separate opinion.
I must take exception to the separate opinion of Justice Givan upon three issues: 1) prohibiting defendant from eliciting the remainder of a prior statement admitted in evidence, 2) the meaning of the term "unrelated" as applied to prior convictions, and 8) role of the jury in habitual criminal proceedings. Upon the remaining issues, I am in agreement.
I
I agree with the reasoning of Justice DeBruler's separate opinion that in this situation, the rule against the introduction of self-serving statements must give way to the right of the defendant to present relevant evidence and to have a fair opportunity to cross-examine opposing witnesses. The rules of evidence have manifested a historical aversion to the admissibility of prior out-of-court statements. Exceptions to the hearsay rule have been carefully drafted in view of the inherent risks of unreliability of such statements. In the event a party is permitted to introduce portions of such a statement, it would appear particularly important to permit the opponent to introduce the remainder. The *22finder of fact can then assess weight and credibility accordingly.
In balancing the potential harm resulting from the introduction of self-serving statements against that resulting from the exclusion of relevant portions of prior statements otherwise admitted, I would apply the policy expressed in Trial Rule 48(A) of the Indiana Rules of Procedure: "In any case, the statute or rule which favors the reception of the evidence governs ..." The issue is analogous to the use of depositions at trial, wherein Trial Rule 82(A)(4) instructs:
If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in context to be considered with the part introduced, and any party may introduce any other parts.
For these reasons, and those expressed by Justice DeBruler, I disagree with the opinion of Justice Givan on this issue.
II
I am unable to concur with the language of Justice Givan's opinion regarding the trial court's treatment of the third alleged prior unrelated crime. The opinion appears to condone as "mere surplusage" the charging of a third offense which does not qualify as a prior unrelated felony in a habitual offender proceeding. The opinion states that the trial court's action in striking the third felony "is of no moment." I disagree. Not only did the trial court correctly strike the third felony, but this ruling was of crucial significance.
Our habitual offender statute, Ind.Code § 35-50-2-8, makes multiple references to the phrase "prior unrelated felony convie-tions." It provides, in pertinent part:
(a) The state may seek to have a person sentenced as an habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions.
(b) After he has been convicted and sentenced for a felony committed after sentencing for a prior unrelated felony conviction, a person has accumulated two (2) prior unrelated felony convictions. However, a conviction does not count, for the purpose of this subsection if;
(1) It has been set aside; or
(2) It is one for which the person has been pardoned.
* L * * # *
(d) A person is an habitual offender if the jury (if the hearing is by jury), or the court (if the hearing is to the court alone), finds that the state has proved beyond a reasonable doubt that the person has accumulated two (2) prior unrelated felony convictions. [Emphasis supplied]
In Erickson v. State (1982), 438 N.E.2d 273, 278, this Court noted that the term "unrelated felony" applies to the relationship between the prior offenses and the instant felony "in the sense that it is not connected to it as part of the res gestae of the instant crime." In addition, as used in section (b) of the statute, the term "unrelated felony" is defined to require that the prior offenses must be unrelated to each other, in that the commission of the second offense must have been subsequent to sentencing upon the first. Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339, 342; Graham v. State (1982), Ind., 435 N.E.2d 560, 561. Thus, for purposes of our habitual offender statute, the prior unrelated felonies must be unrelated not only to the charged offense, but to each other as well.
In the instant case, the State originally introduced evidence of three felonies committed prior to the principal offense. The first was committed on July 5, 1980, and sentencing was imposed on November 5, 1980. Thereafter, on December 16, 1980, the second felony occurred, with a resulting conviction on April 1, 1981. The third felony conviction was for an offense committed on July 6, 1980, almost four months before defendant was sentenced on the first felony and before the second offense was committed. Therefore, to have allowed the jury to use the third felony con*23viction as a predicate offense for the habit ual offender determination would have violated the requirement in Ind.Code § 85-50-2-8(b) that a second predicate offense must be committed after the sentencing of the first predicate offense. The trial court thus properly removed the third felony from the jury's consideration as a prior unrelated felony.
It is correct that the allegation of a third conviction may be excused as mere surplus-age. St. Mociers v. State (1984), Ind., 459 N.E.2d 26; Hall v. State, (1980), 273 Ind. 507, 405 N.E.2d 530. However, as distinguished in Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339, these "mere surplus, age" cases involved additional prior felonies each of which qualified under the statute. In Miller, the defendant was charged with four prior felony convictions, but two of these did not qualify as prior unrelated offenses under the habitual offender statute, requiring reversal and remand. We stated:
But here, the defendant was improperly charged, over his objections, and evidence was submitted on those improper charges. Notwithstanding that competent evidence was admitted to support a finding that the defendant "had accumulated two (2) prior unrelated felony convictions," under this state of the record, it cannot be discerned which of the four alleged prior convictions provided the factual basis for the jury's determination.
A general verdict can not stand when the case was tried and submitted on two theories, one bona fide and the other not. [Citations omitted]
417 N.E.2d at 343.
Removing the third alleged prior convietion from the jury's consideration was necessary to leave the first and second alleged felonies as proper predicates for the habitual offender determination. These two felonies met the definition of prior unrelated felonies, and were properly used to support the habitual offender verdict.
III
In upholding a jury instruction attempting to explain the absence of information regarding the penalties associated with a habitual offender determination, the opinion of Justice Givan comments, in dicta, that the jury's "sole duty" is "finding whether or not the defendant has been twice previously convicted of unrelated crimes." I respectfully suggest that this is incomplete and not consistent with our recent decision in Mers v. State (1986), Ind., 496 N.E.2d 75. In a habitual offender proceeding, the jury must not only determine whether the defendant has been twice previously convicted of unrelated crimes, but it must further determine whether such two convictions, when considered along with the defendant's guilt of the charged crime, lead them to find that the defendant is a habitual criminal. In Mers, we stated:
While the habitual offender phase of the proceeding focuses upon the existence of two prior unrelated felony convictions, prerequisite to this phase is a conviction for the primary underlying felony. A person cannot be found to be a habitual offender upon merely two felony convictions. There must be three. It is from this group of three particular convictions that a jury may determine the "ultimate issue of fact"-whether, based on these three felonies, defendant's sentencing status should be that of a habitual offender.
496 N.E.2d at 79.
Notwithstanding this observation, I do not oppose the result advocated by Justice Givan on this issue. Defendant's sole quarrel with Court's Instruction No. 23 is its final sentence stating that the jury is restricted to determining the facts only "and not the law"" during a habitual offender proceeding. Defendant argues that this language violates Article 1, See. 19 of the Constitution of the State of Indiana which provides: "In all criminal cases whatever, the jury shall have the right to determine the law and the facts." The language in controversy did not represent a general directive to the jury. Rather, it merely served as a rationale explaining to the jury that they would not be informed of the penalties which might result from their de*24termination. This was not equivalent to an instruction which impeded the unquestioned right of a jury to refuse to find defendant a habitual offender even with uncontroverted proof of the prerequisite prior felony convictions. Mers, supra; Baker v. Duckworth (7th Cir.1985), 752 F.2d 302, 306, cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618. See also, Hudelson v. State (1883), 94 Ind. 426, 430, 431. Standing alone, the phrase does appear inconsistent with the Indiana Constitution. However, this phrase was merely an incidental component of the court's Instruction No. 28, which was otherwise entirely proper in informing the jury that they would not be advised of the resulting penalties. This inconsistency was not sufficient to mislead the jury or to prejudice the defendant.