delivered the opinion of the Court.
Thе sole issue framed in this appeal is whether, as the defendant contends, “[t]he remarks of the prosecutor clearly constituted impermissible comment on Petitioner’s failure to testify.” In the Circuit Court of the City of Winchester, Paul Lawrence Dunbar Johnson, Jr., pled not guilty to an indictment for statutory burglary, and his plea was announced in the charge to the jury. In closing argument, defense counsel said:
Now, there is no question in my mind, and I assume thаt there is no question in your mind, that the residence . . . was entered by force on May 1st, 1985. Not a lot of doubt about that. The question, however, is who did it? The Commonwealth says that it was Mr. Johnson. Mr. Johnson says it wasn’t. And, the twelve of you have to decide whether the Commonwealth has met its burden of proving that it wаs Mr. Johnson beyond a reasonable doubt.
In rebuttal, the prosecutor argued:
*50 Now, what else was pointed out to you by the Defense in their opening statement? They said to you, “What I say, what [the prosecutor] say[s], that is not evidence.” And, when we get around to the argument it is still not evidence. It is argument. And, you are the sole judgеs of the facts.
And, when he stood up here to argue what did he tell you. He says, the police tell you that Mr. Johnson committed that breaking and еntering. Mr. Johnson said that he didn’t. Have you heard from that witness stand any evidence of . . . Mr. Johnson saying, “I didn’t do it.”
Defense counsel objected on the grоund “it is not open to comment as to whether or not he takes the stand.” The trial court overruled the objection, finding that defense counsel had “opened it up”, but granted an instruction that told the jury that “[t]he Defendant does not have to testify, and his failure to do so cannot be considered by you.”
Two witnesses who had observed the crime in progress identified Johnson at trial as the criminal agent. The jury returned a guilty verdict fixing a penalty of 12 years in the penitentiary, and the trial court entered judgment confirming the verdict.
Johnson raised three issues in his appeal to the Cоurt of Appeals. From an order of that Court affirming the judgment of the trial court, we granted Johnson an appeal limited to the issue stated above.
As a general rule, any comment that the Commonwealth’s Attorney made referring to the defendant’s election not to testify is a violаtion of his rights against self-incrimination as guaranteed by the Fifth Amendment of the United States Constitution,
Griffin
v.
California,
We uphold the trial court’s decisiоn overruling the defendant’s objection. In our view, the prosecutor’s remarks were not
*51
proscribed under the test approved in
Hines.
In
Washington
v.
Commonwealth,
Speaking rhetorically, the prosecutor in the case at bar asked the jurors if they had “heard from that witness stand any evidence” that the defendаnt had denied his guilt. Any witness who had spoken with the defendant could have supplied such evidence if, in fact, the defendant had uttered such a deniаl. Hence, the prosecutor’s reference to the lack of such evidence — like a comment that incriminating evidence had not been contradicted,
see Quintana
v.
Commonwealth,
Moreover, a remark by a prosecutor, otherwise improper, “mаy become proper under the invited error doctrine when the area has been opened to fair comment by the argument and сomment of defense counsel or of a
pro se
defendant.”
Lincoln
v.
Commonwealth,
It is one thing to hold, as we did in Griffin [v. California,380 U.S. 609 (1965)], that the prosecutor may not treat a defendant’s exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as dеfendant does here, that the same reasoning would forbid the prosecutor from fairly responding to an argument of the defendant by adverting tо that silence.
Id.
at_,
On brief, defense counsel argues that his comments in summation were merely references to the indictment and the not-guilty pleа and that “both . . . are ‘facts’ before the jury.” Yet, in his opening statement, he had admonished the jurors that they could consider only the sworn testimony оf witnesses introduced at trial. In his closing argument, defense counsel declared, with no mention of the defendant’s plea, that Johnson had deniеd that he was the criminal agent and that the Commonwealth had the burden of producing evidence to prove that he was. Considered together, these comments could have misled the jury to believe that one of the witnesses had given evidence at. trial that he had heard Johnsоn proclaim his innocence.
Obviously, the trial judge thought so, because he said in a letter opinion that “when I heard defense counsel make the argument, I considered . . . indicating to the jury that . . . the jury should disregard the argument as not a part of the evidence and completely unjustified.” The prosecutor’s comments, prefaced as they were by a reminder that defense counsel had emphasized the need for testimonial evidence rather than declarations of attorneys, reflect the same interpretation of defense counsel’s remаrks. We share that interpretation, and we think that the only reasonable import of the prosecutor’s response was that no testimony dеlivered from the witness stand supported defense counsel’s assertion that “Mr. Johnson says that he didn’t [commit the crime].” Insofar as the proseсutor’s comments arguably could be characterized as a reference to Johnson’s failure to take the witness stand, we will apply thе invited error doctrine defined in Robinson and Lincoln.
*53 Finding the Court no reversible error below, we will affirm the order of of Appeals affirming the judgment of the trial court.
Affirmed.