v. Scott

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