¶2The judgment of the superior court is AFFIRMED.
¶3SINGLETON and COATS, JJ., concur.
¶4BRYNER, C.J., dissents.
¶5concurring.
¶6Brian Graham was convicted of selling five half-ounce bags of marijuana to Frank G. Kawagley, a police informant, in violation of AS 17.12.010. The evidence introduced at trial established that Kawagley was given $240 in marked money by the Bethel police to purchase the marijuana. He left and returned shortly thereafter with the marijuana in question. The police obtained a search warrant to search Graham’s residence based upon Kawagley’s statement that he had used the marked money to purchase the marijuana from Graham. The search of Graham’s residence turned up the marked money and additional marijuana contained in five baggies, two bottles and a box.
¶7Graham did not testify. The theory of the defense was that Kawagley had visited Graham and smoked marijuana with him, but had not purchased any marijuana. Rather, the defense hypothesized that Graham received the $240 from Kawagley in payment of an antecedent debt. Thereafter, the defense reasoned, Kawagley, fearing retaliation from the police because he had neither the marked money nor the marijuana, had gone to the residence of John McIntyre, a person from whom Kawagley had purchased marijuana in the past, and sought to “borrow marijuana.” Kawagley denied going to McIntyre’s residence the evening of October 7, 1981, the date the drug transaction between Kawagley and Graham allegedly occurred. Graham called McIntyre as a witness during the defense case-in-chief. In a bench conference with the court and the prosecutor, Graham indicated that he intended to impeach Kawag-ley by offering McIntyre’s testimony that Kawagley had in fact come to McIntyre’s residence the evening of October 7 and sought to borrow marijuana. Graham disclosed that if pressed beyond this point, McIntyre would claim fifth amendment protection. The trial court did not hold a hearing to determine whether McIntyre had a bona fide claim of self-incrimination. Over vigorous objection from the state the trial court permitted Graham to call McIntyre for the sole purpose of impeaching Kawagley regarding a visit to McIntyre’s residence the night of October 7. It appears that the court intended to allow McIntyre to claim the fifth amendment privilege if questioned further. McIntyre testified that Kawagley had come to McIntyre’s residence that night and had requested to borrow marijuana. On cross-examination the prosecutor asked McIntyre whether he in fact furnished marijuana to Kawagley. McIntyre remained silent. The trial court intervened, a bench conference was held, and the question was not answered. During final argument defense counsel strongly implied that McIntyre, not Graham, had been the source of the marijuana Kawagley turned over to the police in an apparent exchange for the $240 in marked money. In response to this argument, the district attorney made the following comment during his rebuttal argument, “Mr. Angstman [defense counsel] says this pot could have come from any number of places. Did it come from Mr. McIntyre? I asked Mr. McIntyre.” Graham objected and the court instructed the jury to disregard the district attorney’s last comment. The district attorney then continued, “Mr. McIntyre wasn’t my witness, ladies and gentlemen.”
¶8Appellant moved for a mistrial. He argued that the state had left the jury with the impression that had McIntyre in fact furnished the marijuana, defense counsel would have asked him and he would have admitted it. The jury could have inferred that McIntyre had not furnished it. Such an argument, Graham contended, was in violation of the trial court’s order permitting McIntyre to testify and rely upon the fifth amendment if specifically asked about furnishing marijuana to Kawagley. Conse*1190quently, the defense continued, its failure to ask McIntyre whether he furnished the marijuana to Kawagley might result in the jury’s inferring that McIntyre had not done so, when in reality the defense was precluded from asking the question by the expectation that McIntyre would invoke his fifth amendment rights. The trial court denied the motion for mistrial, reasoning that the curative instruction removed any prejudice.
¶9In seeking a proper resolution to this case the court has found itself in substantial disagreement. All members of the court agree that the decision whether or not to grant a mistrial is committed to the sound discretion of the trial court and that its decision will only be overturned where clearly erroneous. Roth v. State, 626 P.2d 583, 585 (Alaska App.1981). We are also in general agreement with the rule that “where the trial judge withdraws improper testimony from the jury’s consideration, such an instruction is presumed to cure any error which may have been committed by its introduction.” Id.at 585 (quoting Anderson v. State, 438 P.2d 228, 233 n. 15 (Alaska 1968)). I do not understand any member of this court to wish to apply a different rule to prosecutor’s comments than to “tainted evidence.”
¶10Our difficulty with this case is in determining whether it falls within the exceptional category of cases where an error cannot be resolved by a curative instruction; and if not within that category, we must determine the proper allocation of the burden to propose curative instructions. On balance, I think that all members of the court agree that the trial court could have cured any error in the prosecutor’s final argument by specifically instructing the jury that McIntyre claimed his fifth amendment privilege regarding furnishing marijuana to Kawagley, that because of that claim neither party could question McIntyre about furnishing Kawagley marijuana, and that the jury should not draw any inferences favorable to either side from McIntyre’s invocation of his fifth amendment rights. Since the prosecutor was using McIntyre’s silence as evidence that he did not furnish marijuana to Kawagley, such an instruction would have destroyed that inference. Graham thus stands in the shoes of the prosecutor in Williams v. State, 629 P.2d 54, 59-60 (Alaska 1981).
¶11In Williamsthe defense counsel made an arguably improper reference to a hung jury at a prior trial, and the prosecutor then retaliated by indicating the jury vote favoring conviction which resulted in the mistrial. The trial court instructed the jury to disregard the prosecutor’s remark, but denied the defendant’s motion for a mistrial. The supreme court reversed, and in so doing concluded that retaliation might be permitted to the limited extent necessary to neutralize an improper defense argument but could not be used as a license to affirmatively attack the defendant. To avoid problems from future retaliation, the court implied that the aggrieved party should make an objection to allow the court to rule and possibly cure the error before the aggrieved party engaged in any self-help. Id. at 59-60. Graham followed the procedure suggested in Williamsby bringing his objections to the prosecution’s argument to the court’s attention before replying. It is undisputed, however, that Graham did not request a stronger curative instruction. Consequently, the views of the members of this court diverge.
¶12Judge Coats concludes that the curative instruction given was sufficient standing alone to cure any prejudice. In my view the curative instruction given was sufficient in the absence of a request for a stronger instruction, but had the defense requested a stronger instruction along the lines outlined here the trial court might have been obligated to give it. The failure to give the instruction might have amounted to prejudicial error. Judge Bryner agrees that the stronger instruction would have cured the error. However, he concludes that Graham’s motion for mistrial adequately preserved the error and that in the midst of trial it is unreasonable to expect a party injured by an error to propose a carefully drafted instruction to cure it. Judge Bryner notes correctly that there is *1191nothing m the record that would support an inference that the trial court would necessarily have given the stronger instruction had it been requested. I agree that there is no evidence either way on this point. Judge Bryner also reasons that the prosecutor compounded the error presented by his initial sally when he responded to the trial court’s direction that the jury disregard his comments by adding the comment, “Mr. McIntyre wasn’t my witness, ladies and gentlemen.”
¶13Subject to two qualifications which I discuss hereafter, it seems that defense counsel should have been entitled to reasonably rely on the trial court’s orders regarding McIntyre’s testimony without being subjected to the kind of rebuttal argument used by the prosecutor. To reach this conclusion, we must assume first, that the trial court correctly ruled that McIntyre should be permitted to testify subject to only limited cross-examination, without holding an ⅛ camera hearing to determine the extent to which McIntyre wished to invoke the fifth amendment and the validity of the invocation. This is a troublesome assumption. Graham clearly wished to leave the jury with the inference that McIntyre, rather than he, provided Kawagley the marijuana, but McIntyre would not be available for cross-examination on this point. To permit him to invoke the fifth amendment in the presence of the jury would leave the jury with the assumption that McIntyre had admitted being the source and such an assumed admission would probably survive an admonition to the contrary. As a result the state would be in the position of having Graham submit a hearsay confession by a third party to exonerate himself, a procedure specifically precluded by the Alaska Rules of Evidence unless the third party confession or admission is corroborated by other evidence. Here corroboration of McIntyre’s identity as Kawagley’s source was never presented. There is no direct evidence that McIntyre supplied Kawagley with the marijuana. See Alaska R.Evid. 804(b)(3).
¶14The second necessary assumption is that the trial court properly ruled that the state could not be compelled to grant McIntyre immunity in order to preserve Graham’s and the state’s right to full cross-examination. Neither party has briefed the law regarding these two assumptions and we must therefore assume that the trial court’s rulings were proper. If we assume that the trial court’s rulings were proper, I consider this an extremely close case; but it seems to me that a party complaining of error should be obligated to offer instructions calculated to cure the error, if it is feasible to do so, and that a motion for mistrial should only be granted where errors are truly incurable. See Williams v. State, 629 P.2d at 59.. I understand the phrase “manifest necessity” to mean a situation characterized by incurable error. Since a mistrial in a criminal case is so rarely justifiable, I would conclude that a motion for mistrial never preserves curable errors. Since we all agree that any error here was curable, I concur in the decision to affirm Graham’s conviction.
¶15In any event, I am satisfied that any error was harmless. The most Graham lost by the prosecutor’s statements was the inference that McIntyre rather than Graham supplied Kawagley the marijuana in question. The evidence was that Graham was the source. There was no direct evidence that McIntyre supplied it, and the circumstantial evidence suggesting that McIntyre was Kawagley’s source was very weak. Under these circumstances, I would find any error harmless. Love v. State, 457 P.2d 622, 629-32 (Alaska 1969).
¶16Graham argues that jurors affidavits should be considered in determining whether he was prejudiced by the prosecutor’s inappropriate remarks. Generally, the law precludes inquiries of jurors as to how evidence and argument affected them, though a limited inquiry is permitted to determine whether extraneous prejudicial information reached a jury. See, e.g., Alaska R.Evid. 606(b). Here the prosecutor’s comments, while inappropriate, were not extraneous. The trial court properly refused to consider the juror affidvits. See, e.g., *1192Meyer v. State, 627 P.2d 636, 638 (Alaska 1981).
¶17Finally, Graham challenges a suspended imposition of sentence with ninety days to serve as excessive. We have evaluated the sentence in light of the standards set out in Waters v. State, 483 P.2d 199 (Alaska 1971). We have carefully considered the record and have concluded that the trial court did not commit clear error in imposing the sentence it did. See McClain v. State, 519 P.2d 811 (Alaska 1974).