¶1concurring. I agree with much of what is said in Justice Thornton’s dissent. This court took pains to be exceedingly clear in Hale v. State, 336 Ark. 345, 985 S.W.2d 303 (1999) (Hale I), that the State could not use any of Hale’s immunized testimony in his trial for filing false documents with the State Insurance Department. Yet, that is precisely what the prosecutor did at trial. He used Hale’s immunized testimony from the Tucker trial in his cross-examination. This was in direct violation of our admonishment in Hale I.
¶2My problem with the dissent is that it invokes a Wicks exception relating to the trial court’s duty to intervene to correct a serious error even when no objection has been made by counsel. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). In my opinion, the trial judge should have known that what the prosecutor was doing with Hale’s immunized testimony at trial constituted a Kastigar violation. See Kastigar v. United States, 406 U.S. 441 (1972). But from the colloquy quoted in the dissent, the trial judge apparently did not know that Kastigar was being violated by use of the immunized testimony. It appears from the colloquy that the trial judge believed that if the immunized testimony being used did not relate to the charge for which Hale was being tried, a Kastigar violation did not occur.
¶3I cannot hold the trial judge responsible for correcting a serious error on his own motion when the judge was not aware an error had been committed. Thus, I agree with the majority that the onus was on Hale’s defense counsel to bring the issue to the trial court’s attention by timely objection.