St. Clair v. RoarkSt. Clair v. Roark
- Reporters:
- ,
- Before:
- Cooper
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.
I. FACTS.
St. Clair escaped from Oklahoma authorities. Most of what the Common
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.
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),
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
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 re-examination, we have determined that this holding in
Cosby
was grounded upon a false premise,
i. e.,
that the murder of the victim is an element of the offense of capital kidnapping. Having reached that incorrect conclusion,
Cosby
then applied the
“Blockbwrger
rule,”
ie.,
where the same act or transaction constitutes a violation of two distinct statutory provisions, the test for double jeopardy is whether each provision requires proof of a fact which the other does not. If so, there are two distinct offenses. If not, there is but one offense and double jeopardy precludes two convictions.
Blockburger v. United States,
284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932);
see also
The flaw in this reasoning was the conclusion that the
murder
of the victim is the element which enhances the offense of kidnapping from a class A felony to a capital offense. Not so. It is the
death
of the victim which enhances kidnapping to a capital offense. If the victim’s death resulted from,
e.g.,
reckless homicide, or even an accident, the kidnapping would be a capital offense so long as the death was the result of (a) serious physical injuries suffered during the kidnapping; or (b) not being released in a safe place; or (c) being released in any circumstances which are intended, known or should have been known to cause or lead to the victim’s death.
Nor is it double jeopardy to impose a separate penalty for one offense while using the same offense as an aggravating circumstance authorizing imposition of capital punishment for another offense. Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995); Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 40 (1998), cert. denied, 522 U.S. 986, 119 S.Ct. 1056, 143 L.Ed.2d 61 (1999); Bowling v. Commonwealth, Ky., 942 S.W.2d 293, 308 (1997), cert. denied, 522 U.S. 986, 118 S.Ct. 451, 139 L.Ed.2d 387 (1997); Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 167-68 (1995), cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996); Sanders v. Commonwealth, Ky., 801 S.W.2d 665, 682 (1990), cert. denied. 502 U.S. 831, 112 S.Ct. 107, 116 L.Ed.2d 76 (1991). Thus, the fact that St. Clair was previously convicted and sentenced for Brady’s murder does not preclude using the fact of that murder as an aggravating circumstance authorizing imposition of the death penalty for Brady’s kidnapping.
Finally, the imposition of two death sentences does not constitute double jeopardy per se. First, the punishments are not being imposed for the same offenses. Second, even if they were, only one death penalty can be imposed, so there is no possibility of double punishment. We have upheld the imposition of multiple death penalties in a number of cases where a defendant was convicted of crimes against multiple victims. E.g., Tamme v. Commonwealth, supra; Baze v. Commonwealth, Ky., 965 S.W.2d 817 (1997); Foley v. Commonwealth, Ky., 953 S.W.2d 924 (1997), cert. denied, 523 U.S. 1053, 118 S.Ct. 1375, 140 L.Ed.2d 522 (1998); Bowling v. Commonwealth, supra; Foley v. Commonwealth, Ky., 942 S.W.2d 876 (1996), cert. denied, 522 U.S. 893, 118 S.Ct. 234, 139 L.Ed.2d 165 (1997); Haight v. Commonwealth, supra; Bowling v. Commonwealth, Ky., 873 S.W.2d 175 (1993), cert. denied, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994). There is no basis for a different result where multiple crimes are committed against the same victim. Cf. Bills v. Commonwealth, Ky., 851 S.W.2d 466 (1993) and Van Dyke v. Commonwealth, Ky., 581 S.W.2d 563 (1979), in both of which a defendant was convicted and separately sentenced for multiple sexual offenses perpetrated against the same victim.
Accordingly, the petition for a writ of prohibition is denied.
GRAVES, JOHNSTONE and KELLER, JJ., concur. LAMBERT, C.J., and WINTERSHEIMER, J., concur in result only without separate opinion. STUMBO, J., dissents and would hold that the issues in controversy are not yet ripe for adjudication.
Notes
. Haight was subsequently convicted and sentenced to death. On appeal, his double jeopardy argument was rejected. Haight v. Commonwealth, Ky., 938 S.W.2d 243, 252 (1996), cert. denied, 522 U.S. 837, 118 S.Ct. 110, 139 L.Ed.2d 63 (1997).
.
The Commonwealth also intends to present evidence of other aggravating circumstances,
viz:
St. Clair‘s prior record of conviction for a capital offense and substantial history of serious assaultive behavior,