St. Clair v. Roark

• Citation: 10 S.W.3d 482
• Decision Date: 18 November 1999
• Docket Number: No. 99-SC-0043-OA.,99-SC-0043-OA.
• Parties: Michael D. ST. CLAIR, Petitioner, v. Honorable Hugh W. ROARK, Judge, Hardin Circuit Court, Respondent, and Commonwealth of Kentucky (Real Party in Interest), Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 482

10 S.W.3d 482

Michael D. ST. CLAIR, Petitioner, v. Honorable Hugh W. ROARK, Judge, Hardin Circuit Court, Respondent, and Commonwealth of Kentucky (Real Party in Interest), Respondent.

No. 99-SC-0043-OA.

Supreme Court of Kentucky.

November 18, 1999.

As Modified on Denial of Rehearing February 24, 2000.

James Gibson, Assistant Public Advocate, Frankfort, Steve Mirkin, Elizabethtown, for Petitioner.

A.B. Chandler, III, Attorney General, State Capitol, Frankfort, David A. Smith, Dana M. Todd, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Michael A. Wright, Assistant Attorney General, Special Prosecutions Division, Frankfort, for Respondents.

DENYING PETITION FOR A WRIT OF PROHIBITION

COOPER, Justice.

Michael D. St. Clair petitions this Court for a writ of prohibition to preclude the death penalty as a possible punishment in the event he is convicted of kidnapping Frank Brady. He has already been convicted and sentenced to death for Brady's murder and asserts that imposition of the death penalty for Brady's kidnapping would violate the constitutional proscription against double jeopardy. U.S. Const., amend. V, Ky. Const. § 13.

I. FACTS.

St. Clair escaped from Oklahoma authorities. Most of what the Commonwealth claims occurred thereafter was provided by Dennis Gene Reese, St. Clair's alleged accomplice, who confessed to his involvement in the subsequent events and agreed to testify against St. Clair. According to Reese, after escaping from jail, he and St. Clair traveled to Colorado where they kidnapped Timothy Keeling and stole Keeling's pickup truck. Keeling was later shot and killed in New Mexico. Reese and St. Clair then drove Keeling's truck through several states before arriving at a rest stop in southern Hardin County, Kentucky. There they spotted and decided to steal Frank Brady's late model pickup truck. They kidnapped Brady and drove him from Hardin County to Bullitt County where he was shot and killed by St. Clair. Reese and St. Clair then returned to Hardin County and set fire to Keeling's truck. Witnesses to the arson gave the Kentucky State Police a description of Brady's truck, which they had observed near the scene of the fire. Based on that description, Trooper Herbert Bennett stopped Reese and St. Clair while they were driving Brady's truck through Hardin County. St. Clair fired two shots at Bennett, one of which penetrated the radiator of Bennett's police cruiser. A high speed chase ensued, but Reese and St. Clair escaped when Bennett's cruiser became disabled as a result of the radiator leak. Reese was ultimately captured in Nevada and waived extradition. St. Clair was captured in Oklahoma.

St. Clair was indicted for the murder of Brady in Bullitt County, where that crime was committed; and for the kidnapping of Brady, the attempted murder of Trooper Bennett, two counts of felony receiving stolen property (both pickup trucks), and second-degree arson (Keeling's pickup truck) in Hardin County, where those crimes were committed. KRS 452.510. While awaiting St. Clair's extradition from Oklahoma, the Commonwealth decided that all of the charges should be joined for trial and obtained an ex parte order changing venue of the Hardin County indictments to the Bullitt Circuit Court. Upon completion of extradition proceedings, St. Clair was arraigned in the Bullitt Circuit Court. He moved that the Hardin County charges be severed and returned to the Hardin Circuit Court on grounds that the motion to change venue had not been served on St. Clair as required by KRS 452.220(1), and did not allege that either party would be unable to obtain a fair trial in Hardin County. KRS 452.210; Evans v. Commonwealth, Ky., 645 S.W.2d 346 (1982). The motion was granted. St. Clair was then tried and convicted in the Bullitt Circuit Court of the murder of Frank Brady and was sentenced to death. That conviction is not final, but is still on appeal. The Commonwealth now proposes to try St. Clair on the Hardin County indictments and intends to seek the death penalty if he is convicted of Brady's kidnapping. KRS 509.040(2).

St. Clair asserts that to subject him to a second death penalty for Brady's kidnapping would constitute double jeopardy, because (1) the offense of murder for which he has already been sentenced to death is an element of the offense of capital kidnapping, and (2) the imposition of two death sentences for a single course of conduct constitutes double punishment. Of course, if the Commonwealth is prohibited from seeking the death penalty for Brady's kidnapping, and if his conviction or sentence for Brady's murder is reversed on appeal, St. Clair could avoid the death penalty altogether.

II. PROHIBITION AS AN APPROPRIATE REMEDY.

The Commonwealth asserts that a writ of prohibition is an inappropriate remedy in this case, because St. Clair has an adequate remedy by appeal. St. Clair relies `on Crawley v. Kunzman, Ky., 585 S.W.2d 387 (1979), in which we held that the right of appeal is never an adequate remedy against a claim of double jeopardy. In Jones v. Hogg, Ky., 639 S.W.2d 543 (1982) Crawley was limited to its facts, i.e., the petitioner was trying to prevent a retrial after a previous acquittal of the same charge. In Jones, the petitioner had never been acquitted, but was trying to prevent a retrial after three mistrials caused by deadlocked juries.

The Commonwealth relies on Haight v. Williamson, Ky., 833 S.W.2d 821 (1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1296, 122 L.Ed.2d 687 (1993), in which we held that the issue as to whether being subjected to a possible death penalty upon retrial after reversal of a previous conviction and death sentence amounted to double jeopardy was "answerable upon appeal," thus not the proper subject of a petition for a writ of prohibition. Id. at 824.¹ However, Haight and Jones v. Hogg, supra, both reiterated the oft-repeated maxim that although a writ of prohibition will issue only in exceptional circumstances, whether to do so lies within the sound discretion of the court in which the writ is sought. Haight, 833 S.W.2d at 823; Jones, 639 S.W.2d at 543. In fact, despite limiting the holding in Crawley v. Kunzman and concluding that the petitioner had an adequate remedy by appeal, the Court in Jones proceeded to address and resolve the merits of the double jeopardy issue raised in that petition. Reading Crawley, Jones and Haight together, we conclude that although double jeopardy is an appropriate subject for a writ of prohibition, it is not mandatory that it be addressed in that context. The court in which the petition is filed may, in its discretion, address the merits of the issue within the context of the petition for the writ, or may decline to do so on grounds that there is an adequate remedy by appeal. Neither approach is mandatory and the exercise of discretion may well depend on the significance of the issue as framed by the facts of the particular case. Because of the importance of the issue raised by St. Clair, and because the issue is well framed by the facts of this case, the majority of this Court deems it appropriate to address the issue now rather than delay resolution until a possible appeal.

III. DOUBLE JEOPARDY.

St. Clair rests the merits of his double jeopardy claim squarely on Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990), which held that a defendant could not be twice sentenced to death for the murder and the kidnapping of the same victim. In addition to questioning the analysis which led to that conclusion in Cosby, the Commonwealth relies on Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) for the proposition that St. Clair waived his double jeopardy claim by moving for and obtaining a severance of the kidnapping charge from the murder trial.

In Jeffers, the defendant was tried and convicted of a greater offense after having been tried and convicted of a lesser included offense. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Jeffers was held to have waived his claim of double jeopardy, because he had successfully resisted the government's motion for joinder and was thereby solely responsible for the fact that he was subjected to separate trials instead of a single trial at which the jury would have been instructed that one offense was a lesser included offense of the other. However, there was no issue of double punishment in Jeffers. He was sentenced to the maximum penalty of fifteen years in prison and a $25,000 fine for the lesser offense, then to the maximum penalty of life in prison and a $100,000 fine for the greater offense. Since he was not eligible for parole, Jeffers, 432 U.S. at 155, n. 24, 97 S.Ct. at 2218, n. 24, the prison sentences merged; and the Court held that his maximum fine was limited to the $100,000 maximum for the greater offense. Id., 432 U.S. at 157-58, 97 S.Ct. at 2220. Thus, Jeffers only stands for the proposition that the defendant's resistance to joinder was a waiver of any objection to a trial and conviction of the greater offense after having been tried and convicted of the lesser included offense. Jeffers does not stand for the proposition that a resistance to joinder or, as here, a motion to sever constitutes a waiver of double punishment if a defendant is convicted of two offenses, one of which is included in the other. Here, St. Clair makes no claim that his conviction of murder bars his subsequent trial for kidnapping. Rather, he claims only that the imposition of the death penalty for his conviction of Brady's murder bars the imposition of a second death penalty if he is convicted of Brady's kidnapping.

Cosby v. Commonwealth, supra, would prohibit the use of Brady's murder as an aggravating circumstance authorizing imposition of the death penalty if St. Clair is convicted of Brady's kidnapping.² However, upon...