2
Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 20CA1717.
Attorneys for Petitioner: Philip J. Weiser, Attorney General
Frank R. Lawson, Senior Assistant Attorney General Denver,
Colorado.
Attorneys for Respondent: Megan A. Ring, Public Defender
Andrew C. Heher, Deputy Public Defender Denver, Colorado.
3
JUSTICE HOOD delivered the Opinion of the Court, in which
JUSTICE GABRIEL, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER
joined. CHIEF JUSTICE MARQUEZ, joined by JUSTICE BOATRIGHT
and JUSTICE BLANCO dissented.
4
OPINION
HOOD,
JUSTICE.
¶1
Maria Laida Day hit her boyfriend with her car, causing his
death. She claimed it was nothing more than a tragic
accident. The prosecution disagreed. Based in part on her
behavior immediately after the incident, they charged Day
with second degree murder and other offenses. Day's
mental condition at the time of the killing thus became a
crucial issue at trial.
¶2
Although Day never alleged that she was not guilty by reason
of insanity ("NGRI"), she still sought to introduce
expert testimony that alluded to her previously diagnosed
mental illness. More specifically, she hoped to show in part
that her failure to take certain prescribed anti-psychotic
medication in the days leading up to the killing could have
affected whether she had acted knowingly, the requisite
culpable mental state for second degree murder.
¶3
Section 16-8-107(3)(b), C.R.S. (2025), allows a defendant to
offer such evidence, even in the absence of a NGRI plea, but
only if she first notifies the prosecution and submits to a
state-sponsored, mental-condition examination. Day provided
notice under section 16-8-107(3)(b), but a mental-condition
examination never occurred.
¶4
The trial court cited Day's lack of cooperation with the
evaluator as the reason no examination occurred, but Day was
incompetent to proceed at the time she failed to cooperate.
Even so, the trial court refused to permit Day's
psychiatric
5
expert to testify at trial about her mental condition at the
time of the offense. A jury convicted Day as charged.
¶5
A division of the court of appeals reversed and remanded the
case for a new trial on all counts for which culpability was
at issue. People v. Day, 2023 COA 115, ¶ 1, 544
P.3d 1242, 1244-45.
¶6
We now affirm the judgment of the court of appeals, albeit on
slightly different grounds. We hold that a defendant must be
competent before undergoing a mental-condition examination
under section 16-8-107(3)(b).
I.
Facts and Procedural History
¶7
In July 2015, Day hit her boyfriend with her car, as she
pulled away after dropping him off in front of a business in
Leadville. Evidence suggested he hit his head on a concrete
barrier during the collision. She drove off. He later died at
a hospital from the resulting injuries. When police officers
contacted Day after she turned herself in, they reported that
she appeared calm, nonchalant, and possibly under the
influence of drugs or alcohol. The prosecution charged Day
with second degree murder, leaving the scene of an accident,
vehicular homicide, and two crime-of-violence sentence
enhancers.
¶8
Day decided to forgo a plea of NGRI, but she filed a notice
of intent to introduce expert testimony of her mental
condition on the day of the incident pursuant to section
16-8-107(3)(b). In November 2015, Dr. Karen Fukutaki
6
conducted a sanity evaluation of Day at the Summit County
jail. In her report, Dr. Fukutaki said that "Day's
denial that she has ever experienced psychotic symptoms is in
marked contrast to the overt psychotic symptoms she
reportedly has exhibited in jail and at [the Colorado Mental
Health Hospital in Pueblo ('CMHHIP')]," and
"raises significant questions as to whether her account
of her mental state on the day of the accident is
accurate," in part because Day seemingly has "no
insight into her mental illness or the reason she has been
prescribed [medication]." Dr. Fukutaki opined that
Day's failure to take her prescribed antipsychotic
medication during the two days before the incident may have
caused some thought disorganization that impaired her
judgment and problem-solving abilities:
[Day] might have been experiencing some difficulty in her
perception of reality that might have impacted her ability to
recognize the severity of the situation and [the
victim's] need for immediate medical attention. Thought
disorganization, impairment in problem-solving ability, and
anxiety might have accounted for her having left the scene
and having delayed contacting the police. It might also have
accounted for her appearing to be under the influence to the
police.
¶9
After Day filed her notice to introduce expert
mental-condition evidence, the court ordered an inpatient
examination with CMHHIP. Attempts to complete a
mental-condition examination spanned several years. The
following timeline reflects key events along the way.
7
• January 2016: Defense counsel filed a notice of intent
to introduce expert testimony of Day's mental condition
on the day of the incident pursuant to section
16-8-107(2)(b).[1]
• February 2016: The court ordered Day to undergo a
mental-condition examination. CMHHIP was ordered to complete
its report by April 29, 2016.
• May 2016: CMHHIP notified the court that, due to
resource constraints, Day hadn't been evaluated, and it
requested an extension of time to complete the examination.
• July 2016: CMHHIP once again requested an extension of
time to complete the evaluation.
• September 2016: CMHHIP informed the court that it
wasn't equipped to videotape the mental-condition
examination. The court rescinded a prior order that the
mental-condition examination be recorded.
• October 2016: Day was admitted to CMHHIP to be
evaluated. CMHHIP terminated the examination process because
it didn't have videorecording capabilities. Additionally,
the examiner believed that the prosecution had failed to
provide him with all the discovery materials he needed. (In a
subsequent motion, the prosecution asserted that they had
provided CMHHIP with all the materials the prosecution then
had.) The examiner felt he couldn't proceed until he
reviewed additional information. The court again issued an
order directing CMHHIP to evaluate Day without video
recording the examination.
• December 21, 2016: CMHHIP reported that Day twice
refused to complete the examination. Day refused because she
was under the impression that the CMHHIP evaluator was
conducting a NGRI evaluation and she wasn't pleading
NGRI. Defense counsel contacted
8
CMHHIP to alleviate confusion between Day and CMHHIP
regarding the purpose of the examination.
• December 28, 2016: The prosecution moved to preclude
Day's assertion of a "[m]ental [d]efect
[d]efense" because Day hadn't cooperated with CMHHIP
to complete the mental-condition examination.
• February 9, 2017: Before the court ruled on the
prosecution's motion to exclude mental-condition
evidence, CMHHIP re-attempted to evaluate Day. The examiner
asked Day, "What plea do you intend to enter?" She
replied, "Not guilty." When the examiner explained
the elements of a not guilty plea and that Day was there for
a mental-condition examination for a NGRI plea, Day exclaimed
that she wasn't there for that. The examiner reported
that he "terminated the examination due to ethical
concerns" and stated his only experience with
mental-condition examinations involved NGRI pleas.
• February 10, 2017: Defense counsel asked the court to
issue an order clarifying that the examination was for
introducing mental-condition evidence not an insanity
defense. Day asserted that CMHHIP's misunderstanding of
the court-ordered examination contributed to her confusion
and alleged uncooperativeness.
• February 24, 2017: The court ordered an evaluation
pursuant to section 16-8-107(2)(b), a subsection that
doesn't exist but which defense counsel had mistakenly
cited in the notice; presumably, the court meant to invoke
section 16-8-107(3)(b).
• March 2017: The court vacated the February 24 order
and issued a new order for an evaluation pursuant to section
16-8-107(3)(b). The court also ordered a competency
evaluation as authorized by section 16-8.5-105, C.R.S.
(2025).
• April 2017: Despite the pending court orders, Day was
transferred back to the county jail without completing the
evaluations.
• July 2017: Defense counsel moved for a competency
evaluation because Day seemed to be decompensating in jail
while awaiting evaluation at CMHHIP.
9
• August 2017: The court again ordered CMHHIP to obtain
custody of Day and complete a competency evaluation.
• September 2017: CMHHIP notified the court that Day
hadn't been admitted yet and requested an extension of
time to file its report due to resource constraints.
• November 2017: CMHHIP conducted a competency
evaluation and found Day competent to proceed. CMHHIP
didn't conduct a mentalcondition examination.
• December 2017: The court again ordered CMHHIP to
conduct a mentalcondition examination.
• January 2018: CMHHIP notified the court that it
expected to submit its report on or before April 30, 2018.
• March 2018: Defense counsel again moved to suspend
proceedings due to Day's incompetence, arguing Day's
mental health had worsened while in jail.
• April 2018: The court again ordered CMHHIP to conduct
both a competency and a mental-condition evaluation. This was
at least the fourth order for a mental-condition examination.
• June 2018: CMHHIP conducted a competency evaluation of
Day and found she met the criteria for a form of
schizophrenia and was incompetent to proceed to trial. The
examiner observed Day seeming to respond to internal stimuli
and noted that Day questioned the validity of the court
order. The evaluator also indicated that he couldn't
complete the mental-condition examination because Day
wasn't cooperative. The court issued an order finding Day
incompetent to proceed, and the prosecution and defense
counsel agreed that Day should be committed to CMHHIP for
inpatient restoration-to-competency treatment.
• August 2018: CMHHIP admitted Day for restoration
treatment. • October 2018 and December 2018: CMHHIP
re-evaluated Day and found her incompetent to proceed.
10
• March 2019: CMHHIP re-evaluated Day and found her
competent to proceed. CMHHIP didn't conduct a
mental-condition examination.
• May 2019: At defense counsel's request, and as
permitted by section 16-8.5-103(3), C.R.S. (2025), a
third-party psychologist conducted another competency
evaluation. The psychologist confirmed that Day was competent
to proceed. The court agreed that Day had been restored to
competency and set the trial for August 2019.
¶10
In the four-year period between defense counsel's notice
of intent to introduce expert mental-condition evidence and
the trial date, no mentalcondition examination was ever
completed.
¶11
The parties prepared for the August trial, and Day expected
Dr. Fukutaki to testify. During voir dire, however, the court
declared a mistrial because it couldn't seat an impartial
jury. The court reset the trial for January 2020 in a
different county.
¶12
Leading up to the second trial, the prosecution again moved
to exclude Dr. Fukutaki's mental-condition testimony
under section 16-8-107(3)(a)—which prohibits admission
of "evidence relevant to the issue of insanity"
unless the defendant pleads NGRI—and CRE 403. The
prosecution argued that allowing Day to present
mental-condition evidence without pleading NGRI would allow
her to bypass procedural requirements and consequences, such
as submitting to a sanity examination, facing a trial on the
issue of sanity, and being committed to a state facility
until eligible for release if the jury finds her NGRI.
11
¶13
At a hearing on the motion in November 2019, the trial court
found that the defense had complied with the statutory
requirements of section 16-8-107(3)(b) and asked defense
counsel to provide an offer of proof and a proposed limiting
instruction so the court could make findings pursuant to the
rules of evidence. Defense counsel did so, explaining that
she expected Dr. Fukutaki to testify to Day's mental
illness—a psychotic thought disorder—and that Day
had reported not taking her prescribed anti-psychotic
medication for the two days before the incident. Counsel
explained that Dr. Fukutaki would also testify generally
"about psychotic thought disorders, and their impact on
an individual's capacity for complex thought organization
and problem-solving cognitive functions," which was
being offered "to explain Ms. Day's post-event
conduct." Defense counsel's proposed limiting
instruction explained that the evidence pertaining to
Day's mental illness was being offered to explain the
role that illness played in her postevent conduct, actions on
scene, and at the hospital. The jury instruction stated that
the affirmative defense of insanity hadn't been asserted
and that the defense in this case was a factual defense. The
evidence was therefore being offered, not to show that Day
was incapable of forming the culpable mental state of
knowingly, but to show that Day "was not in fact aware
that her conduct was practically certain to cause the
resulting death of [the victim]."
12
¶14
The trial court granted the prosecution's motion to
exclude Dr. Fukutaki's testimony. The court noted that,
to introduce evidence of a defendant's mental condition,
the defendant must have undergone a court-ordered examination
pursuant to section 16-8-107(3)(b), but no such examination
had occurred here because of Day's noncooperation:
"Accordingly, on this basis alone the Court can deny the
introduction of the defendant's mental condition."
¶15
Beyond this statutory concern, the trial court cited several
evidentiary bases for excluding the proffered
mental-condition evidence. First, the proposed testimony was
based upon Day's self-report regarding her medication.
Second, Dr. Fukutaki's assessment was too speculative, as
indicated by her statements that Day "might not
have appeared overtly psychotic . . . but could have
been experiencing some thought disorganization" and
"might have been experiencing some difficulty
in her perception." People v. Day, No. 15CR26,
at 4 (Dist. Ct., Lake Cnty., Dec. 18, 2019) ("December
2019 Order") (unpublished order) (omission in original)
(emphases added) (quoting Day's Offer of Proof Regarding
C.R.S. 16-8-107(3)(B) Evidence, November 25, 2019). Third,
Dr. Fukutaki's assessment, and therefore her proposed
testimony, conveyed issues related to Day's sanity at the
time of the offense. Fourth, even if Dr. Fukutaki's
testimony appropriately sought to explain only Day's
post-event conduct, the risk was too great that a jury would
conflate evidence of Day's mental condition just after
the alleged offense
13
with Day's mental condition during the alleged offense.
The court also emphasized that Day was introducing
mental-condition evidence related to a mental illness and
most cases regarding mental-condition evidence involved an
intellectual disability, not a mental illness. So, the court
found that the proffered testimony was "an attempt [to]
present an insanity defense without entering a not guilty
plea by reason of insanity." Id.
¶16
The case proceeded to trial on January 27, 2020, and the jury
found Day guilty as charged. The court sentenced Day to
thirty-five years in the custody of the Department of
Corrections.
¶17
Day appealed her conviction, challenging the trial
court's refusal to admit her expert mental-condition
evidence. A division of the court of appeals concluded that
the trial court had abused its discretion in two ways by
excluding Day's proffered expert mental-condition
evidence. Day, ¶ 24, 544 P.3d at 1248. First,
the division concluded the trial court had erred as a matter
of law by "fault[ing] Day for failing to
'cooperate' with a mental condition examination
conducted while she was incompetent." Id.
¶18
Second, the division concluded that the trial court had
misapplied People v. Moore, 2021 CO 26, 485 P.3d
1088, "by failing to parse the proffered evidence to
'distinguish what is probative of insanity under this
exacting definition from what is not.'"
Day, ¶ 26, 544 P.3d at 1248 (quoting
Moore, ¶ 5, 485 P.3d at 1093). The
14
division ultimately concluded "that the only piece of
testimony that was probative of insanity, and thus
inadmissible, was the testimony regarding Day's ability
to perceive reality or the severity of the situation.
Everything else fell short of being probative of insanity and
was thus admissible." Id. at ¶ 35, 544
P.3d at 1250. In reaching this conclusion, the division also
rejected the prosecution's argument that the evidence was
inadmissible under CRE 403, explaining that the admissibility
of mental-condition evidence is measured by its
"relatedness to insanity, not its proposed
purpose." Id. at ¶ 36, 544 P.3d at 1250.
However, the division didn't determine whether the
evidence was inadmissible under CRE 403 because it reasoned
that "any prejudice resulting from the lack of a CMHHIP
evaluation can be remedied on remand by the trial court's
reordering of the proper examination before the testimony is
presented on retrial." Id. Finally, the
division noted that there are several cases that apply
mental-condition evidence more broadly than just situations
involving intellectual disabilities. Id. at ¶
29, 544 P.3d at 1249. The division reversed and remanded the
case for a new trial on all counts for which Day's
culpability was at issue. Id. at ¶ 41, 544 P.3d
at 1251.
¶19
The prosecution petitioned for certiorari, and we granted
their petition.[2]
15
II.
Analysis
¶20
We begin by identifying the controlling standards of review
and relevant principles of statutory interpretation. Next, we
discuss the statutory requirements for admitting expert
testimony about a defendant's mental condition and
differentiate mental condition at the time of an alleged
offense from competency to stand trial. Then, we apply the
facts of this case and examine how competency and
noncooperation affected Day's ability to introduce expert
mental-condition testimony. Finally, we discuss the
evidentiary basis for admitting mentalcondition evidence
under Moore and CRE 403.
A.
Standard of Review
¶21
We review a trial court's evidentiary ruling for an abuse
of discretion. Moore, ¶ 26, 485 P.3d at 1095.
"A trial court abuses its discretion when its decision
is 'manifestly arbitrary, unreasonable, or unfair,'
or based on a misapplication of the law." People v.
West, 2025 CO 61, ¶ 13, 578 P.3d 832, 835 (quoting
People v. Kent, 2020 CO 85, ¶ 28, 476 P.3d 762,
768).
¶22
Here, because Day preserved the alleged error and because the
trial court's exclusion of the evidence implicates
Day's ability to present a complete defense,
16
we will reverse unless the error was harmless beyond a
reasonable doubt. Hagos v. People, 2012 CO 63,
¶ 11, 288 P.3d 116, 119; People v. Johnson,
2021 CO 35, ¶ 17, 486 P.3d 1154, 1158 (stating that
interference with a defendant's ability to present a
complete defense is a constitutional error that requires
reversal if there is a reasonable possibility that the error
might have contributed to the conviction).
¶23
Determining whether the trial court erred requires us to
interpret the relevant statutes, and we review issues of
statutory interpretation de novo. Moore, ¶ 25,
485 P.3d at 1095. When interpreting statutes, our primary
task is to ascertain and give effect to the legislature's
intent. People v. Griego, 2018 CO 5, ¶ 25, 409
P.3d 338, 342. We begin with the statute's plain
language, giving words and phrases their common and ordinary
meanings. Id. If the statutory language is
unambiguous, we apply it as written. Id.
B.
Mental Condition and Competency
¶24
Generally, defendants are prohibited from introducing
evidence of insanity unless they enter a NGRI plea. §
16-8-107(3)(a). But, regardless of whether the defendant
pleads NGRI, "evidence in the nature of expert opinion
concerning the defendant's mental condition" may be
admissible as long as it's not probative of insanity and
certain conditions are met: the defendant must first give
notice to the court and the prosecution of her intent to
introduce the evidence, and the defendant must undergo a
court-ordered examination pursuant to section
17
16-8-106, C.R.S. (2025). § 16-8-107(3)(b). A
defendant's proposed mental-condition evidence tends to
be probative of insanity if it implicates the definition of
mental disease or defect. Moore, ¶ 44, 485 P.3d
at 1098. Mental diseases or defects are defined as
"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." § 16-8-102(7), C.R.S. (2025).
¶25
Defendants are required to cooperate with personnel during
court-ordered examinations. § 16-8-106(2)(c). If a
defendant doesn't cooperate, she may not introduce expert
testimony regarding her mental condition at trial.
Id. A defendant may still, however, introduce other
mental-condition evidence, but the fact of her noncooperation
during the examination may be admissible to rebut any such
evidence. Id.
¶26
Cooperation isn't defined by statute. The word
"cooperate" generally means "to act or work
with another" or to "act together or in
compliance." Cooperate, Merriam-Webster
Dictionary, https://www.merriam-webster.com/
dictionary/cooperate [https://perma.cc/86F9-VFYG]. Applying
this ordinary meaning, we conclude that "cooperate"
in section 16-8-106(2)(c) means that the defendant must work
with the evaluator and comply with the court order to
complete the examination.
18
¶27
The hiccup in this case is that, at the time Day was
evaluated and deemed uncooperative, she was incompetent. For
that reason, we must determine if the court may even order a
mental-condition examination of an incompetent defendant, let
alone fault her for noncooperation if it does.
¶28
A defendant is incompetent to proceed if, as a result of a
mental or developmental disability, the defendant lacks
"sufficient present ability to consult with the
defendant's lawyer with a reasonable degree of rational
understanding in order to assist in the defense, or . . .
[if] the defendant does not have a rational and factual
understanding of the criminal proceedings." §
16-8.5-101(12), C.R.S. (2025). When the issue of competency
is raised, if the court has insufficient information to make
a preliminary finding or if a party objects to the
court's preliminary finding, the court must order the
Department of Human Services to evaluate the defendant and
prepare a report. § 16-8.5-103(2). The statute requires
the defendant to cooperate with the competency evaluator and,
if she doesn't, the statute explains that the
defendant's noncooperation may be used as evidence
against her at a competency or restoration hearing to
"rebut any evidence introduced by the defendant with
regard to the defendant's competency." §
16-8.5-105(2). However, if the lack of cooperation is the
result of a developmental or mental disability, then the fact
of noncooperation can't be introduced at those hearings.
Id.
19
¶29
If there is reason to believe that a defendant is incompetent
to proceed, the trial court must suspend the proceedings
until the competency of the defendant has been determined.
People v. Zapotocky, 869 P.2d 1234, 1237 (Colo.
1994). The prohibition against prosecuting an incompetent
defendant "attaches at the commencement of formal
criminal proceedings and continues throughout the execution
and satisfaction of the sentence." Jones v. Dist.
Ct., 617 P.2d 803, 807 (Colo. 1980). So, while a
defendant is incompetent, a court may only proceed with
matters that are "susceptible of fair determination
prior to trial and without the personal participation of the
defendant." § 16-8.5-102(1), C.R.S. (2025).
¶30
Here, the trial court's order excluding the proffered
expert mental-condition testimony implicitly determined that
Day's competency was irrelevant to her noncooperation.
The division disagreed, concluding that Day couldn't be
faulted for her noncooperation while she was incompetent.
Day, ¶¶ 24-25, 544 P.3d at 1248.
¶31
We resolve that disagreement now.
C.
Application1. Competency Examination
¶32
The trial court, in its order granting the prosecution's
motion to exclude expert mental-condition evidence, noted
that Day didn't cooperate with the CMHHIP examiner. The
court referred to the June 2018 report, in which CMHHIP
20
found Day incompetent and reported that the state hospital
couldn't complete the mental-condition examination
because Day was not cooperative.
¶33
On appeal, the division concluded that the trial court had
erred by faulting Day for failing to cooperate during the
June evaluation. Id. at ¶ 25, 544 P.3d at 1248.
The division reached this conclusion based on section
16-8.5-105(2), which prohibits the use of a defendant's
noncooperation in competency evaluations at subsequent
hearings if the noncooperation was the result of "a
mental disability." Because Day's noncooperation was
during a competency evaluation and she has a previously
diagnosed mental illness, the division concluded that the
trial court shouldn't have faulted her for her
noncooperation when determining the admissibility of the
expert mental-condition testimony. Day, ¶ 25,
544 P.3d at 1248.
¶34
Although we agree with the division that Day shouldn't be
faulted for noncooperation while incompetent, we do so for
different reasons. Section 16-8.5-105(2) applies only to the
admissibility of a defendant's noncooperation at
subsequent competency and restoration hearings, not all
subsequent hearings in a defendant's case. Therefore,
section 16-8.5-105(2) simply doesn't govern whether
Day's noncooperation during a competency evaluation may
be considered by the trial court when determining the
admissibility of expert mental-condition testimony at trial.
21
¶35
Still, as discussed above, one aspect of incompetence is a
defendant's inability to rationally understand the
proceedings or assist in her defense because of a mental
disability. § 16-8.5-101(12). For this reason, when a
defendant is deemed incompetent, the court shouldn't
proceed with matters that require the defendant's
personal participation for a fair determination of the issue.
§ 16-8.5-102(1). A mental-condition examination requires
a defendant's personal participation. And if a defendant
can't meaningfully participate in her defense, she likely
can't meaningfully participate in such an examination
either. An incompetent defendant who is struggling to
understand the purpose of the mental-condition examination
can't be expected to fulfill the purpose of the
examination. Because cooperating with a mental-condition
examination is a key step in a defendant's ability to
present expert mental-condition evidence as part of her
defense, the examination shouldn't proceed until the
defendant is competent to proceed. See Zapotocky,
869 P.2d at 1237.
¶36
Here, after CMHHIP exhibited confusion about the type of
examination that had been ordered, the court entered its
March 2017 order, which reiterated that CMHHIP should conduct
a mental-condition examination, not a sanity examination.
After that clarification, CMHHIP only attempted to conduct a
mental-condition examination at times when Day was deemed
incompetent. But she couldn't reasonably participate in a
mental-condition examination during that
22
time, so her lack of cooperation in any such examination
shouldn't be used against her to exclude expert
mental-condition evidence. Her incompetence rendered any
mental-condition examination, and her cooperation (or lack
thereof) with such an examination, a nullity.
¶37
Day requested, and the court ordered, a mental-condition
examination multiple times before trial, but CMHHIP failed to
conduct the examination while Day was competent. When the
prosecution moved to exclude Dr. Fukutaki's
mental-condition testimony, the court's April 2018 order
for a mental-condition examination remained in place. Day
relied on CMHHIP to follow the order and complete the
examination. Before the trial court excluded Day's expert
mentalcondition evidence, it should have enforced its order
by directing CMHHIP to examine Day while she was competent.
(At this juncture, the court hardly needed any reminders
about defense counsel's continuing desire for the
examination. The issue had been front and center literally
for years, and the court recognized the need for the
examination in its written ruling.) Instead, the trial court
granted the prosecution's motion in limine. It did so, at
least in part, because of the defendant's lack of
cooperation in completing the mental-condition examination in
June 2018 (while incompetent), stating that "on that
basis alone" it could exclude all mental-condition
evidence. December 2019 Order, at 2. We agree with the
division that, in doing so, the trial court abused its
discretion.
23
2.
Admissibility of Mental-Condition Evidence Under
Moore and CRE 403
¶38
While Day's case was on appeal, we announced our decision
in Moore, which provided guidance on how to evaluate
the admissibility of mentalcondition evidence without a NGRI
plea. In Moore, we concluded that "the trial
court should determine whether the proposed testimony, in
whole or in part, is probative of what the
legislature has defined as insanity," and if it's
probative of insanity, it's inadmissible. ¶ 44, 485
P.3d at 1098.
¶39
Applying this framework, the division concluded that only one
part of the proffered expert mental-condition
testimony—that Day's mental condition could've
prevented her from accurately perceiving reality or
recognizing the severity of the situation—was probative
of insanity and thus inadmissible under section
16-8-107(3)(b). Day, ¶¶ 25, 34, 544 P.3d
at 1248, 1250. The division concluded that the remaining
proffered evidence—Day's mental condition, the
medication she was prescribed but not taking, and that she
might have been experiencing some thought
disorganization—wasn't "suggestive of the type
of mental disease or defect contemplated in the insanity
statute." Id. at ¶ 33, 544 P.3d at 1250.
¶40
We agree with the division that the trial court's ruling
swept too broadly when it rejected all of Dr. Fukutaki's
testimony because, in doing so, the trial court failed
"to distinguish what is probative of insanity under [the
statute's] exacting
24
definition from what is not." Moore, ¶ 5,
485 P.3d at 1093; see also People v. Ray, 2025 CO
42M, ¶ 28, 575 P.3d 400, 419 ("While we can't
fault the trial court for failing to foresee this
development, 'we generally apply the law in effect at the
time of appeal.'" (quoting People v. Owens,
2024 CO 10, ¶ 112, 544 P.3d 1202, 1228)).
¶41
The division also said it was unpersuaded by the
prosecution's CRE 403 argument that the probative value
of Day's expert mental-condition evidence was
substantially outweighed by the risk of unfair prejudice.
Day, ¶ 36, 544 P.3d at 1250. The division
observed that it was "bound by Moore's
guidance, which measures admissibility of mental condition
evidence by its relatedness to insanity, not its proposed
purpose." Id. But this statement seemingly
conflated the statutory analysis with the evidentiary
analysis.
¶42
In Moore, we explained that section
16-8-107(3)(a)'s preclusion of "evidence that is
'relevant to the issue of insanity,'" absent a
NGRI plea, means that a defendant may not introduce
mental-condition evidence "that tends to prove or
disprove the issue of insanity—that is, evidence that
is probative of what is [statutorily] defined as
insanity." Moore, ¶ 33, 485 P.3d at 1096
(quoting § 16-8-107(3)(a)); see also CRE 401
(defining evidentiary relevance). However, "evidence
that doesn't tend to prove insanity may be admitted [to
support other defenses] so long as such evidence otherwise
conforms to the statutory requirements and the rules of
evidence." Moore, ¶ 44, 485 P.3d at 1098;
25
see also id. at ¶ 36, 485 P.3d at 1097
(explaining 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"); People v. Vanrees, 125 P.3d
403, 408 (Colo. 2005) (noting that "there is 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"). Therefore,
to determine whether a defendant's proffered evidence is
probative of insanity or some other defense, courts should
consider "whether testimony regarding a mental condition
meets the definition of insanity"; courts need not
"yield to a defendant's stated purpose in seeking
admission of the evidence." Moore, ¶ 38,
485 P.3d at 1097.
¶43
That's the statutory analysis.
¶44
But for CRE 403 purposes, the court must consider whether the
evidence, which is otherwise admissible (meaning, it has
passed the court's statutory analysis), should
nonetheless be excluded because "its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." In evaluating
whether testimony should be excluded under CRE 403, the trial
court must, therefore, be
26
mindful of the purposes for which the testimony is offered.
People v. Cooper, 2021 CO 69, ¶ 52, 496 P.3d
430, 441. So, for the evidentiary analysis, it matters that
the purpose of some of the mental-condition evidence was to
rebut the prosecution's argument that Day's
post-event behavior proved her culpable mental state. Because
the mental-condition examination may affect the CRE 403
analysis, we refrain from resolving that evidentiary issue
now. Instead, we leave it to the trial court to address the
issue on remand after the examination occurs.
¶45
Moreover, we agree with the division that the exclusion of
this evidence wasn't harmless beyond a reasonable doubt.
The prosecution relied heavily on Day's post-event
demeanor to prove her culpable mental state, and the trial
court's ruling denied Day the opportunity to rebut that
evidence.
¶46
Therefore, we affirm the division's reversal of Day's
conviction as to each count for which her culpability was at
issue, and we remand the case for a new trial consistent with
this opinion.
III.
Conclusion
¶47
We affirm the judgment of the court of appeals, albeit on
slightly different grounds, and we remand the case for
further proceedings consistent with this opinion.
CHIEF
JUSTICE MARQUEZ, joined by JUSTICE BOATRIGHT and JUSTICE
BLANCO, dissented.
27
CHIEF
JUSTICE MARQUEZ, joined by JUSTICE BOATRIGHT and JUSTICE
BLANCO, dissenting.
¶48
I agree with the majority that a court may not fault a
defendant for failing to cooperate with a mental-condition
examination if the defendant is incompetent at the time of
the examination. Maj. op. ¶¶ 34-36. But I disagree
with the majority's conclusion that the trial court
abused its discretion when it granted the People's motion
in limine to exclude Maria Laida Day's mental-condition
evidence.[1] Under section 16-8-107(3)(b), C.R.S.
(2025), "the defendant is not permitted to introduce
evidence . . . concerning the defendant's mental
condition . . . without having undergone a court-ordered
examination pursuant to section 16-8-106[, C.R.S.
(2025)]." Because Day had never undergone the requisite
examination, the trial court was required by statute to
exclude her proffered mental-condition evidence.
¶49
The majority avoids this outcome by inexplicably shifting the
burden of ensuring that the examination takes place from the
proponent of the evidence, the defense, to the trial court.
Maj. op. ¶ 37. Though I acknowledge that the frustrating
series of events in this case are not the fault of any one
party, the
28
ultimate burden of ensuring that proffered evidence meets the
statutory requirements must lie with the proponent of the
evidence, not the trial court. Here, the defense, as the
proponent of this evidence, had the obligation to ensure that
the proffered evidence met the statutory requirements of
section 16-8-107(3)(b) to be introduced at trial. At a
minimum, defense counsel had an obligation to inform the
court that the requisite examination had still not taken
place and to seek enforcement of the court's previous
order. Defense counsel failed to do so. I cannot agree that
the trial court abused its discretion by failing, sua sponte,
to halt the impending trial to enforce an order issued years
earlier. Rather, the trial court properly excluded the
evidence on the grounds that no mental-condition evaluation
had been conducted pursuant to section 16-8-107(3)(b).
People v. Day, No. 15CR26, at 2 (Dist. Ct., Lake
Cnty., Dec. 18, 2019) (unpublished order) ("December
2019 Order"). Because the court's ruling was not
manifestly arbitrary, unreasonable, unfair, or a
misapplication of the law, I respectfully dissent.
I.
Section 16-8-107(3)(b) Required the Trial Court to Exclude
the Evidence
¶50
When interpreting statutes, our goal is to discern and
effectuate the legislature's intent. See Town of
Minturn v. Tucker, 2013 CO 3, ¶ 27, 293 P.3d 581,
590. In doing so, we "must respect the legislature's
choice of language." Oakwood Holdings, LLC v. Mortg.
Invs. Enters. LLC, 2018 CO 12, ¶ 12, 410 P.3d 1249,
1252.
29
Thus, "[i]f the statutory language is clear, we apply it
as written." Dep't of Revenue v.
Agilent Techs., Inc., 2019 CO 41, ¶ 16, 441 P.3d
1012, 1016.
¶51
In this case, the language of section 16-8-107(3)(b) is clear
that the completion of a court-ordered mental-condition
examination is a mandatory prerequisite to the introduction
of expert mental-condition evidence: "[T]he defendant is
not permitted to introduce evidence in the nature of expert
opinion concerning the defendant's mental condition . . .
without having undergone a court-ordered examination pursuant
to section 16-8-106."
¶52
This language establishes a bright-line rule: If the
defendant has not undergone a court-ordered mental-condition
examination, the court may not allow expert mental-condition
testimony. The statute has no exceptions or qualifiers.
¶53
Under section 16-8-106(2)(c), if a defendant fails to
cooperate with personnel conducting an examination, the court
must preclude defense expert testimony on the defendant's
mental condition:
If the defendant does not cooperate with psychiatrists,
forensic psychologists, and other personnel conducting the
examination, the court shall not allow the defendant
to call any psychiatrist, forensic psychologist, or other
expert witness to provide evidence at the defendant's
trial concerning the defendant's mental condition ....
(Emphasis added.)
30
¶54
This language is also clear. As the majority correctly
reasons, however, a defendant who is incompetent (and is thus
unable to understand the proceedings or assist in their
defense) should not be faulted for failing to cooperate with
a mental-condition examination, a process that requires a
defendant's personal participation. See §
16-8.5-101(12), C.R.S. (2025); Maj. op. ¶¶ 28,
35-36. Thus, I agree with the majority that the trial court
erred in holding Day's noncooperation against her because
she was incompetent at the time of the June 2018 examination.
¶55
But the conclusion that the trial court erred by considering
Day's noncooperation under section 16-8-106(2)(c) does
not change the fact that no mental-condition examination took
place as required by section 16-8-107(3)(b). The latter
provision forbids the defense from introducing such evidence
if an examination has not taken place—regardless of the
reason. The trial court correctly observed that no exam had
taken place and that it could deny the introduction of such
evidence "on this basis alone." December 2019
Order, at 2. The majority reasons its way around section
16-8-107(3)(b) by shifting the burden of ensuring that the
defendant's evidence met the statutory requirement to the
trial court. Maj. op. ¶ 37.
¶56
As a fundamental rule, the proponent of evidence bears the
burden of establishing all the requirements for admission of
that evidence. This is true whether those requirements are
statutory, e.g., § 16-8-107(3)(b), or grounded
in the
31
Colorado Rules of Evidence. See People v. Harris, 43
P.3d 221, 226 (Colo. 2002) (clarifying that Colorado's
"rape shield" statute requires the defendant to
show the evidence meets the statute's requirements for
admission); see also People v. Vanderpauye, 2023 CO
42, ¶ 25, 530 P.3d 1214, 1222 (holding that the
proponent of hearsay evidence bears the burden of
establishing a hearsay exception); People v.
Montoya, 753 P.2d 729, 733-34 (Colo. 1988) (holding that
the prosecution bears the burden of establishing the elements
for admission of co-conspirator statements); People v.
Sutherland, 683 P.2d 1192, 1197 (Colo. 1984) (holding
that the proponent of real evidence bears the burden of
establishing a chain of custody for such evidence).
¶57
Yet here, the majority effectively holds that the burden of
ensuring compliance with section 16-8-107(3)(b) rests with
the trial court. Maj. op. ¶ 37. The majority's
reasoning appears to be that (1) the defense met its burden
simply by notifying the court of its intent to introduce the
evidence; and (2) once the trial court issued its order for
the examination to take place, the burden of ensuring the
examination took place before trial fell on the trial court.
Id. Although the trial court certainly had the
authority to enforce its order, I disagree with the
majority's apparent conclusion that the trial court had
an affirmative duty to enforce compliance with its order, sua
sponte, without any notification from the defense.
Id.
32
¶58
The legislature has the power to impose such affirmative
obligations on trial courts and has done so in specific
contexts. For example, section 16-8.5-116(3), C.R.S. (2025),
requires trial courts to conduct periodic reviews of
incompetency determinations. But even there, the burden is
shared between the trial court, which conducts the review,
and the entity evaluating the defendant, which must provide
the court with updated reports to assist the court in its
review. Id. By contrast, the majority's holding
today has no grounding in section 16-8-107(3)(b) (or any
other provision); it simply imposes the burden on the trial
court to enforce, sua sponte, an order issued years earlier,
with no apparent obligation that the defense notify the court
that an examination has not taken place.
¶59
The majority's ruling today ignores the reality that
trial courts rely on notification from the parties to
effectively and proactively enforce their orders. As a
routine example, when a trial court orders the prosecution to
turn over additional evidence under Crim. P. 16, the
trial court does not have an independent duty to ensure the
prosecution turns over the evidence. Rather, the defense (the
party seeking the evidence) has an obligation to notify the
court of the prosecution's failure to comply, and the
trial court then enforces its order. The same should be true
here.
¶60
The majority nevertheless turns this assumption on its head
and holds that the trial court abused its discretion by not
taking additional action, sua sponte, to
33
enforce its order mere weeks before retrial. Maj. op. ¶
37. I cannot agree. The proponent of the evidence should bear
the burden of ensuring that the proffered evidence meets the
statutory requirements. If that compliance requires action by
the court, then the proponent must at least notify the court
that action is required.
¶61
The facts here illustrate why: By the time the trial court
issued the order excluding the evidence, the case had been
pending for three and a half years; Day had undergone
multiple competency evaluations that paused the proceedings;
the trial court judge who originally issued the
mental-condition examination order had been replaced by a new
judge; and the case had been reset for trial following an
earlier mistrial. Cases with lengthy, complex procedural
histories like this one exemplify why trial judges must rely
on the parties to bring issues to the court's attention.
To be clear, I agree with the majority that a court may not
fault a defendant who is incompetent for failing to cooperate
with a mental-condition examination. Here, however, Day had
been deemed competent in March 2019, several months before
trial in January 2020. Nothing prevented defense counsel from
flagging for the trial court during this period that Day had
still not undergone a mental-condition examination as
required by section 16-8-107(3)(b) and requesting enforcement
of the court's previous order for the
examination.[2] As the
34
proponent of this evidence, the defense bore that burden. The
majority's holding otherwise in this case undermines this
careful balance of responsibility between the parties and the
trial court.
II.
Conclusion
¶62
Section 16-8-107(3)(b) plainly bars the defense from
introducing mentalcondition evidence without the defendant
having undergone a court-ordered examination under section
16-8-106. Because Day had not undergone such an examination
before retrial, the trial court properly excluded the
evidence on that basis alone.
¶63
In sum, because I cannot agree with the majority that the
trial court abused its discretion in excluding the evidence
under the circumstances of this case, I respectfully dissent.
---------
Notes:
[1] Counsel mistakenly cited section
16-8-107(2)(b), which doesn't exist, when she presumably
meant to invoke section 16-8-107(3)(b). Counsel later
corrected this mistake in a proposed order in March
2017.
[2] We granted certiorari to review the
following issues:
1. Whether the court of appeals erred by holding that
the trial court abused its discretion in considering
respondent's non-cooperation with the court-ordered
mental condition examination.
2. Whether the court of appeals improperly expanded
People v. Moore, 2021 CO 26, 485 P.3d 1088, to
preclude consideration of the purpose for which mental
condition evidence is offered when evaluating the
admissibility of such evidence under CRE 403.
[1] Since I would affirm the trial
court's decision to exclude Day's mental-condition
evidence because it failed to meet the requirements of
section 16-8-107(3)(b), C.R.S. (2025), I would not reach the
other evidentiary questions related to our decision in
People v. Moore, 2021 CO 26, 485 P.3d 1088, or
Colorado Rule of Evidence 403.
[2] As reflected in the majority's
timeline of events, Day was deemed competent to proceed in
March 2019. Maj. op. ¶ 9. The record reflects no efforts
from the defense to notify the trial court of the incomplete
mental-condition examination during the eight-plus months
leading up to trial.
---------