Foster v. State , 178 Ga. App. 478 ( 1986 )

Sognier, Judge,

concurring specially.

I concur in Divisions 2 and 3 and in the judgment only. I do not concur in Division 1. The admission of a non-testifying co-indictee’s plea of guilty has no legal relevance in the trial of another co-indictee and is inadmissible. Neal v. State, 160 Ga. App. 834, 837 (3) (288 SE2d 241) (1982). United States v. King, 505 F2d 602 (5th Cir. 1974) is inapposite to the facts of the instant case, for King involved a testifying co-indictee whose guilty plea was raised by the defense.

In the instant case I fail to see how the guilty pleas of two non-testifying co-indictees bolstered the testimony of the victim that he was “a hundred percent sure” appellant was one of three men who kidnapped and robbed him. Although the State offered the guilty pleas purportedly on the issue of the victim’s credibility, his credibility had been bolstered during the State’s case-in-chief by two police officers who testified that the victim immediately picked appellant out of photographic lineups in 1982 and again in 1984. I see no purpose served by the evidence of the guilty pleas save that of being substantive evidence of appellant’s guilt by implication, despite the judge’s warning to the contrary.

The rule of inadmissibility of a non-testifying co-indictee’s plea of guilty has its genesis in OCGA § 24-3-52 (former Code Ann. § 38-414), Boggus v. State, 136 Ga. App. 917 (1) (222 SE2d 686) (1975), and while King makes an exception when the use of a testifying coindictee’s plea of guilty is limited to proper evidentiary purposes in federal cases, I do not believe this court has authority to make exceptions to rules created by State statute. Nevertheless, I find the error harmless because the evidence of appellant’s guilt was overwhelming, and it can be fairly said that it was highly probable that any erroneous admission of evidence did not contribute to the judgment in this case. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

Decided March 18, 1986 Rehearing denied April 1, 1986 William C. Puckett, Jr., for appellant. Robert E. Wilson, District Attorney, James M. McDaniel, Susan Brooks, Assistant District Attorneys, for appellee.