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Deleon v. People

Supreme Court of Colorado

October 7, 2019

Julian Anastacio Deleon, Petitioner
v.
The People of the State of Colorado. Respondent

          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, Colorado

          JUSTICE SAMOUR dissents.

          BOATRIGHT JUSTICE

         ¶1 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 defendant's 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 Deleon's right to remain silent either verbally or in writing. Deleon argues that this constituted reversible error.[1] Under the facts of this case, we agree.

         ¶2 We first conclude that, by tendering a jury instruction regarding a defendant's 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 defendant's 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

         ¶3 Deleon was charged with two counts of sexual assault on a child for acts involving his girlfriend's nine-year-old daughter. Deleon's defense was that the victim fabricated the allegation.

         ¶4 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 the trial.

         ¶5 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.

         ¶6 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 verdict[2]:

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.

         ¶7 The trial court denied Deleon's 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.[3] 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 charged.

         ¶8 On appeal, Deleon argued that, under Carter v. Kentucky, 450 U.S. 288 (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 Deleon's 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 Deleon's conviction.

         ¶9 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 Deleon's request for a no-adverse-inference jury instruction. Id. at ¶¶ 15-17. Thus, it concluded that there was no error in rejecting Deleon's proffered instruction in favor of the pattern instruction. Id. at ¶ 16.

         ¶10 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.

         ¶11 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 court's introductory comments regarding Deleon's right not to testify. Id. at ¶¶ 22-23.

         ¶12 Judge Welling dissented from the majority's conclusion that the trial court provided the jury with an effective no-adverse-inference jury instruction. Specifically, Judge Welling concluded that the trial court's introductory comments were not effective because they were too far removed from the jury's deliberations and that failure constituted plain error. Id. at ¶¶ 62-68 (Welling, J., dissenting).

         ¶13 We granted certiorari and now reverse.

         II. Analysis

         ¶14 This case requires us to answer three related questions. First, did Deleon's 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 instruction conference.

         ¶15 Second, did the trial court's 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.

         ¶16 Third, does the trial court's 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.

         A. Law

         ¶17 The Fifth Amendment to the U.S. Constitution provides protections against compulsory self-incrimination, including the defendant's 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 (quoting Ullmann v. United States, 350 U.S. 422, 426 (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 defendant's 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; see also James v. Kentucky, 466 U.S. 341, 350 (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 (quoting Staub v. City of Baxley, 355 U.S. 313, 320 (1958)).

          ¶18 For example, in James, the trial court denied the defendant's request for an "admonition" that the jury place no emphasis on his refusal to testify. 466 U.S. at 343. On appeal, the Kentucky Supreme Court held that the defendant's 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. 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. The Court explained that even though "instruction" and "admonition" carry different legal definitions, [4] the defendant's 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. Thus, the Court held that the defendant was entitled to a no-adverse-inference jury instruction. Id. at 351-52.

         ¶19 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. See id. at 350 ("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, after allowing the parties an opportunity to object to the proposed instructions, the court shall read such instructions to the jury as well as provide them to the jury in writing:

A party who desires instructions shall tender his proposed instructions to the court . . . . All instructions shall be submitted to the parties, who shall make all objections thereto before they are given to the jury. . . . Before argument the court shall read its instructions to ...

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