Chester v. State ( 1982 )

Pope, Judge,

concurring specially.

I agree with the results of the majority opinion, but concur specially as to Division 7. The evidence of defendant’s residence contained in the record of the libel for condemnation was cumulative and its admission was therefore harmless error. However, I do not agree that the admission of such evidence would necessarily be harmless had there been insufficient evidence indicating that the defendant lived at the particular location.

This court in Johnson v. State, 156 Ga. App. 496 (274 SE2d 837) (1980), stated that contesting a libel for condemnation is “substantively identical” to a motion to suppress evidence. In the present case the defendant in contesting the libel for condemnation stated in his answer that he was a resident of the house where the seizure of the alleged contraband took place. This statement was offered as evidence at the criminal trial by the State to prevent the defendant from winning an acquittal on the premise that he was not a resident of the house. The United States Supreme Court in Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247) (1968), held it was reversible error to allow the Government to use evidence of standing adduced at a motion to suppress hearing against the defendant upon the trial of his criminal case to show possession.

In the present case, the answer filed by the defendant in the libel for condemnation, stating that he was a resident of the house, established his standing to object to the condemnation. If such evidence of standing is allowed to be introduced to establish possession upon the criminal trial then, as in Simmons, “[a] defendant who wishes to establish standing must do so at the risk that the words he utters may later be used to incriminate him.” Simmons, supra at 393. Thus, under the circumstances of the present case a criminal defendant contesting a libel for condemnation would be obligated either to give up his right not to be deprived of his property without the due process protection afforded by the condemnation proceedings or to waive his Fifth Amendment privilege against self-incrimination.