specially concurring, joined by ROONEY, Chief Justice.
I agree with the majority that this case must be reversed; however, I disagree with the rule of law established in the majority opinion. I do not believe overruling Richter v. State, Wyo., 642 P.2d 1269 (1982) is warranted, and it is unnecessary *226in the reversal of this case. In Richter we said:
“Here, the prosecutor asked Ronald Richter whether he volunteered his version of the events upon his arrest to the police. An objection was immediately made and sustained. The jury was not thereafter told whether he did or did not tell the police anything. Further, the jurors were instructed to disregard the question. No mention of the question was again made. The matter of silence was not exploited by the State. Since it was one isolated comment which was ambiguous, and since the evidence of appellant’s guilt was overwhelming, we believe it is appropriate in this case to uphold the trial court’s determination not to grant a mistrial. We firmly believe that there was no reasonable possibility that the error made any difference in the outcome of the trial. Accordingly we hold that the rule of harmless error is available and that in this case the error was harmless beyond a reasonable doubt. * * * ” Richter v. State, supra, at 1275.
Here, the prosecutor persisted in referring to appellant’s silence. There were five questions on cross-examination and two on direct examination, all focusing on appellant’s silence or his failure to tell the officers of his self-defense theory. The questions were not ambiguous, and, in fact, elicited answers. In contrast to Richter v. State, supra, the prosecutor here exploited appellant’s silence by referring to it in his summation, and no corrective instruction was given. I do not view the evidence of guilt to be overwhelming; in fact, it was rather thin. I believe that the errors in this case fall within the plain error doctrine, and meet the three criteria required by Browder v. State, Wyo., 639 P.2d 889 (1982); and Hampton v. State, Wyo., 558 P.2d 504 (1977). The record clearly shows what happened at trial. Appellant’s right to remain silent under the fifth amendment of the United States Constitution was clearly violated, and he was not afforded due process of law. The errors adversely affected a substantial right of appellant.
In Richter we said, “There is no reasonable possibility that the error made any difference in the outcome of the trial * * * and that * * * the error was harmless beyond a reasonable doubt.” Here, because of the prosecutor’s persistent reference to appellant’s silence and the lack of overwhelming evidence, I cannot say that the error was harmless beyond a reasonable doubt, and would, therefore, agree that the ease be reversed. However, I would not disturb the rule of law in Richter.
In Richter v. State, supra, a fair, reasonable and balanced rule of law was adopted:
“In light of this overwhelming weight of authority, one must question this court’s adherence to the rule that violation of Doyle is always prejudicial per se. Where there was but one comment at trial to the fact of defendant’s silence, even though the comment was ambiguous and the evidence of guilt was overwhelming, it makes no sense to reverse a conviction. The expense to the State is substantial, not only in monetary terms, but also in terms of the amount of confidence members of society possess in the system’s ability to dole out justice and protect the law-abiding citizenry. The constitutional right to silence must and should be jealously guarded; but, it is self-defeating to refuse to recognize error as harmless when it is.” Id., at 1275.
In its eagerness to reverse this case, the majority used it as a vehicle to overrule Richter. Under the law of this case as carefully crafted by the majority, mistrials and reversals will result. No allowance is made for the ambiguous, innocuous or inadvertent allusion to a defendant’s silence. Any harmless reference to silence now results in a mistrial or reversal.
The majority’s zeal to reverse is evident and its flimsy rationale for its far-reaching holding is set out early in the opinion as follows:
“This interrogation and these remarks by the prosecutor lead unfailingly to the conclusion that little if any attention has been paid to that which this court has said about respecting the constitutional *227right of the citizen-accused to not have his silence called to the jury’s attention. Since we overruled Clenin v. State, Wyo., 573 P.2d 844 (1978) in Richter v. State, Wyo., 642 P.2d 1269 (1982), where we held that such violations were not necessarily prejudicial and, under some fact situations, constitute harmless error, our attention has been called to far too many instances where prosecutors seem to be playing ‘Russian roulette’ with this impermissible practice. The game seems to be that prosecutors will take the chance and ask about or comment upon silence even though they know that these interrogations are impermissible as being in violation of the defendant’s Fifth Amendment rights to the federal constitution and his Art. 1, § 11, Wyoming constitutional rights — on the theory that the supreme court will, in all probability, hold the error to be harmless. (Footnotes omitted.)
“No more.”
The majority must be privy to some information that I am not aware of. I have not heard of “many instances where prosecutors seem to be playing ‘Russian roulette’ with this impermissible practice.” Unless the majority knows something I do not know, the conclusion that prosecutors pay little, if any, attention to what this court said about constitutional rights is unwarranted and unfair to prosecutors.
I would reverse this case, but not adopt an inflexible rule of prejudice per se for harmless reference to a defendant’s silence.