v. Moore , 2021 CO 26 ( 2021 )

attributable to the voluntary ingestion of drugs or alcohol. The court must parse
any proffered mental condition evidence to distinguish what is probative of
insanity under this exacting definition from what is not.
Therefore, the district court’s order allowing the blanket admission of
mental condition evidence is vacated.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2021 CO 26Supreme Court Case No. 20SA293
Original Proceeding Pursuant to C.A.R. 21
District Court, City and County of Denver, Case No. 19CR2201
Honorable Edward D. Bronfin, Judge
In Re
Plaintiff:
The People of the State of Colorado,
v.
Defendant:
Aundre D. Moore.
Rule Made Absolute
en banc
May 3, 2021
Attorneys for Plaintiff:
Beth McCann, District Attorney, Second Judicial District
Jeff M. Van der Veer, Deputy District Attorney
Denver, Colorado
Attorneys for Defendant:
Megan A. Ring, Public Defender
Sarah Varty, Deputy Public Defender
Robert Halpern, Deputy Public Defender
Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court.
¶1 The Denver District Attorney has charged Aundre Moore with first degree
murder for the shooting death of Jamaica McClain. Moore has pleaded not guilty
and is awaiting trial. He claims that he acted in self-defense, and he intends to
introduce evidence of his pre-existing mental illness to help show why he
subjectively believed he was in imminent danger and needed to use deadly force
to repel McClain.
¶2 The prosecution moved to exclude evidence of Moore’s mental condition,
arguing that it is inadmissible unless he pleads not guilty by reason of insanity
(“NGRI”)—an affirmative defense that Moore has said he doesn’t plan to invoke.
The district court denied the prosecution’s motion, reasoning that Moore’s stated
purpose in offering the mental condition evidence is to prove the subjective belief
component of his self-defense claim, not to prove insanity. Therefore, the court
ruled that it would allow, without an insanity plea, expert testimony by a
psychologist and a forensic psychiatrist who examined Moore, so long as their
testimony otherwise conforms to the rules of evidence. The prosecution then filed
a petition pursuant to C.A.R. 21, and we issued an order to show cause.
¶3 We conclude that, absent an insanity plea, the trial court must exclude any
evidence that is probative of insanity, as that term has been defined by the
legislature, irrespective of the ostensible purpose for which it is offered. The court
must therefore ask: Does some or all of the proposed testimony tend to prove that
2
the defendant (a) was so diseased or defective in mind at the time of the
commission of the act as to be incapable of distinguishing right from wrong, or
(b) suffered from a condition of mind caused by mental disease or defect that
prevented the defendant from forming a culpable mental state that is an essential
element of a crime charged?
¶4 Critically, however, this question involves an often-neglected threshold
issue: the existence of “a mental disease or defect.” For a defendant’s mental
condition to implicate the statutory definition of mental disease or defect at the
time of the offense, it must have been so severely abnormal that it grossly and
demonstrably impaired the defendant’s perception or understanding of reality (without
being attributable to the voluntary ingestion of drugs or alcohol).
¶5 This means that evidence of less-severe mental illness remains admissible,
absent an insanity plea, if it otherwise conforms to the statutory requirements and
the rules of evidence. The court must parse any proffered mental condition
evidence, line by line if necessary, to distinguish what is probative of insanity
under this exacting definition from what is not.
¶6 We therefore make the rule absolute and remand the case to the district
court for further proceedings consistent with this opinion.
3
I. Facts and Procedural History
¶7 The charges against Moore stem from an incident that occurred on March
21, 2019. That evening, Moore met D.E. in a motel lobby. The two spent some
time together before deciding to grab a drink at a bar in the Park Hill
neighborhood. Moore drove D.E. to the bar and backed his car into a spot in the
bar’s parking lot. As Moore and D.E. were sitting in Moore’s car, another car
pulled into the parking lot and stopped in front of them, blocking their exit.
McClain, with whom Moore was acquainted, exited the driver’s side of the other
car and approached the driver’s side of Moore’s car. Moore got out of his car. The
two appeared to argue before Moore shot McClain in the head. Subsequent
investigation revealed that McClain was unarmed. That much appears to be
undisputed.
¶8 The prosecution charged Moore with first degree murder, among other
crimes. Moore contends that he acted in self-defense. He plans to present
evidence that he knew McClain was an active gang member with a reputation for
carrying a gun; that McClain got out of his car and started yelling at Moore,
posturing to fight; that he saw McClain reach into his car before approaching him;
and that McClain continued to approach him in an aggressive manner despite
Moore’s repeated warnings to “back up.”
4
¶9 To further support his self-defense claim, Moore seeks to present expert
testimony about his mental condition at the time of the offense. He filed a notice
with the district court of his intent to do so pursuant to section 16-8-107(3)(b),
C.R.S. (2020), and he retained a psychologist, Dr. Jane Wells, who evaluated him.
Dr. Leah Brar, a forensic psychiatrist, also conducted a mandatory examination on
behalf of the state pursuant to section 16-8-106, C.R.S. (2020).
¶10 Because the reports from the two evaluations are relevant to our decision,
we summarize their content in some detail.1
¶11 Dr. Wells’s report explains that Moore experienced numerous traumatic
events related to gun violence. She notes that Moore’s grandfather was shot and
killed around the corner from where he lived; two of Moore’s friends were shot in
Park Hill; Moore himself was previously shot at on two separate occasions, one of
1 The reports of the evaluations are suppressed; however, Moore’s attorneys
referenced the content of the reports in their brief and discussed them openly
during oral argument. Therefore, Moore has at least implicitly waived the
confidentiality of the reports for the purposes of this original proceeding. See
Clark v. Dist. Ct., 668 P.2d 3, 10 (Colo. 1983) (noting that when the privilege holder
pleads a mental condition as an affirmative defense, “the only reasonable
conclusion is that he thereby impliedly waives any claim of confidentiality
respecting that same condition”).
5
which was in Park Hill; a friend of Moore’s was kidnapped and killed; and Moore
lost two other friends to gun violence.
¶12 Dr. Wells also recounts that Moore was hospitalized about twenty years ago
with delusional psychosis. He was later diagnosed with bipolar disorder and was
briefly medicated, although he wasn’t taking any psychotropic medications on the
date of the alleged offense.
¶13 Dr. Wells opines that Moore has a cyclical mood disorder, a paranoid
thought process, and displays symptoms of trauma. She diagnosed him with
bipolar disorder I (most recent episode mixed with paranoid ideation). She notes
that, although Moore exhibits some symptoms of post-traumatic stress disorder
(“PTSD”), he doesn’t meet the criteria for that diagnosis. Instead, she diagnosed
him with other specified trauma- and stressor-related disorder. Dr. Wells
described this disorder as a condition where symptoms of PTSD are present but
don’t meet the threshold for a PTSD diagnosis.
¶14 Dr. Wells finds that Moore’s thinking “tends to be distorted with psychotic
qualities” and that “[t]rauma symptoms also contributed to his paranoid ideation,
hyper-vigilance, agitation[,] and his feelings of vulnerability.” She further notes
that, at the time of the offense, Moore had an elevated mood, which “may have led
him to feel grandiose, energetic[,] and overly[]confident in his conclusions.”
Dr. Wells concludes that, although “Moore shot an unarmed person for no clear
6
reason,” it is “likely that his mental state contributed to how he perceived the
situation and his decision-making.”
¶15 Dr. Brar, for her part, acknowledges the traumatic events that Moore
experienced, and she too diagnosed him with other specified trauma- and stressor-
related disorder. Additionally, she found that Moore met the criteria for the
following diagnoses at the time of the alleged offense: unknown substance
intoxication, other specified bipolar and related disorder, severe alcohol use
disorder, severe cannabis use disorder, and moderate other hallucinogen (ecstasy)
use disorder.
¶16 Still, Dr. Brar concludes that, at the time of the incident, Moore “did not
suffer from a severe, abnormal mental condition [that] grossly and demonstrably
impaired his perception or understanding of reality,” and “was not so diseased or
defective in mind . . . as to be incapable of distinguishing right from wrong with
respect to the alleged acts or to be prevented from forming the culpable mental
states.” She notes that, although Moore “experience[d] potential impairments in
perception and reality testing,” in her opinion, those impairments “were likely
secondary to the voluntary ingestion of substances” and were unrelated to mania
or psychosis. Additionally, she opines that “Moore’s trauma-related disorder and
intoxication likely . . . influence[d] his decision-making during the alleged events,
even if they did not rise to [the] level of . . . a mental disease or defect.”
7
¶17 The prosecution moved to exclude evidence of Moore’s mental condition,
arguing that it is inadmissible pursuant to section 16-8-107(3)(a) because it
constitutes evidence “relevant to the issue of insanity” and Moore hasn’t pleaded
insanity.
¶18 The district court denied the prosecution’s motion and held that evidence of
Moore’s mental condition may be admissible at trial even if he doesn’t plead
NGRI. The court reasoned that the evidence was admissible pursuant to section
16-8-107(3)(b) to prove Moore’s subjective belief in the need for self-defense.
¶19 The prosecution then filed this original proceeding, and we issued an order
to show cause.2
II. Analysis
¶20 We begin by addressing our jurisdiction to hear this appeal. We then
identify the applicable standards of review and revisit familiar principles of
2 The issue before us, as framed by the prosecution in their petition, is:
If a defendant attempts to defend a murder charge by pointing to his
bipolar disorder and PTSD symptoms—which led to “distorted
[thinking] with psychotic qualities” at the time of the shooting—does
the defendant have to plead insanity? Or can he evade that statutory
pleading requirement by asserting that his mental condition relates to
his claim of self-defense?
8
statutory interpretation before turning our attention to the core substantive
question before us; namely, what evidence is “relevant to the issue of insanity”
under section 16-8-107(3)(a).
A. Original Jurisdiction
¶21 Relief under C.A.R. 21 is an extraordinary remedy that is limited in both
purpose and availability. People v. Rowell, 2019 CO 104, ¶ 9, 453 P.3d 1156, 1159.
Whether to exercise our original jurisdiction rests solely within our discretion. See
C.A.R. 21(a)(1); People v. Rosas, 2020 CO 22, ¶ 19, 459 P.3d 540, 545.
¶22 We have exercised our original jurisdiction when the petition raised an issue
of first impression that was of significant public importance, when a party would
have otherwise suffered irreparable harm, or when the normal appellate process
would prove inadequate. Rosas, ¶ 19, 459 P.3d at 545; People v. Voth, 2013 CO 61,
¶ 12, 312 P.3d 144, 148. The normal appellate process can be inadequate in a
criminal case when the prosecution would be barred from retrying a defendant
post-acquittal because of double jeopardy. Voth, ¶ 13, 312 P.3d at 148.
¶23 Exercise of our original jurisdiction is warranted in this case because the
issue before us—whether evidence of a defendant’s mental condition is
admissible, absent a plea of insanity, to prove his subjective need for self-defense—
is one of first impression. Moreover, the normal appellate process would be
inadequate because the prosecution would be barred from retrying Moore
9
following an acquittal, even if they prevail on appeal. See § 16-12-102(1), C.R.S.
(2020) (allowing the prosecution to appeal “any decision of a court in a criminal
case upon any question of law” while also codifying the prohibition against double
jeopardy); see also People v. Gabriesheski, 262 P.3d 653, 657 (Colo. 2011) (noting that
an acquittal is a final judgment enabling the prosecution to appeal a question of
law).
B. Standards of Review
¶24 Having decided to exercise our original jurisdiction, we next address the
standards of review that govern our analysis.
¶25 We review questions of law involving statutory construction de novo.
People v. Griego, 2018 CO 5, ¶ 25, 409 P.3d 338, 342. In construing a statute, we
interpret its plain language to give full effect to the intent of the General Assembly.
Id. We construe undefined words and phrases according to their common usage.
Id. When the statutory language is clear, we apply the plain and ordinary meaning
of the provision and give consistent, harmonious, and sensible effect to each part
of the statute. Id.¶26 We review a trial court’s evidentiary rulings for an abuse of discretion.
Venalonzo v. People, 2017 CO 9, ¶ 15, 388 P.3d 868, 873. A trial court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. Id.10
C. What Constitutes Evidence “Relevant to the Issue of
Insanity”
¶27 We begin with the language of the insanity statutes. Section 16-8-101.5(1),
C.R.S. (2020), provides two definitions of insanity:
(a) A person who is so diseased or defective in mind at the time of the
commission of the act as to be incapable of distinguishing right from
wrong with respect to that act . . . or
(b) A person who suffered from a condition of mind caused by mental
disease or defect that prevented the person from forming a culpable
mental state that is an essential element of a crime charged . . . .3
The statute further defines “[m]ental disease or defect” as “only those severely
abnormal mental conditions that grossly and demonstrably impair a person’s
perception or understanding of reality and that are not attributable to the
voluntary ingestion of alcohol or any other psychoactive substance.”
§ 16-8-101.5(2)(c). Thus, both forms of insanity—whether it be the incapacity to
distinguish right from wrong or the inability to form a culpable mental state—
require that, at the time of the alleged offense, the defendant suffered from a
3Section 16-8-101.5 defines insanity for offenses committed on or after July 1, 1995.
§ 16-8-101.5(3). This definition incorporated the former affirmative defense of
impaired mental condition into the defense of NGRI to “create a unitary process
for hearing the issues raised” by the two defenses. § 16-8-101.3, C.R.S. (2020).
11
severely abnormal mental condition that grossly and demonstrably impaired his
perception or understanding of reality.
¶28 The admission of evidence related to insanity is governed by section
16-8-107(3)(a), which states that “[i]n no event shall a court permit a defendant to
introduce evidence relevant to the issue of insanity, as described in section 16-8-101.5,
unless the defendant enters a plea of not guilty by reason of insanity.” (Emphasis
added.)4
¶29 Because Moore offered mental condition evidence, not to prove insanity, but
rather to shore up his self-defense claim, the district court concluded that the
evidence was admissible. After a thorough review of this court’s jurisprudence
4 Section 16-8-107(3)(b) further outlines the notice requirements for all evidence
related to a defendant’s mental condition:
Regardless of whether a defendant enters a plea of not guilty by
reason of insanity pursuant to section 16-8-103, the defendant shall
not be permitted to introduce evidence in the nature of expert opinion
concerning his or her mental condition without having first given
notice to the court and the prosecution of his or her intent to introduce
such evidence and without having undergone a court-ordered
examination pursuant to section 16-8-106.
There is no dispute here that Moore complied with this provision.
12
under section 16-8-107 and Colorado law governing self-defense, the district court
reasoned that if “a defendant complies with the other requirements of [s]ection
3(b),” expert testimony about his “mental state or life experiences” is admissible
to prove the “subjective part of a self-defense affirmative defense.”
¶30 The prosecution counters that section 16-8-107(3)(a) prohibits the admission
of any evidence relevant to insanity, regardless of the purpose for which it is
offered. Therefore, the prosecution asserts that neither Dr. Wells nor Dr. Brar
should be permitted to testify regarding Moore’s mental condition at the time of
the alleged offense. We agree with the prosecution that evidence probative of
insanity must be excluded, but we disagree that this necessitates a blanket
exclusion of all the proffered testimony at issue here.
¶31 The plain language of section 16-8-107(3)(a) limits the admission of evidence
“relevant to the issue of insanity,” regardless of its intended use. (Emphasis
added.) The word “relevant” generally means “having significant and
demonstrable bearing on the matter at hand” or “affording evidence tending to
prove or disprove the matter at issue or under discussion.” Relevant, Merriam-
Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/relevant; [https://perma.cc/7JLU-9ND3]. Black’s Law
Dictionary likewise defines “relevant” as “[l]ogically connected and tending to
13
prove or disprove a matter in issue” or “having appreciable probative value.”
Relevant, Black’s Law Dictionary (19th ed. 2019).
¶32 These dictionary definitions comport with the definition of “relevant
evidence” under the Colorado Rules of Evidence, which encompasses “evidence
having any tendency to make the existence of any fact . . . more probable or less
probable than it would be without the evidence.” CRE 401.
¶33 This leads us to conclude that the plain meaning of “relevant” evidence
under section 16-8-107(3)(a) is evidence that falls within the Colorado Rules of
Evidence’s definition of “relevant evidence.” Thus, evidence that is “relevant to
the issue of insanity” is evidence that tends to prove or disprove the issue of
insanity—that is, evidence that is probative of what is defined as insanity.
¶34 Significantly, neither section 16-8-101.5(1), which defines insanity, nor
section 16-8-107(3)(a), which limits the admission of evidence “relevant to the issue
of insanity,” regulates the admission of insanity-related evidence based on the
defendant’s ostensible purpose for offering it. Under the plain language of the
insanity statutes, the probative effect of the mental condition evidence is what
governs, not the purpose for which it is offered.
¶35 This conclusion is well supported by our prior decisions. For example, in
People v. Wilburn, 2012 CO 21, ¶¶ 1–3, 272 P.3d 1078, 1079, we considered whether
a defendant’s intention to put on evidence about a learning disability required the
14
defendant to plead NGRI. In that case, the defendant was charged with violating
his bond conditions for failing to appear in court. Id. at ¶ 6, 272 P.3d at 1080. He
argued that he miswrote the court date and sought to admit expert testimony
regarding his dyslexia to support his mistake-of-fact defense and to negate the
requisite culpable mental state. Id. at ¶¶ 7–8, 272 P.3d at 1080. But the prosecution
insisted, and the trial court agreed, that he had to plead NGRI before he could seek
admission of such evidence. Id. at ¶¶ 12, 14, 272 P.3d at 1080–81.
¶36 We disagreed. Id. at ¶ 18, 272 P.3d at 1081. True enough, as the district court
here rightly noted in its order, our decision in Wilburn discussed the purpose of
the proffered testimony. See id. at ¶¶ 20–21, 272 P.3d at 1081–82 (distinguishing
evidence for an insanity plea from evidence that doesn’t meet the insanity
threshold when it is “offered to show that the defendant had a mistaken belief of fact
that negates the existence of a culpable mental state” (emphasis added)). And the
defendant certainly argued that his purpose wasn’t to show that he was incapable
of forming the requisite culpable mental state, but to show that he hadn’t
“knowingly” missed his court date. Id. at ¶ 13, 272 P.3d at 1081. But that wasn’t
the basis of our decision. Instead, we emphasized that section 16-8-107(3)(b)
allows the admission of evidence of a mental condition that doesn’t constitute a
“mental disease or defect” necessitating an NGRI plea. Id. at ¶¶ 22–27, 272 P.3d at1082–83.
15
¶37 Likewise, in People v. Vanrees, 125 P.3d 403, 404 (Colo. 2005), we focused on
the mental condition at issue when we considered whether “mental slowness”
implicated the legal definition of insanity. In concluding that it did not, we noted
that “there [was] nothing within Colorado’s statutory insanity framework
indicating that our General Assembly intended to create an ‘all or nothing’
insanity defense that applies in all cases where the defendant presents evidence
challenging the culpable mental state element of the crime charged.” Id. at 408.
¶38 In both instances, we interpreted section 16-8-107(3) as requiring trial courts
to determine whether testimony regarding a mental condition meets the definition
of insanity; we did not instruct trial courts to yield to a defendant’s stated purpose
in seeking admission of the evidence. See also People v. Requejo, 919 P.2d 874, 877
(Colo. App. 1996) (concluding that “mental slowness” didn’t meet the definition
of “mental disease or defect” because it wasn’t “severely abnormal” and didn’t
“grossly and demonstrably impair [the] ‘perception’ of reality”).
¶39 Moore, however, argues that our decisions in Rosas and People v. Flippo,
159 P.3d 100 (Colo. 2007), and the court of appeals’ decision in People v. Lane,
2014 COA 48, 343 P.3d 1019, on which the district court relied, require that the
court consider the purpose of the evidence. We disagree.
¶40 Rosas was an insanity case, pure and simple. The defendant in Rosas was
trying to admit evidence of his bipolar disorder to show that he was acutely manic
16
and suffered from delusions at the time of the offense so that he was incapable of
forming the requisite culpable mental state. ¶¶ 2, 6, 459 P.3d at 542–43. He did
not, however, plead NGRI and, instead, sought to admit this evidence under the
abolished affirmative defense of impaired mental condition. Id. at ¶¶ 4–7, 459 P.3d
at 542–43. Although we began our analysis by “assess[ing] the nature of the
evidence Rosas wishe[d] to present,” id. at ¶ 22, 459 P.3d at 545, we concluded that
the evidence was “clearly relevant to the issue of insanity” because it was
“evidence of a mental disease or defect that rendered the defendant incapable of
forming the requisite culpable mental state at the time of the offense,” id. at ¶¶ 23–
24, 459 P.3d at 546. Rosas’s mental condition evidence therefore unequivocally
implicated the definition of insanity.
¶41 While Rosas clearly was an insanity case, Flippo clearly was not. In fact, it
didn’t concern insanity at all. The defendant in Flippo sought to introduce
evidence of his “intellectual disability” to challenge the voluntariness of a
videotaped confession, but he failed to comply with the notice requirement of
section 16-8-107(3)(b). 159 P.3d at 102–03. Here too, we referred to the purpose
for which the defendant offered mental condition evidence. See id. at 104 (stating
that section 16-8-107(3)(b) applies in situations “where insanity is not the reason the
evidence is being introduced” (emphasis added)). But we dealt solely with
interpreting “mental condition” under section 16-8-107(3)(b) and didn’t address
17
when an insanity plea is required under section 16-8-107(3)(a). Flippo, therefore,
doesn’t undercut our conclusion.
¶42 Moore’s reliance on Lane is similarly unavailing. In Lane, the defendant
claimed that he woke up in the middle of the night to find the victim groping him,
so he stabbed the victim to death. ¶ 3, 343 P.3d at 1022. The defendant argued
that he acted in self-defense against a sexual assault and sought to admit lay
testimony about physical and sexual abuse he experienced as a young child. Id. at
¶¶ 3, 29, 343 P.3d at 1022, 1025. He also sought to admit expert testimony to
educate the jury about PTSD generally, without having the expert examine him or
testify that he in fact suffered from PTSD, but he did so without complying with
the notice requirements of section 16-8-107(3)(b) or undergoing a court-ordered
examination pursuant to section 16-8-106. Id. at ¶¶ 24–25, 343 P.3d at 1025. In
concluding that the trial court’s exclusion of the proffered expert testimony was
proper, the division held that the evidence involved the defendant’s mental
condition; therefore, the defendant had to comply with the statutory notice and
mental examination requirements before offering the expert testimony at trial. Id.at ¶¶ 26–28, 343 P.3d at 1025.
¶43 In its order, the district court concluded that Lane, in effect, stood for the
proposition that defendants who comply with the statutory notice and mental
examination requirements may offer expert testimony regarding their mental
18
condition when it explains their subjective need for self-defense, without pleading
insanity. But unlike the case before us now, the parties in Lane didn’t argue that
the defendant had a mental condition that implicated the definition of insanity
under section 16-8-101.5(1). Whether the defendant in Lane should have pled
NGRI was not at issue. Thus, it is inapposite.
¶44 To recap, in determining whether evidence is “relevant to the issue of
insanity” under section 16-8-107(3)(a), the trial court should determine whether
the proposed testimony, in whole or in part, is probative of what the legislature has
defined as insanity. That is, whether any of the proposed testimony tends to prove
that the defendant (a) was so diseased or defective in mind at the time of the
commission of the act as to be incapable of distinguishing right from wrong, or
(b) suffered from a condition of mind caused by mental disease or defect that
prevented the defendant from forming a culpable mental state that is an essential
element of a crime charged. See § 16-8-101.5. To implicate the definition of mental
disease or defect, the defendant’s mental condition must be “severely abnormal”
so that it “grossly and demonstrably impair[s] [the defendant’s] perception or
understanding of reality.” § 16-8-101.5(2)(c). Evidence that tends to prove insanity
is inadmissible, absent an NGRI plea, regardless of the defendant’s ostensible
purpose in offering it, while evidence that doesn’t tend to prove insanity may be
19
admitted to support a defendant’s self-defense claim so long as such evidence
otherwise conforms to the statutory requirements and the rules of evidence.5
¶45 In the interest of making this scheme clearer, let’s discuss the possible
permutations. If the court finds that none of the proposed testimony tends to prove
insanity, the defendant may introduce it at trial without pleading NGRI (again, so
long as it otherwise satisfies any applicable statutory requirements and rules of
evidence, including, for example, CRE 401 to 403 and CRE 702). If, however, the
court finds that all the proposed testimony tends to prove insanity, the defendant
may introduce it only by pleading NGRI. But if the court finds that some of the
proposed testimony tends to prove insanity and some doesn’t, the defendant must
make a choice: (1) plead NGRI and seek to introduce all of the proposed testimony;
or (2) withdraw the notice of intent to introduce mental condition evidence as to
the portions that tend to prove insanity. Selecting the latter course means
5In serving as the evidentiary gatekeeper in this context, the trial court is vested
with broad discretion. The court’s pretrial ruling on the admission of mental
condition evidence under this statutory test would typically be an evidentiary
ruling that’s reviewed for abuse of discretion on appeal. See Venalonzo, ¶ 15,
388 P.3d at 873.
20
embracing the court’s redactions and abiding by them at trial (while, of course,
retaining the ability to object for the purpose of preserving issues for appeal).
¶46 Contrary to Moore’s assertion, limiting the admission of mental condition
evidence in this manner doesn’t violate his due process rights because he has the
option to plead NGRI and admit the evidence. See Flippo, 159 P.3d at 106
(“Although a defendant is entitled to present evidence in his or her defense, the
manner in which the evidence is presented may be controlled by statute.”);
People v. Roadcap, 78 P.3d 1108, 1112 (Colo. App. 2003) (concluding that the trial
court’s exclusion of expert testimony regarding the defendant’s mental condition,
where the defendant didn’t comply with the statutory notice requirement, didn’t
preclude this line of defense but only required him to comply with the statute if
he chose to pursue it); cf. Hendershott v. People, 653 P.2d 385, 392–97 (Colo. 1982)
(concluding that a statute that restricted the admission of mental condition
evidence to specific intent crimes violated the defendant’s due process rights
because it eliminated any meaningful opportunity for him to contest the mens rea of
the crime rather than merely limiting an affirmative defense to a certain category
of offenses).
¶47 Moreover, we are not persuaded to take a different approach by the
prosecution’s argument that admitting mental condition evidence in this fashion
contravenes public policy because it might enable defendants like Moore to avoid
21
confinement in a mental health facility. See § 16-8-105.5(4), C.R.S. (2020)
(providing that defendants who are found not guilty by reason of insanity are to
be committed to the custody of the Department of Human Services until they are
found eligible for release). First, the unambiguous language of the insanity
statutes controls. Therefore, the prosecution’s policy argument would be better
directed at the legislature. Second, the prosecution’s argument fails on its own
terms. For Moore to be acquitted, a jury must find that Moore had a reasonable
ground to believe that he was in imminent danger of being killed or of receiving
great bodily injury and that Moore reasonably believed less force would have been
inadequate. See § 18-1-704(2)(a), C.R.S. (2020) (defining the justifiable use of
deadly physical force). In other words, Moore’s subjective impression alone
doesn’t control the viability of his self-defense claim. So, this hardly seems like a
recipe for chaos.
¶48 We are equally unpersuaded by the prosecution’s argument that Moore’s
proposed use of mental condition evidence is a non-starter because self-defense
focuses on the reasonableness of a defendant’s belief, and Moore’s proffered
evidence would necessarily render his subjective belief objectively unreasonable.
To be sure, the proffered evidence must be relevant, but the self-defense statute
explicitly implicates a defendant’s subjective belief in the need for self-defense for
consideration by the jury. See id. (providing that the use of deadly force is justified
22
only where the defendant has “reasonable ground to believe, and does believe, that
he or another person is in imminent danger of being killed or of receiving great
bodily injury” (emphasis added)). Yet, irrespective of that subjective belief,
whether Moore acted reasonably remains a question of fact for the jury to resolve.
See People v. Jones, 675 P.2d 9, 14 (Colo. 1984) (stating that the reasonableness of the
accused’s belief in the necessity of defensive action is determined by the trier of
fact).
D. Application
¶49 The prosecution essentially argues that testimony related to both expert
reports is inadmissible because the reports include references to Moore having
bipolar disorder, which the prosecution contends is a “severely abnormal mental
condition” that is “relevant to the issue of insanity.” We disagree.
¶50 Moore’s bipolar disorder diagnosis alone doesn’t render testimony related
to the reports wholly inadmissible. As we discussed above, insanity requires more
than just a showing that the defendant’s mental condition was “severely
abnormal”—the condition must also grossly and demonstrably impair the
defendant’s perception or understanding of reality. A bipolar disorder diagnosis
doesn’t necessarily meet that threshold. For example, the fifth edition of the
Diagnostic and Statistical Manual of Mental Disorders notes that bipolar disorder
I, with which Dr. Wells diagnosed Moore, doesn’t require a presentation of
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psychosis. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013).
¶51 Here, Dr. Brar’s report concludes that, although “Moore’s trauma-related
disorder and intoxication” likely affected his decision-making at the time of the
incident, he “did not suffer from a severe, abnormal mental condition which
grossly and demonstrably impaired his perception or understanding of reality,”
and he “was not so diseased or defective in mind . . . as to be incapable of
distinguishing right from wrong with respect to the alleged acts or to be prevented
from forming the culpable mental states.” The district court must therefore
consider whether there are any statements in Dr. Brar’s report that are probative
of insanity, and if there aren’t, it may choose to allow the admission of the report
in its entirety.
¶52 Dr. Wells’s report, however, requires a deeper analysis. For example, the
report states that “Moore’s thinking (even when not in a stressful situation) tends
to be distorted with psychotic qualities”; that his “elevated mood” at the time of
the incident “may have led him to feel grandiose”; that he “evinces signs of
delusional thinking”; and that his “ability to perceive reality accurately” was
“extraordinarily poor,” resulting in “distorted conclusions and impaired
judgment.” These statements, and other similar statements discussing Moore’s
“psychotic” thinking and impaired perception of reality, may be probative of
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insanity. On the other hand, the court may find that Dr. Wells’s statement that
“[t]rauma symptoms also contributed to [Moore’s] paranoid ideation,
hyper-vigilance, agitation[,] and his feelings of vulnerability,” and other such
statements not suggesting psychosis or an impaired perception of reality, are
admissible.
III. Conclusion
¶53 We vacate the district court’s order allowing the blanket admission of
evidence of Moore’s mental condition and remand the case for further proceedings
consistent with our opinion.
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