Summary
In State v. Johnson, 88 Or. App. 185, 744 P.2d 600 (1987), this court reiterated that, when the defendant has requested a jury instruction concerning the defendant's right not to testify, the failure to give such an instruction is reversible error.
Summary of this case from Cunningham v. ThompsonOpinion
C86-05-32370; CA A43331
Argued and submitted September 23, 1987
Reversed and remanded for new trial October 28, 1987
Appeal from Circuit Court, Multnomah County.
James R. Ellis, Judge.
J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Warden, Presiding Judge, and Van Hoomissen and Young, Judges.
PER CURIAM
Reversed and remanded for new trial.
Defendant was convicted in a jury trial of robbery in the first degree. He did not testify at trial. He had requested Uniform Criminal Jury Instruction 10.14:
"A defendant has an absolute constitutional right not to testify. Therefore, a defendant's decision not to testify cannot be considered as an indication of guilt. It should not be commented upon or in any way considered by you in your deliberation."
The trial court did not give that instruction. Defendant contends, and the state concedes, that the failure to give the requested instruction is reversible error. We agree. State v. Hale, 22 Or. App. 144, 145, 537 P.2d 1173 (1975).
Defense counsel did not except to the court's failure to give the requested instruction. However, the request that the instruction be given preserves the question for review. State v. Ketchum, 66 Or. App. 52, 55 n 3, 673 P.2d 555 (1983).
Reversed and remanded for a new trial.