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State v. Gomez10/13/2005
ce outweighed its potential for unfair prejudice, we therefore conclude that the trial court did not abuse its discretion when it admitted the other crimes evidence.
II.
We now turn to Gomez's contention that the trial court committed reversible error when it instructed the jury on Gomez's right not to testify without obtaining his consent to give the instruction on the record. Gomez contends that the questionable credibility of two key witnesses made his case a "close factual case" and that the instruction, coupled with the Spreigl evidence, "had to have some impact on the verdicts rendered by the jury." We disagree.
A defendant in a criminal trial has the right to testify, but failure to testify shall not create any presumption against the defendant. Minn. Stat. ยง 611.11 (2004). If the defendant chooses not to testify, the trial court may instruct the jury not to draw any adverse inference from the fact that the defendant has not testified only if the defendant requests the court to do so. 10 Minn. Dist. Judges Ass'n, Minnesota Practice - Jury Instruction Guides, Criminal, CRIMJIG 3.17 (4th ed. 1999 & Supp. 2003-04); McCollum v. State, 640 N.W.2d 610, 616 (Minn. 2002). If the defendant requests the instruction, the court or the defendant's counsel must make a record of "the defendant's clear consent and insistence that the instruction be given." McCollum, 640 N.W.2d at 617. No party may assign as error any portion of the change or omission from the instructions given unless the party objects to the instructions before the jury retires to consider its verdict. Minn. R. Crim. P. 26.03, subd. 18(c). If no objection is made to the trial court giving the no-adverse-inference instruction, review is for plain error. State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002). For there to be plain error: (1) there must have been error; (2) the error was plain; and (3) the error must have affected the party's substantial rights. Id.
We have stated that the third prong is satisfied if the error was prejudicial and affected the outcome of the case. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). An error in instructing the jury is prejudicial if there is a reasonable likelihood that giving the instruction in question had a significant effect on the jury verdict. Id. We have held that a defendant who fails to object to the no-adverse-inference instruction bears a heavy burden of showing that substantial rights have been affected. Darris, 648 N.W.2d at 240 (citation omitted). Giving the no-adverse-inference instruction without consent, absent a showing of prejudice, is harmless. See id. If these three prongs are met, the reviewing court then assesses whether it should address the error to ensure the fairness and integrity of the judicial proceedings. Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 467 (1997)).
Gomez did not testify at his trial. Because he did not testify, a question arose as to whether the jury was to be instructed that no adverse inference was to be made based on Gomez's failure to testify. In resolving that question, the following discussion took place:
[DEFENSE COUNSEL]: Judge, do we need to put on the record - my client didn't testify. That's his choice -
THE COURT: Yes.
[DEFENSE COUNSEL]: Do we do that at this time or -
THE COURT: Yes. * * * Also you tell me whether you want an instruction on that.
[DEFENSE COUNSEL]: Judge, if I can think about that overnight I know we'll be able to give you an answer tomorrow.
THE COURT: I can't give the instruction - or at least I won't -
[DEFENSE COUNSEL]: Right.
TH
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