specially concurring.
I disagree with the majority’s conclusion that defendant failed to preserve the error which he raises on appeal. I *240concur rather than dissent, however, because I would affirm on the merits.
I agree with the majority that our review usually is limited to theories raised below. See State v. Hickmann, 273 Or 358, 360, 540 P2d 1406 (1975). The majority, however, concludes that defendant did not adequately raise the theory he argues on appeal. Defendant’s exception in its entirety was as follows:
“[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.” (Emphasis supplied.)
In my view, the emphasized language adequately raised the theory that defendant advances in this court.
On the merits, I would hold that it was not error to give the instruction. In State v. Lakeside, 277 Or 569, 561 P2d 612 (1977), aff’d sub nom Lakeside v. Oregon, 435 US 333, 98 S Ct 1091, 55 L Ed 2d 319 (1978), the court held that giving a similar instruction over the defendant’s objection does not violate a defendant’s rights under the Self-Incrimination Clause of the Fifth Amendment. After an extensive review of the various positions taken by other state and federal courts, the court approved the reasoning of the Hawaii court in State v. Baxter, 51 Haw 157, 454 P2d 366 (1969), cert den 397 US 955 (1970).1 There, the court held that, because a defendant is entitled to the instruction upon request, see Bruno v. United States, 308 US 287, 60 S Ct 198, 84 L Ed 257 (1939), and because the court could not understand how the same instruction would affect a jury differently simply because the defendant had objected to it, it was not error to give the instruction over the defendant’s objection. 51 Haw at 158-59. I would adopt the same reasoning for the purposes of Article I, section 12, of the Oregon Constitution.
*241As to defendant’s argument that giving the instruction violated his right to counsel under Article I, section 11, of the Oregon Constitution, I would adopt the reasoning of the United States Supreme Court in Lakeside v. Oregon, supra:
“In sum, if the instruction was itself constitutionally accurate, and if the giving of it over counsel’s objection did not violate the Fifth and Fourteenth Amendments, then the petitioner’s right to the assistance of counsel was not denied when the judge gave the instruction. To hold otherwise would mean that the constitutional right to counsel would be implicated in almost every wholly permissible ruling of a trial judge, if it is made over the objection of the defendant’s lawyer.” 435 US at 341.
On the basis of the foregoing, I join with the majority in affirming the judgment.
The court also stated that it was adopting the reasoning of the Michigan court. 277 Or at 587.1 find that hard to believe. The analysis of the Michigan case cited in Lakeside is that the instruction must be given in all cases, because it is not reasonable to assume that a jury will understand why a criminal defendant does not testify without an explanation. That analysis is flatly inconsistent with the Oregon Supreme Court’s recommendation that trial courts not give the instruction, unless it is requested by the defendant. See 277 Or at 588 n 10.