Appeal from Baldwin Circuit Court. (CC-93-703 and CC-93-704). James Reid, TRIAL JUDGE.
Released for Publication January 23, 1995.
Taylor, Judge. All The Judges Concur, Except Montiel, J., Who Concurs IN Part, And Dissents IN Part With Opinion.
The opinion of the court was delivered by: Taylor
The appellant, Rodney D. Krumm, was convicted of driving under the influence of alcohol in violation of § 32-5A-191(a)(2), Code of Alabama 1975, and of reckless driving in violation of § 32-5A-190, Code of Alabama 1975. He was sentenced to 9 months' incarceration on the driving under the influence conviction and was fined $200 on the reckless driving conviction.
The state's evidence tended to show that on January 30, 1993, an officer of the Robertsdale Police Department stopped the appellant after observing him passing another vehicle in an area on Highway 59 where double yellow lines separated the north- and southbound lanes of traffic. When Officer West approached the vehicle Krumm was driving, he detected a strong odor of alcohol on the appellant's breath. He arrested the appellant for driving under the influence of alcohol. The appellant was later charged with reckless driving.
The appellant was taken to the police station, where he was administered an Intoxilyzer 5000 test. The appellant's blood-alcohol registered .110%.
The state presented testimony that the appellant also had marijuana in his possession when he was arrested. Officer West stated that he frisked the defendant, looking for weapons, and that he felt something in the appellant's jacket. It was a bag of green leafy substance later found to be marijuana. Also discovered in the car were a partially filled bottle of vodka and two partially smoked marijuana cigarettes.
The appellant contends on appeal that the trial court erred in allowing into evidence the testimony that he was in possession of marijuana when he was arrested.
Under the general exclusionary rule, evidence of an offense other than the offense charged in the indictment is not admissible at trial on a specific charged offense. McLemore v. State, 562 So.2d 639, 641 (Ala. Cr. App. 1989).
"On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried."
C. Gamble, McElroy's Alabama Evidence § 69.01 (4th ed. 1991) (footnote omitted). "Evidence of collateral offense is not admissible solely to prove the guilt of the accused." Allen v. State, 624 So.2d 650, 652 (Ala. Cr. App. 1993). See also Williamson v. State, 629 So.2d 777 (Ala. Cr. App. 1993); Aaron v. State, 596 So.2d 29 (Ala. Cr. App. 1991); J.D.S. v. State, 587 So.2d 1249 (Ala. Cr. App. 1991); McLemore, supra. "The underlying rationale for this rule is that the prejudicial effect of the prior bad acts far outweigh any probative value gained from their use." Aaron, 596 So.2d at 30. "'Evidence of prior bad acts of a criminal defendant is presumptively prejudicial to the defendant. It interjects a collateral issue into the case which may divert the minds of the jury from the main issue.'" McClellan v. State, 571 So.2d 341, 344 (Ala. Cr. App.), writ quashed, 571 So.2d 345 (Ala. 1990), quoting Ex parte Cofer, 440 So.2d 1121, 1124 (Ala. 1983).
The City of Robertsdale argues that evidence of the appellant's possession of marijuana was part of the res gestae of the charged offenses and was therefore admissible as an exception to the general exclusionary rule. McElroy's § 69.01. Possession of marijuana was not part of the res gestae of the charged offenses of driving under the influence of alcohol and reckless driving. The appellant was charged only with driving under the influence of alcohol; he was not charged with driving under the influence of both alcohol and a controlled substance or of driving ...