People v. Timothy Mark Gemelli

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
December 14, 2023
2023COA119No. 20CA1291, People v Gemelli — Constitutional Law — Sixth
Amendment — Right to Counsel — Right to Self-Representation
— Waiver
The defendant in this criminal case waived his right to counsel
and proceeded pro se at trial. On appeal, he argued that his waiver
was invalid because it was induced by his continued detention and
his desire to avoid a continuance. And he contended that when it
became apparent that his self-representation was ineffective, the
trial court should have sua sponte intervened and ordered advisory
counsel to take over the representation.
A division of the court of appeals holds that a defendant’s
waiver is not invalid merely because he is required to choose
between waiving his right to counsel and another course of action
— here, preserving a particular trial date. As long as the choice is
not “constitutionally offensive,” the waiver is not rendered
involuntary. The division further concludes that even if the
defendant’s self-representation is ineffective, the trial court is
neither obligated nor authorized to sua sponte override a
defendant’s valid waiver of the right to counsel and require that he
be represented by counsel.
COLORADO COURT OF APPEALS 2023COA119Court of Appeals No. 20CA1291
Boulder County District Court No. 17CR39
Honorable Norma A. Sierra, Judge
Honorable Bruce Langer, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Timothy Mark Gemelli,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE HARRIS
Dailey and Dunn, JJ., concur
Announced December 14, 2023
Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury found defendant, Timothy Mark Gemelli, guilty of
sexually assaulting his daughter and four of her friends. On
appeal, he raises several claims relating to his decision to proceed
pro se at trial.
¶2 His primary claim is that he did not validly waive his right to
counsel because he was forced to choose between proceeding with
counsel and preserving a trial date. We conclude that as long as
the choice presented is constitutionally permissible — as it was
here — a defendant’s waiver is not involuntary merely because he
must choose between waiving his right to counsel and another
course of action. We therefore uphold the validity of the waiver.
¶3 And because we reject Gemelli’s other claims as well, we affirm
the judgment of conviction.
I. Background
¶4 In January 2017, Gemelli’s then-twenty-year-old daughter
reported to police in Colorado that Gemelli had sexually abused her
for about seven years, beginning when she was six years old.
Ultimately, four of the daughter’s childhood friends reported similar
sexual abuse by Gemelli during the same time period.
1
¶5 Just before her disclosure to Colorado authorities, Gemelli’s
daughter reported earlier abuse to police in Louisiana, where the
family lived before moving to Colorado. Gemelli was charged in
Louisiana with one count of aggravated incest. In early 2019, a jury
acquitted him of the charge.
¶6 Following the trial in Louisiana, Gemelli was transferred in
custody to Colorado, where prosecutors charged him with five
counts of sexual assault on a child by one in a position of trust as
part of a pattern of abuse and one count of aggravated incest.1 The
court appointed a lawyer to represent him. In July 2019, Gemelli
entered not guilty pleas, and trial was scheduled for December 9.
¶7 A few months later, Gemelli filed a motion to proceed pro se
with an appointed “co-counsel” or to have substitute counsel
appointed. The court held a hearing under People v. Bergerud, 223
P.3d 686 (Colo. 2010), determined that Gemelli’s disagreement with
his lawyer did not amount to a complete breakdown in
communication, and ruled that Gemelli was not entitled to
substitute counsel. The court then provided a standard advisement
1 A charge of enticement of a child was dismissed before trial.
2
pursuant to People v. Arguello, 772 P.2d 87 (Colo. 1989), and
discussed with Gemelli the risks of proceeding pro se, which
included the complicating factor of his incarceration. Gemelli
responded that being in custody presented a “real dilemma”
because if he could “bond out,” he would not “have a problem” — he
could afford to hire a lawyer and “it would make things much
easier.” The court acknowledged that Gemelli had requested a bond
reduction but advised him to “make [his] decision [whether to
proceed pro se] assuming it’s not going to happen.” After further
consideration, Gemelli withdrew his request to proceed pro se.
¶8 On November 4, approximately a month before the scheduled
trial date, the parties appeared for a hearing on pending motions,
including Gemelli’s motion to reduce bond. Defense counsel
explained that he needed a continuance but that Gemelli would not
agree to one if he had to remain in custody. According to counsel, a
reduction in bond “would obviate that issue”; however, if the court
denied the motion, Gemelli would likely elect to proceed pro se to
preserve the December 9 trial date. After hearing argument, the
court denied the request to reduce bond.
3
¶9 Gemelli immediately informed the court that he would “appear
pro se and go forward.” The court reiterated its warning about the
risks of self-representation, to which Gemelli responded,
I feel like I don’t have much choice. You won’t
modify my bond and give me the opportunity
to prepare and defend myself, you know. And
I’m just not prepared to sit here for another
nine months. I’ve been in jail going on three
years for false allegations, and I don’t have
much choice.
The court then asked Gemelli, “Is it your decision to represent
yourself?” When Gemelli answered, “Yes, Your Honor,” the court
dismissed Gemelli’s lawyer. At Gemelli’s request, the court
appointed advisory counsel, but with the caveat that advisory
counsel was unlikely to be “adequately prepared to assist [him]”
given that trial was starting in just over a month. Gemelli decided
to “move forward.”
¶ 10 The trial ran for six days, during which time twenty-one
witnesses, including Gemelli, testified. At no time did Gemelli seek
reappointment of counsel or request that advisory counsel take over
the representation. After deliberating for about half a day, the jury
returned guilty verdicts on all counts.
4
¶ 11 On appeal, Gemelli contends that (1) he did not validly waive
his right to counsel; (2) the trial court’s errors, the prosecution’s
misconduct, and jail officials’ interference with his preparation
together deprived him of his right to self-representation; (3) the trial
court erred by not requiring advisory counsel to take over the
representation during trial; and (4) the trial court erred in
responding to a jury question during deliberations.
II. Waiver of the Right to Counsel
¶ 12 Gemelli first argues that his waiver of his right to counsel was
invalid because it was equivocal, conditional, and involuntary.
A. Legal Principles and Standard of Review
¶ 13 The United States and Colorado Constitutions guarantee
criminal defendants the right to the assistance of counsel. See U.S.
Const. amends. VI, XIV; Colo. Const. art. II, § 16. Implicit in the
right to counsel is the equally fundamental right of self-
representation. See Faretta v. California, 422 U.S. 806, 819 (1975).
“Honoring these contrasting rights has been a persistent challenge
for courts” because the “trial court can commit reversible error by
either improperly granting a defendant’s request to proceed pro se
— thereby depriving the defendant of the right to counsel — or by
5
denying the defendant’s right to self-representation.” People v.
Lavadie, 2021 CO 42, ¶ 24; see also United States v. Moya-Gomez,
860 F.2d 706, 732-33 (7th Cir. 1988) (“No matter what decision the
district court ultimately makes — whether to honor the defendant’s
request [to proceed pro se] or to deny it — the defendant is likely to
appeal.”).
¶ 14 Before a defendant may proceed pro se, he must first waive his
right to counsel. Lavadie, ¶ 25. A defendant’s waiver of counsel is
valid only if the request to proceed pro se is unequivocal and
unconditional, see People v. Johnson, 2015 COA 54, ¶ 23, and is
made knowingly, intelligently, and voluntarily, People v. Davis, 2015
CO 36M, ¶ 15.
¶ 15 The decision to waive counsel can be voluntary even if it is not
“entirely unconstrained.” Moya-Gomez, 860 F.2d at 739. A
criminal defendant may be required to choose between waiver of the
right to counsel and another course of action as long as the choice
presented is not “constitutionally offensive.” Maynard v. Meachum,
545 F.2d 273, 278 (1st Cir. 1976). Thus, a waiver cannot be valid if
it is “executed under the pretense of an impermissible choice
6
between constitutionally protected rights.” Bergerud, 223 P.3d at
693.
¶ 16 Whether a defendant validly waived his right to counsel is a
mixed question of fact and law, meaning we defer to the trial court’s
factual findings if supported by the record but review de novo the
legal question of whether the facts establish a valid waiver. See
Lavadie, ¶ 22.
B. Analysis
¶ 17 To start, we see nothing equivocal or ambiguous about
Gemelli’s waiver of his right to counsel. As soon as the trial court
denied his motion for a bond reduction, Gemelli, unprompted, said
he wanted to proceed pro se. When the court warned that advisory
counsel might not be “comfortable in representing [him] in just over
a month,” Gemelli corrected the court, confirming that he was “not
looking for them to represent” him because he was “going to
represent himself.” Each time the court answered one of Gemelli’s
questions, Gemelli reiterated his intent to proceed pro se. Cf.
People v. West, 2019 COA 131, ¶¶ 27-28 (the defendant’s request
was not unequivocal where he told the court he wished to proceed
pro se but did not “wish to completely waive [his] right to counsel”);
7
People v. King, 121 P.3d 234, 237 (Colo. App. 2005) (the defendant’s
waiver was not unequivocal where he told the court he would
proceed pro se “against his will”).
¶ 18 Next, even assuming Gemelli’s request to proceed pro se was
contingent on the court denying his motion for bond reduction — in
other words, he wanted to proceed pro se only if he remained
incarcerated — the request was not impermissibly conditional. The
problem with a conditional waiver arises when the defendant’s
request to represent himself is contingent on the occurrence of a
particular circumstance that does not occur. In those situations,
when the condition precedent fails to materialize, the court should
assume that the defendant no longer wishes to waive his right to
counsel.
¶ 19 In People v. Moody, 630 P.2d 74, 79 (Colo. 1981), for example,
the defendant said he wished to proceed pro se, but his “desire to
represent himself was contingent upon the granting of a motion for
mistrial.” Thus, when the trial court denied the motion for mistrial,
it also properly denied the defendant’s request to proceed pro se.
Id. Similarly, in People v. Waller, 2016 COA 115, ¶ 29, the
defendant repeatedly asked to proceed pro se, but he “continually
8
conditioned his request . . . on the appointment of advisory
counsel.” Because the trial court did not abuse its discretion by
denying the defendant’s request for advisory counsel, id. at ¶¶ 36,
45, it also did not err by denying his conditional request to proceed
pro se, id. at ¶¶ 42, 48. And in People v. Abdu, 215 P.3d 1265,
1268 (Colo. App. 2009), the defendant asked to proceed pro se, but
his “requests were linked to his . . . insistence on [an earlier] trial
date.” After the trial court granted defense counsel’s motion to
continue the trial, the defendant “left no doubt he wanted
representation of counsel at any later trial.” Id. Thus, because the
defendant’s request to proceed pro se was equivocal and
conditional, the trial court “acted appropriately” in preserving the
defendant’s right to counsel. Id. at 1269.
¶ 20 But Gemelli’s request to proceed pro se was conditioned on the
occurrence of an event that did occur — the denial of his bond
request. So the only question at that point was whether, having
been denied a reduction in bond, Gemelli knowingly, intelligently,
and voluntarily waived his right to counsel.
¶ 21 Gemelli does not dispute that his waiver was knowing and
intelligent. But he argues that his waiver was involuntary because
9
he had to choose between constitutionally protected rights: if he
opted to exercise his right to counsel and continue with his
appointed lawyer, he would have to forgo his right to the effective
assistance of counsel. The record does not support that argument.
¶ 22 In October, at the Bergerud hearing, appointed counsel
notified the court that he would “probably . . . have to ask for a
continuance of the trial.” The court appeared amenable to the
request, telling Gemelli that “if [appointed counsel] think[s] there
needs to be a continuance th[en] there probably needs to be a
continuance.” At the motions hearing in November, counsel
confirmed that if he remained as counsel, he would move for a
continuance based on the voluminous discovery from the Louisiana
trial. The court did not address the possibility of a continuance
because Gemelli elected to proceed pro se on the scheduled trial
date.
¶ 23 Thus, Gemelli misstates his choice. The choice was not to
proceed with an ineffective lawyer or to proceed pro se. He could
have proceeded with appointed counsel and consented to a
continuance so that counsel would have been adequately prepared
10
for trial. But, as Gemelli explained to the court, he would not agree
to a continuance if he remained in custody.
¶ 24 Gemelli counters that this resolution would have presented a
different constitutionally impermissible choice — his right to
counsel versus his right to a speedy trial. But the record does not
support that argument either. Because counsel did not ask for a
new trial date, there is no evidence in the record that a continuance
would have resulted in a violation of Gemelli’s constitutional right
to a speedy trial. “The constitutional right to a speedy trial attaches
with the filing of a formal charge.” People v. Chavez, 779 P.2d 375,
376 (Colo. 1989). The prosecution charged Gemelli by criminal
complaint on April 16, 2019. A delay in bringing the defendant to
trial is not constitutionally significant until it approaches one year.
See People v. Sandoval-Candelaria, 2014 CO 21, ¶ 36. Therefore,
even a continuance of up to four months2 would not have created “a
2 On the day the jury returned its verdict, Gemelli made a record of
some objections to the trial court’s rulings. One objection was that
he was forced to choose between going to trial in May 2020 or
proceeding pro se. But we see nothing in the record to substantiate
his claim that counsel would have requested, and the court would
have granted, a continuance of the trial to May 2020.
11
dilemma of constitutional magnitude.” Pazden v. Maurer, 424 F.3d
303, 319 (3d Cir. 2005) (citation omitted).3
¶ 25 To be sure, Gemelli faced a difficult decision. He could
legitimately have perceived both of his options — continue with
counsel but agree to a continuance or proceed pro se and maintain
the trial date — as less than ideal. But because that choice was not
“constitutionally offensive,” Maynard, 545 F.2d at 278, the fact that
Gemelli had to choose one of those options did not render his
waiver of the right to counsel involuntary. See Arguello, 772 P.2d at
94 (a defendant having to choose between continuing with counsel
about whom he has expressed dissatisfaction and proceeding pro se
does not render a waiver of the right to counsel involuntary); Moya-
Gomez, 860 F.2d at 739 (fact that the defendant opted to proceed
pro se only because trial court froze his assets and he could no
longer pay his counsel of choice did not render his waiver of the
right to counsel involuntary); State v. Modica, 149 P.3d 446, 450-51
3 A continuance might not have affected Gemelli’s statutory speedy
trial rights either. Gemelli was arraigned on July 26, 2019, so the
speedy trial deadline was January 26, 2020. The record does not
definitively establish that trial could not have been continued to a
date within the statutory speedy trial period.
12
(Wash. Ct. App. 2006) (fact that the defendant had to choose
between a continuance and proceeding pro se did not render his
waiver of the right to counsel invalid); State v. Panzera, 652 A.2d
136, 138-39 (N.H. 1994) (same as Modica); cf. People v. Martinez,
188 Colo. 169, 172, 533 P.2d 926, 928 (1975) (guilty plea was not
involuntary where trial court increased the defendant’s bond just
before he elected to forgo trial and plead guilty).
¶ 26 For these reasons, we conclude that Gemelli validly waived his
right to counsel.
III. Denial of the Right of Self-Representation
¶ 27 Gemelli argues that even assuming a valid waiver, through a
plethora of trial court errors, continuous prosecutorial misconduct,
and interference by jail officials, he was denied his right of self-
representation.
A. Legal Principles and Standard of Review
¶ 28 As noted, a defendant has a constitutional right to represent
himself in criminal proceedings. See Faretta, 422 U.S. at 821. The
gravamen of this right is the right of the defendant “to have his
voice heard.” McKaskle v. Wiggins, 465 U.S. 168, 174 (1984).
Thus, in determining whether the defendant’s right of self-
13
representation has been respected or denied, the focus is on
whether the defendant was permitted to “present his case in his
own way.” Id. at 177. In other words, when a defendant asserts a
violation of his right to represent himself, the proper question is
whether the trial court appointed counsel despite a valid request to
proceed pro se or allowed standby counsel (or some other third
party) to take over management of the case to such a degree that
the defendant’s right to “speak for [him]self” has been eradicated.
Id.; see also West, ¶ 19.
¶ 29 Whether a defendant has been denied his right of self-
representation is a question of law that we review de novo. See
West, ¶ 17. If a trial court improperly deprives the defendant of this
right, the error is structural. Id.B. Analysis
¶ 30 Like the defendant in West, see id. at ¶ 20, Gemelli contends
that trial court errors, prosecutorial misconduct, and interference
by jail officials deprived him of his right of self-representation,
specifically alleging that
• some of the discovery the prosecution provided was untimely
and some was not in a “usable format”;
14
• the court did not allow Gemelli sufficient time to prepare for
trial;
• the court erred by denying Gemelli’s motion for a bill of
particulars;
• the prosecutor requested, and the court threatened, the
imposition of time limits on cross-examination;
• during cross-examination, the prosecutor lodged, and the
court sustained, meritless objections to Gemelli’s questions;
• the court did not require the prosecution to keep certain
witnesses available under its subpoena so that Gemelli could
examine those witnesses at his convenience;
• the court erred by refusing to allow Gemelli to elicit certain
testimony that purportedly revealed witnesses’ biases or
otherwise undermined the prosecution’s case;
• the prosecutor improperly objected to Gemelli’s leading
questions during his examination of a detective;
• during closing argument, the prosecutor lodged, and the court
sustained, meritless objections;
• the court erred by terminating Gemelli’s closing argument
after he told the jury that he had been acquitted at trial in
15
Louisiana and then, in response to the prosecutor’s objection,
told the jury that “the problem through the trial” was that he
could not “get [his] evidence in”;
• the trial court was biased against Gemelli; and
• jail officials limited his access to the library, his investigator,
and his advisory counsel.
1. The Alleged Trial Court Errors and Prosecutorial Misconduct
Do Not Implicate Gemelli’s Right of Self-Representation
¶ 31 Trial court errors and prosecutorial misconduct (including
discovery violations) do not implicate a defendant’s right of self-
representation because, as we have explained, that right is violated
only when the court prevents the defendant from conducting his
own defense. See id. at ¶¶ 22, 24. Here, Gemelli controlled the
organization and content of his own defense, filed motions, argued
the law (sometimes successfully), questioned jurors during voir dire,
cross-examined witnesses (for over three hours, in one instance),
gave an opening statement and a closing argument, tendered jury
instructions, and participated in bench conferences throughout the
trial. See McKaskle, 465 U.S. at 174-75. In short, Gemelli “litigated
16
his case to a jury representing himself, which is precisely what he
requested.” West, ¶ 26.
¶ 32 To the extent Gemelli asks us to analyze all of the alleged trial
court errors and instances of prosecutorial misconduct as violations
of his constitutional rights to present a defense and to a fair trial,
we decline to do so. Gemelli elected to “couch[] all arguments
within the constitutional right to self-representation,” id. at ¶ 21,
presumably because any error would be structural. As a result, he
has not alleged, much less demonstrated, that any particular error
or defect affected his substantial rights and necessitates reversal.
See Crim. P. 52(a).4 In this way, his arguments concerning other
alleged constitutional violations are undeveloped, so we decline to
address them. See People v. Cuellar, 2023 COA 20, ¶ 44.
2. Jail Officials’ Alleged Interference With Gemelli’s Right to
Prepare and Present a Defense
¶ 33 However, we separately address Gemelli’s argument that jail
officials interfered with his ability to present a defense because that
4 For the first time in his reply brief, Gemelli argues that certain of
the court’s evidentiary rulings prejudiced him. But we do not
consider arguments made for the first time in a reply brief. See
People v. Allman, 2012 COA 212, ¶ 10 n.2.
17
claim is generally cognizable as an alleged violation of the right of
self-representation. See, e.g., Bounds v. Smith, 430 U.S. 817, 828
(1977) (prison officials must facilitate an incarcerated defendant’s
right of access to the courts), abrogated in part by Lewis v. Casey,
518 U.S. 343, 354 (1996).
¶ 34 A pro se criminal defendant has a constitutional right to
prepare and present a defense. People v. Rice, 40 Colo. App. 357,
360, 579 P.2d 647, 649 (1978). The “exact parameters of this right
have as yet not been determined,” but courts generally agree that it
encompasses a right to reasonable, but not unlimited, access to a
law library or alternative sources of legal knowledge. Id. at 360,
579 P.2d at 650.
¶ 35 Gemelli contends that jail officials interfered with his access to
the facts of his case by failing to give him sufficient time to review
discovery and prepare for trial and by sometimes denying his
investigator entry to the jail. And, he says, jail officials interfered
with his access to the law by limiting his time in the law library and
his time with advisory counsel.
¶ 36 We will assume that Gemelli preserved this claim, even though
his primary argument is that he did not have enough time to
18
prepare for trial, a problem that could have been remedied by
consenting to a continuance of the trial date, which he refused to
do. We will also assume that we review this claim de novo. Cf.
Rios-Vargas v. People, 2023 CO 35, ¶ 19 (reviewing de novo the
defendant’s claim that the government violated his constitutional
right to present a defense).
¶ 37 As we understand Gemelli’s argument, he contends that he
had a right to spend hours each day in the law library (and in the
evenings after trial) and to meet with his investigator and advisory
counsel at his convenience, including in court after trial concluded
for the day. But an incarcerated defendant who elects to proceed
pro se necessarily exercises his right to present a defense “within
certain practical limitations,” and he cannot “realistically . . .
expect[] to have all of his desires, relative to the preparation of his
case, satisfied on demand.” Rice, 40 Colo. App. at 360, 579 P.2d at
650.
¶ 38 More problematically, Gemelli fails to explain how his limited
access to the law library, his investigator, and his advisory counsel
impaired his ability to represent himself at trial. A defendant
alleging that jail officials interfered with his right of self-
19
representation must show “actual injury” — that is, he must
demonstrate that the limitations arising from the conditions of
confinement “hindered his efforts to pursue” his defense. Lewis,
518 U.S. at 351; see also State v. Fernandez, 758 A.2d 842, 852
(Conn. 2000) (an incarcerated pro se defendant must show that the
denial of access to a law library hindered his efforts to conduct his
own defense); cf. Graham v. Maketa, 227 P.3d 516, 518 (Colo. App.
2010) (to establish a violation of his right to access the courts, an
incarcerated plaintiff must show actual injury or harm from lack of
prison resources). It is not enough to simply allege that he needed
more time to review discovery or to confer with his investigator and
advisory counsel; Gemelli must demonstrate that his presentation
at trial would have been different if he had had more time to
prepare or greater access to the library. See Fernandez, 758 A.2d at
852 (explaining that the pro se defendant must show that if he had
been afforded access to a law library, he would have “proceeded
differently or pursued an alternative defense strategy”).
¶ 39 Because Gemelli has failed to show actual injury or harm, we
reject his claim that jail officials interfered with his right of self-
representation.
20
IV. Termination of Gemelli’s Self-Representation
¶ 40 Next, Gemelli says that because he proved to be wholly
ineffective as his own advocate, the court was obligated, at some
point during the trial, to override his right of self-representation and
require that advisory counsel take over as his lawyer.
¶ 41 Contrary to Gemelli’s assertion on appeal, neither he nor the
prosecutor ever asked the trial court to terminate his right of self-
representation and order advisory counsel to represent him.
Regardless, under any standard of review, this claim fails.
¶ 42 The State may not “constitutionally hale a person into its
criminal courts and there force a lawyer upon him, even when he
insists that he wants to conduct his own defense.” Faretta, 422
U.S. at 807; People v. Romero, 694 P.2d 1256, 1264 (Colo. 1985)
(“The right of self-representation . . . is personal to the defendant
and may not be abridged by compelling a defendant to accept a
lawyer when he desires to represent himself.”). “[I]t is the defendant
who must decide whether it is to his advantage to have counsel in
his particular case.” Romero, 694 P.2d at 1264.
¶ 43 Still, the right of self-representation is not absolute. Lavadie,
¶ 30. The trial court can terminate the defendant’s self-
21
representation “if the defendant deliberately engages in ‘serious and
obstructionist misconduct.’” Id. (quoting Faretta, 422 U.S. at 834
n.46).
¶ 44 But there is no authority for the proposition that a trial court
can sua sponte terminate a defendant’s self-representation merely
because he turns out to be an ineffective advocate. Such a rule
cannot be reconciled with controlling law.
¶ 45 As noted, a defendant’s waiver of his right to counsel must be
made knowingly and intelligently. See Faretta, 422 U.S. at 835. In
this context, though, the terms “knowingly” and “intelligently” do
not refer “to the wisdom of the waiver”; rather, the court must
honor a defendant’s request to proceed pro se as long as “it is
satisfied that [the] defendant knows what he or she is doing and
understands the consequences.” Johnson, ¶ 18.
¶ 46 Once the defendant has validly waived his right to counsel, he
is entitled to conduct his own defense, notwithstanding the obvious
truth that “the average defendant does not have the professional
legal skill to protect himself when brought before a tribunal with
power to take his life or liberty.” Johnson v. Zerbst, 304 U.S. 458,
462-63 (1938). Thus, a defendant’s lack of legal training or
22
specialized knowledge or experience does not preclude him from
exercising his right to defend himself. See Faretta, 422 U.S. at 836;
see also People v. Mogul, 812 P.2d 705, 709 (Colo. App. 1991) (“A
defendant’s technical legal knowledge is not a factor to be
considered by the trial court in deciding whether to grant or deny
the motion [to proceed pro se].”). By the same token, “a defendant
who elects to represent himself cannot thereafter complain that the
quality of his own defense amounted to a denial of ‘effective
assistance of counsel.’” Faretta, 422 U.S. at 834 n.46.
¶ 47 Gemelli concedes that a defendant has a right to conduct his
own defense, even “to his own detriment,” id. at 834, but he insists
that “there is a difference between a person whose self-
representation is passable, but not exemplary,” in which case court
intervention is not required, and “a person whose performance is”
entirely “incompetent,” in which case the court must sua sponte
appoint counsel. But any rule recognizing that distinction would be
at odds with all of the principles underlying the right of self-
representation.
¶ 48 Romero undercuts, rather than advances, Gemelli’s position.
In Romero, the defendant, who had proceeded pro se at trial, argued
23
that his defense was so “inept” as to require the trial court to
appoint advisory counsel. 694 P.2d at 1265. (The defendant, who
had “minimal education and some difficulty in expressing himself,”
failed to advance any theory of defense and told the jury during
closing argument that, “I ain’t saying that I didn’t do the crime or
anything like that, but basically, I passed out . . . on drugs.” Id. at
1262-63, 1265-66.) The supreme court concluded that the failure
to appoint advisory counsel did not violate the defendant’s right to a
fair trial or otherwise require reversal. Id. at 1265-66. Still, the
court acknowledged that there could be a circumstance where “a
pro se defendant’s performance reache[d] such a level of ineptitude
as to demonstrate a fundamental inability to provide any
meaningful representation in his defense.” Id. at 1265. To ensure
that in such a circumstance the proceedings did not become
fundamentally unfair, the court suggested two options for
preserving the defendant’s rights: the trial court could “remind[] the
accused at appropriate stages of the proceedings of his continuing
right to reclaim the assistance of counsel,” or it could appoint
advisory counsel. Id. at 1265 & n.5. The court did not suggest that
24
the trial court could simply force the defendant to give up his right
of self-representation and accept a lawyer.
¶ 49 We acknowledge that Gemelli was not an exemplary advocate:
he did not always lay the proper foundation to impeach witnesses
on cross-examination, which meant he did not introduce all of the
evidence he wished to, and he often asked irrelevant, redundant, or
otherwise improper questions that drew objections that might have
flustered him. But when he validly elected to proceed pro se, he
knowingly accepted the “dangers and disadvantages of self-
representation.” Faretta, 422 U.S. at 835. The court was neither
obligated nor authorized to relieve him of the consequences of his
decision by sua sponte rescinding his waiver.
¶ 50 In any event, Gemelli does not explain how terminating his
self-representation mid-trial and sending in advisory counsel would
have helped matters. As Gemelli told the trial court at the Bergerud
hearing, and as was apparent at trial, he “kn[ew] the case inside
out, upside down, backwards. Nobody kn[ew] the case better than
[he] d[id].” Advisory counsel, on the other hand, had been
appointed only a month earlier and, as the trial court warned, was
unlikely to be prepared to represent Gemelli at trial.
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¶ 51 Under the circumstances, we discern no error from the trial
court’s failure to override Gemelli’s valid waiver of his right to
counsel and order advisory counsel to take over the representation.
V. Response to Jury Question
¶ 52 Within a few hours of beginning its deliberations, the jury
submitted the following question to the court:
If the jurors are unanimous on all charges
except one, will the Defendant be held
accountable for any unanimous guilty charges
or will the entire trial end in a “hung jury”
because there could be one “hung charge”?
The court sent the jury the following response: “The Court is unable
to respond to this question at this time.”
¶ 53 Gemelli contends that the court’s response constitutes
reversible error. He says that the jury indicated it was deadlocked
on one count, and, therefore, before the court could respond to the
question, it had to inquire whether further deliberations were likely
to lead to a unanimous verdict. In the absence of that inquiry, he
argues, the court’s response was coercive.
¶ 54 A trial court must avoid giving any instruction that coerces the
jury to reach a verdict. See People v. Schwartz, 678 P.2d 1000,
1012 (Colo. 1984). Thus, when a jury indicates it is deadlocked, the
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court may give a “modified-Allen” instruction, see Allen v. People,
660 P.2d 896 (Colo. 1983), which seeks to “encourage jurors to
reach a verdict without coercing them into doing so.” Gibbons v.
People, 2014 CO 67, ¶ 1. Before giving such an instruction, the
court “must first determine whether there is a likelihood of progress
towards a unanimous verdict upon further deliberations.”
Schwartz, 678 P.2d at 1012. But if there is no indication that the
jury is deadlocked, a modified-Allen instruction is not warranted.
See People v. Cox, 2023 COA 1, ¶ 18.
¶ 55 Here, the jury’s note did not indicate a deadlock. See id. at
¶¶ 11, 20, 28 (The jury did not indicate it was deadlocked when it
asked the court, “What happens if the jury fails to reach a
unanimous decision?” and “Is there a max length for jury
deliberations?”). And, at the time, no one thought it did. In
deciding how to respond, the court noted that if, “[a]t some point,”
“the jurors advise the Court that they are truly hung . . . the Court
would be prepared to invite jurors back into session and inquire
whether they have exhausted all possibility of deliberation and
provide them additional instructions.” Neither party challenged the
court’s view that the jury was not “truly hung.”
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¶ 56 Thus, even if the court’s response was “tantamount to an
instruction to keep deliberating,” as Gemelli argues, the court did
not err.
VI. Disposition
¶ 57 The judgment is affirmed.
JUDGE DAILEY and JUDGE DUNN concur.
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