DISSENTING
White, J.I do not agree with part III of the majority opinion which holds that a remark made by the prosecutor in his rebuttal argument is “too remote to justify reversal,” nor do I agree that the remark was invited.
When the prosecutor, in his final argument, told the jurors that “only the defendant would know what happened to that knife” he certainly reminded them that the defendant had not testified. They may even have understood it as a broader implication that defendant did not take the stand because he could not testify without incriminating himself. At any rate, his statement qualified as an impermissible comment on Phillips’ failure to testify in his own behalf under the test laid down by the Indiana *578Supreme Court in Rowley v. State (1975), 259 Ind. 209, 213, 285 N.E.2d 646, 648: “A comment made by a prosecuting attorney, directly or indirectly, which is subject to interpretation by a jury as a comment upon failure of a defendant to testify has been strictly regarded as an impingement on the substantial rights of the defendant.” (My emphasis.)
The Indiana Supreme Court adopted the Rowley test from Williams v. Wainwright (CA 5, 1969), 416 F.2d 1042, preferring it to a “strict test” laid down in United States ex rel. Leak v. Follette (CA 2, 1969), 418 F.2d 1266, 1269, and saying, “We prefer the test which does not in such an obvious fashion place the burden on the accused to show that the jury necessarily took the comment to be related to his failure to take the stand.” The Rowley court made this choice even though it held that the comment then before it was impermissible “[ujnder either of these tests.” Thus the majority opinion errs in suggesting that because the prosecutor’s remark here was not as direct a reference as in Rowley to defendant’s failure to testify it does not meet the Rowley test. Rowley itself says that the prosecutor’s remark need not be that direct. It need only be direct enough that it “is subject to interpretation by the jury as a comment upon failure of a defendant to testify.” Certainly this comment was subject to that interpretation regardless of whether one guesses the jury did or did not so interpret it.
To suggest, as does the majority opinion, that if the prosecutor’s remark is error it is nevertheless excusable because it was invited, is to say that whenever a defendant’s attorney tells the jury that the State has offered no evidence on some facet of the case he considers significant to the question of whether the State has proved its case, he thereby invites the prosecutor to reply that the defendant could have supplied the answer. Were that true the attorney for a defendant who had not testified could never argue that the State had failed to prove some material element of its case beyond a reasonable doubt without subjecting his client’s silence to prosecutorial comment. I am aware of no authority for attaching such a condition to legitimate final argument.
*579The case of Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843, 848, attaches no such condition. There the defendant’s attorney, in his closing argument, went beyond arguing that the State had failed to prove its case and embarked upon an attempted justification of defendant’s failure to testify. Referring to a State’s witness, he said:
“ ‘And they want you to take his word against Abel Maldonado’s. Abel Maldonado didn’t testify. The law says to keep that out of your mind. You can’t do it. You can’t go back in that jury room and forget that Abel Maldonado did not testify. As hard as you try, you can’t do it. What does he have to testify for? It’s not his burden. He doesn’t have to prove anything to you.’ ” (355 N.E.2d at 848.)
Thus, as the court noted “appellant himself injected the subject of his own silence into the trial”. (Ibid.) In the case at bar, however, Phillips’ attorney’s argument that the State had failed to produce the knife was not a reference to Phillips’ silence. The prosecutor injected that subject when he charged that only Phillips knew where the knife was.
I would reverse and remand with instructions to grant a new trial.
NOTE — Reported at 369 N.E.2d 434.