State v. Johnson

PER CURIAM

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 P2d 1173 (1975).¹

Reversed and remanded for a new trial.

1 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 P2d 555 (1983).