United States v. Bullcoming

22 F.4th 883

UNITED STATES of America, Plaintiff - Appellee,

v.Tommy Dean BULLCOMING, Defendant - Appellant.

No. 20-6125

United States Court of Appeals, Tenth Circuit.

FILED January 6, 2022

Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant – Appellant.

Steven W. Creager, Assistant United States Attorney (Mark R. Stoneman, Assistant United States Attorney, and Robert J. Troester, Acting United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff – Appellee.

Before McHUGH, MURPHY, and CARSON, Circuit Judges.

McHUGH, Circuit Judge.

Linda Zotigh of Hammon, Oklahoma was murdered and her trailer, in which her boyfriend Tommy Dean Bullcoming also periodically resided, was set on fire. The day after law enforcement found Ms. Zotigh's body, they arrested Mr. Bullcoming pursuant to a warrant for failure to appear in court on an earlier marijuana possession charge. At the time of his arrest, Mr. Bullcoming had a black duffel bag in his possession, and he asked law enforcement to bring the bag with them during his transport to the courthouse. Law enforcement searched the bag on three separate occasions and used information from these searches in the affidavit filed in support of the search warrant.

Following issuance of a search warrant, law enforcement found a pair of sandals spotted with blood inside the bag. Authorities later matched the blood to Ms. Zotigh. Prior to his trial, Mr. Bullcoming moved both for an order to access Ms. Zotigh's trailer and to suppress evidence from the duffel bag. The district court denied both motions. A jury ultimately convicted Mr. Bullcoming of felony murder, kidnapping, carjacking, and arson. On appeal, Mr. Bullcoming challenges the denial of both of his motions. For the following reasons, we affirm the district court's denial of Mr. Bullcoming's motions and affirm his convictions.

I. BACKGROUND

A. Factual History

Ms. Zotigh and Mr. Bullcoming—both members of federally recognized Indian tribes—had an on-again-off-again romantic relationship for approximately two years, beginning in 2015 and ending with her death. They broke up frequently, most often fighting about Mr. Bullcoming's drinking and drug use. When they were together, Mr. Bullcoming lived at Ms. Zotigh's trailer located on Indian trust land in Hammon, Oklahoma. However, Ms. Zotigh did not permit Mr. Bullcoming to stay in the trailer when she was traveling.

In June 2017, Mr. Bullcoming and Ms. Zotigh were arrested following the discovery of marijuana in Ms. Zotigh's vehicle. Consequently, they were both scheduled to appear in tribal court in Concho, Oklahoma on September 7, 2017 at 10:30 a.m.

On August 31, 2017, Ms. Zotigh traveled to Arizona with her adult son, Timothy Raya, to attend a tribal intramural basketball tournament. Because she would be away for the weekend, she asked her cousins, Wendell and Chris Johnson, if Mr. Bullcoming could stay with them at their nearby house instead of in her trailer. The Johnsons agreed, and Mr. Bullcoming arrived with a trash bag of clothes and his wallet to spend the weekend at their home. During the course of her trip, Ms. Zotigh broke up with Mr. Bullcoming. After she returned from Arizona, she asked Wendell Johnson to tell Mr. Bullcoming "to come get his belongings" because "she didn't want him there no [sic] more." ROA Vol. 4 at 396–97.

On September 6, 2017, shortly before midnight, volunteer firefighter Colin Candy noticed Ms. Zotigh's trailer on fire. Mr. Candy returned home, woke his wife, and told her to call dispatch to report the fire, which she did at 11:53 p.m. Mr. Candy then met firefighter Timothy Williams at the fire station and drove the fire truck to Ms. Zotigh's trailer. After they extinguished the fire, the men entered the trailer and saw what appeared to be blood on the walls and subfloor of the hallway.

At around 2:00 a.m. on September 7, Special Agent Micah Ware of the Bureau of Indian Affairs ("BIA") received a call advising him of the fire at Ms. Zotigh's trailer. When Agent Ware arrived at the scene, he conducted a brief search of the trailer to confirm Ms. Zotigh was not inside. He took photographs and swabs of blood splatter in the kitchen area. He also observed blood in Ms. Zotigh's car and took swabs from the driver's seat and middle portion of the car. At 3:30 p.m., Agent Ware released the trailer to Ms. Zotigh's family.

At approximately 6:00 p.m. that same day, Agent Ware discovered Ms. Zotigh's body in a field of tall grass several yards off a dirt road. Her mouth was covered in duct tape as was one of her wrists. She had close to seventy knife wounds and one had severed her jugular vein.

On the evening of September 6, prior to Ms. Zotigh's murder, Mr. Bullcoming was at the Johnsons’ house about two-hundred feet from Ms. Zotigh's trailer. At some point, Mr. Bullcoming left without being seen by either of the Johnson brothers. Mr. Bullcoming was not around when the Johnsons discovered the fire at Ms. Zotigh's trailer, and he never came back to their house.

At around 11:45 p.m. that night, Mr. Bullcoming arrived at the home of his aunt, Mary Miles, and her daughter, Jamie Highwalker. He asked Ms. Highwalker for a ride to Concho in time for his court date the next morning. Because Ms. Highwalker could not take him to Concho, she took Mr. Bullcoming to Elk City where they stopped at Hutch's Convenience Store so Mr. Bullcoming could buy beer before heading to the home of their cousin, John Standingwater. Surveillance footage from Hutch's Convenience Store showed "what appeared to be blood on [Mr. Bullcoming's] right palm and left ring finger area." ROA Vol. 3 at 20–21. Mr. Bullcoming spent the night at Mr. Standingwater's home. At Mr. Standingwater's home, Mr. Bullcoming picked up a black duffel bag he had left there following a previous visit.

From there, Mr. Bullcoming continued to try and make his way to Concho. The evening of September 7, Mr. Bullcoming and his cousin, Seger Williams, arrived at Robert Buckman's house in El Reno and asked if they could spend the night. Mr. Buckman agreed to let them sleep in his living room. Agent Ware and other officers tracked Mr. Bullcoming to Mr. Buckman's home, arriving at around 3:00 a.m. on September 8. Because he missed his September 7 court date, the officers arrested Mr. Bullcoming on a warrant for failure to appear in tribal court.

Mr. Bullcoming asked the officers to bring his black duffel bag with them. Later, Mr. Bullcoming asked Agent Ware to retrieve his medication from one of the pockets of the duffel bag. When Agent Ware did not immediately find the medication, he emptied the contents of the bag onto the floor. He observed numerous items including clothing and shoes but did not find the medication. Agent Ware then put the items back into the bag, shut it, and put the bag in the back of his vehicle. The bag remained undisturbed in Agent Ware's truck throughout the weekend.

Three days later, on Monday, September 11, Agent Ware logged the duffel bag into an evidence "pod" where it remained. ROA Vol. 4 at 931. Agent Ware acknowledged that under BIA procedures he should have logged the bag at the end of his shift, on September 8. At that time, however, he had been awake for over twenty-four hours and thought the circumstances warranted an exception. After logging the bag on September 11, Agent Ware then inventoried and took photographs of its contents. During that search, Agent Ware found Mr. Bullcoming's medication but did not deliver it to him. On September 18, an Assistant United States Attorney indicated the prosecution would seek a search warrant for the bag, prompting Agent Ware to conduct a second and more thorough inventory search of the duffel bag and to create a list of the items inside. During this search, he observed what he thought was possible blood on a pair of sandals.

On November 1, 2017, a federal magistrate judge issued a search warrant for Mr. Bullcoming's bag. Agent Ware's affidavit in support of the application provided a detailed list of the contents of the bag as well as a statement that "[d]uring a more thorough inventory of [Mr. Bullcoming's] black bag on September 18" he discovered "what appeared to be possible red/bloody spots on a pair of gray size 13 Jordan slippers." ROA Vol. 3 at 20–21. The Oklahoma State Bureau of Investigations later determined the blood on the sandals was Ms. Zotigh's. In addition, the affidavit described Mr. Bullcoming's and Ms. Zotigh's recent breakup and the bloody nature of the crime. Specifically, the affidavit described: (1) "fresh blood" found in Ms. Zotigh's vehicle and "within the residence," (2) a bloody tissue box discovered near Ms. Zotigh's body, and (3) "multiple apparent stab wounds" on Ms. Zotigh's body. ROA Vol. 3 at 17, 19. The affidavit also described blood on Mr. Bullcoming's person and clothes including: (1) "what appeared to be several cuts and/or scrapes on [Mr. Bullcoming's] arms, hands, and legs"; (2) a description of blood observed on Mr. Bullcoming's belt; and (3) from surveillance footage, "what appeared to be blood on [Mr. Bullcoming's] right palm and left ring finger area," at Hutch's convenience store. Id. at 20–21. Finally the affidavit provided additional circumstantial evidence tying Mr. Bullcoming to the murder including: (1) a statement from Wendell and Chris Johnson that Mr. Bullcoming had left their home that evening and had not returned, (2) a statement from Ms. Zotigh's daughter that her mother and Mr. Bullcoming often visited the location where Ms. Zotigh's body was found, and (3) a statement from a witness that she may have observed Mr. Bullcoming driving Ms. Zotigh's car at a "high rate of speed" the evening of the murder. Id. at 17–22.

B. Procedural History

A federal grand jury in the United States District Court for the Western District of Oklahoma indicted Mr. Bullcoming on charges of first-degree...