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State v. Hill7/5/2001
295, 106 S.Ct. at 637-638, 88 L.Ed.2d at 632. In Rogers, the factual scenario was virtually identical to that of Wainwright v. Greenfield, in that the state had used the defendant's silence to rebut his claim of insanity. This court in Rogers reconsidered its earlier affirmance of the defendant's conviction in light of Wainwright v. Greenfield, reversed the defendant's conviction, and ordered a new trial. Id. at 74, 512 N.E.2d at 585.
The court of appeals in this case concluded that "it was plain error to permit testimony and argument on [Hill's] invocation of his right to remain silent." In so concluding, the court of appeals reasoned that the error was "tantamount to a Doyle violation." The court of appeals appears to have determined that this situation involved such obvious plain error that it saw no need to consider in depth the record developed at trial to determine if a manifest miscarriage of justice occurred. For want of a better term, it seems accurate to label the manner in which the court of appeals resolved this issue as a "plain error per se" resolution. Such an approach is inconsistent with the concept of plain error and has no support in our precedents.
We specifically disagree with this reasoning of the court of appeals that some type of plain error per se is present in this situation. Neither Doyle, Wainwright v. Greenfield, nor Rogers mandates a summary finding of plain error in this case that would allow a reviewing court to dispense with the full plain-error inquiry. To the extent that the court of appeals applied a "plain error per se" rule to this asserted error, we find its analysis to be flawed. This error should be assessed under the same plain-error standards that are set forth in Part II of this opinion.
C.
As part of the inquiry into whether plain error occurred, a reviewing court "must examine the error asserted by the [defendant] in light of all of the evidence properly admitted at trial and determine whether the jury would have convicted the defendant even if the error had not occurred." State v. Slagle (1992), 65 Ohio St.3d 597, 605, 605 N.E.2d 916, 925. Reversal is warranted only if the outcome of the trial clearly would have been different absent the error. See Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. In addition, plain error should be found only in exceptional circumstances and only to prevent a manifest miscarriage of justice. Id. at paragraph three of the syllabus.
An assessment of whether plain error occurred in the situation at issue is hampered by the manner in which the court of appeals disposed of other claims of error raised in that court by appellee. The court of appeals found four of appellee's assignments of error to be moot in light of its rulings on the two it chose to address. Given that we disagree with the way the court of appeals ruled on those two assignments of error, several of the issues raised within the unaddressed assignments of error might affect a plain-error inquiry. Consistent with Slagle, 65 Ohio St.3d at 605, 605 N.E.2d at 925, this inquiry requires a reviewing court to assess appellee's assertions of error in allowing testimony and comment on his exercise of his right to remain silent "in light of all of the evidence properly admitted at trial." (Emphasis added.)
It is virtually impossible to perform this assessment because the finding of mootness by the court of appeals left unresolved the issue of exactly what evidence properly was admitted at trial. Only after that issue is decided can a complete inquiry be conducted into whether plain error occurred. Furthermore, given our determination that no plain error requiring summary revers
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