concurring.
Respectfully, I concur in judgment only as to the conclusion reached by the majority in Division 33, relating to the issue in Simmons v. South Carolina, 512 U. S._(114 SC 2187, 129 LE2d 133) (1994). I do not agree that Simmons should be construed so narrowly that it applies only where state law prohibits parole with respect to a life sentence — that is, where a life sentence precludes release. I agree with the interpretation given Simmons by the New Mexico Supreme *793Court in the case of Clark v. Tansy, 882 P2d 527 (N.M. 1994), that, if the prosecutor, in the sentencing phase, offers evidence or argument of the defendant’s future dangerousness and such evidence or argument implies release on parole, the defendant may, at his or her option, through evidence, argument, or court instructions, inform the jury of the relevant statute governing eligibility. It seems fundamental that if the state’s evidence or argument permits a jury inference concerning parole eligibility that may be untrue, a defendant may appropriately demonstrate any statutory provision to the contrary. In Burgess’s case, the statute makes him ineligible for parole for 25 years. OCGA § 42-9-39 (b). However, the only evidence in Burgess’s trial even remotely suggesting the possibility of parole involved the state’s cross-examination of a defense expert witness. Burgess’s objection to that evidence was sustained by the trial court who addressed the matter to the jury appropriately and sufficiently. Therefore, I agree with the conclusion of Division 33.
I am authorized to state that Justice Sears joins in this concurrence.