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Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, October 20, 2007

Molotov Cocktails and Rocks Behind Every Curtain: State's Attorney Tries To Introduce Character Evidence Against Motivational Speaker

Motivational speaker Ernest Garlington will soon be tried in Connecticut state court for allegedly ordering a "hit" on author Derek Hopson, the father of NBA and "He Got Game" star Ray Allen.  The theory of the case is that Garlington was infuriated because Hopson was "messing" with Garlington's wife, who used to be married to Hopson; Garlington allegedly conspired with three other men to shoot Hopson outside a mental health clinic. 

In an article discussing the upcoming case, the author references potentially admissible prior bad acts by Garlington against Hopson (such as choking and threatening him), but the author specifically highlights undercover video and audio recordings by detectives in which Garlington suggested to an ex-con that he burn down a building with a Molotov cocktail and shoot a woman in the buttocks.  This incident is unrelated to the alleged plot to kill Hopson.  According to the article, the recordings are part of alleged "uncharged misconduct" the prosecution wants admitted as evidence of a pattern of behavior.

According to the senior state's attorney, this "uncharged misconduct" is probative of the defendant's motive, intent, modus operandi, and to demonstrate a system of criminal activity.  Setion 4-5(a) of the Connecticut Code of Evidence, like Federal Rule of Evidence 404(a), precludes the use of uncharged prior bad acts to prove that an individual has a propensity to act in a certain manner and thus acted in conformity with that propensity at the time in question (for instance, a man on trial for murder who once beat up a neighbor has a propensity to act violently and thus likely acted violently in killing the victim).  At the same time, like Federal Rule of Evidence 404(b), Section 4-5(b) of the Connecticut Code of Evidence 4-5(b) allows the use of prior bad acts to prove other purposes such as motive and intent.

I don't see any conceivable theory under which the video and audio recordings could be admissible against Garlington.  The proposed crime discussed in the recordings and the crime with which he is charged are factually distinct, meaning that modus operandi is not at issue.  The proposed crime and the crime at issue are unrelated, so the proposed crime is irrelevant to motive.  There's no issue with intent in the case.  Instead, it seems clear to me that the senior state's attorney is trying to get the recordings into evidence to prove propensity/conformity, and the judge should rule against him.



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