State v. Lakeside

CourtSupreme Court of Oregon
Writing for the CourtBefore DENECKE; LENT; We do not read Bruno to support the last clause of the matter quoted from Justice Douglas' dissent and relied upon by the Molano court. It is true that after the court in Bruno held the defendant was entitled on his request to a
Citation277 Or. 569,561 P.2d 612
Decision Date17 March 1977
PartiesSTATE of Oregon, Petitioner, v. Ensio Ruben LAKESIDE, Respondent.

Page 612

561 P.2d 612
277 Or. 569
STATE of Oregon, Petitioner,
v.
Ensio Ruben LAKESIDE, Respondent.
Supreme Court of Oregon, In Banc.
Argued and Submitted Nov. 2, 1976.
Decided March 17, 1977.

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

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

Page 613

Before DENECKE, C.J., and McALLISTER,* O'CONNELL,** TONGUE, HOWELL, BRYSON and LENT, JJ.

[277 Or. 571] LENT, 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 P.2d 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 of 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 [277 Or. 572] prosecuting attorney, of course, was foreclosed from mentioning the fact in any way. See, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

A brief review of Griffin, supra, 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 U.S. at 610, 85 S.Ct. at 1230).

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

Page 614

proof. 2 The United States Supreme Court granted certiorari:

'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, 84 S.Ct. 1489, 12 L.Ed.2d 653, decided after the Supreme Court of California had affirmed the present conviction.' (380 U.S. at 611, 85 S.Ct. at 1231).

[277 Or. 573] The court held that the Fifth Amendment forbids either comment by the prosecution of the accused's silence or instructions by the court that such silence is evidence of guilt.

Because many of the cases reviewed direct our attention to the decision in Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (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 [277 Or. 574] psychologically 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 U.S. at 294, 60 S.Ct. at 200).

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 P.2d 1173 (1975), and State v. Patton, 208 Or. 610, 303 P.2d 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'

Page 615

in Russell v. State, 240 Ark. 97, 398 S.W.2d 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 S.W.2d 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 [277 Or. 575] over the knowledgeable objection of competent defense counsel.' (25 Or.App. at 542, 549 P.2d at 1288). 3

We have never had occasion to consider the question now before us. It has been considered by many other courts, however, and a review of the opinions of others will be of assistance in understanding our conclusions.

Russell v. State, supra, fails to advance the constitutional claims asserted here. In Russell the court cited no authority whatsoever for the material quoted by the Court of Appeals. If the Arkansas court were relying upon either its own constitution or the Fifth Amendment to the United States Constitution, as defendant urges in the case at bar, there would be some indication of that in the opinion. 4

The Court of Appeals found that Gross v. State, 261 Ind. 489, 306 N.E.2d 371 (1974); Villines v. State, 492 P.2d 343 (Okl.Cr.1971); and People v. Molano, 253 Cal.App.2d 841, 61 Cal.Rptr. 821, 18 A.L.R.3d 1328 (1967); had reached the same conclusion as Russell, but acknowledged there were holdings to the contrary, citing United States v. Williams, 172 U.S.App.D.C. 290, 521 F.2d 950 (1975); United States v. Rimanich, 422 F.2d [277 Or. 576] 817 (7th Cir. 1970); and United States v. Schwartz, 398 F.2d 464 (7th Cir. 1968), Cert. den. 393 U.S. 1062, 89 S.Ct. 714, 21 L.Ed.2d 705 (1969).

In Gross, the Indiana court noted there was no definitive holding by the United States Supreme Court on the issue and that other jurisdictions which had considered the matter were about evenly divided, citing 18 A.L.R.3d 1335. The Indiana court held that although it was unpersuaded that 'the narrow holding' of Griffin was applicable, the giving of the complained-of instruction over defendant's prior objection was constitutionally prohibited by the Fifth Amendment. In weighing the effect which we accord to Gross, we draw attention to the exact words of the instruction for comparison with that given in the case at bar:

'The defendant in this case has not taken the witness stand as a witness. Upon this question, I instruct the jury that the Statute of our State (their emphasis) reads as...

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9 practice notes
  • Lakeside v. Oregon, No. 76-6942
    • United States
    • United States Supreme Court
    • March 22, 1978
    ...right to counsel in almost every permissible ruling of a trial judge if made over the objection of the defendant's lawyer. Pp. 341-342. 277 Or. 569, 561 P.2d 612, affirmed. Phillip M. Margolin, Portland, Or., for petitioner. Thomas H. Denney, Salem, Or., for respondent. Page 334 Mr. Justice......
  • State v. Amini
    • United States
    • Court of Appeals of Oregon
    • June 24, 1998
    ...reversed finding that giving the instruction over the defendant's objection did not violate his constitutional rights. State v. Lakeside, 277 Or. 569, 561 P.2d 612 (1977). The United States Supreme Court The defendant's argument in Lakeside was expressed by the Supreme Court in similar fash......
  • Cunningham v. Thompson
    • United States
    • Court of Appeals of Oregon
    • February 5, 2003
    ...want to emphasize the fact that [petitioner] did not take the stand." The state also contends that, consistently with State v. Lakeside, 277 Or. 569, 561 P.2d 612 (1977), aff'd sub nom., Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), a decision not to request such a......
  • State v. Warner
    • United States
    • Supreme Court of Oregon
    • October 24, 1978
    ...duty but merely seek to enlist the cooperation of trial judges in this respect. Compare State v. Lakeside (Denecke, C. J., dissenting), 277 Or. 569, 589, 561 P.2d 612 Page 689 Street Encounters It seems that there are three generally recognized categories of street encounters between police......
  • Request a trial to view additional results
9 cases
  • Lakeside v. Oregon, No. 76-6942
    • United States
    • United States Supreme Court
    • March 22, 1978
    ...right to counsel in almost every permissible ruling of a trial judge if made over the objection of the defendant's lawyer. Pp. 341-342. 277 Or. 569, 561 P.2d 612, affirmed. Phillip M. Margolin, Portland, Or., for petitioner. Thomas H. Denney, Salem, Or., for respondent. Page 334 Mr. Justice......
  • State v. Amini
    • United States
    • Court of Appeals of Oregon
    • June 24, 1998
    ...reversed finding that giving the instruction over the defendant's objection did not violate his constitutional rights. State v. Lakeside, 277 Or. 569, 561 P.2d 612 (1977). The United States Supreme Court The defendant's argument in Lakeside was expressed by the Supreme Court in similar fash......
  • Cunningham v. Thompson
    • United States
    • Court of Appeals of Oregon
    • February 5, 2003
    ...want to emphasize the fact that [petitioner] did not take the stand." The state also contends that, consistently with State v. Lakeside, 277 Or. 569, 561 P.2d 612 (1977), aff'd sub nom., Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), a decision not to request such a......
  • State v. Warner
    • United States
    • Supreme Court of Oregon
    • October 24, 1978
    ...duty but merely seek to enlist the cooperation of trial judges in this respect. Compare State v. Lakeside (Denecke, C. J., dissenting), 277 Or. 569, 589, 561 P.2d 612 Page 689 Street Encounters It seems that there are three generally recognized categories of street encounters between police......
  • Request a trial to view additional results

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