People v. Waller

2016 COA 115, 412 P.3d 866

• Court: Colorado Court of Appeals
• Decided: August 11, 2016
• Docket: 14CA1009
• Status: Published

Opinion

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.

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.

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

¶ 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.