(dissenting).
In my opinion the judgment of the trial court should be affirmed.
In State v. Zappia, 8 Ariz.App. 549, 448 P.2d 119 (1968), cert. denied, 396 U.S. 861, 90 S.Ct. 132, 24 L.Ed.2d 113 (1969), this court expressed the view that there is “. . . nothing in Miranda that forbids cross-examination after the *166defendant has taken the stand.” Id. at 552, 448 P.2d 122. The United States Supreme Court has since validated that view. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the court held that a confession which could not be admitted substantively because it did not meet Miranda requirements, could be used to impeach a defendant who had taken the witness stand. The evil which the court sought to check by this reading of Miranda was perjury. Said the court:
“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury,” Id. at 225, 91 S.Ct. at 645.
Admittedly the danger of perjury exists in any criminal case. It therefore cannot justify every admission of impeaching evidence otherwise inadmissible in the state’s case in chief. A test for admission, however, was clearly suggested by Harris:
“It does not follow from Miranda that' evidence inadmissible against an accused in the prosecution’s case' in chief is barred for all purposes, provided of course that the trustworthiness of the evidence ■ satisfies legal standards.” Id. at 224, 91 S.Ct. at 645. (Emphasis added)
The question presented here, then, is more evidentiary than constitutional. It is: does silence constitute trustworthy evidence for purposes of impeaching an alibi?
The majority in this court adopts the view that silence in the face of a Miranda warning is so ambiguous as to render it inadmissible; that in any case silence can be taken equally as supporting an inference that the defendant was fabricating his alibi or that he was relying on his constitutional rights. In Zappia, supra, however, this court suggested a different, and perhaps more pragmatic approach to the problem, i. e., that in some cases:
“The story that the defendant told at the time of trial ... -is one that would, in the normal course of human events, have been immediately blurted out at the scene of this ‘mistakerf’ apprehension, if the apprehension were indeed mistaken.” 8 Ariz.App. at 552, 448 P.2d at 122.
In Zappia, the court reached this judgment on the basis of the defendant’s testimony that he was mistakenly apprehended at the scene of an attempted auto theft, and that he was in the area for other legitimate reasons. The same conclusion could well be reached in the present case, where the defendant testified that he had been in the company of Ruby Robinson at the time of the burglary.
Our supreme court expressed doubt as to the probative value of admissions by silence in the recent case of State v. O’Dell, 108 Ariz. 53, 492 P.2d 1160 (1972). These remarks were made, however, in the context of a case where the prosecution introduced evidence of the defendant’s silence in its case in chief. It must be remembered that impeachment matters go to credibility and do not ordinarily constitute evidence of guilt. A cautionary jury instruction emphasizing this distinction, as was given in Harris, supra, should sufficiently protect the defendant against prejudicial inferences, where the trial judge has determined that allowing the evidence in would provide a valuable aid to the jury in assessing the defendant’s credibility.
The majority’s constitutional objection to the proffered evidence is twofold. First, they reason that if this evidence is deemed admissible, the defendant is forced into the “expensive choice” of ci-ther taking the stand and facing impeachment by his earlier exercise of his right to remain silent, or of not taking the stand and thus possibly prejudicing his defense. In answer to this, it should be noted that the same sort of' quandry faced the defendant in Harris, supra. The court nevertheless held the evidence admissible in that case, reflecting the intelligent judgment that the right to take the stand should not afford a license for perjury.
Second, adopting the language of Justice Black’s concurring opinion in Grunewald v. United States, 353 U.S. 391, 77 *167S.Ct. 963, 1 L.Ed.2d 931 (1957), the majority asserts that it is inconsistent with any reasonable interpretation of the Fifth Amendment to allow a jury to draw inferences on credibility from invocation of a constitutionally protected privilege. Again, however, this is precisely what was done in Harris, supra. The only difference is that in Harris there was no reliance on a constitutionally protected right, as no Miranda warning was given. Here there may have been reliance, as a Miranda warning was given. Whether, in fact, the defendant did rely on the warning, however, is a factual matter properly determinable by the jury. If the defendant claims that he remained silent in reliance upon his constitutional right to do so, then he may so explain this silence to the jury.
Unfortunately, for procedural reasons, it is uncertain as to what extent the above-discussed principles came into play in the jury’s verdict in this case. The defense failed to object to the prosecution’s line of questioning at trial, and the court had no opportunity to either refuse to permit the questioning or correct any error by instructing the jury that the defendant was under no duty to make any statements upon his arrest. Ordinarily errors of any type may not be made the basis for appeal unless a proper objection is made at the time the proof is offered. The recognized exception to this rule—“fundamental error”—does not come into play in this case, as there was nothing inherently prejudicial in the evidence admitted. As held by the Arizona Supreme Court in State v. Martin, 107 Ariz. 444, 489 P.2d 254 (1971), reversal is not mandated by every trespass on constitutional rights.
For the foregoing reasons T would affirm the judgment entered by the trial court.