People v. Waller, 2016 COA 115

Background

Anthony Waller was charged with kidnapping, false imprisonment, third-degree assault, and menacing; some charges were dismissed and the jury acquitted him of kidnapping but convicted him of third-degree assault.
Waller repeatedly requested to proceed pro se but only if the court appointed "advisory" (standby) counsel to assist him; courts repeatedly denied appointment of advisory counsel.
Judge Madden issued a written order declining to appoint advisory counsel absent changed circumstances, finding the case not legally complex and that Waller had trial experience; Judge Egelhoff deferred to those rulings.
Waller also objected to the trial court’s reasonable-doubt instruction because it used the mandatory term "will" ("you will find the Defendant Guilty") rather than "should," arguing this abolished the jury’s power to nullify and amounted to a directed verdict.
The court affirmed the conviction, holding (1) there is no constitutional right to proceed pro se with appointed advisory counsel and the trial court did not abuse its discretion in denying advisory counsel, and (2) the challenged jury instruction did not violate due process or improperly eliminate jury nullification.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to self-representation with advisory counsel	People: court has discretion to deny advisory counsel; no constitutional right to hybrid representation	Waller: his circumstances (limited education, mental-health history, prior pro se mistakes, limited law-library access) required appointment of advisory counsel when he elected to proceed pro se	No constitutional violation; no right to advisory counsel; court acted within its discretion
Abuse of discretion in denying advisory counsel	People: judge considered Romero factors and case record; denial reasonable	Waller: judge relied on prior negative experiences and failed to inquire into his particular circumstances or ensure library access	No abuse of discretion; judge made findings (case not complex; Waller experienced) and left door open for changed circumstances
Judge Egelhoff’s deference to prior rulings	People: deference was a discretionary, informed choice after reviewing the record	Waller: deference amounted to failure to exercise discretion	Deference was proper exercise of discretion given prior hearings and findings
Reasonable-doubt instruction and jury nullification	People: mandatory wording in context of other instructions does not direct verdict for prosecution; courts need not instruct jurors about nullification	Waller: use of "will" (vs. "should") essentially forbade nullification and approximated a directed verdict	Instruction constitutional; no reasonable likelihood jury applied it to violate due process; Smith-Parker rejected as persuasive minority view

Key Cases Cited

Faretta v. California, 422 U.S. 806 (1975) (recognizes constitutional right to self-representation)
People v. Arguello, 772 P.2d 87 (Colo. 1989) (no right to hybrid representation; court may appoint advisory counsel in discretion)
People v. Romero, 694 P.2d 1256 (Colo. 1985) (appointment of advisory counsel discretionary; factors to consider)
Reliford v. People, 579 P.2d 1145 (Colo. 1978) (advisory counsel as intermediate measure when defendant unable to proceed pro se)
People v. Munoz, 240 P.3d 311 (Colo. App. 2009) ("should" conveys obligation in reasonable-doubt instruction)
State v. Smith-Parker, 340 P.3d 485 (Kan. 2014) (holding mandatory wording in reasonable-doubt instruction impermissibly close to directing verdict — treated as minority view)
Farina v. United States, 622 A.2d 50 (D.C. 1993) (mandatory language in reasonable-doubt instruction not equivalent to directed verdict when considered with other instructions)
People v. Wilson, 972 P.2d 701 (Colo. App. 1998) (courts should avoid instructing or encouraging nullification; trial court may preclude nullification argument)
State v. Nicholas, 341 P.3d 1013 (Wash. Ct. App. 2014) (upholding "duty to return guilty verdict" language; courts will not promote nullification)