specially concurring.
I disagree with the conclusion that the prosecutor’s remark was not likely to have an effect on the jury. 325 Or at 24.1 think that the prosecutor’s remark that defendant “can always get up and testify himself if he wants to” came in a context making it likely that the jury would draw inferences prejudicial to defendant. The content of the remark is designed to have that effect in this case, because the jury knows that defendant has given notice of an alibi defense under ORS 135.455 and defend; nt’s failure to offer proof of that alibi is the issue to which í e prosecutor’s remark was directed.
This court’s past case k v indicates that such comments are “usually” reversible ei or where, as here, the jury is likely to draw adverse infere ices from such comments. State v. White, 303 Or 333, 340-41, 736 P2d 552 (1987); State *29v. Wederski, 230 Or 57, 368 P2d 393 (1962); see also State v. Jones, 279 Or 55, 566 P2d 867 (1977) (curative instruction insufficient, where prosecutor commented in the presence of jury that the defendant had committed several other crimes); compare State v. Farrar, 309 Or 132, 167, 786 P2d 161 (1990) (where this court interpreted a prosecutor’s reference as a “slip of the tongue” intended to refer to the silence of a defense witness, Oliver, rather than the defendant, and where the defendant did not request or receive a curative instruction) with Jones.
I do not read the comments of the state’s attorney in the context in which they were made as a permissible response to the statements made by the trial court, also in the presence of the jury. The trial court had just explained to defendant that no exception to the hearsay rule was available, and that testimony on the point at issue, alibi, was required to be presented by live witnesses with those witnesses present in court and subject to cross-examination. The state’s attorney immediately thereafter interjected his comment that defendant could be one such witness. That interjection immediately followed the trial court’s sustaining the prosecutor’s hearsay objection and instructing defendant to produce his evidence with live witnesses. The comment capitalized on what the court had just said and can be understood as stating an example of how defendant could carry out the trial court’s instruction to produce proof of alibi by live witnesses. However, the inteijection was neither called for nor justified as a response to anything that the court or defendant had just said. Instead, it was reinforced by, and allied itself with, what the court had just said, adding a spin that violates a constitutional guarantee. The spontaneous interjection was not an appropriate substitute for an objection based on hearsay. It cannot be explained away on that basis. Nor do I agree with the majority that “frustration,” 325 Or at 24-25, even if present, permits or excuses such an inteijection on behalf of the state in this context.
However, I concur in the result, because defendant did not object to the form or content of the remedy selected by the trial court in an apparent effort to neutralize the state’s prejudicial comment. A curative instruction on the subject of a constitutional right is not necessarily proper where it again *30calls to the attention of a jury the fact that a defendant has exercised her or his constitutional right not to testify. But here defendant acquiesced in the instruction being given, and did so within the context in which it was given, rather than the context suggested in Wederski, 230 Or at 60.1 cannot say that defendant’s decision to not object to the instruction was divorced from a trial strategy choice to “speculate on the verdict,” a strategy mentioned adversely in White, 303 Or at 342. See also State v. Smallwood, 277 Or 503, 561 P2d 600 (1977) (fact that the defendant later submitted to a full psychiatric examination vitiated prejudicial effect of comment that he initially refused such an examination on grounds of the right against self-incrimination and the right to have counsel present).
I do not agree with the assessment above in the opinion that precedes this concurrence, 325 Or at 25 n 2, that the curative instruction plays no “role” in proper disposition of this case. I think that the repetition of the prejudicial point that a defendant is not testifying — a point that is re-emphasized by a “curative” instruction such as that given here— does play a part in the decision whether to reverse. The instruction, in effect, repeated to the jury what the prosecutor had just pointed out, that defendant was not going to testify. But, apparently as a strategic choice, the instruction was not objected to by defendant in any respect. Instead, he acquiesced in it. Under those simple circumstances, affirming a conviction that follows on such a choice is not reversible error.