v. People

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ADVANCE SHEET HEADNOTE
October 15, 2018
2018 CO 82
No. 16SC552, Zapata v. People—Physician-Patient Privilege—Psychologist-Client
Privilege—Competency Evaluations—Res Gestae.
In this case, the trial court declined to give the defendant access to, or to review
in camera, competency reports regarding another defendant in a factually related but
separate case. Over objection, the trial court also admitted uncharged misconduct
evidence as res gestae.
The supreme court holds that competency reports are protected by the
physician-patient or psychologist-client privilege and that the examinee did not waive
the privilege as to the defendant when he put his competency in dispute in his own
case. The supreme court also holds that the defendant’s confrontation right is not
implicated and that the defendant did not make a sufficient showing that the
competency reports contained exculpatory evidence to justify their release to him or
review by the trial court pursuant to due process or Crim. P. 16.
The supreme court further holds that any error in admitting the uncharged
misconduct evidence as res gestae was harmless given the strong evidence of the
defendant’s guilt.
Accordingly, the supreme court affirms the judgment of the court of appeals.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2018 CO 82
Supreme Court Case No. 16SC552
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 13CA2155
Petitioner:
Nicholas Javier Zapata,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
October 15, 2018
Attorneys for Petitioner:
Megan Ring, Public Defender
Joseph P. Hough, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
Gabriel P. Olivares, Assistant Attorney General
Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court.
JUSTICE HART specially concurs, and JUSTICE GABRIEL joins in the special
concurrence.
JUSTICE SAMOUR dissents, and CHIEF JUSTICE COATS joins in the dissent.
One afternoon several years ago, the petitioner, Nicholas Zapata, and Jose
Murillo entered a Littleton convenience store. Murillo darted behind the checkout
counter, where he used a knife to attack the clerk, the only other person in the store.
Zapata watched the attack from the other side of the counter. Perhaps to everyone’s
surprise, the victim quickly managed to subdue Murillo with a hammer that happened
to be located behind the counter. With that unexpected turn of events, Zapata fled.
The People charged Zapata with attempted first degree murder and other crimes.
At trial, the People asserted that Zapata orchestrated the attack. They painted a picture
of a jealous and controlling Zapata, seeking revenge on behalf of his ex-girlfriend, S.M.
S.M. worked in the convenience store and had confided in Zapata several weeks earlier
that her boss, the store owner and father of the victim, had sexually harassed her. The
People argued that Zapata convinced Murillo to do his dirty work in seeking revenge,
but at the store, they confused the son for his father. The jury convicted Zapata of
attempted second degree murder and first degree assault.
Zapata seeks a new trial because the trial court declined to give him access to, or
to review in camera, certain competency reports regarding Murillo (who suffered brain
damage as a result of the hammer blows). Zapata alleges the reports might contain
exculpatory information about the criminal offenses of which he now stands convicted.
He also argues that the trial court committed reversible error when it admitted “res
gestae” evidence of Zapata’s earlier threatening behavior toward S.M.
A division of the court of appeals affirmed Zapata’s convictions, concluding as
follows: Murillo’s competency reports were privileged and no waiver justified
2
disclosure in Zapata’s case; Zapata failed to make a particularized showing that the
reports contained exculpatory information; and any error in admitting the res gestae
evidence was harmless. People v. Zapata, 2016 COA 75, ¶¶ 22–30, 39, __ P.3d __.
We hold that Murillo’s competency reports are protected by the
physician-patient or psychologist-client privilege and Murillo did not waive the
privilege as to Zapata when he put his competency in dispute in his own case. We
further conclude that Zapata did not make a sufficient showing that the competency
reports contained exculpatory evidence to justify their release to him or review by the
trial court. Finally, we conclude that any error in the admission of res gestae evidence
was harmless given the strong evidence of Zapata’s guilt.
Thus, we affirm the judgment of the court of appeals.
I. Facts and Procedural History
Before the assault in question, Zapata and Murillo boarded a light rail train in
downtown Denver. Video surveillance footage shows the two stepping off the train
seconds apart at the downtown Littleton station and walking side-by-side away from
the station. About that time, Zapata texted S.M.: “Don[’]t be there.” He sent S.M. the
same warning twice more in the next thirty minutes. S.M. responded to each message
with confusion, asking what and where Zapata was talking about.
A short time after getting off the train, Zapata and Murillo entered Littleton
Neighborhood Food and Gas. The victim, the son of the store owner, was there alone,
working as a clerk. Murillo headed straight behind the counter and attacked the victim
with a steak knife. The victim fought back first by yanking Murillo’s shirt over his
3
head, and then by grabbing a hammer from a nearby tool box and using it to repeatedly
strike Murillo in the head.
Zapata stayed on the other side of the counter and watched. A videotape of the
incident that was admitted into evidence reveals that some variation of the words, “Get
him, get him, get him good” were muttered, although at trial, the parties disputed
whether Zapata or Murillo said the words. As Murillo groaned, Zapata backed up,
turned around, and walked out of the store. The victim eventually subdued his
assailant, Murillo, by battering him into unconsciousness with the victim’s improvised
weapon.
The People charged Zapata and Murillo, separately, with attempted first degree
murder and other crimes. The People’s theory was that Zapata, upon learning that the
store owner had sexually harassed S.M., sought revenge. According to the People’s
version of events, Zapata and Murillo mistook the victim for his father. Zapata
countered that there was no shared plan; rather, “Murillo was a loose cannon,”
addicted to drugs.
In the proceedings against Murillo, Murillo’s counsel questioned his competency
to stand trial. The fight had left Murillo with brain damage. Murillo’s competency was
evaluated twice, once by court order and another time at his own request. The record
does not reveal what type of mental health professional examined Murillo. Regardless,
Murillo eventually withdrew his claim of incompetency and entered plea negotiations
with the prosecution. Murillo agreed to plead guilty to the lesser charge of conspiracy
to commit second degree murder; in exchange, he would testify against Zapata.
4
Zapata sought access to records of any statements regarding the attack made by
Murillo during his competency evaluations. Zapata alleged there was potentially
exculpatory material in the competency reports, contending that Murillo could have
made inconsistent statements to the competency evaluators that would provide
impeachment material. Zapata argued the reports must be provided to him pursuant to
section 16-8.5-104, C.R.S. (2018) (addressing “[w]aiver of privilege” as to competency
evaluations), and Crim. P. 16.
Initially, the trial court ruled that Zapata was entitled to the reports. Murillo’s
counsel, however, objected on the grounds that the reports were privileged. At a
hearing on the matter, the prosecution acknowledged that it had examined at least one
of the competency reports during plea negotiations in Murillo’s case, noting that there
were “maybe two lines about the actual incident in this competency evaluation, and
there is nothing in the competency evaluation that is not in the proffer that we’ve
already discovered anyway.”
Ultimately, the trial court denied Zapata’s request for access to the competency
reports, reasoning that they are privileged and the statute outlining who may receive
information regarding a defendant’s competency evaluation—the judge, defense
counsel, and prosecution in the defendant’s case—doesn’t include a codefendant in a
separate case. Zapata’s attorney then requested that the court review the material in
camera. The court denied that request as well.
The People also sought to introduce evidence that Zapata knew about the alleged
sexual harassment of S.M. and evidence from a week before the convenience store
5
incident when Zapata allegedly sent a series of harassing, threatening, and
profanity-ridden texts to S.M. The People argued the evidence was res gestae because
“[Zapata’s] jealousy and desire to resume his relationship with [S.M.], coupled with [the
sexual harassment], form a crucial part of the overall narrative of this case,” and the
evidence regarding how obsessive Zapata was about S.M. was relevant to “why he
would choose to take such an extreme action against the store owner.” Zapata
protested, arguing that S.M. was expected to testify at trial about his connection to the
store and that Zapata’s actions weeks before the attack bore no relevance to the attack at
the convenience store and were unduly prejudicial. The trial court admitted the
evidence as res gestae, reasoning that the evidence was necessary to explain “why this
particular store, this particular store clerk,” and stating that otherwise, “we’re starting
in the middle of the story.”
On the first day of trial, before jury selection, defense counsel objected to any
testimony by S.M. regarding physical altercations between S.M. and Zapata that had
occurred in the six months before the convenience store attack. The People argued that
any such testimony would also be res gestae evidence. The trial court agreed, ruling to
allow the testimony.
S.M. testified at trial that she had asked Zapata to help her fill out a complaint
with the U.S. Equal Employment Opportunity Commission because of the store owner’s
alleged harassment. S.M. testified that she told Zapata that the store owner had made
sexual overtures and touched her inappropriately. S.M. also testified that Zapata was
controlling and wanted to know where she was at all times and that they would
6
physically fight when she talked to other men. She testified that about a week before
the attack, Zapata sent her a series of fifty or so text messages threatening her and her
family when he learned she was seeing someone else. The threatening and explicit text
messages were admitted into evidence at trial.
Murillo testified at trial that he had known Zapata for six months, had no
memory of the attack, and had never been to Littleton or seen the victim or the store
owner before the attack.
The jury convicted Zapata of attempted second degree murder (a lesser-included
offense) and first degree assault, acquitting him of conspiracy to commit murder in the
first degree. The court sentenced Zapata to twenty-one years in prison for each count,
to run concurrently.
Zapata appealed. In relevant part, he contended that there are two sources of
reversible error by the trial court: (1) the failure to provide the competency reports to
him, or at least conduct an in camera review of the reports, and (2) the admission of res
gestae evidence from the months leading up to the attack showing that Zapata was
controlling, obsessive, and physically abusive toward S.M.
A division of the court of appeals affirmed Zapata’s conviction. The division
held that Murillo’s competency reports were protected under the psychologist-client
privilege and the privileged material was discoverable only in Murillo’s case, not
Zapata’s. Zapata, ¶¶ 22–29. The court of appeals also concluded that Zapata had not
made a “particularized showing that the statements Mr. Murillo allegedly made during
7
the competency evaluations somehow exculpated [the] defendant, or were inconsistent
with the information in Mr. Murillo’s proffer.” Id. at ¶ 30.
Without addressing whether it was error to admit the evidence of res gestae, the
division also held that any error was harmless. Id. at ¶ 39. In reaching this conclusion
the division reasoned that “the evidence supporting the prosecution’s theory was
compelling,” and the evidence corroborating the defendant’s theory was weak. Id. at
¶¶ 40–41.
Zapata petitioned this court for review of the same issues. We granted
certiorari.1
II. Standard of Review
The issues regarding the competency reports are issues of law, insomuch as they
require us to interpret statutes governing privilege in the context of criminal discovery.
We review issues of law de novo. People v. Rediger, 2018 CO 32, ¶ 18, 416 P.3d 893, 898
(statutory interpretation); People v. Kailey, 2014 CO 50, ¶ 12, 333 P.3d 89, 93 (interaction
of psychologist-patient privilege with other statutes).
1 We granted certiorari to review the following issues:
1. Whether the court of appeals erred in not finding that the trial court
should have either disclosed or reviewed, in camera, the
co-defendant’s statements about the crime.
2. Whether the court of appeals erred in not finding that the admission of
irrelevant and prejudicial evidence of the defendant’s character and
other bad acts was reversible.
8
We review evidentiary rulings, such as the admission of res gestae evidence, for
abuse of discretion. See People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial court
abuses its discretion “when its ruling is manifestly arbitrary, unreasonable, or unfair.”
Id.
III. Analysis
We begin by considering whether Zapata was entitled to examine, or to have the
court examine, the competency reports regarding Murillo. We first conclude that
competency reports, completed by either a psychiatrist or licensed psychologist per the
competency statute, are protected by the physician-patient or psychologist-client
privilege. Next, we discuss whether Murillo waived that privilege. Based on the
language of the competency statute, we conclude that any statutory waiver was limited
and does not extend to Zapata’s case. We then address Zapata’s constitutional and
Crim. P. 16 arguments. After determining that Zapata’s confrontation right is not
implicated, we examine whether due process or Crim. P. 16 required the disclosure or
in camera review of the reports. We conclude that Zapata did not make a sufficient
showing that Murillo’s reports contained material evidence.
Finally, we consider whether the trial court committed reversible error by
admitting evidence of Zapata’s controlling and threatening behavior toward S.M. as res
gestae evidence. We conclude, after observing that there was strong evidence of
Zapata’s guilt, that any error in admitting the res gestae evidence was harmless.
9
A. Competency Reports
First, Zapata asserts that Murillo’s competency reports should have been
provided to him or reviewed in camera.
1. The Competency Reports Are Privileged
Zapata argues that Murillo’s competency reports are not privileged. We
disagree. First, we observe that Zapata likely forfeited this argument, abandoned it on
appeal, or both. At the motions hearing, Zapata’s counsel appeared to assume that the
reports were privileged and argued only that the privilege was waived. Likewise, on
appeal, Zapata focused his argument on waiver. Regardless, we conclude that
competency reports are protected by the psychologist-client or physician-patient
privilege.
In addressing these privileges, we must first consider whether a psychologist or
physician was involved. Court-ordered and defendant-requested competency
evaluations must be conducted by a “competency evaluator.” § 16-8.5-101(5), C.R.S.
(2018) (defining “[c]ourt-ordered competency evaluation”); § 16-8.5-106, C.R.S. (2018)
(allowing a defendant “to be examined by a competency evaluator of his or her own
choice”). And “competency evaluator” means a licensed psychologist (with certain
qualifications) or a psychiatrist. § 16-8.5-101(2). The record does not include, under seal
or otherwise, copies of the reports. Thus, the record does not reveal the identity or
professional status of the competency evaluator(s) who conducted the evaluations at
issue here. But there is no indication of any failure to comply with section 16-8.5-101(2).
Therefore, we assume that either a psychologist or a psychiatrist conducted the
10
evaluations at issue here. We examine the requirements for privilege as to each type of
professional.
Communications between a client and licensed psychologist implicate the
psychologist-client privilege statute, section 13-90-107(1)(g), C.R.S. (2018). Under this
statute, “[a] licensed psychologist . . . shall not be examined without the consent of the
licensee’s . . . client as to any communication made by the client to the licensee . . . or the
licensee’s . . . advice given in the course of professional employment.” § 13-90-107(1)(g).
Here, the only portion of the psychologist-client privilege that would be at issue is that
which addresses communications made by the client to the licensed psychologist. We
acknowledge that the psychologist offers no “advice” (in the clinical sense) to the
defendant in this context.
Because psychiatrists are licensed physicians, their communications with
patients implicate the physician-patient statute, section 13-90-107(1)(d). Under this
statute, “[a] physician . . . shall not be examined without the consent of his or her
patient as to any information acquired in attending the patient that was necessary to
enable him or her to prescribe or act for the patient . . . .” § 13-90-107(1)(d).
Both privileges prohibit both testimonial disclosures and “pretrial discovery of
information within the scope of the privilege.” Clark v. Dist. Court, 668 P.2d 3, 8 (Colo.
1983). This includes “files or records derived or created in the course of the treatment.”
People v. Sisneros, 55 P.3d 797, 800 (Colo. 2002) (psychologist-patient privilege).
Because the competency evaluation statute required licensed psychologists or
psychiatrists to conduct the competency evaluations at issue here, the reports are
11
privileged if (1) Murillo was a patient or client of the evaluator, (2) the evaluator
“attended” to Murillo in conducting the evaluation, and (3) the information acquired in
attending to Murillo was necessary to enable the evaluator to act for Murillo. We
conclude that all three requirements are met. (We take it as a given that a licensed
psychologist would be acting “in the course of professional employment” in evaluating
a defendant’s competency.)
First, we observe that the question of whether the evaluator “attended to”
Murillo in conducting the evaluation is closely connected to the question of whether
Murillo was the evaluator’s patient or client. Merriam-Webster defines “attend,” as
relevant here, as “to look after” or “to visit professionally especially as a physician.”2
Attend, Merriam-Webster’s Online Dictionary, https://merriam-webster.com/
dictionary/attend [https://perma.cc/7L72-R75S]. Physicians certainly “visit” their
patients “professionally.” Thus, we begin by examining whether Murillo was a patient
or client of the evaluator.
The privilege statute does not define “patient” or “client.” Black’s Law
Dictionary simply defines “patient” as “[a] person under medical or psychiatric care.”
Patient, Black’s Law Dictionary (10th ed. 2014). While criminal defendants undergoing
competency evaluations typically are not patients or clients in a “fee-for-service” sense,
competency evaluations are utilized for diagnostic and treatment purposes. The
2 Black’s Law Dictionary does not define “attend.”
12
competency evaluator is, at least in part, performing a role typical of a physician or
psychologist in a physician-patient or psychologist-client relationship. In a
“[c]ourt-ordered competency evaluation,” the examination of the defendant is “directed
to developing information relevant to a determination of the defendant’s competency to
proceed at a particular stage of the criminal proceeding.” § 16-8.5-101(5). A defendant
is “[c]ompetent to proceed” if he:
do[es] not have a mental disability or developmental disability that
prevents [him] from having sufficient present ability to consult with [his]
lawyer with a reasonable degree of rational understanding in order to
assist in the defense or prevents [him] from having a rational and factual
understanding of the criminal proceedings.
§ 16-8.5-101(4). If the defendant is incompetent to proceed, the court has discretion to
determine how to restore the defendant to competency. See § 16-8.5-111, C.R.S. (2018).
Any course of action by the court, however, must contemplate using the competency
evaluation as a starting point for treatment to restore competency. In sum, the
competency evaluator examines the defendant to determine whether the defendant is
incompetent and thus needs treatment to address a mental or developmental disability
that prevents the defendant from consulting reasonably with his lawyer and
understanding the proceedings. Because the competency evaluator is, in part,
performing a role typical of a physician-patient or psychologist-client relationship, we
conclude that Murillo was a client or patient of the evaluator and the evaluator
“attended to” Murillo in conducting the evaluations.
Now we turn to whether the information acquired in attending Murillo was
necessary to enable the evaluator to act for him. In general, “before ruling on [a] claim of
13
privilege . . . , the trial court [must] determine[] whether the particular information . . .
sought . . . [is] in fact necessary for treatment.” People v. Reynolds, 578 P.2d 647, 649
(Colo. 1978). An evaluator may question the defendant about the offense and its
surrounding circumstances—and thus would “acquire that information” in the parlance
of the privilege statute—“[t]o aid in forming an opinion as to the competency of the
defendant.” § 16-8.5-105(3).
And acquiring that information enables the evaluator to act for the defendant.
Competency evaluations, even when court ordered, are conducted, at least in
substantial part, for the defendant’s benefit. The U.S. Supreme Court has “repeatedly
and consistently recognized that ‘the criminal trial of an incompetent defendant violates
due process.’” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Medina v. California,
505 U.S. 437, 453 (1992)). Thus, these evaluations benefit defendants by protecting their
due process rights. Because forming an opinion as to the defendant’s competence is
done for the defendant’s benefit, information utilized in forming such an opinion is
necessary for the evaluator to act for the defendant.
Thus, we conclude that competency reports are privileged. While the plain
language justifies this conclusion, we further note that the purpose of these privileges is
to encourage forthrightness between clients and patients and their psychologists and
psychiatrists. See People v. Dist. Court, 719 P.2d 722, 724 (Colo. 1986) (psychologist-client
privilege); Cmty. Hosp. Ass’n v. Dist. Court, 570 P.2d 243, 244 (Colo. 1977)
(physician-patient privilege). Given the weighty due process rights at stake, we surely
14
want to encourage such forthrightness between defendants and the professionals
evaluating their competency.
Because competency reports are privileged, they may not be revealed absent
Murillo’s consent or waiver. Murillo has not consented. Thus, Murillo’s competency
reports are privileged unless the privilege has been waived. We next address whether
the privilege was waived under section 16-8.5-104.3
2. The Competency Statute Waives Privilege Only as to the
Parties in that Defendant’s Case
Zapata argues that Murillo waived the physician-patient or psychologist-client
privilege when he put his mental condition at issue by raising competency under
section 16-8.5-104. We disagree. The statute waives a defendant’s privilege in the
competency evaluation only as to the parties and the court in that defendant’s case.
Thus, Murillo’s competency reports remain privileged outside of Murillo’s case. And
3 We acknowledge that our conclusion that competency reports are privileged may have
implications for the use of such information in other contexts, such as a competency
hearing or trial. Under section 16-8.5-108, evidence acquired during a competency
evaluation is admissible in certain circumstances during that defendant’s competency
hearing, trial, and sentencing. While one could argue this statute seeks to safeguard a
defendant’s Fifth Amendment rights, see § 16-8.5-104(6) (“Statements made by the
defendant in the course of any evaluation shall be protected as provided in section
16-8.5-108.”), cf. Lewis v. Thulemeyer, 538 P.2d 441, 442 (Colo. 1975) (concluding that the
legislative scheme governing sanity evaluations “carefully avoided the constitutional
proscriptions against self-incrimination”), the plain language addresses general
admissibility of evidence acquired during a competency evaluation. A defendant may
also waive his psychologist-client or physician-patient privilege through a course of
conduct that impliedly concedes the necessity of revealing otherwise confidential
information to third parties during the course of a presumptively public proceeding.
Cf. Gadeco, L.L.C. v. Grynberg, 2018 CO 22, ¶ 2, 415 P.3d 323, 326 (reviewing ways in
which a patient can impliedly waive his physician-patient privilege).
15
Zapata’s case, despite its obvious factual overlap with Murillo’s, was outside of
Murillo’s. Zapata and Murillo were prosecuted separately.
We begin our analysis with the statute, which enumerates the three parties as to
whom the privilege is waived. Section 16-8.5-104(1) provides: “When a defendant
raises the issue of competency to proceed, . . . any claim by the defendant to
confidentiality or privilege is deemed waived, and the district attorney, the defense
attorney, and the court are granted access, without written consent of the defendant or
further order of the court” to information relating to the competency evaluation,
including competency evaluation reports. § 16-8.5-104(1) (emphasis added). To the
extent the statute could be construed to suggest that there is a general waiver and the
enumerated parties are just those who receive the confidential material without a court
order, we reject that reading. Four of the five remaining subsections contemplate
disclosure only to the same three recipients—defense counsel, the prosecutor, and the
court in the defendant’s case—reinforcing that the waiver is limited to the parties and
the court in that case.4 Cf. Roberts v. Bruce, 2018 CO 58, ¶ 8, 420 P.3d 284, 286 (“[W]e
4 § 16-8.5-104(2) (“Upon a request by either party . . . the evaluator . . . shall provide the
information . . . .” (emphasis added)); § 16-8.5-104(3) (“An evaluator . . . is authorized to
provide . . . procedural information to the court, district attorney, or defense counsel . . . .”
(emphasis added)); § 16-8.5-104(4) (“Nothing in this section limits the court’s ability to
order that information . . . be provided to the evaluator, or to either party to the case . . . .”
(emphasis added)); § 16-8.5-104(5) (“The court shall order both the prosecutor and the
defendant or the defendant’s counsel to exchange the names . . . of each physician or
psychologist who has examined or treated the defendant for competency.” (emphasis
added)).
16
read the statute as a whole and seek to give consistent, harmonious, and sensible effect
to all its parts.”). Thus, section 16-8.5-104(1) creates a limited waiver of privilege.
While the statute does not create a general waiver, we consider whether
Murillo’s actions somehow did. Zapata argues that a defendant who raises competency
implicitly waives privilege by placing his mental condition at issue. True, we have said
that the test for waiver is “whether the [privilege-holder] has injected her physical or
mental condition into the case as the basis of a claim or an affirmative defense.”
Sisneros, 55 P.3d at 801. Yet, the question isn’t whether a defendant waives privilege by
raising competency. Of course he does: The statute says so. The question is about the
scope of the statutory waiver: Does it extend beyond the parties in the defendant’s case?
The General Assembly has expressly provided when, how, and to whom a defendant
waives his physician-patient or psychologist-client privilege by raising competency.
Zapata’s theory that raising competency waives privilege entirely would subvert that
legislative scheme.
In a similar vein, Zapata argues that exposure of the privileged information to a
third party breaks confidentiality and therefore destroys privilege. Specifically, he
claims that Murillo waived any privilege by sharing information about his competency
evaluations with the prosecution and the court. We have said, at least in other contexts,
that exposure to a third party can destroy privilege. See Hartmann v. Nordin,
147 P.3d 43, 52–53 (Colo. 2006) (“Information a person makes available to a third party
outside of the physician-patient privilege is not protected by the physician-patient
privilege.”); Wesp v. Everson, 33 P.3d 191, 198 (Colo. 2001) (“[I]f a communication to
17
which the [attorney–client] privilege has previously attached is subsequently disclosed
to a third party, then the protection afforded by the privilege is impliedly waived.”). Of
course, we have also noted that the scope of “implied waivers [has] always been limited
by the circumstances of the case.” Alcon v. Spicer, 113 P.3d 735, 739 (Colo. 2005). But
where, as here, the General Assembly has specified that only a limited waiver occurs,
that—not a general common law principle—controls. See Colo. Const. art. V, § 1(1)
(“The legislative power of the state shall be vested in the general assembly . . . .”).5
Because we have determined that section 16-8.5-104(1) waives Murillo’s
physician-patient or psychologist-client privilege in the competency reports only as to
the parties in Murillo’s case, we conclude that the privilege has not been impliedly
waived by exposure to third parties here. Because Zapata is a defendant in an entirely
separate criminal case, he is not entitled to the reports.
Finally, we address Zapata’s constitutional and Crim. P. 16 arguments. Zapata
argues that his confrontation right, due process, and Crim. P. 16 demand that he
receive, or at least the trial court review in camera, Murillo’s competency reports. We
turn to these claims now.
5 We do not foreclose the possibility that there may be an implied waiver of privilege
related to a competency report on other facts.
18
3. The Trial Court’s Nondisclosure Does Not Violate the
Confrontation Clause, Due Process Clause, or Crim. P. 16
First, we address Zapata’s Confrontation Clause argument. We then consider
whether the Due Process Clause or Crim. P. 16 compels the trial court to review the
reports or provide them to Zapata.
A defendant has a right to confront witnesses against him. U.S Const. amend.
VI; Colo. Const. art. II, § 19. However, a defendant’s confrontation right “is a trial right;
it is not a ‘constitutionally compelled rule of pretrial discovery.’” People in the Interest of
E.G., 2016 CO 19, ¶ 28, 368 P.3d 946, 953 (quoting People v. Spykstra, 234 P.3d 662, 670
(Colo. 2010)); accord Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion).
Here, Zapata argues the Confrontation Clause required the court to conduct an in
camera review of pretrial discovery. In essence, he seeks to bootstrap his trial right to
confront his accusers into a pretrial discovery right. Because his trial right to confront
witnesses is not at issue, we reject Zapata’s confrontation argument.
Zapata’s due process argument warrants more discussion. Under Brady v.
Maryland, the Due Process Clause requires the government to disclose information that
is favorable to the accused and “material either to guilt or to punishment.” 373 U.S. 83,
87 (1963). Consequently, impeachment material must be disclosed under Brady. See
United States v. Bagley, 473 U.S. 667, 676 (1985) (“Impeachment evidence, however, as
well as exculpatory evidence, falls within the Brady rule.”); Giglio v. United States,
405 U.S. 150, 154–55 (1972) (holding that the government must disclose evidence
affecting a witness’s credibility, especially when that witness’s testimony is crucial to
19
the government’s case). Because Crim. P. 16 “codifies Brady’s constitutional disclosure
requirement,” we evaluate this argument “through the lens of Brady.” People v. Bueno,
2018 CO 4, ¶ 28, 409 P.3d 320, 326.6
Here, although Murillo and Zapata were defendants in entirely separate cases,
the prosecutor in Zapata’s case had access to the competency reports in Murillo’s case.
Zapata argues that those reports might contain exculpatory information, such as
inconsistent statements by Murillo about the assault. Thus, he contends the trial court
abused its discretion in declining to either provide him with the privileged reports or
review them in camera.
The U.S. Supreme Court considered a similar situation in Pennsylvania v. Ritchie,
480 U.S. 39 (1987). Ritchie wanted the trial court to review a file from the state
child-protection agency about his alleged sexual abuse of his daughter, arguing it might
contain exculpatory evidence, including the names of potentially favorable witnesses.
Id. at 43–44. A Pennsylvania statute made records from the agency privileged, but the
privilege contained some exceptions, including that the agency must disclose the
records to “[a] court of competent jurisdiction pursuant to a court order.” Id. Although
6 To the extent that Zapata’s Crim. P. 16 argument is not a constitutional one, we refer
back to our observation that the physician-patient and psychologist-client privileges
prohibit both testimonial disclosures and the pretrial discovery of privileged
information. See Sisneros, 55 P.3d at 800 (“Once the privilege has attached, the
Defendant may not compel discovery unless it is waived.”); Clark v. Dist. Court, 668 P.2d
at 8.
20
the prosecutor did not have the records, id. at 44 n.4, Brady applied because the agency
was part of the state government, see id. at 57.
The Ritchie Court held that the Due Process Clause required an in camera review
of the material:
Given that the Pennsylvania Legislature contemplated some use of [the
agency’s] records in judicial proceedings, we cannot conclude that the
statute prevents all disclosure in criminal prosecutions. In the absence of
any apparent state policy to the contrary, we therefore have no reason to
believe that relevant information would not be disclosed when a court of
competent jurisdiction determines that the information is “material” to the
defense of the accused.
Id. at 58.
The defendant, on the other hand, was not entitled to receive the file for his own
review. The Ritchie Court held that a defendant does not get to review a privileged file
himself for the benefit of the “advocate’s eye”; he gets at most the court’s in camera
review, if there is a legal basis for such review. Id. at 59–61.
Importantly, Ritchie does not hold that trial courts must always review privileged
reports in camera pursuant to Brady. The Court expressly noted that a defendant “may
not require the trial court to search through the [privileged] file without first
establishing a basis for his claim that it contains material evidence.” Id. at 58 n.15 (citing
United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (“He must at least make some
plausible showing of how their testimony would have been both material and favorable
to his defense.”)). We have expanded on this point: For a court to review statutorily
privileged material, the initial showing must be more than a “vague assertion that the
victim may have made statements to her therapist that might possibly differ from the
21
victim’s anticipated trial testimony.” People v. Dist. Court, 719 P.2d at 726; accord People
v. Wittrein, 221 P.3d 1076, 1084 n.7 (Colo. 2009); see also Dill v. People, 927 P.2d 1315, 1325
(Colo. 1996).
Here, Zapata made only a vague assertion that the statements might include
impeachment material. Zapata contends that Murillo “might have possibly” said
something in the context of a privileged relationship at odds with the witness’s
anticipated trial testimony based on other discovery. At a motions hearing, the
prosecution provided Zapata a proffer of Murillo’s expected testimony, which was that
Murillo did not remember the day of the event. The prosecutor represented, “as an
officer of the court,” that there were “maybe two lines about the actual incident in this
competency evaluation, and there is nothing in the competency evaluation that is not in
the proffer.” Zapata discussed how Murillo had been shown the video of the attack at
some point, and speculated that the reports might reveal that watching the videos
caused Zapata to add or subtract details about his story. However, Zapata does not
indicate what Murillo might have added or subtracted to his story. His speculative
contention does not rise to the level of more than the kind of “vague assertion” we have
deemed inadequate to mandate disclosure.
Therefore, we conclude that Zapata has not made a sufficient showing that the
privileged reports contain material evidence to justify disclosure or in camera review.
B. Res Gestae Evidence
Defense counsel argues the trial court abused its discretion when it admitted “res
gestae” evidence regarding threatening, harassing, and physically abusive behavior by
22
Zapata toward S.M. (and people close to S.M.). We conclude that we need not address
Zapata’s contentions because any error in admitting the evidence was harmless.
1. The Res Gestae Doctrine
We have defined res gestae evidence as uncharged misconduct evidence that is
intertwined with the charged conduct:
Res gestae evidence includes evidence of another offense, which is related
to the charge on trial, that helps to “provide the fact-finder with a full and
complete understanding of the events surrounding the crime and the
context in which the charged crime occurred.” Generally, res gestae
evidence is linked in time and circumstances to the charged crime, it
forms an integral and natural part of the crime, or it is necessary to
complete the story of the crime for the jury. When evidence is admitted as
res gestae evidence, it is not subject to the general rule excluding evidence
of prior criminality.
People v. Skufca, 176 P.3d 83, 86 (Colo. 2008) (quoting People v. Quintana, 882 P.2d 1366,
1373 (Colo. 1994)) (internal citations omitted).
Zapata argues that the evidence regarding his behavior toward S.M. should not
have been admitted as res gestae evidence because: (1) the evidence describes events too
unconnected to be considered res gestae; (2) it is improper character evidence pursuant
to CRE 404(b); (3) it is irrelevant pursuant to CRE 401; and (4) it is unduly prejudicial
pursuant to CRE 403.
However, we need not address these arguments. Even if the trial court erred in
admitting uncharged misconduct evidence as res gestae, we conclude any such error
was harmless.
23
2. Any Error in Admitting the Res Gestae Evidence Was
Harmless
We review nonconstitutional trial errors that were preserved by objection for
harmlessness. Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119. Under this standard,
reversal is warranted if the error affects the substantial rights of the parties, meaning
“the error ‘substantially influenced the verdict or affected the fairness of the trial
proceedings.’” Id. (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)); accord
Johnson v. Schonlaw, 2018 CO 73, ¶ 11, __ P.3d __.
If we can say with fair assurance that, in light of the entire record of the trial, the
error did not substantially influence the verdict or impair the fairness of the trial, the
error is harmless. People v. Gaffney, 769 P.2d 1081, 1088 (Colo. 1989). While “[w]e have
never reduced the question of a trial error’s prejudicial impact to a specific set of
factors[,] . . . the strength of the properly admitted evidence supporting the guilty
verdict is clearly an ‘important consideration’ in the harmless error analysis.” Pernell v.
People, 2018 CO 13, ¶ 25, 411 P.3d 669, 673 (quoting Crider v. People, 186 P.3d 39, 43
(Colo. 2008)); accord Johnson, ¶ 12. Another important consideration “is the specific
nature of the error committed and the nature of the prejudice or risk of prejudice
associated with it.” Crider, 186 P.3d at 43; accord Johnson, ¶ 12. Thus, we turn to
evaluating the strength of the admissible evidence on which Zapata was convicted, as
well as the nature of the risk of prejudice associated with the potentially impermissible
admission of evidence.
24
Zapata was convicted on a complicity theory. Under this theory, a defendant is
legally accountable as a principal for the criminal act of another if “he aids, abets,
advises, or encourages the other person in planning or committing that offense” with:
(1) the intent to aid, abet, advise, or encourage the other person in his
criminal act or conduct, and (2) an awareness of circumstances attending
the act or conduct he seeks to further, including a required mental state, if
any, that are necessary for commission of the offense in question.
People v. Childress, 2015 CO 65, ¶ 34, 363 P.3d 155, 165; see § 18-1-603, C.R.S. (2018).
“With regard to causing a particular result that is an element of the offense in
question, . . . complicitor liability as defined by statute in Colorado mandates that the
complicitor act with an awareness the principal is or would be acting with that required
mental state.” Childress, ¶ 29, 363 P.3d at 164. “[C]ircumstances attending the act or
conduct,” refer to “those elements of the offense describing the prohibited act itself and
the circumstances surrounding its commission, including a required mental state, if
any.” Id.
The jury convicted Zapata of attempted second degree murder and first degree
assault. The requisite culpable mental state for second degree murder is knowingly.
§ 18-3-103(1), C.R.S (2018). Attempt liability also requires that the defendant, acting
with the kind of culpability otherwise required for commission of an offense, engage in
conduct constituting a substantial step toward the commission of the offense. A
substantial step is any conduct that is strongly corroborative of the firmness of the
actor’s purpose to complete the offense. § 18-2-101, C.R.S. (2018). First degree assault,
25
as charged here, requires that a defendant act with the specific intent to cause serious
bodily injury by means of a deadly weapon. § 18-3-202(1)(a), C.R.S. (2018).
Thus, in order for Zapata to be guilty of the crimes for which he was convicted,
there needed to be evidence beyond a reasonable doubt that he intended to facilitate
Murillo in his criminal act or conduct, and that Zapata did so with an awareness of the
actual circumstances, namely an effort to kill the victim, and the specific intent to cause
him, at the very least, serious bodily injury by means of a deadly weapon.
The record reveals strong evidence of Zapata’s complicity in the offenses of
which the jury found him guilty. According to Zapata, he was merely present when
Murillo, a “loose cannon,” committed the attack. However, significant evidence
supports the notion that Zapata enlisted the aid of Murillo: the photos of Zapata and
Murillo entering and leaving the light rail together; Zapata’s numerous texts warning
S.M., “Don[’]t be there”; Zapata’s calm demeanor in the video while he watched the
attack; even Murillo’s testimony that he had never been to the store before—or to
Littleton for that matter—and that he had never seen the victim or store owner before
the attack. And there’s no evidence suggesting another motive for Murillo to go to the
Littleton store or to commit the attack. In contrast, even without the res gestae
evidence, the testimony by S.M. that she told Zapata about the unwanted sexual
attention from the store owner provided a very strong motive for Zapata to convince
Murillo to attack the store owner. That Murillo did so with a steak knife right in front
of Zapata without any protest from Zapata (coupled with the “get him good”
26
incitement that would more logically come from the viewer rather than the assailant)
provides even more evidence of the requisite culpable mental states.
Turning to the nature of the res gestae evidence and its risk for prejudice, we
acknowledge that some of the admitted, uncharged misconduct evidence was
inflammatory. However, given the strength of the other evidence against Zapata and
the implausibility of the defendant’s “innocent bystander” theory of the case, we do not
believe the uncharged misconduct evidence was so prejudicial as to substantially
influence the verdict or impair the fairness of the trial. Because there was strong
evidence of Zapata’s guilt and an implausible counterargument to that evidence, the res
gestae evidence was not so prejudicial as to substantially influence the verdict or impair
the fairness of the trial. Thus, we conclude any error as to the admission of res gestae
evidence was harmless. See Pernell, ¶ 25, 411 P.3d at 673; Crider, 186 P.3d at 43.
IV. Conclusion
We hold that Murillo’s competency reports are protected by the
physician-patient or psychologist-client privilege and Murillo did not waive the
privilege as to Zapata when he put his competency in dispute in his own case. We
further conclude that Zapata did not make a sufficient showing that the competency
reports contained exculpatory evidence to justify their release to him or review by the
trial court. Finally, we conclude that any error in the admission of res gestae evidence
was harmless given the strong evidence of Zapata’s guilt.
Thus, we affirm the judgment of the court of appeals.
27
JUSTICE HART specially concurs, and JUSTICE GABRIEL joins in the special
concurrence.
JUSTICE SAMOUR dissents, and CHIEF JUSTICE COATS joins in the dissent.
28
JUSTICE HART, specially concurring.
I join the majority opinion in full. I write separately, however, to express my
concern over the trial court’s decision to admit highly prejudicial and unrelated
evidence under the guise of “res gestae.” While I agree with the majority that, in this
particular case, the error in admitting the res gestae evidence was harmless, the issue is
a close one and I believe that it must be acknowledged as error. Further, I have serious
reservations about the continued appropriateness of the res gestae doctrine and believe
that, in an appropriate case, this court should consider whether to join other
jurisdictions that have abandoned the doctrine. See C.A.R. 35(e)(3) (recognizing, albeit
in a different context, the propriety of using a special concurrence to “direct[] attention
to the shortcomings of existing common law or inadequacies in statutes”).
I.
The res gestae doctrine has its roots in common law, where it was initially
employed as an exception to the general prohibition on the admission of hearsay and
permitted the admission of statements made at the time an event occurred. The idea
was that witnesses might need to include these statements to complete the story of what
had occurred, and that the statements were reliable because they were spontaneous.
See H. Patrick Furman & Ann England, The Expanding Use of the Res Gestae Doctrine, 38
Colo. Law. 35, 35 (2009). Over the years, the doctrine itself has expanded to permit the
introduction of evidence well beyond contemporaneous statements. As the majority
notes, our definition of res gestae now encompasses any “uncharged misconduct
evidence that is intertwined with the charged conduct.” Maj. op. ¶ 57.
1
In this case, some of the evidence was appropriately admitted. In particular, text
messages between Zapata and S.M. concerning her alleged sexual assault by the
convenience store owner and Zapata’s request that she not be at the store on the day of
the crime were important to “complete the story of the crime for the jury.” In addition
to this evidence that explained Zapata’s motive and suggested his intent to commit the
crime, however, the trial court permitted the prosecution to introduce Zapata’s
profanity-filled texts about S.M.’s relationship with a new boyfriend who had no
connection with the crime and texts to and about S.M.’s family that were similarly
crude. The prosecution was also permitted to introduce evidence about Zapata’s
alleged physical abuse of S.M. during the last six months of their relationship and his
controlling behavior toward her during that same time frame.
Because I cannot discern a verifiable and significant connection between the
defendant’s alleged prior bad acts towards S.M., her new boyfriend, and her family and
the subsequent assault of the store clerk, I cannot conclude that this evidence was
properly admitted. In other words, I respectfully disagree with the trial court that the
jury needed this evidence because it was all part of one big story. To the contrary, this
evidence should not have been allowed to go before the jury; it served the prohibited
purpose of demonstrating the defendant’s purported threatening and violent bad
character.
That this evidence was improperly admitted is also shown by the way the
prosecutor used it in closing argument: “What else do you want to know about [the
defendant]? Prior to the incident you know how he reacts to and what he thinks about
2
people who are messing with [S.M.] And what he would like to do to them.” In
essence, the jury was encouraged to use the defendant’s threatening and violent bad
character from the past to determine what happened in the present case, with an
unrelated victim.
Our Rules of Evidence provide a specific mechanism in C.R.E. 404(b) for
considering whether this kind of otherwise-inadmissible character evidence may be
introduced. The evidence admitted in this case as res gestae should have been assessed
for whether it met the substantive and procedural requirements of 404(b). Had such an
assessment been made, I doubt that the trial court would have permitted the
prosecution to use the evidence as it did. Unfortunately, the label “res gestae”
short-circuited the evaluation called for in Rule 404(b), as it too often does.
II.
This case would not have been an appropriate vehicle to consider whether
Colorado should continue to recognize the res gestae doctrine because the error in
admitting the unrelated evidence was harmless. There is, however, good reason for this
court, in an appropriate case, to consider whether the doctrine has been rendered
obsolete by modern rules of evidence. It is a vague and nearly standardless concept
that is applied too expansively to admit otherwise inadmissible evidence. See, e.g.,
Edward J. Imwinkelried, The Second Coming of Res Gestae: A Procedural Approach to
Untangling the ‘Inextricably Intertwined’ Theory for Admitting Evidence of an Accused’s
Uncharged Misconduct, 59 Cath. U. L. Rev. 719, 729–30 (2010) (cataloging some of the
wide-ranging criticism of res gestae and noting that “[t]he looseness of the doctrine
3
allows the courts to engage in ‘result-oriented’ decision-making”) (citations omitted).
Moreover, the most appropriate contexts for its application are likely already covered
by the Colorado Rules of Evidence.
The continued utility of the doctrine has been questioned by a number of
prominent experts in the law of evidence. See 2 George E. Dix et al., McCormick on
Evidence § 268 (Robert P. Mosteller ed., 7th ed. Supp. 2016) (“[Res gestae’s] vagueness
and imprecision are apparent.”); 4 Clifford S. Fishman & Anne T. McKenna, Jones on
Evidence § 24:6 (7th ed. 2017) (“[U]se of the phrase ‘res gestae’ to delineate a hearsay
exception is rightly regarded with disfavor.”). One prominent treatise has ventured
even further: “The phrase res gestae has long been not only entirely useless, but even
positively harmful. It is useless, because every rule of evidence to which it has ever
been applied exists as a part of some other well-established principle and can be
explained in the terms of that principle.” 6 John Henry Wigmore, Evidence in Trials at
Common Law § 1767 (James H. Chadbourne rev., 1976).
The Federal Rules of Evidence avoid using the term. See Fed. R. Crim. P. 404(b).
And numerous jurisdictions, both state and federal, have rejected the use of the res
gestae doctrine. See Kenney v. Floyd, 700 F.3d 604, 609 (1st Cir. 2012) (“Categories of
evidence that were once excepted as ‘res gestae’ are now incorporated in either the
definition of hearsay itself, Fed. R. Evid. 801, or the defined exceptions to the hearsay
rule, Fed. R. Evid. 803–804.”); Miller v. Keating, 754 F.2d 507, 509 (3d Cir. 1985) (“The old
catchall, ‘res gestae,’ is no longer part of the law of evidence.”); State v. Fetelee,
175 P.3d 709, 735 (Haw. 2008) (“[T]he [Hawai’i Rules of Evidence] supersede[] the
4
common law res gestae doctrine.”); State v. Rose, 19 A.3d 985, 988 (N.J. 2011) (“[T]he
doctrine of res gestae no longer has vitality in light of the formal Rules of Evidence.”).
Of course, there are other jurisdictions that continue to refer to the doctrine. See
United States v. Brown, 888 F.3d 829, 836 (6th Cir. 2018) (“This Court recognizes an
exception to Rule 404(b) for res gestae evidence where the evidence ‘consis[t][s] of those
other acts that are inextricably intertwined with the charged offense or those acts, the
telling of which is necessary to complete the story of the charged offense.’”) (quoting
United States v. Olds, 309 Fed. Appx. 967, 974 (6th Cir. 2009)). Because we have received
no briefing on the question here, and because the error in this case was harmless, this is
not the moment to consider which of these approaches Colorado should take. But,
particularly in light of the expansive use of the doctrine in the trial courts, we might do
well to take the matter up in a future case.
I am authorized to state that JUSTICE GABRIEL joins in this concurrence.
5
JUSTICE SAMOUR, dissenting.
I. Introduction
I respectfully dissent because I disagree with the majority’s holding that
Murillo’s competency evaluation report is protected by the physician-patient or
psychologist-client privilege and is inaccessible to Zapata.1 In my view, Zapata was
entitled to Murillo’s competency evaluation report, and the trial court’s failure to afford
him access to it was erroneous. Further, although I agree with the majority’s conclusion
regarding the trial court’s admission of res gestae evidence, I feel compelled to briefly
comment on the concurring opinion.
II. Analysis
A. Privileges and Waiver
The majority concludes that, depending on the qualifications and training of the
evaluator, either the physician-patient privilege or the psychologist-client privilege
automatically attaches during the performance of any court-ordered competency
1 The majority, the court of appeals, and the parties refer to competency evaluation
reports (plural). By and large, I refer to a single report because only one appears to
have been filed with the trial court. After completion of the court-ordered competency
evaluation, which concluded that Murillo was competent, Murillo requested leave to
have an evaluator of his own choosing conduct a second competency evaluation. See
§ 16-8.5-106(1), C.R.S. (2018). The trial court granted the request and a second
evaluation was completed. However, it appears that the report related to that second
evaluation was never filed with the clerk of the court, although a copy of it was
provided to the prosecution. Murillo subsequently withdrew his claim of incompetency
and accepted the prosecution’s plea bargain offer.
1
evaluation in a criminal case. Moreover, according to the majority, the waiver created
by subsection 16-8.5-104(1), C.R.S. (2018), is limited to the parties and the judge in the
case in which the competency evaluation is completed. Therefore, the majority
determines that Zapata had no right to access the report of the competency evaluation
performed on Murillo in Murillo’s case.2
I address the physician-patient and psychologist-client privileges first and then
proceed to discuss the statutory waiver. Because I conclude that Murillo’s competency
evaluation report is not protected by either privilege, I would not reach the waiver
issue.3 I do so here because I disagree with the majority’s interpretation of subsection
16-8.5-104(1).
1. Physician-Patient and Psychologist-Client Privileges
Court-ordered competency evaluations must be conducted by (1) a licensed
physician who is a psychiatrist and who is trained in forensic competency assessments
2 At one point, the prosecution admitted to the trial court that there were “maybe two
lines about the actual incident” in Murillo’s second competency evaluation report, but
claimed that there was nothing in the report that was not included in a subsequent
“proffer” Murillo provided the prosecution as part of his plea agreement. This
statement, though, contradicted an earlier representation by the prosecution that
“essentially what [Murillo] says” in his first evaluation “is he doesn’t remember
anything about the incident.” Murillo testified during Zapata’s trial that, although he
did not remember the incident, he had known Zapata for six months before the attack,
the convenience store’s surveillance video showed him and Zapata while the attack
took place, he and Zapata were not there to rob the store, and Zapata left him at the
store to die.
3I limit my analysis to court-ordered competency evaluations; as such, I do not address
evaluations performed pursuant to section 16-8.5-106, which are requested and paid for
by the defendant and completed by an evaluator chosen by the defendant.
2
or a licensed psychologist who is trained in forensic competency assessments, (2) a
psychiatrist who is in forensic training and practices under the supervision of a
psychiatrist with expertise in forensic psychiatry, or (3) a psychologist who is in forensic
training and practices under the supervision of a licensed psychologist with expertise in
forensic psychology. § 16-8.5-101(2), C.R.S. (2018).4 The question, then, is whether the
report completed following Murillo’s competency evaluation is protected by the
physician-patient privilege or the psychologist-client privilege.5 Because the answer
necessarily depends on the scope of each privilege, I examine the statutory definition of
each privilege first.
In Colorado, the physician-patient and psychologist-client privileges are
governed by subsection 13-90-107(1), C.R.S. (2018). That statute prohibits a physician
from being “examined without the consent of his or her patient as to any information
acquired in attending the patient that was necessary to enable him or her to prescribe or
act for the patient.” § 13-90-107(1)(d). It also provides that a psychologist “shall not be
examined without the consent of the . . . client as to any communication made by the
4As the majority indicates, there is no basis to believe that the competency evaluation
performed on Murillo failed to comply with subsection 16-8.5-101(2). Consequently,
Murillo’s competency evaluation was conducted by a physician (including possibly a
psychiatrist) or a psychologist.
5 The majority correctly states that the record does not include, under seal or otherwise,
a copy of the competency evaluation report completed. Zapata attempted to make the
evaluation part of the record so that it would be available for review purposes. I believe
it was improper for the trial court to refuse to allow him to do so.
3
client to the [psychologist]” or as to any “advice given” by the psychologist to the client
“in the course of professional employment.” § 13-90-107(1)(g).
The majority concludes that Murillo’s competency evaluation report is protected
by the physician-patient privilege and the psychologist-client privilege. Maj. op.
¶¶ 31–40. As to the former, the majority finds that Murillo was his evaluator’s
“patient” and that the evaluator acquired information in “attending” Murillo that was
“necessary to enable” him “to act” for Murillo. Id. at ¶¶ 34–39. As to the latter, the
majority finds that Murillo was his evaluator’s “client” and that Murillo’s
communications to his evaluator were “in the course of professional employment.” 6 Id.
at ¶ 34.
Respectfully, the majority futilely attempts to pound the square peg of
competency evaluation reports into the round hole of the physician-patient and
psychologist-client privileges. I do not believe this ruling is tenable for multiple
reasons. First, subsection 16-8.5-105(2), C.R.S. (2018), which addresses the protection of
“[s]tatements made by the defendant in the course of the [competency] evaluation,”
does not contemplate protecting competency evaluation reports under the umbrella of
the physician-patient and psychologist-client privileges. Second, the plain language in
subsections 13-90-107(1)(d) and (1)(g) reflects that the physician-patient and
psychologist-client privileges do not apply to competency evaluation reports. Third,
6 The majority concedes that a psychologist “offers no ‘advice’ (in the clinical sense) to
the defendant in [the] context” of a competency evaluation. Maj. op. ¶ 31.
4
the majority misunderstands subsections 13-90-107(1)(d) and (1)(g) and overlooks our
decision in Martinez v. Lewis, 969 P.2d 213 (Colo. 1998). And finally, covering
competency evaluations with the protective cloak of the physician-patient and
psychologist-client privileges does not further the policies behind those privileges.
Subsection 16-8.5-105(2) fails to mention the physician-patient privilege, the
psychologist-client privilege, or section 13-90-107. Had the legislature intended to
afford a competency evaluation report the protection of the physician-patient privilege
or the psychologist-client privilege (or any other privilege in section 13-90-107), it
presumably would have done so in subsection 16-8.5-105(2).
The only protection subsection 16-8.5-105(2) affords statements made by the
defendant during a competency evaluation is as set forth in section 16-8.5-108, C.R.S.
(2018), which is titled “Evidence.” § 16-8.5-105(2). Neither we nor divisions of the court
of appeals have previously had occasion to interpret section 16-8.5-108. But its
counterpart in the insanity arena, section 16-8-107, C.R.S. (2018), which is also titled
“Evidence” and is nearly identical, has been repeatedly construed by divisions of the
court of appeals as protecting only the defendant’s privilege against self-incrimination
under the Fifth Amendment to the United States Constitution. See People v. Herrera,
87 P.3d 240, 247 (Colo. App. 2003) (“The insanity statute protects [the privilege against
self-incrimination] by limiting evidence obtained during [a sanity] examination to a
defendant’s mental condition” under “§ 16-8-107(1)(a), (1.5)(a).”); id. at 250 (subsections
“16-8-107(1)(a) and (1.5)(a),” along with other statutory provisions, “protect a
defendant’s privilege against self-incrimination by limiting the use of evidence” to
5
certain purposes); see also People v. Bondurant, 2012 COA 50, ¶ 45, 296 P.3d 200, 210 (the
General Assembly “replaced the express protection against self-incrimination with the
provision that statements made by the defendant in the course of [a sanity] examination
shall be protected as provided in section 16-8-107”) (quotation and original alteration
omitted).
The division of the court of appeals in this case incorrectly read section 16-8.5-108
as relevant to the psychologist-patient privilege. See People v. Zapata, 2016 COA 75M,
¶¶ 26–31, __P.3d__. The majority makes the same mistake in an attempt to harmonize
its holding—that competency evaluation reports are confidential and privileged
pursuant to subsections 13-90-107(1)(d) and (1)(g)—with the inescapable reality that the
information in such reports is regularly used in open court during competency
hearings, restoration hearings, jury trials, and sentencing hearings. Maj. op. ¶ 40 n.3.
Moreover, the plain language in subsections 13-90-107(1)(d) and (1)(g) does not
include competency evaluation reports. First, as it relates to the physician-patient
privilege, Murillo was not a “patient” of the evaluator. § 13-90-107(1)(d). Nor does the
report contain information that was acquired while “attending” Murillo or that was
“necessary to enable” the evaluator “to prescribe or act for” Murillo. Id. Rather, as part
of Murillo’s criminal case, and without first obtaining Murillo’s agreement or consent,
the court ordered the department of human services to have one of its evaluators (1)
conduct a competency evaluation of Murillo, (2) prepare a written report of the
evaluation, and (3) deliver the report to the clerk of the court so that a copy of it could
then be forwarded to the prosecutor and defense counsel. Because the evaluator was
6
not Murillo’s treating physician and did not obtain any information while attending to
him, much less information that was necessary to allow him to prescribe or act for
Murillo, the competency evaluation report does not fall within the scope of the
physician-patient privilege.
The psychologist-client privilege is equally inapplicable. Murillo was not a
“client” of the evaluator. § 13-90-107(1)(g). Nor did Murillo make any communication
to the evaluator “in the course of [Murillo’s] professional employment” of the evaluator.
Id.. The evaluator was not professionally employed by Murillo, and Murillo and the
evaluator did not have a professional employment relationship. Rather, the evaluator
evaluated Murillo pursuant to an order issued by the court.
The majority misconstrues subsections 13-90-107(1)(d) and (1)(g). It insists that
competency evaluations must be protected by the privileges because they “are utilized
for diagnostic and treatment purposes.” Maj. op. ¶ 36. Although the premise of this
contention is technically correct, it is out of context. The purpose of a court-ordered
competency evaluation in a criminal case is not to provide health care to the defendant
by diagnosing or treating illnesses or conditions from which he may suffer. To the
extent that there is a diagnosis in a competency evaluation, it is for the sole purpose of
complying with the court’s order to form and document certain opinions related to the
defendant’s competency. See § 16-8.5-105(5) (requiring the evaluator to provide “[a]n
opinion as to whether the defendant suffers from a mental disability or developmental
disability,” a “diagnosis and prognosis” of any such “mental disability or
developmental disability,” and “[a]n opinion as to whether the defendant is competent
7
to proceed”). Likewise, to the extent that any treatment takes place during an
evaluation, it is for the sole purpose of complying with the court’s order to attempt to
restore an incompetent defendant to competence. See § 16-8.5-111(2), C.R.S. (2018)
(discussing the court’s options when restoration is appropriate). In neither case does
the evaluator act as the defendant’s physician, psychologist, or health care provider; in
neither case is the defendant a patient or a client of the evaluator; and in neither case
does the defendant receive diagnostic care, treatment, or any other type of health care at
his request (or even with his agreement or consent) from a physician, psychologist, or
health care provider.
The majority next avers that evaluators “attend” to defendants during
competency evaluations, as required by the physician-patient privilege. Maj. op.
¶¶ 34–36. But this ignores the nature of competency evaluations, which is not at all
consistent with a physician “attend[ing]” to his patient. As relevant here, the word
“attend” is defined as “to look after,” “to go or stay with as a . . . nurse,” and “to visit
professionally especially as a physician.” Attend, Merriam-Webster’s Online Dictionary,
https:// merriam-webster.com /dictionary/attend [https://perma.cc/7L72-R75S]. An
evaluator ordered by the court in a criminal case to perform a competency examination
does not “look after” the defendant, “go or stay with” the defendant as a nurse, or
“visit” the defendant “professionally” as a physician would do with his patient. Rather,
he evaluates the defendant for competency because he is ordered to do so by the judge
presiding over the defendant’s criminal case.
8
The analysis by the majority then turns conclusory. The majority admittedly
“take[s] it as a given” that evaluators act “in the course of professional employment,” as
required by the psychologist-client privilege. Maj. op. ¶ 34. In my view, that
proposition is not “a given.” While evaluators no doubt act “in the course of
professional employment” with the department of human services as they perform
court-ordered competency evaluations, that is not what subsection (1)(g) requires.
Subsection (1)(g) provides that the psychologist-patient privilege protects “any
communication made by the client to the [psychologist] . . . in the course of professional
employment.” § 13-90-107(1)(g). This cannot possibly mean what the majority
apparently thinks it means—that any communication by a client to a psychologist,
during a time when the psychologist is professionally employed somewhere by
someone, is protected by the psychologist-patient privilege. Instead, subsection (1)(g)
must be read as referring to a communication by a client to a psychologist during the
course of professional employment between the client and the psychologist. Because an
evaluator performing a court-ordered competency evaluation is not professionally
employed by and has no professional employment relationship with any defendant he
evaluates, competency evaluation reports are not protected by the psychologist-patient
privilege.
The majority further contends that the information in a competency evaluation
report is covered by the physician-patient privilege because “acquiring that information
enables the evaluator to act for the defendant.” Maj. op. ¶ 38. However, an evaluator
ordered by the court to perform a competency evaluation does not “prescribe or act” for
9
the defendant, as subsection 13-90-107(1)(d) requires. Rather, in contrast to a physician
who prescribes or acts to diagnose or treat his patient at his patient’s behest, an
evaluator acts at the court’s request to assess the defendant’s competency. Thus, the
information in a competency evaluation report is not necessary to prescribe or act for
the defendant; it is necessary to enable the evaluator to comply with the court’s order
and, by extension, with subsections 16-8.5-103(2), C.R.S. (2018) (discussing
court-ordered competency evaluations) and 16-8.5-105(5) (explaining the required
contents of competency evaluation reports).
In addition to misconstruing the plain language of subsections 13-90-107(1)(d)
and (1)(g), the majority pays no attention to our decision in Martinez Although Martinez
involved a medical malpractice claim, it is instructive.
Martinez was involved in a car accident, and Dr. Lewis performed an
independent medical evaluation at the request of State Farm Mutual Automobile
Insurance Company (State Farm), Martinez’s insurer. 969 P.2d at 215–16. In analyzing
whether Dr. Lewis owed Martinez a duty, we listed a number of factors that must be
considered: “the risk involved,” balancing “the foreseeability and likelihood of injury”
against “the social utility of the [physician’s] conduct,” the extent of “the burden of
guarding against the harm,” and any “consequences of placing the burden of a duty on
the defendant.” Id. at 218. In applying these factors, we reviewed the context in which
Dr. Lewis’s evaluation of Martinez occurred and contrasted Martinez’s health care
providers with Dr. Lewis. Id. We explained that “Martinez sought psychological and
psychiatric treatment from her own health care providers” and did not contend “that she
10
sought medical advice or treatment from Dr. Lewis, that he advised her in any way, that he
failed to inform her about an unknown condition, or that he injured her during the
course of the examination.” Id. (emphases added). We further observed that, under
State Farm’s agreement with Dr. Lewis, which was for State Farm’s sole benefit, “Dr.
Lewis’s obligations were to report to State Farm his opinions regarding the diagnosis,
prognosis, and other pertinent information regarding any treatment Martinez might
need.” Id. at 218–19. Therefore, we agreed with the court of appeals that “no
physician-patient relationship existed between Dr. Lewis and Martinez.” Id. at 219.
Similarly, here, Murillo did not seek medical advice or treatment from the
evaluator, and the evaluator did not advise him in any way or diagnose any condition.
Moreover, pursuant to the court’s order, the evaluator’s obligation was to report to the
court in writing the opinions and information required by subsection 16-8.5-105(5).
Thus, just as no physician-patient relationship was formed between Dr. Lewis and
Martinez, no physician-patient relationship or psychologist-client relationship was
formed between Murillo’s evaluator and Murillo.
Although the majority turns a blind eye to Martinez, it nevertheless reasons that
competency evaluations are privileged because they are conducted largely for the
defendant’s benefit. I take issue with this supposition. While it is now axiomatic that it
is unconstitutional to try an incompetent defendant, competency evaluations are
ordered and completed for the benefit of the court (not the defendant), in order to
afford the court an opportunity to make a fair and reliable determination regarding the
11
defendant’s competency to proceed. Indeed, it is not unusual for defendants and
defense counsel to object to court-ordered competency evaluations.
Lastly, I disagree that extending the aegis of the physician-patient and
psychologist-client privileges to competency evaluations serves the purposes behind
those privileges. The purpose of the privileges is “to enhance the effective diagnosis
and treatment of illness by protecting the patient from the embarrassment and
humiliation that might be caused by the . . . disclosure of information imparted . . . by
the patient during the course of a consultation.” Clark v. Dist. Court, 668 P.2d 3, 8 (Colo.
1983); see also People v. Sisneros, 55 P.3d 797, 800 (Colo. 2002). That purpose is in no way
achieved by casting the protective net of the physician-patient and psychologist-client
privileges so wide as to snare court-ordered competency evaluation reports, which
must be distributed to the court, the prosecutor, and defense counsel, see § 16-8.5-105(4),
and which are regularly discussed in open court during competency hearings,
restoration hearings, jury trials, and sentencing hearings.
Yet, Zapata was improperly denied access to Murillo’s competency evaluation
report based on the physician-patient and the psychologist-client privileges. As a
result, Zapata was forced to proceed to trial without the report, even though (1) Murillo
testified as a prosecution witness against Zapata in Zapata’s case, (2) Murillo was asked
about and discussed the convenience store attack during his competency evaluation, (3)
the prosecutor, defense counsel, and the judge in Murillo’s case all received a copy of
the report, (4) the prosecutor in Zapata’s case had access to the report because he was
the same prosecutor in Murillo’s case, and (5) since the same judge presided over both
12
cases, the judge in Zapata’s case, too, had access to the report. The majority’s decision
today ratifies this denial of access due to its mistaken interpretation of subsections
13-90-107(1)(d) and (1)(g).
2. Statutory Waiver
Because I do not believe the physician-patient and psychologist-client privileges
apply to competency evaluation reports, I would not reach the statutory waiver issue. I
address the question here, though, to express my disagreement with the majority’s
interpretation of subsection 16-8.5-104(1). Even if, as the majority concludes,
competency evaluation reports are protected by the physician-patient and psychologist-
client privileges, I would find that Zapata was nevertheless entitled to Murillo’s
competency evaluation report based on the waiver provision in subsection
16-8.5-104(1).
Subsection 16-8.5-104(1) states in pertinent part that, where, as here, “a defendant
raises the issue of competency to proceed, . . . any claim by the defendant to
confidentiality or privilege is deemed waived.”7 The legislature did not place a limit on
7 In full, subsection 16-8.5-104(1) provides,
When a defendant raises the issue of competency to proceed, or when the
court determines that the defendant is incompetent to proceed and orders
that the defendant undergo restoration treatment, any claim by the
defendant to confidentiality or privilege is deemed waived, and the
district attorney, the defense attorney, and the court are granted access,
without written consent of the defendant or further order of the court, to:
(a) Reports of competency evaluations, including second evaluations;
13
this waiver. Instead, it stated that any claim of confidentiality or privilege by the
defendant is deemed waived.
The majority infuses a limitation into the statute: a defendant’s physician-patient
and psychologist-client privileges are waived “only as to the parties and the court in
that defendant’s case.” Maj. op. ¶ 41. It does so based largely on what follows the waiver
language in subsection (1)—“and the district attorney, the defense attorney, and the
court are granted access, without written consent of the defendant or further order of
the court, to” certain reports, documents, information, and the evaluator.
§ 16-8.5-104(1). Additionally, the majority relies on the fact that four of the remaining
five subsections in the statute address disclosures to the same three recipients—the
court, the prosecutor, and defense counsel in the defendant’s case. Maj. op. ¶ 42.
In my view, the majority makes too much of the references in the statute to the
court, the prosecutor, and defense counsel in the criminal case. Of course the legislature
referred to the court, the prosecutor, and defense counsel in the criminal case; that is not
at all surprising. After all, having declared there is an automatic waiver, the legislature
set forth the records, documents, and information that must be made available to the
(b) Information and documents relating to the competency evaluation that
are created by, obtained by, reviewed by, or relied on by an evaluator
performing a court-ordered evaluation; and
(c) The evaluator, for the purpose of discussing the competency
evaluation.
Thus, this subsection does not reference the physician-patient or psychologist-client
privilege, and does not address the waiver of either privilege; rather, it forecloses “any
claim by the defendant” that the court-ordered competency evaluation is confidential or
privileged.
14
court and the parties in the case. There was no reason for the legislature to foresee—
and there is no basis to believe that it foresaw or even thought about—the rare scenario
that developed in this case involving a defendant who undergoes a court-ordered
competency evaluation and then testifies on behalf of the prosecution against his
codefendant in the codefendant’s trial. But the omission of a provision addressing such
an unusual case doesn’t mean that the legislature intended to limit the waiver as the
majority concludes.
Unlike the majority, I do not interpret the language used by the legislature as a
deliberate limitation on the scope of the waiver. The legislature certainly did not say in
the part of subsection (1) on which the majority relies that only the prosecutor, defense
counsel, and the court in the case in which the competency evaluation is completed may be
granted access to the listed reports, documents, and information. Nor did the
legislature state in the remaining subsections of the statute that only the prosecutor,
defense counsel, and the court in the case in which the competency evaluation is completed
are entitled to the additional disclosures identified. Had the legislature meant to limit
the scope of section 16-8.5-104 consistent with the majority’s position, it could have
easily done so by simply stating such a limitation.8
8 Notably, section 16-8-103.6, C.R.S. (2018), the waiver provision governing insanity
cases, contains the type of limiting language the majority injects into subsection
16-8.5-104(1). That section provides that a defendant who places his mental condition at
issue, by either pleading not guilty by reason of insanity or disclosing witnesses who
may testify regarding his mental condition during a capital sentencing hearing, “waives
any claim of confidentiality or privilege as to communications made by the defendant to
15
In short, because the legislature did not include any language limiting the scope
of the waiver in subsection 16-8.5-104(1), I conclude that the waiver is not limited.
Consequently, even if the physician-patient and psychologist-client privileges apply to
protect Murillo’s competency evaluation report, I would find that Murillo waived any
claim of privilege or confidentiality as to the report.9
a physician or psychologist in the course of an examination or treatment for such
mental condition for the purpose of any trial, hearing on the issue of such mental
condition, or [capital] sentencing hearing.” § 16-8-103.6. Subsection 13-90-107(3) then
confirms that the physician-patient and psychologist-client privileges “shall not apply
to physicians or psychologists eligible to testify concerning a criminal defendant’s
mental condition pursuant to section 16-8-103.6.”
9 Unfortunately, section 16-8.5-104 is not a paragon of clarity. (This is in no way
intended as a criticism of our fellow branch of government; my goal is simply to draw
attention to some statutory ambiguities.) In addition to the issues already discussed, I
note that the waiver in subsection 16-8.5-104(1) purportedly applies only in two
scenarios: when restoration services are ordered and when the defendant raises the
question of competency. Yet, there are instances in which the court or the prosecution
raises the issue of competency, but the defense agrees that a competency evaluation is
appropriate. Further, the court, the prosecution, and defense counsel are entitled to
receive a copy of all competency evaluation reports, regardless of who raised the issue
of competency. § 16-8.5-105(4). If the waiver applies in situations not currently
mentioned in the statute, it is unclear when it is triggered. For example, if the
defendant requests and pays for an evaluation by an evaluator of his choosing (a second
evaluation), does the waiver apply when the evaluation is requested, or only if the
evaluation is completed and a report is submitted to the clerk of the court pursuant to
subsection 16-8.5-105(4)?
16
B. Res Gestae Evidence
I agree with the majority’s conclusion regarding the evidence introduced by the
trial court under the res gestae doctrine.10 Maj. op. ¶ 5. However, the concurring
opinion warrants a few observations.
First, the concurrence speculates that it is doubtful the trial court would have
allowed under CRE 404(b) any evidence improperly admitted pursuant to the res gestae
doctrine. See Conc. op. ¶ 6 (Had the trial court analyzed this evidence pursuant to the
requirements of Rule 404(b), “I doubt” it “would have permitted the prosecution to use
the evidence as it did.”). In fact, the concurrence appears to surmise that all of the
improperly admitted res gestae evidence was inadmissible under any other theory of
relevance. Id. at ¶ 4.
10In Colorado, res gestae is simply “a theory of relevance which recognizes that certain
evidence is relevant because of its unique relationship to the charged crime.” People v.
Greenlee, 200 P.3d 363, 368 (Colo. 2009). The theory “is based on the idea that ‘[c]riminal
occurrences do not always take place on a sterile stage,’” and that where the events
leading up to the crimes charged help explain the setting in which the crimes took
place, “‘no error is committed by permitting the jury to view the criminal episode in the
context in which it happened.’” People v. Galang, 2016 COA 68, ¶ 15, 382 P.3d 1241, 1245
(quoting People v. Lobato, 530 P.2d 493, 496 (Colo. 1975)); see also People v. Quintana, 882
P.2d 1366, 1373 (Colo. 1994) (Res gestae seeks “to provide the fact-finder with a full and
complete understanding of the events surrounding the crime and the context in which
the charged crime occurred.”). Res gestae evidence is subject to the requirements of
CRE 401 and CRE 403. People v. Relaford, 2016 COA 99, ¶ 61, 409 P.3d 490, 500 (“Res
gestae evidence is admissible so long as it is relevant and its probative value is not
substantially outweighed by the danger of unfair prejudice.”). Thus, contrary to the
concurrence’s assertion, res gestae is not a “nearly standardless concept.” Conc. op. ¶ 7.
17
Second, I take a moment to note that, as was the case with Mark Twain, the
concurrence’s report about the demise of the res gestae doctrine is greatly exaggerated.
While the term “res gestae” may be losing favor, courts continue to allow res gestae
evidence under a different name: “inextricably intertwined” evidence. See Edward J.
Imwinkelried, The Second Coming of Res Gestae, 59 Catholic U. L. Rev. 719, 722–24 (2010);
Christopher B. Mueller & Laird C. Kirkpatrick, 1 Fed. Ev. § 433 (4th ed., 2018) (“The
modern de-Latinized expression uses the phrase ‘inextricably intertwined’” instead of
the “mind-numbing and elastic term ‘res gestae[.]’”). And “the number of cases
invoking the [inextricably intertwined] doctrine grows largely unabated” even
“[d]espite [a] constant drumbeat of substantive criticism.” Imwinkelried, supra, at 724.
Finally, the concurrence expresses “serious reservations about the continued
appropriateness of the res gestae doctrine,” see Conc. op. ¶ 1, and conveys skepticism
regarding the doctrine’s current usefulness, see id. at ¶¶ 7–9. These issues were not
briefed or even raised by the parties. And, as mentioned, the majority does not resolve
whether the trial court erred in admitting evidence pursuant to the res gestae doctrine.
Maj. op. ¶ 5. Under these circumstances, the criticism levied against the res gestae
doctrine seems premature. As the concurrence aptly acknowledges, this case is not a
suitable conduit to consider whether we should continue to apply the res gestae
doctrine. Conc. op. ¶ 7. Respectfully, because neither the wisdom of the doctrine’s
continued use nor the doctrine’s present-day utility are issues before us, I believe that
the most prudent course of action is to abstain from commenting on them at this time.
18
III. Conclusion
For the reasons articulated in this dissent, I respectfully disagree with the
majority’s holding regarding the physician-patient and psychologist-client privileges
and the waiver in section 16-8.5-104. I would remand the case to the trial court with
instructions to make Murillo’s competency evaluation report available to Zapata and to
then afford Zapata an opportunity to demonstrate that there is a reasonable probability
that, had the report been disclosed to him before trial, the result of the proceeding
would have been different. See Zoll v. People, 2018 CO 70, ¶ 12, 425 P.3d 1120, 1125.
I am authorized to state that CHIEF JUSTICE COATS joins in this dissent.
19