dissenting.
I respectfully dissent and would deny transfer. I believe the Court of Appeals reached the correct result, although not for the same reasons I would give. I also believe that to the extent the majority opinion offers guidance in future cases, it sets very dangerous precedents.
L.
It seems to me that this record supports the claim of ineffective assistance of counsel. The "transcript" of Pennycuff's kitchen interview after Miranda warnings reveals several exchanges with the investigating officer, Detective Godan, along the following lines:
Q [Godan]: Do you have any idea what [T.P.] is talking about?
A [Penpyeuffl]: (No verbal response)
Q [Godan]: No? Okay. She's saying she, started when she was thirteen.
The prosecution contended that these "refusals to answer" rebutted Pennycuffs claim of cooperation with the investigation triggered by his daughter's allegations. The defense made no coherent response to this portrayal of Pennycuff as a lar in his claim at trial to have cooperated with the investigation. The Court of Appeals also viewed these exchanges as refusals to answer, but found them protected by Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The majority of this Court addresses the Doyle issue at length, concluding that Pennyeuffs post-Miran-dized silence in response to Detective Go-dan's question was admissible to rebut his claim of having cooperated with the investigation of his daughter's allegations.
Assuming Pennycuff did refuse to respond to Detective Godan, the prosecutor's use of that refusal is at best dubious under United States v. Shue, 766 F.2d 1122 (7th Cir.1985), cited by the majority. That case held silence admissible to rebut a claim of cooperation, but not admissible as evidence of guilt in the charged crime. See id. at 1182 ("The government violated appellant's right to due process by using his post-arrest silence in an obvious reach beyond fair limits to impeach his explanatory story as a recent fabrication."). The latter is what happened here. The State's closing argument included:
Now let's talk about the Defendant. Let's talk about what he had time to figure out what those initials stood for. He didn't tell the detective anything about it when he had an opportunity to explain it. He gets up there and he had *819overnight to think about it because we introduced some of these things.
The Court of Appeals concluded that failure to raise the Doyle issue was ineffective assistance. Perhaps the majority is correct that this alone did not rise to that level, but it gets worse.
The majority also acknowledges that this "transcript" may simply reflect nonverbal negative responses. It seems to me the normal reading of this interview is that Pennycuff did answer each of these questions, and did so by a negative shake of the head or other clear nonverbal response that communicated a negative answer to the questioner. In each case, the claimed nonresponse is followed by the questioner's apparently taking the nonverbal response as a negative answer, and proceeding as if a negative response had been given. If this had been a deposition, the interrogator or the reporter would have said something like, "You need to give us a verbal reply, so the tape can pick this up." But this "transcript" is not a reporter's account of a court proceeding. It is simply a typed version of an audio tape recording of an officer interview of the defendant in his home, with no one else present. No one made a demand for audible responses, but it seems fairly clear that Pennycuff was communicating with his questioner. This is not only my reading of this typewritten account of the tape-recorded interview. It is precisely what the questioner, Detective Godan, said under oath in an affidavit filed in support of Pennycuff's belated motion to correct errors. Pennycuff v. State, 745 N.E.2d 804, 811 n. 7 (Ind.2001).
The majority acknowledges that defense counsel did not raise this fairly obvious response to the charge that Pennycuff was a liar. The majority concludes that there was no prejudice from this exchange because the jury could conclude either that Pennycuff had "dissembled" or that he 'had refused to answer, both of which place him in a poor light. But the majority's characterization of "dissembling" responses is not the only alternative reading of this tran-seript. The point of Pennyeuff's contention is that he did neither. He claims he was forthright and did respond to the questions. And he points to the fact that Detective Godan took his answers as denials. If so, he was cooperating, not dissembling. Similarly, his failure to recall not responding to the inquiries is consistent with his claim that he did in fact respond. Thus, the jury was presented with a defense that accepted the State's characterization of this exchange as Pennycuff's refusal to answer. Pennycuffs claim of truthful answers was for the jury to resolve, but it was presented or discussed by no one.
If counsel had read this "transcript" as I do, the contention would not be that there is a Doyle problem. Rather, the contention would be that the State was fabricating a refusal to answer when there was none. Accordingly, the contention would be that Pennyeuff was truthful in claiming cooperation with the investigation. And his failure to recall "not responding" is explained by the fact that it did not occur. None of this was pointed out to the jury. In itself, that may be explained as a viable strategy based on factors not evident from the record. But I do not agree with the majority when it attributes counsel's performance to a "heat of battle" decision. Long before the trial began it must have been obvious that the transcript was clearly in play and a subject of dispute. In any event, the direct examination of Detective Godan plainly foreshadowed the prosecution's claim in closing argument that Pen-nyeuff was not forthcoming.
Minimal preparation by trial counsel would have considered how to handle this *820issue. If viewed as nonverbal negative responses, the defense could have presented Pennycuff's claim of cooperation as supported, not rebutted, by the "transcript," if not a Doyle violation. Perhaps rejection of that alternative was a tactical call based on counsel's assessment that the claim to have given nonverbal responses would not be accepted. But, for the reasons given by the Court of Appeals, counsel had to choose either that route or a Doyle objection, and did neither.
IL.
Regardless of the resolution of the issues raised by the transcript, in the context of the other actions of trial counsel, I think ineffective assistance was demonstrable. It was defense counsel, not the prosecution, who introduced the "X-Rated Stuff" This was after direct examination of the detective had concluded without mention of the nature of the literature seized in Pennycuff's house. I think it obvious that possession of some of these materials may have prejudiced some jurors against Pennycuff. The majority suggests that this subject was brought out "anticipating the State's redirect." I would think that its introduction would be highly improper unless it were itself illegal material, which no one seems to contend is the case. There was no need to anticipate an action by the prosecution that did not occur on direct, should not have occurred on redirect, and should not have been allowed by the trial court if it did.
After defense counsel had opened this subject, the prosecution offered the September 1996 issue of "Hawk," claiming to display, "The youngest babes allowed by law!" to rebut Pennycuffs claim that he was a law abiding citizen. This publication was not shown to TP. or involved in any of the alleged incidents. Taking this maga-zime's claim at face value, it is not illegal. Even if it contained photos of underage subjects, its relevance would be at best a marginal call under Evidence Rule 403. But it appears to contain nothing but photos of adult women. Whatever one thinks of this publication, it is of the genre openly displayed in many newsstands and other retail outlets. We claim to base our criminal justice system on proof of what the defendant has done, not who the defendant is. Yet introduction of the defendant's lawful materials, however tasteless, without tying them to any issue in the case runs the risk of violating that basic principle. The prosecutor's closing argument played to this theme. It included the contention that, "What's strange is that the Defendant had sex with his daughter. It's strange that he committed oral sex with his daughter. It's strange that he's had barley [sic] legal magazines that he reads." (Emphasis added.) In short, introducing these materials was in my view not a defensible defense strategy, and it produced the erroneous admission of prejudicial materials.
The claim raised in this appeal is ineffective assistance for introducing this material into the trial, not trial court error in admitting the one item to which Pennyeuff objected. The State defended its admission on the ground that defense counsel had opened the door by pointing out on cross-examination of Detective Godan that no photos or videos of T.P. were found in the search and that Pennyeuff had no criminal record. The trial court, in ruling on Pennyeuffs motion to correct error, found that it had ruled the materials admissible on that basis. In my view, if the door was not opened, overruling the objection was error, see Rafferty v. State, 610 N.E.2d 880, 883 (Ind.Ct.App.1993). It seems debatable that the door was opened wide enough to permit salacious but irrelevant material, but the issue is not raised in this appeal as trial court error. Rather, it *821is presented as ineffective assistance for opening the door. I believe Pennycuff has established his claim of ineffective assistance by showing that the defense opened the door to materials that would otherwise have been ruled inadmissible.
Because this case turned substantially on the conflicting testimony of Pennyeuff and T.P., the introduction of these materials was prejudicial. As the majority puts it, this "X-Rated Stuff" was used to show the defendant's interest in his own young daughter. Pennycuff, 745 N.E.2d 804 at 816. I think this use violates both prongs of the balancing test required by Evidence Rule 403. It is highly prejudicial, because many would find this magazine offensive or even, in the prosecutor's term, "strange." It is also irrelevant. The defendant's interest in photographs of somebody else's adult daughters is qualitatively different from the charge that he was having sex with his own fourteen year old. In any event, its appearance in this case was instigated by defense counsel and was prejudicial. I would deny transfer and accept the result of the Court of Appeals' decision.
DICKSON, J., concurs in Part I.