Brown v. State

Carley, Justice,

concurring specially.

In my opinion, the trial court did not transgress the holding of Simmons v. United States, 390 U. S. 377 (III) (88 SC 967, 19 LE2d 1247) (1968). For this reason, I must concur specially as to Division 3 of the majority opinion.

The State cannot concede error where there is none. See, e.g., Busbee v. State, 205 Ga. App. 533, 534 (423 SE2d 3) (1992); Shaw v. State, 211 Ga. App. 647, 649 (2) (440 SE2d 245) (1994). This court must determine for itself whether error exists. Simmons, supra, holds only

that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.

(Emphasis supplied.) Simmons, supra at 394 (III). In the instant case, the testimony in question had been given at a Jackson v. Denno hearing, at which the issue was the admissibility of prior incriminating statements. Thus, Simmons is inapplicable. See United States v. McClellan, 868 F2d 210, 215 (7) (7th Cir. 1989). I would hold that the only error committed by the trial court was its refusal to honor appellant’s request that the entirety of his testimony at the Jackson v. Denno hearing be admitted pursuant to OCGA § 24-3-38. I do agree with the majority that this error was not harmless and, therefore, concur in the judgment.