specially concurring.
I agree with most of that said in the majority opinion, but again I must disagree with the contention that there was no comment by the prosecutor on appellant’s constitutional right to silence. When the prosecutor told the jury,
“ * * * [w]e don’t know exactly what happened in the Cheatham house on April 15, 1984. There are only two people that knew what happened during those early morning hours: Linnea Cheatham, who, obviously, couldn’t testify here; and the Defendant,”
the comment was strong and direct in pointing out that appellant did not testify— that he exercised his constitutional right to silence.
Again, when the prosecutor emphasized that we have “the Defendant’s version through his discussions with the police; his actions on April 15, 1984; and his statement to the officers that he made on April 15, 1984,” the unspoken conclusion question, “Why didn’t he get on the stand and give his version directly to you?” is obvious. The impermissible comment is definite.
In my dissent in Gomez v. State, Wyo., 718 P.2d 53 (1986), I noted the impropriety of an attempt to lessen the hamstring put upon the prosecution by the holdings in Richter v. State, Wyo., 642 P.2d 1269 (1982), and Westmark v. State, Wyo., 693 P.2d 220 (1984), to the effect that any comment on silence was per se reversible error by interpreting plain language amounting to such comment as being other than what it says and, therefore, not being a comment on silence. To repeat that said in Gomez has no purpose here.
I simply refer to that said in Gomez as being applicable to this case. The impermissible comment was here made.
As in Gomez, I find such comment to have been harmless error. Taken in context and with the overwhelming evidence against appellant, there was no reasonable possibility that the verdict would have been more favorable to appellant if the impermissible comment had not been made. Under the law set forth in Gomez, the comment in this case was harmless error, and I concur with the result reached by the majority on that basis.