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People v. Deleon

Court of Appeals of Colorado, Fourth Division

November 16, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Julian Anastacio Deleon, Defendant-Appellant.

         Boulder County District Court No. 13CR124 Honorable Patrick D. Butler, Judge

          Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          JUDGE J.

          ¶ 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.

         I. Background

         ¶ 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.

         II. Discussion

         ¶ 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 not.

(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.

(Emphasis added.)

          ¶ 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.

         1. 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.

         b. Analysis

         ¶ 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 be told."

         ¶ 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.[1] 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.

         2. Failure to Give Any Instruction Immediately Before Closing Arguments

         a. 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 law.").

         ¶ 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.[2] Under that test, we reverse only if the error was obvious and so ...


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