Ms. Graves failed to object to the State's opening statement reference, its closing argument reference, and the witness testimony on her post-arrest silence. She first alleged error due to the admission of the prosecutor's comments and witness' testimony in her motion for new trial. She requests plain error review under Rule 30.20, claiming that these three separate references to her post-arrest silence resulted in manifest injustice or a miscarriage of justice, mandating reversal of her convictions. Under Rule 30.20, plain error review involves a two-step process. First, we determine whether plain error has occurred.
Manifest injustice depends on the facts and circumstances of the particular case.
When guilt is established by overwhelming evidence no injustice or miscarriage of justice will result from the refusal to invoke the rule. Rogers and Doyle are distinguishable from the case at bar in one critically important respect, though. Rogers and Doyle involve situations where, for the purpose of impeachment, the prosecution used a defendant's silence after receiving Miranda warnings. In the present case, neither Ms. Graves nor the State alleges that Miranda warnings had been given prior to the time in question. Since the record does not reveal when, if ever, Miranda warnings were issued either, we assume that they were not issued before the time of Ms. Graves' impugned silence.