specially concurring, with whom BROWN, Justice, joins.
I concur in the result reached by the majority opinion because I believe that any comment by the prosecuting attorney concerning appellant’s exercise of his right to silence was harmless.
The majority opinion again rejects the rationale of Richter v. State, Wyo., 642 P.2d 1269 (1982), and directs a return to that of Clenin v. State, Wyo., 573 P.2d 844 (1978), which held that any comment on silence was prejudice per se. Here the majority opinion affirms the district court on the conjecture that the comment was not one on appellant’s silence.
To attempt to draw a line between no comment and a comment on the basis set forth in the majority opinion, i.e., whether or not the comment was
“ ‘manifestly intended to be a comment upon the failure of the accused to testify,’ or 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,’ ”
is far more difficult — even approaching impracticability — than using the time honored standard of determining whether or not the comment was harmless. The mental process in resolving the status of the comment will find more precedent in the latter case. Also, the latter approach will not have the incongruity of trying to decide if something is or isn’t when the fact that the decision is necessary is occasioned by the existence of the something.
Additionally, the result reached in this case is not in accord with Clenin v. State, supra, the holding to which the majority wishes to return. In Clenin, it is said:
“ * * * any comment upon an accused’s exercise of his right of silence, * * * inherently is prejudicial, and will entitle an accused to reversal of his conviction. Such a breach of the accused’s constitutional protections is plain error and prejudicial per se. * * *” (Emphasis added.) Id., 573 P.2d at 846.
Even if it could be said that the prosecution’s comment that defendant’s “only witness * * * wasn’t even there” is not within the Clenin prohibition, it is difficult to comprehend how the majority opinion also excepts the other statement of the prosecution that “you know that there could be others [reasons why defendant didn’t testify]” from the Clenin prohibition.
If “any” comment is “plain error and prejudicial per se” as was said in Clenin, how can it be cured by a waiver or by an instruction or admonition?
In this ease, I believe that the waiver, the instructions, the admonition and the totality of the circumstances in which the comments were made make such comments harmless and an affirmance is proper. I believe we should consider cases involving such comments in this fashion on a *951case-by-case review. This case is an example of the impropriety of the Clenin rule.
As reflected in the concurring opinion of Justice Brown in Westmark v. State, Wyo., 693 P.2d 220 (1984) (in which I joined), the Richter holding is proper, the Clenin holding is not. A comment objected to and considered in the trial court and engendering pages of concern in an opinion of this court is from that very happening a comment on silence. It may be a comment with very slight allusion to silence, but a comment nonetheless.