Generally, the prosecution may not comment on the defendant's post-arrest silence. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976); Parks v. State, 765 P.2d 790, 793 (Okla. Cr. 1988). However, error may be harmless where there is overwhelming evidence of guilt and the defendant is not prejudiced by the error.
. Accord Parks v. State, 765 P.2d 790, 793 (Okla. Cr. 1988); Kreijanovsky v. State, 706 P.2d 541, 543-44 (Okla. Cr. 1985); Dungan v. State, 651 P.2d 1064, 1065-66 (Okla. Cr. 1982). Doyle applies only after Miranda warnings have been given, and pre Miranda silence may be used to impeach a defendant.
Jackson v. State, 403 P.2d 518 (Okla. Cr. 1965); Carroll v. State, 347 P.2d 812 (Okla. Cr. 1960). See also Parks v. State, 765 P.2d 790 (Okla. Cr. 1988); West v. State, 764 P.2d 528 (Okla. Cr. 1988). A nearly identical comment was considered by the Tenth Circuit Court of Appeals in connection with the granting of habeas corpus relief to an Oklahoma defendant.
Petitioner filed a petition in this Court requesting the issuance of a Writ of Mandamus directing the District Court of Stephens County to furnish transcripts at public expense in Case No. CRF-85-159. A review of the procedural history of Petitioner's case shows he was originally tried by jury and convicted of First Degree Murder in January 1986. Petitioner perfected a direct appeal of the conviction and this Court reversed the conviction and remanded the case for a new trial. See Parks v. State, 765 P.2d 790 (Okla. Cr. 1988). Petitioner was again found guilty by a jury and sentenced to life imprisonment. At the April 6, 1989 sentencing hearing, Petitioner gave a verbal notice of his intent to appeal the judgment and sentence. Petitioner also indicated his desire for the appointment of counsel for appellate representation and to be provided a transcript at public expense.