¶1dissenting.
¶2I
¶3I respectfully dissent from the majority’s conclusion that the probative value of defendant’s July 28 interview by police outweighed its prejudicial effect. The majority sets forth in its opinion twelve explicit assertions of the fact of defendant’s guilt made by the police during the interview. In Smith v. State, 721 N.E.2d 213, 216 (Ind.1999), we held that two such assertions of fact made by a police detective during a similar interview constituted error. Here, the error seems more severe than in Smith. In this regard, I concur in Justice Boehm’s dissent.
¶4II
¶5I agree with the majority that Ring v. Arizona, — U.S.-, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), renders Bostick’s sentence unconstitutional. I do not agree, however, that life without parole is an option on remand.
¶6After declaring Bostick’s sentence unconstitutional under Ring, the majority opinion says, “If the State proceeds with its life without parole sentencing request, the trial court shall convene a new penalty phase jury and conduct further proceedings pursuant to Ind.Code § 35-50-2-9.” But the jury in Bostick’s case was unable to agree on a sentencing recommendation. Indiana Code § 35-50-2-9 — the statute which sets forth the procedure to be followed in cases in which sentences of death and life without parole are sought — explicitly provides that if the jury is unable to reach a unanimous recommendation, “the court shall discharge the jury and proceed as if the hearing had been to the court *275alone.” Id., § 35 — 50—2—9(f). Thus there is no statutory authority to convene a new penalty phase jury once the original jury has been unable to reach a recommendation.
¶7Unlike O’Connell v. State, 742 N.E.2d 943 (Ind.2001), this is not a situation where there was trial court error in imposing sentence. Rather, the statutory scheme pursuant to which sentencing was imposed violated the Sixth Amendment in this circumstance. On remand, the trial court must both follow the statute (which does not provide for a new penalty phase jury in this circumstance) and follow the Constitution (which, as interpreted by Ring, does not permit the imposition of life without parole in this circumstance).