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People v. Waller

Court of Appeals of Colorado, Division II

August 11, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Anthony M. Waller, Defendant-Appellant.

         City and County of Denver District Court No. 12CR4151 Honorable John W. Madden IV, Judge Honorable Martin F. Egelhoff, Judge

          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

          LOEB CHIEF JUDGE.

         ¶ 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 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 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 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.

         ¶ 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 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 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.

         ¶ 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 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 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 ...


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