concurring in result.
At trial, in its case in chief, the prosecution was permitted to introduce incriminating evidence seized from the truck over a Fourth Amendment objection. After the State had rested, appellant chose to testify and to provide an explanation for such evidence which would serve to lessen its incriminating value. If one assumes, as the majority does in part of its argument, that this evidence was seized in derogation of constitutional protections and was erroneously permitted to be introduced as part of the State's case in chief, the legal question of whether the defendant's mollifying testimony renders such error harmless should be made by (1) examining any nexus between the introduction of evidence and the defendant's choice to testify, and (2) applying the federal standard for determining whether federal constitutional error was harmless, i.e., the reviewing court must be able to declare its belief that the error was harmless beyond a reasonable doubt. Lloyd v. State (1983), Ind., 448 N.E.2d 1062; Greer v. State (1969), 252 Ind. 20, 245 N.E.2d 158. While the cited cases deal with the defendant's testimony in the aftermath of Fifth Amendment error, rather than with a Fourth Amendment error as presented here, I see no principled reason to approach the problem differently.
Here, appellant was properly confronted at trial with the testimony of the alleged victim, and evidence of her severe injuries. In light of the strength of this evidence, I judge that appellant would have testified and given support for his consent and self-defense defenses irrespective of the State's use of the seized items, and that therefore he was not compelled to take the stand by such use, and am able to declare a belief that an assumed constitutional error in permitting those seized items to be admitted at trial would be harmless beyond a reasonable doubt.
SHEPARD, C.J., concurs.