¶1concurring.
¶2I concur that in this case the prosecutor's reference to defendant's failure to testify was harmless error. I also concur that the prosecutor's reference was inadvertent and that the trial court well handled the situation in its polling and admonishment of the jury.
¶3I write to expand slightly on the majority's treatment of United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988). In Robinson, the prosecutor's reference to the defendant's failure to testify was held permissible because it constituted "a fair response to the claim made by defendant or his counsel," 485 U.S. at 32, 108 S.Ct. at 869, to wit, defense counsel's closing argument that the government had not allowed the defendant to explain defendant's side of the story. Id. at 26, 108 S.Ct. at 865-66.
¶4Neither Robinson in particular, nor federal constitutional law applicable to the states in general, gives a prosecutor carte blancke to refer to a defendant's failure to testify so long as the prosecutor does not invite the jury to infer guilt from it. The general rule remains that prosecutors must not refer to defendants' failure to testify. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). While the law allows for harmless errors (as in this case) and fair responses to defense claims (as in Robinson ), I hope my Splunge dissent, referred to by the majority, makes clear that such references can easily give rise to federal constitutional error requiring reversal. See Splunge v. State, 641 N.E.2d 628, 634 (Ind.1994) (Sullivan, J., dissenting). And, as I think the majority suggests in its footnote 14, this is*744sue may be ripe for re-examination as a matter of Indiana constitutional law.