August 26, 2019

Archives for January 16, 2015

Colorado Court of Appeals: Announcement Sheet, 1/15/2015

On Thursday, January 15, 2015, the Colorado Court of Appeals issued three published opinions and 31 unpublished opinions.

People v. McClelland

Maslak v. Town of Vail

Independent Bank v. Pandy

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.


Tenth Circuit: Intrinsic Evidence Not Unfairly Prejudicial Where Necessary to Explain Circumstances of Arrest

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hood on Wednesday, December 17, 2014.

Oklahoma City police were investigating a string of burglaries and knocked at the door of an apartment belonging to the owner of a phone left at a burglary site. Although no one answered, a few minutes later residents of the apartment complex alerted police that someone was running from that apartment. The police caught the runner, Michael Hood, who was wearing a bulky coat despite the warm day and was fumbling in his pockets for something. Concerned that he might have a weapon, the police handcuffed and frisked Hood. He was subsequently indicted on two counts of being a felon in possession, related to the incident at the apartment in March 2012 and a separate incident in June 2012. After a jury trial, he was sentenced to 262 months’ imprisonment.

Hood appealed, arguing first that the police seized the firearm in March 2012 in violation of his Fourth Amendment rights. Hood argued that the officers’ use of weapons and handcuffs was not justified, also asserting that the officers waived the opportunity to argue justification for using force. Hood next argued that, if the court should find excessive force from the March 2012 incident, the conviction from June 2012 should also be vacated since the prosecutor relied heavily on evidence from the March incident to convict on the June incident.

The Tenth Circuit was not persuaded by Hood’s waiver argument. The government responded to Hood’s motion to suppress that the officers’ seizure and detention of Hood was a reasonable Terry stop supported by suspicion of criminal activity, and did not waive their argument. As to whether the use of force was justified, the Tenth Circuit affirmed the district court’s conclusion that it was. Hood argues that it was not reasonable because the officers lacked prior belief that he was dangerous. Although the officers were investigating a different individual, Hood ran from the apartment of the person they were investigating and his behavior was suspicious. The Tenth Circuit found the officers were fully justified in drawing their weapons and ordering him to the ground under these circumstances. Because the Tenth Circuit found no error in the search and seizure, it declined to address the arguments relating to the June 2012 possession conviction.

Hood also argued that evidence concerning the burglaries was unduly prejudicial under FRE 404(b)(1) and should have been suppressed. However, this evidence was not admitted to show that Hood acted in accordance with his character; the evidence was admitted as intrinsic evidence. The evidence concerning the burglaries was necessary to explain why the police were at the apartments and why they had heightened suspicion as to Hood. The Tenth Circuit also evaluated for unfair prejudice under Rule 403 and found none. Hood was never named as a suspect in the burglaries, so there was no unfair prejudice in admitting evidence regarding the circumstances of Hood’s arrest.

Finally, Hood argued that a prior conviction for pointing a gun at another person should not count as a violent felony sentence enhancer under ACCA. The Tenth Circuit disagreed. Hood pleaded guilty to pointing a firearm at another person with the intent to injure the other person either physically or through emotional intimidation. The Tenth Circuit noted that using a firearm to threaten another is precisely the sort of violent force proscribed by ACCA.

The Tenth Circuit affirmed Hood’s convictions and sentence.

Tenth Circuit: Allowing Recovery for Lost Horses Would Effectively Nullify State Forfeiture Proceeding

The Tenth Circuit Court of Appeals issued its opinion in Campbell v. City of Spencer on Tuesday, December 16, 2014.

The City of Spencer, Oklahoma, along with the Town of Forest Park and Blaze Equine Rescue seized 44 emaciated and malnourished horses from Ann Campbell’s three properties pursuant to a search warrant issued for one of the properties. The City and Town filed a joint petition in Oklahoma County District Court for forfeiture of the horses as a remedy for animal abuse. During the forfeiture proceeding, Campbell did not raise any argument regarding the scope of the search warrant. The court granted the forfeiture petition, the Oklahoma Court of Civil Appeals affirmed, and the Oklahoma Supreme Court denied certiorari.

Campbell subsequently filed a § 1983 action in the U.S. District Court for the Western District of Oklahoma, claiming that the municipalities and Blaze had violated the Fourth Amendment in two ways: (1) by withholding from the search warrant information about Campbell’s plan to reduce the number of horses, and (2) by searching the two locations not listed on the warrant. The municipalities filed motions to dismiss on preclusion grounds, since Campbell did not raise her arguments in the state forfeiture proceeding. Blaze filed a motion for summary judgment on preclusion grounds. The district court granted the motions. Campbell appealed.

The Tenth Circuit affirmed the district court, finding the exclusionary rule applied in Oklahoma state forfeiture proceedings and Campbell could have raised her claims in that proceeding. Campbell asserted that the state court judge refused to consider the legality of the evidence, but the Tenth Circuit reviewed the record and  found no evidence of such refusal. Campbell also suggested that suppression issues could not be raised in state court proceedings, which was an incorrect understanding of the law. Because of its conclusion that Campbell could have raised her claims in state court, the Tenth Circuit next considered whether allowing her to pursue the claims in federal court would nullify the original proceeding. The Tenth Circuit could not state with certainty whether barring the suppression would nullify the forfeiture proceeding, but found that allowing Campbell to pursue her claims would impermissibly impair the municipalities’ rights as established in the state court. The Tenth Circuit noted that allowing Campbell to recover the value of the lost horses would suggest the invalidity of the state court’s forfeiture order, and declined to allow recovery.

The Tenth Circuit affirmed the district court’s dismissal as to the municipalities and grant of summary judgment as to Blaze.

Tenth Circuit: Texas’s “Fair Notice Rule” Required Indemnity Provision to be Express and Conspicuous

The Tenth Circuit Court of Appeals issued its opinion in Martin K. Eby Construction Co., Inc. v. Onebeacon Insurance Co. on Tuesday, December 9, 2014.

Martin K. Eby Construction Company’s predecessor in interest contracted to build a water pipeline, engaging the predecessor of Kellogg Brown & Root, LLC and promising to indemnify it for claims resulting from Eby’s work. During the construction of the pipeline, Eby accidentally hit a methanol pipeline and caused a leak. At the time, no one knew about the leak. It was discovered over two decades later, and the methanol pipeline owner had to pay for cleanup. It sued Kellogg and Eby, seeking to recover its expenses, but Kellogg and Eby prevailed. Kellogg incurred over $2 million in attorney fees and costs, and it sought to recover those from Eby and its insurer, Travelers Indemnity Co., pursuant to the indemnity provision. The district court granted summary judgment to Eby and Travelers, and Kellogg appealed.

Eby acknowledged that the indemnity provision covered the claims asserted against Kellogg, but argued the coverage was unenforceable because the clause was inconspicuous and not expressly stated. The Tenth Circuit agreed. Under Texas law, indemnity clauses are restricted by the “fair notice rule.” The Tenth Circuit analyzed Texas’s fair notice rule and found it covered the conduct at issue. The fair notice rule required indemnity provisions to be conspicuous and expressly stated. The provision in this case was on page 86 of a 197-page contract, with no identifying heading, in the same typeface and without bolding or other changes to set off the indemnity clause. Because of this, Eby did not have fair notice of the provision, and the coverage was unenforceable.

Turning to Kellogg’s claims against Travelers, the Tenth Circuit found that because it denied the claims as to Eby, there was no claim as to Travelers. The district court’s grant of summary judgment was affirmed.

Tenth Circuit: Unpublished Opinions, 1/15/2015

On Thursday, January 15, 2015, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Davis v. James

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.