St. Clair v. Commonwealth, 140 S.W.3d 510 (Ky. 2004) reversed a death penalty sentence because the trial court failed to comply with this Court's clear directive to instruct the jury on the germane aggravating circumstance in conformance with the statutory language describing this aggravating circumstance. The trial court's instruction in St. Clair asked the jury to determine whether the following aggravator was established: "[t]he murder was committed by the Defendant and the Defendant has a prior record of conviction of murder, a capital offense." As St. Clair argued, this instruction did not require the jury to find that St. Clair had a capital conviction at the time the charged murder was committed. This issue was properly preserved in the second sentencing trial by St. Clair's tendering a jury instruction that tracked precisely the statutory language: “In fixing a sentence for the Defendant for the offense of Murder, you shall consider the following aggravating circumstance which you may believe from the evidence beyond a reasonable doubt to be true:(1) The offense of murder was committed by a person with a prior record of conviction for a capital offense.”
However, the trial court refused the defense instruction and instead gave an instruction which erroneously allowed the jurors to find this aggravating factor even if the defendant did not have a prior record of conviction of a capital offense at the time the instant offense was committed but, simply, had accrued such a prior record of conviction by the time of trial.
Even though the reviewing court might be able to conclude that the statutory aggravator was adequately proved, the United States Supreme Court has made clear that such a judicial finding of an aggravator does not satisfy Constitutional requirements. Rather, such a finding must be made by a properly instructed jury to satisfy the Sixth Amendment. Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Thus, the death sentence could not be affirmed based upon a finding of harmless error.
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