Ex parte Christie Michelle Scott.

REL:09/26/2014
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
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Ex parte Christie Michelle Scott
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Christie Michelle Scott
v.
State of Alabama)
(Franklin Circuit Court, CC-08-344;
Court of Criminal Appeals, CR-08-1747)
SHAW, Justice.
WRIT DENIED. NO OPINION.
Stuart, Bolin, Parker, Murdock, and Bryan, JJ., concur.
Moore, C.J., concurs in part and dissents in part.
Wise, J., recuses herself.*
*Justice Wise was a member of the Court of Criminal
Appeals when that court considered this case.
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MOORE, Chief Justice (concurring in part and dissenting in
part).
Christie Michelle Scott petitions this Court for a writ
of certiorari to review the judgment of the Court of Criminal
Appeals affirming her capital-murder convictions and sentence
of death. Scott v. State, [Ms. CR-08-1747, Oct. 5, 2012] ___
So. 3d ___ (Ala. Crim. App. 2012). In her petition, Scott
raises 22 issues for review. I concur in denying Scott's
petition on all issues except her claim under Rule 404(b),
Ala. R. Evid. Therefore, as to that issue I dissent from the
denial of Scott's petition.
I. Facts and Procedural History
In the early morning hours of August 16, 2008, a fire
broke out in the children's bedroom in the home of Christie
and Jeremy Scott in Franklin County. Jeremy was away on a
business trip. Four-year-old Noah was sleeping with his mother
in her bedroom; six-year-old Mason was asleep in his room. As
the fire burned, the mother escaped out of her bedroom window
with her son Noah and knocked on a neighbor's door to call for
help. The neighbor dialed emergency 9-1-1. The fire department
put out the fire, but the blaze was too intense for the
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firefighters to rescue Mason, who died from burns and smoke
inhalation.
The State charged Scott with three counts of capital
murder: murder committed for pecuniary gain, murder by arson,
and murder of a child under the age of 14. See §§ 13A-5-
40(a)(7), -40(a)(9), and -40(a)(15), Ala. Code 1975. After a
one-month trial, the jury convicted Scott on all three counts
and, in the penalty phase, by a 7-5 vote, recommended a
sentence of life imprisonment without the possibility of
parole. The trial court, finding as an aggravating
circumstance that a mother's murder of her child by means of
arson is particularly heinous, atrocious, or cruel when
compared to other capital offenses, imposed the death penalty.
Scott appealed; the Court of Criminal Appeals affirmed
her convictions and her sentence of death.
II. Discussion
Ordinarily evidence at trial is limited to proof of the
crimes charged or the circumstances leading up to them.1
1
The larger context of a criminal act is known as the res
gestae, namely, "things done" that are inseparably connected
to the act charged and that are necessary to understand it.
See I Charles W. Gamble, McElroy's Alabama Evidence §
70.01(12)(b) (6th ed. 2009) (noting that evidence of acts that
are part of the same transaction as the crime charged is
admissible).
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Evidence of independent collateral bad acts, however, is
presumptively inadmissible to suggest that the defendant is
guilty of the crime charged. "Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith." Rule
404(b), Ala. R. Evid.2 "Evidence of prior bad acts of a
criminal defendant is presumptively prejudicial to the
defendant. It interjects a collateral issue into the case
which may divert the minds of the jury from the main issue."
Ex parte Cofer, 440 So. 2d 1121, 1124 (Ala. 1983).
In this case the trial court admitted, over Scott's
objection, evidence of two earlier fires in January 2006 that
had occurred at the house the Scott family was then occupying.
The first, a minor event, was deemed accidental. The second,
which demolished the house, was listed by the insurance
examiner as arson. However, no criminal charges were filed,
and the insurance company paid the claim. The State argued
that evidence of the earlier fires was admissible in the
2
One scholar paraphrased the rule: "That is, evidence that
a defendant has done something like this before is not
admissible solely to show his propensity to do things like
this as the basis for inferring that he did it this time."
Jerome A. Hoffman, The Alabama Rules of Evidence: Their First
Half-Dozen Years, 54 Ala. L. Rev. 241, 269 (2002).
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capital-murder trial to identify Scott as the perpetrator of
the fire that resulted in the death of her son. Admittedly,
such evidence is relevant to proving the charge. "'Relevant
evidence' means evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence." Rule 401, Ala. R.
Evid. But the reason such evidence is generally excluded is
that it is too likely to sway the jury to convict upon facts
other than those charged in the indictment. The presumption of
innocence, a bedrock principle of criminal law, requires that
"'a defendant ... be tried for what he did, not for who he
is.'" Allen v. State, 478 So. 2d 326, 331 (Ala. Crim. App.
1985) (quoting United States v. Myers, 550 F.2d 1036, 1044
(5th Cir. 1977)).
Rule 404(b) lists a number of exceptions to the general
rule against admissibility of prior bad acts, "such as proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." In granting the
State's motion to admit evidence of the 2006 fires, the trial
court found "that these fires can be used in regard to show
plan, motive, and identity." The common-plan exception "is
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essentially coextensive with the identity exception." Ex parte
Darby, 516 So. 2d 786, 789 (Ala. 1987). The identity exception
is quite narrow and is applicable only when "the identity of
the person who committed the charged offense is in issue and
the charged offense is committed in a novel or peculiar
manner." Ex parte Baker, 780 So. 2d 677, 679 (Ala. 2000).
Because Scott denied that she had set the fire that
resulted in her son's death but did not contend that someone
else did so, the identity of the person who committed the
alleged crime was not at issue. Instead, the issue was whether
a crime had occurred, not who had committed it.
"The identity of the person who actually
committed the acts with which the defendant was
charged was not at issue. The defendant did not
argue that 'someone else committed the acts with
which he was charged'; instead, he merely denied
that the acts ever occurred. Therefore, because
there was no 'real and open' issue concerning
identity, the collateral acts could not be
admissible as going toward such an issue."
Anonymous v. State, 507 So. 2d 972, 975 (Ala. 1987). See also
Windsor v. State, 110 So. 3d 876, 882 (Ala. Crim. App. 2012)
(admitting evidence of a prior act "with a very high degree of
similarity" to the crime charged when the defendant's
testimony that he was not the one who had robbed a CVS store
"placed at issue his identity as the perpetrator of the
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crime"); Mothershed v. State, 596 So. 2d 47, 48 (Ala. Crim.
App. 1991) (reversing a judgment of conviction where the
evidence of collateral acts was admitted to prove "identity or
common plan, scheme, or design," but "[t]he appellant never
alleged that someone else was the perpetrator of the crimes,"
only that the acts never occurred).
Likewise the prior fires and the fire that resulted in
the death of Scott's son were not so "novel and peculiar" as
to mark them as Scott's "'signature crimes' having the
accused's mark and the peculiarly distinctive modus operandi
so that they may be said to be the work of the same person."
Bighames v. State, 440 So. 2d 1231, 1233 (Ala. Crim. App.
1983). See also Hurley v. State, 971 So. 2d 78, 83 (Ala. Crim.
App. 2006) ("'The pattern and characteristics of the crimes
must be so unusual and distinctive as to be like a
signature.'" (quoting 1 McCormick on Evidence § 190 at 803
(4th ed. 1992) (footnotes omitted))). A federal district judge
offered this vivid and insightful description of the identity
exception:
"'[B]ut sometimes in criminal offenses, one's method
of doing things, of painting a portrait or of laying
fancy brickwork or of committing a crime, the
methods and artistry involved are so similar that
you can almost say from looking at two of them that
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the same hand did both of them. In other words,
similarity of method, similarity of mode of
operation is sometimes almost like a trademark of
its author.'"
United States v. Jackson, 451 F.2d 259, 263 n.6 (5th Cir.
1971) (quoting the trial court's instructions and charge to
the jury regarding identity evidence).
Arson is a property crime that requires that the
defendant possess the intent to damage or recklessly damage a
building. See §§ 13A-7-41 through -43, Ala. Code 1975. One of
the capital offenses charged in this case is "[m]urder by the
defendant during arson in the first or second degree committed
by the defendant." § 13A-5-40(a)(9), Ala. Code 1975. As
applicable to this case, "murder by the defendant" means that,
"[w]ith intent to cause the death of another person, he or she
causes the death of that person or another person." § 13A-6-
2(a)(1), Ala. Code 1975. See § 13A-5-40(b), Ala. Code 1975.
The State's burden in this case was not merely to prove
that Scott committed arson but that she did so "with intent to
cause the death" of her son. The State does not allege that
evidence of the 2006 fires is probative of Scott's intent to
murder her son; it alleges only that that evidence shows a
common scheme or plan to collect insurance proceeds. If Scott
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were charged in this case with arson rather than with capital
murder, the State's argument might have some plausibility.
Even then the probative value of the separate acts would be
questionable. See Brasher v. State, 249 Ala. 96, 98, 30 So. 2d
31, 33 (1947) (noting that "proof of another and distinct
offense has ordinarily no tendency to establish the offense
charged"). In this case, however, a supposed "signature crime"
of arson is proposed to identify Scott as the author of a
subsequent murder "committed by some novel or extraordinary
means or in a peculiar or unusual manner," Wilder v. State, 30
Ala. App. 107, 109, 1 So. 2d 317, 319 (1941), as to "exhibit
such a great degree of similarity that anyone viewing the two
offenses would naturally assume them to have been committed by
the same person." Brewer v. State, 440 So. 2d 1155, 1161 (Ala.
Crim. App. 1983).
But obviously the dissimilarity between the 2006 and the
2008 events, especially as it relates to the crimes charged --
capital murder in 2008 and no charge at all in 2006 -- makes
the claim that evidence of the 2006 events was offered to
prove a "signature crime" less than convincing.3 Under the
3
For the same reason, the motive exception is not
applicable. As Scott argues, "a motive to collect a
homeowner's insurance claim from a house fire is not the same
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guise of proving identity, namely, a novel or peculiar
methodology unique to Scott, the State succeeded in presenting
to the jury mere propensity evidence. "'But evidence of
accused's commission of other offenses which does nothing more
than indicate the accused's inclination or propensity to
commit the type of crime charged is not admissible as tending
to show identity.'" Mason v. State, 259 Ala. 438, 442, 66 So.
2d 557, 560 (1953) (quoting Judge McElroy, The Law of Evidence
in Alabama).
Scott was in effect tried not only for the 2008 fire, but
also for the uncharged 2006 fires, thus inducing the jury to
convict her based on all those events, even though the former
acts were not mentioned in the indictment. See Brewer v.
State, 440 So. 2d 1155, 1164 (Ala. Crim. App. 1983) (holding
that an improperly admitted prior conviction "had no probative
value in relation to its inflammatory effect on the
factfinders"). "The District Attorney explained to the jury in
his opening statement that 'we're going to try to prove [the
2006] fires just as much as we prove [the 2008] fire.'"
Scott's brief, at 93. The tendency of this tactic is to
convict the defendant, not upon proof of guilt of the crime
as a motive to kill one's son." Scott's petition, at 91.
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charged, but for a general criminal propensity -- exactly what
Rule 404(b) prohibits.
The introduction of such evidence is peculiarly tempting
when the prosecution's case is far from airtight and the State
needs to nudge the jury to find guilt beyond a reasonable
doubt.4 That is exactly what occurred in this case. As the
Court of Criminal Appeals stated: "Here, Scott denied setting
the fire, and the evidence against Scott was circumstantial.
Evidence of the 2006 fires at Scott's house was crucial to the
State's case to prove the identity of the perpetrator of the
2008 fire and the motive behind the 2008 fire." Scott, ___ So.
3d at ___ (emphasis added). Thus, the State's other evidence
was not so overwhelming as to render the improper admission of
the prior-fires evidence harmless beyond a reasonable doubt.
See Rule 45, Ala. R. App. P. (harmless-error rule); Moore v.
State, 49 So. 3d 228, 234-35 (Ala. Crim. App. 2009).
The issue in the case was whether arson occurred at all,
not who set fire to the house, be it Scott or someone else.
Likewise, a comparison of the 2006 fires and the 2008 fire did
4
"[I]n many criminal cases evidence of an accused's
extrinsic acts is viewed as an important asset in the
prosecution's case against an accused." Advisory Committee
Notes on 1991 Amendment to Rule 404, Fed. R. Evid.
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not show "'such a concurrence of common features that the
various acts are naturally to be explained as caused by a
general plan of which they are the individual
manifestations.'" Mayberry v. State, 419 So. 2d 262, 268 (Ala.
Crim. App. 1982) (quoting Wigmore on Evidence § 304 (3d ed.
1972)). Using a person's prior bad acts to sway the jury to
convict in a close case is generally impermissible for reasons
already discussed.
"'In a large degree the effect of such a proceeding
is to "shut the gates of mercy on mankind," so that
if but once an individual suffers a lapse of virtue,
thenceforward the law will pursue him with the
vindictive zeal of a Javert, using a single
accusation to wreak upon him the cumulative
vengeance of a general inquisition.'"
Brasher, 249 Ala. at 100, 30 So. 2d at 35 (quoting State v.
Start, 65 Or. 178, 192, 132 P. 512, 517 (1913)). This
principle is even more applicable when the prior acts posited
as precursors and exemplars of the charged offense possess no
"novel and peculiar" characteristics of themselves and offer
no hint or foreshadowing of looming infanticide.
"The defendant was entitled to be tried for the crime
with which he was charged and no other." Allen v. State, 478
So. 2d 326, 331 (Ala. Crim. App. 1985). "The worst wretch that
walks the earth is entitled to a fair trial, for the law is
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superior to all persons. As much as we may regret some results
of the law, the law must be preserved if this constitutional
democracy is to survive." Watts v. State, 282 Ala. 245, 248,
210 So. 2d 805, 808 (1968).
For the foregoing reasons, I respectfully dissent from
the denial of Scott's petition for a writ of certiorari on the
issue of admission of the prior-fires evidence. In all other
respects, I concur in denying the petition.
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