dissenting.
I agree with the majority opinion in all respects except as to the effect of the prosecutor’s cross-examining of appellant concerning his post-arrest silence. As to it I feel that Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and Minor v. Black, 527 F.2d 1 (6th Cir. 1975), cert, denied, 427 U.S. 904, 96 S.Ct. 3189, 49 L.Ed.2d 1198 (1976), require us to hold (rather than assume) that appellant’s constitutional rights were abused.
Although this was a particularly brutal murder, and most of the facts concerning it were undisputed, the identity of the killers was in sharp dispute. Both co-defendants absolutely denied their involvement and presented alibi witnesses. The jury acquitted the co-defendant while convicting appellant.
Proof of appellant’s guilt rested solely upon the testimony of the surviving victim. While I recognize the opportunity he had to observe the killers and his positive identification of appellant, there is still the problem that this was identification of a total stranger in the midst of a violent crime. Such identification, despite complete good faith of the witness, can be mistaken. See United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Webb v. Havener, 549 F.2d 1081, 1086 (6th Cir. 1977); United States v. Russell, 532 F.2d 1063, 1066 (6th Cir. 1976); E. Borchard, Convicting The Innocent (1932).
I find it impossible to join in holding that the prosecutor’s questioning appellant about his failure to tell the police his alibi (when he had a clear constitutional right to remain silent) represented harmless error beyond reasonable doubt.