County District Court No. 13CR124 Honorable Patrick D.
Cynthia H. Coffman, Attorney General, William G. Kozeliski,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Mark
Evans, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Juilan Anastacio Deleon, appeals the judgment of
conviction entered on jury verdicts finding him guilty of two
counts of sexual assault on a child. He challenges the
district court's failure to give the jurors his tendered
instruction saying that he has a constitutional right not to
testify and that they couldn't consider his decision not
to testify for any reason. But, as we read his briefs, his
challenge actually raises two related issues:
(1) Did the district court abuse its discretion in denying
the particular instruction tendered by his attorney?
(2) Did the court err in failing to instruct the jurors
immediately before closing arguments that he had a right not
to testify and that they couldn't hold his decision
against him in any way?
2 We conclude that the court didn't abuse its discretion
in rejecting his tendered instruction and that, under the
particular circumstances of this case, it didn't plainly
err in failing to give any instruction to the jurors on the
point immediately before closing arguments. Because we also
reject defendant's other claim of error, we affirm.
3 The victim, S.R., told her friend that defendant, her
mother's boyfriend, had touched her inappropriately on
several occasions. S.R.'s friend told the victim's
mother, who in turn contacted police. Following an
investigation, the People charged defendant with two counts
of sexual assault.
4 At trial, defendant asserted that S.R. had fabricated the
assaults because she was angry at her mother, who was
pregnant with twins and had decided to marry defendant. A
jury, however, rejected that defense and found defendant
guilty of both charges.
5 Defendant contends that the district court erred by (1)
failing to instruct the jurors immediately before closing
arguments of his constitutional right not to testify; and (2)
admitting into evidence S.R.'s out-of-court statement to
a Sexual Assault Nurse Examiner (SANE nurse) that defendant
had been "kicked out of the house." We address and
reject both of these contentions in turn. A. Jury Instruction
on the Right Not to Testify
6 In its introductory remarks to prospective jurors, the
district court told them as follows:
You should understand that the District Attorney has the
burden of proof in this case, and this is the only party with
any burden of proof. The defendant has no obligation to
present any evidence or testimony at all. The defendant
does not have to testify. And if he chooses not to testify,
you cannot hold it against him in any way that he did
(Emphasis added.) After the jury was selected and sworn, the
court told the jurors,
I do have some further introductory instructions
that I have to give to you and then we'll proceed with
our opening statements.
All of you heard my earlier remarks to the jury panel. Now
that you've been accepted by counsel and sworn as the
jury to try this case, I have some additional
introductory remarks concerning the procedure to be followed
in this trial. . . .
Once the prosecution has called all of their witnesses and
presented all of their evidence, they will rest their case.
And the defense may then offer evidence, but, remember, he is
not obligated to do so. . . .
The law never imposes on the Defendant in a criminal case the
burden of calling any witnesses or introducing any evidence.
7 At the jury instruction conference, which occurred before
closing arguments, defense counsel tendered the following
instruction on defendant's right not to testify:
Every defendant has an absolute constitutional right not to
testify. I remind you that the prosecution must prove the
defendant's guilt beyond a reasonable doubt. The
defendant does not have to prove anything. Do not consider,
for any reason at all, that the defendant did not testify. Do
not discuss it during your deliberations or let it influence
your decisions in any way.
8 The court rejected this instruction because it differed
from the relevant pattern instruction. The court indicated
that it would give the jury the pattern instruction. The
court then apparently prepared a packet of nineteen
instructions it intended to give to the jurors and gave it to
counsel. But the packet didn't include an instruction on
defendant's right not to testify, an obvious oversight.
9 Before closing arguments, the court had the attorneys make
a record on the instructions it intended to give the jurors.
The court asked the attorneys whether they had "any
additions, corrections, or changes, or objections?"
Defense counsel reiterated her request to give the jurors the
instruction she had previously tendered on defendant's
right not to testify. The court again denied that request,
saying, "the better way to go would be to follow the
pattern jury instructions."
10 When the trial resumed, the court read the instructions to
the jurors. It seems that no one noticed that the
instructions didn't include the pattern instruction (or
any other form of instruction) on a defendant's right not
to testify, because neither defense counsel nor the
prosecutor alerted the court to the omission and the court
didn't say anything about it either.
11 On appeal, defendant contends that the district court
erred by not giving the jury his tendered instruction on his
right not to testify. As noted, we see really two issues
here. First, did the district court abuse its discretion in
rejecting defendant's tendered instruction? And second,
did the court err in failing to instruct the jury immediately
before closing arguments on defendant's right not to
testify? Though these issues are related, we address them
separately because our standard of review differs as to each,
and our analysis differs as well.
Failure to Give Defendant's Tendered Instruction a.
Standard of Review
12 We review de novo whether a jury instruction correctly
states the law. People v. McClelland, 2015 COA 1,
¶ 14. But we review for an abuse of discretion whether
the district court erred in refusing to give a particular
instruction. Id. This part of defendant's
argument challenges the district court's discretionary
decision to reject a particular instruction - defendant's
tendered instruction on his right not to testify.
13 In Carter v. Kentucky, 450 U.S. 288, 300 (1981),
the Court held that a trial court must, if asked by a
defendant to do so, instruct jurors that they can't draw
adverse inferences from a defendant's failure to testify.
In James v. Kentucky, 466 U.S. 341, 350 (1984), the
Court followed up by holding that "the Constitution
obliges the trial judge to tell the jury, in an effective
manner, not to draw the inference if the defendant so
requests; but it does not afford the defendant the right to
dictate, inconsistent with state practice, how the jury is to
14 Certainly defendant's tendered instruction accurately
set forth the law concerning his right not to testify. But it
doesn't follow that the district court abused its
discretion in rejecting it.
15 The court rejected the tendered instruction because it
contained language going beyond the then-applicable pattern
instruction, which the court said it would give the jury.
That pattern instruction said,
The defendant does not have to testify. The decision not to
testify is not evidence, does not prove anything, and should
not be considered for any purpose.
COLJI-Crim. E:07 (2008). That pattern instruction conveyed,
in an effective manner, the substance of a defendant's
right and the prohibition against drawing any adverse
inference based on a defendant's exercise of that right.
We reject defendant's argument that the pattern
instruction, as then worded, was deficient because it
didn't expressly say that the right is
constitutional. He cites no authority for that
proposition, and we aren't aware of any.
16 It follows that in choosing between defendant's
tendered instruction and the pattern instruction, the
district court didn't abuse its discretion by electing to
go with the latter.
17 The thornier issue is whether we must reverse
defendant's conviction because, although the court
intended to give the pattern instruction with its other
written instructions at the close of the evidence, it forgot
to do so. We turn now to that admittedly difficult issue.
Failure to Give Any Instruction Immediately Before Closing
Preservation and Standard of Review
18 By tendering an instruction on a defendant's right not
to testify, defense counsel preserved the argument that the
court erred in refusing that instruction. And defense counsel
thereby preserved an argument that defendant was entitled to
an instruction on that subject. See James, 466 U.S.
at 350 (the court must give such an instruction if the
defendant requests one). But the district court didn't
refuse to give such an instruction - that is, the court
didn't say it wouldn't give such an instruction.
Rather, the court said it would give such an instruction. In
this part of defendant's argument, the claimed error is
the court's failure to give such an instruction after
saying that it would. And that failure didn't occur until
the court read the instructions to the jurors and gave them a
copy of the instructions to take back to the jury room.
Defense counsel didn't object to that failure. Therefore,
this issue isn't preserved. See United States v.
Padilla, 639 F.3d 892, 895 (9th Cir. 2011) (tendering of
a Carter right not to testify instruction didn't
preserve issue of whether the trial court erred in failing to
give any such instruction; defense counsel didn't object
to the instructions as given); United States v.
Velez-Vasquez, 116 F.3d 58, 60 (2d Cir. 1997) (holding
similarly with respect to a presumption of innocence
instruction); United States v. Payne, 944 F.2d 1458,
1464 (9th Cir. 1991) (holding similarly with respect to a
presumption of innocence instruction).
19 Whether this issue implicates the court's duty to
adequately instruct the jurors on all relevant matters of law
(which we review de novo) or the court's discretion to
give (or not to give) an instruction (which we review for an
abuse of discretion) isn't entirely clear. But either
way, the issue presents a question of law: Was the court
obligated as a matter of constitutional or other source of
law to instruct the jurors on defendant's right not to
testify at the close of the evidence? We review such
questions of law de novo. See People v. Higgins,
2016 CO 68, ¶ 7; People v. Sandoval-Candelaria,
2014 CO 21, ¶ 11; see also People v. Voth, 2013
CO 61, ¶ 15 ("A trial court necessarily abuses its
discretion if its ruling is based on an erroneous view of the
20 Because defendant failed to preserve this issue, if we
determine that the court erred, we must apply the plain error
test to determine whether the error requires us to reverse
defendant's convictions. Hagos v. People, 2012
CO 63, ¶ 14 (we review all unpreserved errors, including
constitutional errors, for plain error); see also
Padilla, 639 F.3d at 895; Velez-Vasquez, 116
F.3d at 60; Payne, 944 F.2d at 1464. Under that test,
we reverse only if the error was obvious and so ...