v. Scott , 2021 COA 71 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 27, 2021
2021COA71
No. 18CA0332, People v. Scott — Constitutional Law — Sixth
Amendment — Right to Trial by Jury; Juries — Jury
Nullification
A division of the court of appeals considers whether a pro se
defendant has a constitutional right to offer testimony or argument
about jury nullification. The division concludes that (1) no
constitutional right to jury nullification exists; (2) a district court
does not abuse its discretion by preventing a defendant from urging
jury nullification; and (3) a district court does not abuse its
discretion by warning a defendant that he may be sanctioned for
contempt of court if he violates the court’s order not to urge jury
nullification. Accordingly, the division affirms the judgment of
conviction.
COLORADO COURT OF APPEALS 2021COA71
Court of Appeals No. 18CA0332
Larimer County District Court No. 17CR1008
Honorable Julie Kunce Field, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Charles Raheen Scott,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE YUN
J. Jones and Navarro, JJ., concur
Announced May 27, 2021
Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury has the discretionary power to acquit a defendant, even
if each juror believes the defendant to be guilty according to the law
and the evidence. This is called jury nullification. While appellate
courts recognize that juries have this de facto power, they uniformly
agree that trial courts should not encourage jury nullification. This
is because this de facto power is at odds with other foundational
features of the jury system: the historical allocation of
responsibilities under which the court determines the law and the
jury the facts; the oath that jurors take to “well and truly try the
matter before the court, and render a true verdict, according to the
evidence and the law”; and the court’s instructions to the jury that
it must follow the law even it disagrees with the law or does not
understand the reasons for the law. COLJI-Crim. B:01, E:01
(2020).
¶2 In this case, Charles Raheen Scott, while testifying in his own
defense, tried to ask the jury to exercise its nullification power and
acquit him of attempting to possess a controlled substance with
intent to distribute. The district court interrupted his testimony,
ordered him to stop testifying about jury nullification, and warned
him that he could be held in contempt if he continued to discuss
1
jury nullification. On appeal, Scott argues that the court’s
interruption violated his constitutional rights. But Scott had no
constitutional right to testify about jury nullification. Nor did the
court’s interruption impair his constitutional rights to
self-representation or to testify. Accordingly, we affirm the
judgment of conviction.
I. Background
¶3 After intercepting a suspicious package, a United States postal
inspector conducted a consensual “knock and talk” at the address
on the package. Scott answered the door. He told the inspector
that the addressee — his child’s mother — was not home but that
he could sign for the package. The inspector, however, told Scott
that he could not sign for the package. Scott then admitted that
the package was for him and that it contained cocaine. When the
inspector opened the package, he found about forty-four grams of
cocaine inside a stuffed animal. Fort Collins police immediately
arrested Scott, and he was charged with attempted possession of a
schedule I or II controlled substance with intent to manufacture or
distribute, in violation of sections 18-18-405(1),
18-18-405(2)(b)(I)(A), and 18-2-101, C.R.S. 2020.
2
¶4 Scott pleaded not guilty and proceeded to trial, where he
represented himself. In his opening statement, Scott did not deny
attempting to possess cocaine. But he denied that he committed a
crime because, he explained, cocaine should be legal “for the same
reason that alcohol is legal.” After the prosecution rested, he
testified in his own defense. He said that he is a right-leaning
Libertarian and that he believes that a drug transaction between
consenting adults is not a crime because it does not victimize
anyone. He then started to talk about the history of jury
nullification and how, during Prohibition, juries routinely decided
not to punish bootleggers “despite the fact that those drug dealers
were factually guilty of breaking the law.”
¶5 Before Scott could say the words “jury nullification,” however,
the district court intervened:
MR. SCOTT: . . . . Wow. What else can I say.
I’m not sure — oh, like I said earlier, there
were a number of people in our history, they
have voted not guilty on behalf of defendants,
and those defendants have gone free despite
the fact that they were factually guilty of
breaking the law. And what that process is
called is —
THE COURT: Just a moment. Counsel
approach.
3
(The following proceedings were had in low
tones at the bench:)
THE COURT: I’ll caution you, you’re about to
talk to the jury about what’s called jury
nullification. I’m not going to allow that. It’s
not appropriate.
MR. SCOTT: Does inappropriate mean illegal?
THE COURT: I’m not going to allow that. You
were advised of this earlier as to jury
nullification.1
MR. SCOTT: I don’t understand, Your Honor.
THE COURT: I’m not allowing that. That’s not
appropriate. You’re inviting this jury to violate
their oath. I’m not going to allow you to do
that.
I’m not going to allow you to do that, give you
an opportunity — Mr. Scott, I will give you an
opportunity later to make a record on that
after the jury is done with — after you’re done
with your testimony. Okay? But I’m not going
to allow you to invite this jury to violate their
oath.
Do you have any other testimony that you
want to provide?
MR. SCOTT: I don’t —
THE COURT: We are not going to invite the
jury to violate their oath and to discard their
1 It is not clear from the record what this advisement contained.
4
oath. Do you understand that? That was my
order to you. I’m ordering you —
MR. SCOTT: You still haven’t explained to me
why it’s not permissible. You said that it’s
inappropriate, but you’re not saying that it’s
illegal, I do not have the right to do that. Why
do I not have the right to do it?
THE COURT: Not in this courtroom, you do not
have the right in this trial to violate their oath.
MR. SCOTT: If I can’t do it in this courtroom,
then where can I do it?
THE COURT: Mr. Scott, I will not allow — if
you violate my order, this is a direct order of
the Court, I will consider you to be in contempt
of Court. Do you understand that?
MR. SCOTT: What does that mean?
THE COURT: In fact, Mr. Scott, I’ve let you go
quite — what it means is that you’re violating a
court order and you are in contempt of Court.
If you are in direct violation of a court order, I
can make a determination whether or not you
should be sanctioned. That sanction could be
a period of time of up to six months in jail for
violating a direct order of this Court. Do you
understand that, sir?
MR. SCOTT: I do.
THE COURT: Okay. Mr. Scott, I’ve already let
you go quite a ways in terms of information
that was not directly relevant to the charges
here. I’ve given you quite a lot of leeway. I’m
not going to give you leeway to invite this jury
5
to violate their oaths. Do you understand that
you are not to testify in that regard?
MR. SCOTT: Okay.
¶6 During cross-examination, Scott admitted that he knew the
package contained cocaine, that he had ordered the cocaine, and
that he had intended to sell it.
¶7 The court then instructed the jury. As pertinent here, the
court said,
It is my job to decide what rules of law apply to
the case. While the attorneys may comment
on some of these rules, you must follow the
instructions I give you. Even if you disagree
with or do not understand the reasons for
some of the rules of law, you must follow them.
No single instruction describes all the law
which must be applied; the instructions must
be considered together as a whole.
During the trial, you received all of the
evidence that you may properly consider in
deciding the case. Your decision must be
made by applying the rules of law that I give
you to the evidence presented at trial.
Remember, you must not be influenced by
sympathy, bias or prejudice in reaching your
decision.
After describing the elements of attempting to possess a controlled
substance, the court also told the jury that, “[a]fter considering all
the evidence, if you decide the prosecution has proven each of the
6
elements beyond a reasonable doubt, you should find the defendant
guilty.” Scott did not object to these instructions.
¶8 In his closing argument, Scott reiterated what he had said in
his testimony and his opening statement: that drug laws are
“immoral and also illegal” because they infringe on individual
liberty. Then, while the jury deliberated, the court gave Scott a
chance to make his record:
My only question is why couldn’t I mention
words juror nullification or make the point or
allow the jury to hear that considering the fact
that jury nullification, to my knowledge, is not
illegal, and it’s, to my knowledge, it’s a part of
our country’s history, founding fathers used it,
used throughout history, Colorado’s history, to
my knowledge. So I don’t see why it was
inappropriate, quote, unquote, for me to
mention it.
The court replied, “Okay,” and the prosecutor rested “on
well-established law.”
¶9 The jury found Scott guilty of attempted possession of a
controlled substance with intent to distribute. The court sentenced
Scott to two years in prison plus one year on parole.
7
II. Analysis
¶ 10 Scott makes three arguments on appeal. First, he argues that
he had a constitutional right to tell the jurors that they had the
discretionary power to acquit him notwithstanding the law and the
evidence. Second, he argues that the district court violated his
constitutional right to a jury trial when it prevented him from
testifying about jury nullification. Third, he argues that the district
court violated his constitutional rights to self-representation and to
testify by threatening to jail him if he revealed the jury’s acquittal
power. We address each contention in turn.
A. Jury Nullification
¶ 11 Scott first argues that he had a constitutional right to ask the
jury to acquit him notwithstanding the law and the evidence and
that the district court violated this right by preventing him from
telling the jurors of their acquittal power. We disagree.
1. Standard of Review
¶ 12 We review an alleged violation of constitutional rights de novo.
People v. Janis, 2018 CO 89, ¶ 14.
8
2. No Constitutional Right to Jury Nullification
¶ 13 Jury nullification is a jury’s “knowing and deliberate rejection
of the evidence or refusal to apply the law because the result
dictated by law is contrary to [each] juror’s sense of justice,
morality, or fairness.” People v. Waller, 2016 COA 115, ¶ 57
(quoting State v. Nicholas, 341 P.3d 1013, 1015 (Wash. Ct. App.
2014)). Jury nullification occurs when a jury acquits a defendant
even though the members of the jury believe the defendant is guilty.
Id.¶ 14 This doctrine’s roots can be traced to the early American
colonial days. Id. at ¶ 58. Its historical roots can be explained by
(1) the near-total absence of an established legal profession; (2) the
pervasive influence of natural rights philosophy; and (3) the shared
experience of living under — and then rebelling against — a
tyrannical government. Id. (citing State v. Hatori, 990 P.2d 115,
120 (Haw. Ct. App. 1999)). It is also said to be rooted in the Sixth
Amendment’s guarantee of jury trials in criminal cases, which
includes the right to have a jury, rather than a judge, reach “the
requisite finding of ‘guilty.’” Id. (quoting Sullivan v. Louisiana,
508 U.S. 275, 277 (1993)).
9
¶ 15 In Sparf v. United States, 156 U.S. 51, 74 (1895), the United
States Supreme Court stated that juries “have the physical power to
disregard the law, as laid down to them by the court,” but they do
not “have the moral right to decide the law according to their own
notions or pleasure.” The Court concluded that the trial court had
properly given a supplemental instruction informing the jury “that,
in view of the evidence, the only verdict the jury could under the
law properly render would be either one of guilty of the offense
charged, or one of not guilty of the offense charged.” Id. at 63,
99-100. In doing so, the Court said that it “must hold firmly to the
doctrine that in the courts of the United States it is the duty of
juries in criminal cases to take the law from the court, and apply
that law to the facts as they find them to be from the evidence.” Id.
at 102. Were it otherwise, juries would “become a law unto
themselves,” such that “our government [would] cease to be a
government of laws, and [would] become a government of men.” Id.
at 101, 103.
¶ 16 Following Sparf’s lead, federal circuit courts have consistently
disapproved of informing the jury of its power to nullify:
10
 In United States v. Drefke, 707 F.2d 978, 982 (8th Cir.
1983), the Eighth Circuit stated that, since Sparf,
“federal courts have uniformly recognized the right and
duty of the judge to instruct the jury on the law and the
jury’s obligation to apply the law to the facts, and that
nullification instructions should not be allowed.”
 In United States v. Sepulveda, 15 F.3d 1161, 1190 (1st
Cir. 1993), the First Circuit similarly stated that,
“although jurors possess the raw power to set an accused
free for any reason or for no reason, their duty is to apply
the law as given to them by the court.” While “jurors
may choose to flex their muscles, ignoring both law and
evidence in a gadarene rush to acquit a criminal
defendant, neither the court nor counsel should
encourage jurors to exercise this power.” Id. In United States v. Thomas, 116 F.3d 606, 615 (2d Cir.
1997), the Second Circuit likewise explained that “the
power of juries to ‘nullify’ or exercise a power of lenity is
just that — a power; it is by no means a right or
11
something that a judge should encourage or permit if it is
within his [or her] authority to prevent.”
 In United States v. Davis, the Seventh Circuit recognized
that “[j]ury nullification is a fact, because the government
cannot appeal an acquittal,” but “it is not a right, either
of the jury or of the defendant.” 724 F.3d 949, 954 (7th
Cir. 2013) (quoting United States v. Perez, 86 F.3d 735,
736 (7th Cir. 1996)). “Although jury nullification is ‘a
natural and at times desirable aberration under our
system, it is not to be positively sanctioned by
instructions’” because “explicit instructions sanctioning
such action pose too great a threat to the rule of law.” Id.
at 954-55 (quoting United States v. Anderson, 716 F.2d
446, 449-50 (7th Cir. 1983)).
 In United States v. Kleinman, the Ninth Circuit similarly
explained that though juries have the power to nullify,
they do not have a right to nullify and courts have the
duty to forestall or prevent nullification because “it is the
duty of juries in criminal cases to take the law from the
court, and apply that law to the facts as they find them to
12
be from the evidence.” 880 F.3d 1020, 1031 (9th Cir.
2017) (quoting Merced v. McGrath, 426 F.3d 1076, 1079
(9th Cir. 2005)).
 And in United States v. Washington, 705 F.2d 489, 494
(D.C. Cir. 1983), the District of Columbia Circuit
concluded that a trial court properly refused to give the
defendant’s requested instruction on jury nullification
because the defendant’s “assertion that an instruction on
jury nullification is the ‘best assurance against its
arbitrary exercise’ . . . has no support in the law and flies
in the face of common sense.” (Citation omitted.)
¶ 17 In sum, the prevailing view among federal courts is that
nullification is only a de facto power that the jury has and not a
right that courts should encourage the jury to exercise. The reason
jurors have this de facto power is not because nullification is
inherently desirable. See Thomas, 116 F.3d at 614 (categorically
rejecting “the idea that, in a society committed to the rule of law,
jury nullification is desirable”). Rather, jurors have this raw power
because “the government cannot appeal an acquittal” and any
danger of jury nullification is outweighed by the need to protect jury
13
verdicts from external scrutiny. Davis, 724 F.3d at 954; cf. CRE
606(b) (generally precluding juror testimony regarding
deliberations). Thus, when “prevent[ing] defiant disregard of the
law or evidence comes into conflict with the principle of secret jury
deliberations, we are compelled to err in favor of the lesser of two
evils — protecting the secrecy of jury deliberations at the expense of
possibly allowing irresponsible juror activity.” Thomas, 116 F.3d at
623; see also Merced, 426 F.3d at 1079 (“The power to nullify is
reenforced by a jury’s freedom from recrimination or sanction for
exercising this power after the verdict has been reached.”).
¶ 18 Colorado law is consistent with these cases. The Colorado
Constitution preserves the historical allocation of responsibilities
under which courts determine the law and juries determine the
facts. Dill v. People, 94 Colo. 230, 234-35, 29 P.2d 1035, 1037
(1933). Consistent with this allocation, the model jury instructions
direct the court to instruct the jury at the close of the evidence in
every case: “It is my job to decide what rules of law apply to the
case. . . . [Y]ou must follow the instructions I give you. Even if you
disagree with or do not understand the reasons for some of the
rules of law, you must follow them.” COLJI-Crim. E:01; see also
14
Alvarez v. People, 653 P.2d 1127, 1131 (Colo. 1982) (“Jurors are
required to follow only the law as it is given in the court’s
instructions to the jury, whether or not they personally agree or
disagree with such instructions.”). Jurors who disregard the
judge’s instructions or the evidence violate their sworn oaths to
“well and truly try the matter before the court, and render a true
verdict, according to the evidence and the law.” COLJI-Crim. B:01.
Indeed, a trial court must grant a challenge for cause if a
prospective juror is unable or unwilling to follow the court’s
instructions on the law. Morrison v. People, 19 P.3d 668, 672 (Colo.
2000).
¶ 19 Our case law on jury nullification makes the same point. In
People v. Wilson, 972 P.2d 701, 705 (Colo. App. 1998), the
defendant argued that the prosecutor, in response to defense
counsel’s closing argument, misstated the law by informing the jury
that it did not have the power to nullify. The division reviewed case
law from other jurisdictions and determined that “most courts have
held that trial courts should not instruct the jury that it may nullify
a verdict of guilt” and that the “trial court can, in its discretion,
preclude counsel from arguing jury nullification.” Id. at 706.
15
Although the division cited the “tension between the jury’s de facto
power of nullification and the jurors’ duty to follow the court’s
instructions,” it concluded that “the issue of nullification is best
avoided” in closing arguments. Id.¶ 20 And more recently, in Waller, ¶ 76, a division of this court held
that “courts need not promote nullification.” In that case, the
defendant argued that the reasonable doubt instruction telling the
jury that it “will” find the defendant guilty if each element is proved
beyond a reasonable doubt was unconstitutional because it
abolished the jury’s power to nullify. Id. at ¶¶ 51-52. The division
noted that “[w]hile a jury does have the power to nullify, there is no
right to jury nullification.” Id. at ¶ 59. As a result, “a defendant is
not entitled to a jury instruction informing jurors that they have the
inherent power to nullify a verdict of guilt,” and “a trial court has
discretion to preclude counsel from arguing jury nullification.” Id.
Thus, the division rejected the defendant’s contention that the trial
court’s reasonable doubt instruction abolished the jury’s power to
nullify. Id. at ¶ 77.
¶ 21 We therefore conclude that “there is no constitutional right to
jury nullification.” Kleinman, 880 F.3d at 1035; see also, e.g.,
16
United States v. Wilkerson, 966 F.3d 828, 834 (D.C. Cir. 2020)
(“[T]he Sixth Amendment provides no right to a jury instruction on
nullification.”). And we agree with Wilson, 972 P.2d at 706, that
this issue is “best avoided” in closing arguments; with Waller, ¶ 76,
that “courts need not promote nullification”; and with the vast
majority of jurisdictions that courts should not encourage jury
nullification. Accordingly, any argument or testimony urging jury
nullification has no place in jury trials.
B. Testimony About Jury Nullification
¶ 22 We now turn to Scott’s argument that the district court
violated his right to a jury trial when it prevented him from
testifying that the jury could acquit him notwithstanding the law
and evidence. We are not persuaded.
1. Standard of Review
¶ 23 We review a district court’s decision to exclude testimony for
an abuse of discretion. People v. Smalley, 2015 COA 140, ¶ 18. A
court “abuses its discretion if its ruling is manifestly arbitrary,
unreasonable, or unfair, or based on an erroneous understanding
or application of the law.” Id.17
2. Testimony was Inadmissible
¶ 24 To be admissible, evidence must be relevant. People v.
Greenlee, 200 P.3d 363, 366 (Colo. 2009). Evidence is relevant
when it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Id. (quoting
CRE 401). “In determining whether the challenged evidence relates
to a fact of consequence to the determination of th[e] case, we must
necessarily look to the elements of the crime charged.” People v.
Carlson, 712 P.2d 1018, 1022 (Colo. 1986). If the evidence has no
bearing on any of the elements of the crime or any permissible
affirmative defense, it is irrelevant and inadmissible. Id.; see also
Roberts v. People, 2017 CO 76, ¶ 22 (“[W]hen the evidence
presented properly raises the issue of an affirmative defense, the
affirmative defense effectively becomes an additional element of the
charged offense . . . .”).
¶ 25 Here, the district court properly intervened and precluded
Scott from testifying about jury nullification. Scott was charged
with attempted possession of a controlled substance with intent to
distribute. §§ 18-2-101(1), 18-18-405(1)(a). Scott’s testimony
18
about the history and concept of jury nullification had no bearing
on any of the elements of this offense or any permissible affirmative
defense. In fact, testimony encouraging “nullification is by
definition irrelevant, and thus inadmissible, regardless of what
other evidence might be introduced at trial.” In re United States,
945 F.3d 616, 630 (2d Cir. 2019). Accordingly, Scott was “not
entitled to present evidence which is irrelevant for any purpose
other than to provoke the finder of fact to disregard the law.”
United States v. Lucero, 895 F. Supp. 1421, 1426 (D. Kan. 1995).
¶ 26 The district court therefore did not abuse its discretion by
precluding Scott from urging jury nullification.
C. Court’s Warning
¶ 27 Scott next asserts that the district court violated his
constitutional rights to self-representation and to testify by
threatening to hold him in contempt if he violated the court’s order.
We again disagree.
1. Standard of Review
¶ 28 The determination of whether certain conduct constitutes
contempt is within the district court’s sound discretion. Hill v.
Boatright, 890 P.2d 180, 187 (Colo. App. 1994), aff’d in part and
19
rev’d in part on other grounds sub nom. Boatright v. Derr, 919 P.2d
221 (Colo. 1996). Thus, we review a district court’s ruling for an
abuse of discretion. People v. Jones, 262 P.3d 982, 987 (Colo. App.
2011).
2. Contempt Power
¶ 29 “A court may hold a party in contempt for any conduct which
interferes with the court’s administration of justice, is derogatory to
the dignity of the court, or tends to bring the judiciary into
disrespect.” Id. (quoting People v. Aleem, 149 P.3d 765, 774 (Colo.
2007)). “As relevant here, a court may hold a party or other person
before the court in contempt for violating a court order.” Id.; see
also C.R.C.P. 107(a)(1) (defining contempt to include
“disobedience . . . by any person to . . . any lawful . . . order of the
court”). A party is not free to disregard a ruling he or she thinks
incorrect; the party’s remedy is to appeal after the judgment.
Jones, 262 P.3d at 987.
¶ 30 Scott argues that the district court improperly threatened to
hold him in contempt if he testified about jury nullification. But as
discussed above, Scott did not have a right to offer such testimony,
and the district court properly excluded it. When Scott questioned
20
the legitimacy of the court’s ruling, the district court warned Scott
that he would be held in contempt and possibly jailed if he insisted
on violating the court’s order. This was proper.
¶ 31 We are not persuaded otherwise by Scott’s argument that his
constitutional right to self-representation entitled him to tell the
jury about its acquittal power. “By electing to represent himself the
defendant subjected himself to the same rules, procedures, and
substantive law applicable to a licensed attorney.” People v.
Romero, 694 P.2d 1256, 1266 (Colo. 1985). “A pro se defendant
cannot legitimately expect the court to deviate from its role of
impartial arbiter and accord preferential treatment to a litigant
simply because of the exercise of the constitutional right of
self-representation.” Id. Thus, given that the district court had the
discretion to preclude counsel from arguing jury nullification,
Wilson, 972 P.2d at 706, it also had the discretion to preclude Scott
from testifying or arguing about jury nullification.
¶ 32 Nor are we persuaded by Scott’s argument that the district
court violated his constitutional right to testify by threatening to
hold him in contempt if he violated the court order. Scott had no
constitutional right to introduce irrelevant evidence. People v. Villa,
21
240 P.3d 343, 353 (Colo. App. 2009). “[T]he right to present a
defense is not absolute; it requires only that the accused be
permitted to introduce all relevant and admissible evidence.”
People v. Rodriguez, 209 P.3d 1151, 1160 (Colo. App. 2008), aff’d,
238 P.3d 1283 (Colo. 2010). Because Scott did not have a right to
urge jury nullification, the district court did not err by invoking its
authority to hold him in contempt if he continued to discuss the
topic.
III. Conclusion
¶ 33 For the foregoing reasons, we affirm the judgment of
conviction.
JUDGE J. JONES and JUDGE NAVARRO concur.
22