dissenting.
I respectfully dissent.
The district attorney was overzealous in his effort to obtain a conviction, and his comments in the course of his closing argument violate the clear mandate of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); accord, Desmond v. United States, 345 F.2d 225 (1st Cir. 1965). On no less than four occasions, the prosecutor focused the jury’s attention on the defendant’s failure to take the stand. He pointed out to the jury that the People alone had presented the facts. He then added that the People didn’t make the facts, but the defendant did, and that the defendant sits before the jury with that burden on her mind. He also told the jury that there was not one other thread of evidence except that which the People had offered. He then went on to say that they had heard nothing about the defendant and her failure to accept responsibility for her acts. Thereafter, he pointed out that there was no evidence except that which the People had produced. Even then, he was not satisfied that the jury was convinced of the defendant’s guilt, so he exhorted the jury to convict to stop the type of conduct that was highlighted by the evidence during the trial.
The district attorney’s comments violated the.test which we laid down in Martinez v. People, 162 Colo. 195, 425 P.2d 299 (1967). In Martinez, supra, we said, in determining whether a prosecutor’s conduct violated the Griffin rule, that the test was whether the comment in context was calculated or intended to direct the attention of the jury to the defendant’s exercise of her right not to testify. See also, Montoya v. People, 169 Colo. 428, 457 P.2d 397 (1969). The district attorney’s comments went beyond the limitations of fair comment, and his remarks that urged that a conviction be returned to stop conduct of the type that was being gauged by the jury denied the defendant a fair trial. Cooper *391v. State, 136 Fla. 23, 186 So. 230 (1939); People v. Sawhill, 299 Ill. 393, 132 N.E. 477 (1921). See also, Annot, 85 A.L.R.2d 1132 (1955); 6 Am. Jur. Trials, “Prosecution Summations,” 873, 897; Ameritan Bar Association Standards of Criminal Justice Relating to The Prosecution Function, § 5.8.
For the reasons stated, I would reverse.
MR. JUSTICE DAY joins me in my dissent.