concurrence">GALBREATH, Judge

(concurring).

I concur but cannot join in the holding that Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358, should not be given retrospective application. However, the facts in this case do not present a Brooksissue. Brooks was deprived af his constitutional right to be heard in his own defense; the plaintiff in error here was accorded this privilege and thus has no standing to complain. While Brooksstruck down T.C.A. § 40-2403 requiring the defendant in a criminal trial to testify first if he became a witness in his defense, it did not hold that one who has so testified has been denied any constitutional right. Under the law as it now prevails, a defendant may be a witness at any stage of the defense.

The right to be heard is so basic and fundamental that I cannot doubt its denial would void any conviction following such a deprivation. It is not procedural, as I see it any more than other basic rights such as the right to trial by jury, the right to counsel, freedom of religion, etc. Actually, the right to be heard in his own defense is probably the most important single right a person accused of crime has under the Federal and State constitutions. A person unjustly accused of crime might survive the ordeal without an attorney; he might get by without a jury if the judge was fair; but without the right to explain his side of the case, he would be most likely doomed. Such rights have always been guaranteed by the constitution, and any decision of the United States Supreme Court holding that such rights have been denied, as for example the right to counsel in Gideon and the right of confrontation in Bruton have been given retrospective application. The right to be heard is more important than either and thus Brooks, as I see it, must be retroactive.

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