Concurring and Dissenting Opinion
DeBruler, J.I concur fully in the holding of the majority that the death penalty imposed by our first degree murder statute, Ind. Code § 35-13-4-1 (b) (Burns 1975) violates the Eighth Amendment prohibition against cruel and unusual punishment under the standards enunciated in Woodson v. North Carolina, (1976) 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944. I cannot concur in that part of the opinion suggesting that the holdings in Woodson and its companion cases on the one hand and Furman v. Georgia, (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, on the other, have placed legislatures in a dilemma, in that Woodson condemns mandatory death penalties while Furman condemned jury discretion in the imposition of the death penalty. What Furman condemned was discretion to choose between capital and non-capital punishment which was not limited or directed by any standards, guidelines, or review. Such unbridled discretion was held to result in the imposition of the death penalty in an arbitrary manner, without regard to the interests sought to be protected, and with disproportionately heavy incidence upon members of unpopular minorities. Our Legislature interpreted Furman as suggesting that all jury discretion to choose between death and life imprisonment was suspect; the statute enacted sought to comply with Furman by eliminating all jury discretion. Woodson has simply proved this interpretation wrong. Discretion itself is not impermissible, but indeed is necessary. The discretion must be exercised under objective standards which prevent arbitrary application of the death *291penalty and allow meaningful review of the sentence selection process. The Legislature is not held to an impossible burden in being required to establish such standards, as is illustrated by the Supreme Court’s approval of the Florida, Georgia, and Texas statutes.
I likewise disagree with the majority’s argument that the Fifth Amendment’s due process clause recognizes the legitimacy of capital punishment as it is logically fallacious.1
I likewise cannot concur in the majority’s disposition of the issue of the admissibility of appellant’s oral statement to Sergeant Hart admitting appellant’s guilt of armed robbery and kidnapping. I recognize that in reviewing the trial court’s ruling on this issue we accept the lower court’s findings if those findings are supported by sufficient evidence, and that we will not reweigh the evidence. However, it is undisputed that on the night of appellant’s arrest he was presented with a Miranda rights advice and waiver form by Lieutenant Gates and Detective McCallister of the state police, and that appellant not only refused to sign the waiver form, but requested an attorney. Four days later Sergeant Hart and Detective McCallister brought appellant from his cell and Hart again advised appellant of his Miranda rights and asked whether appellant wished to talk about his charges. Appellant thereupon stated that he was guilty of armed robbery and kidnapping, without prompting by the troopers; indeed, it ap*292pears that they might not have been able to stop him. From this evidence the trial court could not properly have found that appellant volunteered his admission so as to remove it from the applicability of Miranda, v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
As the Supreme Court held in Miranda:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.
* * *
If the individual states that h& wamts an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” (Emphasis added.) 384 U.S. at 473-74, 86 S.Ct. at 1627-28.
This Court, in Pirtle v. State, (1975) 263 Ind. 16, 323 N.E. 2d 634, relied upon the above language to hold that a statement obtained from a suspect in custody, after that suspect had requested consultation with an attorney, was inadmissible. We reaffirmed Pirtle in Stevens v. State, (1976) 265 Ind. 396, 354 N.E.2d 727, and Williams v. State, (1976) 264 Ind. 664, 348 N.E.2d 623.
In Brown v. State, (1971) 256 Ind. 558, 270 N.E.2d 751, we held that a waiver was not demonstrated by evidence that the accused twice refused to sign waiver forms, but eventually confessed in response to continued interrogation. We quoted U.S. v. Nielsen, (7th Cir. 1967) 392 F.2d 849:
“Here the defendant’s refusal to sign the waiver form, followed by an apparent willingness to allow further quesioning, should have alerted the agents that he was assuming seemingly contradictory positions with respect to his submission to interrogation. Instead of accepting the defendant’s equivocal invitation, the agents should have inquired further of him before continuing the questioning to determine whether his apparent change of position was *293the product of intelligence and understanding or of ignorance and confusion. However, no further inquiry took place. In the absence of such an inquiry, we are compelled to conclude that the defendant’s negative responses to the questions asked him were not made after a knowing and intelligent waiver of his rights.” 392 F.2d at 853.
In this case appellant requested an attorney on the night of his arrest, and the officers were required not to interrogate him thereafter until he had spoken with counsel. Nonetheless they took him to a private room, gave him Miranda warnings, and asked whether he wanted to talk. These actions can only be interpreted as an attempt to elicit a statement from appellant, occurring when no such attempt should have been made. Appellant’s resulting admission cannot, therefore, be considered to have been “volunteered”; it was, rather, the result of custodial interrogation initiated by the police and conducted in violation of Miranda and Pirtle.
This is not a case such as Michigan v. Mosley, (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, wherein the Supreme Court held that a confession given during interrogation occurring after Mosley declined to answer questions was not taken in violation of Miranda. Mosley was questioned by separate officers investigating separate crimes, and at no time expressed any desire to speak with an attorney. The Court distinguished Mosley from situations in which the suspect requests legal assistance. 423 U.S. at 104, n. 10, 96 S.Ct. at 366, n. 10. I would hold that the admission of appellant’s oral statement was error.
I also find myself unable to agree with the majority’s holding that the psychiatric reports tendered into evidence by appellant were properly excluded as hearsay. The State called as a witness Mr. Woolbert, attorney for Charles Martin, appellant’s accomplice who testified for the State. The prosecutor was allowed to elicit from Mr. Woolbert that although he had filed a special plea of not guilty by reason of insanity in Martin’s own pending case involving these charges, he did not believe that Martin was insane. He justiified this assertion thus:
*294[Mr. Woolbert] “First, the man’s statement that he is sane, he’s maintained that. My personal opinion is he’s sane and four psychiatrists say he’s sane.” (Emphasis added.)
On cross-examination of Mr. Woolbert the defense had him identify its Exhibits B, C, D, and E as photocopies of letters from four psychiatrists appointed by the Madison Circuit Court to examine Martin, reporting to that court as to Martin’s mental condition. Woolbert was asked:
“Q. These are the reports ... to which you testified on direct examination?
A. They are. They’re photocopies.”
The defense then offered the exhibits, and the trial court, after hearing argument and reviewing Mr. Woolbert’s testimony, determined that the reports were inadmissible as hearsay, because the State could not cross-examine their authors as to their contents. The majority justifies the action on the same grounds.
I believe that both the trial court and the majority, in focusing upon the hearsay nature of the reports, misdirected their analysis. The witness Woolbert on direct examination supported his conclusion that his client was sane by relying on the opinions of “four psychiatrists.” On cross-examination, he admitted that these opinions were contained in Exhibits B through E. Mr. Woolbert’s statement, “four psychiatrists say so” was itself a paradigm of hearsay; should not appellant, having permitted its unchallenged reception, be allowed to rebut Woolbert by showing that the psychiatrists’ reports upon which he relied did not actually or fully support his conclusion? I believe that the overwhelming weight of authority holds that he should be. In Perkins v. Hayward, (1890) 124 Ind. 445, 449, 24 N.E. 1033, this Court said: *295See also Apple v. Board of Commissioners, (1891) 127 Ind. 553, 27 N.E. 166; Glover v. Stevenson, (1891) 126 Ind. 532, 26 N.E. 486; Shelby National Bank v. Miller, (1970) 147 Ind. App. 203, 259 N.E.2d 450; Reserve Life Insurance Co. v. Luedke, (1961) 132 Ind. App. 476, 177 N.E.2d 482; 1 WIGMORE, EVIDENCE, § 15 at 304-308 (3d ed. 1940);3 McCORMICK, EVIDENCE § 58 at 132 (2d ed. 1972); 4 JONES, EVIDENCE § 25:21 at 167 (6th ed. 1972); 12 I.L.E. Evidence §54 at 486 (1959).
*294“If a party opens the door for the admission of incompetent evidence he is in no plight to complain that his adversary followed through the door thus opened.” (Citations omitted.)2
*295In this case Mr. Woolbert, not an expert in psychology or psychiatry himself, was allowed to armor his layman’s assessment of Martin’s sanity with the opinions of four unnamed psychiatrists, revealed on cross-examination to be the psychiatrists appointed to examine Martin in the latter’s own prosecution. It is difficult to see how the defense could impeach Woolbert without examining him concerning the reports upon which he based his opinion. It is equally difficult to comprehend why the State, whose witness injected the opinions of the psychiatrists into the case, should be allowed to complain of its inability to cross-examine those psychiatrists.
I would therefore reverse this conviction and order a new trial.
Note. — Reported at 362 N.E.2d 834.
. This argument commits the classical fallacy known as “denying the antecedent of a conditional statement.” This fallacy is committed when a statement in the conditional form “if P then Q” is taken to imply “If not P, then not Q.” The relevant language of the due process clause is “no person shall be . . . deprived of life . . . without due process of law. . . .” This language may be represented in conditional form as follows: If a person is denied due process (if P) then that person shall not be deprived of life (then Q). The majority seeks to infer from this statement that if a person is not denied due process (not P) then he may be deprived of life (then not Q). This violates the rules of deduction, as may be seen in this example:
“If Columbia University is in California, then it is in the United States.
Columbia University is not in California.
Therefore, Columbia University is not in the United States.” "W. Salmon. Logic 28 (2d ed. 1973).
. Or, as the West Virginia Supreme Court has said, “strange cattle having wandered through a gap made by himself, he cannot complain.” Sisler v. Shaffer, (1897) 43 W. Va. 769, 28 S.E. 721.
. Wigmore actually discerns three competing rules among American and English jurisdictions. One requires an objection by the party to the “opening of the door,” but this requirement is relaxed where, as here, the question eliciting the hearsay conveys no warning of the hearsay answer. Id. at 305, n. 1. One of the other rules allows the curative admission of otherwise inadmissable evidence in all eases (“English rule”), the other where prejudice results from the first wrongful admission. (“Massachusetts rule”). Indiana has cases listed under each of the latter two rules. Id. at 306, n. 2, 308, n. 3.