concurring.
I concur generally in my colleague’s well considered opinion in this difficult case but write separately on the issues most troubling. First and foremost, I find no reversible error in the guilt phase of the proceeding in which Kordenbrock was convicted of murder and attempted murder and pleaded guilty to armed robbery. The most serious question raised in this respect concerned the circumstances of Kordenbrock’s confession to police officers after being taken into custody.
The officers followed the prescriptions of the warnings to the defendant set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which “promulgated a set of safeguards to protect the there-delineated constitutional rights of persons subjected to custodial police interrogation.” Michigan v. Mosley, 423 U.S. 96, 99, 96 S.Ct. 321, 324, 46 L.Ed.2d 313 (1975). The latter case discussed in particular the custodial suspect’s “option to terminate questioning,” which must be “scrupulously honored.” 423 U.S. at 103, 96 S.Ct. at 326. Mosley decided that “admissibility of statements obtained after the person in custody has decided to remain silent” must be denied in order to effectuate the protections sought to be achieved in Miranda. Id. at 104, 96 S.Ct. at 326.
I cannot reach any conclusion but that the Kentucky officers involved in the questioning of defendant did not carefully observe Kordenbrock’s option to postpone the custodial interrogation. I agree, however, that Kordenbrock did voluntarily confess to them during the initial phase of the questioning that he committed the shootings of the two victims. In my view, then, the officers should have been permitted to testify1 that Kordenbrock confessed to the shootings but should not have been permitted to introduce the details, including the full written version.
The error in admitting the more detailed admissions of Kordenbrock’s admissions constituted, in my view, harmless error. Kordenbrock was well aware of his situation in discussing the charges, he had experience in dealing with police and was generally accountable for knowing his rights in this respect. The evidence of guilt, apart from the confession, was very strong. I therefore find no error in the rationale of the district court in its discussion of this issue and also find Martin v. Wainwright, 770 F.2d 918 (11th Cir.1985) on point. See also Burks v. Perini, No. 85-3507 (6th Cir. Nov. 25, 1986) [810 F.2d 199 (table)] (unpublished opinion). It should be pointed out that the decision in Michigan v. Mosley overturned a Michigan appellate decision which reversed a murder conviction based *87on an overly strict interpretation of Miranda and striking of a confession after the defendant had at first indicated he did not want to answer questions. The point in Mosley was that the defendant had not indicated that he persisted in his initial decision to remain silent.
The trial court’s decision to admit the entire confession no doubt impacted upon defendant and his course at trial, on advice of his counsel, at the guilt stage to admit guilt to the jury in an opening statement but to try to set out extenuating or mitigating circumstances of the murder without having to take the witness stand under oath. This action complicates the confession issue for me, but it does not affect my conclusion that only harmless error was involved beyond a reasonable doubt. That these circumstances may complicate this issue should not be taken as a criticism of counsel’s strategy in this respect faced with the enormity of the factors and proof arrayed against his client. I cannot say, however, that defendant would have adopted this trial strategy had most of the confession details been excluded, nor can I agree with the district court that this was a “deliberate waiver of any Miranda violation.” 680 F.Supp. at 880.
The second difficult question revolves around the requirements of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) and defendant’s asserted constitutional right to an independent psychiatrist under the circumstances. Emphasis in Ake throughout is upon the fact that defendant presented a “sole defense” of “insanity.” 470 U.S. at 72, 105 S.Ct. at 1091. At the initial opportunity, at a pre-trial conference, Ake’s attorney “informed the court that his client would raise an insanity defense.” Id. at 72, 105 S.Ct. at 1090. The trial court was aware that at and after arraignment defendant’s conduct had been so “bizarre” that he was ordered examined for competency to stand trial. The defendant’s request was denied and the court emphasized that “there was no expert testimony for either side on Ake’s sanity at the time of the offense.” Id. at 72, 105 S.Ct. at 1091.
The court’s holding addressed this particular issue of “sanity” stating:
We hold that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one.
470 U.S. at 74, 105 S.Ct. at 1091.
The court in Ake explained that the basis for this holding was that this afforded the indigent defendant “a fair opportunity to present his defense.” Id. at 76, 105 S.Ct. at 1092. The other holding in Ake related to the penalty phase of that case where the state presented psychiatric testimony regarding the future dangerousness of the defendant. In that specific factual setting, Ake held:
Ake’s future dangerousness was a significant factor at the sentencing phase. The state psychiatrist who treated Ake at the state mental hospital testified at the guilt phase that, because of his mental illness, Ake posed a threat of continuing criminal violence. This testimony raised the issue of Ake’s future dangerousness, which is an aggravating factor under Oklahoma’s capital sentencing scheme, ... on which the prosecutor relied at sentencing. We therefore conclude that Ake also was entitled to the assistance of a psychiatrist on this issue and that the denial of that assistance deprived him of due process.
470 U.S. at 86, 87, 105 S.Ct. at 1098.
Justice Burger, concurring in Ake, took pains to caution about the narrow application of the holding by stating “[T]he facts of the case and the question presented confine the actual holding of the Court.”
The facts in this case, by contrast, indicate that defendant never presented an insanity defense to the court or jury. The trial judge, who made extensive efforts to provide Kordenbrock expert psychiatric assistance, was apparently under the impression that Kordenbrock was claiming insanity or that his counsel was investigating an insanity plea. The district court found that *88he was hoping “to raise a defense of diminished responsibility” based on “habitual use of drugs.” 680 F.Supp. 872. The district court determined that it became “apparent” that Dr. Nizny, the psychiatrist consulted who was approved by the court to serve to assist defendant “would not be helpful to Kordenbrock’s case.” 680 F.Supp. 872. I do not believe a fair reading of the evidence supports that view,1 but I conclude the district court was not in error in finding that the failure of the state to provide payment for Dr. Nizny’s services did not deprive defendant of a “fair opportunity to present his defense,” within the meaning of Ake.
Justice Marshall, author of Ake, himself observed “we limit the right we recognize today,” and thus it did not impose a heavy financial burden on the state.2 470 U.S. at 79, 105 S.Ct. at 1094.
Defendant did present expert testimony on the effect of his drug habits and his ingestion prior to the murder. He was not precluded from presenting a diminished capacity defense. Ake does not compel a conclusion that constitutional error occurred with respect to expert and psychiatric testimony available to this defendant either at the guilt stage or the penalty stage of this case. Diminished capacity, like mental retardation, may well be a mitigating circumstance, but as recently indicated by the Supreme Court, existence of limited mental capacity does not preclude a jury’s finding of the death penalty under appropriate circumstances. See Penry v. Lynaugh, — U.S. —, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
One must comment on the failure of the police to retain evidence of the photo spread and the bottle of pills in this case. These failures deserve approbation but they do not constitute reversible error as found by the district court.
Finally, Kentucky law on the question of the jury’s role in the death penalty process has created some confusion in this case prior to its clarification. As noted by the Kentucky Supreme Court, “[T]he word 'recommend’ was used, but not to such an extent as to denigrate the responsibility of the iury in imposing the death penalty.” 700 S.W.2d at 389.
As well set out in my colleague’s opinion and analysis, there was no “affirmative misstatement or conduct that misleads the jury as to its role” in this case. Harich v. Dugger, 844 F.2d 1464, 1473 (11th Cir.1988).
I therefore concur in the decision to affirm the denial of habeas corpus relief.
. I do find support for the district court’s view that defense counsel pursued a "deliberate defense strategy” not to cooperate with available "neutral” state employed psychiatrists who might have provided defendant testimony or evaluation beyond the stated policy limits of "competency and sanity.” 680 F.Supp. 873.
. Justice Leibson, the dissenting judge in the Kentucky Supreme Court in the direct appeal properly, in my view, pointed out that the trial court acted within its authority in ordering Boone County to provide private psychiatric services for Kordenbrock and should have taken necessary steps to enforce its order. 700 S.W.2d 384, 390. This failure on the part of the court; defendant’s counsel’s failure to pursue; and the recalcitrance of Boone County to provide payment for Dr. Nizny do not, however, constitute a constitutional deficiency.