Allen v. State ( 1988 )

John I. Purtle, Justice,

dissenting. I dissent because it is obvious the prosecutor deliberately failed to introduce the second confession in order to open the way for his prejudicial comments on the appellant’s silence. Both confessions had previously been held admissible by the trial court. Both were incriminating. About the only difference was that the one not introduced by the state contained information indicating that the appellant had been drinking beer and smoking pot. It seems to me the second confession was as damaging to the appellant as the first.

Had the prosecutor introduced both statements he would not have been in a position to comment concerning the appellant’s failure to testify. The prosecutor did not object simply on grounds of hearsay or relevance. Instead he made a speech to the jury about being unable to cross-examine the accused, who did not intend to testify. Whether planned or not the comments were improper and highly prejudicial.