dissenting.
I.
If one who has been detained for the taking of body samples under Crim.P. 41.1 is given a Miranda warning and thereafter makes incriminating statements, may those statements be used as evidence against him? The majority opinion says no, apparently because the police officer intended to question the defendant when he was in custody for the Crim.P. 41.1 proceeding. I believe the statements to be admissible and therefore respectfully dissent.
In my view, the fact that the police officer may have intended to and did question defendant while in his company for the Crim.P. 41.1 proceeding is not relevant to determining whether the exclusionary rule should be invoked. Instead, the inquiry should be directed at whether there was a proper basis for detaining the defendant under Crim.P. 41.1, and if so, whether the customary Fifth Amendment standards concerning the Miranda warning and the voluntariness of the statements were met before such questioning occurred.
Here, there was probable cause to believe an offense had been committed, there were reasonable grounds to conclude that defendant had committed the offense, and the results of the body fluid tests in this sexual assault case would be of material aid in determining whether the person detained had been involved. Thus, there was a proper basis for detaining defendant. Crim.P. 41.1(c). There is no question but that a proper Miranda warning was given and that no irregularities occurred in the questioning thereafter. Therefore, there being neither a Fourth or Fifth Amendment violation, the defendant’s statements properly were admitted.
I view the majority opinion as holding that if one is being held for tests to be conducted under Crim.P. 41.1, he then enjoys a blanket shield from questioning, and even a voluntary statement made after a Miranda warning may not be used against him. In my view, neither Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) nor People v. Madson, 638 P.2d 18 (Colo.1981) requires such a result. Nor do I perceive any policy reason for according such special status to the post-Miranda voluntary statement of a person lawfully in custody.
II.
I also disagree with the conclusion of the . majority that the trial court improperly limited defendant’s cross-examination of the rebuttal witness. As no prejudice was demonstrated, I perceive no error in the limitation imposed. And, in my view, the prosecutor’s comments that “no wife ever testified” does not constitute reversible error. It cannot be said that the comment shifted the burden of proof to the defendant. The comment was based on an inference drawn from the evidence. It should not lead to reversal. See People v. Todd, 189 Colo. 117, 538 P.2d 433 (1975). See also People v. Medina, 190 Colo. 225, 545 P.2d 702 (1976).
I would affirm the conviction.