Preston Louis Moore v. State of Alabama

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REL 11/13/2009 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2009-2010 CR-06-1609 P r e s t o n L o u i s Moore v. S t a t e o f Alabama A p p e a l from C a l h o u n C i r c u i t C o u r t (CC-04-708 & CC-04-628) WINDOM, Judge. Preston Louis made c a p i t a l M o o r e was c o n v i c t e d because burglary, a violation of two c o u n t s i t was c o m m i t t e d o f one c o u n t during o f murder the course o f § 1 3 A - 5 - 4 0 ( a ) ( 4 ) , A l a . Code 1975, of attempted murder, violations of a and o f §§ 1 3 A - 6 - 2 CR-06-1609 and 13A-4-2, without A l a . Code the p o s s i b i l i t y 1975. of c o n v i c t i o n a n d was s e n t e n c e d life i n p r i s o n f o r each On the Demarious Stanford evening of Kirksey, and a t h i s home Moore parole was sentenced f o r the c a p i t a l A r o u n d 1 0 p.m., the with door. entered time, Bradford October Donte 14, 2003, McGrue i n Oxford that Eugene were he Travokeo Bradford the house. Tatiana ultimately shot visiting shared living Johnson field a attempted across result room near i n t h e head who was i n the face her father. t o r u n b u t was of m u l t i p l e gunshot and h e r i n f a n t Jernigan a s he opened i n the kitchen at the to escape. and l e f t After gunned wounds. then a c l o s e t i n one o f t h e down Moore her bleeding i n Tatiana the residence. 2 h i s 15- Moore and Samuel K e l l y , and h i d i n s i d e the s t r e e t from Xerxes with and D e l r e k u s and Johnson were u n a b l e Tatiana Johnson, Stanford attempted to walk shot Preston Kirksey, r a n down a h a l l w a y bedrooms. the a n d was The s h o o t e r s , murder attempted murder c o n v i c t i o n . a r r i v e d and s o l d S t a n f o r d c o c a i n e . outside life a s an h a b i t u a l f e l o n y o f f e n d e r t o y e a r - o l d daughter, T a t i a n a Johnson ( " T a t i a n a " ) , son. to was and d i e d Johnson shot, in a d i e d as CR-06-1609 Tatiana bottle and a i n the kitchen she heard a gunshot, preparing turned saw M o o r e c o m i n g t o w a r d h e r w i t h a g u n . S h e t h e n door. toward h e r bedroom, entered t h e room a around, r a n down and shut t h e S h o r t l y t h e r e a f t e r , Moore p u s h e d t h e door open and t o l d to hurry t o t h e f r o n t o f t h e house. When T a t i a n a father wound onto s h e was f o r h e r s o n when hallway her testified returned on t h e f l o o r slumped t o h i s head. the f r o n t porch Johnson. to the l i v i n g against (R. 1 0 9 9 . ) where Tatiana t e s t i f i e d room, the sofa Moore then s h e saw h e r with a gunshot ordered s h e saw s e v e r a l p e o p l e , Tatiana including t h a t w h i l e t h e y w e r e on t h e p o r c h , Moore p u t t h e gun t o h e r head and p u l l e d t h e t r i g g e r ; however, the gun j u s t ordered "clicked." Tatiana and Johnson back i n t o t o g e t on t h e f l o o r . the trigger, another Moore then and shot At that running pointed her i n the face. s h e no out o f t h e house longer son's bedroom, heard anything, point, them a gun a t h e r , p u l l e d Tatiana Tatiana then heard then heard a n d down t h e f r o n t steps. she g o t up, r a n t o h e r grabbed him, and r a n out t h e back door 3 Moore t h e house and t o l d gunshot and assumed Johnson f e l l . footsteps When (R. 1 0 8 5 . ) of the CR-06-1609 house. She eventually telephoned emergency Demarious Jernigan sold was Stanford asked Bradford nervous. cocaine, and vehicle. he Bradford, the heard Kelly a come stated helped the when that to K i r k s e y , Jernigan transaction, Stanford to he scales. door weigh had Stanford toward holding a While heard Kirksey Stanford s e v e r a l more stated that relating to a he was described gunshots Moore toward and gun. down t h e police then his he saw Kirksey Moore. gunshot, K i r k s e y ran he in said that f r o n t door, the which crack then headed Kirksey the the scales o f t h e b e d r o o m s w h e r e he arrived. and Bradford i n a c l o s e t i n one voice, and and hid Moore's her Bradford kitchen, scales and front see the him looked d i d not hearing any r e t r i e v e the the the During told gunshot, he into Jernigan, through that After to who that According had Bradford f r o n t door then went cocaine. i f neighbor testified they crack very a 911. Kirksey arrived, acting found and burglary 4 in as over Kelly of the remained c l o s e t , he distinctive. the had hall next a Kelly's few and until heard Kirksey minutes. problem with grandmother's CR-06-1609 house, and nickname that from the (R. initially succumbed Oxford problem "Birmingham." Stanford later the to involved a man shooting numerous the medical but testified i n December 2003, a p p r o x i m a t e l y shooting and death. According speak, but he to showed S t a n f o r d that he asked i n v o l v e d i n the photographs In on one shooting. a d d i t i o n to the Kelly that had degree State robbery. called as testimony identification, Moore years resulting spoke the with months a f t e r before Stanford was Det. the Stanford's unable to appeared and l i n e u p s -- i f anyone Stanford Stanford's years to Phillips one said included included a photograph of K e l l y Stanford o f Moore and two around him. photographic p h o t o g r a p h o f Moore and and two he make h a n d g e s t u r e s , going two than Phillips, could grunt, u n d e r s t a n d w h a t was he more Det. the a detective with that Stanford little two complications Roger P h i l l i p s , Department, a with 1440.) survived g u n s h o t wound. Police also the Specifically, the of one 5 of lineups pointed -¬ was to the Kirksey and shooters. Tatiana and also presented convicted during Grady McGlothin, the immediately State p r e v i o u s l y been in a in 1993 evidence of first- i t s case-in-chief, the victims of the Moore's CR-06-1609 prior robbery, who testified r o b b e r y and Moore's v i o l e n t In an an a t t e m p t alibi defense. Stanford's shooting house He 1 denied i s located anyone. Oxford, from the actions the on t h a t details He and t h a t approximately going on to testified that street 14, 2003 he was 8:00 a t work p.m. on which and denied employed with grocery store Service at the SuperValu he was the presented the October of occasion. t o e s t a b l i s h h i s i n n o c e n c e , Moore W i l l s t a f f i n g Unloading in regarding the n i g h t of the s h o o t i n g until sometime after 5:00 a.m. f o l l o w i n g morning. To buttress testimony of Willstaffing stated Ollice alibi defense, Hansford. Unloading Moore Hansford, Service at the 8:30 see him p.m. during approximately Moore's the n i g h t of October the 7:00 a.m. supervisor at several times rest of the the 14, his next throughout also employed in 2003, b u t he which testified 7:00 at Holcomb, that the n i g h t of October by d i d not ended Demetrius the Oxford, t o work between shift, day. SuperValu, presented SuperValu t h a t he saw M o o r e when he a r r i v e d and Moore his he saw 14, 2 0 0 3 , A c c o r d i n g t o M o o r e , he d i d n o t p a r t i c i p a t e i n t h e c r i m e . H o w e v e r , M o o r e s t a t e d t h a t K e l l y a d m i t t e d t o h i m t h a t he s h o t S t a n f o r d a n d a man w i t h t h e n i c k n a m e " B i r m i n g h a m " b e c a u s e t h e y had b r o k e n i n t o h i s house and s t o l e n h i s d r u g s . (R. 1 5 8 9 . ) 1 6 CR-06-1609 including during initially their at approximately "lunch break" at 9:00 p.m., and again a.m. (R. testimony of a p p r o x i m a t e l y 1:00 1522.) In rebuttal, Roosevelt Hardy Hardy, testified Moore at the State J r . , Dennis that presented W h i t e s i d e , and on t h e n i g h t Jernigan's the house Larry of October between 9:30 14, and Champion. 2 0 0 3 , he 10:00 W h i t e s i d e , the n i g h t - s h i f t manager a t the S u p e r V a l u , that he was M o o r e was working not on at work. the Finally, supervised the n i g h t - s h i f t O x f o r d and on t h e n i g h t night of October Champion u n l o a d i n g crew of October 14, saw 14, p.m. 2 testified 2003, testified and that he at the SuperValu i n 2 0 0 3 , M o o r e was not at work. On a p p e a l , Moore c o n t e n d s allowing the State to present degree robbery c o n v i c t i o n . his prior robbery that the c i r c u i t 3 evidence of court erred i n his 1993 first- S p e c i f i c a l l y , Moore c o n t e n d s conviction and the facts underlying Jernigan was one of the individuals who went Stanford's house to sell Stanford drugs, and who a c c o m p a n y i n g S t a n f o r d o u t s i d e when S t a n f o r d was s h o t i n head. 2 T h e r o b b e r y a c t u a l l y o c c u r r e d i n 1992; convicted u n t i l 1993. 3 not 7 h o w e v e r , Moore that that to was the was CR-06-1609 conviction thus R. were should Evid. relevant only to have been e x c l u d e d show h i s pursuant to Rule trial, the State filed notice i n t r o d u c e the p r i o r c o n v i c t i o n under Rule filed a admissibility on motion M a r c h 20, evidence At the Grady and Ala. in Anniston running the night a "shot of the victim people at Wynn, his a l l of residence whom McGlothin Moore disposition r a i s e s seven of t h i s case, and the a individuals 2007, and accepted there robbery, them to Kelly, his McGlothin (R. were between and that i n entered At t h a t time, underage 210.) On 30 40 and and appeared leave. i s s u e s ; however, because t h i s court only addresses 8 the hearing l a t e r at t r i a l , i n c l u d i n g Moore, ordered 1, of prior of h i s r e s i d e n c e . 1992, were intoxicated. Thereafter, a r g u m e n t s and of r o b b e d him. 11, to prior conviction. other house" out of December on F e b r u a r y court heard three and 404(b). requested hearings the and i t s intent determination admissibility Kelly, of pretrial at the p r e t r i a l h e a r i n g , was 4 404(b), c o n v i c t i o n and pretrial McGlothin, Moore, residence a 2007, the c i r c u i t on testified for of the p r i o r the matter. 1992 character 4 Before Moore bad Lavon to be After of one. our CR-06-1609 protesting, two the three eventually left When returned, others. they shotguns and p i s t o l s some point, asked, Moore "[w]hose also t e s t i f i e d and show i s this were armed to McGlothin's now?" head with with At and (R. 1 4 8 9 . ) McGlothin Moore shot the jukebox on t h e b a c k o f t h e h e a d Moore and h i s a c c o m p l i c e s had i n t h e house returned everyone onto the f l o o r . shotgun and h i t a p a t r o n After hearing robbery a t h e men that during the robbery, of a shotgun. cash McGlothin prior held house the c e i l i n g the b u t t and ordered but l a t e r with took a l l the a s w e l l a s some a l c o h o l . arguments, the c i r c u i t c o n v i c t i o n was a d m i s s i b l e court ruled that the under Rule 404(b) t o i n t e n t , motive, knowledge, o p p o r t u n i t y , p r e p a r a t i o n , and common p l a n , rule scheme, o r d e s i g n and a l l o w e d Rule 404(b), exceptions i t s admission. 5 We to the exclusionary disagree. provides: "Evidence o f other crimes, wrongs, o r acts i s not a d m i s s i b l e t o prove t h e c h a r a c t e r o f a p e r s o n i n o r d e r t o show a c t i o n i n c o n f o r m i t y t h e r e w i t h . I t may, h o w e v e r , b e a d m i s s i b l e f o r o t h e r p u r p o s e s , s u c h Although the c i r c u i t court determined that the evidence r e l a t i n g t o M o o r e ' s p r i o r r o b b e r y c o n v i c t i o n was a d m i s s i b l e t o show i n t e n t , m o t i v e , k n o w l e d g e , o p p o r t u n i t y , p r e p a r a t i o n , a n d common p l a n , s c h e m e , o r d e s i g n , t h e c i r c u i t c o u r t i n s t r u c t e d the j u r y i t c o u l d c o n s i d e r t h e evidence o f t h e p r i o r robbery o n l y " t o show some p l a n o r d e s i g n , p a t t e r n , o r s c h e m e o f operation." (R.1487-88, 1711.) 5 9 CR-06-1609 as proof of motive, opportunity, p r e p a r a t i o n , p l a n , knowledge, i d e n t i t y , or of m i s t a k e or a c c i d e n t " The A l a b a m a Supreme C o u r t has prevents the bad to prove the acts protects the Drinkard, Cofer, explained that a particular function So. So. act of 2d 2d "[o]n such 661 295, the evidence § to 302 1123 character a fair (Ala. and, therewith." 2003) 69.01(1) thereby, parte 2000 ) (citing Ex parte 1983)). This court f o r the prove a l l e g e d commission i f the bad L e w i s v. ( q u o t i n g C. (5th ed. prior Ex admissible i s to only Gamble, of probative character State, has committed and 889 So. the 2d McElroy's 1996)). " ' " T h i s e x c l u s i o n a r y r u l e i s s i m p l y an application of the c h a r a c t e r r u l e which f o r b i d s the S t a t e to prove the a c c u s e d ' s bad character by particular deeds. The b a s i s f o r t h e r u l e l i e s i n t h e b e l i e f t h a t the p r e j u d i c i a l e f f e c t of p r i o r crimes w i l l f a r o u t w e i g h a n y p r o b a t i v e v a l u e t h a t m i g h t be gained f r o m them. Most agree t h a t such e v i d e n c e of p r i o r c r i m e s h a s a l m o s t an i r r e v e r s i b l e i m p a c t u p o n t h e minds of the j u r o r s . " ' " 10 rule trial." (Ala. trial i s not ( A l a . C r i m . App. Alabama Evidence right of a d e f e n d a n t ' s evidence of the accused's having crime accused's conformity 623, d e f e n d a n t ' s bad 1121, crime, or " h e l d t h a t the e x c l u s i o n a r y from u s i n g evidence defendant's 777 440 another State intent, absence CR-06-1609 Ex p a r t e J a c k s o n , (Ala. (Ala. 2009) 1985), [Ms. 1 0 8 0 3 9 0 , A u g . 2 8 , 2 0 0 9 ] ( q u o t i n g Ex p a r t e A r t h u r , quoting i n turn McElroy's S o . 3d 472 S o . 2 d 6 6 5 , supra, § a defendant's prior bad a c t s . This court 668 6901(1)). The S t a t e i s n o t p r o h i b i t e d f r o m e v e r p r e s e n t i n g of , evidence has s t a t e d : " I f the defendant's commission of another crime o r m i s d e e d i s an e l e m e n t o f g u i l t , o r t e n d s t o p r o v e his guilt otherwise than by showing of bad character, then proof of such other act i s admissible. [Some] w e l l - e s t a b l i s h e d e x c e p t i o n s t o the exclusionary rule i n c l u d e : (1) r e l e v a n c y t o prove i d e n t i t y ; (2) r e l e v a n c y t o p r o v e r e s g e s t a e ; (3) r e l e v a n c y t o p r o v e s c i e n t e r ; (4) r e l e v a n c y t o prove i n t e n t ; (5) r e l e v a n c y t o show m o t i v e ; (6) r e l e v a n c y t o p r o v e s y s t e m ; (7) r e l e v a n c y t o p r o v e m a l i c e ; (8) r e l e v a n c y t o r e b u t s p e c i a l d e f e n s e s ; a n d (9) r e l e v a n c y i n v a r i o u s p a r t i c u l a r c r i m e s . " Harris v. (internal State, 2 So. citations issue v. i n Rule 880, 1989), quoting (Ala. State, 2007) t o be a d m i s s i b l e f o r one o f t h e 'other there of those 549 So. i n t u r n Bowden omitted). App. "[f]or S t a t e , 886 S o . 2 d 1 0 5 , 117 v. ( A l a . Crim. However, 404(b), a s t o one o r more Gillespie 907 and q u o t a t i o n s c o l l a t e r a l - a c t evidence purposes' 3d must be real and 'other purposes.'"'" (Ala. Crim. 2d '"a 640, App. 2002) 645 Draper (quoting ( A l a . Crim. v . S t a t e , 538 S o . 2 d 1 2 2 6 , 1988)). 11 open App. 1227 CR-06-1609 The common exclusionary identity the rule scheme, identity collateral Darby, as 1993). "'When consideration. extrinsic parte Baker, v. (further citations a crime prior surrounding crime the perpetrator offense F.3d evidence of presently charged similarity that crime anyone the to charged i s introduced to crime "exhibit viewing 12 the United words, "'evidence the those such (quoting Ex ( 1 1 t h C i r . 1994) when and that i t of the accused.'" In other only i s the c r u c i a l m u s t be s u c h 1 5 0 4 , 1508 omitted)). prior or peculiar 640 S o . 2 d 3, 6 ( A l a . C r i m . A p p . i s admissible the and t h e i s admissible 780 S o . 2 d 6 7 7 , 680 ( A l a . 2 0 0 0 ) 32 t h e same crime i n t h e same n o v e l as t h e h a n d i w o r k Clemons, the i s an e x t e n s i o n o f the charged The p h y s i c a l s i m i l a r i t y the offenses to the with under the likeness of the offenses marks States analyzed of the c o l l a t e r a l R e g i s t e r v. S t a t e , identity, coextensive exception -- where the defendant exception 516 So. 2 d 7 8 6 , 789 ( A l a . 1 9 8 7 ) . or design crime." prove design be are committed evidence identify a n d must exception crime or " i s essentially Ex p a r t e plan, manner, scheme, exception" standards. "[T]he plan, a two of circumstances surrounding great the degree offenses of would CR-06-1609 naturally assume person."'" App. them Irvin 2005) v. to have State, been 940 committed So. 2d 331, C r i m . App. common plan, exclusionary collateral accused, unless 1983)). scheme, rule crimes both distinctive or design crime 1983)). and the the so now-charged v. (quoting 1992) 440 of crimes and State, So. is 2d demanded and c h a r a c t e r i s t i c s distinctive 1 McCormick So. on 2d as to 78, 83 Evidence § (footnotes omitted)). are peculiarly be s a i d t o be t h e be the such mere App. repeated as r e p e a t e d o f t h e c r i m e s must like a at ... be signature.'" ( A l a . Crim. 190 (quoting ( A l a . Crim. App. 801-03 " [ T ] h e mere p r i o r 13 "signature the 1233 than or identity S o . 2 d a t 347 1231, general other to prove t h e y may o f t h e same c l a s s , 971 1161 of the g u i l t of the and 940 the of crime mark Irvin, to admission relevant accused's more The p a t t e r n unusual Hurley State, "'Much commission the i s not w o r k o f t h e same p e r s o n . ' " rapes. ( A l a . Crim. So. 2d 1155, exception] modus o p e r a n d i s o t h a t v. 440 as s u b s t a n t i v e e v i d e n c e that having Bighames same "'Under t h e i d e n t i t y e x c e p t i o n [and prohibiting the p r i o r crimes" 347 the ( q u o t i n g E x p a r t e A r t h u r , 472 S o . 2 d 6 6 5 , 668 ( A l a . 1985), q u o t i n g i n t u r n B r e w e r v. S t a t e , (Ala. by 2006) (4th ed. occurrence of CR-06-1609 an act similar and i n i t sgross f e a t u r e s -- i . e . , t h e same t h e same s o r t o f a c t , b u t n o t n e c e s s a r i l y acting So. n o r t h e same s u f f e r e r ' " 2 d a t 1162 (Chadbourn doer, t h e same mode o f is insufficient. ( q u o t i n g 2 J . Wigmore, E v i d e n c e , Brewer, 440 § 304 a t 2 5 1 rev. 1979)). Applying these principles, this c i r c u i t court erroneously determined court holds that the that evidence r e l a t i n g to M o o r e ' s p r e v i o u s r o b b e r y c o n v i c t i o n was r e l e v a n t " t o show some plan or design, case, the facts crimes revenge. the similar to the robbery crimes head had o r scheme two the robbery and u n i q u e as In different to render butt of motives, Although a evidence i . e . , robbery one p e r s o n shotgun, no this and t h e p r e s e n t a d m i s s i b l e as a s i g n a t u r e c r i m e . (R. 1 4 4 0 , 1 5 8 9 . ) with of o p e r a t i o n . " underlying the p r i o r a r e n o t so relating two pattern, one was was The and h i tin shot or otherwise s e r i o u s l y i n j u r e d during the p r i o r robbery, while i n the present crimes t h r e e p e o p l e w e r e s h o t , t w o o f whom d i e d a s a result. F u r t h e r , t h e number of were victims different. o f p e r p e t r a t o r s and t h e number In the p r i o r a c c o m p a n i e d by f o u r o t h e r i n d i v i d u a l s 40 p e o p l e at gunpoint, Moore was a n d h e l d b e t w e e n 30 a n d while i n the present 14 robbery, crimes, testimony CR-06-1609 indicated that o n l y Moore and t h e r e were o n l y f i v e p e o p l e time of the involved in shooting. the prior robbery, for least hours, present In crimes fact, between were when a n d one i n f a n t and the p r i o r two were Additionally, During at Kelly present completed explaining the were testimony length was that indicated i n only a matter of t h e most salient of time different. held at the prosecutor t h e two c r i m e s , and 6 i n the house at the crimes the v i c t i m s while involved gunpoint that the minutes. similarities stated: " J u d g e , y o u know, w h e t h e r y o u t e r r o r i z e s o m e b o d y b y l e a v i n g t h e m on t h e f l o o r f o r t w o h o u r s o r y o u s h o o t up t h e w a l l s a n d c e i l i n g a n d j u k e b o x o r y o u t e r r o r i z e them by s h o o t i n g t h e i r dad i n f r o n t o f them and t h e n s h o o t i n g them i n t h e f a c e i t ' s s t i l l a v i o l e n t a c t c o m m i t t e d b y t h i s man, a n d t h a t ' s a d i s t i n c t i v e t h i n g i n and o f i t s e l f . " (R. 2 3 4 . ) However, Moore's p r i o r v i o l e n t to e s t a b l i s h h i s p r o p e n s i t y toward the charged (quoting violent crime. 2 J . Wigmore, 1979) ("[T]he gross f e a t u r e s -- See Evidence, mere p r i o r a c t was violence Brewer, and thus g u i l t 440 § 304 a t 251 occurrence inadmissible So. 2d at 1162 (Chadbourn rev. o f an a c t s i m i l a r i . e . , t h e same d o e r , of in i t s a n d t h e same s o r t of A l t h o u g h T a t i a n a t e s t i f i e d t h a t she b e l i e v e d t h a t more p e o p l e were i n v o l v e d , no e v i d e n c e was p r e s e n t e d o f anyone else's involvement. 6 15 CR-06-1609 act, but not necessarily sufferer'" t h e same mode o f a c t i n g i s insufficient.)). Viewing the a l l of the circumstances present crimes, would naturally person. unusual we assume The p r i o r cannot that both robbery and d i s t i n c t i v e robbery or i d e n t i t y of the p r i o r say that were committed no circuit t o t h e common p l a n , s c h e m e , court conviction Ala. erroneously pattern, the those of either crimes as ruled Because the that signature that or design and because crime was a d m i s s i b l e t o e s t a b l i s h Moreover, that out ofthe c o n v i c t i o n were n o t t o the c u r r e n t crime arising as t o mark conviction design, similar facts distinct i n such a n o v e l admission of evidence f a c t s u n d e r l y i n g Moore's p r e v i o u s r o b b e r y were were n o t so exceptions to the exclusionary rule. sufficiently person b y t h e same crimes and were n o t committed pursuant robbery and a reasonable and t h e p r e s e n t and p e c u l i a r manner as t o j u s t i f y prior n o r t h e same the were so crimes, the prior " t o show there robbery some p l a n o r o r s c h e m e o f o p e r a t i o n . " (R. 1 4 8 7 - 8 8 , 1 7 1 1 . ) under erroneous the facts admission was h a r m l e s s of this of case, Moore's beyond a reasonable R. A p p . P.; Chapman v . C a l i f o r n i a , 16 we cannot prior doubt. 3 8 6 U.S. 18 say robbery Rule 45, (1967). CR-06-1609 Here, the State conviction Moore's not only f o r robbery, actions during spent robbing the v i c t i m inadmissible admitted i t also t h e two evidence, Stanford's out-of-court evidence admitted hours graphic he details Further, absent the identification, and Kirksey's i d e n t i f i c a t i o n o f Moore l i n k e d Moore t o t h e s h o o t i n g s . on the that other he was hand, a t work presented alibi at the time the State presented a strong say that the State's e v i d e n c e was the improper beyond admission a reasonable Because conviction have witnesses voice Moore, who testified of the shootings. Although case of g u i l t , this court so o v e r w h e l m i n g as t o of Moore's prior conviction cannot render harmless doubt. evidence may of accomplices Tatiana's identification, prior and h i s and h i s g u e s t s . only of Moore's relating contributed to Moore's to the prior jury's robbery verdict, we c o n c l u d e t h a t the e r r o r a d v e r s e l y a f f e c t e d Moore's s u b s t a n t i a l rights a n d t h u s was of the c i r c u i t proceedings court not harmless. i s reversed, consistent with R E V E R S E D AND this REMANDED. 17 Accordingly, and t h i s opinion. the judgment cause remanded f o r CR-06-1609 W e l c h and M a i n , J J . , c o n c u r . concur i n the result. 18 W i s e , P . J . , and K e l l u m , J . ,

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