dissenting.
During trial, Steven Hunter exercised his federal constitutional right to receive a “no adverse inference” jury instruction. See Carter v. Kentucky, 450 U.S. 288, 300, 101 S.Ct. 1112, 1119, 67 L.Ed.2d 241 (1981). When his co-defendant objected to the giving of the instruction and exercised his state constitutional right not to have the instruction read to the jury, see Parker v. State, 425 N.E.2d 628, 630 (Ind.1981), the trial court believed that it was placed on the horns of a dilemma. The co-defendant, however, should not have been able to maintain a successful objection, the Supreme Court having previously determined that “the giving of [a no-adverse inference] instruction over the defendant’s objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments.” Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S.Ct. 1091, 1095-96, 55 L.Ed.2d 319 (1978) (footnote omitted) (emphasis added). Applying established principles of constitutional law, as the Indiana Supreme Court subsequently noted in a case posing the precise issue presented here, the proper route should have been apparent: the supremacy clause mandates that the “Fifth Amendment right to an instruction warning the jury not to draw adverse inferences from his silence must prevail over the right that this Court has granted under the Indiana Constitution to decide whether it suits [a defendant] to have such an instruction given or not.” Lucas v. State, 499 N.E.2d 1090, 1093 (Ind.1986). Rather than reaching this result, the trial court chose to offer Hunter the option of severance, and when he declined, refused to read the instruction to the jury, instead honoring the objection of the co-defendant. The majority holds that Hunter effectively waived this fundamental constitutional right when, after affirmatively exercising it, he declined the trial court’s proffered procedural remedy. Because in my view this holding contravenes clearly established Supreme Court precedent and the supremacy clause as well as recognized principles of waiver, I must respectfully dissent.
In Carter v. Kentucky, 450 U.S. 288, 300, 101 S.Ct. 1112, 1119, 67 L.Ed.2d 241 (1981), the Supreme Court reversed a defendant’s conviction because his fifth and fourteenth amendment rights were violated *311when the trial court refused to give a no adverse inference instruction to the jury. Speaking in unqualified terms, the Court recognized that as part of the criminal defendant’s “absolute constitutional guarantee against self-incrimination,” a trial judge “must give a single ‘no adverse inference’ jury instruction when requested by defendant to do so.” Id. at 300, 101 S.Ct. at 1119 (emphasis added). “The Constitution obliges the trial judge to tell the jury, in an effective manner, not to draw the inference if the defendant so requests.... ” James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984). The right to a no adverse inference instruction, as identified by the Court, is absolute and unconditional; to receive the instruction the defendant who does not testify on his own behalf need only properly request that the instruction be given. Faced with the competing demands of the two defendants in this case, the trial court’s remedy of severance was reasonable since it would have accorded each of the defendants what they sought. Defendant Hunter, however, was not bound to accept the offer and his decision must be viewed as equally appropriate, given the resources already devoted to the trial, the state of the law mandating that he receive the instruction over his co-defendant’s objection, and the fact that he had already been placed in jeopardy. Once Hunter refused the offer, the trial judge was bound by the dictates of the Supreme Court to give the requested instruction. In acceding to co-defendant Hatcher’s objection to the instruction, I am constrained to conclude that the trial judge deviated from established Supreme Court precedent and in doing so violated Hunter’s constitutional right to receive the “no adverse inference” instruction.
It remains unexplained why the trial court denied co-defendant Hatcher’s earlier repeated demands for severance. What is clear is that once Hunter turned down the trial court’s eventual offer of severance, the court was bound to read the instruction over any objection by Hatcher. The court did not do so, and an examination of the record appears to reveal why — the trial court apparently misconstrued the guidance provided by the Supreme Court. Rather than reading Carter, James, and Lakeside to mandate that the instruction be given on demand despite the objection of a co-defendant, the trial judge found that in these cases “the Supreme Court says it [the no adverse inference instruction] doesn’t have to be given. [The co-defendant] doesn’t want it to be [given], so it will not.” R. 164-65. I find erroneous such an interpretation of this line of precedent.
The majority apparently distinguishes the binding Supreme Court precedent sub silentio, instead relying on the position that Hunter was to blame for the conflict which he caused by demanding the instruction. This “responsibility-shifting,” however, belies a fundamental fact — the government was the party that moved for a joint trial and the trial court granted the motion. In my view, any conflict between co-defendants cannot appropriately be attributed to either of them but instead must be traced to the actions and decisions of the prosecutor and the trial court.1
The majority exonerates the trial court’s ruling by finding waiver on the part of the defendant. I must admit to some puzzlement as to how defendant Hunter can be deemed to have waived a fundamental right in the face of his express assertion of that very right. It is undisputed that Hunter was under no duty or obligation to accept the trial court’s eventual offer of a new trial, just as he would have had no *312right to demand such action initially.2 The majority is correct in suggesting that the “court devised and offered a logical and legally acceptable solution (severance) that would have protected both Hunter’s federal constitutional right to receive a no adverse inference instruction and his co-defendant’s [state] right not to receive an instruction.” In my opinion, however, waiver cannot be woven from the defendant’s declination of a trial court’s solution to the perceived dilemma. Rather, the defendant must be deemed to have knowingly and intelligently waived a known constitutional right, see Zerbst v. Johnson, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and here, to the contrary, Hunter knowingly and intelligently exercised the right. The majority does not speak of a “knowing and intelligent waiver” but rather only of how the defendant failed to deliver the trial court from the conflicting requests. Furthermore, the majority opinion does not refer to any persuasive authority to support its waiver analysis. Therefore, I respectfully decline to join in such an innovative interpretation of the defendant’s actions.
The fifth and fourteenth amendment of the Constitution guarantee a criminal defendant the right that the jury be instructed that it is to draw no adverse inference from his decision not to testify. I do not believe that this absolute right, emphatically sanctioned by the Supreme Court, can be made conditional upon the defendant’s acceptance of a procedural remedy fashioned by a trial court to meet the competing demands of jointly-tried co-defendants. In my judgment, this dilution of a fundamental constitutional protection cannot be supported in light of Supreme Court directives. I am in agreement with the district court that the writ should be granted since the trial court committed error of constitutional dimension when it refused to read the requested instruction to the jury. Therefore, I respectfully dissent.3
ORDER
Sept. 17, 1990.
A majority of judges in active service have voted to rehear this case en banc. Accordingly,
IT IS ORDERED that rehearing en banc be, and the same is hereby, GRANTED.
IT IS FURTHER ORDERED that the judgment and opinion entered in this case on July 3, 1990 be, and are hereby, VACATED. This case will be reheard en banc at the convenience of the court.
. The majority opinion relies on United States v. Splain, 545 F.2d 1131, 1133 (8th Cir.1976) and United States v. Feroni, 655 F.2d 707, 712 (6th Cir.1981) for the proposition that a "trial judge can not be faulted for any trial mishaps that he offers to and could correct.” At 307. These cases involved straightforward evidentiary situations in which a defendant rejected an offer by the trial court to give a curative instruction to the jury in the face of prejudicial remarks made by government witnesses. In my view, these decisions of non-constitutional proportions cannot be supportive of the position forwarded by the majority that a defendant waives his constitutional right to a no adverse inference instruction when he refuses a trial court’s offer of severance.
. At the time of trial, Hunter was entitled to severance only if a co-defendant’s statement implicating the defendant was to be admitted or if "the court determine[d] that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant.” I.C. 35-34-1-11(b).
. As the majority correctly notes, the Supreme Court has yet to decide whether the failure to give a no adverse inference instruction can be harmless error. See Carter, 450 U.S. at 304, 101 S.Ct. at 1121; James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984). While a serious question remains as to whether such error can ever considered harmless, I need not reach the issue since I accept the district court’s finding that it was clearly not harmless in this case.