State v. Lakeside

561 P.2d 612, 277 Or. 569, 1977 Ore. LEXIS 1172
CourtOregon Supreme Court
DecidedMarch 17, 1977
DocketCA 5263, SC 24666
StatusPublished
Cited by16 cases

This text of 561 P.2d 612 (State v. Lakeside) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lakeside, 561 P.2d 612, 277 Or. 569, 1977 Ore. LEXIS 1172 (Or. 1977).

Opinions

[571]*571LENT, J.

Defendant was convicted by a jury of the crime of escape in the second degree and sentenced to the penitentiary. The Court of Appeals reversed and remanded for a new trial, holding that the trial court erred in instructing the jury, over defendant’s prior objection, that: "Under the laws of this State a defendant has the option to take the witness stand to testify in his or her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence.” State v. Lakeside, 25 Or App 539, 549 P2d 1287 (1976). We granted review.

Defendant assigned error as follows:

"It was error, and a violation of the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution, for the trial court to comment on appellant’s failure to testify, by giving a jury instruction concerning this fact, after appellant objected to the giving of this instruction.”1

Defendant and his counsel chose not to have defendant testify, and during trial defendant’s lawyer was careful to avoid any mention of the fact that defendant did not testify and had not testified. The [572]*572prosecuting attorney, of course, was foreclosed from mentioning the fact in any way. See Griffin v. California, 380 US 609 (1965).

A brief review of Griffin would be helpful in according that decision proper perspective. In that case, defendant did not testify. To use the words of the decision, which are by no means an exaggeration, "[t]he prosecutor made much of the failure” of defendant to testify. The trial court instructed the jury that the defendant had a constitutional right not to testify but went on to tell the jury:

"As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.” (380 US at 610).

The trial court in substance added that no such inference could be drawn as to evidence respecting which defendant had no knowledge and further stated that failure of a defendant to deny or explain the evidence of which he had knowledge did not create a presumption of guilt nor by itself warrant an inference of guilt nor relieve the prosecution of any of its burden of proof.2 The United States Supreme Court granted certiorari: [573]*573The court held that the Fifth Amendment forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.

[572]*572"to consider whether comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment which we made applicable to the States by the Fourteenth in Malloy v. Hogan, 378 U.S. 1, decided after the Supreme Court of California had affirmed the present conviction.” (380 US at 611).

[573]*573Because many of the cases reviewed direct our attention to the decision in Bruno v. United States, 308 US 287 (1939), it would be helpful background to briefly review that case. There the court refused defendant’s requested instruction substantially the same as given in the case at bar. The question in Bruno was whether the defendant "had the indefeasible right to have the jury told” what, in substance, defendant here complains was told to the jury. It should be kept in mind that Bruno was concerned not with any constitutional question but only with the effect of a federal statute which provided that the defendant in a criminal trial might at his own request be a competent witness, but that his failure to exercise that privilege did not create any presumption against him. Interestingly enough, the government argued that there was no error, 'because the jury would, despite such an instruction, draw an adverse inference from the defendant’s failure to testify and, therefore, a fortiori, the jury would be more inclined to draw an adverse inference if it is reminded by an instruction that he may testify. Holding that the defendant had an absolute right to have the jury so instructed under the statute, the court answered the prosecutor’s argument by saying:

"To the suggestion that it benefits a defendant who fails to take the stand not to have the attention of the jury directed to that fact, it suffices to say that, however difficult it may be to exercise enlightened self-interest, the accused should be allowed to make his own choice when an Act of Congress authorizes him to choose. And when it is urged that it is a psychological impossibility not to have a presumption arise in the minds of jurors against an accused who fails to testify, the short answer is that Congress legislated on a contrary assumption and not without support in experience. It was for Congress to decide whether what it deemed legally significant was [574]*574psychologically futile. Certainly, despite the vast accumulation of psychological data, we have not yet attained that certitude about the human mind which would justify us in disregarding the will of Congress by a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court that the failure of an accused to be a witness in his own cause 'shall not create any presumption against him.’ ” (308 US at 294).

In our case there is nothing in the opinion of the Court of Appeals to indicate either that defendant was asserting Fifth and Fourteenth Amendment rights or that the Court of Appeals treated this on a constitutional level.

It appears the ratio decidendi of the Court of Appeals opinion was that although the defendant has an absolute right to have such an instruction given under State v. Hale 22 Or App 144, 537 P2d 1173 (1975), and State v. Patton, 208 Or 610, 303 P2d 513 (1956), the giving of the instruction over his objection unjustifiably interfered with his trial strategy to avoid any mention of his failure to testify. The Court of Appeals relied primarily upon the "court’s reasoning” in Russell v. State, 240 Ark 97, 398 SW2d 213 (1966), quoting therefrom as follows:

"* * * the instruction ought not to be given against the wishes of the defendant. If the accused is to have the unfettered right to testify or not to testify he should have a correlative right to say whether or not his silence should be singled out for the jury’s attention.” (398 SW2d at 215).

The Oregon Court went on to adopt "a rule” that such an instruction not be given against defendant’s wishes, because such a rule allows defense counsel full latitude on matters of trial strategy, stating in part as follows:

"* * * we think that the better rule is to not give instructions ostensibly designed for defendant’s benefit [575]

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Lakeside v. Oregon
435 U.S. 333 (Supreme Court, 1978)
State v. Lakeside
561 P.2d 612 (Oregon Supreme Court, 1977)

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Bluebook (online)
561 P.2d 612, 277 Or. 569, 1977 Ore. LEXIS 1172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lakeside-or-1977.