement in an ensuing crime spree.

According to Reese, after hiding out in Dallas for a few days, the men: (1) boarded a Greyhound bus bound for the Pacific Northwest but disembarked in Colorado, where Appellant kidnapped a man, Timothy Keeling ("Keeling"), and took his vehicle — again, a pickup truck — and Appellant and Reese began driving back towards Texas; (2) while driving through New Mexico, but approaching the Texas border, Appellant used the stolen handgun to execute Keeling in the desert; (3) the men then drove Keeling's pickup truck to New Orleans, Louisiana, for a brief time and then drove north though Arkansas and Tennessee before ending up in Hardin County, Kentucky, where Appellant kidnapped another man, Frances C. Brady ("Brady") and took his vehicle — another pickup truck; (4) the men then set fire to Keeling's pickup truck in order to destroy any incriminating evidence and Appellant used his handgun to execute Brady in a secluded area of Bullitt County, Kentucky; (5) shortly thereafter, when Kentucky State Trooper Herbert Bennett ("Trooper Bennett") initiated a traffic stop of

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Brady's vehicle, which Appellant and Reese were then driving, Appellant fired shots from his handgun that struck Trooper Bennett's cruiser; and (6) during an ensuing flight — initially in Brady's pickup and subsequently on foot — Reese was able to split away from Appellant and had no further contact with him prior to his arrest.

In February 1992, a Bullitt County Grand Jury returned an indictment that charged that "[o]n or about the 6th day of October, 1991, in Bullitt County, Kentucky, [Reese and Appellant] did commit capital murder by shooting Frances C. Brady with a pistol." Subsequently, the Commonwealth filed a Notice of Intent to Seek Death Penalty as to Appellant in which it stated that "[p]ursuant to KRS 532.025, the Commonwealth will introduce evidence of aggravating circumstances sufficient to warrant imposition of the death penalty, specifically that the defendant has a prior record of conviction for capital offenses[.]" Reese entered into a plea agreement with the Commonwealth and agreed to testify against Appellant. Appellant pled not guilty and his case was tried before a jury in August and September 1998.

At trial, Appellant employed an alibi defense and contended that, although he had accompanied Reese to New Orleans for a few days after their initial flight to Dallas, the men had parted ways upon their return to Dallas, and soon thereafter he returned to Oklahoma where he hid out on the farm of a family friend until shortly before he was recaptured in December 1991. Appellant denied accompanying Reese to Colorado or New Mexico and further denied that he had ever been in Kentucky. Accordingly, the primary issue for jury resolution at trial was whether Appellant or someone else — specifically Reese and/or an unidentified accomplice — had murdered Brady.

The Commonwealth's theory of the case was that Appellant himself shot and killed Brady. In addition to Reese's testimony, the Commonwealth proved its case

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through (1) Trooper Bennett's identification of Appellant as the man who had fired two shots in his direction on the night of the murder; (2) another man's identification of Appellant 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 Appellant'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 Appellant's then-wife had given to Appellant and Reese when she met them in Texas; (5) a jailhouse informant, Scott Kincaid ("Kincaid"), who testified that Appellant 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 Appellant's fingerprints were found both on items recovered from inside the Brady vehicle and on the outside door of the same vehicle.

At the conclusion of the culpability phase, the jury found Appellant guilty of Murder under the only Murder instruction given by the trial court:


You will find the defendant guilty of Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt that in this county on or about October 6, 1991, and before the finding of the Indictment herein, he, alone or in complicity with another, intentionally killed Frances C. Brady.2

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The case then proceeded to a capital sentencing phase where the jury found the only aggravating circumstance identified in the trial court's instructions, i.e., "the Defendant has a prior record of conviction for murder, a capital offense," and fixed Appellant's punishment at death. This appeal followed.


Appellant was tried in August and September 1998 for conduct that he committed in October 1991. On July 15, 1998, new capital sentencing provisions of the 1998 General Assembly's omnibus crime legislation, HB 455, took effect, and a sentence of life without possibility of probation or parole ("LWOP") became a sentencing option in capital cases. KRS 446.110 provides: "If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect." In a pretrial motion submitted by defense counsel, Appellant advised the trial court of the change in the law, stated that "[t]he accused hereby consents to application of the 1998 amendments to KRS 532.030," and moved the trial court to include LWOP as a sentencing option available to the jury if the trial proceeded to a capital sentencing phase. As was the case in Furnish v. Commonwealth, Ky., 95 S.W.3d 34, 50-51 (2002), cert. denied ___ U.S. ___, 124 S.Ct. 115, ___ L.Ed.2d ___ (2003), the trial court declined to instruct the jury regarding LWOP because it concluded that the previously available capital sentencing options were not "clearly mitigated" by the new penalties. A majority of this Court, however, subsequently reached the opposite conclusion when certifying the law in Commonwealth v. Phon, Ky., 17 S.W.3d

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106, 108 (2000) ("[U]pon the unqualified consent of the defendant, a sentence of life without parole may be lawfully imposed for capital crimes committed before July 15, 1998.").

The Commonwealth now argues that although the trial court identified an erroneous basis for its ruling below, it correctly declined to instruct the jury on LWOP because the record does not contain evidence of Appellant's personal and unqualified consent to an LWOP instruction. In Furnish, this Court rejected the Commonwealth's identical argument, and we do so again today. In response to the Commonwealth's suggestion that KRS 446.110 permits trial courts to exercise discretion whether to instruct on LWOP in capital cases, we recognize that such an interpretation would permit inconsistency in capital sentencing procedures that is incompatible with due process. Accordingly, we hold that "Appellant's motion satisfied the `unqualified consent' requirement we established in Phon, and he was entitled to receive an instruction on life without parole." Furnish, 95 S.W.3d at 51. Compare Garland v. Commonwealth, Ky., ___ S.W.3d ___, ___ (2003) (Slip Op. at 6-7) (where the...

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