MEMORANDUM OPINION
WILLIAM J. BOYCE, Justice.
This healthcare liability case is governed by chapter 74 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem Code Ann. §§ 74.001-.507 (Vernon 2005 Supp. 2009). Jake Klovenski, individually and on behalf of the Estate of Margaret Klovenski, and Mary Hassler brought wrongful death and survival claims against Dr. Ashish Kapoor asserting that Dr. Kapoor failed to diagnose cancer in Margaret Klovenski. Dr. Kapoor moved to dismiss all claims based on alleged deficiencies in plaintiffs' expert report. Dr. Kapoor brought this interlocutory appeal challenging the trial court's order denying the motion to dismiss. See Tex. Civ. Prac. Rem Code Ann. § 51.014(a)(9) (Vernon 2008). We reverse and remand.
BACKGROUND
The following background is based on allegations in plaintiffs' petition and assertions in the expert report tendered by plaintiffs. Dr. Kapoor treated Margaret Klovenski between December 2006 and March 2007. She sought medical advice from Dr. Kapoor on December 12, 2006, regarding a swollen and painful lump on her left thigh. According to plaintiffs, Dr. Kapoor ordered x-rays of the leg and a venous Doppler exam; instructed her to take Tylenol for her pain; and assured Ms. Klovenski that she should not worry about the lump. The following month, Dr. Kapoor ordered an ultrasound of the veins in her leg but not of the lump. Ms. Klovenski visited Dr. Kapoor five times over three months regarding the growing and increasingly painful lump. However, Dr. Kapoor allegedly ordered no further testing and told Ms. Klovenski not to worry.
Ms. Klovenski sought a second opinion from her urologist, Dr. Pulin Pandya, on March 20, 2007. Dr. Pandya examined Ms. Klovenski and immediately determined that she was suffering from a cancerous growth in her left thigh. Ms. Klovenski was seen later that day by a surgeon, Dr. William Kent Johnson, who ordered a MRI exam and CT scans to verify Dr. Pandya's diagnosis. Ms. Klovenski was treated for cancer by various physicians at the University of Texas M.D. Anderson Cancer Center in Houston, Texas. She died on June 23, 2007. Plaintiffs attribute her death to Dr. Kapoor's alleged failure to diagnose the cancer in her leg between December 12, 2006, and March 20, 2007.
Plaintiffs sued Dr. Kapoor on May 20, 2009, and timely submitted an expert report and curriculum vitae prepared by Dr. Julie Graves Moy. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(a). Dr. Kapoor moved to dismiss the case, arguing that the expert report was inadequate because Dr. Moy (1) was unqualified to opine about the cause of Ms. Klovenski's death; (2) offered only vague, speculative, and conclusory causation opinions; and (3) failed to describe applicable standards of care or articulate Dr. Kapoor's breach of those standards. See id. § 74.351(b). After a hearing, the trial court denied the motion and ruled that the expert report fully complied with statutory requirements. Dr. Kapoor appeals from the trial court's order denying his motion to dismiss. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(9); Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex. 2007).
ANALYSIS
I. Applicable Law and Standard of Review
A trial court must grant a defendant's motion to dismiss a healthcare liability suit with prejudice unless the plaintiff serves a timely expert report within 120 days of filing the original petition. See Tex. Civ. Prac. Rem. Code Ann. §§ 74.351(a), (b). To qualify as a timely expert report, the report must represent a good faith effort to comply with the statutory requirements for an expert report. See id. § 74.351(l). An expert report is defined as a written report by an expert that provides a fair summary of the expert's opinions regarding (1) the applicable standard of care; (2) the manner in which the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See id. § 74.351(r)(6); see also Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).
We review a trial court's denial of a motion to dismiss under section 74.351(b) for abuse of discretion. Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 878); Group v. Vicento, 164 S.W.3d 724, 727 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). To determine whether the trial court abused its discretion, we must decide whether the trial court acted in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Wright, 79 S.W.3d at 52; see also Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). In making such a determination, a court of appeals may not substitute its own judgment for the trial court's judgment. Wright, 79 S.W.3d at 52.
II. Dr. Moy's Qualifications
An expert first must establish that she is qualified to provide a report addressing accepted standards of care, causation, or both. See Tex. Civ. Prac. Rem. Code Ann. §§ 74.351(r)(5)(A), (C). Qualifications must appear in the expert report and cannot be inferred. See Olveda v. Sepulveda, 141 S.W.3d 679, 683 (Tex. App.-San Antonio 2004, pet. denied); Hansen v. Starr, 123 S.W.3d 13, 19 (Tex. App.-Dallas 2003, pet. denied). Accordingly, analysis of expert qualifications under section 74.351 is limited to the four corners of the expert's report and curriculum vitae. Mem'l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (citing Palacios, 46 S.W.3d at 878).
To qualify as an expert capable of providing opinion testimony regarding causation in a healthcare liability claim against a physician, an expert must satisfy section 74.403. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(5)(C); Thomas v. Alford, 230 S.W.3d 853, 857 (Tex. App.-Houston [14th Dist.] 2007, no pet.). Section 74.403 states in pertinent part:
[A] person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.
Tex. Civ. Prac. Rem. Code Ann. § 74.403(a). Where a physician's failure to diagnose is alleged to have harmed a patient, an expert testifying as to causation must be qualified to opine about the effect of a timely diagnosis and treatment on the outcome. See Broders, 924 S.W.2d at 153 (emergency physician was qualified to testify at trial that the standard of care required diagnosis of head injury and referral of patient for neurological treatment, but not as to potential effectiveness of proposed treatments for the undiagnosed neurological condition); Thomas, 230 S.W.3d at 859-60 (radiologist was not qualified to offer expert opinion addressing whether delayed cancer diagnosis affected patient's prognosis); cf. Mosely v. Mundine, 249 S.W.3d 775, 779-80 (Tex. App.-Dallas 2008, no pet.) (emergency room physician was qualified to opine because proffered expert opinion "related to the ability of an emergency room physician to interpret a routine chest x-ray . . . not the diagnosis and treatment for cancer"). Qualifications may be demonstrated by prior experience treating similar patients suffering from the undiagnosed condition at issue. See, e.g., Estorque v. Schafer, 302 S.W.3d 19, 26-27 (Tex. App.-Fort Worth 2009, no pet.) (expert was qualified to opine that failure to refer patient for evaluation of ovarian mass caused loss of kidney function because he had treated patients with similar conditions; was familiar with complications arising from the condition in such patients; and had observed those caring for and treating similar patients).
Dr. Moy's report states that she is a "physician specializing in family medicine and emergency medicine." The report states that she is "very familiar with the controlling medical standards involving the diagnosis and detection of diseases such as cancer, the need for early and prompt treatment of diseases such as cancer, and the appropriate treatment of cancer by physicians." However, Dr. Moy identified no experience or credentials to demonstrate that she is qualified to testify about (1) what treatments would have been available to Ms. Klovenski had Dr. Kapoor diagnosed her cancer three months earlier; and (2) whether earlier administration of potential treatments would have resulted in a more favorable prognosis. On this record, we conclude that the trial court acted beyond its discretion in concluding that Dr. Moy meets the statutory qualifications to opine about whether the asserted delay in diagnosis of Ms. Klovenski's cancer affected her outcome. See Thomas, 230 S.W.3d at 860 ("Francis's report does not show that he has knowledge, training or experience in cancer treatment that would qualify him to give an opinion on the likelihood that an earlier diagnosis could have produced a better outcome.") (emphasis in original).
III. Dr. Moy's Causation Opinion
Dr. Kapoor also argues that Dr. Moy's opinion regarding the causal link between Dr. Kapoor's failure to diagnose cancer in Ms. Klovenski and her subsequent death is inadequate. Dr. Moy's report states:
Optimal outcomes in the treatment of malignant diseases such as cancer are based on early diagnosis; a thorough understanding of the likely behavior of the malignant disease process; prompt, comprehensive, and aggressive treatment; and frequent and thorough follow-up for the possibility of recurrence and/or metastases.
. . . .
I find Dr. Kapoor's failure to timely diagnose the cancer in the left thigh of his patient Margaret Klovenski of a four month period of time . . . directly resulted in the spread of this cancer beyond therapeutic (surgical, radiation, and chemotheraphy, as provided) control, leading to Mrs. Klovenski's ultimate debilitating and painful death, none of which, it is probable, would have occurred had Dr. Kapoor initially diagnosed the cancer in his patient's leg successfully.
In providing an expert report on causation, a claimant must offer more than a general opinion that timely diagnosis and treatment would have led to "the possibility of a better outcome." Wright, 79 S.W.3d at 52-53. The expert must explain the basis of her statements and link her conclusion to the facts. Id. at 52.
In a failure-to-diagnose case, the expert report must explain how the complained-of harm would not have occurred if the diagnosis had been made in a timely fashion. See, e.g., Foster v. Richardson, 303 S.W.3d 833, 842 (Tex. App.-Fort Worth 2009, no pet.) (report insufficient because it failed to explain how delay in diagnosing six-month-old ankle injury caused more exhaustive care than if injury had been diagnosed a month earlier); Craig v. Dearbonne, 259 S.W.3d 308, 312-13 (Tex. App.-Beaumont 2008, no pet.) (report insufficient because expert stated only that plaintiff "more likely than not" could have been "successfully treated and would not have died when she did" if lung condition had been diagnosed sooner); Jones v. King, 255 S.W.3d 156, 159-60 (Tex. App.-San Antonio 2008, pet. denied) (mem. op.) (report insufficient because expert failed to explain how diagnosis of meningitis 48 hours earlier would have prevented injuries).
In similar healthcare liability cases predicated on the progression of undiagnosed and untreated cancer, courts scrutinize reports to determine whether they contain information regarding (1) the effect of cancer development over time on the patient's prognosis, and (2) the potential effectiveness of treatments for the patient's type of cancer. See, e.g., Thomas, 230 S.W.3d at 858-59 (oncologist's report sufficient because it explained that 47-month delay in diagnosis meant that surgically resectable and curable nodule in liver (stage I cancer) developed into a "metastatic well-differentiated adenocarcinoma" (stage IV), which was completely untreatable); see also House v. Jones, 275 S.W.3d 926, 932-33 (Tex. App.-Dallas 2009, pet. denied) (report sufficient because it explained that positive response to belated treatment supported opinion that earlier treatment following prompt diagnosis would have cured patient); Polone v. Shearer, 287 S.W.3d 229, 236-37 (Tex. App.-Fort Worth 2009, no pet.) (reports sufficiently explained that 22-month delay in diagnosis increased risk of metastatic breast cancer, morbidity, and mortality; prompt diagnosis would have led to treatment that obviated need for mastectomy); Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170, 179-181 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (report sufficient because it explained that progression of "possibly malignant" breast mass developed into "advanced disease . . . with metastasis" that could have been prevented if not for delay in communication of diagnosis and treatment); Mosely, 249 S.W.3d at 780-81 (report sufficient because expert explained that undiagnosed cancerous nodule in lung grew 5cm, requiring more invasive treatment with lower chance of success).
In her report, Dr. Moy failed to connect her conclusion to any specific facts regarding whether Ms. Klovenski's type of cancer was treatable, either before or after its eventual diagnosis. Dr. Moy did not state what kind of cancer was diagnosed in Ms. Klovenski's leg. Based on Dr. Moy's general knowledge about "the need for early and prompt treatment of diseases such as cancer, and the appropriate treatment of cancer," she summarily concluded that the delay in diagnosis between December 2006 and March 2007 resulted in the general "spread" of the cancer beyond therapeutic control and caused Ms. Klovenski's death six months after her first visit to Dr. Kapoor. This conclusion requires the court to infer that (1) different, more effective treatment would have been available for Ms. Klovenski's unidentified type of cancer three months earlier, or (2) earlier treatment would have been more likely to improve Ms. Klovenski's prognosis. Such inferences are not permitted. Wright, 79 S.W.3d at 53. Accordingly, we determine that Dr. Moy's statements are conclusory, and we hold that the trial court exceeded its discretion in denying Dr. Kapoor's motion to dismiss on this ground.
IV. Remand is Appropriate
If an expert report has not been timely served because the elements of the report are found deficient, the court may grant one 30-day extension to the plaintiff to cure the defect. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(c). If a court of appeals determines that a report deemed sufficient by the trial court is in fact deficient, the court of appeals may remand the case so the trial court can decide whether to grant a 30-day extension to cure the deficiency. Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008); Gannon v. Wyche, No. 14-09-00624-CV, 2010 WL 3409449, at *16 (Tex. App.-Houston [14th Dist.] Aug. 31, 2010, no pet. h.). In authorizing this practice, "the Legislature struck a careful balance between eradicating frivolous claims and preserving meritorious ones." Leland, 257 S.W.3d at 208.
Because the available 30-day extension was neither sought nor granted in this case, the trial court should consider for the first time on remand whether Dr. Moy's attempt to satisfy the statutory requirements for expert qualifications and causation constitutes a good-faith effort warranting a 30-day extension. Id. at 207 ("The statute does not allow for an extension unless, and until, elements of a report are found deficient, and that did not occur in this case until the court of appeals so held.").
CONCLUSION
We reverse the trial court's order of October 23, 2009, and remand for proceedings consistent with this opinion.
gs to allow or disallow such a statement, we find no abuse of discretion in the trial court's denial of St. Clair's allocution request. We also note that St. Clair had neither clearly requested to be hybrid counsel or to represent himself, which would have permitted him to make a closing argument, nor had he chosen to testify at this trial, which would have permitted him to make a sworn statement to the jury, subject, of course, to cross-examination.
F. Victim-Impact Testimony was Properly Admitted.
St. Clair contends that the trial court improperly allowed victim-impact testimony in the resentencing trial. Admitting that our precedent allows for the presentation of victim-impact testimony during the penalty phase in a capital case, St. Clair argues victim-impact testimony is not specifically allowed by our capital sentencing statute (KRS 532.025), as opposed to our noncapital felony sentencing statute (KRS 532.055), and that the United States Supreme Court case of Payne v. Tennessee only permits the admission of such victim-impact evidence in capital cases if allowed by state sentencing statutes.
See, e.g., Bowling v. Commonwealth, 942 S.W.2d 293, 303 (Ky. 1997).
See id. at 827, 111 S.Ct. 2597 ("We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.").
Contrary to St. Clair's arguments, Kentucky's sentencing statutes allow the presentation of victim-impact evidence during sentencing proceedings in capital cases. Although KRS 532.025, governing sentencing proceedings in capital cases, does not specifically list victim-impact evidence as a potential aggravating factor in capital sentencing, it does provide that the jury may consider any other aggravating factors as "otherwise authorized by law. . . ." Because KRS 532.055(2)(a)(7), which is part of the felony sentencing statute, allows the consideration of victim impact evidence, this consideration is "otherwise authorized by law." So victim impact evidence is allowable in capital sentencing proceedings, despite the specific lack of mention of such evidence in KRS 532.025. This we have recently held in an unpublished case. Accordingly, we reject St. Clair's argument that victim-impact evidence is not admissible in capital sentencing proceedings in Kentucky.
KRS 532.025(2) states, in pertinent part:
"In all cases of offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating or mitigating circumstances which may be supported by the evidence: . . . [lists of aggravating and mitigating factors]."
KRS 532.055 provides:
"(2) Upon return of a verdict of guilty or guilty but mentally ill against a defendant, the court shall conduct a sentencing hearing before the jury, if such case was tried before a jury. In the hearing the jury will determine the punishment to be imposed within the range provided elsewhere by law. The jury shall recommend whether the sentences shall be served concurrently or consecutively.
(a) Evidence may be offered by the Commonwealth relevant to sentencing including:
. . . .
(7) The impact of the crime upon the victim or victims, as defined in KRS 421.500, including a description of the nature and extent of any physical, psychological, or financial harm suffered by the victim or victims. . . ."
Stark v. Commonwealth, No. 2005-SC-000332-MR, 2007 WL 2404453 at *3-4 (Ky. August 23, 2007) (rejecting argument that KRS 532.025(2) did not permit admission of victim-impact evidence during capital sentencing proceedings because such evidence was "otherwise authorized by law").
The victim-impact evidence presented at the resentencing proceeding in the form of testimony of victim Frank Brady's daughter about his personality characteristics, hobbies, and family connections covered less than ten transcribed pages. Brady's daughter's testimony was neither inappropriate nor excessive. It provided some description of the victim as a "unique human being," rather than a mere statistic, without glorifying or enlarging the victim. So the victim-impact evidence presented was not unduly prejudicial to St. Clair and would not warrant a reversal of his sentence.
See Bowling, 942 S.W.2d at 303, citing, e.g., Campbell v. Commonwealth, 788 S.W.2d 260 (Ky. 1990); Payne, 501 U.S. at 822-27, 111 S.Ct. 2597 (holding that victim impact evidence presented was not unduly prejudicial where it provided a "quick glimpse" of the victim as a unique human being without glorifying or enlarging the victim).
G. Trial Court Did Not Place Improper Limits on Don Ed Payne Testimony.
St. Clair asserts that the trial court improperly limited his direct examination of witness Don Ed Payne, the lawyer who had represented St. Clair on two murder charges in Oklahoma. Specifically, he complains that he was not allowed to ask Payne in the jury's presence about St. Clair's family's belief that these Oklahoma victims had injured St. Clair's family members and about the history of mental illness in St. Clair's family. The Common-wealth objected to these lines of inquiry on the bases of hearsay and of the defense improperly attempting to impeach the validity of his Oklahoma convictions. The defense argued that it was not attempting to attack the fact of the Oklahoma convictions but to provide background into the circumstances of St. Clair's earlier convictions — namely, that the victims of these crimes were not strangers but people believed by his family to have harmed them. It contended that the evidence it sought to offer was based on the witness's own observations and that it was not offered to prove the truth of the matter asserted, so it was not hearsay; instead, it was "state of mind." The trial court sustained the objection but allowed defense counsel to offer the desired evidence by avowal testimony.
Having reviewed Payne's testimony before the jury and his avowal testimony, we find no error in the trial court's handling of this evidentiary matter.
In the presence of the jury, Payne was asked whether, based on his own knowledge, the two Oklahoma victims were known to St. Clair; and he replied that they were. He was also asked whether, of his own knowledge, there had been earlier incidents between St. Clair and the Oklahoma victims; and he replied, "Yes." He was also asked if he became familiar with another case in which St. Clair was convicted of murder; and he replied, "Yes." He was then asked whether, based on his own investigation and history with these cases, St. Clair was accused of violence against a stranger; and he replied, "No." He was also asked whether, based on his own observations, there was any mental illness in St. Clair's family. After replying in the affirmative, defense counsel asked him to explain; and he started to refer to St. Clair's aunt. Following objection by the Commonwealth, defense counsel asked about Payne's observations of this aunt; and he described her as testifying at trial "that little red and green men came to . . ." before being interrupted by the Commonwealth's objection. So St. Clair actually was able to introduce before the jury many of the points he wished to make: the history of mental illness in his family, the fact that these Oklahoma victims were not strangers to him, and the victims' history of "prior incidents" with him.
On avowal, defense counsel asked Payne whether, as a result of his investigation, testimony presented in the courtroom and documents he reviewed, he was "aware of any prior connection or prior history between victim Edward Large and the St. Clair family." Payne stated yes and explained that several members of the St. Clair family believed Large had shot St. Clair's brother, resulting in paralysis. When asked the "same question" about any knowledge of a history between victim Mary Smith and the St. Clair family, Payne replied that members of the St. Clair family believed Mary Smith had stabbed St. Clair's aunt, Buenavista "Chubby" Sides. He further stated that Sides had been hospitalized for schizophrenia and testified during one of St. Clair's Oklahoma murder trials to being visited by little red and green men in jail. When asked whether he had any knowledge of the case against St. Clair for the Oklahoma murder of Junior Kelsey (a case in which Payne did not represent St. Clair), Payne said all he knew about the Kelsey matter was of some incident of "bad feelings" or "bad blood" about an actual or perceived injury involving the St. Clair family.
Payne did not specifically identify which members of the St. Clair family had made statements of belief that the Oklahoma victims had injured their family members. Nor has St. Clair shown that he was prevented from presenting the testimony of family members about this matter. In any event, the state of mind of St. Clair's family members was irrelevant. And while St. Clair's own state of mind at the time of these other crimes might be a valid consideration in the present resentencing, other family members' declarations regarding St. Clair's state of mind would not be admissible because the state-of-mind exception to the hearsay rule is only applicable when the declarant makes a statement about his or her own state of mind. The trial court did not abuse its discretion by putting limits on Payne's testimony.
KRE 803(3) (recognizing hearsay exception for "[t]hen existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will."); Moseley v. Commonwealth, 960 S.W.2d 460, 462 (Ky. 1997) ("The statements do not fall within the category of non-hearsay statements tending to prove state of mind. The victim's mental state at the time of her death is not an issue in this case. Nor are the statements probative of Appellant's mental state, since he was not the recipient of the statements.
The Commonwealth posits that the statements fall within the state of mind exception to the hearsay rule. KRE 803(3). However, the statements were offered to prove Appellant's state of mind; and KRE 803(3), by its very language, only applies to prove the state of mind of the declarant, i.e., the victim in this case.") (citation omitted).
IV. CONCLUSION.
Solely because of the trial court's erroneous instruction on aggravating circumstance, we reverse the sentence imposed by the judgment and remand for resentencing proceedings in conformity with this opinion.
All sitting. MINTON, C.J.;ABRAMSON, NOBLE, SCHRODER, and VENTERS, JJ., concur.
SCOTT, J., concurs, in part, and dissents, in part, by separate opinion in which Cunningham, J., joins.
CUNNINGHAM, J., concurs, in part, and dissents, in part, by separate opinion in which SCOTT, J., joins.
SCOTT, J., concurring, in part, and dissenting, in part.
Although I concur with the majority on the other issued, I must respectfully dissent as to its finding of a "sentencing phase instructional error," as well as its conclusion that a Faretta/Hill hearing was required when Appellant's only action as "de facto" co-counsel was to file pro se motions outside the presence of the jury.
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Hill v. Commonwealth, 125 S.W.3d 221 (Ky. 2004).
I. FARETTAJHILL HEARING.
To trigger a Faretta/Hill hearing, one must at least ask to represent one's self or to act as one's own co-counsel and then proceed unequivocally. A disdainful filing of pro se motions in violation of the trial court's order, even against advice of counsel — all the while professing that you do not want to represent yourself — does not trigger the trial court's advisory obligations, absent an unequivocal expression of one's desire to waive, at least in part, one's right to counsel under the Sixth Amendment of the United States Constitution and Section Eleven of the Kentucky Constitution. See Matthews v. Common-wealth, 168 S.W.3d 14, 23 (Ky. 2005) ("Under the circumstances presented here, Faretta [and] Hill, supra, have no application."). It is, however, a cunning way to try and set up reversible error.
Thus, as we noted in
Matthews,
[u]nlike the defendants in
Hill, Faretta, and similar cases, Matthews did not participate as counsel at trial in front of the jury. He did not ask questions of the witnesses nor did he make opening or closing statements. His only participation upon being made co-counsel was
to file pro se motions [outside the presence of the jury] and, like other defendants, confer with his counsel. Matthews never waived his right to counsel in any manner. [Thus, no] Faretta [or Hill] hearing was required in this circumstance.
168 S:W.3d at 23. Absent the recognition of such a prerequisite, this case could easily turn into St. Clair V (Ky.) or VI (Ky.), rather than St. Clair TV (Ky.) — which it is.
St. Clair I (Ky.) was St. Clair's Petition for Extraordinary Relief to prevent his prosecution for capital kidnapping in Hardin County. St. Clair v. Roark, 10 S.W.3d 482 (Ky. 2000). St. Clair II (Ky.) involved the matter now considered, wherein we reversed and remanded for a new penalty phase hearing. St. Clair v. Commonwealth, 140 S.W.3d 510 (Ky. 2004). St. Clair III (Ky.) involved St. Clair's death sentence appeal from his conviction in Hardin County for capital kidnapping, among other convictions, which this Court also reversed. St. Clair v. Commonwealth, 174 S.W.3d 474 (Ky. 2005). This appeal, then, could properly be characterized as St. Clair IV (Ky.). The designation "(Ky.)" appropriately differentiates our cases from St. Clair's four (4) other capital murder convictions in Oklahoma, as well as the murder in New Mexico. See St. Clair II, 140 S.W.3d at 561 71.
In December 2004, prior to the sentencing phase retrial ordered by this Court in St. Clair II (Ky.), St. Clair began filing a series of approximately seventeen (17) pro se pretrial motions, the first of which included a handwritten "check-the-box" notation designating himself as "Lead Counsel." Thereafter, at the hearing, as the trial judge started to inquire as to this designation, St. Clair interrupted and unequivocally stated, "I have changed my mind and withdraw that motion." In fact, the order entered following this hearing on January 12, 2005, reflects:
In fact, the trial judge had just stated, "Mr. St. Clair wants to be designated as lead counsel. So I will take", . . . when he was interrupted by St. Clair, who said, "I have changed my mind and withdraw that motion."
It was agreed by counsel for the Commonwealth and counsel for the Defendant, along with the Defendant personally, that no further Pro Se motions would be filed by the Defendant or considered by the Court and, that if any Pro Se motions are filed, they should be directed to counsel for the Defendant.
St. Clair, however, continued to file pro se motions with the court. Thereafter, in response to his continuing pro se filings and, in particular, a subsequent motion to fire his attorney, the Commonwealth, at the August 10, 2005 pretrial hearing, stated that
[i]n his Pro Se Motion St. Clair does not make clear whether he's wanting new counsel, whether he wants to proceed pro se, whether he wants hybrid counsel . . . [I] don't know whether he's going to withdraw [this motion] today. But if he's going to press this motion then we need to find out what exactly it is he wants other than a complaint in general about his lawyers.
In response, St. Clair again stated that he did not want to represent himself but that he wanted new attorneys. Following the hearing, his motion to discharge counsel was denied.
This was six (6) days before trial in August of 2005, for a murder occurring in 1991.
Moreover, St. Clair makes no allegation that he acted as his own counsel or co-counsel in front of the jury during the penalty phase retrial — claiming only, that "[s]ince both the trial court and the defense attorneys acquiesced in St. Clair's hybrid representation, it was incumbent upon the court to hold a hearing." This, however, avoids any assertion that St. Clair acted as such during the trial in front of the jury. It also avoids the essential precursor for a Faretta/Hill hearing — the unequivocal request, coupled with the necessary intent to make the required waiver.
In Winstead v. Commonwealth, We noted:
Because the assistance of counsel is generally regarded as a crucial component of a fair trial, the right to that assistance has been characterized as a fundamental constitutional right. For the same reason, courts indulge `every reasonable presumption against a waiver of counsel.' To overcome that presumption and conduct his own defense, a defendant must clearly and unequivocally seek to represent himself. It is not enough to express dissatisfaction with counsel or to request different counsel; the defendant, rather, must unequivocally ask to proceed
pro se. If a defendant unequivocally invokes his right to defend himself, the trial court is then obliged to conduct a hearing to ensure that the defendant's waiver of the right to counsel is both knowing and voluntary. The court's obligation does not arise, however, unless and until the defendant clearly invokes his
pro se right. Because that right does not implicate constitutional fair-trial considerations, moreover, the trial court has no
sua sponte duty to inform the defendant of his right to proceed
pro se.
We are not persuaded that Winstead's
pro se motions in his letter to the trial court overcame his presumed reliance on counsel.
283 S.W.3d 678, 683 (Ky. 2009) (internal citations omitted).
Both Faretta and Hill hinge on the proposition that in order to proceed pro se, or with hybrid counsel, one must be willing and able to waive the full benefit of representative counsel under the Sixth Amendment of the United States Constitution and Section Eleven of the Kentucky Constitution. Faretta, 422 U.S. at 835, 95 S.Ct. 2525 ("Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel."); Hill, 125 S.W.3d at 224 ("[O]nce counsel was appointed, Appellant requested only to serve as co-counsel . . . so that he could perform the direct and cross-examination of some of the witnesses."). Here, in both instances when the subject matter was addressed, St. Clair reiterated that he did not want to represent himself.
Thus, like Matthews, there is no assertion that St. Clair participated as counsel or co-counsel at trial in front of a jury, nor did he ever unequivocally offer to waive his right to counsel. 168 S.W.2d at 23 ("His only participation . . . was to file pro se motions and, like other defendants, confer with counsel"). Thus, there is nothing in this record that gives rise to a violation of Faretta,/Hill.
II. THE SENTENCING PHASE INSTRUCTION.
Moreover, as to the "sentencing-phase instructional error," the majority is reversing the trial court for doing what the Court directed it to do by virtue of our pronouncements in Si. Clair II (Ky.).
St. Clair had four murder convictions in Oklahoma. Two of these convictions were entered prior to the Bullitt County murder of Frank Brady on October 6, 1991. The two other murders occurred prior to Brady's death, yet these convictions were not obtained until 1994 due to St. Clair's escape. All four of the convictions, however, were admissible as pertinent to the jury's sentencing functions. KRS 532.025(1)(b); see also St. Clair II, 140 S.W.3d at 571 (["W]e observe that all of them were admissible at the capital sentencing phase pursuant to KRS 532.025(1)(a)."); Fields v. Commonwealth, 274 S.W.3d 375, 418 (Ky. 2008).
KRS 532.025(1)(b) reads:
In all cases in which the death penalty may be imposed and which are tried by a jury, upon a return of a verdict of guilty by the jury, the court shall resume the trial and conduct a presentence hearing before the jury. Such hearing shall be conducted in the same manner as presentence hearings conducted before the judge as provided in paragraph (a) of this subsection, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions, and the jury shall retire to determine whether any mitigating or aggravating circumstances, as defined in subsection (2) of this section, exist and to recommend a sentence for the defendant. Upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law.
As to the aggravating circumstance, KRS 532.025(2)(a)(1) defines it as where "the offense of murder . . . was committed by a person with a prior record of conviction for a capital offense. . . ." Thus, during the original trial, the trial court crafted an "aggravating circumstance" instruction that read, "the Defendant has a prior record of conviction for murder, a capital offense." Thereafter, on appeal, we concluded that "for purposes of KRS 532.025(2)(a)(1), [a] `prior record of conviction for a capital offense' includes a plea of guilty accepted by trial court or a jury's or a judge's verdict of guilty." St. Clair II, 140 S.W.3d at 570. We then concluded "that the trial court's articulation of [the] aggravating circumstance changed its meaning. [Thus, upon] remand, the trial court should instruct the jury in accordance with the statutory language, i.e., `the murder was committed by a person with a prior record of conviction of a capital offense.'" Id. at 571. St. Clair II (Ky.) was rendered in 2004.
The next year, in 2005, in St. Clair III (Ky.), we again considered this "aggravating circumstances instruction," this time arising out of St. Clair's Hardin County kidnapping of Francis Brady. The second aggravating circumstances instruction there read, "[t]he Defendant has a prior record of conviction for murder, a capital offense." 174 S.W.3d at 481. This is the same language for the same instruction criticized in St. Clair II (Ky.). See 140 S.W.3d at 562, 571. Yet, in Si. Clair III (Ky.), we concluded that "this instruction was correct. The trial court properly concluded that St. Clair had a prior record of conviction for murder." 174 S.W.3d at 483. We also noted, "[a]s a matter of law, St. Clair had two prior capital convictions for the 1991 murders before he committed the kidnapping." Id. at 484.
Upon retrial in this case, in August of 2005, the trial court — attempting to comply with this Court's directions — reformulated this aggravating circumstance instruction to read, "[t]he murder was committed by the Defendant and the Defendant has a prior record of conviction of murder, capital offense." However, the majority now holds that "the trial court's instructions not only failed to follow this Court's explicit directive following the first appeal, but the instruction, as given, deprived St. Clair of his right to a unanimous verdict. And, `the denial of a unanimous verdict — where the error is properly preserved — is not subject to a harmless error analysis.'" Op. at 306. The majority goes on to state:
The better course would be to identify specifically the one or more convictions
that could qualify as a `prior record of conviction for a capital offense' to avoid any possibility that the jury's verdict is not unanimous. For example, a proper instruction could read:
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: the September 1991 Murray County, Oklahoma, conviction for the first-degree murder of William Henry Kelsey, Jr.
Op. at 308. The majority also notes that Ronnie St. Clair's murder would also qualify, and notes further that "[b]y specifically identifying qualifying convictions that can be used as aggravators, the trial court ensures that the jury cannot rely on convictions that cannot qualify." Id.
While I agree with the simplicity (and accuracy) of the majority's new configuration of the instruction, I disagree with its underlying conclusions for two reasons. First, in Si. Clair II (Ky.), we directed the trial court to formulate the instruction in the manner it did. And, secondly, any resulting error is simply harmless. Indeed, how could the error be harmful when we recognized in Si. Clair III (Ky.) that " [a]s a matter of law, St. Clair had two prior capital convictions for the 1991 murders before he committed the kidnapping"? 174 S.W.3d at 484 (emphasis added).
In St. Clair II (Ky.) and III (Ky.), we considered the same instructions. In St. Clair II (Ky.), we directed that "[u]pon remand, the trial court should instruct the jury in accordance with the statutory language, Le., `the murder was committed by a person with a prior record of conviction of a capital offense.'" 140 S.W.3d at 571 (emphasis added). And, in St. Clair III (Ky.), we noted the prior "instruction . . . was correct. The trial court properly concluded that St. Clair had a prior record of conviction for murder." 174 S.W.3d at 483. Clearly, what we said and how we said it was, at best, murky. Thus, in support of the trial court's attempt to understand the directions given by the court in St. Clair II (Ky.), it reformulated the aggravating circumstance instruction to read, "[t]he murder was committed by the defendant and the defendant has a prior record of conviction of murder, capital offense." In so doing, in my opinion, the trial court did what it was directed to do by this Court. I simply cannot read the trial court's response in any other way. If we had said there what the majority posits today, I could agree — but we did not.
In fact, the majority here posits that the issue was properly preserved by St. Clair's tendered instruction, which read: "[t]he offense of murder was committed by a person with a prior record of conviction for a capital offense." Op. at 308.
In addition, in the guilt phase of the first trial, St. Clair testified that he had been convicted by a jury of two counts of murder in Oklahoma prior to the murder of Francis Brady. This testimony, along with the other guilt-phase testimony, was introduced verbatim in the retrial. Moreover, the prosecution introduced records of the convictions. These convictions were not seriously contested.
Thus, in my opinion, it is illogical to argue that the jury may have found that St. Clair only had one conviction and that it was an impermissible one, when the logical conclusion would be — that if they were going to err — they would have found all four convictions of which they were permissibly aware. St. Clair II, 140 S.W.3d at 571 ("[W]e observe that all of them were admissible at the capital sentencing phase pursuant to KRS 532.025(1)(a)."). And, therefore, given that the jury undoubtedly found (at least) both permissible convictions (of the four) — ones we took judicial notice of as a matter of law, St. Clair III, 174 S.W.3d at 484 — it can be said "with fair assurance that the judgment was not substantially swayed by the error." Winstead, 283 S.W.3d at 679 (citing Kotteakos v. U.S., 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). To suggest that lumping the two impermissible convictions together with the two permissible ones might have swayed the jury wrongfully assumes a "doubling impact" of the convictions on the jury. This is a point I cannot accept for the reason that an item of evidence attains its maximum impact upon a jury at the moment of introduction (within the context of the other evidence), not upon its subsequent review in the jury room.
For the foregoing reasons, I must respectfully dissent and would affirm the judgment and sentence of the Bullitt Circuit Court. Cunningham, J., joins.
CUNNINGHAM, J., concurring, in part, and dissenting, in part.
I join Justice Scott's opinion concurring, in part, and dissenting, in part; however, I wish to write further concerning the sentencing phase instructions.
In September of 1991, Appellant had already been convicted of murdering two people when he escaped from an Oklahoma jail with another inmate. Appellant and his partner then kidnapped Timothy Keeling, stole his truck, and executed the man in cold blood in a New Mexico desert. They made their way to Kentucky, where they kidnapped Frances Brady, took his vehicle, and set it afire. They then executed Brady in a secluded area of Bullitt County. When stopped for a routine traffic check in Hardin County by Trooper Herbert Bennett, Appellant fired shots into Bennett's police cruiser. Both fugitives tried to flee, but Appellant was apprehended. Appellant was subsequently convicted of the murder of Frances Brady and sentenced to death. This case has been before us several times.
KRS 532.025(2)(a)(1) states as an aggravating circumstance that "[t]he offense of murder or kidnapping was committed by a person with a prior record of conviction for capital offense. . . ." The majority correctly points out that the instruction given in this case was in error, in that it reads that the person only has to have a prior record of conviction for capital offense at the time of trial, as opposed to the time of the offense. However, it was obviously a harmless miscue, since the record is clear that Appellant did have, in fact, a conviction for a capital offense at the time he committed the offense in question. To be honest, Appellant has killed so many people and been convicted so many times for murder, it is difficult to sift through the record before me and ascertain exactly when all the murders were committed and the dates of all the convictions. He was also convicted in Oklahoma in 1994 — after the Brady killing — for the murders of Mary Louise Smith and Edward Jefferson Large.
The remaining portion of KRS 532.025(2)(a)(1) reads: "or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions." (Emphasis added.) Obviously, and as Justice Scott points out, all of the prior murders committed by Appellant before the trial were admissible. At least two of the capital offenses committed prior to the murder of Brady had evolved into convictions at the time of the Brady trial.
The erroneous wording of the instructions would loom large if Appellant had no capital convictions prior to the murder of Brady. But that is not the case. Appellant is a serial murderer, guilty of the cold-blooded killing of — according to my count — at least six innocent people. He is not entitled to a perfect trial. No American is. He is only entitled to a fair one, and he has had several. This is his fourth or fifth trip to this state's highest court. It makes one tired to consider the amount of litigation he has likely engendered within the borders of the other states he has terrorized. He has received his ample allotment of due process. I would affirm the conviction. Scott, J., joins.