People v. Howell, 83CA0315

• Decision Date: 21 March 1985
• Docket Number: No. 83CA0315,83CA0315
• Citation: 701 P.2d 131
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Darrell Lee HOWELL, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 131

701 P.2d 131

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Darrell Lee HOWELL, Defendant-Appellant.

No. 83CA0315.

Colorado Court of Appeals,

Div. IV.

March 21, 1985.

Rehearing Denied April 4, 1985.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for defendant-appellant.

HODGES ^*, Justice.

In 1971 and 1972 in two separate homicide cases defendant Howell was found not guilty of murder by reason of insanity and was committed to the Colorado State Hospital. A release hearing was conducted in 1977 in Pueblo District Court and the jury determined he was not eligible for release. On appeal this judgment was affirmed in People v. Howell, 196 Colo. 408, 586 P.2d 27 (1978). In 1980 defendant filed a motion for a release in the district court for Jefferson County, and after three days of deliberation, a jury again determined he was not eligible for release.

In 1981 defendant filed another motion for a release hearing before a jury. The People's motion to dismiss was granted by the trial court. On appeal, defendant contends that the dismissal of his motion for a release hearing was based on the trial court's erroneous interpretation of a 1981 amendment to § 16-8-115(2), C.R.S. We agree and therefore reverse the trial court's judgment, and remand for the resumption of procedures as required by statute.

Section § 16-8-115(2), C.R.S., (1984 Cum.Supp.), in pertinent part, provides:

"If the question of defendant's eligibility for release is contested, the court shall order a release examination of the defendant when a current one has not already been furnished or when either the prosecution or defense moves for an examination of defendant at a different institution or by different experts. The court may order any additional or supplemental examination, investigation, or study which it deems necessary to a proper consideration and determination of the question of eligibility for release. The court shall set the matter for release hearing after it has received all of the reports which it has ordered under this section. When none of said reports indicate the defendant is eligible for release, the defendant's request for release hearing may be denied by the court if the defendant is unable to show by way of an offer of proof any other evidence that would indicate that he is eligible for release. The release hearing shall be to the court or on demand by the defendant to a jury of not to exceed six person...." (emphasis added)

The interpretation of the emphasized provision of this statute by the trial court is the focal point of the main issue on appeal. This provision was added to the statute by amendment in 1981. See Colo.Sess.Laws 1981, ch. 196 at 939.

Because the report of the psychiatrist appointed by the trial court was not favorable to the release of defendant, the trial court required defendant to make an offer of proof at the hearing conducted in December 1981. The resultant offer of proof included lay testimony from a number of witnesses, including defendant and his wife, that would indicate that defendant is eligible for release. In addition, the defense included as part of the offer of proof, certain favorable aspects of the report filed by the court-appointed psychiatrist, even though the report's conclusion did not favor release.

The trial court properly ruled that the provisions of the statute as amended in 1981 were procedural and applied to this case even though defendant's motion for release was filed prior to the effective date of the amendment. However, in construing this statute, the trial court concluded that the offer of proof was inadequate because it did not include expert opinion evidence by a person who is medically trained in the area of mental conditions and qualified to make a determination as to whether defendant continues to have any abnormal mental condition which would cause him to be a danger either to himself or to the community at large. To put it another way, the trial court construed the statutory language "any other evidence" to mean that a defendant must include in his offer of proof evidence by a medical expert in mental disorders to rebut the report filed by ...