State v. Hart

WARDEN, P. J.

Defendant appeals from a judgment of conviction for assault in the third degree, ORS 163.165, contending that the trial court erred by instructing the jury on his right not to testify,¹ because defendant did not request the instruction.

Defendant excepted to the instruction:

“[C]orrect me if I am mistaken, Your Honor — but I do not believe that we requested defendant not testifying, and I don’t have my proposed instructions with me. It is not my habit to request that. I didn’t voir dire on it. For that reason, I believe it is prejudicial.”

On appeal, defendant argues that the Oregon Constitution, Article I, sections 10, 11 and 12, precludes trial courts from giving the “defendant not testifying” instruction unless the defendant requests it. We do not reach the merits of the issue. Defendant has not raised a question for our review, because he failed to “make known to the trial judge the specific objection which he wishes to present on appeal * * Harkins v. Doyle, 271 Or 664, 670, 533 P2d 785 (1975); Padel v. Narits, 247 Or 566, 568, 430 P2d 1002 (1967). Defendant, having abandoned on appeal the ground for the exception actually made at trial, and not having raised at trial the ground for the exception argued on appeal, has waived any error in the instruction at issue.²

Affirmed.

1 The court gave the jury Uniform Criminal Jury Instruction No. 1014:

“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 deliberations.”

2 The preservation of error rule extends to constitutional issues raised for the first time on appeal. See State v. Kessler, 289 Or 359, 371 n 17, 614 P2d 94 (1980); State v. Davis, 56 Or App 535, 538, 642 P2d 350 (1982). Defendant’s contention does not present the exceptional circumstances or manifest error which justifies our consideration of his claim. See State v. Lakeside, 277 Or 569, 588 n 10, 561 P2d 612 (1977), aff’d sub nom Lakeside v. Oregon, 435 US 333, 98 S Ct 1091, 55 L Ed 2d 319 (1978).