concurring in part and dissenting in part.
I concur in the court’s holding that the victim’s comment does not satisfy the first factor in Spalla v. Foltz, 788 F.2d 400 (6th Cir.), cert. denied, 479 U.S. 935, 107 S.Ct. 410, 93 L.Ed.2d 362 (1986).
With respect to the second comment by the prosecutor, I agree with the court’s Maupin analysis. However, I do not agree that we should follow the rules taken from the Second Circuit’s opinion in Martinez v. Harris, 675 F.2d 51 (2d Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982).
In his brief to the Kentucky Supreme Court, Bagby challenged four separate comments made by the prosecutor during closing argument. In its responsive brief, the state argued that each of the four comments was not properly before the Court because of a failure to object at trial. The state then argued in the alternative that there was, in any case, no merit to Bagby’s challenge. In these circumstances, it is impossible for us to know whether the Kentucky Supreme Court held as a matter of state law that it could not review the claim now before this Court because of Bagby’s procedural default.
There is dicta in Raper v. Mintzes, 706 F.2d 161 (6th Cir.1983) that appears to create a presumption to the contrary (“if the prosecutor argued in the alternative, the federal court may assume that the state court did not rely solely on the merits unless it says so,” 706 F.2d at 164.) However, the Raper court was merely describing the standard set forth in Martinez, where the Second Circuit explicitly limited the applicability of its rule to silence on the part of the Appellate Division of the New York Supreme Court, an intermediate appellate court. The basis of the rule was the fact that the Appellate Division does not routinely invoke the discretionary jurisdictional basis on which a decision on the merits might be based. Id. at 54 & n. 5.
Subsequent to Raper, we held that the fact that the state prosecutor argued in the alternative to the state appellate court which then disposed of the issue in an ambiguous manner does not invariably indicate that the state has relied on the procedural default as independent and adequate state grounds to affirm the conviction. Meeks v. Bergen, 749 F.2d 322, 326 (6th Cir.1984) (“absent any indication from the Michigan Supreme Court that it was relying upon a procedural default ... the district court correctly determined that the state court did not rely upon the alleged procedural default.”)
A later panel of this Court declined to follow Meeks, believing that the dicta in Raper should have controlled. Gilbert v. Parke, 763 F.2d 821, 824-25 (6th Cir.1985). Because the basis of the Raper standard, the Second Circuit’s Martinez decision, cannot be applied to the silence of a state appellate court without considering the particular jurisdictional and procedural context *1350in which that court operates, I believe that Meeks correctly applies Raper and Gilbert does not. See also Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981) (when state court arguably relies on both procedural and substantive grounds for denial of petitioner’s claim, federal habeas court must determine whether failure to comply with contemporaneous objection rule was "a substantial basis” of the state court’s denial.)
I, therefore, turn to the merits of this claim. In this Circuit, we have rejected a rule that would treat any comment as to the uncontradicted nature of evidence, when only the defendant could have provided the contrary evidence, as an automatic violation of Griffin requiring reversal, Butler v. Rose, 686 F.2d 1163 (6th Cir.1982) (en banc). Instead, we have required,“a probing analysis of the context of the comment,” id. at 1171, quoting 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), in order to determine “[wjhether the language used was manifestly intended to be and 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,” Butler, 686 F.2d at 1170. We have since made it clear that the determination of the constitutionality of an indirect comment on a defendant’s refusal to testify, as was the case here, requires consideration of the following four factors:
(1) whether “the comments were ‘manifestly intended’ to reflect the accused’s silence or of such a character” that they would “naturally and necessarily” be understood as such by the jury;
(2) whether the remarks were isolated or extensive;
(3) whether the evidence of guilt was otherwise overwhelming;
(4) whether curative instructions were given, and when. See Spalla, 788 F.2d at 404 (emphasis in original). See generally Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir.1979).
Although the Spalla court did not say so explicitly, it is apparent that the first of these factors is to determine whether any constitutional violation has occurred at all, while the last three are directed at the question of whether any such error is harmless beyond a reasonable doubt, an issue on which the prosecution bears the burden of proof, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also Eberhardt, 605 F.2d at 279 (not enough for reviewing court to feel that the evidence is strong and that the defendant probably would have been convicted anyway).
The comment here came in the prosecutor’s rebuttal of defense counsel’s argument. Defense counsel argued that there was circumstantial evidence and other evidence which disputed the victim’s testimony. He argued, for example, that there were no cuts on the defendant or blood or damage to his clothing from breaking and going through the storm window. He noted that the victim had only a cut on her toe from the broken glass; she had no bruises, no semen was found and no pubic hair. He noted that defendant was arrested the next morning sound asleep but did not have the driver’s license on him. Also, although they took some of his clothing, they didn’t take his blue jeans to be tested, nor did they take the victim’s panties, and where are they? He also argued that Detective Hardin went out and took pictures of the defendant. Why did he do that if the victim had already identified defendant from pictures? When the prosecutor responded, he pointed out that the victim’s testimony at the preliminary hearing matched her testimony at the trial. He noted the deputy sheriff’s testimony that defendant had said he hadn’t done it when he was arrested, not that no rape had occurred. There was also reference in the final argument to blackouts which a psychiatrist testified defendant had complained of. The defendant’s statements to the psychiatrist could have disputed the victim’s testimony; they apparently didn’t.
Given the context in which they were made, the comments were neither manifestly intended to reflect the accused’s silence nor would they “naturally and necessarily” be understood as such by the jury. It is equally plausible that the prosecution was *1351pointing out that the circumstantial evidence on which defendant’s counsel had relied in this argument did not contradict the victim’s testimony. The victim’s earlier statements did not contradict it, defendant’s statements at the time of the arrest did not, nor did his statements to the psychiatrist. See United States v. Robinson, 651 F.2d 1188 (6th Cir.1981).
Finally, I disagree with the majority that there was evidence of sexual abuse as distinct from rape. The evidence on which the majority relies indicates only the lack of injury or supports the conclusion that the assailant failed to ejaculate. It does not indicate the absence of any element of first degree rape. The victim testified that defendant had twice forced her to have sexual intercourse and that penetration occurred both times. To allow the jury to conclude that defendant had had forcible sexual contact with the victim but had not raped her would be to permit a verdict to be based on speculation. There is no basis for accepting the victim’s testimony regarding the entire event and rejecting the testimony about penetration. The Kentucky trial court therefore did not violate federal constitutional law when it followed state law and refused defendant’s requested instruction.