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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014

                         _________________________

                                  1120563
                         _________________________

                    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.
1120563

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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1120563

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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1120563

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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1120563

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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1120563

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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1120563

    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


                                 8
1120563

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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1120563

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.

                                      10
1120563

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.

                             11
1120563

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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