This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-849

State of Minnesota,

Respondent,

vs.

Gregory Allen Demmings,

Appellant.

Filed January 28, 1997

Affirmed

Lansing, Judge

Ramsey County District Court

File No. T8967675

Hubert H. Humphrey III, Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101 (for Respondent)

Timothy E. Marx, St. Paul City Attorney, Janet A. Reiter, Assistant City Attorney, 500 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Norton, Presiding Judge, Lansing, Judge, and Huspeni, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

This appeal is from a conviction for fifth degree misdemeanor assault. Minn. Stat. § 609.224, subd. 1 (1994). Gregory Demmings asserts that the district court's unrequested instruction on his right not to testify is reversible error. Because we conclude that Demmings waived any challenge to the instruction on his right not to testify, we affirm.

D E C I S I O N

A court should obtain the defendant's permission before instructing the jury on the defendant's right not to testify and on the jury's duty not to draw any adverse inference from the exercise of that right. State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).

Demmings did not object to the district court's reading CRIMJIG 3.17 which instructed the jury on his right not to testify. Generally, the defendant's failure to challenge a jury instruction at trial waives his right to appeal the issue unless the error is one of fundamental law that results in substantial and material prejudice to the defendant's rights. State v. Dolbeare, 511 N.W.2d 443, 446 (Minn. 1994); see also Minn. R. Crim. P. 31.02 (plain error may be raised on appeal although not brought to the attention of the trial court). But because we conclude that Demmings waived any challenge during the course of the trial, we need not reach the issue of whether it is plain error to give CRIMJIG 3.17 when the defense does not request it. Cf. Thompson, 430 N.W.2d at 153 (new trial not necessarily required by absence in record of defense request for CRIMJIG 3.17).

Defense counsel in questioning three prospective jurors in voir dire informed them of the defendant's right not to testify and told one of them the judge would instruct them regarding that right. One of these prospective jurors served on the jury. The prospective jurors were not sequestered during voir dire. Most of the jurors ultimately chosen were apparently exposed to these questions alerting them to CRIMJIG 3.17 or the Fifth Amendment privilege underlying it. Defense counsel created an expectation that CRIMJIG 3.17 would be given. There is no indication counsel favored omitting CRIMJIG 3.17 which could have confused jurors already informed by defense counsel of the defendant's right not to testify.

A defendant should not be permitted to "open the door" to error, or to invite it, and then complain on appeal. See State v. Larson, 358 N.W.2d, 668, 671 (defendant opened the door to giving of CRIMJIG 3.17 by arguing that plea of not guilty, as well as defense failure to call witnesses, constituted "challenge" to state to prove him guilty); cf. State v. Witucki, 420 N.W.2d 217, 222 (Minn. App. 1988) (without transcript, appellate court could not determine whether claimed error was invited or cured), review denied (Minn. Apr. 15, 1988). Demmings's attorney invited the court to give CRIMJIG 3.17 by prominently featuring it in voir dire. We conclude that Demmings has waived the claim that it was plain error to give the instruction without a defense request.

Affirmed.