People v. Gilbert

• Decision Date: 17 September 2020
• Docket Number: Court of Appeals No. 18CA2050
• Citation: 490 P.3d 899
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Palmer GILBERT, Defendant-Appellant.

490 P.3d 899

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Palmer GILBERT, Defendant-Appellant.

Court of Appeals No. 18CA2050

Colorado Court of Appeals, Division VI.

Announced September 17, 2020

Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Springer & Steinberg, P.C., Harvey A. Steinberg, Craig L. Pankratz, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE RICHMAN

¶ 1 Defendant, Palmer Gilbert, appeals a judgment of conviction entered on a jury verdict finding him guilty of several crimes related to the theft or attempted theft of cars. We reverse his convictions and remand this case to the district court for additional findings.

I. Background

¶ 2 In September 2016, Gilbert committed a series of crimes that occurred in rapid succession after a Best Buy employee found him sitting in another employee's car in the store's parking lot. The employee approached the car and spoke with Gilbert, who claimed that the car was his or that he had permission to sit in it. When the employee contradicted him, Gilbert exited the car with a knife and began swinging it. As the employee retreated, Gilbert fled on foot.

¶ 3 He subsequently stole or attempted to steal three different cars by threatening the occupants of those cars with the knife. While fleeing in one of the stolen cars, he caused a collision. He left the scene of the accident, stole a truck, and drove away. Police found him and the stolen truck a week later in Wyoming.

¶ 4 At trial, Gilbert's defense was that several witnesses had misidentified him.

Nonetheless, the jury convicted him of one count of aggravated robbery, § 18-4-302(1)(b), C.R.S. 2019; one count of attempted second degree assault, §§ 18-2-101(1), 18-3-203(1)(b), C.R.S. 2019; two counts of aggravated first degree motor vehicle theft, § 18-4-409(2), (3)(a.5), C.R.S. 2019; one count of second degree criminal trespass, § 18-4-503(1)(c), C.R.S. 2019; one count of careless driving, § 42-4-1402(1), (2)(b), C.R.S. 2019; and one count of leaving the scene of an accident, § 42-4-1601(1), (2)(a), C.R.S. 2019.

¶ 5 He now contends that his convictions should be reversed because the district court erred in denying (1) his request to undergo a mental health examination and present evidence that he was suffering from one or more mental conditions at the time of the incidents; (2) his right to the retained counsel of his choice; and (3) his motion to disqualify the trial judge.

II. Mental Examinations and Evidence

A. Relevant Facts

¶ 6 In November 2016, Gilbert appeared with retained counsel at a bond hearing. After his release on bond in December 2016, he absconded. He was apprehended and appeared for arraignment nearly a year later, on December 7, 2017. At his arraignment, he pleaded not guilty. The court set a motions hearing for February 9, 2018, with trial to follow on April 2, 2018.

¶ 7 The day before the motions hearing, defense counsel filed a document entitled "Notice of Intent to Introduce Mental Condition Evidence" pursuant to section 16-8-107(3)(b), C.R.S. 2019. Section 16-8-107(3)(b) requires a defendant to give notice of his intent to present evidence of his mental condition, regardless of whether he has entered a plea of not guilty by reason of insanity. Notice must be given at his arraignment, or, if not at his arraignment, at any time prior to trial for good cause shown. Id. To present such evidence at trial, a defendant must permit a court-ordered mental health examination. Id.

¶ 8 In his notice, Gilbert asked the district court to order a mental health examination and vacate the scheduled trial date to allow time for it. Defense counsel asserted that although he would not change Gilbert's plea to not guilty by reason of insanity, he "would likely introduce evidence of Mr. Gilbert's impaired mental condition" to show that he did not have the necessary mens rea. Counsel argued that he had shown good cause for the late notice "in light of the defendant's absence from the jurisdiction of the court for a period of time, and undersigned counsel's uncertainty ... as to whether to introduce evidence of the defendant's mental condition, until recently...."

¶ 9 At the motions hearing the next day, counsel stated, "I apologize to the Court, that in my review of the file, getting up to today's date and really going over everything with Mr. Gilbert, I have determined that I must seek at least some sort of evaluation, even on my side, to present my client's mental condition...." He asserted that he would endorse four affirmative defenses: duress, self-defense, mistake of fact, and intoxication. He also stated,

I believe that there might be an underlying mental illness that Mr. Gilbert is suffering from which may have added to his mistake of fact, which may have interacted with the intoxication, which may have interacted with his duress.... [A]s soon as that hit my brain, I thought I have got to immediately notify the district attorney and the Court.... I, in good faith, believe there's some underlying post-traumatic stress disorder

and bi-polar [sic] disorder.

¶ 10 The district court denied Gilbert's requests on two grounds. The court opined that section 16-8-107(3)(b) did not apply because "[a]ll of these crimes are general intent crimes," and a defendant who does not raise an insanity defense may only present evidence of his mental condition if it bears upon his capacity to form specific intent. See § 16-8-103(1)(a), C.R.S. 2019. "And so the issue of the defendant's capacity to form specific intent simply is not material or relevant in this case."

¶ 11 The court also ruled that Gilbert had not shown good cause for filing the motion after his arraignment because "there's no indication of what factual support there may be for this. And the court finds, quite frankly, that this is simply an issue of delay."

B. Standard of Review

¶ 12 A district court has considerable discretion in determining the relevance and admissibility of evidence. People v. Ibarra , 849 P.2d 33, 38 (Colo. 1993). Similarly, whether a defendant has demonstrated good cause for his actions is a question addressed to the court's sound discretion. Garza v. People , 200 Colo. 62, 64, 612 P.2d 85, 86-87 (1980). Absent a clear abuse of discretion by the district court, we will not disturb its rulings on appeal. Id. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair. People v. Salazar , 2012 CO 20, ¶ 13, 272 P.3d 1067.

C. Relevance of the Proposed Evidence

¶ 13 We first address the district court's ruling that the proposed evidence was irrelevant because the charged crimes did not require specific intent. As an initial matter, we note that the district court erred in determining that none of the crimes charged required specific intent. In fact, the People charged Gilbert with second degree assault, a specific intent crime.¹ § 18-3-203(1)(b).

¶ 14 Even so, the relevance of Gilbert's mental condition evidence is not determined by whether the charged crimes require specific intent. To support its ruling to that effect, the district court relied on section 16-8-103(1)(a), which states that a defendant who has not raised an insanity defense "when charged with a crime requiring a specific intent as an element thereof, may introduce evidence of the defendant's mental condition as bearing upon his or her capacity to form the required specific intent." However, according to subsection (1)(b), subsection (1)(a) applies only to offenses committed before July 1, 1995. The criminal conduct charged here occurred in 2016. Therefore, the limitations contained in subsection (1)(a) do not apply.

¶ 15 Moreover, as the People concede, regardless of whether Gilbert pleaded not guilty by reason of insanity, pursuant to section 16-8-107(3)(b) and section 18-1-504(1)(a), C.R.S. 2019, evidence concerning a defendant's mental condition may be admitted to show that he lacked the mental state necessary for conviction, or to support an affirmative defense that negates the existence of a particular mental state.² People v. Wilburn , 2012 CO 21, ¶ 20, 272 P.3d 1078 (noting that "when a defendant's mental condition is not so severe as to be included in the statutory definition of ‘insanity,’ but instead is offered to show that the defendant had a mistaken belief of fact that negates the existence of a culpable mental state, expert testimony concerning the mental condition can be admissible") (footnote omitted) (citation omitted); People v. Vanrees , 125 P.3d 403, 409 (Colo. 2005) (concluding that the defendant could introduce evidence of his "mental slowness" to factually contest whether he formed the requisite mental state, although he did not raise an insanity defense).

¶ 16 In fact, as a matter of constitutional due process, regardless of whether a crime requires general intent or specific intent, a defendant has a right to introduce relevant evidence that he did not possess the necessary mens rea due to a mental condition. Hendershott v. People , 653 P.2d 385, 391 (Colo. 1982) ("[I]t would be a violation of due process to require the prosecution to establish the culpable mental state beyond a reasonable doubt while, at the same time, to prohibit a defendant from presenting evidence to contest this issue."); People v. Welsh , 176 P.3d 781, 791 (Colo. App. 2007).

¶ 17 Here, Gilbert sought to introduce evidence that due to bipolar disorder

and/or post-traumatic stress disorder, he made a mistake of fact that prevented him from forming one or more of the mental states required for conviction. This is exactly the type of evidence that was deemed admissible in Wilburn and Vanrees , and Gilbert has a due process right to present it so long as he has met the procedural requirements of section 16-8-107(3)(b) and the evidence is otherwise admissible under the Colorado Rules of Evidence. People v. Flippo , 159 P.3d 100, 106 (Colo. 2007) ("Although a defendant is...