Lead Opinion
AFFIRMED.
Concurrence Opinion
concurring specially:
The appellant, Donald Crosby, was convicted of manslaughter. At trial he claimed self defense.
On cross-examination of Crosby and during final argument, the prosecutor questioned the failure of the appellant to claim self defense in a tape recorded statement given to police and introduced into evidence. Crosby now claims that the argument of the prosecutor constituted improper comments on his right to remain silent. In my opinion the comments of the prosecutor did not go to Crosby’s silence in the face of accusation but rather were directed to the inconsistency of the position being taken by Crosby at trial compared to the statement given to police. The credibility of Crosby’s testimony, like that of other witnesses, was subject to proper attack. A showing of Crosby’s prior silence would not be a proper attack. However, a showing of a prior inconsistent statement is proper.