State v. Lakeside

CourtCourt of Appeals of Oregon
Writing for the CourtBefore SCHWAB; LEE
Citation25 Or.App. 539,549 P.2d 1287
Decision Date01 June 1976
PartiesSTATE of Oregon, Respondent, v. Ensio Ruben LAKESIDE, Appellant.

Page 1287

549 P.2d 1287
25 Or.App. 539
STATE of Oregon, Respondent,
v.
Ensio Ruben LAKESIDE, Appellant.
Court of Appeals of Oregon.
Argued and Submitted April 21, 1976.
Decided June 1, 1976.

Phillip M. Margolin, Portland, argued the cause for appellant. With him on the brief were Nash & Margolin, Portland.

James A. Hill, Jr., Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen. and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FORT and LEE, JJ.

[25 Or.App. 541] LEE, Judge.

Defendant appeals his conviction of escape in the second degree, ORS 162.155. 1

At trial defendant raised the defense of lack of criminal responsibility per ORS 161.295. 2 Contrary to the wishes of defendant, the trial court instructed the jury 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

Page 1288

to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence.'

Defendant took timely objection to the giving of that instruction. Defendant maintains that, while he has a right to such an instruction if requested, it should not be given against his will. We agree.

If a defendant requests such an instruction, it must be given. State v. Hale, 22 Or.App. 144, 537 P.2d 1173 (1975). The state insists that 'if reversible error can occur from failure to give the instruction, the converse situation of giving the instruction over defendant's objection can hardly be error.' The defendant, however,[25 Or.App. 542] insists that giving the instruction over his objection unjustifiably interfered with his trial strategy, i.e., to avoid mention of his failure to testify.

The appellate courts of this state have not ruled on the propriety of giving such an instruction over the defendant's objection. We are persuaded, however, by the court's reasoning in Russell v. State, 240 Ark. 97, 100, 398 S.W.2d 213 (1966), in which a unanimous court stated that

'* * * 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.'

Other jurisdictions have reached the same conclusion. Gross v....

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3 practice notes
  • Lakeside v. Oregon, No. 76-6942
    • United States
    • United States Supreme Court
    • March 22, 1978
    ...is to not give instructions ostensibly designed for defendant's benefit over the knowledgeable objection of competent defense counsel." 25 Or.App. 539, 542, 549 P.2d 1287, 1288. The Oregon Supreme Court reinstated the conviction, holding that the giving of the instruction over the objection......
  • State v. Amini
    • United States
    • Court of Appeals of Oregon
    • June 24, 1998
    ...ostensibly designed for defendant's benefit over the knowledgeable objection of competent defense counsel." State v. Lakeside, 25 Or.App. 539, 542, 549 P.2d 1287 (1976). The Oregon Supreme Court reversed finding that giving the instruction over the defendant's objection did not violate his ......
  • State v. Lakeside
    • United States
    • Supreme Court of Oregon
    • March 17, 1977
    ...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 P.2d 1287 (1976). We granted Defendant assigned error as follows: 'It was error, and a violation of the Self-Incrimination Clause of the F......
3 cases
  • Lakeside v. Oregon, No. 76-6942
    • United States
    • United States Supreme Court
    • March 22, 1978
    ...is to not give instructions ostensibly designed for defendant's benefit over the knowledgeable objection of competent defense counsel." 25 Or.App. 539, 542, 549 P.2d 1287, 1288. The Oregon Supreme Court reinstated the conviction, holding that the giving of the instruction over the objection......
  • State v. Amini
    • United States
    • Court of Appeals of Oregon
    • June 24, 1998
    ...ostensibly designed for defendant's benefit over the knowledgeable objection of competent defense counsel." State v. Lakeside, 25 Or.App. 539, 542, 549 P.2d 1287 (1976). The Oregon Supreme Court reversed finding that giving the instruction over the defendant's objection did not violate his ......
  • State v. Lakeside
    • United States
    • Supreme Court of Oregon
    • March 17, 1977
    ...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 P.2d 1287 (1976). We granted Defendant assigned error as follows: 'It was error, and a violation of the Self-Incrimination Clause of the F......

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