Scott D. Seaman v. Commonwealth of Kentucky ( 2022 )

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RENDERED: APRIL 28, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0486-MR
SCOTT D. SEAMAN APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE
NO. 17-CR-1875
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Scott Seaman (Seaman) was found guilty of the murder of Michael Dow
(Dow). The jury convicted Seaman of murder and recommended a sentence of
forty years. The court followed this recommendation. He now appeals the
resulting sentence as a matter of right.1 After review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 11, 2017, Thomas Phillips (Thomas) drove his sister, Amanda
Phillips (Amanda), and Seaman to meet Dow near Dow’s mother’s home, so
Dow could give them marijuana.2 Amanda was in the front passenger seat,
and Seaman was in the rear passenger side seat of the vehicle. The trio found
1 Ky. Const. § 110(2)(b).
2 For clarity, we refer to the Phillips siblings by their given names rather than
their family name.
Dow walking down the street near Dow’s mother’s house and approached him
in the vehicle. Amanda handed Dow a bag of marijuana. Dow threw the bag of
marijuana back at Amanda, and said, “Bitch, throw it on the scale.” Thomas
and Amanda, who were friends with Dow, knew he was joking. Apparently,
Seaman did not realize it was a joke, so he rolled down the back window and
confronted Dow by saying: “Who are you calling a bitch?” The two argued.
Thomas testified that Seaman attempted to exit the car, but Dow held
the door closed from the outside after moving toward the back end of the
vehicle. Thomas said that Dow never attempted to enter the car or climb
through the window, but he heard Seaman fire the gun twice through the open
back window, and saw that Dow was shot once in the side and once in the
chest. Thomas saw Dow stumble back from the car. Seaman turned the gun
toward Amanda and told Thomas to drive or he would shoot Amanda. Thomas
then drove away. Thomas also testified that Seaman had substance use
issues.
Amanda also testified at trial. She stated that the two argued, Seaman
pulled out a gun and then the two struggled over it. Dow never attempted to
enter the car or climb through the window. The gun went off twice, then
Seaman pointed the gun toward the front of the car and told Thomas to drive.
Thomas drove away. After Seaman shot Dow, Amanda was too afraid to call 9-
1-1. Amanda testified that Seaman had mental health and substance use
issues.
2
Dow died from the gunshot wound after lying on the side of the street.
The medical examiner was uncertain how long Dow lived after being shot, but
in his opinion, because one of the bullets penetrated Dow’s lungs and aorta, no
amount of medical intervention would have prevented his death. The fatal shot
entered Dow’s back and exited his right anterior side and then traveled through
his right arm.
Counsel for Seaman argued at trial that the shooting was an accident,
or, in the alternative, Seaman acted in self-defense. The jury found Seaman
guilty and recommended a sentence of forty years, which the trial court
accepted. This appeal followed. Additional facts are discussed below as
necessary.
II. ANALYSIS
Seaman alleges four errors on appeal. First, that the trial court erred by
failing to instruct the jury on self-protection. Second, that the trial court erred
in allowing the Commonwealth to introduce threats allegedly made by Seaman
after the offense. Third, that the trial court erred in allowing Amanda and
Thomas to testify that Seaman abused substances. Fourth, the trial court
erred by failing to require a unanimous verdict when it included both
intentional and wanton murder in the same instruction.
1. The trial court did not err in refusing to instruct the jury on self-
protection.
Seaman argues that the trial court committed reversible error by not
instructing the jury on self-protection and imperfect self-protection as
3
affirmative defenses to murder.3
The jury instructions closely followed the model instructions regarding
self-protection set out by this Court in Commonwealth v. Hager.4 However,
because the trial court made the determination that there was not sufficient
evidence to warrant a self-protection instruction, the Hager self-protection
instruction subsection was not included in the set of instructions submitted to
the jury. Therefore, the question is whether the trial court erred by
determining that there was insufficient evidence to warrant a self-protection
instruction.
It is “the duty of the court to instruct the jury in writing on the law of the
case, which instructions shall be read to the jury prior to the closing
summations of counsel.”5 Courts must give jury instructions to a lesser
included charge, including defenses, only if there is sufficient evidence to
support that charge.6 Therefore, a trial court does not commit error if it
refuses to provide an instruction proffered by a party that is not supported by
testimony which would allow a reasonable juror to conclude that the defense
applies.7 When a party alleges that a trial court “fail[ed] to give a warranted
instruction,” the appellate court “review[s] the decision for an abuse of
3 This issue is preserved. Kentucky Rule of Criminal Procedure (RCr) 9.22.
4 41 S.W.3d 828, 844-47 (Ky. 2001).
5 RCr 9.54.
6 See Reed v. Commonwealth, 738 S.W.2d 818, 822 (Ky. 1987); and Grimes v.
McAnulty, 957 S.W.2d 223, 226 (Ky. 1997) (citing Brown v. Commonwealth, 555
S.W.2d 252, 257 (Ky. 1977)).
7 Id.4
discretion.”8 “The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.”9
A defendant is justified in using deadly physical force “only when the
defendant believes that such force is necessary to protect himself against death
. . . [or] serious physical injury . . . .”10 Under KRS 503.070(2), deadly physical
force to protect another person is justified if “[t]he defendant believes that such
force is necessary to protect a third person against imminent death . . . [or]
serious physical injury” and “[u]nder the circumstances as they actually exist,
the person whom he seeks to protect would himself have been justified . . . in
using such protection.”
KRS 503.085(1) provides in pertinent part that:
[a] person who uses force as permitted in KRS
503.050, 503.055, 503.070, and 503.080 is justified in
using such force and is immune from criminal
prosecution and civil action for the use of such force
[. . .]. As used in this subsection, the term “criminal
prosecution” includes arresting, detaining in custody,
and charging or prosecuting the defendant.
The relevant portions of KRS 503.050 provide that:
(1) The use of physical force by a defendant upon
another person is justifiable when the defendant
believes that such force is necessary to protect himself
against the use or imminent use of unlawful physical
force by the other person.
8 Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018).
9 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
10 Kentucky Revised Statute (KRS) 503.050(2).
5
(2) The use of deadly physical force by a defendant
upon another person is justifiable under subsection (1)
only when the defendant believes that such force is
necessary to protect himself against death, serious
physical injury, kidnapping, sexual intercourse
compelled by force or threat, felony involving the use of
force, or under those circumstances permitted
pursuant to KRS 503.055.
[. . .]
(4) A person does not have a duty to retreat prior to
the use of deadly physical force.
The relevant portion of KRS 503.055(3) states that:
[a] person who is not engaged in an unlawful activity
and who is attacked in any other place where he or
she has a right to be has no duty to retreat and has
the right to stand his or her ground and meet force
with force, including deadly force, if he or she
reasonably believes it is necessary to do so to prevent
death or great bodily harm to himself or herself or
another or to prevent the commission of a felony
involving the use of force.
As a general rule, “it is the whole circumstances which surround the
incident that must be considered by the trial judge in deciding whether an
instruction on self-defense is proper.”11 In the case before us, the jury heard
the following evidence: that Dow joked with Amanda about the amount of
marijuana in the bag; that Amanda and Thomas knew Dow was joking; that
Seaman rolled the rear passenger window down and argued with Dow because
he did not think Dow was joking; that Dow approached the rear passenger side
of the vehicle where Seaman was sitting, and leaned against the car to hold the
11 Sutton v. Commonwealth, 627 S.W.3d 836, 853 (Ky. 2021) (quoting Downs v.
Commonwealth, 620 S.W.3d 604 (Ky. 2020)).
6
door closed and prevent Seaman from getting out of the car; that Dow
attempted to get the gun away from Seaman before Seaman shot him twice;
and that Seaman pointed the gun toward the front of the vehicle and told
Thomas to drive or he would shoot Amanda.
Seaman never indicated he saw Dow holding a weapon or otherwise
stated that he believed that he was in danger of death or serious physical
injury. Dow never made a threat against Seaman, Amanda, or Thomas.
Rather, Seaman was offended because he did not believe Dow was joking. The
evidence must support the defendant's belief that deadly force “is necessary to
protect himself against death [or] serious physical injury.”12 Taking offense to
an abrasive, but otherwise harmless, statement is not sufficient to justify
murder, or for any person to either subjectively or objectively believe that
deadly force is necessary to protect against death or serious physical injury.
Therefore, even fully accepting Seaman’s version of events, none of Dow’s
actions necessitated the use of deadly force sufficient to find the trial court
acted in a way that was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles in denying the self-protection instruction. As a result, it
was not an abuse of the trial court's discretion to deny Seaman’s request to
instruct the jury on self-protection.
Imperfect self-protection is codified in KRS 503 120(1), which states that:
When the defendant believes that the use of force upon
or toward the person of another is necessary for any of
12 KRS 503.050(2).
7
the purposes for which such belief would establish a
justification under KRS 503.050 to 503.110, but the
defendant is wanton or reckless in believing the use of
any force, or the degree of force used, to be necessary
or in acquiring or failing to acquire any knowledge or
belief which is material to the justifiability of his use of
force, the justification afforded by those sections is
unavailable. In a prosecution for an offense for which
wantonness or recklessness, as the case may be,
suffices to establish culpability.
Therefore,
[u]nder KRS 503.120, a defendant cannot shield
himself from prosecution if he was unreasonable
in his belief or if an innocent third party was
harmed. However, if a defendant was wanton or
reckless in his belief that force was necessary for
self-defense, he would be entitled to an
instruction on a lesser-included offense under a
theory of imperfect self-defense. Accordingly,
“[i]f the charged offense is intentional murder or
first-degree manslaughter, a wantonly held belief
in the need for self-protection reduces the
offense to second-degree manslaughter and a
recklessly held belief reduces the offense to
reckless homicide.”13
As stated above, there was no evidence introduced at trial that Seaman
held a subjective belief that deadly force was necessary to protect himself
against death or serious physical injury, beyond a blanket statement he made
in a jailhouse call that he was acting in self-defense. Absent that subjective
belief, there can be no justification under a theory of self-protection, whether
perfect or imperfect.
13 Gribbins v. Commonwealth, 483 S.W.3d 370, 374 (Ky. 2016) (quoting Elliott v.
Commonwealth, 976 S.W.2d 416 (Ky. 1998)).
8
2. The trial court did not err in allowing the Commonwealth to introduce
threats allegedly made by Seaman after the offense.
Seaman next argues that Thomas’ testimony—that Seaman told him that
if the police showed up to arrest him, he would kill Amanda, and that Thomas
was worried about his sister because of the things that Seaman told him he
would do to her in the weeks following the murder of Dow—was not relevant
pursuant to Kentucky Rules of Evidence (KRE) 401 and 403 because those
statements did not make the fact that he committed the offense more or less
likely.14
All relevant evidence is admissible pursuant to KRE 402. Under KRE
401, relevant evidence is that which has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”15 “Although
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of undue prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.”16 “The task of weighing the probative
value and undue prejudice of proffered evidence is inherently factual and,
therefore, within the discretion of the trial court.”17 We review a trial court’s
determination regarding the admissibility of evidence under the abuse of
14 This issue was preserved by contemporaneous objection. RCr 9.22.
15 Emphasis added.
16 KRE 403.
17 Ross v. Commonwealth, 455 S.W.3d 899, 910 (Ky. 2015) (citation omitted).
9
discretion standard.18 “The test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.”19 And, “in reviewing the trial judge’s balancing under KRE
403, the appellate court must view the evidence in the light most favorable to
its proponent, giving the evidence its maximum reasonable probative force and
its minimum reasonable prejudicial value.”20
“[T]he Kentucky Rules of Evidence are ‘intended to be flexible enough to
permit the prosecution to present a complete, un-fragmented, un-artificial
picture of the crime committed by the defendant, including necessary context,
background and perspective.’”21
We have previously held that “any conduct of the accused inconsistent
with his innocence is admissible in evidence.”22 More specifically, “[a]ny
attempt to suppress a witness' testimony by the accused, whether by
persuasion, bribery, or threat, or to induce a witness not to appear at the trial
or to swear falsely, or to interfere with the processes of the court is evidence
tending to show guilt.”23 Accordingly, the “use of prior bad acts to prove
18 Simpson v. Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994).
19 English, 993 S.W.2d at 945.
McLemore v. Commonwealth, 590 S.W.3d 229, 234 (Ky. 2019) (quoting Major
20
v. Commonwealth, 177 S.W.3d 700, 707 (Ky. 2005)).
21 Id. at 235 (quoting Major, 177 S.W.3d at 707).
22 Collier v. Commonwealth, 339 S.W.2d 167, 168 (Ky. 1960).
23 Foley v. Commonwealth, 942 S.W.2d 876, 887 (Ky. 1996) (citing Collier v.
Commonwealth, 339 S.W.2d 167 (Ky. 1960)).
10
consciousness of guilt, which includes threats to kill witnesses, is an
acceptable practice.”24
Here, Seaman told Thomas that if the police showed up to arrest him, he
would kill Amanda. In other words, Seaman threatened to kill Amanda—a
witness to the killing of Dow—if either she or Thomas cooperated with the
police’s investigation of Seaman’s involvement. That Seaman made the
statements in the weeks following the murder is of no issue: of course, his
threats to silence a witness would necessarily have to follow the actual
commission of the crime the witness saw him commit. Consequently,
Seaman’s threat to kill Amanda was admissible because it tended to prove
Seaman’s guilt as well as his consciousness of that guilt.
With that in mind, we refuse to second-guess the trial court’s
determination that this evidence was, indeed, relevant and probative enough to
be admissible. Therefore, we hold that the trial court did not abuse its
discretion by allowing the Commonwealth to introduce evidence of the threats
made by Seaman against Amanda after the offense.
3. Whether the trial court erred in allowing Amanda and Thomas to
testify that Seaman abused substances and had mental health issues
was unpreserved. Therefore, we decline review.
Seaman next argues that the trial court erred by allowing Amanda and
Thomas to testify that he had mental health and substance use issues. The
24 Gray v. Commonwealth, 480 S.W.3d 253, 270-71 (Ky. 2016) (citing Foley v.
Commonwealth, 942 S.W.2d 876, 887 (Ky. 1996)).
11
heart of Seaman’s contention is KRE 404’s prohibition against the admission of
improper character evidence barred the testimony from being admitted.
a. Preservation
Seaman avers that this issue was preserved for appellate review by a pre-
trial motion in limine, as well as a contemporaneous objection by counsel
during the Commonwealth’s examination of Amanda. However, the pre-trial
motion in limine which Seaman points to in the record had nothing whatsoever
to do with substance use, though it does reference KRE 404. That motion
pertained exclusively to his statements made during an interview with a
detective while in custody. Further, during a bench conference concerning the
Commonwealth’s examination of Amanda, counsel for Seaman did not object:
she stated that she “had concerns” that the questioning could “potentially”
raise a KRE 404 issue. The Commonwealth responded, “if you’re okay with me
asking if he has a drug problem, or something like that . . . .” Defense Counsel
responded, “I think if the question was, ‘are you aware of any drug use?’ or
something like that, I think . . . .” The trial court responded, “I agree. You can
do that.” There was no similar discussion and certainly no objection was
raised when Thomas was testifying as to the same topic.
With the foregoing in mind, we determine that this issue is unpreserved
for appellate review.25 KRE 103(d) allows an alleged error to be preserved for
appellate review by “[a] motion in limine resolved by order of record.” And,
25 RCr 9.22.
12
because Seaman did not make a contemporaneous objection to the evidence
when it was admitted at trial, especially in light of the exchange at the bench
conference regarding the extent to which the Commonwealth could inquire
about the substance use issues, the argument is not preserved. Because the
motion in limine is not germane to the testimony Seaman now takes issue with,
and defense counsel did not object to this testimony, we conclude that this
alleged error was unpreserved.
b. Because Seaman did not request or brief palpable error review, we
decline review.
RCr 10.26 allows an appellate court to review an unpreserved error if the
error is palpable and it resulted in manifest injustice. However, “[a]bsent
extreme circumstances amounting to a substantial miscarriage of justice, an
appellate court will not engage in palpable error review pursuant to RCr 10.26
unless such a request is made and briefed by the appellant.”26 Seaman did not
request review for palpable error. “Ordinarily, when an issue is unpreserved at
the trial court, this Court will not review it unless a request for palpable error
review under RCr 10.26 is made and briefed by the appellant.”27
We do not find any “extreme circumstances amounting to a substantial
miscarriage of justice.”28 And, no request, or mention, for that matter, for
26 Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008).
27Webster v. Commonwealth, 438 S.W.3d 321, 325 (Ky. 2014) (citing Shepherd,
251 S.W.3d at 316).
28 RCr 10.26.
13
palpable error review is insufficient to invoke that review. As such, we decline
to review this alleged error.
4. The trial court did not fail to require a unanimous verdict when it
included both intentional and wanton murder in the same instruction.
Finally, Seaman argues that the trial court erred by giving the jury a
combination instruction which permitted him to be convicted of either
intentional or wanton murder, when no evidence supported giving the wanton
part of the instruction.
The instruction states in pertinent part as follows:
INSTRUCTION NO. 1 – MURDER
You will find the defendant, SCOTT D. SEAMAN, guilty
under this instruction if, and only if, you believe from
the evidence beyond a reasonable doubt, all of the
following:
(a) That in this county on or about the 11th day of
June, 2017, he killed Michael Dow by shooting
him with a firearm;
AND
(b) That in so doing, he caused the death of Michael
Dow intentionally, as that term is defined in
Instruction No. 4.
OR
(b) He was wantonly engaging in conduct which
created a grave risk of death to another and
thereby caused the death of Michael Dow under
circumstances manifesting an extreme
indifference to human life.
14
Seaman was entitled to a unanimous jury verdict under Section 7 of the
Kentucky Constitution.29 A combination instruction does not violate the right
to a unanimous verdict if there is sufficient evidence to convict under both
theories of culpability and the jurors are satisfied beyond a reasonable doubt
that the defendant is guilty under one of the theories.30
Seaman does not take issue with the intentional murder instruction, but
instead argues that there was insufficient proof to establish that he wantonly
murdered Dow. Namely, that the evidence adduced at trial could support only
one of three theories: that he either shot Dow by accident, in self-defense, or
intentionally.
KRS 501.020(3) supplies the applicable definition of wantonness:
A person acts wantonly with respect to a result or to a
circumstance described by a statute defining an
offense when he is aware of and consciously
disregards a substantial and unjustifiable risk that the
result will occur or that the circumstance exists. The
risk must be of such nature and degree that disregard
thereof constitutes a gross deviation from the standard
of conduct that a reasonable person would observe in
the situation.
Seaman seems to argue that shooting an unarmed man at near point blank
range, and then instructing Thomas—under threat of Seaman shooting
Amanda—to drive away as that unarmed man lay bleeding on the side of the
road did not: (1) clearly pose a substantial and unjustifiable risk of killing
Hayes v. Commonwealth, 625 S.W.2d 583, 584 (Ky. 1981); Wells v.
29
Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978).
30 Travis v. Commonwealth, 327 S.W.3d 456, 459–60 (Ky. 2010).
15
another person, and that, (2) he did not show an extreme indifference to the
possibility of killing another person such that a reasonable juror could find
that he engaged in a gross deviation from the standard of conduct that a
reasonable person would observe in the situation. This is, plainly, without
merit. A reasonable juror could find under the circumstances that Seaman
committed either wanton murder or intentional beyond a reasonable doubt. It
was not error for the trial court to combine the instructions.31 As a result, the
trial court did not fail to require a unanimous verdict when it included both
intentional and wanton murder in the same instruction.
31 Though Seaman asserts this issue was preserved, the record reflects that the
trial court bifurcated the instruction as requested by defense counsel:
Defense Counsel: The one thing, judge, on the murder
count, if I’m reading this correctly, and I think I am. I’m
objecting to both theories—the wanton and intentional—
being in the same instruction. If the Court is going to
instruct on both, I believe that it would be cleaner, from a
unanimous verdict aspect, to have them completely
separated. Have an instruction where . . .
Court: 1(a), 1(b), something like that?
Defense Counsel: Something like that, where we separate
them. Wanton is complicated alone. It’s a weird
instruction. I’d actually ask wanton not be instructed at
all.
Court: Is it reversible error not to?
Defense Counsel: I don’t know the answer to that right off
the top of my head.
Therefore, though defense counsel objected to the combination instruction, the trial
court ultimately did what was asked of it and separated the instruction to counsel’s
satisfaction. But, because we hold it was no error at all for the trial court to include
the combination instruction, we need not determine the issue of preservation or
whether the error was harmless.
16
III. CONCLUSION
For the foregoing reasons, we affirm the Jefferson County Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Joseph Rob Eggert
Michael Lawrence Goodwin
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Courtney Elizabeth Albini
Assistant Solicitor General
Office of the Attorney General
17