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STATE OF CONNECTICUT v.
JOSE LUIS RODRIGUEZ
(AC 40837)
Lavine, Moll and Bishop, Js.
Syllabus
Convicted of the crimes of public indecency, breach of the peace, improper
use of a marker, registration or license, and illegal operation of a motor
vehicle while his driver’s license was under suspension, and of two
counts of the crime of failure to appear in the second degree, the
defendant appealed to this court. The defendant’s conviction stemmed
from an incident in which he allegedly exposed his penis and appeared
to be masturbating while at a diner. On appeal, he claimed, inter alia,
that the trial court improperly admitted certain evidence of uncharged
prior misconduct, which pertained to incidents in which he was arrested
but not charged for exposing himself to a waitress at either a diner or
restaurant. Held:
1. The defendant’s claim that the trial court improperly admitted evidence
of prior uncharged misconduct was not reviewable, the defendant having
failed to preserve the claim by objecting to the court’s admission of the
uncharged misconduct evidence, and the court did not commit plain
error by admitting the uncharged misconduct evidence, as the alleged
error was not so obvious that it affected the fairness and integrity of
and public confidence in the judicial proceedings.
2. The defendant’s claim that he was entitled to plain error reversal because
the trial court improperly instructed the jury on the uncharged misconduct evidence was unavailing; the defendant failed to file a request to
charge or to object to the court’s proposed instructions, and the jury
instructions pertaining to the uncharged misconduct evidence did not
rise to the level of egregiousness and harm that would warrant reversal
under the plain error doctrine, as the uncharged misconduct evidence
had been admitted without objection from the defendant and, thus, the
court was required to instruct the jury as to how to consider that evidence, and the defendant failed to articulate in what precise respect
the jury instructions at issue were flawed and caused harm.
3. The trial court did not abuse its discretion in denying the defendant’s
motion to sever the failure to appear counts from the other counts in
the information; although the conduct for which the defendant was
convicted could be perceived as deeply offensive, the crimes involved
did not rise to the level of shocking so as to warrant severance, and
even if the public indecency and breach of the peace charges shocked
or aroused the passions of the jurors, any prejudice that might have
resulted was ameliorated by the trial court’s curative instructions, and
the evidence was overwhelming as to all charges against the defendant.
Argued March 14—officially released August 27, 2019
Procedural History
Substitute information charging the defendant with
the crimes of public indecency, breach of the peace,
improper use of a marker, registration or license, and
illegal operation of a motor vehicle while his driver’s
license was under suspension, and with two counts of
failure to appear in the second degree, brought to the
Superior Court in the judicial district of Danbury, geographical area number three, where the court, Russo,
J., denied the defendant’s motion to sever the failure
to appear charges; thereafter the matter was tried to a
jury; verdict and judgment of guilty, from which the
defendant appealed to this court. Affirmed.
Conrad Ost Seifert, assigned counsel, for the appel-
lant (defendant).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky III, state’s
attorney, and Deborah Mabbett, senior assistant state’s
attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Jose Luis Rodriguez,
appeals from the judgment of conviction, rendered following a jury trial, of public indecency in violation of
General Statutes § 53a-186 (a) (2), breach of the peace
in the second degree in violation of General Statutes
§ 53a-181 (a) (5), improper use of a marker, registration,
or license in violation of General Statutes § 14-147 (c),
illegal operation of a motor vehicle while his driver’s
license was under suspension in violation of General
Statutes § 14-215 (a), and two counts of failure to appear
in the second degree in violation of General Statutes
§ 53a-173 (a) (1). The defendant claims on appeal that
the court improperly (1) admitted evidence of
uncharged misconduct, (2) instructed the jury on the
uncharged misconduct evidence, and (3) denied his
motion to sever the public indecency, breach of the
peace, and motor vehicle charges from the failure to
appear charges. We affirm the judgment of the trial
court.
The jury reasonably could have found the following
facts beyond a reasonable doubt. At 2 a.m. on September 14, 2006, a waitress at Blue Colony Diner (diner)
in Newtown called the police because the defendant
had exposed his penis and appeared to be masturbating.
When police officers arrived at the diner, the waitress
directed them to the table where the defendant was
seated. Although the defendant told police that someone named ‘‘Steve’’ dropped him off at the diner, the
police found a set of keys on his person that matched
an Oldsmobile in the diner parking lot. The police ran
the license plate on the Oldsmobile through their database system and discovered that it belonged to a different vehicle and was registered to another individual.
The police also learned that the operator’s license of
the defendant had been suspended indefinitely.
The defendant was charged with public indecency,
breach of the peace in the second degree, and motor
vehicle violations. He failed to appear on May 2, 2007,
and July 17, 2009, and was arrested and charged for
both failures.
The public indecency, breach of the peace, and motor
vehicle charges were consolidated with the failure to
appear charges for trial. The defendant filed a motion
to sever the failure to appear charges from the other
charges; the motion was heard and denied by the court.
Trial commenced on June 6, 2017. The defendant was
convicted of all charges and sentenced to a total effective sentence of two years of imprisonment, execution
suspended after one year and two days, and three years
of probation. The defendant then appealed from the
judgment of conviction.
I
admitted evidence of three instances in which he was
arrested but not charged for exposing himself to a waitress at either a diner or restaurant. The state argues
that the defendant did not preserve this evidentiary
claim. We agree with the state. Alternatively, the defendant claims that he is entitled to plain error reversal.
We disagree.
At trial, the state offered evidence of the defendant’s
uncharged misconduct pursuant to § 4-5 (c) of the Connecticut Code of Evidence and argued that it was admissible to prove his intent to expose himself for sexual
gratification, the lack of mistake or accident, motive,
and a common plan or scheme involving a pattern of
sexual behavior. The state also offered the uncharged
misconduct under § 4-5 (b) of the Connecticut Code of
Evidence to show propensity for sexual misconduct.
The defendant’s counsel did not object; in response to
the state’s proffer of uncharged misconduct evidence,
he stated: ‘‘I would have to leave it to the court’s discretion, in that regard . . . .’’
‘‘[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise
the trial court of the precise nature of the objection
and its real purpose, in order to form an adequate basis
for a reviewable ruling. . . . Once counsel states the
authority and ground of [the] objection, any appeal will
be limited to the ground asserted. . . .
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush. . . .
[A] party cannot present a case to the trial court on
one theory and then seek appellate relief on a different
one . . . . For this court to . . . consider [a] claim on
the basis of a specific legal ground not raised during
trial would amount to trial by ambuscade, unfair both
to the [court] and to the opposing party. . . . Thus,
because the sina qua non of preservation is fair notice
to the trial court; see, e.g., State v. Ross, 269 Conn.
213, 335–36,
849 A.2d 648 (2004) (the essence of the
preservation requirement is that fair notice be given
to the trial court of the party’s view of the governing law
[emphasis in original]); the determination of whether
a claim has been properly preserved will depend on a
careful review of the record to ascertain whether the
claim on appeal was articulated below with sufficient
clarity to place the trial court on reasonable notice
of that very same claim.’’ (Citations omitted; internal
quotation marks omitted.) State v. Jorge P.,
308 Conn.
740, 753–54,
66 A.3d 869 (2013).
The defendant argues on appeal that his counsel
‘‘somewhat ambiguously objected and, inter alia, stated
that ‘propensity evidence is, extremely, potent evidence.’ ’’ Leaving an evidentiary ruling to the court’s
judgment falls well short of making an objection. So
does an observation about the potency of evidence. On
the basis of our review of the record, we conclude the
defendant did not object to the court’s admission of
the uncharged misconduct evidence at all, and certainly
not with sufficient clarity so as to provide fair notice
to the trial court. We therefore decline to review the
defendant’s claim.
The defendant further argues that even if his claim
is unpreserved, he is entitled to plain error reversal on
the ground that the uncharged misconduct evidence
was not otherwise admissible and the prejudicial impact
of the evidence outweighed its probative value. We
disagree.
‘‘[The plain error] doctrine, codified at Practice Book
§ 60-5, is an extraordinary remedy used by appellate
courts to rectify errors committed at trial that, although
unpreserved, are of such monumental proportion that
they threaten to erode our system of justice and work
a serious and manifest injustice on the aggrieved party.
[T]he plain error doctrine . . . is not . . . a rule of
reviewability. It is a rule of reversibility. That is, it is a
doctrine that this court invokes in order to rectify a
trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for
reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations [in
which] the existence of the error is so obvious that it
affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review.’’ (Internal quotation marks
omitted.) State v. Sanchez,
308 Conn. 64, 76–77,
60 A.3d
271 (2013).
The trial court’s admission of the uncharged misconduct evidence in this case does not warrant relief under
the plain error doctrine because the alleged error is not
so obvious that it affects the fairness and integrity of
and public confidence in the judicial proceedings. On
the record, the court explained to counsel why it concluded that the uncharged misconduct evidence was
admissible1 and also addressed any possible prejudice
by instructing the jury regarding the manner in which
it was allowed to consider the evidence.2 We therefore
reject the defendant’s claim that the court committed
plain error by admitting the uncharged misconduct
evidence.
II
The defendant claims that he is entitled to plain error
reversal for a second reason—that the court improperly
instructed the jury on the uncharged misconduct
evidence. We disagree.
The defendant concedes that he failed to file a request
to charge or object to the court’s proposed instructions
and acknowledges waiver pursuant to State v. Kitchens,
299 Conn. 447,
10 A.3d 942 (2011). The defendant
argues, however, that he is nonetheless entitled to plain
error reversal pursuant to State v. McClain,
324 Conn.
802, 815,
155 A.3d 209 (2017). We have reviewed the
record and conclude that the defendant is not entitled
to plain error reversal because the jury instructions
pertaining to the uncharged misconduct evidence do
not rise to the level of egregiousness and harm that
would warrant reversal under the plain error doctrine.
‘‘[An appellant] cannot prevail under [the plain error
doctrine] . . . unless he demonstrates that the claimed
error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injustice.’’ (Emphasis omitted; internal quotation marks
omitted.)
Id., 812. The defendant’s apparent claim, that
no jury instructions were proper given that the
uncharged misconduct evidence ought not to have been
admitted, is misguided. The uncharged misconduct evidence was admitted without objection from the defendant, and, accordingly, the court was required to
instruct the jury as to how to consider that evidence.
Moreover, the defendant fails to articulate in what precise respect the jury instructions at issue were flawed
and caused harm. We reject the defendant’s claim for
plain error reversal.
III
The defendant’s third claim is that the trial court
abused its discretion in denying his motion to sever
the public indecency, breach of the peace, and motor
vehicle charges from the failure to appear charges.
We disagree.
‘‘The principles that govern our review of a trial
court’s ruling on a motion for joinder or a motion for
severance are well established. Practice Book § 41-19
provides that, [t]he judicial authority may, upon its own
motion or the motion of any party, order that two or
more informations, whether against the same defendant
or different defendants, be tried together. . . . In
deciding whether to [join informations] for trial, the trial
court enjoys broad discretion, which, in the absence of
manifest abuse, an appellate court may not disturb.
. . . The defendant bears a heavy burden of showing
that [joinder] resulted in substantial injustice, and that
any resulting prejudice was beyond the curative power
of the court’s instructions.’’ (Internal quotation marks
omitted.) State v. Payne, 303 Conn. 538, 543–44,
34 A.3d
370 (2012).
‘‘The court’s discretion regarding joinder . . . is not
unlimited; rather, that discretion must be exercised in
a manner consistent with the defendant’s right to a fair
trial. Consequently, we have identified several factors
that a trial court should consider in deciding whether
a severance may be necessary to avoid undue prejudice
resulting from consolidation of multiple charges for
trial. These factors include: (1) whether the charges
involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or
concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the
trial. . . . If any or all of these factors are present, a
reviewing court must decide whether the trial court’s
jury instructions cured any prejudice that might have
occurred.’’ (Internal quotation marks omitted.)
Id., 545.
‘‘[A]lthough a curative instruction is not inevitably sufficient to overcome the prejudicial impact of [inadmissible other crimes] evidence . . . where the likelihood
of prejudice is not overwhelming, such curative instructions may tip the balance in favor of a finding that the
defendant’s right to a fair trial has been preserved.’’
(Internal quotation marks omitted.) State v. McKethan,
184 Conn. App. 187, 198,
194 A.3d 293, cert. denied,
330
Conn. 931,
194 A.3d 779 (2018).
Prior to trial, the defendant filed a motion to sever
the public indecency, breach of the peace, and motor
vehicle charges from the failure to appear charges. In
support of that motion, the defendant argued that if
he were to testify as to the failure to appear charges,
possible misconduct evidence may be used for impeachment purposes or used substantively with respect to
the public indecency charge. Therefore, the defendant
asserted that a joinder of the charges would implicate
his constitutional right to remain silent.
The trial court addressed the defendant’s motion to
sever under the three part analysis set forth in State v.
Boscarino,
204 Conn. 714, 722–24,
529 A.2d 1260 (1987).
The court first determined that the charges against the
defendant related to distinct factual scenarios and that
the state would be able to present its evidence in an
orderly manner. Second, it found that the crimes
charged against the defendant were not of a violent,
brutal or shocking nature, given that all charges brought
against the defendant were misdemeanor charges.
Third, it found that the trial would be short and ‘‘not
terribly complex.’’ The court concluded that all three
factors weighed against severance and denied the
motion to sever.
The court, however, expressed concern that if the
jury learned that the failure to appear charges were
associated with the date of trial for the public indecency
and breach of the peace charges, the jury could infer
a consciousness of guilt on the part of the defendant.
It also was concerned that if the defendant were to
testify as to certain charges but not others, the jury
may infer an admission of guilt from the defendant’s
selective silence. The court thus gave curative instructions to the potential jurors prior to jury selection, on
April 25, 2017, and before the start of evidence, on June
6, 2017, to address any possible prejudice caused by
the consolidation of charges.3
On appeal, the defendant argues that ‘‘[t]he repulsive
and shocking nature of the [public indecency and
breach of the peace] crimes prejudiced [his] ability to
receive a fair trial on the failure to appear charges.’’
The defendant further argues that he chose to testify
as to all charges, even though he wanted to testify only
as to the failure to appear charges, because his silence
would be damaging in the face of his express denial of
the failure to appear charges. The defendant also argues
that his right to remain silent was impermissibly burdened; however, he waived this constitutional claim
by testifying as to all charges. More specifically, the
defendant argues that the court erred in finding that
the second Boscarino factor—whether the crimes were
of a violent nature or concerned brutal or shocking
conduct on his part—weighed against severance
because his conduct in the diner was shocking. We
disagree.
The defendant relies on State v.
Payne, supra,303
Conn. 538, for the standard of whether the crimes were
of a violent nature or concerned brutal or shocking
conduct on the defendant’s part. In Payne, our Supreme
Court concluded that the defendant’s felony murder of
a victim was significantly more brutal and shocking
than an attempt to tamper with jurors and, therefore,
weighed in favor of severance.
Id., 552. In reaching
that conclusion, our Supreme Court determined that
‘‘[w]hether one or more offenses involved brutal or
shocking conduct likely to arouse the passions of the
jurors must be ascertained by comparing the relative
levels of violence used to perpetrate the offenses
charged in each information.’’ (Internal quotation marks
omitted.)
Id., 551.
In the present case, the public indecency and breach
of the peace charges are not crimes of violence such
as murder. Although the conduct for which the defendant was convicted could certainly be perceived as
deeply offensive, none of the crimes rise to the level of
‘‘shocking’’ so as to warrant severance. See
id., 551–52
(murder by shooting victim at close range was brutal
and shocking as compared to jury tampering where no
violence was involved); State v.
McKethan, supra, 184
Conn. App. 197–98 (killing victim in middle of night in
isolated location was brutal and shocking as compared
to drug and firearm possession case where no violence
was involved); contra State v. LaFleur,
307 Conn. 115,
160–61,
51 A.3d 1048 (2012) (assault by punching victim
in face twenty to thirty times was not so shocking or
brutal that another assault by punching victim once in
face was compromised by joinder); State v. Jennings,
216 Conn. 647, 651–52, 659,
583 A.2d 915 (1990) (assault
by cutting victim’s neck with box cutter and punching,
kicking, and throwing victim around parking lot, and
assault by cutting victim’s finger and arm with knife
were not brutal and shocking because ‘‘[t]he physical
harm that was inflicted on the victim, although serious,
was not disabling, and the element of sexual derangement present in Boscarino was absent’’); State v. Santaniello,
96 Conn. App. 646, 657,
902 A.2d 1 (charges of
sexual assault and attempted murder were not so brutal
or shocking that they would inflame passions of jury
given that victim was not child and details of crimes
were not so brutal and shocking as to ‘‘impair the jury’s
ability to consider the charges set forth in the informations in a fair manner’’), cert. denied,
280 Conn. 920,
908 A.2d 545 (2006); State v. Smith,
88 Conn. App.
275, 279,
869 A.2d 258 (robberies in which defendant
threatened use of force by implying that he had firearm
were not particularly brutal or shocking), cert. denied,
273 Conn. 940,
875 A.2d 45 (2005). Even if the public
indecency and breach of the peace charges shocked or
aroused the passions of the jurors, any prejudice that
might have resulted was ameliorated by the trial court’s
curative instructions.4 Further, the evidence was overwhelming as to all charges against the defendant. We
conclude, therefore, that the court did not abuse its
discretion by denying the defendant’s motion to sever.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On June 6, 2017, the court explained to counsel: ‘‘The court has reviewed
the state’s notice of intent to offer evidence of uncharged misconduct and,
specifically, has reviewed the proffer attached to it of three separate incidences, one on May 21, 2006, one on March 9, 2005, and a third on June
17, 2009.
‘‘And . . . the court, after reviewing those documents, arrives at the following ruling, with respect to the state’s notice of intent to offer evidence
of uncharged misconduct:
‘‘The fact that such evidence tends to prove the commission of other
crimes by an accused does not render it inadmissible, if it is otherwise
relevant and material. That’s from [State v. Figueroa, 235 Conn. 145,
665
A.2d 63 (1995)].
‘‘Such evidence is admissible for other purposes such as to show intent, an
element in the crime, identity, malice, motive or a system of criminal activity.
‘‘Whether evidence of the uncharged misconduct is admissible is twopronged.
‘‘First, the evidence must be relevant and material to, at least, one of the
circumstances encompassed by the exceptions to the rule.
‘‘Second, the probative value of such evidence must outweigh the prejudice
or affect of the other crimes evidence, and that’s at [State v.
Figueroa,
supra,235 Conn. 162].
‘‘A review of [State v. DeJesus,
288 Conn. 418,
953 A.2d 45 (2008)] assists
the court, with respect to the relevancy standard for this type of misconduct.
‘‘[State v. DeJesus] holds as follows:
‘‘Relevancy is established by satisfying the liberal standard, pursuant to
which evidence previously was admitted under the common scheme or
plan exception.
‘‘Accordingly, evidence of uncharged misconduct is relevant to prove that
the defendant had a propensity or a tendency to engage in the crime charged,
only if it is one, not too remote in time; two, similar to the offense charged;
and three, committed upon persons similar to the prosecuting witness.
‘‘Under the first prong of the court’s analysis the evidence of the three
other public indecency incidences are relevant to the identity of the person
who allegedly performed the public indecency incident, in connection with
this trial, as well as the common plan or scheme.
‘‘The first threshold for the use of evidence of other crimes or misconduct,
on the issue of identity, is that the methods used are sufficiently unique to
more—a reasonable inference that the person who performed one misdeed
also did the other, so as to be the handiwork of the accused.
‘‘A comparison of the three crimes sought to be introduced discloses the
following similarities to the present crime: one, all three offenses, including
this one, which would make it four, occurred at nighttime or early morning
hours; in each instan[ce] the venue, including this one, was a diner or
restaurant; three, in each instance the . . . indecency began from under a
table, including the present case; four, in each instance the event began
with a request for a beverage; five, in each instance the indecency was
observed, when the waitress returned with a beverage; six, in each instance
the waitress was a female; seven, in each instance the waitress was a younger
rather than older employee; and, eight, each victim described the person
performing the . . . indecent act, as a Hispanic male with similar features
to that of the defendant. The same or similar identifiers are so common to
one another that they do form a criminal logo, which justifies the inference
that the individual who committed the first offense also committed the
second and third and so on.
‘‘Under these facts and circumstances this court concludes that the characteristics of the incidences offer[ed] by the state were sufficiently distinctive
and unique to be like a signature, and, thus, the defendant’s participation
in those incidences are highly probative on the issue of the identity of a
complainant’s offender in this case, as well as the common plan or scheme
and, therefore, outweigh any prejudicial effect of its admittance.
‘‘However, the court will issue a . . . limiting instruction before the first
witness is presented by the state and the court has gone over that instruction
with the parties and the parties are satisfied with the instruction that the
court is prepared to give.’’
2
The court instructed the jury on June 6, 2017: ‘‘Ladies and gentlemen,
the state is going to call a witness, who’s going to testify to certain acts of
. . . misconduct of the defendant. And, now, they’re going to be offering
that evidence through one, two or three separate witnesses, during this trial
and I want to give you now a limiting instruction on how to use that type
of evidence.
‘‘That type of evidence is not being admitted to prove the bad character,
propensity or criminal tendency of the defendant, it’s being admitted solely
to show or establish the identity of the person who committed the crime
alleged, that the commission of the crimes may have followed a common
plan or scheme or a system of criminal activity engaged in, by the defendant.
You may not consider such evidence as establishing a predisposition on the
part of the defendant to commit any of the crimes charged or to demonstrate
a criminal propensity.
‘‘Evidence of a prior offense, on its own, is not sufficient to prove the
defendant guilty of the crimes charged in this information.
‘‘Bear in mind, as you consider this evidence that, at all times, the state
does have the burden of proving that the defendant committed each of the
elements of the offenses charged, in the present case. And, I remind you
that the defendant is not on trial for any act, conduct or offense not charged
in the present information.’’
On June 7, 2017, the court gave substantially similar instructions to the
jury on two separate occasions.
3
On April 25, 2017, the court instructed the potential jurors as follows:
‘‘[W]hen the state calls witnesses to elicit information, in other words,
evidence, to support its allegation that [the defendant] failed to appear in
court on two separate dates, those charges ha[ve] absolutely nothing to do
with the other four charges alleged by the state, there is no connection
whatsoever. You may be sitting there and asking yourself; well, then why
are they included in this trial? The answer is; judicial economy. We’re going
to try them all together, but you must be certain, I can’t express in strong
enough terms, that the evidence presented to support the state’s case for
possible failures to appear on [the defendant’s] behalf have absolutely noth-
ing to do and no connection with any allegations the state may have made
on [the defendant] in count one, in count two, in count three, in count four.
‘‘Therefore, there is the possibility that [the defendant] does not testify
on his own behalf in connection with any of the six charges. Likewise,
there’s the possibility that [the defendant] may elect to testify on his own
behalf, only with respect to some of the charges. Or, the possibility also
exists that [the defendant] may elect to testify on his own behalf, with
respect to all six charges. We don’t know what his election will be yet,
because the case has not [begun] yet. However, I must caution you; should
[the defendant] testify on his own behalf, in connection with some of the
charges, but not with respect to all of the charges, you are to draw absolutely
no negative inference, but the fact that he’s chosen to address and defend
himself on some of the charges, but not all of the charges. He has a constitutional right not to testify and that remains with him throughout the entirety
of this trial.’’
On June 6, 2017, the trial court again instructed the jury: ‘‘The defendant
may or may not testify in this case. An accused person has the option to
testify or not to testify at the trial. He is under no obligation to testify. He
has a constitutional right not to testify. You must draw no unfavorable
inference from the defendant’s choice not to testify, if that is his election.’’
4
See footnote 3 of this opinion.
