State v Sosa-Hurtado

Sosa Hurtado appealed his aggravated murder conviction, the denial of his motion for a new trial and his motion for mistrial. The panel affirmed. It held the state proved the aggravator of placing a third person at great risk of death because Sosa-Hurtado shot at one victim seconds before shooting the decedent which is a sufficiently close temporal connection, the shooting took place within a few square feet of a smoke shop which is a sufficient special relationship between the various shots and Sosa-Hurtado actually shot at both victims which is an actual threat of harm. It held there was no abuse of discretion in the district court refusing to consider evidence submitted after the motion for new trial was filed as Sosa-Hurtado never moved for permission to file the new material after the deadline. It affirmed denial of the new trial motion as Sosa-Hurtado’s attorney knew the terms of a witness’  plea agreement in a different case involving Sosa-Hurtado and there no prejudice as cross examination revealed that the witness had a favorable plea deal in this case and thus was already impeached and the attorney made a permissible tactical decision not to pursue the issue as Sosa-Hurtado’s burglary charges in the other case would have come into evidence; there was no evidence in support of Sosa-Hurtado’s doctored evidence claim and in any event he received all the relief sought at trial on this claim; and the trail judge’s ex parte communications with the jury were not prejudicial as they concerned the timing of the jury’s dismissal for the day, were disclosed and there were no objections. It finally affirmed the denial of the mistrial motion because any error in an officer testifying about Sosa-Hurtado’s assertion of his right to remain silent was harmless given the strength of the case against him, the fact the testimony was never referenced and a curative instruction was given.

ACC Capital Corporation v Ace West Foam Inc. et al.

ACC appealed the grant of Ace’s motion to enforce a memorandum of understanding as a settlement agreement. The panel affirmed. It held, the unambiguous language of the memorandum evidenced a meeting of the mind a sufficiently detailed terms to be enforceable and ACC extrinsic evidence could not overcome the plain language that the memorandum was a complete settlement of their dispute and language indicating a more formal agreement will follow does not change the outcome under court precedent. It held the district court did not clearly err in finding there was no misrepresentation of value in mediation as the value of certain items was not a material term, there was no warranty as to value as the alternate value offered by ACC’s expert failed to take material facts into account.