RENDERED: MARCH 14, 2024 TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0073-MR
LANCE BOWMAN APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE ERIC J. HANER, JUDGE NOS. 19-CR-003472 & 22-CR-002224
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE LAMBERT
AFFIRMING
Lance Bowman was convicted of murder, tampering with physical
evidence, and possession of a handgun by a convicted felon in relation to the
shooting death of James Mentee, Jr. He was further found to be a first-degree
persistent felony offender (PFO 1st) and was sentenced to fifty years’
imprisonment. He now appeals his convictions and sentence as a matter of
right. Ky. Const. § 110. After review, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
On December 19, 2019, at 11:38 pm Bowman walked into the front door
of Retta’s Lounge (Retta’s), located on South 7th Street in Louisville. Retta’s
was described as a hookah lounge, a bar, and a restaurant, and was owned by
Mentee. Of particular import, Retta’s had interior and exterior security cameras that captured the events leading up to and immediately following
Mentee’s death. One of the exterior cameras covered the front door and the
concrete “porch” area just outside the front door, and another exterior camera
covered a wide angle of the parking lot and a small sliver of the outer portion of
the porch. Though the video footage from the cameras is high quality, it did
not capture audio.
Roughly five minutes after Bowman entered Retta’s, he was approached
by Arthur Simpson, one of the security guards for the establishment. Simpson
walked Bowman back outside onto the front porch area. When Bowman and
Simpson first exited onto the porch, they appeared to have a somewhat tense
conversation, but it never became physical. We note here that the footage
clearly showed a pistol sticking out of Simpson’s waistband. Soon after,
Dwayne Hill got out of his car, walked onto the porch, and began talking to
Bowman and Simpson. Again, it appears from the footage that Bowman was
upset about something, but the three men seemingly talked calmly; they smiled
and laughed and at one point Bowman even patted Simpson on his stomach in
a playful way.
A few minutes later, a woman came out of the front door and sat on the
open tailgate of a truck parked just in front of the porch. She and Bowman
talked normally for a while, until the woman said something that apparently
upset Bowman as she was walking back toward the front door. He got in her
face in an aggressive manner, and Simpson put his hand on Bowman’s
shoulder to nudge him back. The woman then went back inside, and Bowman,
2 Simpson, and Hill continued to stand around and talk. Shortly thereafter,
Mentee came outside. From the time Simpson escorted Bowman out of Retta’s
to the time Mentee came outside was approximately ten minutes.
When Mentee came outside, he shut the tailgate of the truck on which
the unidentified woman had previously been sitting. He then walked back
toward the front door and opened it. But before he could enter, Bowman said
something to him, and he stopped. Mentee then said something in return that
Bowman did not like based on his facial expression. Mentee remained
standing in front of the door while Bowman then stepped toward him until the
men were nearly chest to chest. The men then began talking while Simpson,
Hill, and a third unidentified man stood close by.
At that point Mentee was saying something to Bowman, and Bowman
appeared agitated. Simpson then stepped between Bowman and Mentee to get
Bowman to back away. Simpson and the unidentified man then stood between
Bowman and Mentee while Bowman continued saying something and pointing
his finger at Mentee. All the while Mentee continued to stand in the same spot
and respond; often his hands were palms up in front of him. Hill then moved
to also stand near Bowman and over the next minute or so Bowman lightly
jostled back and forth with Simpson, Hill, and the unidentified man. Bowman
was very upset by this point, and he gestured his pistol over Simpson’s
shoulder in Mentee’s direction at least once.
Bowman then walked away towards the parking lot and completely out of
frame for a few seconds before charging back into frame with his pistol pointed
3 at Mentee’s head. Mentee grabbed the gun and pointed it down, the men
began to struggle over it, and one shot was fired near Mentee’s head while
Bowman was still holding the gun, but it missed. The men continued to
grapple over the gun and went completely out of the camera’s view. Mentee
was soon after shot in his upper left chest, but the shooting itself was not
captured by any of the security cameras. The bullet that struck Mentee
traveled left to right, downward, and slightly back, and was consistent with
being a .45 caliber G2 Research “R.I.P.” (radically invasive projectile) round.
This is a unique bullet that has a solid copper base and a triangular shaped tip
made of trocars that are designed to break off from the base and spread upon
impact. No weapon of any kind was found with Mentee’s body and a
subsequent toxicology screen determined he had no drugs of abuse or alcohol
in his system. Forensic testing of Bowman’s gun concluded that the DNA of
both Mentee and Bowman was on the trigger, grip, slide, sight, and barrel of
the gun.
After Mentee was shot, the security camera overlooking the parking lot
captured Bowman get up from the scuffle. It appears he then struck Mentee’s
body with his gun and walked away, gun in hand. Simpson then fired several
.9mm rounds in Bowman’s direction, and one struck his upper foot/ankle. 1
Bowman walked south on 7th Street for a short distance before crossing the
1 Bowman claimed Simpson shot him while he was struggling over the gun with
Mentee. But, while the footage does show Simpson point his gun in the direction of the struggle, it is unclear whether he fired it at that time. But the footage clearly shows him fire several rounds at Bowman as he walked away.
4 street onto Phyllis Avenue. While behind a residence on Phyllis Avenue he
placed his gun between the home’s HVAC unit and a stack of boards. Bowman
then hid in the home’s backyard until several law enforcement officers found
him after responding to Retta’s and following the blood trail left by the gunshot
wound to his foot. After he was handcuffed and sent to the hospital, he
was questioned by two different officers at different times. He told the first
officer that the shooting was in self-defense, but two hours later he told a
different officer that he was not at Retta’s that night, that he did not have a
gun, and that he knew nothing about the shooting.
At trial, Bowman testified in his own defense as follows. Bowman was
born and raised in Louisville’s west end, which in general is not a safe place.
That is why he continued to carry a gun for self-protection notwithstanding his
status as a convicted felon. From June to September 2019, he worked at
Retta’s as a security guard, but Mentee was not his boss. Rather, he worked
for a man he called “Brooklyn” who would send his employees, including
Bowman and Simpson, to different locations as needed. Bowman was fired
from that position in September 2019 after an incident at Retta’s during which
he was jumped by two men. That night, Mentee asked Bowman to tell the two
men to leave because of their disruptive behavior, and he did so. Rather than
leave, the two men went to speak to Mentee; a conversation Bowman said he
observed. Bowman claimed he heard Mentee say “yeah, go ahead, I don’t care”
to the men, and he was jumped by them shortly thereafter. Bowman did not
know who the men were and never saw them again.
5 Two to three weeks after that incident, Brooklyn asked Bowman to call
Mentee because Mentee wanted him to be a security guard at Retta’s again.
Bowman spoke to Mentee, and Bowman believed they were back on good terms
based on that conversation.
On the night of the shooting, Bowman said Simpson escorted him to the
porch area because Bowman had a gun. Ordinarily, a security guard would
have checked him before he entered, but there was no one at the front door
when he entered Retta’s. He claimed he was not asked to leave the premises;
he just could not be inside with a firearm. Bowman further claimed that he did
not trust Simpson or Hill, he was not friends with them, and he believed
Simpson was dangerous. When they first exited Retta’s, he and Simpson were
discussing an incident that occurred the last time Bowman was at Retta’s
during which Bowman prevented Simpson from being jumped. It is unclear
exactly when that incident occurred, but it was after Bowman had been
jumped at Retta’s. Regarding Bowman getting in the unidentified woman’s face
on the night of the shooting, he claimed he did so because she told him she
heard everyone from Louisville were “rats.” Bowman testified the worst thing
you can call someone in the west end is a “rat.”
Bowman further explained that when Mentee came outside Bowman
asked him if they “were cool” and Mentee said no because Bowman was
disrespectful. Bowman said Mentee was referring to the night he prevented
Simpson from being jumped. Bowman felt as though Mentee was “picking at
him.” After that, Bowman claimed that Simpson, Hill, and the third
6 unidentified male started to pull him away from Mentee and began threatening
him. One of them told him, “You’re going to make me lay you out out here”
because Bowman was “acting tough.” Mentee was also making threats and
told Bowman he “would have the whole south side at [Bowman’s] momma’s
house.” Bowman claimed he was holding his gun in his hand because the
three men kept trying to take it from him, but said he never pulled it out of his
waistband.
Bowman then claimed Mentee told him he was the reason Bowman had
been jumped previously and that if he ever came back to Retta’s, it would
happen again or worse. That was the point at which Bowman turned and
began to walk away until he heard Mentee again say that he would have the
whole south side at his mother’s house and heard Mentee shout “get rid of
him.” At that point he got out his gun and charged Mentee because he was
scared and wanted to ensure no one moved or did anything to hurt him.
Bowman then claimed that after the shot was fired that missed Mentee, they
continued to struggle over the gun and Bowman tripped. Bowman claimed
that when he threw his hands out to catch himself, Mentee grabbed the gun
out of Bowman’s hand, and it went off; Bowman did not pull the trigger.
Bowman said he then pushed Mentee’s body off him, picked up his gun, and
walked off as Simpson fired several shots at him. He maintained that Simpson
came after him in a vehicle and that is why he hid behind the residence on
Phyllis Avenue.
7 During cross-examination, Bowman acknowledged that Mentee never
attempted to hit him or push him, and that he never saw a weapon on Mentee’s
person. He agreed that he was afraid of Mentee based solely on his verbal
threats.
Based on the foregoing evidence, the jury was instructed on wanton and
intentional murder, second-degree manslaughter, reckless homicide, and
tampering with physical evidence. Regarding the murder, manslaughter, and
reckless homicide instructions, the jury was further provided with both a self-
protection instruction and an initial aggressor qualification to that instruction.
The jury found Bowman to be guilty of murder and tampering with physical
evidence. Subsequently, it found him to be guilty of possession of a handgun
by a convicted felon and PFO 1st.
Additional facts are discussed below as necessary.
II. ANALYSIS
Bowman now raises several alleged issues before this Court. We address
each in turn.
A. The trial court did not err by denying Bowman’s motion to suppress.
Bowman first asserts that the trial court erred by denying his motion to
suppress all statements he made to law enforcement while at the hospital on
the night of the shooting in violation of Miranda v. Arizona, 384 U.S. 436
(1966). For context, we reiterate that Bowman was taken directly from the
home on Phyllis Avenue, where he was found and handcuffed by several police
officers at gunpoint, to the hospital. It was undisputed that at least one police
8 officer remained with him at all times from Phyllis Avenue to the hospital and
that he was always supervised by at least one officer thereafter. The
questioning at issue occurred at two different times by two different officers,
Detective Preston Eisenback (Det. Eisenback) and Detective Rickey Guffey (Det.
Guffey), respectively, and was recorded on the officers’ body cameras.
Det. Eisenback’s body camera footage begins at 12:36 am. At that time,
Bowman had just arrived at the emergency room, so the scene was somewhat
chaotic. There were anywhere from five to ten people, most appear to be
nurses, in the treatment area and all were either actively treating Bowman or
standing nearby. Det. Eisenback waited several minutes for the commotion to
die down and then asked a nurse if he could ask Bowman some questions.
They then had the following exchange:
Eisenback: Hey man, what happened? I’m a detective with Shively, I’m trying to figure out what happened.
Bowman: Man I was just trying to defend myself.
Eisenback: What’s that?
Bowman: I was just trying to defend myself.
Eisenback: Defend yourself? From what?
Bowman: Motherfuckers on that bullshit.
Eisenback: Who’s on the bullshit? Who was out there?
Bowman: Whoever was on the bullshit like I don’t know bruh.
Eisenback: Well, I don’t know either that’s why I’m asking I’m trying to find out what’s going on.
Bowman: They found me shot but I don’t know what’s going on bruh. 9 Eisenback: You don’t know who shot you?
Bowman: I’m just sitting here trying to get away from shit bruh.
Eisenback: You don’t know who shot you?
Bowman: No I don’t.
Eisenback: Do you have a weapon?
Bowman: No, did you find me with a weapon? Did they find me with a weapon?
Eisenback: I don’t know, I’m just asking you that’s all just relax.
Bowman: Did you find one on me?
Eisenback: I’m just asking you, just relax. I wasn’t there you’ve got to fill in the details. If you’re shot, I want to try to help you, I want to try to figure out what happened.
Bowman: Bruh listen I don’t know what nobody was on bruh. All I know is I’m in pain.
Eisenback: Where were you at?
Bowman: That’s all I know.
Eisenback: You don’t know where you were at when it happened?
Bowman: I’m in pain.
Eisenback: What’s your name man?
At that point, Bowman stopped answering Det. Eisenback, and he walked away
from his gurney. The foregoing excerpt was the only portion of Det.
Eisenback’s footage that was played during Bowman’s trial.
10 At 1:04 am, a nurse rolled Bowman’s gurney out of the treatment area
and into an open area next to a row of private rooms. It appears he and some
other patients were placed in that area because there were not enough private
rooms. At 1:28 am, Bowman asked Det. Eisenback if he could go home, and
he responded that he could not. When Bowman asked why, Det. Eisenback
responded that he could lose his leg and that they had an investigation going
on.
Det. Guffey, the lead detective on the case, arrived at 2:10 am. Around
2:19 am, Det. Guffey attempted to get Bowman to submit to a gunshot residue
test several times, but Bowman refused. They then had the following
exchange 2:
Guffey: I just want to make sure I’m recording this so that down the road I can show that I asked you several times to cooperate with swabs on your hands, I just want to make sure.
Bowman: What do you need to swab my hands for?
Guffey: For gunshot residue.
Bowman: This what I’m sayin’ bruh, I’m shot.
Guffey: I understand but do you want to cooperate and let her swab your hands real quick so we can get her out of here and then you and I will talk?
Bowman: What do we need to talk about?
Guffey: We’ll talk about—
Bowman: Nah, why you can’t talk to me right now?
2 This portion of the footage was not played for the jury but was relevant to the
trial court’s ruling on Bowman’s motion to suppress.
11 Det. Guffey then requested that Bowman submit to the testing one final time,
and he refused. Shortly thereafter, a nurse came to give Bowman some pain
medication, and then Bowman and Guffey had the following exchange:
Bowman: And when I take this don’t ask me no questions bro leave me the fuck alone. If anything like where’s my family bro like I ain’t had contact with nobody bruh. 3
Guffey: Once [the nurse] gets done I’ll talk to you.
Bowman: Don’t try to talk to me when he get done. I don’t got nothin’ to talk about.
Guffey: Okay, let me tell you why I’m here. There’s a guy that’s been killed at a bar that’s on 7th Street, the guy—
Bowman: And I’m shot.
Guffey: Okay, listen, don’t say anything just let me talk, alright? I have you on video with a gun shooting at this individual okay? So, I’m going to read you your rights, okay? So, before you say anything let me read you your rights and then we’ll talk okay? You have the right to remain silent, do you understand that? 4
Bowman: For what though?
Guffey: Do you understand you may remain silent? I’m just asking you yes or no? I’m reading you your rights.
Bowman: But I’m shot.
Guffey: I understand. Do you understand you have the right to remain silent?
Bowman: That’s bullshit bro.
3 We note that after Det. Eisenback’s first round of questions excerpted above,
he asked Bowman if there was anyone he could contact for him, but Bowman would not give him any contact information to do so. 4 The portion of Det. Guffey’s body camera footage that was played for the jury
began with here with his statement, “You have the right to remain silent, do you understand that?”
12 Guffey: Anything you do say may be used against you in court and any other proceedings do you understand that?
Bowman: (does not answer)
Guffey: You have the right to consult an attorney before you make a statement or answer any questions, do you understand that?
Guffey: You may have your attorney—
Bowman: My thing is, is how—
Guffey: Can I read these to you? I really want to read these to you before you say anything okay? Because I want to make sure you know your rights before you start saying stuff okay? Can I finish these—
Bowman: But how are you just going to say I did something when I’m the one who’s sitting here shot?
Guffey: You may have an attorney present during any questioning, do you understand that?
Guffey: You may request the court to appoint an attorney for you if you cannot afford to hire one, do you understand that?
Guffey: You may stop the questioning at any time by refusing to answer any further questions or by requesting to consult with an attorney. Do you understand your rights? Mr. Bowman? Do you understand them?
Det. Guffey finished reading Bowman his rights at approximately 2:25 am. He
then asked if Bowman wanted to talk about what happened because there was
security footage of Bowman shooting someone at Retta’s. Bowman responded
that he did not do it. Det. Guffey then said he knew Bowman told another 13 officer that it was self-defense, and that usually people that claim self-defense
are cooperative and want to discuss what occurred. Bowman again said that
he is the one who is shot, but he did not know who shot him. He also said that
he was not at Retta’s, that he was not fighting with anyone, that he does not
know anything about a gun, and that he does not have “beef” with anyone.
That was the substance of the clip that was played at trial, which ended at 2:58
am. At no point during this portion of the questioning, after Bowman is read
his Miranda warnings, does he tell Det. Guffey he does not want to speak to
him.
Before the trial court, Bowman’s motion to suppress requested that all
the statements he made to Dets. Eisenback and Guffey while at the hospital be
suppressed. The Commonwealth conceded that the statements Bowman made
after 1:28 am, when Det. Eisenback told him he could not go home, until
approximately 2:25 am when Det. Guffey mirandized him should be
suppressed. The trial court agreed with the Commonwealth’s concession and
found that any statements made by Bowman between 1:28 am and 2:25 am
were inadmissible at trial.
However, the court went on to find that the statements Bowman made to
Det. Eisenback prior to 1:28 am were admissible because he was not in
custody. The court found that a reasonable person in his position would have
believed he was free to leave, or, if he could not leave because of his medical
condition, that he was free to stop answering questions, citing Commonwealth
14 v. Lucas, 195 S.W.3d 403 (Ky. 2006), and Peacher v. Commonwealth, 391
S.W.3d 821 (Ky. 2013). The court reasoned that
[t]he body camera footage shows Detective Eisenback questioned Mr. Bowman for a total of 11 minutes and 29 seconds. Detective Eisenback was calm and asked general questions about what happened during the shooting, such as where Mr. Bowman was shot, who had shot him, and how he had been shot, without commanding him to answer. Detective Eisenback’s line of questioning does not suggest that he considered Mr. Bowman to be anything other than a victim or a witness in connection with the shooting. Nor did Detective Eisenback exclude anyone from accessing the area where Mr. Bowman was recovering, preclude him from receiving medical treatment, or, prior to approximately 1:28 am, tell him that he could not leave.
The court further found that Bowman’s statements to Det. Guffey made after
2:25 am were admissible because Bowman did not unequivocally invoke his
right to silence. It found:
With respect to Mr. Bowman’s statements after 2:25 a.m., the body camera footage shows that, before Detective Guffey began his questioning, Mr. Bowman somewhat ambiguously told him at various points that he both would and would not talk to him. At one point, Mr. Bowman even asked Detective Guffey, “why can’t we talk right now?” Detective Guffey then repeatedly told Mr. Bowman not to talk to him until after he had read his Miranda rights to him. Contrary to Mr. Bowman’s assertions, the Court cannot interpret his statements to Detective Guffey before he read his Miranda rights to him to be an unequivocal and unambiguous invocation of his right to remain silent that would have required Detective Guffey to cease all efforts to question him.
(Internal citations to the record omitted).
Bowman argues to this Court that the trial court erred in denying his
motion to suppress because: (1) Det. Eisenback subjected him to a custodial
interrogation without first advising him of his Miranda rights; and (2) Det.
Guffey ignored his unequivocal invocation of his right to remain silent. This
15 Court’s review of a trial court’s ruling on a motion to suppress is two pronged.
See, e.g., Payton v. Commonwealth, 327 S.W.3d 468, 471–72 (Ky. 2010). First,
we determine whether the trial court’s findings of fact are supported by
substantial evidence. Id. at 471. “Substantial evidence means evidence of
substance and relevant consequence having the fitness to induce conviction in
the minds of reasonable men.” See, e.g., Smyzer v. B.F. Goodrich Chem. Co.,
474 S.W.2d 367, 369 (Ky. 1971). If the trial court’s findings are
supported by substantial evidence, they are considered conclusive. Payton,
327 S.W.3d at 471. “[W]e must then conduct a de novo review of the trial
court's application of the law to those facts to determine whether its decision is
correct as a matter of law.” Id. at 471-72 (quoting Commonwealth v. Neal, 84
S.W.3d 920, 923 (Ky. App. 2002)). “In particular, ‘[t]he question of “custody” is
reviewed de novo.’” Peacher, 391 S.W.3d at 846 (quoting Alkabala-Sanchez v.
Commonwealth 255 S.W.3d 916-920(Ky. 2008)).
1) Bowman was not in custody for Miranda purposes when Det. Eisenback questioned him.
A fundamental tenet of our jurisprudence is that law enforcement must
advise a suspect of their rights to remain silent and to the assistance of
counsel prior to subjecting him or her to a custodial investigation. Miranda,
384 U.S. at 471-72. “Custody” is a term of art that was succinctly explained by
this Court in Peacher:
[“custody”] specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the
16 interrogation, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. And in order to determine how a suspect would have gauged his freedom of movement, courts must examine all of the circumstances surrounding the interrogation.
Relevant circumstances include the place, time, and duration of the questioning; the questioning's tenor, whether cordial and neutral or harsh and accusatory; the individual's statements; the presence or absence of physical restraints; whether there was a threatening presence of several officers and a display of weapons or physical force; and the extent to which the questioner sought the individual's cooperation or otherwise informed him that he was not under arrest and was free to leave.
391 S.W.3d at 846 (cleaned up) (internal citations omitted).
With regard to police questioning that occurs while a suspect is a patient
at a hospital, this Court has previously stated, albeit in unpublished opinions,
that “the restraint giving rise to ‘custody’ must be restraint instigated by the
police, and for that reason the majority rule is that confinement to a hospital
bed does not, by itself, amount to ‘custody’ for Miranda purposes.” Griggs v.
Commonwealth, 2006-SC-000846-MR, 2008 WL 1851080, at *5 (Ky. Apr. 24,
2008) (citing Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (Ark. 1997); DeJesus
v. State, 655 A.2d 1180 (Del.1995); State v. Tucker, 131 N.H. 526, 557 A.2d
270 (N.H. 1989); People v. Milhollin, 751 P.2d 43 (Colo. 1988)). See also, Hardin
v. Commonwealth, 2015-SC-000614-MR, 2016 WL 7665872, at *2 (Ky. Dec. 15,
2016) (quoting Griggs, 2008 WL 1851080, at *6). 5 “Rather, hospital
5 Although unpublished, the conclusion from Griggs and Hardin is consistent
with published case law that provides, for example, that being questioned in a police station is not custody per se, Peacher, 391 S.W.3d at 848, nor is being questioned in a police vehicle, Simpson v. Commonwealth, 653 S.W.3d 855, 862 (Ky. 2022). Moreover, in Haney v. Commonwealth, 653 S.W.3d 559, 565-66 (Ky. 2022), we held that a 17 questioning, like questioning elsewhere, is not custodial unless the
circumstances would lead a reasonable person to believe that were he capable
of leaving the hospital, the police would not allow him to do so.” Griggs, 2008
WL 1851080, at *5.
Based on the totality of the circumstances surrounding Det. Eisenback’s
questioning of Bowman, we agree with the trial court’s determination that he
was not in custody for Miranda purposes when he was questioned by Det.
Eisenback. The questioning, which was relatively short, took place in a
bustling emergency room treatment area while several nurses administered
various means of medical treatment. At no point did Det. Eisenback attempt to
clear the room or stop treatment so that he could question Bowman and,
indeed, he waited until there was a lull in treatment before he began asking
questions. The questions themselves were asked in a professional and non-
accusatory manner and were predominantly concerned with trying to figure out
what occurred (What happened? Who shot you? Where were you? Did you
have a weapon? What is your name?). And although Bowman’s answers were
evasive, Det. Eisenback never commanded him to answer. Moreover, when
Bowman stopped answering his questions, Det. Eisenback ceased asking them.
Bowman was not handcuffed or otherwise restrained and, at that time, was not
told that he was under arrest or that he could not leave.
suspect was not in custody for Miranda purposes when she was questioned by an officer in her hospital room.
18 Bowman points to several factors to support his argument that a
reasonable person in his position would have believed he was in custody when
questioned by Det. Eisenback. While we agree with his assertion that the fact
that Det. Eisenback did not tell him he was free to leave or stop questioning is
a factor that cuts in favor of finding he was in custody, custody is based on the
totality of the circumstances and the remainder of his arguments are non-
starters. First, Bowman contends that he was handcuffed and deemed a
suspect when police first located him on Phyllis Avenue; that he was escorted
by police to the hospital; that Det. Eisenback initiated contact with him
because he matched the description of the suspect in Mentee’s shooting; and
that Det. Eisenback collected his clothing from him while in the emergency
room. But, “[w]hat the police may know or suspect about the interviewee or
even the fact that they intend to arrest him is irrelevant to [a custody]
determination, unless they communicate their knowledge or intent in such a
way that a reasonable person would believe himself effectively arrested.”
Peacher, 391 S.W.3d at 848 (citing Yarborough v. Alvarado, 541 U.S. 652
(2004)). As noted, nothing about Det. Eisenback’s interaction with Bowman in
the emergency room would have communicated such an intent to a reasonable
person.
Bowman also argues that the questions posed to him by Det. Eisenback
were attempts to get him to make incriminating statements. But even
assuming arguendo we agree with his assertion that Det. Eisenback
19 interrogated him, 6 “Miranda does not forbid non-custodial interrogation.”
Peacher, 391 S.W.3d at 847 (citing Stansbury v. California, 511 U.S. 318
(1994)). In other words, Det. Eisenback was free to ask Bowman potentially
incriminating questions because Bowman was not in custody.
2) Det. Guffey did not ignore an unambiguous invocation of Bowman’s right to remain silent.
Bowman next alleges that Det. Guffey ignored his unequivocal invocation
of his right to remain silent. A suspect who wishes to invoke his or her right to
remain silent under Miranda must do so unambiguously. Bartley v.
Commonwealth, 445 S.W.3d 1, 5 (Ky. 2014) (citing Berghuis v. Thompkins, 560
U.S. 370, 381 (2010)). “Once warnings have been given, the subsequent
procedure is clear. If the individual indicates in any manner, at any time prior
to or during questioning, that he wishes to remain silent, the interrogation
must cease.” Miranda, 384 U.S. at 473–74.
Here, Bowman points to the following statements to support his claim
that Det. Guffey did not honor his invocation of his right to remain silent:
“Don’t ask me no questions,” “leave me the fuck alone,” “don’t trying to talk to
me,” and “I don’t have nothing to talk about.” While there is no doubt that
these statements occurred after he was in custody for Miranda purposes, based
6 “The term [interrogation] under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Dunlap v. Commonwealth, 435 S.W.3d 537, 598 (Ky. 2013), abrogated on other grounds by Abbott, Inc. v. Guirguis, 626 S.W.3d 475 (Ky. 2021).
20 on the excerpt above, each of them occurred before he was mirandized and
before Det. Guffey began his formal interrogation.
This Court has previously held that “the Fifth Amendment rights
protected by Miranda attach only after a defendant is taken into custody and
subjected to interrogation. [And] [a]ny attempt to invoke those rights prior to
custodial interrogation is premature and ineffective.” Wilson v. Commonwealth,
199 S.W.3d 175, 179 (Ky. 2006). Stated differently, “[i]n order for Miranda
rights to be invoked, there must be (1) custody and (2) interrogation.” United
States v. Vega-Figueroa, 234 F.3d 744, 749 (1st Cir. 2000). In Wilson, this
Court held that a suspect could not prematurely invoke his rights to silence
and counsel because he was not in custody when he attempted to invoke them.
199 S.W.3d at 180 (“Thus, we conclude that Appellant was not in custody
when he attempted to invoke his Miranda rights to silence and counsel. For
that reason Appellant's Miranda rights had not yet attached, and he could not
at that time make a valid assertion of those rights.”).
Here, Bowman was in custody when he made the statements he claims
were an invocation of his right to remain silent, but just moments before
Bowman had indicated his desire to speak to Det. Guffey by asking, “why you
can’t (sic) talk to me right now?” And, Det. Guffey specifically ensured that he
did not ask Bowman any questions, i.e., begin his interrogation, until Bowman
was advised of his rights. Given that an officer was required to remain with
Bowman throughout his time at the hospital according to policy, mirandizing
him was appropriate. In addition, while Det. Guffey was attempting to read
21 Bowman his rights, Bowman began trying to speak to him five different times.
After Det. Guffey completed the recitation of the warnings, Bowman responded
to his questions and did not again attempt to invoke his right to silence. We
therefore hold that the trial court did not err by finding that the statements
Bowman made to Det. Guffey after he was mirandized were admissible. 7
Moreover, even if this Court were to conclude that Bowman’s statements
to Det. Guffey were admitted in violation of his rights under Miranda, the error
was harmless beyond a reasonable doubt. See Jones v. Commonwealth, 641
S.W.3d 162, 172 (Ky. 2022) (citing Winstead v. Commonwealth, 283 S.W.3d
678, 689 n.1 (Ky. 2009)). The harmless beyond a reasonable doubt standard
requires us to ask “whether, ‘absent [the impermissible testimony], is it clear
beyond a reasonable doubt that the jury would have returned a verdict of
guilty?’” Jones, 641 S.W.3d at 172 (quoting Baumia v. Commonwealth, 402
S.W.3d 530, 539 (Ky. 2013)).
The footage of Det. Guffey speaking with Bowman at the hospital was but
a nine-minute-long clip played within the context of a two-day trial with
numerous witnesses. As noted, the substance of that clip was Bowman
denying any involvement whatsoever with Mentee’s shooting: he said he was
not at Retta’s, he did not have a gun, he was not fighting with anyone, etc.
7 To clarify, nothing in this opinion shall be construed to hold that a suspect
must first be mirandized in order to invoke his or her Miranda rights. As this Court previously said in Green v. Commonwealth, 815 S.W.2d 398, 400 (Ky. 1991), “[t]he giving of a Miranda warning does not suddenly endow a defendant with a new constitutional right. The right to remain silent exists whether or not the warning has been or is ever given. The warning is required not to activate the right secured, but to enable citizens to knowingly exercise or waive it.”
22 But, because of the security footage, which was unquestionably admissible, he
was required to change that story at trial. On the basis of that footage alone,
and in the absence of the clip of Bowman’s interview with Det. Guffey, a jury
could have found Bowman guilty of murder. We therefore hold beyond a
reasonable doubt that, had the clip of Bowman’s interview with Det. Guffey not
been played, Bowman still would have been found guilty, and any error in its
admission would have been harmless.
B. Det. Guffey improperly narrated the surveillance footage without personal knowledge of the events depicted, but the error was not palpable.
Bowman’s second assertion of error alleges that Det. Guffey improperly
interpreted the surveillance video footage without personal knowledge of the
events depicted in violation of KRE 8 701 and KRE 602. Bowman acknowledges
he failed to preserve this issue but has requested review for palpable error
pursuant to RCr 9 10.26.
For an error to be palpable, it must be “easily perceptible, plain, obvious and readily noticeable.” A palpable error “must involve prejudice more egregious than that occurring in reversible error[.]” A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis “boils down to” is whether the reviewing court believes there is a “substantial possibility” that the result in the case would have been different without the error. If not, the error cannot be palpable.
Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (footnotes omitted)
(quoting Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997); Ernst v.
8 Kentucky Rule of Evidence.
9 Kentucky Rule of Criminal Procedure.
23 Commonwealth 160 S.W.3d 744, 758 (Ky. 2005); Schoenbachler v.
Commonwealth 95 S.W. 3d 830, 836 (Ky. 2003)).
Bowman specifically complains about the following two pieces of
testimony. As the portion of the surveillance footage showing Simpson
escorting Bowman back onto the porch was being played for the jury, the
Commonwealth and Det. Guffey had the following exchange:
CW: 10 Was there more security system than we’re showing the jury today? I mean, was there hours of it that you had to go through?
Guffey: There is more footage available, yes.
CW: When you watched all the footage, including what we’re showing the jury today, did you see anyone strike the defendant?
Guffey: I did not.
CW: Did you see anyone push the defendant?
Guffey: No.
CW: Did you see anyone get up in the defendant’s face in any way in all the video that you watched?
CW: Did you see anyone point a gun at the defendant in any of the videos?
We reiterate here that Bowman would later concede during cross-examination
that Mentee never attempted to hit or push him.
10 Commonwealth.
24 Later, after the footage depicted Simpson, Hill, and the unidentified man
putting themselves between Mentee and Bowman while Bowman and Mentee
were saying things back and forth to one another, there was a point at which
Bowman was primarily arguing with Simpson, and Mentee was observing them
and not saying anything for approximately one minute. At that point, the
following exchange occurred:
CW: Does the victim seem to be saying anything to anybody for the last two minutes?
Bowman argues that this constituted an impermissible interpretation of the
footage by Det. Guffey, and that it was a manifest reversible error under
Kimmel v. Commonwealth, 671 S.W.3d 230 (Ky. 2023), and Gordon v.
Commonwealth, 916 S.W.2d 176 (Ky. 1995). We disagree.
“KRE 602 and KRE 701 govern the admissibility of narrative testimony.”
Kimmel, 671 S.W.3d at 244. KRE 701, in relevant part, limits lay opinion
testimony to opinions or inferences which are “[r]ationally based on the
perception of the witness[.]” KRE 701(a). In addition, KRE 602 provides that
“[a] witness may not testify to a matter unless evidence is introduced sufficient
to support a finding that the witness has personal knowledge of the matter.”
In Gordon, the defendant was convicted of trafficking in a controlled
substance following a controlled drug buy for which law enforcement used a
paid informant. 916 S.W.2d at 178. At trial, a substantially inaudible tape
recording of the transaction was played for the jury after which the informant
testified to his recollections regarding the salient portions of the conversation. 25 Id. at 179-80. The tape was then replayed, and the informant was asked what
he said. Id. at 180. Based on the informant’s response to that question, this
Court concluded that “the witness purported to interpret the tape recording
rather than testify from his recollection.” Id. The Gordon Court held this was
error and the Court directed that, upon retrial, 11 “[t]he court should refrain . . .
from permitting the witness to interpret what is on the tape. It is for the jury to
determine as best it can what is revealed in the tape recording without
embellishment or interpretation by a witness.” Id. (citing Sanborn v.
Commonwealth, 754 S.W.2d 534 (Ky. 1988)).
In Kimmel, the defendant was observed shoplifting from Walmart by a
loss prevention associate, Michael Knipp (Knipp). 671 S.W.3d at 233-34.
During Knipp’s testimony, the Commonwealth introduced four surveillance
videos, and Knipp provided narrative testimony of what they depicted either
just before or just after each clip. Id. at 243. Videos 1, 2, and 4, showed the
defendant entering the store, selecting a phone charger from a shelf, and
existing the store, respectively. Id. at 244. The Kimmel Court noted that
“[t]hese actions are clearly depicted by the video, and Knipp’s narration did not
add to what jurors could view on the video themselves.” Id. at 244-45.
However, video 3, which Knipp testified depicted the defendant removing a doll
from his cart, turning his back to the camera, and putting the doll in his
11 The Court reversed and remanded on an unrelated issue.
26 waistband, was so low quality that it was difficult to ascertain where he was or
what he was doing. Id. at 245. This Court held:
The difficulty in observing [the defendant] in the video, paired with the uncertainty as to which of [the defendant’s] actions Knipp personally observed, leads us to conclude that Knipp's narration as to Video 3 exceeded the bounds of KRE 602 and 701. Because we cannot definitively conclude whether Knipp's testimony exceeded his personal knowledge of the events, this narration should not have been permitted.
Nevertheless, we cannot say this error was palpable. The jurors watched the video and “were in a position to interpret the security footage independently from the testimony.” Additionally, the evidence against Kimmel was substantial, making it difficult to conclude that the jury was improperly persuaded by Knipp's one- line testimony describing Kimmel's actions. The error certainly was not palpable and so fundamental that it threatened the integrity of the judicial process.
Id. (citations omitted) (quoting Boyd v. Commonwealth 439 S.W.3d 126, 132
(Ky. 2014) (citing Brewer v. Commonwealth 206 S.W. 3d 343, 349 (Ky. 2006)
and Martin v. Commonwealth 207 S.W.3d 1 (Ky. 2006)).
Here, Det. Guffey testified that: (1) in all the footage he reviewed he never
saw anyone strike, push, get in the face of, or pull a gun on Bowman prior to
the shooting; and (2) that at one point close in time to the shooting Mentee
appeared to not say anything for a short period of time. Concerning the first
piece of testimony, we clarify that the security footage played for the jury
depicted the entirety of the events of the evening of December 19 from the time
Bowman arrived at Retta’s until he walked away from Retta’s following the
shooting. This Court is therefore unclear on what “other footage” the
Commonwealth was referring to. But, at any rate, Bowman has never raised a
hearsay objection based on Det. Guffey or the Commonwealth referring to 27 evidence outside the record. The allegation of error Bowman raises is that Det.
Guffey improperly testified that he never witnessed anyone strike, push, or
otherwise threaten Bowman in the footage that was played for the jury, and
that Mentee stopped speaking for a short period of time in the moments leading
up to the shooting.
We agree that Det. Guffey could not properly narrate the footage in this
manner because he lacked the requisite personal knowledge of those events,
and therefore error occurred. However, we cannot agree that the error was
palpable. As previously noted, the footage itself was very high quality—unlike
the tape recording in Gordon and “video 3” in Kimmel—and the jurors would
have been free to interpret the film independently from Det. Guffey’s testimony.
We accordingly cannot hold that, absent this portion of Det. Guffey’s testimony,
there “is a substantial possibility that the result in the case would have been
different[.]” Brewer, 206 S.W.3d at 349.
C. The trial court did not err by providing the jury with an initial aggressor limitation instruction.
Bowman next asserts that the trial court erred by providing the jury with
an initial aggressor limitation to self-defense instruction. A trial judge must
consider the totality of the circumstances surrounding an incident when
deciding whether an instruction on self-defense with limitations is proper and
must find as a matter of law that there is sufficient evidence to justify a
limitation instruction before submitting it to the jury. Conley v.
Commonwealth, 599 S.W.3d 756, 776 (Ky. 2019). We review a trial court’s
28 ruling regarding jury instructions for abuse of discretion. See, e.g., Daniel v.
Commonwealth, 607 S.W.3d 626, 643 (Ky. 2020). “The test for abuse of
discretion is whether the trial judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
The initial aggressor limitation statute, KRS 12 503.060 provides in
pertinent part:
Notwithstanding the provisions of KRS 503.050, the use of physical force by a defendant upon another person is not justifiable when:
...
(3) The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:
(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury; or
(b) He withdraws from the encounter and effectively communicates to the other person his intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force.
The purpose of this limitation to self-defense is “to prevent a defendant from
instigating a course of conduct then claiming he was acting in self-defense
when that conduct unfolds.” Conley, 599 S.W.3d at 775 (quoting Hayes v.
Commonwealth, 2015-SC-0050-MR, 2017 WL 639387, at *4 (Ky. Feb 16,
12 Kentucky Revised Statute.
29 2015)). “The initial aggressor limitation is added to a self-protection instruction
if: (1) the facts support a self-protection instruction; and (2) there are facts that
would support a juror's belief that the defendant was the initial aggressor.”
Sutton v. Commonwealth, 627 S.W.3d 836, 853 (Ky. 2021). For a defendant to
qualify as an initial aggressor, he or she “must use physical force prior to any
act of purported self-protection.” Conley, 599 S.W.3d at 776. “Physical force”
is defined as “force used upon or directed toward the body of another person
and includes confinement.” KRS 503.010(4) (emphasis added).
Before the trial court, the Commonwealth asserted that a self-protection
jury instruction was not warranted because Bowman testified that Mentee
accidentally shot himself. The trial court found that argument “interesting” but
nonetheless rejected it based on its conclusion that, if the jury did believe
Bowman pulled the trigger, it could then go on to decide whether it was done in
self-defense, as the shooting occurring during a struggle. Following that
ruling, defense counsel objected to an initial aggressor limitation instruction
being provided because, based on Bowman’s testimony, Mentee was the initial
aggressor and Bowman had attempted to remove himself from the situation by
walking away but Mentee continued to threaten him. The trial court rejected
this argument based on its reasoning that Bowman’s testimony versus the
surveillance footage created a conflicting factual issue for the jury to decide.
The court further found that Bowman’s act of pointing a gun at Mentee was
sufficient to satisfy KRS Chapter 503’s definition of “physical force” because it
30 constituted force “directed toward” the body of another, and therefore ruled
that an initial aggressor limitation instruction was warranted.
Bowman argues to this Court that the trial court erred by finding that
his act of pointing a gun at Mentee satisfied the definition of “physical force.”
From this Court’s review, there are no published precedents that address
whether the act of pointing a gun at someone constitutes force “directed toward
the body of another person.” KRS 503.010(4). But the unpublished cases of
Kingdon v. Commonwealth, 2014-SC-000406-MR, 2016 WL 3387066 (Ky. June
16, 2016), and Kidd v. Commonwealth, 2020-SC-0433-MR, 2022 WL 2253588
(Ky. App. June 16, 2022), as well as common sense, support that conclusion.
In Kingdon, the defendant believed the victim had burglarized his
apartment and stolen money from him. 2016 WL 3387066, at *1. He
confronted the victim while on a city bus, and after a heated argument the
defendant pulled out a gun and shot the victim in the head. Id. The defendant
testified that he acted in self-defense because he saw the victim reach into his
own pants and believed he was attempting to get his own gun. Id. On appeal
to this Court, the defendant asserted that the trial court erred by providing the
jury with an initial aggressor instruction. Id. at *5. The Kingdon Court
disagreed and held that because “the jury heard testimony that [the defendant]
pursued [the victim] by chasing and boarding the bus so that he could confront
[the victim] with a loaded gun and recover money [the victim] stole[,]” there was
sufficient evidence for the jury to reasonably find that the defendant was the
initial aggressor. Id. at *6.
31 In Kidd, the defendant, believing the victim had stolen drugs and money
from him earlier that day, confronted the victim by brandishing a gun for
twelve seconds before shooting the victim in the chest at point blank range.
2022 WL 2253588, at *2. As in Bowman’s case, there was clear surveillance
footage of the incident. Id. at *1. The defendant argued before the Court of
Appeals that the trial court erred by providing the jury with an initial aggressor
limitation instruction because “brandishing [a] weapon does not meet the
definition of physical force.” Id. at *4. The Kidd Court disagreed and held that
“a jury could view [the surveillance] video and believe it to be direct evidence of
[the defendant] acting as the initial aggressor.” Id. at *5.
In addition to Kingdon and Kidd, this Court concludes it would be
patently absurd to hold that pointing a loaded firearm at someone’s head at
close range does not qualify as directing force towards the body of that person.
Accordingly, at the very least, we cannot say that the trial court’s conclusion
was “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” English, 993 S.W.2d at 945.
D. The trial court erred in the manner it polled the jury, but the error was not palpable.
The final assertion of error raised by Bowman is that the trial court
polled the jury after each of his trial’s three phases in a manner that violated
RCr 9.88, and was reversible error under Miles v. Commonwealth, 256 S.W.3d
46 (Ky. App. 2008). While we agree that the trial court erred, we hold that the
error was not palpable.
32 Following the initial guilt phase of trial, after the jury’s verdict was read,
Bowman requested that the jury be polled. The trial judge then addressed the
jury by saying, “Alright ladies and gentlemen, I’m going to poll the jury. What
that means, I’m going to ask each and every one of you if that was your verdict,
so I’ll start right up here, ma’am was that your verdict?” After the first juror
answered “yes,” the judge then asked “sir?” or “ma’am?” to each juror
individually while gesturing towards them with his hand until he got to the
final four jurors, to which he only gestured. Each juror verbally responded
“yes.”
Next, after the jury’s verdict was read in the guilt phase for the charge of
felon in possession of a firearm, Bowman again asked the trial judge to poll the
jury. The judge addressed the jury stating, “Same thing we did before, one by
one I’m going to ask if that’s your verdict.” This time the judge only gestured to
each juror with his hand, and each juror verbally responded “yes” or “yeah.”
Finally, after the jury’s verdict was read for the sentencing phase of the
trial, Bowman asked that the jury be polled. The trial judge stated, “Same as
before, I’m going to poll the jury. I’m going to ask each of you if it was your
verdict.” The judge gestured and said “ma’am?” to the first juror, and then
gestured towards each of the remaining jurors. Each juror again verbally
responded “yes” or “yeah.”
Bowman never objected to the manner in which the jury was polled, nor
did he request that the trial judge specifically ask each juror “was that your
verdict?” He now asserts before this Court that the way the jury was polled
33 was reversible error. We accordingly agree with the Commonwealth’s assertion
that this error is unpreserved. Nevertheless, Bowman has requested review for
palpable error pursuant to RCr 10.26 and we will review under the palpable
error standard cited in Section II(B) of this opinion.
RCr 9.88 directs that “[w]hen the verdict is announced, either party may
require the jury to be polled, which is done by the clerk's or court's asking each
juror if it is his or her verdict. If upon the poll, there is not unanimous
concurrence, the verdict cannot be received.”
The right to poll the jury in criminal causes has in this state always been deemed an essential part of the right of trial by jury. It is guaranteed by both the constitution and the statute, and ought to be maintained and preserved by the courts as essential to the protection of the rights of the citizen.
Temple v. Commonwealth, 77 Ky. 769, 771 (1879); Ky. Const. § 11. An
accused’s right to poll the jury may be waived, Carver v. Commonwealth, 256
S.W.2d 375, 377 (Ky. 1953) (citing Johnson v. Commonwealth, 215 S.W.2d 838,
839 (Ky. 1948)), but waiver did not occur in the case now before us.
In Miles, the trial court polled the jury in a somewhat similar manner as
the trial court in this case:
the trial court did not “ask [each] juror” if this was his or her verdict. The court’s method of polling the six jurors took exactly four seconds:
Court: [Visually scanning the jury as a whole] Is that the verdict of the jury?
[looking at one juror] That your verdict?
[looking at a second juror] Your verdict ma’am?
[looking at a third juror] Sir? 34 256 S.W3d at 46-47. After the court asked the foregoing four questions to the
jury, the defendant asked the trial court to “properly poll the jury[,]” to which
the court replied, “I just did[.]” Id. at 47. The Court of Appeals held that the
trial court’s failure to ask each juror individually about the verdict deprived the
defendant of his right under RCr 9.88 to have the jurors polled individually,
necessitating reversal. Id.
We therefore agree with Bowman’s contention that the trial court erred in
the manner it polled the jury after each phase of his trifurcated trial.
Nevertheless, this Court cannot say that it resulted in manifest injustice or that
there “is a ‘substantial possibility’ that the result in the case would have been
different[.]” Brewer, 206 S.W.3d at 349. To do so, we would have to believe
that there is a substantial possibility that one or more jurors would have
changed their answer from “yes” to “no” if the trial court had asked “was that
your verdict” instead of stating that it was going to poll the jury, explaining
what that meant, and then gesturing to each individual juror to elicit a
response. We therefore affirm.
III. CONCLUSION
Based on the foregoing, we affirm.
All sitting. VanMeter, C.J.; Bisig, Conley, Keller, and Nickell, JJ.,
concur. Thompson, J., concurs in result only.
35 COUNSEL FOR APPELLANT:
Christopher Barrett Thurman Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Jeffrey Allan Cross Assistant Solicitor General