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

                               

No. 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                                        

Court 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, 

 (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, 

 (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, 

 (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, 

, ¶ 24; see also United States v. Moya-Gomez,

  

 (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, 

, and is

  made knowingly, intelligently, and voluntarily, People v. Davis, 

.

¶ 15   The decision to waive counsel can be voluntary even if it is not

  “entirely unconstrained.” Moya-Gomez, 

. 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,

  

 (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, 

.

¶ 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, 

 (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, 

 (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, 

 (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.

  

 Similarly, in People v. Waller, 

, 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, 

 (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.” 

 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. 

.

¶ 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, 

 (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, 

. 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, 

 (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, 

, the fact that

  Gemelli had to choose one of those options did not render his

  waiver of the right to counsel involuntary. See Arguello, 

 (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, 

 (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, 

, 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, 

 (N.H. 1994) (same as Modica); cf. People v. Martinez,

  

, 

 (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, 

. The

  gravamen of this right is the right of the defendant “to have his

  voice heard.” McKaskle v. Wiggins, 

 (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.” 

. 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. 

                               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, 

. 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, 

, ¶ 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, 

, ¶ 10 n.2.


                                         17
  claim is generally cognizable as an alleged violation of the right of

  self-representation. See, e.g., Bounds v. Smith, 

  (1977) (prison officials must facilitate an incarcerated defendant’s

  right of access to the courts), abrogated in part by Lewis v. Casey,

  

 (1996).

¶ 34   A pro se criminal defendant has a constitutional right to

  prepare and present a defense. People v. Rice, 

, 

 (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. 

,

  

.

¶ 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, 

, ¶ 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, 

, 

.

¶ 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,

  

; see also State v. Fernandez, 

  (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, 

 (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, 

 (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, 

; People v. Romero, 

 (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, 

.

¶ 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.’” 

 (quoting Faretta, 

  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, 

. 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, 

 (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, 

;

  see also People v. Mogul, 

 (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, 

 n.46.

¶ 47   Gemelli concedes that a defendant has a right to conduct his

  own defense, even “to his own detriment,” 

, 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. 

. (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.” 

.) 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. 

. 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.” 

. 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. 

 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, 

. 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.


                                    25
¶ 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, 

 (Colo. 1984). Thus, when a jury indicates it is deadlocked, the


                                     26
  court may give a “modified-Allen” instruction, see Allen v. People,

  

 (Colo. 1983), which seeks to “encourage jurors to

  reach a verdict without coercing them into doing so.” Gibbons v.

  People, 

. 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, 

. But if there is no indication that the

  jury is deadlocked, a modified-Allen instruction is not warranted.

  See People v. Cox, 

, ¶ 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.”


                                    27
¶ 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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