dissenting.
The majority recites, and then ignores, Oregon law on the admissibility of statements obtained from defendant after he invoked his right to counsel. Because this court cannot deviate from the admissibility standards for such statements announced by the Oregon Supreme Court, I dissent.
The Supreme Court repeatedly has held that, once a defendant requests to speak with a lawyer, questioning by police “not only ‘should’ but must cease.” State v. Isom, 306 Or 587, 593, 761 P2d 524 (1988). Incriminating statements and confessions obtained after a request for counsel are inadmissible, because they “partake more of actual coercion.” State v. Mendacino, 288 Or 231, 238, 603 P2d 1376 (1979). Isom requires that such statements be suppressed:
“ [A]ll citizens, including criminal defendants, have constitutional rights, and the state may not prove, over objection, any crime with unconstitutionally obtained evidence. The defendant was entitled under the Oregon Constitution to have a *635lawyer present at the time of his out-of-court interrogation by the police. He unequivocally exercised that right by telling the police that he did not want to make any statement without his lawyer present. The police purposely disregarded that request and thereby intentionally violated defendant’s constitutional right to counsel. The notion that police can continue to interrogate a person in violation of his state constitutional right to counsel and his rights against self-incrimination is pure fiction. Police officers have a duty to uphold the constitution of this state and may not intentionally violate a person’s constitutional rights without serious sanctions. They have an absolute obligation to cease all questioning once the request for counsel has been made. Because defendant’s statements were made after a request for counsel and were induced by continued questioning by the police, they were obtained in violation of Article I, section 12, of the Oregon Constitution and should have been suppressed by the trial court.” 306 Or at 595.
In State v. Miranda, 309 Or 121, 786 P2d 155, cert den 498 US 879 (1990), the Supreme Court recognized an exception to the Isom rule: When a defendant “opens the door” by testifying about the contents of an otherwise inadmissible statement, he may be cross-examined about that statement. The opinion makes it clear — twice—that the scope of cross-examination must be confined only to the statement that the defendant “opened up”:
“A defendant’s own inquiry on direct examination into the contents of otherwise inadmissible statements opens the door to further inquiry on cross-examination relating to those same statements.
* * * *
“By affirmatively introducing selected portions of his conversations with the officers, defendant invited further inquiry on cross-examination and he could not limit the state’s cross-examination of him concerning those statements. The trial court did not err in this respect. The evidence was invited, not shunned, as in the case of State v. Isom, 306 Or 587, 761 P2d 524 (1988).” 309 Or at 128. (Emphasis supplied.)
The state’s cross-examination in Miranda was properly confined to details about the statements to police that the defendant had “opened up” during his direct examination.
*636Here, defendant “opened up” his statement to police that he wanted to be photographed with the knife. However, over his objection, and to the expressed surprise of the trial judge, the prosecution introduced additional statements that defendant had never opened up, including his repeated request to speak to a lawyer and his statement, “You guys got me.”
The majority makes no pretense that the state’s questioning was confined to his statement about the knife, as Miranda requires. Instead, it would expand the Miranda exception and allow the state to introduce any uncounseled statements, including statements never brought up by defendant, if they are “relevant to rebut” the defendant’s probable motive in opening the door on one statement. 115 Or App at 631. That violates Miranda’s requirement that the state’s questioning must be confined to the “same statements” brought up by a defendant.1 It is inconceivable to me that the court was careless in selecting its terminology for the rule that it announced — twice—in Miranda. Our duty is to follow the rule, not to evade it.
The majority acknowledges, and the state concedes, that the prosecution improperly introduced evidence that defendant had invoked his right to counsel and to remain silent. The majority excuses that violation as harmless error. If that were the only error, I could agree with the majority’s harmless error analysis. However, the trial court also permitted the state to introduce other statements by defendant to the police, even though he did not “open the door” to those statements. As a result, Officer Lind testified that, after defendant had requested an opportunity to speak to his attorney, he said, “You guys got me,” and then again asked for an attorney and “clammed up.” The first statement can be construed, among other possible interpretations, as an admission of criminal responsibility. That inference is *637strengthened by Lind’s comment that defendant “clammed up,” which suggests that defendant suddenly recognized the detrimental effect of his statement.
I could not conclude that that error was harmless. State v. Miller, 300 Or 203, 220, 709 P2d 225 (1985), cert den 475 US 1141 (1986), says:
“OEC 103(1) provides: ‘Evidential error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.’ According to the Legislative Commentary to OEC 103(1), appellate courts are required to affirm the trial court, notwithstanding evidential error, whenever there is: (1) substantial and convincing evidence of guilt in a criminal case, and (2) little, if any, likelihood that the error affected the verdict.”
In State v. Walton, 311 Or 223, 230, 809 P2d 81 (1991), the court held that it was harmless error to admit the defendant’s unwarned statements claiming a false name, denying his true name and denying that he knew an accomplice, Abbott. The court concluded that those statements had no impact on the trial, because the court received other statements in evidence that defendant had admitted his true name and had admitted knowing Abbott.
Nothing in the record allows us to say that the introduction of the challenged evidence did not influence the verdict. The jury was required to determine, among other things, whether defendant acted as a result of intoxication. His admission and Lind’s other testimony about his statements could have been what induced jurors to convict him, even though there was other substantial evidence that he was guilty. Nothing in the record effectively negated or minimized the damaging effect of the inadmissible statements. That distinguishes this case from State v. Walton, supra.
I dissent. Joseph, C. J., and De Muniz, J., join in this dissent.
The majority reads Miranda as permitting the state to cross-examine, not only about the statement the defendant opened up, but also on any other statements “that were part of the same conversation with the police.” 115 Or App at 631 n 1. That is a far cry from Miranda’s “same statement” rule. Miranda permitted the prosecution to expose the details of the statements that the defendant disclosed, not to expose all of his uncounseled statements because they occurred in the same conversation with police. Unlike in Miranda, the prosecution here did not confine itself to rebutting the credibility of the statement that defendant opened up.