Appeal from Franklin Circuit Court. (CC-92-242). John Jolly, TRIAL JUDGE.
Rule 39(k) Motion Denied March 3, 1995. Rehearing Denied March 3, 1995. Released for Publication August 12, 1995.
Montiel, Judge. Patterson and McMillan, JJ., concur. Bowen, P.j., Dissents with opinion in which Taylor, J., joins.
The opinion of the court was delivered by: Montiel
The appellant, Wendall K. Malone, was convicted of robbery in the first degree. § 13A-8-41, Code of Alabama 1975. He was sentenced as an habitual felony offender to life imprisonment without parole.
The facts adduced at trial tend to establish the following. During the late evening hours of August 21, 1992, or the early morning hours of August 22, Marcus Hurley's vehicle broke down at a lounge in Sheffield, Alabama. Hurley testified that he asked a woman, a co-defendant in this case, Keachia Nwosu, to assist him in finding a ride home to Russellville, Alabama. According to Hurley, Nwosu found two men who said they would give him a ride home if he would pay them. Hurley stated that he had never seen the two men before.
Hurley testified that he, Nwosu and the two men got into a vehicle together and drove to Hurley's brother's house for Hurley to get some money. However, Hurley stated that his brother would not give him any money, so they drove to Hurley's mother's home, where he obtained $100. Hurley stated that he then had $200. Hurley further stated that the two men made statements about taking his money and "snuffing" him, but that he thought the two men were kidding. Hurley said they drove to Highway 43, he told the driver to turn right but the driver made a left turn. He said that he knew then that the individuals were serious about robbing him. Hurley stated that while they were still in the car, the appellant grabbed him from behind and began choking him. He stated that the driver then drove the vehicle to the side of the road and he was pulled out of the vehicle. Hurley testified that the two men kicked him and beat him about his face and that Nwosu was yelling, "Give us the money." Hurley stated that he felt hands go in his pocket and that he was kicked until he unconscious.
Donnie Vandiver, a police officer with the Russellville Police Department, testified that he was working in the early morning hours of August 22, 1992, when he found Hurley in the median of Highway 43 in Russellville, Alabama. Vandiver stated that Hurley was on his hands and knees and that his face was cut and his eyes were swollen. Vandiver stated that he took Hurley to a hospital emergency room.
William Nale, a lieutenant with the Russellville Police Department, testified that he investigated the robbery. Nale testified that the appellant and Keachia Nwosu became suspects as a result of information given to him by an investigator with the Florence Police Department. According to Nale, he presented several photographs to Hurley and Hurley identified the appellant as his attacker and he was also able to identify Keachia Nwosu from the photographs.
Nwosu testified that she told Hurley that the appellant and another man would give him a ride home. She stated that she intended to spend the night with Hurley. She further stated that the appellant and another man took her and Hurley to his mother's house so that Hurley could get some money and that during the trip, the appellant and the other man said that they had an Uzi. According to Nwosu, after Hurley got the money, they were all in the vehicle heading toward Sheffield, Alabama. Nwosu stated that the appellant attacked Hurley in the vehicle, that the driver drove the vehicle off the road, and that Hurley was pulled out of the vehicle and beaten. Nwosu stated that she was frightened and that she told Hurley to give them the money. She testified that the appellant's companion reached in Hurley's pocket and took his money.
Defense witnesses, the appellant's family members, testified that the appellant was with them on August 21, 1991. They testified that they and the appellant went to a lounge in Sheffield. They further stated that the appellant became intoxicated to the extent that he was sick. According to the appellant's family members, the appellant was driven to his sister's house, where he passed out and stayed through the night. After the appellant presented his alibi witnesses, the trial court allowed the State, over defense counsel's objection, to recall Nwosu, who testified that the appellant had beaten and raped her in Florence, Alabama, after he had beaten and robbed Hurley. Nwosu stated that the appellant and his companion let her go after the rape and that she called the police.
The appellant argues that the trial court erred in allowing Keachia Nwosu to testify that the appellant had beaten and raped her after he had beaten and robbed Hurley. Specifically, the appellant argues that the testimony regarding the alleged rape of Nwosu was prejudicial character evidence offered solely to prove the appellant's propensity to commit violent crimes.
The general principle regarding evidence of collateral offenses is that evidence of collateral crimes is inadmissible if its sole purpose is to prove the propensity of the defendant to commit the charged offense. Howard v. State, 551 So.2d 1155, 1156 (Ala. Crim. App. 1989); C. Gamble, McElroy's Alabama Evidence § 69.01(1) (3d ed. 1971). However, there are several exceptions to this exclusionary rule. We quoted in Howard :
"'Courts may admit evidence of collateral crimes or acts when it is relevant to rebut specific defenses such as alibi. . . .' Schroeder, Evidentiary Use in Criminal Cases of Collateral Crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala. L. Rev. 241, 171 (1984). 'Special pleas and defenses are available which, if asserted by the accused, place all or a limited portion of his character in issue. The materiality ...