Certiorari to the Colorado Court of Appeals, Court of Appeals
Case No. 14CA1920
Attorneys for Petitioner: Megan A. Ring, Public Defender,
Mark Evans, Deputy Public Defender, Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General,
William G. Kozeliski, Assistant Attorney General, Denver,
Julian Deleon was charged with two counts of sexual assault
on a child. During his trial, Deleon exercised his Fifth
Amendment right against self-incrimination and elected not to
testify. At the jury instruction conference prior to closing
arguments, Deleon tendered an instruction regarding a
defendants right to remain silent, which the trial court
denied because it did not match the pattern instruction.
Instead, the court indicated that it would give that pattern
instruction. But at the close of evidence, the trial court
never instructed the jury regarding Deleons right to remain
silent either verbally or in writing. Deleon argues that this
constituted reversible error. Under the facts of this
case, we agree.
We first conclude that, by tendering a jury instruction
regarding a defendants right to remain silent, Deleon
preserved the issue for appeal of whether the trial court
erred in failing to give such an instruction. Next, we
conclude that the trial court erred by failing to provide an
effective jury instruction regarding a defendants right to
remain silent. Finally, we conclude that the error was not
harmless beyond a reasonable doubt. Therefore, we reverse the
judgment of the court of appeals.
I. Facts and Procedural History
Deleon was charged with two counts of sexual assault on a
child for acts involving his girlfriends nine-year-old
daughter. Deleons defense was that the victim fabricated the
During voir dire, the trial court told the prospective jurors
that Deleon "has no obligation to present any evidence
or testimony at all. [He] 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." After the jurors had been selected
and sworn, the trial court told them that Deleon was not
obligated to offer any evidence, and that "[t]he law
never imposes on the Defendant in a criminal case the burden
of calling any witnesses or introducing any evidence."
Then, before opening statements, the trial court indicated to
the jury that it would receive further instructions later in
During trial, the victim testified that Deleon had sexually
assaulted her. Because the alleged assaults were remote in
time, however, there was no physical evidence introduced into
evidence. Deleon exercised his Fifth Amendment right against
self-incrimination and chose not to testify.
After the evidence was completed, the trial court held a jury
instruction conference. At that time, Deleon tendered a
proposed instruction to the trial court regarding his right
not to testify which explained that the jury could not
consider him exercising that right in reaching its
Every defendant has an absolute constitutional right not to
testify. I remind you that the prosecution must prove the
defendants 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.
The trial court denied Deleons proposed no-adverse-inference
instruction, stating that "the better way to go would be
to follow the pattern [jury] instructions" that the
Colorado Supreme Court had approved at the
time. Yet despite expressing this
preference, the court never issued a no-adverse-inference
instruction. When the trial court read the final instructions
to the jury and provided it written copies, neither party
objected to the absence of the pattern no-adverse-inference
instruction. The jury ultimately found Deleon guilty as
On appeal, Deleon argued that, under Carter v.
Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241
(1981), the trial court violated his Fifth Amendment right
against self-incrimination by failing to give the jury his
tendered instruction on his right not to testify. The court
of appeals viewed this argument as presenting two distinct
issues: whether the trial court abused its discretion in
rejecting Deleons tendered instruction; and whether the
trial court reversibly erred by failing to provide any
no-adverse-inference jury instruction? People v.
Deleon, 2017 COA 140, ¶ 11, __ P.3d __. The court of
appeals issued a split opinion affirming Deleons conviction.
As to the first issue, the court of appeals unanimously
concluded that the trial court had intended to give the
pattern instruction— but had inadvertently failed to do
so— and that this instruction would have effectively
conveyed Deleons request for a no-adverse-inference jury
instruction. Id. at ¶¶ 15-17. Thus, it concluded
that there was no error in rejecting Deleons proffered
instruction in favor of the pattern instruction. Id.
at ¶ 16.
As to the second issue, the court of appeals unanimously
concluded that Deleon failed to preserve that issue because
he did not object to the omission of the no-adverse-inference
jury instruction. Id. at ¶ 18. In so doing, it
concluded that plain error was the appropriate standard for
review. Id. at ¶ 20.
Finally, the majority concluded that there was no error
because the trial court had met its constitutional
requirement to provide an effective no-adverse-inference jury
instruction based on the trial courts introductory comments
regarding Deleons right not to testify. Id. at ¶¶
Welling dissented from the majoritys conclusion that the
trial court provided the jury with an effective
no-adverse-inference jury instruction. Specifically, Judge
Welling concluded that the trial courts introductory
comments were not effective because they were too far removed
from the jurys deliberations and that failure constituted
plain error. Id. at ¶¶ 62-68 (Welling, J.,
We granted certiorari and now reverse.
This case requires us to answer three related questions.
First, did Deleons tendered no-adverse-inference instruction
preserve the issue of whether the trial court erred in
failing to provide any no-adverse-inference jury
instruction? Although Deleon failed to object to the omission
of the pattern instruction, we conclude that he preserved the
issue because he tendered an instruction specifically
requesting a no-adverse-inference instruction at the jury
Second, did the trial courts comments during voir dire and
after the jury was sworn constitute an effective
no-adverse-inference instruction? We conclude that they did
not because they were given during the early stages of the
trial process; they were made
with the purpose of determining potential juror mindset; they
indicated that the jury would receive further instructions
later in the trial; and when the instructions were read prior
to closing arguments, the jury was told by the judge that the
instructions were the law they must follow.
Third, does the trial courts failure to give an effective
no-adverse-inference instruction require reversal? We hold
that it does here because, under the facts of this case, the
error was not harmless beyond a reasonable doubt.
The Fifth Amendment to the U.S. Constitution provides
protections against compulsory self-incrimination, including
the defendants right not to testify against himself.
Invoking this right, however, may come at a cost since jurors
often "view this privilege as a shelter for wrongdoers
... [and] assume that those who invoke it are guilty of [the]
crime." Carter, 450 U.S. at 302, 101 S.Ct. 1112
(quoting Ullmann v. United States, 350 U.S. 422,
426, 76 S.Ct. 497, 100 L.Ed. 511 (1956)). Thus, in order to
effectuate this protection, the U.S. Supreme Court has held
that a trial court must instruct the jury that it cannot
consider the defendants refusal to testify in reaching a
verdict— also known as a no-adverse-inference jury
instruction— when requested to do so by the defendant.
Id. at 300, 303, 101 S.Ct. 1112; see also
James v. Kentucky, 466 U.S. 341, 350, 104 S.Ct.
1830, 80 L.Ed.2d 346 (1984). Importantly, the right to a
no-adverse-inference jury instruction can be asserted in
multiple ways and is not limited to "an arid ritual of
meaningless form." James, 466 U.S. at 349, 104
S.Ct. 1830 (quoting Staub v. City of Baxley, 355
U.S. 313, 320, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958)).
For example, in James, the trial court denied the
defendants request for an "admonition" that the
jury place no emphasis on his refusal to testify. 466 U.S. at
343, 104 S.Ct. 1830. On appeal, the Kentucky Supreme Court
held that the defendants request for an
"admonition" and not an "instruction"
relieved the trial court of its obligation to give a
no-adverse-inference jury instruction. Id. at 344,
104 S.Ct. 1830. The U.S. Supreme Court reversed, concluding
that the "admonition" request amounted to a request
for a no-adverse-inference jury "instruction."
Id. at 348, 104 S.Ct. 1830. The Court explained that
even though "instruction" and
"admonition" carry different legal
definitions, the defendants request for an
admonition was nonetheless a plain and reasonable assertion
of his Fifth Amendment right against self-incrimination.
See id. at 345, 348-49, 104 S.Ct. 1830.
Thus, the Court held that the defendant was entitled to a
no-adverse-inference jury instruction. Id. at
351-52, 104 S.Ct. 1830.
While the Court has held that an effective
no-adverse-inference instruction must be given if a defendant
requests one, it has left the method of giving such an
instruction— e.g., orally, in writing, or both—
to the states. Seeid. at 350, 104 S.Ct.
1830 ("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."). In Colorado, we
established the jury instruction "method" in the
Rules of Criminal Procedure, specifically in Crim. P. 30.
That rule states that the parties should tender their desired
instructions to the court and, ...