(specially concurring) :
I concur that the defendant’s conviction and sentence in this case must be affirmed. Since I concur in the result of this Court, this concurring opinion shall only deal with the area upon which I disagree with the majority in.reaching that result.
The majority has concluded that the prosecutor’s comment in closing argument to the jury upon the defendant’s silence after arrest was “fundamental error which was not waived by the failure of the defendant to object . . . .” It is with this statement that I disagree.
In order to place this issue in proper perspective it is necessary to review how the factual basis for the prosecutor’s closing argument came into evidence. The first reference to the defendant’s refusal to answer questions asked of him by law enforcement officers came during cross examination by the defendant’s counsel. If it is error to inquire into the area of the defendant’s Fifth Amendment rights to remain silent, this error was created by the defendant. This Court has repeatedly held that a defendant may not create error in the trial court and then rely on that created error on appeal. State v. Arriola, 99 Ariz. 332, 409 P.2d 37 (1965); State v. Farmer, 97 Ariz. 348, 400 P.2d 580 (1965); State v. Rascon, 97 Ariz. 336, 400 P.2d 330 (1965); State v. Paramo, 92 Ariz. 290, 376 P.2d 554 (1962). The subject matter of defendant’s silence not being erroneously before the jury, the prosecutor is granted wide latitude in discussing with the jury the facts supplied by the evidence and the inferences to be drawn therefrom. State v. Gonzales, 105 Ariz. 434, 466 P.2d 388 (1970); State v. Adams, 1 Ariz.App. 153, 400 P.2d 360 (1965). Based upon the manner in which this issue arose in the trial court, I would hold this error, if it be error, is not reviewable.
There is, however, a more fundamental difference existing between myself and the majority on this issue than the mere procedural manner in which this claimed error arose. This fundamental difference arises where the defendant waives his Fifth Amendment privilege against self-incrimination by taking the *366stand in his own behalf, and is subsequently cross-examined concerning his failure to make known to arresting officers the story or explanation he has given from the stand and the subsequent comment to the jury concerning this silence, constitutes error at all, let alone fundamental error.
I first note that this Court has held that cross examination of the testifying defendant concerning whether he related to police officers the same story he told from the stand is not improper. State v. Altman, 107 Ariz. 93, 482 P.2d 460 (1971). Again, I would hold that if a defendant can be examined concerning his constitutional right to remain silent, this is a proper subject of comment to the jury in closing argument.
At this juncture, however, the majority opinion would draw a distinction between commenting by the prosecutor on defendant’s testimony on the stand as being proper comment and comments by the prosecutor “as they pertain to the actions of the defendant after his arrest and Miranda warnings [citations omitted] in remaining silent and refusing to name the people with him or to identify the person shown to him” which is improper. I am unable to draw such a fine distinction. In both instances the conduct consists of remaining silent after arrest — on the one hand refusing to identify suspects and explain his presence at the scene and on the other hand refusing to identify his employer who for all we know may have been the individual the defendant was asked to identify at the scene.
Be that as it may, the attempt to make this distinction serves to place in proper focus the reason both cross-examination of the defendant and the testimony of the law enforcement officer are proper comment by the prosecutor — the fact that the defendant waives the Fifth Amendment right to remain silent by taking the stand in his own behalf.
This singular fact is absent in all the cases cited by the majority, except the case of People v. Cockrell, 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116 (1965), cert. denied, 389 U.S. 1006, 88 S.Ct. 568, 19 L.Ed.2d 604 (1967) (but even this case does not raise the issue to one of fundamental error), or the “admission by silence” was attempted to be introduced by the prosecutor in the case in chief. See, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. O’Dell, 108 Ariz. 53, 492 P.2d 1160 (1972); State v. Simoneau, 98 Ariz. 2, 401 P.2d 404 (1965); State v. Villalobos, 6 Ariz.App. 144, 430 P.2d 723 (1967); McCarthy v. United States, 25 F.2d 298 (6th Cir. 1928); United States v. Pearson, 344 F.2d 430 (6th Cir. 1965).
In the three Arizona cases where the “admission by silence” occurred after the defendant took the stand, this Court has consistently held that “a defendant who takes the stand waives his Fifth Amendment privilege against self-incrimination, being of the view that the privilege against self-incrimination was designed to avoid the evils arising from the star-chamber.” State v. Peterson, 107 Ariz. 268, 485 P.2d 1158 (1971); State v. Belcher, 108 Ariz. 290, 496 P.2d 590 (1972). Also see, State v. Alterman, supra.
Objectively, it should be pointed out that in all three of these cases the Court held that if such admission were error, the error was not prejudicial and as stated in Peterson, supra, and in Belcher, supra, the line of questioning, that is, the admission by silence “does no more than approach the danger point of potential prejudice involving defendant’s Fifth Amendment rights,” at least indicating that there is a line which, if crossed, could result in prejudicial error. This statement, however, in my opinion, was made without the complete analysis of the Fifth Amendment right and its use as an impeachment tool when the defendant takes the stand. I am also aware of the case of State v. Greer, 17 Ariz.App. 162, 496 P.2d 152 (1972), where Division Two of the Court of Appeals held that cross-examination of the defendant concerning his silence at the time of arrest, was reversible error. But see dissenting opinion of Judge Haire in *367that case. 17 Ariz.App. at 165-167, 496 P.2d at 155-157.
In my opinion, a correct understanding of this problem must begin with a review of three United States Supreme Court decisions, Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926); Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), and Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).
In Raffel, supra, the defendant at his first trial exercised his Fifth Amendment right and did not take the stand in his own behalf to deny testimony introduced against him. A subsequent appeal and reversal resulted in a new trial. At the second trial the defendant did testify and denied the incriminating evidence. At this second trial the defendant was cross examined as to his exercise of his Fifth Amendment right not to testify in his own behalf in an attempt to impugn the credibility of his denial at the second trial. The United States Supreme Court upheld this cross-examination, holding that when a criminal defendant takes the stand he waives his privilege completely and becomes subject to cross-examination impeaching his credibility just like any other witness. The Raffel court stated:
“His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.” 271 U.S. at 497, 46 S.Ct. at 568, 70 L.Ed. at 1058.
In Grunewald, supra, the United States Supreme Court reviewed its ruling in Raffel, supra, and refused to overrule it, stating:
“In other words, we may assume that under Raffel [the defendant] in this case was subject to cross-examination impeaching his credibility just like any other witness, and that his Fifth Amendment plea before the grand jury could not carry over any form of immunity when he voluntarily took the stand at the trial.” 353 U.S. at 420, 77 S.Ct. at 982, 1 L.Ed.2d at 952.
The Court went on to state:
“This does not, however, solve the question whether in the particular circumstances of this case the cross-examination should have been excluded be-' cause [of] its probative value on the issue of [defendant’s] credibility. .” (Emphasis added.) Id., supra.
A majority of the Court refused to base a reversal upon the constitutional issue that “the value of constitutional privileges is largely destroyed if persons can be penalized for relying on them.” Concurring opinion of Mr. Justice Black in Grunewald v. United States, 353 U.S. at 425, 77 S.Ct. at 984, 1 L.Ed.2d at 954. In other words, the issue becomes one of materiality of evidence rather than an infringement of constitutional rights.
In Harris, supra, the United States Supreme Court reinforced its prior decision in Grünewald, supra, that the probative value of the cross-examination is the test, not the infringement of constitutional rights. In Harris, supra, the defendant gave statements to police under circumstances not conforming with the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).
The defendant took the stand and made statements inconsistent with his prior nonconforming statements. The prosecutor was allowed to impeach the defendant by the use of his prior statements. In upholding this practice against a constitutional attack, the Court held that:
“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.” (Emphasis added.) 401 U.S. at 224, 91 S.Ct. at 645, 28 L.Ed. at 4.
The United States Supreme Court further stated:
“Having voluntarily taken . the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize *368the traditional truth-testing devices of the adversary process.” 401 U.S. at 225, 91 S.Ct. at 645-646, 28 L.Ed.2d at 4.
In the case before the Court, I need not reach a determination as to whether the defendant’s refusal to explain his presence at the scene or identify the supposed cohort was of sufficient probative value to put in question the defendant’s credibility, for no objection was made to this testimony nor was objection made to the prosecutor’s argument on this point to the jury. One thing I would decide, however, is that under the rationale of Raffel, supra, Grunewald, supra, and Harris, supra, this error, if any, is evidentiary error and not fundamental (constitutional) error as contended by the majority and was therefore waived by failure to object. See, State v. Coward, 108 Ariz. 270, 496 P.2d 131 (1972); State v. Mohr, 106 Ariz. 402, 476 P.2d 857 (1970); State v. Gregge, 13 Ariz.App. 185, 475 P.2d 277 (1970).
I join in the majority’s affirmance of the defendant’s conviction and sentence with the reservations herein expressed.