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,
JUSTICE SAMOUR dissents.
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. Under the facts
of this case, we agree.
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.
Facts and Procedural History
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
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
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.
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. 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.
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.
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.
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 court's introductory
comments regarding Deleon's right not to testify.
Id. at ¶¶ 22-23.
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).
We granted certiorari and now reverse.
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.
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
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.
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,  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
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
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 ...