State v. Seba

• Decision Date: 30 September 2016
• Docket Number: No. 113,149,113,149
• Citation: 380 P.3d 209
• Parties: State of Kansas, Appellee, v. Bryant A. Seba, Appellant.
• Court: Kansas Supreme Court

380 P.3d 209

State of Kansas, Appellee,

v.Bryant A. Seba, Appellant.

No. 113,149

Supreme Court of Kansas.

Opinion filed September 30, 2016

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by Luckert

, J.

Following a period of escalating tension between Bryant A. Seba and others, Seba fired nine shots toward those with whom he had been fighting. He killed a pregnant bystander and repeatedly shot one of the men, resulting in the man's paralysis. The State charged Seba with two counts of first-degree premeditated murder. One of Seba's two first-degree premeditated murder counts was based on Alexa's law, which defines murder to include the killing of an “unborn child”—defined in K.S.A. 2015 Supp. 21–5419(a)(2)

as “a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth.” The State also charged Seba with one count of attempted first-degree murder. The jury convicted him of all three charges.

To prove the intent requirement of both first-degree premeditated murder counts, the State used the transferred intent doctrine, arguing Seba premeditated the murder of the men with whom he had been fighting and his guilt was the same as it would have been had he hit his intended targets. On appeal, Seba argues that the doctrine of transferred intent does not apply in this case and that both counts can only be charged (and lead to convictions of) first-degree felony murder—i.e. , convictions based on deaths that occurred during the course of some other crime. Alternatively, he argues the transferred intent doctrine can only apply to the count for the murder of the bystander and not to the Alexa's law count.

Seba also contends the district court clearly erred by failing to instruct the jury on the lesser included offenses of reckless second-degree murder and reckless involuntary manslaughter; incorrectly instructing the jury on the definition of “intentionally” in the context of first-degree murder; failing to instruct the jury on the lesser included offense of imperfect self-defense voluntary manslaughter; and incorrectly instructing the jury that voluntary intoxication is not a defense to voluntary manslaughter and attempted voluntary manslaughter. In addition, raising an issue not related to the jury instruction, Seba claims the district court erred by admitting certain autopsy photographs. Finally, he argues that the cumulative effect of these errors denied him a fair trial.

We reject Seba's arguments regarding transferred intent and we also conclude Seba fails to establish clear error in the jury instructions. Further, we hold the district court did not err in admitting the photographs about which he complains. Finally, we conclude Seba is not entitled to a new trial because of cumulative error. We accordingly affirm Seba's convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

Seba and Matthew Rost had been arguing throughout the day of July 24, 2013. According to Seba, he sold Rost a video game and Rost refused to pay the $25 he owed. The men exchanged several disparaging text messages, some with racial overtones. Tensions escalated that evening when Seba, who had been drinking, sat on his front porch and yelled racial slurs towards Rost's apartment complex, which was one house away. Witnesses at the residence sandwiched between Seba's house and Rost's apartment testified to hearing Seba repeatedly call Rost a “nigger lover.”

Rost lived with his girlfriend, Tiffany Foreman, an African American. At one point during Seba's onslaught of racial slurs, Seba walked down to Rost's apartment and kicked the door. Foreman, alone in the apartment at the time, became frightened and called her brother to ask if he could contact her cousin and ask him to come over and stay with her so she was not alone. After kicking the door, Seba returned to his house, got on his motorcycle, and rode it around the block a few times, revving the engine in front of Rost's apartment.

Rost later returned to his apartment. Another group soon arrived—Foreman's two cousins, her brother, and a friend. Foreman told the men Seba had tried to kick in the apartment door, and Rost vaguely indicated that he and Seba had been arguing. One of Foreman's cousins, Brandon Wright, walked down the sidewalk toward Seba's house and asked Seba, who was standing on his porch, why he had kicked Foreman's door. Seba called Brandon Wright a “nigger” and threatened to shoot him. During this exchange, Brandon Wright's brother, Zachary, crept along some shrubbery in front of Seba's porch, got behind Seba, and pushed him off the porch. Seba and the Wright brothers began to fight in the front yard.

Neighbors at the residence in between Seba's house and Rost's apartment had been aware of the escalating conflict throughout the evening. When the fight between Seba and the Wright brothers started, one of those neighbors went over to break it up. He pulled the men apart, at which point Seba got up and ran back into his house. As he fled, he said something like, “I'm going to kill you motherfuckers,” or, “You are going to get shot, nigger.”

Around the same time Seba was escaping into his house, Alexandria Duran—who also lived next door to Seba and was the niece of the man who had interceded in the fight—stepped in to try to calm the situation between the Wrights and her uncle. Zachary Wright and others fled; they later would say they ran because they had heard Seba's threats and knew he was a good shot. As Duran tried to ease tensions between her uncle and Brandon Wright, Seba exited his front door, stepped onto his porch, and fired a shot from his .22 caliber rifle, which had been modified for accuracy. The shot hit Duran in the head at a downward trajectory, killing her and ultimately killing her otherwise healthy fetus, which she had been carrying for 12 to 15 weeks.

Seba paused, then fired eight more shots. Five of Seba's shots hit Brandon Wright on the back of his body, leaving him lying on the property line about 20 feet from Seba's house and paralyzing him from the waist down. Immediately after the shooting, Seba made two phone calls. He called his father and told him that he had shot “a couple black guys.” Seba also called a friend with whom he played online video games. He told his friend he had shot two guys and he was going to jail.

A law enforcement officer soon arrived at the scene. The officer found Seba outside his house with his hands above his head. Seba told the officer, who was approaching with his weapon drawn, “I'm the shooter. I'm the one that shot them.” Seba told the officer he had been attacked by two men who pulled a gun on him, and he also told the officer he left the .22 rifle in the yard. Although the officer noticed an odor of alcohol about Seba, Seba was coherent, easy to understand, and could walk on his own. A blood draw just over 2 hours later revealed Seba's blood-alcohol concentration to be .17 grams per 100 milliliters of blood, which could have been higher or lower than it was at the time of the shooting, depending on unknown absorption and elimination rates.

Seba gave investigators two interviews at the station. During the first interview, which occurred at 2:24 the morning after the shooting, Seba told investigators the fight started because Rost owed him money for a video game. He said a group came over from Rost's apartment and pulled him off his porch. He was able to escape into his house, run up his stairs, get his .22 competition rifle out of its case, and charge it as he came back downstairs. The group of men pulled him onto his porch. He said something like, “Attack me now, nigger,” and the group pulled him off his porch for the second time. He said he shot at them to try to get them off of him. He also explained to investigators that he had repeatedly used the “N word” to try to get everybody riled up.

Upon further investigation, Seba's initial story did not line up with the physical evidence. More than 24 hours later—after Seba's family had told him about Duran's death—Seba agreed to a second interview. Remorseful, Seba said his first statement to investigators was “bullshit.” He again told investigators the altercation began with Rost and the video game, and he now said he remembered a group coming to his house after he kicked Foreman and Rost's door. He also recounted getting pushed down and kicked and then fleeing into his house to get his gun.

Seba could not explain why he came back outside. He admitted he had not been pulled off the porch when he came back from getting his gun. When questioned, Seba said it was “hard to remember most of it 'cause [he] was so drunk.” He said he “wasn't thinking” but was upset with the Wrights and he was “just trying to scare them.” He thought he was aiming above them. He saw that the second person he shot was facing away from him when he shot. Weeping, Seba told investigators that he could not stop “seeing pictures of that girl falling down.” From what he could remember, Duran was trying to help him, and she was shot because she happened to be standing next to Brandon Wright.

After a jury trial, the district court instructed the jury that it could find Seba not guilty; guilty as charged—that is, guilty of first-degree premeditated murder of Duran, first-degree premeditated murder under Alexa's law, and attempted first-degree premeditated murder of Brandon Wright; or guilty of lesser included offenses. The jury found Seba guilty as charged. The district court imposed sentences totaling 50 years: two consecutive life sentences for Seba's two first-degree premeditated murder convictions and a 272–month concurrent sentence for attempted first-degree premeditated murder. Seba appealed to this court, and...