¶1Dissenting Opinion
¶2When, in a criminal or civil trial a witness is asked whether or not he made a certain statement, and answers in the negative or that he does not remember making that statement, no evidence of the facts asserted in the statement has been heard. And when, in a criminal trial, a prosecution witness merely affirms making the statement without also affirming the truth of the facts asserted in the statement, no evidence of the facts asserted in the statement has been heard, which can serve to carry the State’s burden to prove a prima facie case. Crucial evidence against the appellant Rogers, which identified him as one of the two men who committed the crime, placed him in the back seat of the getaway car with the appellant Reed, and described him as leaving the car with Reed to rob a man on the street and returning to the car with Reed on the run after several shots were heard fired. This crucial evidence against Rogers came before the jury in the form of a prior statement, given to the *326police by the State’s witness Person long before the trial, and which statement was read verbatim by the prosecutor before the jury in a long series of questions which took the form of: Were you asked this question . . . and did you give this answer. . . . The witness Person affirmed giving some of the answers which contained assertions of fact incriminating Rogers, and denied giving others, while, on the witness stand he affirmed the truth of none of these factual assertions pertaining to Rogers contained in the prior questions and answers. Since the witness Person did not affirm the truth of the former statement nor the truth of the facts contained in it, his testimony admitting and denying his former statement is not evidence proving those facts. Such testimony is simply incompetent and unfit for the purpose of proving the facts asserted in the statements.
¶3• The questions of the prosecutor described above were clearly posed in the impeachment mode. The record shows that the prosecutor demanded and received only “yes” and “no” answers to his leading questions. After asking this series of leading questions and receiving yes and no answers, the prosecutor promptly ended his examination. Thus the leading questions did not refresh the recollection of the witness nor did it cause him to correct any of his testimony. The purpose of permitting leading questions to be put to the forgetful or recalcitrant witness is to refresh his recollection or to cause him to correct his testimony. Neville v. U.S. (5th Cir., 1959), 272 F. 2d 414; Hickory v. U.S. (1894), 151 U.S. 303, 14 S. Ct. 334, 38 L. Ed. 170; Conway v. State (1888), 118 Ind. 482, 21 N.E. 285. The leading questions here were not permitted to serve this purpose which legitimates their use and the discretion of the trial court in permitting them. This case is an example of how the misuse of leading questions can subvert the fairness of a trial.
¶4I would hold in this case, that when a series of leading questions of this nature is asked, and they do not in fact refresh recollection or cause a correction of testimony, the *327opposing party in the suit is entitled to an immediate instruction to the jury that such questions are not to be considered substantive evidence. In the case on appeal counsel moved for such an immediate instruction to the jury, but the trial court denied the motion. Because of this erroneous ruling, I vote to grant appellant Rogers a new trial. This remedy is not new or unusual in the law. It is the same technique utilized in cases where prior inconsistent statements are admitted for the purpose of impeachment. Glover v. State (1970), 253 Ind. 536, 255 N.E.2d 657; McAdams v. State (1948), 226 Ind 403, 81 N.E.2d 671; Parker v. State (1925), 196 Ind. 534; 149 N.E. 59; Bridges v. Wixon (1945), 326 U.S. 135, 65 S. Ct. 1443, 89 L. Ed. 2103. And this same remedy was deemed proper where an illiterate witness’ testimony before a coroner’s jury was read to him by the prosecution for purposes of refreshing recollection. Harvey v. State (1872), 40 Ind. 516. And this procedure has been incorporated in Rule 106 of the Proposed Rules of Evidence for the United States District Courts and Magistrates, 1971 Revised Draft. That rule provides:
“When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”
¶5I would also grant the appellant Reed a new trial because the incriminating statement which he gave to Officer Bravos of the Gary Police while enroute on January 6, from Ohio to Gary, Indiana, was erroneously admitted in evidence. Officer Bravos testified that he went to Ohio to transport the appellant Reed back to Gary, and he arrived in Ohio on January 4, and sought to question Reed who was in the custody of the Ohio police. Under questioning by the prosecuting attorney Officer Bravos testified as follows:
“Q. Now, you said you had a conversation with the Defendant on that day, namely, January 4th, 1972, at 6 o’clock, p.m., is that right?
*328A. At that time, yes.
* ❖ #
Q. What questions did you first ask him?
A. I .asked him if he had been advised of his rights and he stated yes and that he knew his rights.
Q. After that, you didn’t advise him of his rights?
A. Then I advised him of his rights and I pulled out my book and I advised him of his rights again.
…
Q. And then what did he say to you, Officer ?
A. He stated that he didn’t want to talk about the case, that he wanted to get back to Gary and get it over with.
Q. Enroute to the Gary, Lake County area, did you again have a conversation with him in the car?
A. Yes, we were talking in the car.
Q. Did he mention anything about this case to you ?
A. Yes, he stated that he got out of the car to rob a man and there was a shootout, a shootout started, and he threw the gun as he turned around and he still kept on running.
…
Q. So it was two (2) days later, after, driving to Gary without advising the Defendant of his rights, as to casual conversations with him in the car, that he made this statement to you ?
A. I did not advise him of his rights on January 6th, I felt on January 4th was sufficient.”
¶6Thereafter defense counsel moved to strike the conversation because of a failure to comply with Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. Once the appellant told Officer Bravos that he did not want to talk about the case, the officer was under a constitutional duty to respect that decision and not to converse with the appellant on that subject. In Mirandait is stated:
“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. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” (Emphasis added.) 384 U.S. at 473-474.
¶7*329Under these circumstances, I do not believe that the fact that appellant Reed gave this incriminating statement establishes that appellant voluntarily and intelligently waived his right to remain silent. Dickerson v. State (1972), 257 Ind. 562, 276 N.E.2d 845; Nacoff v. State (1971), 256 Ind. 97, 267 N.E.2d 165; Mims v. State (1970), 255 Ind. 37, 262 N.E.2d 638; Hall v. State (1970), 255 Ind. 606, 266 N.E.2d 16. The erroneous admission of the second incriminating statement was also not harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705; Kotteakos v. U.S. (1946), 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557; Vasquez v. State (1970), 254 Ind. 472, 260 N.E.2d 779; Goodloe v. State (1969), 253 Ind. 270, 252 N.E.2d 788; Greer v. State (1969), 252 Ind. 20, 245 N.E.2d 158. In the first statement given to Ohio authorities appellant stated that it was his companion who shot the victim of the robbery. It was not until the second statement that he admitted being armed during the robbery. This added fact obviously had substantial influence upon the acceptance by the jury of the State’s factual theory which was that the appellant Reed actually shot the victim. As such the erroneous admission of the second statement cannot be considered harmless constitutional error.
¶8Note.—Reported at 315 N.E.2d 707.