dissenting.
I respectfully dissent. I am unable to agree with the majority opinion because I believe the prosecutor’s statement in closing argument was an impermissible reference to appellant Bronaugh’s failure to testify. While the prosecutor’s statement does not fall within the prohibition of the “direct and certain reference” test, e. g., State v. McNeal, 517 S.W.2d 187 (Mo.App.1974), in my opinion this remark does fall within the parameters of the “indirect reference” test because the words, in context, were reasonably likely to direct the jury’s attention to the fact that appellant did not testify. E. g., State v. Shields, 391 S.W.2d 909, 913 (Mo.1965); State v. Eichelberger, 524 S.W.2d 890, 894 (Mo.App.1975). I distinguish Eichelberger, in which three witnesses testified although the defendant did not, from the present case in which appellant presented no evidence at all. Any prosecutor’s remark in the present case could only reasonably have been taken to refer to appellant’s silence. This observation applies in particular to the last challenged sentence of the prosecutor’s comments insofar as this sentence implies the lack of any personal statement by appellant. Such a reference is exactly that which is prohibited by our constitution and statutes.
Moreover, I am unpersuaded by the state’s argument that the prosecutor’s comments constituted only a reference to the failure of appellant to offer evidence. See, e. g., State v. Pruitt, 479 S.W.2d 785, 789-90 (Mo. banc 1972); State v. Sechrest, 485 S.W.2d 96, 98 (Mo.1972). Nor do I agree that the prosecutor’s remarks in the present case were so ambiguous as were reasonably capable of a meaning other than that which appellant argues so as to eliminate any prejudicial impact. See State v. Hutchinson, 458 S.W.2d 553, 555 (Mo. banc 1970); State v. Jenkins, 516 S.W.2d 522, 528 (Mo. App.1974). Furthermore, in a case such as the present one in which the state’s case was relatively strong1 and appellant offered no evidence, the prosecutor’s comments were not only an impermissible reference to appellant’s constitutionally protected silence but also, in my opinion, strategically unnecessary.
I agree with the majority opinion’s treatment of appellant’s second point. Appellant may not raise this character objection for the first time on appeal or argue a different theory to support an overruled objection. See, e. g., State v. Jones, 515 S.W.2d 504, 506 (Mo.1974); State v. Harper, 553 S.W.2d 895, 897 (Mo.App.1977). Because I disagree with the majority opinion’s conclusion on the first point, however, I would reverse and remand for a new trial.
. The state’s evidence at trial included the testimony of an eyewitness to the robbery, her positive identification of appellant as the robber at a pretrial confrontation some thirty minutes after the robbery and her identification of appellant in court, the testimony of the arresting officer about the arrest of appellant following the broadcast of appellant’s description given by the eyewitness, and certain corroborating physical evidence.
If the majority opinion had based its affirmance upon the fact that the evidence was overwhelming and that the error was harmless, I could have concurred.