Concur in Part/Dissent in Part.
$1 I concur in the Court's decision to affirm the judgment and sentence in Count I, Murder First Degree. However, I agree with Judge Lile that the trial court took appropriate remedial action to correct the error in the heading of Instruction 14 and any error is harmless.
[ 2 In addition, in its discussion of Proposition VII, the Court partially cites the holding in Hogan v. Gibson, 197 F.8d 1297, 1807 (10th Cir.1999), regarding the request to provide an instruction on a lesser included offense. A more complete statement of the law applicable is set forth in Gilson v. State, 2000 OK CR 14, « 113, 8 P.8d 883, 917, where we held:
In determining the sufficiency of the evidence to support a lesser offense we look at whether the evidence might allow a jury to acquit the defendant of the greater offense and convict him of the lesser. See Hogan v. Gibson, 197 F.3d 1297, 18305 (10th Cir.1999) citing Beck v. Alabama, 447 U.S. 625, 686, 100 S.Ct. 2882, 2888, 65 L.Ed.2d 892 (1980). Only if there is evidence which tends to negate an element of the greater offense, which would reduce the charge, should instructions on a lesser included offense be given. See Fairchild, 998 P.2d at 627. See also Umited States v. Scalf, 708 F.2d 1540, 1546 (10th Cir.1983) ("a lesser included offense instruction should not be given unless there is evidence to support a finding that the lesser offense was committed while the greater offense was not.").
CHAPEL, Judge, Concurring in Part and Dissenting in Part:
4 1 I concur in reversing Count 2. However, I dissent to affirming the conviction and sentence for Count L.
T2 Pickens was in custody in the Tulsa county jail on an unrelated murder charge when he was arrested by Creek County offi*885cers for a robbery/murder at the Mr. Quick 21 convenience store in Sapulpa. Prior to this arrest Pickens had invoked his Fifth Amendment right to counsel, during a custodial interrogation regarding the Tulsa case.1 In addition, Pickens had been provided with a lawyer from the Tulsa Public Defender's Office to represent him in the Tulsa County case, and the Creek County officers were aware of this representation. Notwithstanding this knowledge, the officers did not make any effort to notify this Tulsa counsel that Pickens was being arrested for a similar robbery/murder in Creek County and that he was about to be interrogated regarding this offense. Nor did anyone from Creek County specifically inform Pickens that he could consult with his Tulsa counsel regarding the new charges.
T3 As noted in this Court's earlier opinion in this case, Pickens was interviewed two times on March 9, 1990, after being brought from Tulsa to the Creek County Police Department.2 During the first interview, which occurred before lunch and before Pickens was arraigned, Pickens confessed to the robbery and murder in Sapulpa, after being given Miranda warnings. After a lunch break Pickens was arraigned and then returned to the Creek County Police Department. He then confessed a second time to the Sapulpa crimes, this time admitting even more damaging facts. The second confession, which was not proceeded by Miranda warnings, was videotaped.
T4 This Court reversed Pickens' original conviction for the Sapulpa crimes, because the videotape of this confession was admitted into evidence at trial, in violation of his Sixth Amendment right to counsel3 This Court concluded that the admission of this videotape was not harmless error.4
15 The issue now before this Court is the admission into evidence of Pickeng' initial, pre-arraignment confession during his re-trial for the Sapulpa crimes. I conclude that the admission of this confession was likewise a violation of Pickens' constitutional rights, which cannot be deemed harmless.
16 First, I would hold that the custodial interrogation that resulted in this confession was held in violation of Pickens' Fifth Amendment right to counsel. This Court has already recognized that Pickens invoked his right to counsel during an initial interrogation following his arrest in Tulsa5 It is well-established that an accused who has requested counsel under these circumstances cannot be approached for further questioning.6 Although a majority of this Court found that Pickens subsequently "re-initiated" communications with the police,7 I disagreed with this finding8 Because I do not *886agree that Pickens re-initiated communications with the police, or that he validly waived the right to counsel that he had previously invoked, I conclude that the initial confession in the Creek County case was vitiated by the failure of the Creek County officers to respect Pickens' prior custodial request for counsel.9 Because Pickens invoked his Miranda-based right to counsel and remained in police custody, police were prohibited from approaching him regarding the Tulsa crimes or any other erime.10
17 Second, I would hold that the Sixth Amendment right to counsel, which had attached in the Tulsa case, was violated by the failure of the Creek County officers to contact Pickens' Tulsa counsel or specifically inform Pickens that he had a right to consult with this counsel. I here disagree with the Supreme Court's finding in MeNeil v. Wisconsin that the Sixth Amendment right is "offense specific." 11 I find this to be an unrealistic and unreasonable interpretation of this constitutional right.
18 As this case aptly demonstrates, one cannot assume that seemingly "distinet" offenses will remain distinct as a case proceeds. In fact, the representation and defense of Pickens' case in Tulsa was specifically and substantially impacted by his un-represented confessions to the Creek County crimes, since one of these confessions was actually admitted during the sentencing-stage of his trial for the Tulsa: offenses.12 Furthermore, it is widely ree-ognized that separate offenses are often treated as a group, for the purposes of negotiating and implementing plea bargains, as well as for sentencing determinations. Interpreting the Sixth Amendment right to the assistance of counsel without regard to the realities of how distinct offenses are regularly treated within the context of the criminal justice system unnecessarily frustrates the purposes of the Sixth Amendment right. In particular, it unfairly subjects a custodial accused to unrepresented interrogations that may severely compromise a case in which he is already involved and for which he has already obtained counsel.13 Recognizing that in a case such as this one, where officers *887are fully aware that a custodial accused has already obtained counsel in another case, the Sixth Amendment right should include, at a minimum, either contacting this known counsel or specifically informing the accused that he has the right to consult with this counsel, prior to being interrogated regarding a different offense, would not unduly hamper police investigations or compromise legitimate confessions.
19 Furthermore, if the Sixth Amendment right to counsel will not be recognized to extend this far, I would hold that the Oklahoma Constitution does reach this far, in order to give full and operative protection to the right of an accused to be represented and assisted by his chosen or appointed counsel.14
110 Pickens also asserts that it is unconstitutional to execute him because he is mentally retarded.15 In Lambert v. State,16 a majority of this Court declined to find that the execution of the mentally retarded violated either the United States Constitution or our Oklahoma Constitution. The Court's entire reasoning was as follows: "In light of Penry v. Lynaugh, we decline to grant relief." 17 In Penry v. Lynaugh,"18 the Supreme Court held that the Eighth Amendment did not categorically prohibit execution of the mentally retarded.19 , Although I concurred in affirming Robert Lambert's convictions, I dissented from this Court's refusal in Lambert to recognize that our State constitution forbids execution of the mentally retarded.20
[11 I continue to firmly believe that the execution of the mentally retarded, like the execution of children and the insane, is both cruel and unusual, and violates our common, evolving sense of decency. Experts who testified at Pickensg' trial estimated his mental age to be approximately that of a nine year-old child.21 I conclude, therefore, that it is no more acceptable to execute Pickens than it is to execute a nine year-old child.
[ 12 I am hopeful that perhaps the evolution of the law that has occurred since the 5-4 Penry decision will persuade our nation's highest court that our societal standards of decency have indeed evolved and matured to the point that the Court can confidently hold that the execution of the mentally retarded does violate the Eighth Amendment.22 If, as recognized by the Penry majority, it "was well settled at common law that "idiots," as *888well as 'lunaties, were not subject to punishment for criminal acts committed under those incapacities," 23 where "idiocy was understood as 'a defect of understanding from the moment of birth/ "24 it surely cannot violate recognized canons of constitutional interpretation to hold that persons whose understanding is so impaired that they are classified as "mentally retarded" should not be subject to the ultimate penalty.25 If the United States Constitution does not prohibit this barbaric and inhumane practice, I would hold that our State constitution does.
13 I dissent from the Court's affirmance of Pickens' convictions, based upon the non-harmless use of his unconstitationally obtained confession at trial; and from the Court's affirmance of Pickens' capital sentence, based upon the district court's non-harmless allowance into evidence of unconstitutionally obtained confessions from the Tulsa and Creek County cases, and based upon my conclusion that the execution of mentally retarded persons violates both our federal and State constitutions.
. In Pickens I, 1993 OK CR 15, 115, 850 P.2d 328, 333, this Court held that Pickens invoked his Miranda-based right to counsel during a custodial interrogation regarding the Tulsa robbery and shooting for which he was initially arrested (at the Circle K store at 61st and Union}. Pick-ens was later charged and convicted, as part of the same Tulsa case, with a robbery/murder at another Tulsa convenience store, which had been committed some hours earlier. Id. at 331.
. This Court summarized the specific factual circumstances surrounding these two interviews in Pickens 11, 1994 OK CR 74, 11 1-4, 885 P.2d 678, 680-82.
. Id. at 681-82.
. Id. at 682. In addition, the Tenth Circuit Court of Appeals has subsequently held that the admission of this same videotape during the sentencing-phase of Pickens' trial for the Tulsa crimes was likewise a non-harmless violation of his right to counsel, and that court struck down his capital sentence for the Tulsa murder on this basis.
See Pickens v. Gibson, 206 F.3d 988, 995-97 (10th Cir.2000).
. Pickens I, 850 P.2d at 333.
. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 1884-85, 68 LEd.2d 378 ("[Aln accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."); Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (when accused requests counsel during custodial interrogation, police may not re-initiate interrogation, even after counsel has been provided).
. Pickens L, 850 P.2d at 333-34.
. My reasons for rejecting the Court's conclusion that Pickens "re-initiated" communications with the police are articulated in my concurrence in the Tulsa case, which is incorporated herein by *886reference. See id. at 344-46 (Chapel, J., specially concurring).
. See Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 LEd.2d 704 (1988) (suspect in custody who has invoked right to counsel during custodial interrogation on one case cannot be questioned regarding that case or any other case until counsel has been provided).
. Although the Supreme Court held in McNeil v. Wisconsin, 501 U.S. 171,. 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), that an accused's invocation of his Sixth Amendment right to counsel did not likewise invoke his Fifth Amendment (Miranda-based) right to counsel regarding questioning for a separate crime, McNeil did not involve a defendant who had previously invoked his Fifth Amendment right to counsel. Id. at 2206 (noting that accused "did not request an attorney" during his initial custodial interrogation). Consequently, the McNeil Court's conclusion that the Sixth Amendment right to counsel is "offense specific," meaning that the invocation of this right regarding one offense does not affect the ability of police to initiate interrogation regarding other offenses, id. at 2207, does not impact the current analysis. The McNeil Court itself specifically recognized that the Fifth Amendment right to counsel during custodial interrogation and the corresponding "Edwards rule" are "not offense specific." Id. at 2208 {emphasis in original). "Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present." Id. (emphasis in original) (citing Arizona v. Roberson ).
. Id. at 2207.
. The significance of this impact is highlighted by the Tenth Circuit's reversal of Pickens' capital sentence in the Tulsa case, based upon the unconstitutional admission of the (second) Creek County confession. See note 4 supra.
. In United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 LEd.2d 146 (1984), the Supreme Court held that inmates in administrative detention for commission of a crime did not have a Sixth Amendment right to counsel prior to indictment, because formal adversarial proceedings had not yet commenced against them. Id. at 2297-98. The Court reasoned:
It is only at that time "that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecu-torial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law."
Id. at 2298 (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 LEd.2d 411 (1972)). In the case of an accused like Pickens, who has already been formally charged with one crime *887and is about to be charged with another, the government has already committed itself to prosecute; the adverse positions of the government and the accused have already solidified; and the accused is already faced with the prosecutorial forces of organized society and immersed in the intricacies of substantive and procedural criminal law. When Pickens was interrogated without his appointed counsel in Creek County, he was already "in a situation where the results of the confrontation 'might well settle the accused's fate and reduce the trial itself to a mere formality." " Id. (quoting United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 LEd.2d 1149 (1967)). The un-represented confession of Pickens to the Creek County robbery/murder arguably rendered both his Creek County trial and the capital stage of his Tulsa trial "a mere formality." ,
. See Okla. Const., art. II, sect. 20.
. The State does not challenge Pickens' assertion that he is mentally retarded.
. 1999 OK CR 17, 984 P.2d 221.
. Id. at 238.
. 492 U.S. 302, 109 S.Ct. 2934, 2954, 106 L.Ed.2d 256 (1989).
. Four justices dissented in Perry, based upon their conclusion that the Eighth Amendment does prohibit the execution of the mentally retarded. See 109 S.Ct. at 2958-63 (Brennan, J., concurring in part and dissenting in part); id. at 2963 (Stevens, J., concurring in part and dissenting in part). The Supreme Court has recently granted a new petition for certiorari in the Perry case. See Perry v. Johnson, - U.S. --, 121 S.Ct. 563, 148 L.Ed.2d 483 (2000).
. My separate opinion in Lambert, which concludes that Article II, Section 9 of the Oklahoma Constitution prohibits execution of the mentally retarded, is incorporated herein by reference. See Lambert, 984 P.2d at 240-44 (Chapel, J., concurring in part and dissenting in part).
. Although my dissent from the Court's affir-mance of Pickens' convictions does not rely on this fact, the limited mental capacity of Pickens further illustrates his need for counsel as a "medium" between himself and the State. Cf. Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 487, 88 LEd.2d 481 (1985) ('The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a 'medium' between him and the State").
. In Perry, Justice O'Connor's opinion for the Court majority recognized that the Eighth Amendment's prohibition against cruel and un*888usual punishment "recognizes the 'evolving standards of decency that mark the progress of a maturing society."" 109 S.Ct. at 2953 (citations omitted). Her opinion also acknowledged that "[the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures." Id. Hence the Court relied upon the paucity of jurisdictions (two states and the federal government) that had acted to ban execution of the mentally retarded. Id. at 2955. My separate opinion in Lambert catalogs the substantial development of the law in this area since 1989, including the ten additional death-penalty states that have acted to ban the execution of retarded persons, as well as
. Id. at 2953.
. Id. (citation omitted).
. The Perry majority acknowledged that "[in its emphasis on a permanent, congenital mental deficiency, the old common law notion of "idiocy," bears some similarity to the modern definition of mental retardation." 109 S.Ct. at 2954 (citation omitted).