dissenting.
I was a member of the original panel which unanimously affirmed the district court’s grant of habeas corpus and adopted the opinion of the district court as the decision of this court. Under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the result seemed clear. This is not true, however, now that we reconsider our judgment in the light of Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), as we have been mandated to do by the Supreme Court. In my opinion the facts in this case, upon consideration in the *749light of Jenkins require a reversal of the district court’s grant of habeas corpus. I therefore respectfully dissent.
When the case was originally before us, under Doyle I entertained the idea that we could not properly say under Chapman v. California, 386 U.S 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that the error was harmless. Now the situation under Jenkins is different and I regard whatever minimal error remains in the prosecutor’s conduct would properly be considered as harmless error.
The majority in Doyle made an express point of the fact that the state was not claiming in the circumstances of that case that the use of the silence for impeachment might have been harmless error. On the assumption that our high court did not needlessly insert superfluous language I take this reference as an indication that, as in any case of a constitutional error, such error may be harmless, dependent upon the circumstances of the particular case. I will refer to those circumstances later.
It must be kept in mind that under Jenkins, if this old case should now be retried, assuming that the Moores and the police officer are still living and are available as witnesses, the prosecution will be free to comment on pre-arrest silence. I feel confident that the prosecution will do so. The jury will know that when the police officer, Melloy, arrived at the scene, Allen did talk to him before a Miranda warning was given, and told him that he had shot his wife and that she was hurt “pretty bad,” and that he did not say anything about having acted in his own defense. The prosecutor would be perfectly free under Jenkins to make comments during final argument to the effect that the natural thing would have been when the officer arrived for Allen to have told the officer that his wife had been after him with a knife and that he had to shoot her. We would not expect him to use terms of art, or that he would tell the policeman in haec verba that he was engaged in self defense, but on the other hand it would be wholly natural and probable if he in fact had been defending himself he would have made some minimal reference to the actual facts of self defense such as, “she came lunging at me with a butcher knife.”
Unfortunately, in the case under review while all of the focus was on the initial contact with Officer Melloy and the conversation that did occur, all of which was before the Miranda warning, the prosecutor’s questions could be considered sufficiently broad to include the post-Miranda period. In reading the transcript one cannot conceive, however, that the jury’s real attention was directed other than at the silence at the time of the first contact by Officer Melloy when it would have been natural for Allen to have blurted out that his wife was after him with a knife. This is similar to the old res gestae situation on the admission of excited utterances. His silence after the Miranda warning would not have been surprising to the jury.
In Jenkins the majority opinion referred to the common law which “traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadbourn rev. 1970).” 447 U.S. at 239, 100 S.Ct. at 2129.
Turning now to the evidence in this case, I do note that there is a possibility of some conflicting evidence on the question of self defense but upon analysis this strikes me as so meager as to make the claim frivolous. It is based principally upon Allen’s own testimony and its only objective fortification is that a few days earlier there had been an incident in which the wife had grabbed a steak knife and at that time and subsequently had made some threats against the defendant. Looking at the incident in question, however, both the testimony of the only living eyewitness other than Allen and the clear conclusions to be drawn from the physical facts completely negate self defense. Without going into detail, the district court’s opinion beginning at page four summarizes the factual situation. I note particularly that Allen shot his wife five times with a handgun, significantly *750inconsistent with self defense, and then tried to shoot her once more as she was lying on the floor. The gun was empty so the corpse was spared an extra round. Allen testified that his wife first attacked him with a butcher knife and that she was injured during that attack. The eyewitness, however, testified that she did not own a butcher knife and did not see a knife on the floor in the kitchen or in the living room. The eyewitness, Mrs. Moore, was Mrs. Allen’s sister-in-law, and one could raise a question as to the objectivity of such a witness. I note, however, that both Mrs. Moore and her husband as defense witnesses, candidly testified as to the threats Mrs. Allen had made against her husband and also as to the steak knife incident. Further, as previously noted, Allen was calm when he talked to Officer Melloy.
The overall evidence to which I have adverted previously presents a powerful case of guilt and it would be indeed a strange jury that would find the claim of self defense on this evidence other than frivolous.
While I think we could reverse on harmless error for the reasons outlined in the evidence of the trial, certainly with the addition of the evidence permitted by Jenkins that Allen did not mention self defense in circumstances in which that fact would naturally be asserted, to wit, at the time the police officer first arrived and Allen was vocal, the guilt was overpowering and the meager, non-specific references to post-Miranda silence are harmless error. Finally, in considering this case under Jenkins, we should do so on the basis that what the jury heard in the first trial as to the failure to claim self defense up to the time of the Miranda warning was proper for it to hear. Insofar as there was evidence of non-proclaiming at a time subsequent to the Miranda warning this was merely cumulative.