State v. Hart

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…