COLORADO COURT OF APPEALS
2016COA115
Court of Appeals No. 14CA1009
City and County of Denver District Court No. 12CR4151
Honorable John W. Madden IV, Judge
Honorable Martin F. Egelhoff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Anthony M. Waller,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by CHIEF JUDGE LOEB
Sternberg* and Plank*, JJ., concur
Announced August 11, 2016
Cynthia H. Coffman, Attorney General, Patricia R. Van Horn, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Gail K. Johnson, Kathryn D. Stevenson, Alternate Defense Counsel, Boulder,
Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2015.
¶1 Defendant, Anthony M. Waller, appeals the judgment of
conviction entered on a jury verdict finding him guilty of third
degree assault. On appeal, he contends that (1) his constitutional
right to self-representation was violated by the trial court’s denials
of his requests to represent himself with the assistance of advisory
counsel; (2) the trial court abused its discretion by declining his
requests for appointment of advisory counsel to assist him in
proceeding pro se; and (3) his constitutional rights to due process
and a fair trial by an impartial jury were violated by the court’s jury
instruction on reasonable doubt that allegedly abolished the jury’s
power to nullify. We affirm.
I. Background and Procedural History
¶2 Waller was charged with second degree kidnapping, false
imprisonment, third degree assault, and menacing for allegedly
punching a woman and dragging her back to a motel room where
they had been staying.
¶3 Due to a material witness not showing up at trial, the
prosecution dismissed the false imprisonment and menacing
charges. At the end of the trial, a jury acquitted Waller of second
degree kidnapping but found him guilty of third degree assault, a
1
class 1 misdemeanor. The trial court sentenced Waller to two years
in the county jail.
¶4 This appeal followed.
II. The Right to Self-Representation and Advisory Counsel
¶5 Waller contends that, due to the circumstances of his case,
the trial court’s failure to appoint advisory counsel to assist him
with proceeding pro se violated his federal and state constitutional
rights to self-representation. He also contends that the trial court
abused its discretion when it denied his requests for advisory
counsel to assist him in proceeding pro se. We disagree with both
contentions.
A. Background and Procedural History
¶6 We first summarize the lengthy procedural history that
pertains to these contentions.
1. County Court Proceedings
¶7 In September 2012, Waller appeared in county court for his
second advisement. He told the court that a conflict of interest
existed between him and the public defender’s office and stated that
he wished to proceed pro se but with the assistance of advisory
counsel. The county court told Waller that he had the right to
2
proceed pro se, and that it might appoint advisory counsel at a later
time if the case proceeded to hearing.
¶8 One month later, Waller appeared pro se at a preliminary
hearing and asked the court whether it was going to appoint
advisory counsel. A public defender conferred with Waller off the
record and, afterward, told the court that Waller believed there was
a conflict of interest with the public defender’s office because he
had been represented by the public defender’s office in a prior case
that was pending before the court of appeals. The public defender
told the court that Waller wanted an attorney to represent him and
thus wanted the court to appoint Alternate Defense Counsel (ADC).
The court appointed ADC to represent Waller and set the case for a
status hearing the following week.
¶9 Waller appeared with ADC at the status hearing. At both the
status hearing and another hearing in November 2012, defense
counsel notified the court that Waller wanted to proceed pro se with
advisory counsel. The county court ruled during both hearings that
Waller could proceed pro se or proceed with counsel representing
him, but the court was not going to appoint his counsel to act
simply in an advisory manner for a preliminary hearing. Waller
3
elected to proceed with his counsel representing him at both
hearings.
¶ 10 In December 2012, defense counsel filed a motion to withdraw
and renewed Waller’s request to proceed pro se with the assistance
of advisory counsel. At a later hearing, the county court denied
Waller’s motion and bound the case over to the district court.
2. District Court Proceedings
¶ 11 During a motions hearing in district court on February 28,
2013, the court addressed a motion Waller had filed requesting to
proceed pro se with the assistance of advisory counsel. Defense
counsel argued that Waller had a constitutional right to represent
himself if he so desired, and that the court had an interest in
appointing advisory counsel for him so he could represent himself
effectively and efficiently. Defense counsel further argued that
Waller was intelligent and sophisticated “in terms of [how] these
proceedings work,” but he recognized that there were layers of
complexity where advisory counsel would be useful to Waller. The
prosecutor did not object to Waller proceeding pro se, but did object
to him proceeding pro se with the assistance of advisory counsel
due to a history of “abusing” advisory counsel in prior cases.
4
¶ 12 After hearing argument by both parties, district court Judge
Madden stated:
I presume that Mr. Waller has a right to
represent himself or right to representation by
an attorney, but as a general matter, he
doesn’t have a right to have both at the same
time.
A number of Judges take that position, I’ve
taken that position several times and
eventually relented in particular cases where I
determined it made sense to try veering from
that rule and, Mr. Waller, it was a nightmare
each time I’ve done that. It caused more
problems for the Court, for the attorneys, for
the parties, for appellate procedures, to the
point that on the last time I had done that, I
said barring some outrageous, unreasonable
circumstances that I wouldn’t otherwise
expect, I’m not doing this again.
And the position has been that you have a
right to have an attorney or you have a right to
represent yourself, but I’m not going to appoint
ADC counsel to be advisory counsel unless
there’s an actual reason to do it other than
simply you would like to represent yourself,
but have the assistance of an attorney and the
legal knowledge, which is something that you
don’t have a Constitutional Right to do.
. . . [I]n the end, under these circumstances,
I’m disinclined to grant the advisory counsel
status.
At the same time, as soon as I say that, this is
a serious offense, these are significant charges,
they carry serious impact, so I’m not going to
5
say no today. I’m going to say I don’t think I’m
likely to do it . . . but I’m going to go back and
look again at the motion, I’m going to look at
what I have in the file, review the case law. . . .
¶ 13 Judge Madden stated that he would make a final decision in
writing after completing his review of the record and applicable case
law. During this hearing, Waller also requested that he receive
additional law library time so that he could research and decide
whether to proceed pro se. The court stated that it would follow up
at a later time on Waller’s request.
¶ 14 On March 6, 2013, Judge Madden issued a written order
denying Waller’s request to proceed pro se with the assistance of
advisory counsel. Judge Madden’s order stated, in pertinent part:
If a defendant who [sic] elects to represent
himself and proceed pro se, he waives his right
to counsel and does not have a constitutional
right to advisory counsel. Although a court
may, nonetheless, choose to appoint advisory
counsel upon the request of a defendant, the
decision whether or not to make such an
appointment lies in the discretion of the court.
In this case, it is alleged that Defendant hit
and kicked the victim then dragged the victim
into his room and kept her there against her
will. The Defendant was identified by both the
victim and an independent witness. . . . As
such, the case is neither factually nor verbally
[sic] complex. The Defendant has prior history
6
and experience with criminal proceedings, and
is apparently familiar with legal concepts and
procedures. Further, the Defendant has
competent, experienced, conflict free counsel,
yet he wishes to dismiss that counsel and
retain him in an advisory capacity. This would
serve only to permit the Defendant to utilize
counsel in such a way as to circumvent the
authority and discretion to make certain
decisions expressly reserved to counsel, or to
circumvent the ethical considerations which
must guide an attorney’s decisions. The
Defendant may not pick and choose only those
parts of representation that he likes and
bypass those parts that he dislikes. In light of
all of these considerations, barring a change in
circumstances, in the event Defendant elects
to represent himself, the Court will not appoint
advisory counsel.
(Citations omitted.)
¶ 15 In June 2013, the parties appeared for a suppression hearing,
but the hearing centered on the issue of whether Waller would
proceed pro se. Waller requested, and the court granted, a one-
month continuance of the suppression hearing so he could
determine whether he would represent himself and prepare for the
suppression hearing if he decided to proceed pro se. Additionally,
Waller requested that he receive additional law library access, and a
sheriff in the courtroom said he would address the library issue
with his captain and get back to the court’s clerk.
7
¶ 16 The district court proceedings were then delayed due to a
medical emergency on the part of defense counsel and a later
substitution of counsel for Waller.
¶ 17 On November 1, 2013, Waller’s substitute ADC filed a motion
asserting Waller’s continued desire to proceed pro se with the
assistance of advisory counsel. Defense counsel argued that the
court should appoint advisory counsel for Waller because he had a
limited education, he had documented mental illness, and he had
made several mistakes when representing himself in the past.
Defense counsel also argued in his motion that Waller had been
precluded from educating himself to the degree necessary to make
his decision whether or not to represent himself due to limited law
library access.
¶ 18 At a pretrial conference on November 21, 2013, the district
court again addressed Waller’s motion to represent himself with the
assistance of advisory counsel. When asked whether there were
any “additional positions” in terms of Waller’s motion, Waller’s
counsel stated that there were no changed circumstances, but that
Waller was somebody who “does need and desire assistance and
guidance as much as he also wants to represent himself.” The
8
court informed Waller that he had a right to represent himself and
had a right to an attorney, but he did not have a right to advisory
counsel. The court scheduled a hearing for the next week to give
Waller more time to confer with his counsel and decide whether to
represent himself at trial or be represented by his current counsel.
When Waller asked for more law library time, Judge Madden denied
his request but stated that he would revisit the issue the following
week depending on Waller’s representation decision.
¶ 19 When the parties appeared before Judge Madden the following
week on November 25, 2013, Waller renewed his request to proceed
pro se with advisory counsel. Judge Madden noted Waller’s
renewed request but told him that he could either represent himself
or have an attorney represent him. After some discussion with
counsel, Waller elected to proceed with his counsel representing
him at trial.
¶ 20 In January 2014, the parties appeared before a different
district court judge — Judge Egelhoff — for a pretrial hearing. At
this hearing, defense counsel stated that Waller might desire to
proceed pro se and had requested advisory counsel before but that
Judge Madden had denied that request. Judge Egelhoff declined to
9
address the issue, stating that he had reviewed the record, he had
seen that this issue had already been addressed many times by
Judge Madden, and he was not “going to reinvent the wheel here.”
¶ 21 On March 21, 2015, two and a half weeks before trial, defense
counsel filed a renewed motion for Waller to represent himself pro
se with the assistance of advisory counsel. This issue was
addressed the first day of trial by Judge Egelhoff, who stated that
he had read the minute orders in the case and knew that this issue
had come up repeatedly before Judge Madden, who had held a
hearing, made findings, and issued an order with respect to the
issue of Waller’s representation. Judge Egelhoff stated that he was
“not inclined to go back and relitigate things that Judge Madden
has had a hearing on and resolved.” Judge Egelhoff then asked
Waller if he would like to proceed pro se without advisory counsel or
if he wished for his counsel to represent him at trial. Waller chose
to proceed to trial with his counsel representing him.
B. Waller’s Constitutional Claim
¶ 22 Waller contends that, due to the circumstances of his case,
the trial court violated his federal and state constitutional right to
10
self-representation by denying his requests for the appointment of
advisory counsel to assist him with proceeding pro se.
1. Standard of Review and Applicable Law
¶ 23 “We review de novo whether a defendant was denied the right
to self-representation.” People v. Johnson, 2015 COA 54, ¶ 15.
Denial of the right to self-representation is structural error and is
not subject to harmless error analysis. Id.; see also People v.
Brante,
232 P.3d 204, 207 (Colo. App. 2009).
¶ 24 “The fundamental right to counsel is guaranteed by the Sixth
Amendment to the United States Constitution, and is considered
essential to a fair trial.” People v. Arguello,
772 P.2d 87, 92 (Colo.
1989). “As a corollary to the Sixth Amendment’s right to counsel, a
defendant has the alternative right to self-representation.” Id.; see
also Faretta v. California,
422 U.S. 806, 819-21 (1975). The
Colorado Constitution reinforces this right, stating that “the
accused shall have the right to appear and defend in person.” Colo.
Const. art. II, § 16; Arguello,
772 P.2d at 92. The right to self-
representation “is personal to the defendant and may not be
abridged by requiring a defendant to accept a lawyer when he
11
desires to proceed pro se.” Johnson, ¶ 16 (quoting People v. Mogul,
812 P.2d 705, 708 (Colo. App. 1991)).
¶ 25 While the right to self-representation is constitutionally
protected, it is “not of the same magnitude as the competing right to
counsel.” People v. Abdu,
215 P.3d 1265, 1267 (Colo. App. 2009).
Absent an unequivocal request, courts must “ascribe a
‘constitutional primacy’ to the right to counsel because this right
serves both the individual and collective good, as opposed to only
the individual interests served by protecting the right of self-
representation.”
Id. at 1268 (quoting United States v. Frazier-El,
204 F.3d 553, 559 (4th Cir. 2000)); see also United States v.
Singleton,
107 F.3d 1091, 1101-02 (4th Cir. 1997).
¶ 26 Furthermore, while a defendant has a constitutional right to
represent himself, he has no right to the appointment of advisory
counsel in connection with the exercise of his right to self-
representation. People v. Romero,
694 P.2d 1256, 1265 (Colo.
1985); see Arguello,
772 P.2d at 92 (stating that a defendant does
not have a right to demand “hybrid” or mixed representation by
12
both the defendant and counsel).1 A trial court may, however, in its
discretion, appoint advisory counsel for a pro se defendant.
Arguello, 772 P.2d at 92.
2. Analysis
¶ 27 Waller contends that, due to the circumstances of his case,
the trial court violated his constitutional right to self-representation
when it failed to appoint advisory counsel to assist him with
proceeding pro se. He argues that the court was constitutionally
required to appoint advisory counsel to assist him with his
representation due to his alleged limited education, a documented
history of suffering from mental health problems, the fact that he
had made mistakes when representing himself in a previous case,
and his limited access to a law library. We disagree.
1 We note that the court in United States v. Singleton, 107 F.3d
1091, 1102 (4th Cir. 1997), observed that “irreconcilable
differences” would likely arise between a lawyer and a defendant if a
defendant were to have a constitutional right to have counsel
appointed for any role he saw fit. As an officer of the court, a
lawyer has obligations, including the duty of disclosure, the duty to
ask only appropriate questions, and “the duty not to suborn
perjury, which have not been considered personally binding on the
defendant.”
Id. Furthermore, a lawyer’s “attorney-client
confidentiality could be seriously compromised by a system in
which the defendant selectively employs his attorney while making
his own defense.”
Id.
13
¶ 28 Waller was provided with competent counsel to represent him
at trial, at no cost to himself. At multiple times throughout the
course of the proceedings, he was also given the opportunity to
waive his right to counsel and to proceed pro se. The court
continually addressed the issue of whether Waller wished to
proceed pro se or whether he wished for his counsel to continue
representing him, and, indeed, the court granted several
continuances to provide Waller with more time to make an informed
decision about his representation. Because there is no
constitutional right to self-representation with the assistance of
advisory counsel, the trial court was under no constitutional
obligation to provide Waller any intermediate accommodation.
Romero, 694 P.2d at 1265; see Singleton,
107 F.3d at 1102. Thus,
the trial court’s refusal to appoint advisory counsel to assist Waller
in proceeding pro se did not violate his federal and state
constitutional rights to self-representation.
¶ 29 Waller’s argument here — that, due to the circumstances of
his case, the court violated his constitutional right to self-
representation when it refused to appoint advisory counsel —
misconstrues the law regarding a defendant’s constitutional right to
14
self-representation and the law regarding a trial court’s discretion to
appoint advisory counsel. As discussed above, there is no
constitutional right to self-representation with the assistance of
advisory counsel, Romero, 694 P.2d at 1265, and the record is clear
that Waller continually conditioned his request to proceed pro se on
the appointment of advisory counsel. See United States v.
Kienenberger,
13 F.3d 1354, 1356 (9th Cir. 1994) (The defendant’s
requests to proceed pro se were equivocal where they “were always
accompanied by his insistence that the court appoint ‘advisory’ or
‘standby’ counsel to assist him on procedural matters.”). Instead,
the appointment of advisory counsel remains a matter of trial court
discretion. Arguello,
772 P.2d at 92. Thus, we turn to Waller’s
alternative contention and consider the specific circumstances in
this case to decide whether the trial court abused its discretion by
declining to appoint advisory counsel for Waller.
C. The Trial Court’s Alleged Abuse of Discretion
¶ 30 Waller contends that the trial court abused its discretion when
it failed to conduct an adequate inquiry into the particular
circumstances of his case that merited the appointment of advisory
counsel to assist him with proceeding pro se. Specifically, Waller
15
contends that the district court abused its discretion when: (1)
Judge Madden allegedly initially denied his request for advisory
counsel on February 28, 2013, based on negative experiences the
court had in the past when appointing advisory counsel to assist
defendants in other cases; (2) Judge Madden denied Waller’s
request for advisory counsel in his order of March 6, 2013, based
on a general belief that appointing advisory counsel was never
appropriate, without considering the particular circumstances in
Waller’s case; (3) Judge Madden denied Waller’s renewed motion to
proceed pro se with the assistance of advisory counsel on November
25, 2013, without conducting any inquiry into the information
provided in Waller’s renewed motion; and (4) Judge Egelhoff
declined to exercise discretion when he deferred to Judge Madden’s
previous rulings declining to appoint Waller with advisory counsel.
¶ 31 We are not persuaded that either district court judge abused
his discretion.
1. Standard of Review and Applicable Law
16
¶ 32 We review the trial court’s decision not to appoint Waller with
advisory counsel for an abuse of discretion.2 See Romero, 694 P.2d
at 1265. A trial court abuses its discretion if its decision is
manifestly arbitrary, unreasonable, or unfair, or if it misconstrues
or misapplies the law. People v. Fallis,
2015 COA 75, ¶ 4. In
assessing whether a trial court abused its discretion, “we ask not if
we would have reached a different result but, rather, whether the
trial court’s decision fell within a range of reasonable options.”
Id.
¶ 33 The appointment of advisory counsel is “an intermediate
measure designed to ensure a fair trial when the trial court
determines that the defendant, because of mental or physical
problems, is incapable of representing himself, or when it becomes
apparent during trial that the defendant is simply unable to handle
the task he has undertaken.” Reliford v. People,
195 Colo. 549,
2 The People argue that Waller’s contention that the court abused
its discretion by declining to appoint advisory counsel to assist him
with proceeding pro se at trial is not ripe for review or properly
before this court because, ultimately, Waller did not represent
himself at trial. However, because Waller continually requested the
trial court to appoint him advisory counsel, we conclude that this
issue has been preserved for review and that we have jurisdiction to
review the trial court’s decision not to appoint advisory counsel for
Waller. See People v. Cordova,
293 P.3d 114, 120 (Colo. App. 2011)
(“To preserve an issue for appeal, a defendant must alert the trial
court to the particular issue.”).
17
554, 579 P.2d 1145, 1148 (1978). While the appointment of
advisory counsel “is generally a fair and commendable practice,”
id.,
and “a salutary practice to be strongly encouraged,” it is not
constitutionally mandated, Romero,
694 P.2d at 1265. Instead, as
previously discussed, the appointment of advisory counsel is a
matter of trial court discretion. Id.; see Reliford,
195 Colo. at 554,
579 P.2d at 1148. Factors “which should inform the [court’s]
exercise of discretion” when deciding whether to appoint advisory
counsel include “the factual and legal complexity of the issues, the
defendant’s familiarity with the criminal trial process, and his
formal education and ability to effectively communicate with the
court and jury.” Romero,
694 P.2d at 1265.
2. Analysis
a. February 28 Hearing
¶ 34 Waller contends that Judge Madden abused his discretion
when he denied Waller’s request for advisory counsel on February
28, 2013, based on his general policy against the appointment of
advisory counsel, without inquiring into the particular
circumstances of Waller’s case. The record belies this contention.
18
¶ 35 During the February 28 hearing, Judge Madden never denied
Waller’s request for the appointment of advisory counsel. Instead,
he stated: “I’m not going to say no today. I’m going to say I don’t
think I’m likely to do it . . . but I’m going to go back and look again
at the motion, I’m going to look at what I have in the file, review the
case law.” Judge Madden did not make a decision on the matter
until issuing his March 6 order. Thus, we reject Waller’s argument
that, during the February 28 hearing, Judge Madden abused his
discretion by denying Waller’s request for advisory counsel based on
a general policy against the appointment of advisory counsel.
¶ 36 We also note that during that hearing, Judge Madden heard
argument from Waller’s counsel that the court should appoint
advisory counsel for Waller because he wished to represent himself,
but counsel recognized that there were “layers of complexity where
advisory counsel would be useful to him.” Only after hearing
defense counsel’s argument did Judge Madden indicate his
disinclination to appoint advisory counsel unless “there was an
actual reason for it.” Thus, Judge Madden did in fact consider the
particular circumstances in Waller’s case; his statements during
this hearing were not based solely on a general policy against the
19
appointment of advisory counsel and certainly did not constitute an
abuse of discretion. Fallis, ¶ 4.
b. March 6 Order
¶ 37 We also disagree with Waller’s contention that Judge Madden
abused his discretion when he denied Waller’s request for advisory
counsel in his order of March 6, 2013, based on an alleged general
belief that appointing advisory counsel was never appropriate,
without considering the particular circumstances in Waller’s case.
Waller contends that the court abused its discretion because it did
not consider the factors set forth in Romero. 694 P.2d at 1265
(Factors which should “inform the [court’s] exercise of discretion” to
appoint advisory counsel include “the factual and legal complexity
of the issues, the defendant’s familiarity with the criminal trial
process, and his formal education and ability to effectively
communicate with the court and jury.”). Again, the record refutes
Waller’s argument.
¶ 38 Judge Madden’s March 6 order states that Waller allegedly hit
and kicked the victim, dragged her into his motel room, and kept
her there against her will. The order states that Waller was
identified by both the victim and an independent witness, and it
20
lists the charges filed against Waller. The court then specifically
found that “[a]s such, the case is neither factually nor verbally [sic]
complex.”3 Thus, contrary to Waller’s argument, Judge Madden
expressly made a finding that Waller’s case was not complex. Id.
¶ 39 Judge Madden’s March 6 order also stated that Waller “has
prior history and experience with criminal proceedings, and is
apparently familiar with legal concepts and procedures.” Thus, we
conclude that Judge Madden also made a finding as to Waller’s
familiarity with the criminal trial process.
Id.
¶ 40 While the March 6 order does not contain any explicit findings
as to Waller’s formal education and ability to communicate with the
court and jury, we note that defense counsel at this point in the
proceedings had not alleged that Waller suffered from a limited
education or mental health problems.4 Additionally, before issuing
his March 6 order, Judge Madden had stated that he wished to
3 Although he used the word “verbally,” viewed in context, it
appears that Judge Madden instead meant to find that Waller’s
case was not “legally complex,” because he made this specific
finding immediately after summarizing the incident that led to
Waller’s charges and after explaining that Waller had been
identified by both the victim and an independent witness.
4 During the second day of Waller’s trial, the trial court asked
defendant how much school he had completed, to which Waller
responded: “College.”
21
review the record in Waller’s case, which included the county court
proceedings where Waller had represented himself before the
county court judge, argued to the court, and asked the court many
questions about the proceedings in his case. Judge Madden’s
review of the record in this case would have given him the
opportunity to evaluate any potential issues related to Waller’s
formal education or ability to communicate with the court and jury.
¶ 41 In any event, Judge Madden’s March 6 order also stated: “In
light of all of these considerations, barring a change in
circumstances, in the event the Defendant elects to represent
himself, the Court will not appoint advisory counsel.” Thus, the
court did not foreclose the appointment of advisory counsel
altogether. Instead, it left open the opportunity for Waller to show
that there had been a change in circumstances that indicated a
stronger need for advisory counsel.
¶ 42 Therefore, we conclude that Judge Madden did not abuse his
discretion in his March 6 order by denying Waller’s request to
proceed pro se but only with the assistance of advisory counsel.
See Fallis, ¶ 4.
22
c. November 25 Denial of Waller’s Renewed Motion
¶ 43 Waller next contends that Judge Madden abused his
discretion by denying Waller’s renewed motion to proceed pro se
with the assistance of advisory counsel on November 25, 2013,
because he did not conduct any further inquiry into Waller’s
renewed motion. Waller contends that Judge Madden should have
entered an order to ensure Waller had adequate law library access
and should have inquired about information that Waller had limited
education, had documented mental illness, and had made errors in
the past when representing himself. We disagree.
¶ 44 While Judge Madden did not inquire into the specific
circumstances of Waller’s renewed motion on November 25, he had
held a hearing on Waller’s written renewed motion for the
appointment of advisory counsel just three days prior, during which
he heard argument from Waller’s counsel as to why the court
should appoint advisory counsel in Waller’s case. Waller’s counsel
was given the opportunity to provide support for his allegations in
23
his written motion that Waller was a man of limited education5 with
a documented history of mental health problems, but counsel did
not provide the court with any further information as to these
issues.
¶ 45 Additionally, Judge Madden had already made findings in his
March 6 order that Waller’s case was neither factually nor legally
complex and that Waller was familiar with the criminal trial
process. See Romero, 694 P.2d at 1265. Furthermore, by the time
Waller appeared at the November 25 hearing, the court had had
many opportunities to evaluate any issues pertaining to Waller’s
education, competency, and abilities to communicate with the court
and jury, but it noted none. Besides the unsupported allegations
brought up for the first time in defense counsel’s written motion on
November 1 (discussed further below), there were no new
circumstances that required the court to reconsider its March 6
order. Therefore, we conclude that Judge Madden did not abuse
his discretion when he denied Waller’s renewed request for the
5We again note that during the second day of Waller’s trial, the trial
court asked defendant how much school he had completed, to
which Waller responded: “College.”
24
appointment of advisory counsel on November 25. See id.; see also
Fallis, ¶ 4.
¶ 46 We disagree that Judge Madden abused his discretion by not
inquiring into the information provided to the court that Waller had
committed several mistakes when he represented himself in a prior
case. The “lack of ‘technical legal knowledge’ should not be
considered when a court rules on a motion to proceed pro se.”
Johnson, ¶ 22. Additionally, simply because Waller may have made
mistakes in the past when representing himself did not
substantively distinguish him from any other defendant electing to
proceed pro se. There are risks encompassed with the decision to
proceed pro se, and while “a pro se defense is usually a bad one,”
id. at ¶ 19, it is a constitutional right provided to all defendants
regardless of mistakes they may have made in the past. See
Arguello, 772 P.2d at 92.
¶ 47 We also reject Waller’s argument that Judge Madden abused
his discretion when he did not enter an order to ensure Waller had
adequate law library access. When a defendant is represented by
counsel, counsel is a resource who serves as the “functional
equivalent of a law library or alternative sources of legal
25
knowledge.” People v. Vialpando, 954 P.2d 617, 620 (Colo. App.
1997); see also United States v. Taylor,
183 F.3d 1199, 1204 (10th
Cir. 1999) (“It is well established that providing legal counsel is a
constitutionally acceptable alternative to a prisoner’s demand to
access a law library.”). Here, Waller was represented by counsel
throughout the district court proceedings, and his counsel could
have provided him with any legal resources or information he
requested regarding representation issues or other issues in the
case. Furthermore, Judge Madden had denied Waller’s requests for
additional library time while he was represented by counsel but
stated that he would revisit the issue if Waller chose to proceed pro
se.
¶ 48 Thus, Judge Madden did not abuse his discretion when he
denied Waller’s renewed request to proceed pro se with the
appointment of advisory counsel on November 25. See Fallis, ¶ 4.
d. Judge Egelhoff’s Orders
¶ 49 Waller also contends that Judge Egelhoff abused his discretion
by essentially declining to exercise discretion when he deferred
entirely to Judge Madden’s previous rulings declining to appoint
advisory counsel. See People v. Darlington, 105 P.3d 230, 232
26
(Colo. 2005) (“[F]ailure to exercise discretion is itself an abuse of
discretion.”). We are not persuaded.
¶ 50 The record shows that when Judge Egelhoff deferred to Judge
Madden’s previous rulings declining to appoint advisory counsel,
this was in fact an exercise of his discretion, not a failure to
exercise discretion. When defense counsel renewed the issue of
Waller wanting to proceed pro se with the assistance of advisory
counsel, Judge Egelhoff stated that he had reviewed the record;
knew that Judge Madden had repeatedly addressed the issue; and
knew that Judge Madden had held a hearing, made findings, and
issued an order with respect to the issue. Thus, the record reflects
that Judge Egelhoff was familiar with the circumstances in the case
and made an informed, discretionary decision to defer to Judge
Madden’s previous rulings on the matter. Additionally, Waller did
not provide Judge Egelhoff with any additional reasons or new
circumstances as to why the court should appoint him advisory
counsel beyond those that Judge Madden had already addressed.
Thus, it was not necessary for Judge Egelhoff to allow Waller to re-
litigate his request for the court to appoint advisory counsel simply
because a new judge was handling the case. Instead, it was within
27
Judge Egelhoff’s discretion to defer to Judge Madden’s decisions
declining to appoint Waller advisory counsel, and doing so was not
an abuse of discretion. See Fallis, ¶ 4.
III. Jury Nullification and the
Reasonable Doubt Jury Instruction
¶ 51 Waller also contends that his constitutional right to a fair trial
by an impartial jury was violated by language in the court’s
reasonable doubt jury instruction that allegedly abolished the jury’s
power to nullify. He contends that the mandatory wording of the
reasonable doubt jury instruction, which stated that the jury “will”
find the defendant guilty if the jury found that the prosecution had
proven every element beyond a reasonable doubt, was tantamount
to a directed verdict for the prosecution. We disagree.
A. Facts
¶ 52 The general reasonable doubt jury instruction given to the jury
stated, in pertinent part, as follows:
If you find from the evidence that each and
every element has been proven beyond a
reasonable doubt, you will find the Defendant
Guilty. If you find from the evidence that the
prosecution has failed to prove any one or
more of the elements beyond a reasonable
doubt you will find the Defendant Not Guilty.
28
(Emphasis added.)
¶ 53 In contrast, the elemental instruction for the third degree
assault charge stated, in pertinent part, as follows: “After
considering all the evidence, if you decide the prosecution has failed
to prove any one or more of the elements beyond a reasonable
doubt, you should find the Defendant Not Guilty of Third Degree
Assault.” (Emphasis added.)
¶ 54 Waller objected to the general reasonable doubt instruction on
the ground that it included the phrase “you will find the Defendant
Guilty” instead of “you should find the Defendant Guilty.” He also
tendered a reasonable doubt instruction that used the word
“should” rather than “will.” The court declined to give Waller’s
tendered instruction.
B. Standard of Review
¶ 55 We review de novo whether jury instructions as a whole
accurately informed the jury of the law.6 People v. Ridgeway, 2013
COA 17, ¶ 12.
6 We reject the People’s argument that Waller did not preserve his
contention that the use of the word “will” rather than “should” in
the general reasonable doubt jury instruction violated his
constitutional rights. Prior to closing argument, when the parties
29
¶ 56 When determining whether a challenged reasonable doubt
standard instruction satisfies the Due Process Clause, a reviewing
court should ask “‘whether there is a reasonable likelihood that the
jury has applied the challenged instruction in a way that violates’
the Constitution.” People v. Munoz, 240 P.3d 311, 316 (Colo. App.
2009) (quoting Estelle v. McGuire,
502 U.S. 62, 72 (1991)).
C. Background Law on Jury Nullification
¶ 57 Nullification is a juror’s “knowing and deliberate rejection of
the evidence or refusal to apply the law because the result dictated
by law is contrary to the juror’s sense of justice, morality, or
fairness.” State v. Nicholas, 341 P.3d 1013, 1015 (Wash. Ct. App.
2014). Jury nullification occurs in a trial when a jury acquits a
were modifying the jury instructions that would be provided to the
jury, Waller’s counsel orally requested the court to modify the word
“will” to “should” in the general reasonable doubt jury instruction.
Additionally, the jury instructions that defense counsel tendered to
the trial court included a request to change the word “will” to
“should” in the general reasonable doubt jury instruction, and they
also included a citation to People v. Wilson,
972 P.2d 701, 706
(Colo. App. 1998), with the following case explanation quoting
Wilson in part: “(recognizing ‘jury’s de facto power of nullification
and the jurors’ duty to follow the court’s instructions,’ and thus,
holding that court should not explicitly instruct on nullification).”
We conclude that Waller sufficiently preserved his contention that
the general reasonable doubt jury instruction violated his
constitutional rights. Cordova,
293 P.3d at 120.
30
defendant even though the members of the jury believe the
defendant is guilty of the charges. Id.
¶ 58 The doctrine of jury nullification traces its roots to the early
American colonial days, and it can be explained by “the almost total
absence of an established legal profession; . . . the pervasive
influence of natural rights philosophy; and . . . the shared
experience of living under — and then rebelling against — a
tyrannical form of government.” State v. Hatori,
990 P.2d 115, 120
(Haw. Ct. App. 1999) (quoting People v. Douglas,
680 N.Y.S.2d 145,
152 n.17 (N.Y. Sup. Ct. 1998)). It is also said to be rooted in the
Sixth Amendment’s guarantee to a jury trial.
Id. The Sixth
Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an
impartial jury,” U.S. Const. amend. VI, and this right includes the
right to have a jury, rather than a judge, reach “the requisite finding
of ‘guilty.’” Sullivan, 508 U.S. at 277. Thus, although a judge may
direct a verdict in favor of a defendant, a judge may not direct a
verdict for the State. Id.; see also United States v. Martin Linen
Supply Co.,
430 U.S. 564, 572 (1977) (stating that because jurors
are the primary finders of fact, a trial judge is prohibited from
31
entering a judgment of conviction or directing the jury to come
forward with such a verdict).
¶ 59 Colorado courts “have said little about the issue of jury
nullification” and have even stated that “the issue of nullification is
best avoided.” People v. Wilson, 972 P.2d 701, 705-06 (Colo. App.
1998). However, in Wilson, a division of this court recognized that
because there is a tension between a jury’s power to nullify and the
jury’s duty to follow the court’s instructions, a trial court has
discretion to preclude counsel from arguing jury nullification.
Id. at
706. Furthermore, a defendant is not entitled to a jury instruction
informing jurors that they have the inherent power to nullify a
verdict of guilt. See
id. While a jury does have the power to nullify,
there is no right to jury nullification. Crease v. McKune,
189 F.3d
1188, 1194 (10th Cir. 1999).
D. State v. Smith-Parker
¶ 60 Waller’s contention here is based, in large part, on the Kansas
Supreme Court’s opinion in State v. Smith-Parker, 340 P.3d 485
(Kan. 2014). In that case, the defendant argued that a jury
instruction on alternative first degree murder theories contained a
misstatement of law with respect to reasonable doubt.
Id. at 506.
32
The instruction stated: “If you do not have a reasonable doubt from
all the evidence that the State has proven murder in the first degree
on either or both theories, then you will enter a verdict of guilty.”
Id. The defendant argued that the instruction should have been
identical to the general reasonable doubt instruction that was given,
which stated: “If you have no reasonable doubt as to the truth of
each of the claims required to be proved by the State, you should
find the defendant guilty.”
Id.
¶ 61 The Kansas Supreme Court discussed a previous opinion State
v. Lovelace,
607 P.2d 49, 55 (Kan. 1980), in which the court had
held that an instruction which told jurors that they “must” find a
defendant guilty if they had no reasonable doubt about the
elements of the crime was constitutional. The court in Lovelace had
rejected the argument that the term “must” commanded the jury to
find the defendant guilty, and it noted that “should” and “must”
could be used interchangeably in criminal jury instructions. Id.;
see also Smith-Parker,
340 P.3d at 506-07.
¶ 62 Nonetheless, the court in Smith-Parker overruled Lovelace,
concluding that the district court’s instruction in Smith-Parker
“went too far” and “essentially forbade the jury from exercising its
33
power of nullification.” 340 P.3d at 507. The court stated that “the
wording of the instruction at issue in Lovelace — ‘must’ — and the
wording at issue here — ‘will’ — fly too close to the sun of directing
a verdict for the State. A judge cannot compel a jury to convict,
even if it finds all elements proved beyond a reasonable doubt.”
Id.
E. People v. Munoz
¶ 63 In contrast, the People rely, in large part, on the opinion by a
division of this court in Munoz, 240 P.3d at 315-19.
¶ 64 In Munoz, the division addressed an argument by the
defendant that the word “should” in a reasonable doubt jury
instruction granted the jury too much discretion.
Id. at 316-17.
The defendant in Munoz argued that the trial court’s use of the
word “should” in the reasonable doubt jury instruction for each
offense impermissibly lowered the prosecution’s burden of proof
because the word “should” is merely a “permissive request rather
than a mandatory command.”
Id. at 317. The defendant contended
that the word “should” in the reasonable doubt instruction “left the
issue of whether the prosecution proved defendant’s guilt beyond a
reasonable doubt to the jury’s discretion rather than informing the
34
jury that it was obligated to return a not guilty verdict if the
prosecution failed to present sufficient proof.” Id.
¶ 65 The division first looked to the dictionary definition of
“should,” which states that the term is used “to express duty,
obligation, propriety, or expediency.”
Id. (quoting Webster’s Third
New International Dictionary 2104 (2002)). The division reasoned
that although courts have interpreted the word in various contexts
and have drawn conflicting conclusions, “the weight of authority
appears to favor interpreting ‘should’ in an imperative, obligatory
sense.”
Id. The division found that courts in other jurisdictions
had held that the word “should” in a reasonable doubt jury
instruction “conveys a sense of duty and obligation and could not
be misunderstood by a jury.”
Id. (quoting State v. McCloud,
891
P.2d 324, 335 (Kan. 1995)); see also Tyson v. State,
457 S.E.2d 690,
691-92 (Ga. Ct. App. 1995). Ultimately, the division in Munoz
concluded that the common meaning of “should” “conveys an
obligatory command and not a permissive request,” and thus it held
that the challenged instructions using the word “should” adequately
informed the jury of its “obligation to adhere to the reasonable
doubt standard in deciding defendant’s guilt.”
240 P.3d at 317.
35
F. Applicable Out-of-State Authority
¶ 66 Because defendant’s contention here raises an issue of first
impression in Colorado, we look to cases in other jurisdictions
where courts have considered and rejected instructional challenges
and nullification arguments similar to Waller’s contentions.
¶ 67 In Farina v. United States, 622 A.2d 50, 61 (D.C. 1993), the
defendant argued that the trial court’s instruction stating that a
jury “must” find the defendant guilty if it finds that the government
proved every element of the offense beyond a reasonable doubt
constituted a directed verdict of guilt. The court rejected this
contention and concluded that the instruction was proper
if given in the context of other instructions
which inform the jury about the presumption
of innocence, the government’s burden of
proving each element of the offense beyond a
reasonable doubt, and other matters such as
the fact that the jury must consider all the
instructions given, as a whole.
Id. The court in Farina reasoned that a jury should not be informed
of its power to ignore the law, and it held that the trial court’s
instruction using the word “must” was not akin to a directed verdict
for the prosecution.
Id. at 60-61; see also State v. Ragland,
519
A.2d 1361, 1365-73 (N.J. 1986) (same).
36
¶ 68 Similarly, in Nicholas, the Washington Court of Appeals
addressed whether a “duty to convict” jury instruction misled the
jury about its power to acquit. 341 P.3d at 1014-15. The
instruction in that case stated: “If you find from the evidence that
each of these elements has been proved beyond a reasonable doubt,
then it will be your duty to return a verdict of guilty.”
Id. (emphasis
added). The defendant argued that the word “duty” in the jury
instruction “unconstitutionally impinges upon a jury’s inherent
power to acquit.”
Id. at 1015.
¶ 69 The Washington Court of Appeals stated that judges declare
the law, while jurors must swear to faithfully apply the law.
Id. at
1017. The court held that jurors swear an oath to faithfully apply
the law, and the “use of the word ‘duty’ is consistent with the oath
requirement that the jury give a true verdict, and that it does so
according to the law and evidence.”
Id. Concluding that the
challenged jury instruction did not violate the defendant’s
constitutional rights by misleading the jury about its power to
acquit, the court stated that “courts recognize that jury nullification
occurs in practice, but we will not promote it nor educate jurors
about nullification.”
Id. at 1015, 1018-19; see also Hatori,
990 P.2d
37
at 118-22 (discussing nullification and upholding a similar “duty to
follow the law” instruction).
G. Analysis
¶ 70 Waller contends that we should follow the holding in Smith-
Parker and conclude that his constitutional right to a fair trial by an
impartial jury was violated by the trial court’s use of the word “will”
in the reasonable doubt jury instruction, thus abolishing the jury’s
power to nullify. We are not persuaded.
¶ 71 We begin our analysis by noting that Waller does not challenge
the trial court’s elemental instruction that stated that the jury
“should find the Defendant Guilty of Third Degree Assault” if the
jury decided that the prosecution had proven each of the elements
of third degree assault beyond a reasonable doubt. (Emphasis
added.) Indeed, he contends that the trial court erred by not using
the word “should,” rather than “will,” in all jury instructions
discussing the concept of reasonable doubt because use of the term
“will” allegedly forbade the jury from exercising its nullification
power and was too close to directing a verdict for the State.7
7 We recognize that COLJI-Crim. E:03 (2015), the model general
jury instruction on reasonable doubt, uses the word “should,” and
38
¶ 72 We reject this argument because, as previously discussed, a
division of this court has held that the word “should,” when used in
a reasonable doubt jury instruction, conveys a sense of duty and
obligation, and not merely an expanded form of discretion. See
Munoz, 240 P.3d at 317. Other jurisdictions have agreed with this
holding. See McCloud,
891 P.2d at 335; see also Tyson,
457 S.E.2d
at 691-92. Thus, use of the term “should” does not grant the jury
as much, or arguably any, discretion as Waller contends and is no
less obligatory than the use of the word “will” in the reasonable
doubt instruction at issue here. Accordingly, we disagree with
Waller’s argument that use of the word “should” in the elemental
instruction allowed the jury to use its power to nullify, whereas use
of the word “will” in the general reasonable doubt instruction
somehow abolished the jury’s power to nullify.
¶ 73 More fundamentally, we simply disagree with the Kansas
court’s holding in Smith-Parker and, under the circumstances here,
the better practice may be for trial courts to do so. However,
because Waller only makes a constitutional argument on appeal, for
all of the reasons set forth in this opinion, the language in the
model instruction does not change our conclusion that the trial
court’s instruction here did not violate Waller’s constitutional
rights.
39
decline to follow that decision. Rather, we are more persuaded by
cases from other jurisdictions where courts have rejected challenges
to similarly worded mandatory language in reasonable doubt jury
instructions based on nullification arguments.8
¶ 74 Although the court in Smith-Parker held that use of the terms
“will” and “must” flew “too close to the sun of directing a verdict for
the State,” the court did not provide any analysis for its conclusion.
340 P.3d at 507. By contrast, we are more persuaded by the
reasoning of cases such as Farina, where the court concluded
otherwise, finding that the use of the word “must” in a reasonable
doubt jury instruction did not constitute a directed verdict of guilt.
622 A.2d at 61; see also Ragland,
519 A.2d at 1365-73.
¶ 75 Indeed, we find it instructive that some courts have held that
even a jury instruction stating that jurors have a “duty to return a
verdict of guilty” is constitutional and does not improperly abolish a
jury’s inherent nullification power. See Hatori,
990 P.2d at 118-22;
Nicholas,
341 P.3d at 1014-19. In our view, an instruction that
8 Indeed, based on our research, we agree with the People that State
v. Smith-Parker,
340 P.3d 485, 507 (Kan. 2014) is a minority —
perhaps sole — view on this issue. We have not found, nor has
Waller cited, a case from any other jurisdiction agreeing with the
holding and reasoning in Smith-Parker.
40
jurors “will find the Defendant Guilty” is even less obligatory and
objectionable than an instruction which tells jurors that they have a
“duty to return a verdict of guilty.”
¶ 76 Additionally, we agree with the People that courts need not
promote nullification, Nicholas, 341 P.3d at 1015, and we reiterate
that while jurors have the power to nullify, there is no right to
nullification, Crease,
189 F.3d at 1194; see also Wilson,
972 P.2d at
706 (recognizing that most courts have held that trial courts should
not instruct the jury that it may nullify a verdict of guilt).
¶ 77 For these reasons, we decline to adopt the holding from Smith-
Parker, and we thus reject Waller’s contention that the trial court’s
general reasonable doubt instruction — instructing the jury that it
“will find the Defendant Guilty” if it found that the prosecution
proved all elements of an offense beyond a reasonable doubt —
abolished the jury’s power to nullify and essentially constituted a
directed verdict for the State.
IV. Conclusion
¶ 78 The judgment is affirmed.
JUDGE STERNBERG and JUDGE PLANK concur.
41
