Metheny v. State , 197 Ga. App. 882 ( 1990 )

Beasley, Judge,

concurring specially.

I concur but do not agree with the entire analysis in Division 1, particularly as it relates to the statement, “No, I wasn’t driving.”

I agree that the statement preceding it was not the result of custodial interrogation. Even if the statement which the majority has made an issue of was in the nature of a response to a question, as the majority views it, it was merely a repetition or affirmation of what had been volunteered. The court did not err in its ruling that the statements were admissible, at the conclusion of the Jackson-Denno hearing.

But this statement was not put before the jury. Although it was testified to during the pretrial hearing, the state in its case-in-chief merely elicited the following:

“Q: . . . What was the next thing that happened after you told him that you were placing him under arrest for driving under the influence and habitual violator?

“A: Mr. Metheny stated to me that I had nothing on him, that he wasn’t driving the vehicle.”

That is the statement which this Court agrees was volunteered and not a response to any questioning. Defendant, in cross-examining the witness, brought out again that after defendant was placed under arrest, he told the officer that he was not driving the vehicle.

I am authorized to state that Judge Pope joins in this special concurrence.