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Notice : This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter . Readers are requested to notify the Reporter of Decisions , Alabama Appellate Courts, 30 0 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typogr a p h ical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter . 

# SUPREME COURT O F ALA BAMA

SPECIAL TE RM, 2 014

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_____ _____ _____ _____ _____ Ex pa rte Christ ie Mi chell e Sco tt PETIT ION FOR WR IT OFCERT IORAR I TO THE COURT OFCRIM INAL APPEALS (In r e: Christ ie Mi chell e Sco tt

v. Stateof Alabama) (Fran klin Circu it Court, CC-08 -344; Courtof C rimin al Appeals , CR- 08-17 47) SHAW, Just ice. WRIT DENIE D. NOOPIN ION. Stuar t, Bo lin, Parke r, Mu rdock , andBrya n, JJ ., co ncur. Moore , C.J ., co ncurs in p art a nd di ssent s in part. Wise, J., recus es he rself .*

*Just ice Wise was a membe r o f t he Court of Crimi nal Appea ls wh en th at co urt c onsid ered this case.11205 63

MOORE , Chief Justi ce (conc urrin g in part and disse nti n g in part) . Chris tie Miche lle Scott petit ions th is Court for a writ of certi orari to revie w the judgm ent of the Court of Crimi nal Appea ls affir ming her capit al-mu rder convi ction s and sente nce of de ath. Scott v. S tate, [Ms. CR-0 8-174 7, Oc t. 5, 2012 ] ___ So. 3d ___ (Ala. Crim. App. 2012) . In her p e t i t ion, Scott raise s 22 issue s for revie w. I concu r in de n y i n g S cott' s petit ion on all issue s excep t her claim under Rule 40 4 ( b ), Ala. R. Ev id. T heref ore, as to that issu e I d issen t fro m the denia l of Scott 's pe titio n.

I. Fa cts a nd Pr ocedu ral H istor y In the early morni ng hours of Augus t 1 6 , 2008, a fire broke out in the child ren's bedro om i n t h e home of Chris tie and Jerem y Scott i n F r ankli n Count y. Jerem y was away on a busin ess trip. Four- year- old Noah was sleep ing with his mothe r in her bedro om; six-y ear-o ld Mason was aslee p in his room. As the fire burne d, the mothe r escap ed out of her bedro om windo w with her son Noah and knock ed on a neigh bor's door to call for help. The neigh bor diale d emerg ency 9-1-1 . The fire depar tment put out the fire, but the blaze w a s t oo inten se for the

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firef ighte rs to rescu e Mason , who died from burns and smoke inhal ation . The State charg ed Scott with three count s o f c apita l murde r: murde r commi tted for pecun iary gain, murde r by arson , and murde r of a child u n d e r t h e age of 14. See §§ 13A-5

- 40(a) (7), -40(a )(9), and -40(a )(15) , Ala . Cod e 197 5. Af ter a

one-m onth trial , the jury convi cted Scott on all three count s and, in the penal ty phase , by a 7-5 vote, recomm e n d ed a sente nce of life impri sonme nt witho ut the possi bilit y o f parol e. The trial court , findi ng as an ag g r a v a ting circu mstan ce th at a mothe r's murderof h er ch ild b y mea ns of

arson is parti cular ly heino us, atroc ious , or cruel when compa red to other capit al offen ses, impos ed the death penal ty. Scott appea led; the Court of Crimi nal Ap p e als affir med her c onvic tions and her s enten ce ofdeat h. II. D iscus sion Ordin arily evide nce at trial is limit ed to pr o o f o f the crime s charg ed o r t h e circu mstan ces leadi ng up to them. 1

The large r conte xt of a crimi nal act is known as the res 1 gesta e, na mely, "thi ngs d one" that are i nsepa rablyconn ected to the act charg ed and that are neces sary to u n d ersta nd it. See I Charl es W. Gambl e, M c E l r oy's Alaba ma Evide nce § 70.01 (12)( b) (6th ed. 2009) (noti ng that evide nce of acts that are part of the same trans actio n as the crime charg ed is admis sible ). 311205 63

Evide nce of indep enden t colla teral bad acts, ho wever , is presu mptiv ely inadm issib l e to sugge st that the defen dant is guilt y of the crime charg ed. "Evid ence of o t h e r crime s, wrong s, or acts is not admis sible to prove the chara cter of a perso n in order to show actio n in confo rmity there with. " Rule 404(b ), Ala. R. Evid. "Evid ence of prior bad acts of a 2 crimi nal defen dant is presu mptiv ely preju dicia l to the defen dant. It inter jects a colla teral issue into t h e case whichmay diver t the mind s of the j ury f rom t he ma in is sue." Ex pa rte C ofer, 440 So. 2 d 112 1, 11 24 (A la. 1 983). I n this case the trial court admit ted, over Scott ' s objec tion, evide nce of two earli er fires in Janua ry 2006 that had occur red at the house the Scott famil y was then occup ying. The f irst, a mi nor e vent, was deeme d acc ident al. T he se cond, which demol ished the h o u s e, was liste d by the insur ance exami ner as arson . Howev er, no crimi nal charg es were filed , and the insur ance compa ny paid the claim . The State a r g u ed that evide nce o f t h e e arlie r fires was admis sible in the

One schol ar parap hrase d the rule: "That is, evide nce that 2 a defen da n t has done somet hing like this befor e is not admis sible solel y to show his p r opens ity to do thing s like this as the basis for infer ri n g t h a t he did it this time. " Jerom e A. Hoffm an, The Alaba ma Rules of Evide nce: Their First Half- Dozen Year s, 54 Ala. L. R ev. 2 41, 2 69 (2 002). 411205 63

capit al-mu rder trial to i denti fy Sc ott a s the perp etrat or of the fire that resul ted i n t h e death of her son. Admit tedly , such evide nce is rel evant to provi ng the charg e. "'Rel evant evide nce' means e v idenc e havin g any tende ncy to make the exist ence of any fact that is of conse quenc e to the deter minat ion of the actio n more proba ble or less pro b able than it would be witho ut the evide nce." Rule 4 0 1 , Ala. R. E vid. But the reaso n such evide nce is gener ally exclu ded is that it is too likel y to sway the j ury t o con vict upon facts other than those charg ed in the indic tment . The presu mptio n of innoc ence, a bedro ck princ iple of crimi nal law, requi res that

" ' a d efend ant ... be tried for what he did, not for w h o h e i s . ' " Allen v. State , 478 So. 2d 326, 331 (Ala. Crim. Ap p . 1985) (quot ing Unite d State s v. Myers , 550 F.2d 1036, 1 0 44 (5th Cir. 1977) ). Rule 404(b ) lists a numbe r of exc e p t i o n s to the gener al rule again st admissi bilit y of priorbad acts, "suc h as proof of motiv e, oppor tunit y, inten t, prepa ratio n, plan, knowl edge, ident ity, or absen ce of mista ke or accid ent." In grant ing the State 's motio n to admit evide nce of the 2006 fires , the trial court f o u n d " t h a t these fires can be used in regar d to show plan, motiv e, and ident ity." The commo n-pla n excep tio n " is

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essen tiall y coext ensiv e with the ident ity excep tion. " Ex parte Darby , 516 So. 2d 786, 789 (Ala. 1987) . The ident ity excep tion is qu ite n arrowand is ap plica ble o nly w hen " the i denti ty of the p erson who commi tted the c harge d off ense is inissu e and the charg ed offen se is commi tted in a novel or pecul iar

manne r." E x par te Ba ker, 780 S o. 2d677, 679 (Ala. 2000 ). Becau se Scott denie d that she had set t h e f i re that resul ted i n herson' s dea th bu t didnot conte nd th at so meone

e lse did so, the ident ity of the perso n who commi tted t h e alleg ed crime was not at issue . Inste ad, the issue was wheth er a cri me ha d occ urred , not who had c ommit ted i t.

"The ident ity o f t he perso n who actua lly commi tted the acts with which the defen dant was charg ed was not at issue . Th e d e fenda nt did not a r g u e that 'some one else commi tted the acts wit h which he was charg e d ' ; inste ad, he merel y denie d t h a t the acts ever occur red. There fore, becau se there was n o ' real and open' issue conce rning ident ity, the colla teral acts could not be admis sible as g oing towar d suc h an issue ." Anonymous v. State , 507 So. 2d 972, 975 (Ala. 1987) . See also Winds or v. Stat e, 11 0 So. 3d 8 76, 8 82 (A la. C rim. App. 2012) (admi tting evide nce of a prior act "with a very high degre e of simil arity " to the crime charg ed when the defen dant' s testi mony that he wa s not the one w ho ha d rob bed a CVS store "plac ed at issue his ident ity as the perpe trato r o f the

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crime "); Mothe rshed v. State , 5 9 6 So. 2d 47, 48 (Ala. Crim. Ap p . 1991) (reve rsing a judgm ent of convi ction where th e evide nce of colla teral acts was admit ted to prove "iden tity or

commo n plan, sch eme, or desig n," but "[t]h e appel lant never alleg ed that someo ne else was the perpe trato r of the crime s," only that the a cts n ever occur red). Likew ise the prior fires and the fire that resul ted in the d eath of Sc ott's son were not s o "no vel a nd pe culia r" as to mark the m a s Scott 's "'sig natur e crime s' havin g the

accus ed's mark and t he pe culia rly d istin ctive modu s ope randi so th at th ey ma y be said to be the work of th e sam e per son." Bigha mes v . State , 440 So. 2d 1231, 1233 (Ala. Crim. App. 1983) . See also Hurle y v. State , 971 So. 2d 78, 83 (Ala. Crim. App. 2006) ("'Th e patte rn and chara cteri stics of the crime s must be so unusu al and disti nctiv e as to be like a signa ture. '" (quot ing 1 McCor mick on Evide nce § 190 a t 8 03 (4th ed. 1992) (foot notes omitt ed))) . A feder al distr ict judge offer ed this vivid and insig htful descr iptio n of the ident ity excep tion: "'[B] ut somet imes in crimi nal offen ses, one's metho d of doing thing s, of paint ing a portr ait or of layin g fancy br i c kwork or of commi tting a crime , the metho ds and artis try invol ved are so simil a r that you can almost say from looki ng at two of them that

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the same hand did both of them. In other words , simil arity of metho d, simil arity of mode of opera tion is somet imes alm o s t like a trade mark of its a uthor .'" Unite d State s v. Jacks on, 451 F . 2 d 259, 263 n.6 (5th Cir. 1971) (quot ing the trial court 's instr uctio ns and charg e to the j ury r egard ing i denti ty ev idenc e). Arson is a prope rty crime that requi res that the defen dant posse ss the inten t to damag e or reckl essly damag e a build ing. See §§ 13A-7 -41 throu gh -43, Ala. Code 1975. One of the capit al offen ses charg ed in this case is "[m]u rder by the defen dant durin g arson in the first or secon d degre e commi tted by the defen dant. " § 13A-5 -40(a )(9 ) , A la. Code 1975. As appli cable to this case, "murd er by the defen dant" means that, "[w]i th inten t to cause the death of anoth er perso n, he or she

cause s the deat h of that perso n or anoth er pe rson. " § 1 3A-6- 2(a)( 1), A la. C ode 1 975. See § 13A- 5-40( b), A la. C ode 1 975. The State 's burde n in this case was not m e r ely to prove that Scott commi tted arson but that she did so "with inten t to

cause the death " o f h e r s o n. The State does not alleg e that evide nce o f the 2006 fire s is proba tive of Sc ott's inte nt to murde r her son; it alleg es only that that evide nce shows a

commo n schem e or plan to colle ct insur ance proce eds. If Scott

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were charg ed in this case with arson rathe r than with capit al murde r, the State 's argum ent might have some plaus ibi l i t y. Even then the proba t i v e value of the separ ate acts would be quest ionab le. See Brash er v. State , 249 Ala. 96, 98, 30 So. 2d 31, 33 (1947 ) (noti ng that "proo f of a n o t h er and disti nct offen se has ordin arily no tende ncy to estab lish the offen se charg ed"). In this case, howev er, a suppo sed "sign ature crime " of arson is propo sed to ident ify Scott as the aut h o r o f a subse quent murde r "comm itted by some novel or extra ordi n ary

means or in a pecul iar or unusu al manne r," Wilde r v. State , 30 Ala. App. 107, 109, 1 So. 2d 3 17, 3 19 (1 941), as t o "ex hibit such a great degre e of simil arity that anyon e viewi ng the two offen ses would natur ally assum e them to have been commi tted by the same perso n." Brewe r v. State , 440 So. 2d 1155, 1161 (Ala. Crim. App. 1983 ). But obvio usly the dissi milar ity betwe en the 2006 and the 2008 event s, espec ially as it relat es to the crime s charg ed

-- capit al mu rder in 20 08 an d no charg e at all i n 200 6 -- makes the claim that evide nce of the 2006 e v e n ts was offer ed to prove a "sign ature crime " less than convi ncing . Unde r t he 3

For the sam e reaso n, the motiv e excep tion is not 3 appli cable . As Scott argue s , "a motiv e to colle ct a homeo wner' s insur ance claim from a house fire is not the same 911205 63

guise of provi ng ident ity, namel y, a novel or p e c u liar metho dolog y uniqu e to Scott , the State succe eded in prese nting to the jury mere prope nsity evide nce. "'Bu t e v idenc e of

accus ed's commi ssion of other offen ses which does nothi ng more than indic ate the accus ed's incli natio n or prope nsity to commi t the type of crime charg ed is not admis sible as tendi ng to show ident ity.' " Mason v. State , 259 Ala. 438, 442, 66 So. 2d 557, 560 (1953 ) (quot ing Judge McElr oy, The Law of Evide nce in Al abama ). Scott was in effec t tried not only for the 2008 fire, but also for t he un charg ed 20 06 fi res, thus induc ing t he ju ry to convi ct her based on all those event s, even thoug h the forme r acts were not menti oned in the i n d i c t m ent. See Brewe r v. State , 440 So. 2d 11 55, 1 164 ( Ala. Crim. App. 1983 ) (ho lding that an impro perly admit ted prior convi ction "had no proba tive value in relat ion to its infla mmato r y effec t on the factf inder s"). "The Distr ict Attor ney expla ined to the jury in his o penin g sta temen t tha t 'we 're g oing to tr y to prove [the 2006] fires ju s t a s much as we prove [the 2008] fire. '" Scott 's brief , at 93. The t e n d ency of this tacti c is to convi ct t h e defen dant, not upon proof of guilt of the crime

as a motiv e to kill one's son. " Sco tt's petit ion, at 91 . 1011205 63

charg ed, but for a gener al crimi nal prope nsity -- exact ly what Rule 404(b ) pro hibit s. The intro ducti on of such evide nce is pecul iarly tempt ing when the prose cutio n's case is far from airti ght and the State needs to nudge the jury to find guilt b e y ond a reaso nable d oubt. That is exact ly what occur red in this case. A s t h e

4 Court of Crimi nal Appea ls state d: "Here , Scott denie d setti ng the f ire, and t he ev idenc e aga inst Scott was circu mstan tial. Evide nce of the 2006 fires at Scott 's house was cruci al to the State 's ca se to prov e the iden tity of th e per petra tor o f the 2008 fire and the motiv e behin d the 2008 fire. " Scott , ___ So. 3d at ___ (emph asis added ). Th us, t he St ate's othe r evi dence

was not so overw helmi ng as to rende r the impro per admis sion of the p rior- fires evid ence harml ess b eyonda re asona ble d oubt. See Rule 4 5, Al a. R. App. P. ( harml ess-e rror rule) ; Moo re v. State , 49 So. 3 d 228 , 234 -35 ( Ala. Crim. App. 2009 ). The issue in the case was wheth er arson occur red at all, not who set fire to t h e house , be it Scott or someo ne else. Likew ise, a compa rison of the 2006 fires and the 2008 fire did

" [I]n many crimi nal cases evide nce of an accus ed' s 4 extri nsic acts is viewe d as an imp o r t a nt asset in the prose cutio n's case again st an a c cused ." Advis ory Commi ttee Notes on 1 991 Amendm ent t o Rul e 404 , Fed . R. Evid. 1111205 63

not show "'suc h a con c u r r e nce of commo n featu res that the vario us acts are natur all y t o be expla ined as cause d by a gener al plan of which they are t h e indiv idual manif estat ions. '" Maybe rry v. State , 419 So. 2d 262, 268 (Ala. Crim. App. 1 9 8 2 ) (quot ing Wigmo re on Evide nce § 304 (3d ed. 1972) ). U s i n g a p erson 's prior bad acts to sway the jury to convi ct in a close case is gener ally imper missi ble for reaso ns alrea dy di scuss ed. "'In a large degre e the effec t of such a proceedi ng is to "shut the gates of mercy on manki nd," so that if but once an indiv idual suffe rs a lapse of virtu e, thenc e forwa rd the law will pursu e him with the vindi ctive zeal of a Javer t, using a s ingle accus ation to wreak upon him the cumul ative venge ance of a gener al in quisi tion. '" Brash er, 249 Ala. at 100, 30 So. 2d at 3 5 ( quoti ng State v. Start , 65 Or. 1 7 8 , 192, 132 P. 512, 517 (1913 )). This princ iple is even more appli cable when the prior acts posit ed

as precu rsors and exemp lars of the charg ed offen se posse ss no "nove l andpecu liar" char acter istic s of thems elves and offer no hi nt orfore shado wing of lo ominginfa ntici de. "The def e ndant was entit led to be tried for the crime with whichhe w as ch argedand no ot her." Alle n v. State , 478 So. 2d 326, 331 (Ala. Crim. App. 1985) . "The worst wretc h that wal k s t he earth is entit led to a fair trial , for the law is

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super ior to all perso ns. As much as we may regre t some resul ts of th e law , the law must be pr eserv ed ifthis cons titut ional democ racy is to surv ive." Watt s v. State , 282 Ala. 245, 248, 210 S o. 2d805, 808 (1968 ). F o r t h e foreg oing reaso ns, I respe ctful ly disse nt from the denia l of Scott 's petit ion for a writ of certi orari on the issue of a dmiss ion o f the prio r-fir es ev idenc e. Inall other respe cts, I con cur i n den ying the p etiti on.

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