The appellant was convicted of rape. The only issue on appeal is whether a mistrial should have been declared because of a statement, made by the prosecutor in closing argument, which the appellant says was a reference to his failure to testify in his defense. We find the appellant’s position to be correct, and thus the case is reversed.
The testimony of the prosecuting witness, Doris Watson, was that the appellant took her to his room, bound her and raped her several times over a 24-hour period. She said when she at last escaped she went to the house of a friend who went to get a sister of Ms. Watson.
In his closing argument, the prosecutor said:
The only thing that we’ve heard here today about which occurred in that room is from Doris Watson. She’s the only person. These two ladies that were called, they weren’t in that room.
Counsel for the appellant immediately moved for a mistrial which was denied.
The impropriety of a reference to failure of an accused to testify has been recognized by this court since at least as early as Lee v. State, 73 Ark. 148, 83 S.W. 916 (1904). While the principal contemporary case on protection of the U.S. constitutional right to remain silent is Chapman v. California, 386 U.S. 18 (1967), we have cases prior to 1967 which reached the same result, some of which are based simply on Ark. Stat. Ann. § 43-2016 (Repl. 1977) which guarantees that no presumption may be created by an accused’s failure to testify. For example, in Evans and Foust v. State, 221 Ark. 793, 255 S.W.2d 967 (1953), we said, quoting Bridgman v. State, 170 Ark. 709, 280 S.W. 982 (1926):
This court is committed to the rule that under . . . [§ 43-2016]. . .it is improper and presumptively prejudicial for the prosecuting attorney to call the attention of the jury to the failure of the accused to testify.
While we need not rely on Chapman v. California, supra, the position we established long ago has been reinforced by that case.
The reference in Evans and Foust v. State, supra, was fairly direct, but we have been equally unwilling to allow veiled references. In Adams v. State, 263 Ark. 536, 566 S.W.2d 263 (1978), we reversed a conviction because the prosecutor said in closing argument:
To convict him, you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?
Chief Justice Harris and Justice Fogleman dissented in that case. Their dissenting opinions point out, citing many cases, that a prosecutor may refer to the fact that the state’s evidence is undisputed. The majority opinion, however, distinguished those cases from remarks which seem meant to refer to the defendant’s failure personally to dispute the state’s case as opposed to the failure of the defense to present any witness or evidence to dispute the state’s case. The case before us now falls into the category described by the majority view in Adams v. State, supra. See also McCroskey v. State, 266 Ark. 806, 586 S.W.2d 1 (Ark. App. 1979). By saying “[t]he only thing that we’ve heard here today about which happened in that room is from Doris Watson,” he must have been referring to the appellant’s failure to testify. No evidence showed the other women had been in the room. Even had there been any such evidence, the damage occurred when the statement was made. It could not be repaired, and a mistrial should have been declared.
Reversed.
Purtle, J., not participating. Hays, J., dissents.