EXECUTIVE SUMMARY: This
weekly newsletter covers:
Alaska Court Finds Failure to Warn About Propane Hazard A Jury Issue
Mississippi Supreme Court Upholds Murder Conviction By Arson
ALASKA COURT FINDS FAILURE TO WARN ABOUT PROPANE HAZARD A JURY ISSUE
In Robles v. Shoreside Petroleum, Inc.; Supreme Court No. S-8617, No. 5457; Supreme Court Of Alaska, (Aug. 31, 2001), the court reviewed a decision by the trial court not to permit the jury to hear evidence about failure to warn. Gary Robles, the operator of a Seward gas station, was seriously injured when a propane tank he was filling for a customer exploded. Robles sued Shoreside Petroleum, Inc., his propane supplier, and Petrolane Incorporated, the wholesale propane distributor, claiming (1) Petrolane and Shoreside negligently trained him in the safe handling of propane; (2) Shoreside negligently circulated dangerously old propane tanks in Seward, including the tank that exploded in this case; and (3) Shoreside negligently failed to warn him of the dangers associated with filling these old tanks. The superior court allowed the jury to consider Robles's claim of negligent training but not his other two claims.
On October 6, 1993, a 100-pound propane tank exploded at the Tesoro station in Seward, injuring Robles, who leased the station, and Robert Gannaway, his customer. While Robles was filling the tank, the corroded bottom gave way under pressure. The last known inspection of this tank was in 1964, despite federal regulations requiring that propane tanks periodically be recertified. Robles also claimed that Shoreside was negligent for filling uncertified tanks and failing to warn Robles that these uncertified tanks were circulating in the Seward community. Federal regulations require that propane tanks be inspected and recertified twelve years after manufacture and every five to seven years thereafter.
Shoreside had the capacity to recertify tanks. Nevertheless, Robles offered evidence that Shoreside's employees regularly filled outdated tanks for the company's retail customers. The superior court excluded the evidence as irrelevant, confusing, and unfairly prejudicial. The court acknowledged that its ruling left Robles with only his negligent training claim and effectively barred him from arguing his two alternative theories of negligence: (1) that Shoreside had previously filled and recirculated the outdated tank that caused his injury and (2) that it had failed to warn Seward suppliers, including Robles, that it was refilling outdated tanks and circulating them back into the community. But the court reasoned that these alternative theories were not legally viable.
Because it was foreseeable that these tanks would later be presented to other propane retailers, a jury could reasonably find that Shoreside's failure to warn Robles of this danger was a legal cause of his injuries. Moreover, even if Shoreside owed no independent duty to warn Robles of the dangers posed by refilling uncertified tanks, evidence concerning Shoreside's unlawful refilling practices might have altered the jury's finding that Shoreside's negligent failure to ensure that Robles was adequately trained was not a legal cause of his injuries. The court concluded that it was error to exclude all evidence of Shoreside's tank-filling practices. The error requires a retrial on the issue of Shoreside's negligent failure to warn and on the related issues of causation and comparative fault.
MISSISSIPPI SUPREME COURT UPHOLDS MURDER CONVICTION BY ARSON
The Mississippi Supreme Court reviewed the defendant's murder conviction by arson in Linda Leedom v. State Of Mississippi, No. NO. 1999-KA-01754-SCT (Aug. 30, 2001) . Lula Young was asleep in her house on December 19, 1994, between 5:50 and 6:00 a.m., when a neighbor heard two explosive sounds coming from her house, and shortly thereafter saw the house enveloped in flames. Young died in the fire. Firefighters called to the scene found a propane tank and several oxygen bottles. Upon closer inspection, it appeared the tank's release valve was vented out and opened one fourth of the way. Investigators initially attributed the cause and intensity of the fire to the combination of propane and oxygen in the house. At trial, an expert testified that the fire was intentionally started and caused by propane leaking from the tank.
Linda Leedom met Charles Wayne Dunn shortly after moving in with her daughter and son-in-law in December of 1993. At trial, Dunn testified Leedom approached him with the idea to kill Young, explaining that Young was her best friend and was dying of cancer. Leedom said Young asked her to kill her, but she did not have the heart to do it so she offered Dunn $5,000 to do it for her. He agreed to kill Young, Dunn said he suggested they use an electrical heater to start a fire and purchased the heater with funds given to him by Leedom. He could not recall, however, who purchased the propane tank. Another witness, however, testified that on the day of the incident, Leedom said she purchased a grill for her daughter and son-in-law for Christmas and stored the propane tank in Young's home.
On the night before the fire, Dunn parked his car in Young's driveway and entered the house. He retrieved the heater from his truck, crushed some newspaper nearby, opened the valve on the propane tank, turned on the heater, and left the house. He testified the next day he went to Leedom's home and collected $1,000 from her with the balance to be paid in smaller amounts over time. A confidential informant later told the police that Dunn had been talking about the fire. The police picked him up for questioning, and he confessed to the murder and to conspiring with Leedom.
In a search of Leedom's home in March of 1997, two life insurance policies on Young's life in the amounts of $75,000 and $500,000, designating Leedom as the primary beneficiary, were discovered along with a third policy designating Leedom's husband as the beneficiary in the amount of $200,000. A partnership agreement was also discovered between Leedom and Young with a power of attorney granted to Leedom from Young.
In a search of Leedom's home during the investigation, life insurance policies were also found on Robert Stovall, who is unrelated to Leedom by blood or marriage and was unaware of the insurance polices on his life. Another agent, Thomas Cooper, for Kansas City Life Insurance, testified that he also met with Leedom to issue a policy on Robert Stovall, who was listed this time on the application as Leedom's son-in-law. The face value of this policy was $250,000 with an additional $200,000 accidental death rider. Leedom was listed as the contingent beneficiary and her address as Stovall's address. Agent Cooper also testified that he was introduced to a person said to be Robert Stovall, but could not identify the real Stovall in court as the person he met.
When asked at trial about Stovall, Dunn testified that after Young's death Leedom approached him with a request that he kill Stovall. She did not give a reason for wanting him killed, he said, but offered him $10,000 to commit the murder, and he agreed. He then obtained a fraudulent identification card with Stovall's name and his (Dunn's) photograph. With money given to him by the defendant, he purchased a 1979 Toyota Celica to be used in a car wreck with Stovall and testified that the defendant took him to Stovall's hometown to commit the murder.
The State elected to try Leedom for the conspiracy to commit capital murder and the capital murder of Young and prior to trial, moved to amend the indictment to charge Leedom as a habitual offender. The jury found the defendant guilty of conspiracy and murder and sentenced her to life without parole and twenty (20) years respectively.
Leedom's primary argument on appeal charges the lower court with error in admitting evidence that she engaged in a second conspiracy to kill Robert Stovall for insurance money. Prior to trial, she filed a motion in limine to preclude the prosecution from offering evidence regarding Stovall. It was denied, and over her objection Dunn testified that he and Leedom conspired to kill Stovall. All evidence of the Stovall Plan is inadmissible, Leedom contends, under Miss. R. Evid. 404(b), which contemplates prior not subsequent acts, like those here.
Leedom was mistaken. The general rule in criminal trials, with certain exceptions, is that proof of other criminal conduct by the accused is inadmissible. Tobias v. State, 472 So.2d 398, 400 (Miss. 1985); Donald v. State, 472 So.2d 370, 372 (Miss. 1985); Mason v. State, 429 So.2d 569, 572 (Miss. 1983). The sequence in which offenses are committed is immaterial in determining whether in a prosecution for one offense proof of the other offense is admissible, since "it is their integration into the incident, interwoven with similar provocation and purpose which makes it impractical to draw a curtain at the end of any particular act behind which the jury may not peer." Walker v. State, 201 Miss. 780, 782, 30 So. 2d 239 (1947). Evidence of other bad acts is thus admissible regardless of whether they occur before or after the charged offense. Whether such proof is admissible depends, rather, upon whether it is introduced for one of the express purposes set out in Rule 404(b) of the Rules of Evidence, which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, preparation, plan, knowledge, identity, or mistake or accident. As there exists an inherent danger of prejudicial effect in the use of other acts evidence, the 404(b) exception for which the crime is introduced must be a material issue in the case. Moreover, its probative value must substantially outweigh the prejudicial effect, Miss. R. Evid. 403, there must also be plain, clear and convincing evidence of the other offense, and it must not be too remote in time. Darby v. State, 538 So. 2d 1168, 1173 (Miss. 1989) (relying upon United States v. Silva, 580 F.2d 144 (5th Cir. 1978)).
Leedom argues the Stovall Plan cannot demonstrate anything meaningful regarding motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. The court disagreed. In Ford v. State, 546 So. 2d 686 (Miss. 1989), defendants on trial for bank larceny objected to the State introducing evidence that they committed a second bank larceny the next day. The court concluded that evidence that the defendants went into a second bank reenacting essentially the same manner of theft as had occurred the day before, showed they had acted according to a predetermined plan in the larceny charged more probable than without such evidence. The same is true here. The fact that there is other crime evidence showing that Leedom had essentially the same plan and preparation to kill Stovall, has a tendency to make the fact that she and Dunn were acting according to a predetermined plan or agreement to kill Young more probable than it would be without such evidence, particularly in light of her defense-- that Dunn was solely responsible for the fire that killed Young. The convictions were affirmed by the court.
Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610,
San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax),
email@example.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.
Please direct comments, suggestions, stories, and other items to the author by
e-mail at firstname.lastname@example.org