(dissenting):
I cannot agree with the majority that (1) the police officer’s testimony that after warning the defendant of his constitutional right to remain silent the defendant refused to give the officer his name, in conjunction with (2) possible reference to this testimony by the prosecuting attorney in his closing argument as evidence of the defendant’s guilt, does not constitute fundamental or constitutional error which entitles the defendant to a new trial.
The Supreme Court of the United States, in the landmark decision of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), said the following regarding reference to an arrestee’s exercise of his Fifth Amendment right to remain silent as evidence of his guilt :
“In accord with our decision today, it 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.” 384 U.S. at 468, 86 S.Ct. at 1625, footnote 37.
Thus, I think it is clear that allowing into evidence the police officer’s response that the appellant refused to tell the officer his name after he had been given the Miranda warnings which advised him that he had a right to remain silent was in violation of the appellant’s constitutional rights; reference to this silence during the prosecutor’s closing argument would necessarily compound this violation of the appellant’s rights.
The majority cites two cases to bolster its conclusion that to permit the testimony of an arresting officer to the effect that after the officer had given an arrestee his Miranda warnings the arrestee refused to identify himself is not an invasion of the arrestee’s Fifth Amendment rights. The majority states that in State v. Zaerr, 521 P.2d 1131 (Ariz.1974), a similar claim was presented and rejected. However, that case did not present a similar claim. In Zaerr the defendant was accused of murdering his wife’s grandparents. During the course of his wife’s testimony in which she described what happened when the police were called to her grandparents’ home, the defendant’s wife said that after the police had informed her and her husband of their Miranda rights her husband had said that he wanted to see a lawyer. The prosecuting attorney in his closing argument in that case made no reference to this inadvertent statement. The Supreme Court of Arizona held that, given the context in which the statement was made, a narration by one not a police officer of the events immediately before and immediately after two homicides, the testimony was not a violation of the defendant’s right to remain silent. I do not believe that by its decsion in Zaerr the Supreme Court of Arizona has overruled its earlier decision approving of the holding of State v. Villalobos, 6 Ariz.App. 144, 430 P.2d 723 (1967), that the use of a police officer’s testimony concerning an admission by silence during custodial arrest for the purpose of proving guilt violates the self-incrimination privilege, State v. McAlvain, 104 Ariz. 445, 454 P.2d 987 (1969), cert. denied, 396 U.S. 1023, 90 S.Ct. 597, 24 L.Ed.2d 516 (1970), and that the state may not comment upon admissions by silence which occur while an arrestee is in custody, State v. Simoneau, 98 Ariz. 2, 401 P.2d 404 (1965).
The other case which the majority cites, Ryder v. State, 513 P.2d 593 (Okl.Cr.1973), did indeed hold that it was not error to permit a police officer to testify over objection that at the time the defendant was arrested the defendant refused to give the officer his name. However, the Oklahoma court reaches this decision without citation of authority and without reference to the requirements of Miranda. I believe that Ryder sets forth a minority rule which cannot be reconciled with the requirements *235of Miranda. Furthermore, neither Ryder nor Zaerr is apposite to this case because there is no indication in either of them that in his closing argument the prosecuting attorney drew the jury’s attention to the defendant’s silence.
With regard to the alleged prejudicial comment of the prosecutor in his closing argument, the majority states, ante at page 67, that:
“If, as argued by appellant, prejudicial error lies hidden in the unrecorded portions of counsel’s closing argument, it is nevertheless not before this Court. Rule 37 of this Court permits augmentation of the trial court record upon motion and the granting of such motions has been liberally permitted by this Court. Here, no such augmentation of the record was requested nor have the briefs or oral argument described the precise nature of the alleged objectionable conduct or comment.”
The appellant here argued that the prosecuting attorney made improper references during his closing argument to the fact that the appellant exercised his constitutional right to remain silent. The prosecuting attorney’s closing argument was never recorded by the court reporter, so of course the defendant cannot augment the record with that argument. The majority has found that failure to record to be error. Yet the majority cites the appellant’s failure to augment the record to show the error, which of course it is impossible for the appellant to do, as one of the reasons why it will not consider whether such a reference would be prejudicial error. Furthermore, the majority says that the nature of the objectionable comment was not described in the briefs. I do not agree with that statement. On page 3 of his brief the appellant states the following:
“Appellant’s reliance upon his Fifth Amendment rights was again emphasized in the state’s closing argument without objection.”
This surely apprises the Court of “the precise nature of the alleged objectionable conduct or comment.” Thus, I can accept neither of the majority’s rationales for concluding that comment during the closing argument would not itself constitute prejudicial error.
When this Court is unable to review the proceedings of the lower court because, in violation of the statutes of this state, the record of those proceedings was not properly taken and preserved, and due to the record’s deficiencies we are unable to determine whether a defendant’s judgment of conviction has been obtained in a proceeding tainted with fundamental error, then we must apply the rule of Ebersole v. State, 91 Idaho 630, 428 P.2d 947 (1967), where we stated:
“Appellant’s dilemma was not of his own making. The statutory provisions requiring the recording of oral proceedings by the court reporter . . . are fairly designed ... to protect a defendant from the very situation now before this Court.
“When there is such a breakdown in the application of established procedures, as is reflected by this record, which necessitated resort to the parol evidence of court officials and of the appellant himself to establish what took place in a court of record, there is such a lack of fundamental fairness and deviation from established rules of procedure as to necessitate the conclusion that appellant has not been afforded the protection of the due process clauses of the Constitutions of the United States and this State.” 91 Idaho at 636, 428 P.2d at 953.
Ebersole’s requirements are clear — when no record of certain proceedings before the district court is available, but had a record been available it might have substantiated the defendant’s allegation that there was prejudicial error in those proceedings, a judgment of conviction based upon proceedings cannot be sustained; otherwise, *236the defendant has been denied due process in violation of the Constitution of the United States and of the State of Idaho.
In essence the rule of Ebersole is that in this case we must reach our decision as if the record shows, as the appellant alleges in his brief, that the prosecuting attorney in his closing argument referred to the appellant’s exercise of his Fifth Amendment right to remain silent as evidence of his guilt. To do otherwise would deny him due process of law. In this circumstance,. I would adopt the holding of the Tenth Circuit in United States v. Nolan, 416 F.2d 588 (1969), which said the following in connection with this matter:
“We see no difference in principle in the exercise by the defendant of his constitutional right not to testify and his constitutional right to remain silent and refrain from making either an inculpatory or exculpatory statement to the officers when taken into custody for a federal offense. In either case, the comment [by the prosecutor that the defendant’s failure to make exculpatory statements to the arresting officer was evidence of his guilt] would greatly impair such privilege and penalize the exercise thereof. Apposite is the language of the Supreme Court in Griffin v. California, 380 U.S. 609, at page 614, 85 S.Ct. 1229, at page 1233 [14 L.Ed.2d 106]: ‘It is a penalty imposed * * * for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.’
“We think the error committed was so plain, fundamental, and serious that we should consider it, although timely objection was not made thereto in the trial court.” 416 F.2d at 594 (footnote omitted).
The state courts of Colorado and Kansas have reached similar decisions. People v. Mingo, 509 P.2d 800, 181 Colo. 390 (1973); State v. Ritson, 210 Kan. 760, 504 P.2d 605 (1972). I believe these to be the better reasoned cases and would hold that the admission of the testimony in question and the prosecutor’s comment upon the testimony was fundamental error. Therefore, I would vacate the judgment of conviction and remand for a new trial.
McQUADE, C. J., concurs.