concurring specially.
I concur in the judgment because, as the majority states, the curative instruction was adequate and the evidence against Wilson was overwhelming. However, the testimony that a “prison” I.D. card in defendant’s name was found with the contraband in the tote bag in his vehicle was not admissible and that is why the court gave a curative instruction after a lengthy discussion with counsel.
The certified law enforcement officer, who had been employed in law enforcement for six years, was asked on direct whether he found anything in the bag “that identified it as being connected in any way to the Defendant.” He responded: ‘Yes, sir. I found a ID card, a prison ID card inside.” Defendant moved for a mistrial on the ground that defendant’s character had been put in evidence. See OCGA § 24-9-20 (b).
While it is true that circumstances surrounding an arrest are admissible and that prejudicial evidence and evidence which incidentally puts a defendant’s character in issue are admissible if relevant and material, the fact that the I.D. card was one issued by a prison was not relevant, material, or necessary. As the trial court asked at the outset of the hearing on the motion, outside the presence of the jury, “Why was the witness not instructed to just say, T found an ID card,’ instead of T found a prison ID card?’ ” OCGA § 24-2-2 provides: “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” The fact that defendant had been in prison was not relevant to any issue to be tried by the jury.
After the discussion and just prior to recalling the jury and instructing it, the court admonished the state’s attorney to instruct the witness “that anything that might bring this Defendant’s character into evidence he cannot say.” Considering the circumstances involving the nature of the evidence, the immediate reaction of defendant, the length of time the jury was sequestered while the matter was decided, and the cautionary instruction of the court, it is just as likely if not more so that a jury would infer that the card was issued to defendant as a prisoner rather than as an employee or outside vendor. Had it been one of the innocuous latter type, no doubt such an explanation would be given.