2019 CO 85
Colo.2019Background
- Deleon was tried for two counts of sexual assault on a child; there was no physical evidence and the case turned on credibility.
- Deleon exercised his Fifth Amendment right and did not testify. He tendered a written "no-adverse-inference" jury instruction (prohibiting jurors from using his silence against him) at the jury instruction conference.
- The trial judge rejected Deleon’s proposed wording in favor of a pattern instruction but — although the judge said he would give the pattern instruction — the final set of oral and written instructions to the jury contained no no-adverse-inference instruction; neither party objected at that time.
- The jury convicted Deleon. The Colorado Court of Appeals was split: it held the tender preserved the request but concluded the trial court’s earlier voir dire remarks were an effective instruction and that any omission was not reversible error.
- The Colorado Supreme Court granted certiorari, held (1) Deleon preserved the claim by tendering the instruction, (2) the voir dire/introductory remarks were not an effective Carter instruction, and (3) the omission was not harmless beyond a reasonable doubt — reversing the court of appeals and remanding.
Issues
| Issue | Plaintiff's Argument (Deleon) | Defendant's Argument (People) | Held |
|---|---|---|---|
| Whether Deleon preserved the claim that the court failed to give a no-adverse-inference instruction | Tendering the instruction at the instruction conference was a timely, plain and reasonable assertion of the Carter right and thus preserved the issue | Deleon failed to preserve because he did not object when the final instructions omitted the instruction | Preserved: tendering the proposed instruction during the conference preserved the claim for appeal |
| Whether the trial court’s voir dire and early post-sworn remarks satisfied the constitutional requirement to give an effective no-adverse-inference instruction (Carter instruction) | The judge’s repeated oral statements earlier in trial made clear the jury could not hold silence against Deleon and thus were effective | The People argued the earlier remarks adequately informed jurors and no written repetition was required | Not effective: remarks were too early, intended for juror screening not final instruction, and the jury was told it would receive official instructions later — so the jury never received an effective Carter instruction |
| Whether Crim. P. 30 requires oral and written delivery of a requested no-adverse-inference instruction | Deleon argued he was entitled to an effective instruction, which in Colorado practice means oral instruction before argument and the written instruction with the packet before deliberations | The People emphasized trial court discretion in instruction form and pointed to the earlier oral statements as sufficient | Court: Colorado practice per Crim. P. 30 contemplates oral instruction before argument and written instructions with the packet; the court did not rest reversal on Crim. P. 30 alone but held the jury did not receive an effective instruction as required by Carter |
| Whether the omission was harmless beyond a reasonable doubt (harmless-error review) | The verdict depended on credibility, there was no physical evidence and Deleon did not testify, so there is a reasonable possibility the omission contributed to conviction | The People argued jurors had been orally instructed and defense counsel stressed the rule during voir dire, so the omission was harmless | Not harmless: because of the credibility-driven case and absence of testimony/physical evidence, the omission was not harmless beyond a reasonable doubt and requires reversal |
Key Cases Cited
- Carter v. Kentucky, 450 U.S. 288 (1981) (trial judge must, on request, tell jury not to draw adverse inference from defendant’s refusal to testify)
- James v. Kentucky, 466 U.S. 341 (1984) (request for admonition/instruction need not use precise label; plain and reasonable assertion of right suffices)
- Ullmann v. United States, 350 U.S. 422 (1956) (jurors often view invocation of Fifth Amendment as a shelter for wrongdoers)
- Staub v. City of Baxley, 355 U.S. 313 (1958) (constitutional protections should not be reduced to meaningless form)
- Chapman v. California, 386 U.S. 18 (1967) (constitutional error requires reversal unless harmless beyond a reasonable doubt)
- United States v. Padilla, 639 F.3d 892 (9th Cir. 2011) (contrasting preservation rule where request was made pretrial and not reasserted during instruction conference)
- People v. Davis, 794 P.2d 159 (Colo. 1990) (voir dire’s purpose is juror screening, not instruction on the law)
- People v. Baenziger, 97 P.3d 271 (Colo. App. 2004) (practice of instructing jurors immediately prior to closing arguments aids comprehension and should be used)