I concur. It may well have been the intention of the Assistant Prosecuting Attorney to refer in his comments to the jury to the defendant’s testimony at the first trial. Nevertheless, our duty to preserve the constitutional right against self-incrimination from infringement by adverse comment does not permit us the luxury of attempting to distinguish between malicious intent and innocent slip of tongue where the comment points so directly at the defendant’s failure to testify.
Because this ease must be retried, it would be preferable if we were able to determine the merits of appellant’s points charging trial court error in overruling his pre-trial motions. Because we are totally uninformed regarding the reasons underlying the trial court’s rulings or what evidence may be supportive thereof, we are constrained to remand the case with an undecided issue even though it is likely to recur on retrial.
It is apparent from the record before us that some items of physical evidence were seized from appellant’s residence during warrantless searches occurring hours and days after the fire was extinguished. While there may well be evidence of which I am uninformed which would serve to distinguish this case from such cases such as Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984) and Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), in the interest of judicial economy, I temerariously suggest consideration of the principles enunciated in such cases before retrial.