(dissenting).
Minor was convicted by a jury in the state court for armed robbery and murder. The prosecution’s case rested upon an in-court identification of Minor as one of the assailants by Hugh Albright, an eye witness, and testimony of Ronald McGoffney, who testified that he saw Minor near the scene of the crime shortly before it occurred. Minor’s defense consisted of an alibi that he was home asleep at the time of the incident in question. This alibi was corroborated by two of his sisters and an aunt.
Following his conviction, Minor did not take a direct appeal. However, he subsequently filed a motion to vacate the judgment and conviction pursuant to Rule 11.42 Kentucky Rules of Criminal Procedure. This motion was overruled, but a belated appeal was granted.
In his belated appeal, Minor presented two arguments in an effort to reverse his conviction. First, he contended that the evidence presented was insufficient to support the jury’s verdict; and second, he contended that he was prejudiced by the prosecuting attorney’s closing argument which referred to his failure to communicate his alibi story to police at the time of his arrest.
The Kentucky Court of Appeals affirmed the judgment of conviction. Minor v. Kentucky, 478 S.W.2d 716 (Ky. 1971), cert. denied, 409 U.S. 1064, 93 S.Ct. 563, 34 L.Ed.2d 517 (1972), 415 U.S. 929, 94 S.Ct. 1439, 39 L.Ed.2d 487 (1974).
Minor then filed with the District Court a petition for a writ of habeas corpus.
The District Court denied his petition without an evidentiary hearing. Minor appealed to this Court.
Because we were unable to determine whether the District Court had the benefit of the record and transcript of the proceedings in the state courts, we remanded the case for additional proceedings and a determination of petitioner’s rights either based on an examination of the record of the state court proceedings or an evidentiary hearing.
After examining the record of the state court proceedings which it held was adequate, the District Court again denied the petition, concluding that there had not been a deprivation of constitutional rights and that an evidentiary hearing was not required.
We granted Minor’s motion to proceed on appeal in forma pauperis, and his application for a certificate of probable cause. We also appointed counsel.
Minor’s principal claim of error relates to the prosecutor’s cross-examination of him concerning his failure to inform the police about his alibi at the time of his arrest and the prosecutor’s comments thereon in his closing argument.
When Minor learned that the police were looking for him he reported to the police station with his lawyer. Minor was asked if he desired to make a statement and his reply was that his lawyer had advised him not to give a written statement. The record does not show that he was even given Miranda warnings.1
*7The cross-examination by the prosecutor was as follows:
Q. Now, tell this jury, please, if you have ever told between June 28th, 1968 and this good day June 11th, 1969 if you’d ever told the story before to anyone, including the police, that you were home this night asleep.
A. Yes, well, I discussed it with my attorney.
Q. I understand that. I’m asking if you told the police that night when you went to headquarters or if you ever told anyone besides your attorney until this good day that you were at home that night?
Mr. Shobe: I will stipulate, Your Honor, that I advised my client not to discuss this with the police.
Mr. Ousley: Oh, no. Mr. Shobe, I’m not saying anything about you. I’m just asking the question if he told anyone besides his attorney.
The Court: Overruled. I’m going to let the witness answer.
Witness: I hadn’t discussed anything with anyone other than my lawyer.
Mr. Ousley: I understand, that’s what you are telling the jury. You did not tell the police a year ago this story that you’re telling the jury today, did you?
A. No, I . .
Q. On the advice of your attorney. I understand that; correct?
A. Correct.
Q. You never told anyone else; correct?
A. Correct.
In his closing argument to the jury the prosecutor stated:
And here’s something that I do not understand and I’ve been at this game a long time. If you are wanted for a crime you didn’t commit and you knew police were looking for you, any decent, good citizen would go to the police and say, T was at home in bed.’ What happened here? Nearly a year later he comes up with this phony alibi T was at home in bed.’ Now, I submit, think about that. If you were charged with an offense or if I am, or the Judge is, why, the first thing we would do would be to go to the police . . . ‘Mr. Policeman, you’re all wrong. I was at home in bed and my two sisters will tell you that.’ But, oh no, McGoffney, who was down there, told the police he saw two men. The police immediately draw these two mugs. Of course! Good police work. And not until a year later — ‘I’ll tell you nothing’ — not quoting the evidence literally — ‘I’ll tell you nothing. Prove it on me.’ And he told them nothing on the advice of his counsel, and I’m not criticizing counsel, that was proper advice, and a year later — T was home in bed.’ And who says he was home in bed? I’m not going to comment. His good aunt, who, of course, didn’t see him after 10:00 o’clock on the 27th, and his two sisters. Someone is mistaken or not telling the truth.
Minor did not object either to the cross-examination or the prosecutor’s argument to the jury. Under "Kentucky law he is deemed to have waived objection and appellate review is precluded. Minor v. Kentucky, supra. Cf., Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943).
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), after concluding that a defendant had the right to be advised that he could maintain silence in the face of police interrogation, the Court went on to state at 468 n. 37, 86 S.Ct. at. 1625:
[I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf., Griffin v. State of California, 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106] (1965); Malloy v. Hogan, 378 U.S. 1, 8 [84 S.Ct. 1489, 1493, 12 L.Ed.2d 653] (1964) ....
*8Relying on this dictum in Miranda, we held in United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969), that cross-examination and comment, of the sort in question in the present case, were prejudicial error of constitutional magnitude. We stated at 1060:
Brinson’s silence was not offered in evidence as a tacit admission in response to an accusatory statement. Nevertheless, he had the same right to remain silent following his arrest . . Since he had no duty to disclose his defense to any law enforcement officer or prosecuting authority, permitting the inquiry pursued at trial by the United States Attorney was error of constitutional magnitude
Other Circuits reached the same conclusion. E. g., United States v. Semensohn, 421 F.2d 1206 (2nd Cir. 1970); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969); Gillison v. United States, 130 U.S. App.D.C. 215, 399 F.2d 586 (1968).
Respondent argues that our decision in Brinson has been eroded by the decision of the United States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), which held that a defendant could be impeached by prior inconsistent utterances made at the time of arrest, even though the utterances were made before the defendant had been advised of his Miranda rights.
The basis for respondent’s contention is that .Minor’s silence at the time of his arrest was inconsistent with his subsequent alibi testimony, thereby justifying comment on his prior silence for impeachment purposes.
In United States v. Ramirez, 441 F.2d 950 (5th Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113, rehearing denied, 404 U.S. 987, 92 S.Ct. 445, 30 L.Ed.2d 371 (1971), the Fifth Circuit applied the Harris rationale to include the right of the prosecution to impeach the defendant by a prior inconsistent act of remaining silent at the time of arrest. The Ramirez rationale was subsequently followed by the Third Circuit. United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3rd Cir.), cert. denied, 414 U.S. 938, 94 S.Ct. 243, 38 L.Ed.2d 165 (1973); Agnellino v. New Jersey, 493 F.2d 714 (3rd Cir. 1974).
The Ramirez rationale was rejected by the Tenth Circuit and the Circuit Court of Appeals for the District of Columbia. Johnson v. Patterson, 475 F.2d 1066 (10th Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 64, 38 L.Ed.2d 124 (1973); Deats v. Rodriquez, 477 F.2d 1023 (10th Cir. 1973); United States v. Anderson, 162 U.S.App.D.C. 305, 498 F.2d 1038 (1974); United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).
Hale was affirmed by the Supreme Court but not on the ground that there had been a violation of his constitutional rights. The court, exercising its supervisory powers over the administration of justice in the federal courts, held that the cross-examination and comments of the prosecutor concerning Hale’s prior silence constituted prejudicial error.
In a separate concurring opinion, Chief Justice Burger stated:
I cannot escape the conclusion that this case is something of a tempest-in-a-saucer and the court rightly avoids placing the result on constitutional grounds.
The highest court of Kentucky in affirming Minor’s conviction, while not approving the prosecutor’s closing argument to the jury, held that it was not prejudicial error.2
We do not possess supervisory powers over the administration of criminal justice in the Kentucky Courts. We are bound by its decision that the prosecutor’s argument to the jury did not constitute prejudicial error under Kentucky law. Herb v. Pitcairn, 324 U.S. 117, 125-26, 65 S.Ct. 459, 89 L.Ed. 789 (1945).
Brinson did decide the constitutional issue. Brinson was a federal prosecution. Minor is a state prosecution. There is a real conflict in the Circuits on the constitutional issue. The conflict was not resolved in United States v. Hale, supra.
*9It should be pointed out that Miranda has no application to the present case. Here Minor voluntarily went to the police station accompanied by his retained counsel who had advised him not to give any information to the police and he gave them none.
At his trial he voluntarily took the-witness stand to testify as a witness in his own behalf. He testified as to his alibi and the prosecutor cross-examined him in detail on this subject. In particular, he was cross-examined as to why he had not told the police about his alibi at the time of his arrest. He testified that he told no one except his lawyer in the period from the date of his arrest in 1968 until the trial nearly a year later.
A number of states have statutes requiring a defendant in a criminal case to give written notice of his alibi if he intends to use it as a defense at his trial. Kentucky has no such statute.
The Supreme Court held that the privilege against self-incrimination is not violated by a state statute requiring that a defendant give notice of his alibi defense and disclose his alibi witnesses. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). The court noted that some sixteen states had adopted notice requirements and that they were designed to enhance the search for the truth by giving both the state and the defense the opportunity to investigate facts crucial to the issue of guilt or innocence. Cf., United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975).
Minor could have avoided this issue entirely by not taking the witness stand. He could have offered his two sisters and his aunt as witnesses to establish his alibi. The state then could not have offered proof about any inconsistent act or conduct. Oregon v. Hass, 420 U.S. 714, 720-724, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). The trouble is that Minor apparently wanted to testify as a witness in his defense and to impress the jury with his testimony.
When Minor took the witness stand he was subject to cross-examination, the same as any other witness. The state had the right to impeach him by questioning him concerning any act or conduct on his part which was inconsistent with his testimony.
In Oregon v. Hass, supra, the Supreme Court followed Harris v. New York, supra, and held that inculpatory information furnished by a suspect in police custody (en route to the police station) after he had been given Miranda warnings, and had stated that he would like to telephone a lawyer, but was told that this could not be done until they reached the police station, can be used solely for impeachment purposes when the defendant takes the witness stand and gives testimony inconsistent with such information.
Whether Minor’s conduct in remaining silent was inconsistent with his testimony was a question of fact which the trial judge in his discretion could submit to the jury for determination. See United States v. Hale, 422 U.S. at 180, n. 7, 95 S.Ct. 2133.
In 3A Wigmore on Evidence § 1042, the author states under the topic of “(1) Silence, etc., as constituting the impeaching statement.”
A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact.
The Court of Appeals of Kentucky, after holding that the prosecutor’s comments to the jury were not prejudicial, further stated:
The defendant reported to the police three days after the date on which the crime was committed but did not testify until about one year later when his trial was conducted. But on his trial, he voluntarily took the witness stand and testified in his own behalf, thereby waiving his right to remain silent. So the Commonwealth’s argument amounts to no more than to say that instead of giving his alibi to the jury at his trial, appellant should have given it to the police three days after the crime was committed. (Emphasis added.)
Furthermore, the appellant made no objection to that part of the argument *10of the prosecuting attorney which pertained to his failure to go to the police and promptly report his alibi. Neither did the appellant move the court for a mistrial. Under these circumstances, we do not find that the appellant made sufficient objection on the trial to authorize appellate review. Wise v. Kentucky Home Mutual Life Insurance Co., Ky., 420 S.W.2d 573 (1967).
Considering the argument from both angles, we do not think it was prejudicial to the substantial rights of the appellant.
Kentucky has the right to provide for the manner of appellate review for cases tried in its courts and the consequences for failure to follow its required procedures. It is not the function of federal courts to review state court appellate procedures. Fed.R.Crim.P. Rule 52(b) has no application to state prosecution.
As we have previously pointed out, the rulings of the federal courts have been conflicting on the issue of self-incrimination.
In Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), Mr. Justice Stone who wrote the opinion for the court stated:
The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf, and not for those who do.
The court held that when the defendant became a witness he waived his Fifth Amendment rights.
It has been claimed that Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943), has overruled Raffel but I do not so read it. Johnson did hold that the withdrawal of an exception to the prosecutor’s argument operated as a waiver of objection. This is equivalent to not making any objection, which is what happened here. Johnson conforms to Kentucky law.
Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), distinguished Raffel and focused on the question whether there was any inconsistency between the refusal of the defendant to answer questions before the Grand Jury and his testimony at the trial. As we have stated, this was an issue which the state court in the present case determined adversely to Minor.
Finally, in United States v. Hale, supra, these authorities are further analyzed with the result that the Court declined to pass upon the constitutional issue and ruled that under its supervisory powers the inquiry into Hale’s silence constituted prejudicial error.
The Kentucky Court of Appeals had the right to decide whether the comments of the prosecutor constituted prejudicial error under Kentucky law and also whether the issue was properly before the court for appellate review. I find no error of constitutional dimensions in the decision of the Court of Appeals of Kentucky which held that the issue was not properly before the court for appellate review or in its failure to find prejudicial error in the argument of the prosecutor. Where the decision of the state court rests in part on adequate and independent state grounds the federal courts are not privileged to review it. Herb v. Pitcairn, 324 U.S. 117, 125-26, 65 S.Ct. 459, 89 L.Ed. 789 (1945); Oregon v. Hass, supra, dissenting opinion of Justice Marshall.
The overwhelming evidence in this case supports the jury verdict of guilty of murder and robbery. In my opinion Minor received a fair trial. He also received appellate review of his conviction by Kentucky’s highest court, which held:
Minor voluntarily took the witness stand and testified in his own behalf thereby waiving his right to remain silent .
Cf., Raffel v. United States, supra.
Minor was subject to cross-examination about his acts and conduct, the same as any other witness. The Kentucky Court was also within its rights in holding that Minor, by his failure to object at the trial, either to the cross-examination or to the prosecutor’s argument to the jury, was not entitled to appellate review.
*11In my opinion federal intervention is this case by the writ of habeas corpus is not authorized. The District Judge properly denied the writ, and I would affirm.
. Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Apparently no question was raised in Kentucky’s Court of Appeals about the cross-examination of Minor on this issue.