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
