Marks v. State – Prior Bad Acts Under Rule 404

Posted by Steve Eversole | Feb 16, 2015 | 0 Comments

In any criminal case, Alabama courts must be careful not to allow prejudicial evidence lacking in probative value to be considered.

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One example of this is evidence of a defendant's prior crimes, wrongs or bad acts. Under Alabama Rule of Evidence 404,courts must be especially careful in the admission of crimes, wrongs or acts intended to prove the character of a person or conformity of action. That is, just because someone was previously convicted of a sexual assault doesn't necessarily mean he is guilty of the sexual assault of which he is accused, which generally means to allow evidence of the older crime would unfairly prejudice defendant.

The exception is allowed in a criminal case when there is evidence a victim or element of both crimes had a pertinent trait. For example, if both alleged victims were minors of a similar age and of similar relation to defendant, the court may find evidence of prior crime establishes a clear modus operandi.

Of course, prosecutors in criminal cases push for the introduction of prior bad acts all the time. Our experienced Birmingham sex crime defense lawyers know in sexual assault cases in particular, this information can be extremely prejudicial. That's why it's very important that such exceptions be fiercely challenged.

A recent example was seen in the case of Marks v. State, which received consideration from the Alabama Court of Criminal Appeals.

Defendant in Marks was accused and later convicted (then retried and convicted again) of first-degree rape by forcible compulsion. Found to be a habitual felon, he was sentenced to life in prison without the possibility of parole.

The underlying case involved an alleged sexual assault in 2009. It started when victim dialed the wrong number and hung up when she realized her mistake. Defendant called her back and identified himself by a certain name. Victim stated she knew a person by that name, and defendant stated he wanted to come over so the two could meet. Defendant arrived at apartment sometime between 11 p.m. and 12 a.m. Victim did not recognize defendant, who then allegedly pulled a gun on her, forced her into a nearby abandoned parking lot and sexually assaulted her while threatening to kill her if she resisted.

After reporting the assault to police, officers recorded phone calls between accuser and defendant, in which defendant made incriminating statements.

At trial, state filed a motion to introduce evidence in the form of two other women who alleged defendant had sexually assaulted them. Prosecutors asserted the purpose was to prove motive, opportunity, plan, knowledge and identify of defendant in the instant case.

In tying the three allegations together, the court indicated the circumstances of the three cases were similar. All are alleged to have occurred in the same month, in close physical proximity, all between the hours of 11 p.m. and 4 a.m., all victims referenced use of a gun, all victims described assailant as a black male known to them by the same name (and each subsequently identified defendant), the actual sexual assaults were similar in nature and in each case, perpetrator allegedly threatened to kill victims and/or young children if they reported the crime. Finally, defendant allegedly made subsequent text message contact with each victim, informing each that she was his girlfriend and could not have contact with other men.

Trial court held a hearing on this evidence prior to trial, with prosecutors alleging this information collectively indicating pattern and characteristics of crimes so unusual and distinctive as to be indicative of a “signature.” Defense argued introduction of any prior bad acts would be greatly prejudicial and not especially probative. Further, the similarities weren't so great as to constitute a clear signature.

The trial judge sided with prosecutors. Defendant was ultimately convicted and sentenced to life in prison.

On appeal, defendant argued trial court abused its discretion, violated Rule 404(b) and erroneously admitted prior bad acts for reasons that weren't at issue during trial. Appellate court agreed and reversed, ordering yet another trial.

Appellate court justices noted that while prosecutors indicated the additional testimony went to underscore identity of defendant, his identity was never material in the case. Defense never argued no intercourse occurred between alleged victim and defendant, but rather that contact had been consensual.

 

Additional Resources:

Marks v. State, Dec. 19, 2015, Alabama Court of Criminal Appeals

About the Author

Steve Eversole

Admitted to practice in All State and Federal Courts in Alabama: AllAlabama State Courts, Alabama Supreme Court, Alabama Court of Appeals,Northern...

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