concurring in part and dissenting in part.
I concur with the majority’s conclusion that Butler exhausted his remedies in state court and that Rose v. Lundy, - U.S. -, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) does not bar our consideration of his claims. However, I dissent from the majority’s conclusion that the prosecutorial statements at issue here did not constitute impermissible comments on Butler’s failure to testify.
The majority recognizes that the controlling test in the instant ease is whether the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. Ante at 1170. And the majority properly notes that such a determination requires “a probing analysis” of the context of the comment, including the likely effect of any curative instructions. United States v. Robinson, 651 F.2d 1188, 1197 (6th Cir.), cert. denied, 454 U.S. 875, 102 S.Ct. 351, 70 L.Ed.2d 183 (1981).
*1178The majority errs, however, in holding that the instant case is controlled by Lockett v. Ohio, 438 U.S. 586, 588, 98 S.Ct. 2954, 2956, 57 L.Ed.2d 973 (1978). Lockett held that a prosecutor’s closing references to the State’s evidence as “uncontradicted” did not impermissibly comment on Lockett’s failure to testify where defense counsel “had clearly focused the jury’s attention on [Lockett’s] silence.” 438 U.S. at 595, 98 S.Ct. at 2959: The Supreme Court relied on two factors: (1) defense counsel had outlined in his opening statement a detailed “contemplated defense” in the nature of an alibi; and (2) defense counsel stated “to the court and the jury near the close of the case that Lockett would be the ‘next witness,’ ” when in fact she did not testify. Unlike the majority, I cannot find that these factors are present in the instant case.
Clearly the more important of the two factors in Lockett was defense counsel’s statement near the close of the case that Lockett would testify. In its strained attempt to find an analogous remark in the instant case, the majority relies on statements made by defense counsel during voir dire. These statements, however, were ambiguous in nature, were distant in time from the prosecutor’s closing argument, and were made for a different purpose than the statement relied upon in Lockett.
The majority states that Butler’s counsel “advised the jury that it would be Butler who would provide proof that force was not used.” Ante at 1173. However, defense counsel actually stated as follows:
You will find that the actual act of sex will not be denied. Mr. Butler will indicate to you, as the proof comes in later, that there was nothing forceful in this at all.
This statement is ambiguous, to say the least. It may fairly be read to mean only that Mr. Butler would present a defense. Such a defense could seek to demonstrate, simply by cross-examination of the State’s witnesses, that there was nothing forceful about the act of sex. Furthermore, this ambiguous statement was not even heard by the entire jury. The transcript of the jury selection reveals that three jurors were excused and replaced after the above statement was made.
Similarly, it is misleading for the majority to baldly state that defense counsel “told the jury that he expected Butler to testify.” Ante at 1171. Again, the remark relied upon by the majority was made during a lengthy voir dire. Moreover, the remark was made in the context of an inquiry whether the jury members would weigh against Butler a decision not to testify. Thus the remark, taken in context, was not a representation that Butler, would testify, but rather an indication that he might not. Furthermore, this statement, too, was not heard by the entire jury; two jurors were excused and replaced after the statement was made.
Both of these statements are a far cry from the situation in Lockett, where the defense counsel unequivocally stated “near the close of the case” that the defendant would be the “next witness.” Under the majority’s view, common and casual remarks made by defense counsel during voir dire would inadvertently confer a license upon the prosecutor to repeatedly allude to defendant’s failure to testify by remarking upon the “uncontradicted” and “uncontested” nature of the State’s evidence. Such an approach unconscionably penalizes a defendant for an innocent choice of words by his counsel.
I also disagree that this case can be analogized to Lockett because in both cases the jury was “promised a defense.” 438 U.S. at 595, 98 S.Ct. at 2959. In Lockett, defense counsel outlined a detailed “version of the events” in the nature of an alibi. 438 U.S. at 592, 98 S.Ct. at 2958. The failure of the defense to introduce testimony in support of this version of the events, in conjunction with defense counsel’s later statement that Lockett would be the next witness, focused the jury’s attention on her silence. Butler’s counsel, however, did not outline a detailed alibi which needed positive testimony to support it. Rather, he simply indicated that the admitted act of sexual intercourse did not occur against the will of the com*1179plainant. I therefore am at a loss to understand the majority’s assertion that “[t]his is not a case where a defendant merely pled not guilty and relied on the presumption of innocence.” Ante at 1173. Consent is not an affirmative defense which the defendant has the burden to establish by the testimony of himself or others. Rather, lack of consent is an element of the crime which the State must prove beyond a reasonable doubt. Tenn.Code Ann. § 39-3705(a)(l).
Accordingly, Butler’s counsel, by raising the issue of consent, did not thereby promise testimony from Butler. The promise of a defense in the instant case, unlike that in Lockett, could be and was fulfilled by cross-examination of the State’s witnesses. The majority has taken the “promise of a defense” factor of Lockett wholly out of context in order to apply it to the instant case. Of course, it would be the rare defense counsel who would not in some sense of the phrase “promise a defense,” but rather would simply have his client plead not guilty and simply inform the jury of the defendant’s reliance upon the presumption of innocence, without even cross-examination of the State’s witnesses.
Finding Lockett inapplicable to the instant case, I would affirm the district court’s conclusion that the prosecutor’s comments were manifestly intended to convey or were of such character that the jury would naturally and necessarily take them to be a comment on Butler’s failure to testify. In a case such as this, where the defendant is the only person who could present evidence to contradict the State’s case, a comment that evidence is “uncontradicted” is impermissible. United States v. Robinson, 651 F.2d 1188 (6th Cir. 1981); United States v. Handman, 447 F.2d 853 (7th Cir. 1971); Desmond v. United States, 345 F.2d 225 (1st Cir. 1965).
Especially in a case such as this, where the potential for prejudice is great, a court must be meticulous in protecting the defendant and the jury from sly and subtle inferences which may inflame or improperly influence the jury. Here the court did not give an effective curative instruction, but rather delegated to the prosecutor — the transgressor — the duty to make clear the defendant’s right to remain silent. Of course, the prosecutor did no such thing, but rather switched his argument to another subject, only to conclude his rebuttal with one more comment on the absence of any testimony which contradicted the State’s case.1
The prosecutor’s repeated references to Butler’s failure to present proof in support of his defense brought home to the jury the notion that, because the defendant did not testify, his defense must have been without merit. This argument runs roughshod over Butler’s constitutional privilege not to testify. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Therefore, I would affirm the judgment of the district court.
. After the two remarks objected to by Butler, and after the ineffective curative instruction by the trial court, the prosecutor at the conclusion of his rebuttal stated as follows:
Everything, every bit of evidence went to support what Jean Hudson said had happened. No, no evidence has gone to show that Jean Hudson is not telling you the absolute truth in this case. You have a decision to make. You can say, Jean Hudson, we don’t believe that you are telling the truth. There is nothing to contradict you. But we are just not going to believe you.