David Lee Seely v The State Of Oklahoma

F-2017-892

Filed: May 23, 2019

Not for publication

Prevailing Party: David Lee Seely

Summary

David Lee Seely appealed his conviction for Murder in the First Degree. His conviction and sentence were affirmed. Judge Kuehn dissented.

Decision

The Judgment and Sentence of the district court is AFFIRMED. Motion to File and Maintain Under Seal Appellant's Application for Evidentiary Hearing is GRANTED. Application for Evidentiary Hearing on Sixth Amendment Claim is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there an error in failing to instruct the jury on affirmative defenses and lesser included offenses?
• Did the exclusion of evidence deny him his right to due process?
• Were his statements made to the certified clinical medical assistant admitted in violation of his physician-patient privilege and right to due process?
• Did the trial court err in admitting cumulative and prejudicial photographs into evidence?
• Did prosecutorial misconduct deprive him of his right to due process?
• Was his right to a fair trial denied by an impartial jury in violation of his federal and state constitutional rights?
• Did he receive ineffective assistance of counsel?

Findings

• the trial court did not err in failing to instruct the jury on affirmative defenses of defense of another and voluntary intoxication
• the trial court did not err in excluding evidence that denied Seely his right to due process
• the trial court did not err in admitting Seely's statements made to the certified clinical medical assistant
• the trial court did not err in admitting cumulative and prejudicial photographs into evidence
• the trial court did not err in relation to the prosecutorial misconduct claim
• the trial court did not err in denying a fair trial by an impartial jury
• Seely received effective assistance of counsel

F-2017-892

May 23, 2019

David Lee Seely

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE: Appellant David Lee Seely was tried by jury in the District Court of McClain County, Case No. CF-2016-14, and convicted of Murder in the First Degree, in violation of 21 O.S.Supp.2012, § 701.7(A). The jury assessed punishment at life imprisonment without the possibility of parole and the Honorable Leah Edwards, District Judge, who presided at trial, imposed sentence accordingly. Seely appeals, raising the following issues: (1) whether the trial court erred by failing to instruct the jury on affirmative defenses and lesser included offenses; (2) whether the exclusion of evidence denied him his right to due process; (3) whether his statements made to the certified clinical medical assistant were admitted in violation of his physician-patient privilege and right to due process; (4) whether the trial court erred in admitting cumulative and prejudicial photographs into evidence; (5) whether prosecutorial misconduct deprived him of his right to due process; (6) whether the trial court erred in denying his right to a fair trial by an impartial jury in violation of his federal and state constitutional rights; and (7) whether he received ineffective assistance of counsel. We find reversal is not required and affirm the Judgment and Sentence of the district court.

BACKGROUND

In June of 2015, Misty Dawn Benefield met David Seely through a social media networking site called Meet Me and the two became best friends. In August of 2015, she met Jackie Tyler Wesnidge through the same social media site and the two quickly became romantically involved; within two weeks Benefield moved in with Wesnidge. In December of 2015, Seely moved into Wesnidge’s house in Moore with Wesnidge and Benefield. At some point after this, Seely communicated to Benefield that he loved her; he said that he had strong feelings for Benefield and he wanted to be more than her best friend. Benefield felt the same way about him to a degree.

On the morning of January 7, 2016, Wesnidge and Benefield had an argument about breaking up. Wesnidge took a swing at Benefield and missed her but punched a hole in the utility closet door. Immediately after the fight, Benefield and Seely left in Wesnidge’s car. Around 5:00 p.m., Wesnidge called Benefield and told her to bring his car back; he threatened to report it stolen if it was not returned. Benefield told Seely about Wesnidge’s demand and Seely told her that if she took him back to the house, he would kill Wesnidge. Benefield did not take Seely seriously. When they returned to the house a short time later, Wesnidge had most of Benefield’s belongings packed and ready to go. Neither Benefield nor Seely had a car. Seely told Benefield and Wesnidge that he had contacted a friend and made arrangements to use the friend’s car to move Benefield’s belongings from the house. The plan he communicated to Benefield and Wesnidge was that the three of them would take Wesnidge’s car and go pick up his friend’s car. Then Seely and Benefield would then return to Wesnidge’s house in the friend’s car, pick up Benefield’s belongings, and leave. Wesnidge appeared to be in agreement with this plan.

When the three got into Wesnidge’s car, Seely was in the driver’s seat, Wesnidge was in the front passenger seat, and Benefield was in the back seat. Seely drove south on I-35 through Norman and exited the Interstate when they passed the Riverwind Casino exit. They were heading into the country and it was dark outside. At one point, as they drove up to a stop sign, Benefield saw Seely and Wesnidge raise their hands at about the same time. Benefield initially thought that Seely was punching Wesnidge. As she watched, though, she realized that Seely had a knife in his hand and was stabbing Wesnidge. She yelled at Seely and asked what he was doing. Wesnidge was screaming. When the car stopped, Seely reached over Wesnidge, opened the front passenger side door, and pushed Wesnidge out of the car. Wesnidge was saying, No, no, no, no as he was pushed out onto the ground. Seely leaned over and continued to stab him. Seely moved to the front passenger seat and ordered Benefield to get into the driver’s seat. She did as she was told and drove the car from the scene.

As Benefield drove, she mis-negotiated a turn and drove through a fence into a ravine at the edge of a field. When Seely and Benefield drove through the fence, Malisa Vanhooser heard the crash from her house. She feared that something had happened to her grandmother who lived nearby, so Vanhooser and her husband went to check. While they were out, they saw the skid marks on the side of the road and the vehicle in a ravine. They did not see any people. A while later, Vanhooser and a neighbor were out looking for the people involved in the crash when they saw a body face down on the side of the road about a half mile from the crashed car. They called 911. After the crash, Seely and Benefield exited the car and walked away from the road through the field. As they walked, Seely talked to Benefield about what she should say if they were caught. He told her to say that he forced her to get out of the car instead of staying in the car. He also told her to say that while they were all three in the car, Wesnidge had raised his hand to hit her. As they walked, they went through several briar thickets and Benefield injured her ankle as she went down an incline. They walked through at least one creek and their feet became soaked and muddy. Benefield was cold, injured, and angry; she yelled at Seely asking him why he would do something so stupid. All he could tell her was that he did it because he loved her. When they finally saw a security light at a farmhouse, Benefield had had enough; she told Seely that she was going to the house. Seely told her that they would call the police and she replied that she didn’t care. She told him to walk in the other direction, but he followed her.

When Benefield arrived at the house, she knocked on the front door. The occupants of the house looked out and saw Benefield on the porch and Seely hanging back under the carport. Benefield told them through the closed door that she had been involved in a car wreck and needed medical assistance. The occupants had already been informed that a body had been found, so they did not open the door but rather called the authorities. When authorities from the sheriff’s department arrived, Benefield walked toward them and was apprehended. After a search, Seely was located a short time later hiding near an outbuilding on the property.

Both Benefield and Seely were interviewed by OSBI Agent David Gatlin and Detective David Tompkins with the McClain County Sheriff’s Department. Seely was interviewed first. He told Gatlin and Tompkins that although Wesnidge and Benefield thought that they were going to borrow a car from his friend, this was never his plan. Rather, he planned to drive into the country and leave Wesnidge in the middle of nowhere. Then he planned to use Wesnidge’s car to move Benefield’s belongings from Wesnidge’s house. He took the knife from Wesnidge’s house to scare Wesnidge. Seely told the interviewers that he stabbed Wesnidge after Wesnidge hit Benefield in the car, making full contact with her. Seely admitted that he stabbed Wesnidge both inside and outside the car and that afterward he and Benefield drove away from the scene and crashed the car into the fence. He said that he had thrown the knife out of the car. The weapon was subsequently recovered.

While Benefield’s trial testimony was in accord with Seely’s statement to a large extent, she denied that there was any fighting in the car. She testified that no one was arguing and Wesnidge did not hit or try to hit her while in the car. Benefield testified that Seely told her to say that Wesnidge hit her so that he would get a lesser charge. Wesnidge suffered seventeen stab wounds to his back, neck, chest, and shoulder. The medical examiner determined that Wesnidge died as a result of multiple stab wounds.

1. Seely argues that the trial court erred in failing to instruct the jury on the affirmative defenses of defense of another and voluntary intoxication, as well as the lesser offenses of first degree manslaughter by resisting criminal attempt and second degree murder. It is settled law that trial courts have a duty to instruct the jury on the salient features of the law raised by the evidence with or without a request. Hogan v. State, 2006 OK CR 19, I 39, 139 P.3d 907, 923 (citing Atterberry U. State, 1986 OK CR 186, I 8, 731 P.2d 420, 422).

This Court normally reviews a trial court’s choice of jury instructions for an abuse of discretion. See Cipriano v. State, 2001 OK CR 25, I 14, 32 P.3d 869, 873. However, because the record does not show that trial counsel either requested these instructions or objected to the trial court’s failure to give them, review is for plain error only. See Rutan U. State, 2009 OK CR 3, I 78, 202 P.3d 839, 855. To be entitled to relief for plain error, an appellant must show: (1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. Hogan, 2006 OK CR 19, I 38, 139 P.3d at 923.

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Footnotes:

1. 21 O.S.Supp.2012, § 701.7(A).
2. 21 O.S.Supp.2014, § 733(A)(2).
3. 21 O.S.2011, § 711(3).
4. 21 O.S.2011, § 701.8(1).
5. 12 O.S.2011, § 2404(A)(2).
6. 12 O.S.2011, § 2401.
7. 12 O.S.2011, § 2503.
8. 12 O.S.2011, § 2503(A).
9. 12 O.S.2011, § 2503(B).
10. 38 O.S.Supp.2015, § 28(D).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2012) - Murder in the First Degree
• Okla. Stat. tit. 21 § 733 (2014) - Justifiable Homicide
• Okla. Stat. tit. 21 § 711 (2011) - Manslaughter by Resisting Criminal Attempt
• Okla. Stat. tit. 21 § 701.8 (2011) - Second Degree Murder
• Okla. Stat. tit. 12 § 2402 (2011) - Relevant Evidence
• Okla. Stat. tit. 12 § 2403 (2011) - Exclusion of Relevant Evidence
• Okla. Stat. tit. 12 § 2401 (2011) - Definition of Relevant Evidence
• Okla. Stat. tit. 12 § 2503 (2011) - Patient-Physician Privilege
• Okla. Stat. tit. 38 § 28 (2015) - Qualifications for Jury Service

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Hogan v. State, 2006 OK CR 19, I 39, 139 P.3d 907, 923
• Atterberry v. State, 1986 OK CR 186, I 8, 731 P.2d 420, 422
• Soriano v. State, 2011 OK CR 9, 36, 248 P.3d 381, 396
• Cipriano v. State, 2001 OK CR 25, I 14, 32 P.3d 869, 873
• Rutan v. State, 2009 OK CR 3, I 78, 202 P.3d 839, 855
• Simpson v. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694, 695, 698
• Stewart v. State, 2016 OK CR 9, I 25, 372 P.3d 508, 514
• Fairchild v. State, 1999 OK CR 49, I 24, 998 P.2d 611, 618
• Miller v. State, 2013 OK CR 11, I 139, 313 P.3d 934, 981
• Jackson v. State, 1998 OK CR 39, I 67, 964 P.2d 875, 892
• Davis v. State, 2018 OK CR 7, T 7, 419 P.3d 271, 277
• Jones v. State, 2006 OK CR 17, I 6, 134 P.3d 150, 154
• Ball v. State, 2007 OK CR 42, I 32, 173 P.3d 81, 90
• Browning v. State, 2006 OK CR 8, I 32, 134 P.3d 816, 837
• Williams v. State, 2008 OK CR 19, "I 69, 188 P.3d 208, 223
• Cole v. State, 2007 OK CR 27, "I 29, 164 P.3d 1089, 1096
• Bosse v. State, 2017 OK CR 10, I 48, 400 P.3d 834, 853
• Tryon v. State, 2018 OK CR 20, I 63, 423 P.3d 637
• Hanson v. State, 2009 OK CR 13, 9 18, 206 P.3d 1020, 1028
• Pryor v. State, 2011 OK CR 18, I 4, 254 P.3d 721, 722
• Harney v. State, 2011 OK 27 CR 10, I 23, 256 P.3d 1002, 1007
• Kohl v. Lehlback, 160 U.S. 293, 301-03, 16 S.Ct. 304, 307, 40 L.Ed. 432 (1895)
• Brown v. State, 1918 OK CR 80, 14 Okl. Cr. 609, 618, 174 P. 1102, 1105
• Walker v. State, 1994 OK CR 66, I 71, 887 P.2d 301, 320
• Simpson v. State, 2010 OK CR 6, I 53, 230 P.3d 888, 905-06
• Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206