Tuesday, January 6, 2009
Mystery, Alaska: Murder Appeal Reveals That Alaska Has No Clear Standard For Determining The Admissibility Of Prior Bad Act Evidence
The recent opinion of the Court of Appeals of Alaska in McCormack v. State, 2008 WL 5352364 (Alaska App. 2008), reveals that Alaska courts have no clear standard for determining when prior bad act evidence should be admitted under Alaska Rule of Evidence 404(b).
In McCormack, Barry J. McCormack Sr. was convicted of murder in the first degree for intentionally killing Opal Fairchild. And the State's theory was that McCormack intentionally killed Fairchild during the course of a robbery. Moreover, the State contended that McCormack's robbery of Fairchild was one of three robberies that he committed during a three-week period.
The trial judge allowed the State to introduce this evidence pursuant to Alaska Rule of Evidence 404(b), which states that:
"[e]vidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
According to the trial judge,
"the robberies were admissible to show McCormack's identity as the person who killed Opal Fairchild, as well as his motive and intent in entering Fairchild's home and shooting her. He also found that the evidence tended to show that all the robberies were part of the same general scheme over a few weeks to obtain money and to eliminate witnesses to the crimes."
McCormack subsequently appealed, claiming, inter alia, that the trial judge erred in failing to make a threshold determination that McCormack committed the other robberies by clear and convincing evidence. The problem for McCormack, however, was that he did not raise this argument at trial, meaning that the appellate court could only reverse for plain error.
And the Court of Appeals of Alaska found that there was no plain error because "[t]he law is divided on the question." As support for this proposition, the court cited to its previous, unpublished opinion in Ayagarak v. State, which noted that:
"Many state courts have adopted the Huddleston [Rule 104(b)] standard for determining if bad acts evidence is sufficiently proved to be relevant, and a few states apply this same standard based on state precedent. Other jurisdictions make admission of bad acts evidence contingent on a preliminary finding by the trial judge that the bad acts have been proved by clear and convincing evidence, a preponderance of the evidence, or beyond a reasonable doubt."
Based upon this passage, I agree that the law is divided on the question and that the Court of Appeals of Alaska could not have found plain error. But what seems more important is that Alaska courts need to develop a clear standard for when judges can admit evidence under Alaska Rule of Evidence 404(b) so that litigants know what to expect.