attributable to the voluntary ingestion of drugs or alcohol. The court must parse

any proffered mental condition evidence to distinguish what is probative of

insanity under this exacting definition from what is not.

Therefore, the district court’s order allowing the blanket admission of

mental condition evidence is vacated. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 20SA293 Original Proceeding Pursuant to C.A.R. 21 District Court, City and County of Denver, Case No. 19CR2201 Honorable Edward D. Bronfin, Judge

In Re Plaintiff:

The People of the State of Colorado,

v.

Defendant:

Aundre D. Moore.

Rule Made Absolute en banc May 3, 2021

Attorneys for Plaintiff: Beth McCann, District Attorney, Second Judicial District Jeff M. Van der Veer, Deputy District Attorney Denver, Colorado

Attorneys for Defendant: Megan A. Ring, Public Defender Sarah Varty, Deputy Public Defender Robert Halpern, Deputy Public Defender Denver, Colorado

JUSTICE HOOD delivered the Opinion of the Court. ¶1 The Denver District Attorney has charged Aundre Moore with first degree

murder for the shooting death of Jamaica McClain. Moore has pleaded not guilty

and is awaiting trial. He claims that he acted in self-defense, and he intends to

introduce evidence of his pre-existing mental illness to help show why he

subjectively believed he was in imminent danger and needed to use deadly force

to repel McClain.

¶2 The prosecution moved to exclude evidence of Moore’s mental condition,

arguing that it is inadmissible unless he pleads not guilty by reason of insanity

(“NGRI”)—an affirmative defense that Moore has said he doesn’t plan to invoke.

The district court denied the prosecution’s motion, reasoning that Moore’s stated

purpose in offering the mental condition evidence is to prove the subjective belief

component of his self-defense claim, not to prove insanity. Therefore, the court

ruled that it would allow, without an insanity plea, expert testimony by a

psychologist and a forensic psychiatrist who examined Moore, so long as their

testimony otherwise conforms to the rules of evidence. The prosecution then filed

a petition pursuant to C.A.R. 21, and we issued an order to show cause.

¶3 We conclude that, absent an insanity plea, the trial court must exclude any

evidence that is probative of insanity, as that term has been defined by the

legislature, irrespective of the ostensible purpose for which it is offered. The court

must therefore ask: Does some or all of the proposed testimony tend to prove that 2 the defendant (a) was so diseased or defective in mind at the time of the

commission of the act as to be incapable of distinguishing right from wrong, or

(b) suffered from a condition of mind caused by mental disease or defect that

prevented the defendant from forming a culpable mental state that is an essential

element of a crime charged?

¶4 Critically, however, this question involves an often-neglected threshold

issue: the existence of “a mental disease or defect.” For a defendant’s mental

condition to implicate the statutory definition of mental disease or defect at the

time of the offense, it must have been so severely abnormal that it grossly and

demonstrably impaired the defendant’s perception or understanding of reality (without

being attributable to the voluntary ingestion of drugs or alcohol).

¶5 This means that evidence of less-severe mental illness remains admissible,

absent an insanity plea, if it otherwise conforms to the statutory requirements and

the rules of evidence. The court must parse any proffered mental condition

evidence, line by line if necessary, to distinguish what is probative of insanity

under this exacting definition from what is not.

¶6 We therefore make the rule absolute and remand the case to the district

court for further proceedings consistent with this opinion.

3 I. Facts and Procedural History

¶7 The charges against Moore stem from an incident that occurred on March

21, 2019. That evening, Moore met D.E. in a motel lobby. The two spent some

time together before deciding to grab a drink at a bar in the Park Hill

neighborhood. Moore drove D.E. to the bar and backed his car into a spot in the

bar’s parking lot. As Moore and D.E. were sitting in Moore’s car, another car

pulled into the parking lot and stopped in front of them, blocking their exit.

McClain, with whom Moore was acquainted, exited the driver’s side of the other

car and approached the driver’s side of Moore’s car. Moore got out of his car. The

two appeared to argue before Moore shot McClain in the head. Subsequent

investigation revealed that McClain was unarmed. That much appears to be

undisputed.

¶8 The prosecution charged Moore with first degree murder, among other

crimes. Moore contends that he acted in self-defense. He plans to present

evidence that he knew McClain was an active gang member with a reputation for

carrying a gun; that McClain got out of his car and started yelling at Moore,

posturing to fight; that he saw McClain reach into his car before approaching him;

and that McClain continued to approach him in an aggressive manner despite

Moore’s repeated warnings to “back up.”

4 ¶9 To further support his self-defense claim, Moore seeks to present expert

testimony about his mental condition at the time of the offense. He filed a notice

with the district court of his intent to do so pursuant to section 16-8-107(3)(b),

C.R.S. (2020), and he retained a psychologist, Dr. Jane Wells, who evaluated him.

Dr. Leah Brar, a forensic psychiatrist, also conducted a mandatory examination on

behalf of the state pursuant to section 16-8-106, C.R.S. (2020).

¶10 Because the reports from the two evaluations are relevant to our decision,

we summarize their content in some detail.1

¶11 Dr. Wells’s report explains that Moore experienced numerous traumatic

events related to gun violence. She notes that Moore’s grandfather was shot and

killed around the corner from where he lived; two of Moore’s friends were shot in

Park Hill; Moore himself was previously shot at on two separate occasions, one of

1 The reports of the evaluations are suppressed; however, Moore’s attorneys referenced the content of the reports in their brief and discussed them openly during oral argument. Therefore, Moore has at least implicitly waived the confidentiality of the reports for the purposes of this original proceeding. See Clark v. Dist. Ct.,

(Colo. 1983) (noting that when the privilege holder pleads a mental condition as an affirmative defense, “the only reasonable conclusion is that he thereby impliedly waives any claim of confidentiality respecting that same condition”).

5 which was in Park Hill; a friend of Moore’s was kidnapped and killed; and Moore

lost two other friends to gun violence.

¶12 Dr. Wells also recounts that Moore was hospitalized about twenty years ago

with delusional psychosis. He was later diagnosed with bipolar disorder and was

briefly medicated, although he wasn’t taking any psychotropic medications on the

date of the alleged offense.

¶13 Dr. Wells opines that Moore has a cyclical mood disorder, a paranoid

thought process, and displays symptoms of trauma. She diagnosed him with

bipolar disorder I (most recent episode mixed with paranoid ideation). She notes

that, although Moore exhibits some symptoms of post-traumatic stress disorder

(“PTSD”), he doesn’t meet the criteria for that diagnosis. Instead, she diagnosed

him with other specified trauma- and stressor-related disorder. Dr. Wells

described this disorder as a condition where symptoms of PTSD are present but

don’t meet the threshold for a PTSD diagnosis.

¶14 Dr. Wells finds that Moore’s thinking “tends to be distorted with psychotic

qualities” and that “[t]rauma symptoms also contributed to his paranoid ideation,

hyper-vigilance, agitation[,] and his feelings of vulnerability.” She further notes

that, at the time of the offense, Moore had an elevated mood, which “may have led

him to feel grandiose, energetic[,] and overly[]confident in his conclusions.”

Dr. Wells concludes that, although “Moore shot an unarmed person for no clear 6 reason,” it is “likely that his mental state contributed to how he perceived the

situation and his decision-making.”

¶15 Dr. Brar, for her part, acknowledges the traumatic events that Moore

experienced, and she too diagnosed him with other specified trauma- and stressor-

related disorder. Additionally, she found that Moore met the criteria for the

following diagnoses at the time of the alleged offense: unknown substance

intoxication, other specified bipolar and related disorder, severe alcohol use

disorder, severe cannabis use disorder, and moderate other hallucinogen (ecstasy)

use disorder.

¶16 Still, Dr. Brar concludes that, at the time of the incident, Moore “did not

suffer from a severe, abnormal mental condition [that] grossly and demonstrably

impaired his perception or understanding of reality,” and “was not so diseased or

defective in mind . . . as to be incapable of distinguishing right from wrong with

respect to the alleged acts or to be prevented from forming the culpable mental

states.” She notes that, although Moore “experience[d] potential impairments in

perception and reality testing,” in her opinion, those impairments “were likely

secondary to the voluntary ingestion of substances” and were unrelated to mania

or psychosis. Additionally, she opines that “Moore’s trauma-related disorder and

intoxication likely . . . influence[d] his decision-making during the alleged events,

even if they did not rise to [the] level of . . . a mental disease or defect.” 7 ¶17 The prosecution moved to exclude evidence of Moore’s mental condition,

arguing that it is inadmissible pursuant to section 16-8-107(3)(a) because it

constitutes evidence “relevant to the issue of insanity” and Moore hasn’t pleaded

insanity.

¶18 The district court denied the prosecution’s motion and held that evidence of

Moore’s mental condition may be admissible at trial even if he doesn’t plead

NGRI. The court reasoned that the evidence was admissible pursuant to section

16-8-107(3)(b) to prove Moore’s subjective belief in the need for self-defense.

¶19 The prosecution then filed this original proceeding, and we issued an order

to show cause.2

II. Analysis

¶20 We begin by addressing our jurisdiction to hear this appeal. We then

identify the applicable standards of review and revisit familiar principles of

2 The issue before us, as framed by the prosecution in their petition, is:

If a defendant attempts to defend a murder charge by pointing to his bipolar disorder and PTSD symptoms—which led to “distorted [thinking] with psychotic qualities” at the time of the shooting—does the defendant have to plead insanity? Or can he evade that statutory pleading requirement by asserting that his mental condition relates to his claim of self-defense?

8 statutory interpretation before turning our attention to the core substantive

question before us; namely, what evidence is “relevant to the issue of insanity”

under section 16-8-107(3)(a).

A. Original Jurisdiction ¶21 Relief under C.A.R. 21 is an extraordinary remedy that is limited in both

purpose and availability. People v. Rowell,

,

.

Whether to exercise our original jurisdiction rests solely within our discretion. See

C.A.R. 21(a)(1); People v. Rosas,

,

.

¶22 We have exercised our original jurisdiction when the petition raised an issue

of first impression that was of significant public importance, when a party would

have otherwise suffered irreparable harm, or when the normal appellate process

would prove inadequate. Rosas, ¶ 19,

; People v. Voth,

,

. The normal appellate process can be inadequate in a

criminal case when the prosecution would be barred from retrying a defendant

post-acquittal because of double jeopardy. Voth, ¶ 13,

.

¶23 Exercise of our original jurisdiction is warranted in this case because the

issue before us—whether evidence of a defendant’s mental condition is

admissible, absent a plea of insanity, to prove his subjective need for self-defense—

is one of first impression. Moreover, the normal appellate process would be

inadequate because the prosecution would be barred from retrying Moore 9 following an acquittal, even if they prevail on appeal. See § 16-12-102(1), C.R.S.

(2020) (allowing the prosecution to appeal “any decision of a court in a criminal

case upon any question of law” while also codifying the prohibition against double

jeopardy); see also People v. Gabriesheski,

(Colo. 2011) (noting that

an acquittal is a final judgment enabling the prosecution to appeal a question of

law).

B. Standards of Review

¶24 Having decided to exercise our original jurisdiction, we next address the

standards of review that govern our analysis.

¶25 We review questions of law involving statutory construction de novo.

People v. Griego,

,

. In construing a statute, we

interpret its plain language to give full effect to the intent of the General Assembly.

We construe undefined words and phrases according to their common usage.

When the statutory language is clear, we apply the plain and ordinary meaning

of the provision and give consistent, harmonious, and sensible effect to each part

of the statute.

¶26 We review a trial court’s evidentiary rulings for an abuse of discretion.

Venalonzo v. People,

,

. A trial court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or unfair.

10 C. What Constitutes Evidence “Relevant to the Issue of Insanity” ¶27 We begin with the language of the insanity statutes. Section 16-8-101.5(1),

C.R.S. (2020), provides two definitions of insanity:

(a) A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act . . . or

(b) A person who suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of a crime charged . . . .3

The statute further defines “[m]ental disease or defect” as “only those severely

abnormal mental conditions that grossly and demonstrably impair a person’s

perception or understanding of reality and that are not attributable to the

voluntary ingestion of alcohol or any other psychoactive substance.”

§ 16-8-101.5(2)(c). Thus, both forms of insanity—whether it be the incapacity to

distinguish right from wrong or the inability to form a culpable mental state—

require that, at the time of the alleged offense, the defendant suffered from a

3Section 16-8-101.5 defines insanity for offenses committed on or after July 1, 1995. § 16-8-101.5(3). This definition incorporated the former affirmative defense of impaired mental condition into the defense of NGRI to “create a unitary process for hearing the issues raised” by the two defenses. § 16-8-101.3, C.R.S. (2020).

11 severely abnormal mental condition that grossly and demonstrably impaired his

perception or understanding of reality.

¶28 The admission of evidence related to insanity is governed by section

16-8-107(3)(a), which states that “[i]n no event shall a court permit a defendant to

introduce evidence relevant to the issue of insanity, as described in section 16-8-101.5,

unless the defendant enters a plea of not guilty by reason of insanity.” (Emphasis

added.)4

¶29 Because Moore offered mental condition evidence, not to prove insanity, but

rather to shore up his self-defense claim, the district court concluded that the

evidence was admissible. After a thorough review of this court’s jurisprudence

4 Section 16-8-107(3)(b) further outlines the notice requirements for all evidence related to a defendant’s mental condition:

Regardless of whether a defendant enters a plea of not guilty by reason of insanity pursuant to section 16-8-103, the defendant shall not be permitted to introduce evidence in the nature of expert opinion concerning his or her mental condition without having first given notice to the court and the prosecution of his or her intent to introduce such evidence and without having undergone a court-ordered examination pursuant to section 16-8-106.

There is no dispute here that Moore complied with this provision.

12 under section 16-8-107 and Colorado law governing self-defense, the district court

reasoned that if “a defendant complies with the other requirements of [s]ection

3(b),” expert testimony about his “mental state or life experiences” is admissible

to prove the “subjective part of a self-defense affirmative defense.”

¶30 The prosecution counters that section 16-8-107(3)(a) prohibits the admission

of any evidence relevant to insanity, regardless of the purpose for which it is

offered. Therefore, the prosecution asserts that neither Dr. Wells nor Dr. Brar

should be permitted to testify regarding Moore’s mental condition at the time of

the alleged offense. We agree with the prosecution that evidence probative of

insanity must be excluded, but we disagree that this necessitates a blanket

exclusion of all the proffered testimony at issue here.

¶31 The plain language of section 16-8-107(3)(a) limits the admission of evidence

“relevant to the issue of insanity,” regardless of its intended use. (Emphasis

added.) The word “relevant” generally means “having significant and

demonstrable bearing on the matter at hand” or “affording evidence tending to

prove or disprove the matter at issue or under discussion.” Relevant, Merriam-

Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/relevant; [https://perma.cc/7JLU-9ND3]. Black’s Law

Dictionary likewise defines “relevant” as “[l]ogically connected and tending to

13 prove or disprove a matter in issue” or “having appreciable probative value.”

Relevant, Black’s Law Dictionary (19th ed. 2019).

¶32 These dictionary definitions comport with the definition of “relevant

evidence” under the Colorado Rules of Evidence, which encompasses “evidence

having any tendency to make the existence of any fact . . . more probable or less

probable than it would be without the evidence.” CRE 401.

¶33 This leads us to conclude that the plain meaning of “relevant” evidence

under section 16-8-107(3)(a) is evidence that falls within the Colorado Rules of

Evidence’s definition of “relevant evidence.” Thus, evidence that is “relevant to

the issue of insanity” is evidence that tends to prove or disprove the issue of

insanity—that is, evidence that is probative of what is defined as insanity.

¶34 Significantly, neither section 16-8-101.5(1), which defines insanity, nor

section 16-8-107(3)(a), which limits the admission of evidence “relevant to the issue

of insanity,” regulates the admission of insanity-related evidence based on the

defendant’s ostensible purpose for offering it. Under the plain language of the

insanity statutes, the probative effect of the mental condition evidence is what

governs, not the purpose for which it is offered.

¶35 This conclusion is well supported by our prior decisions. For example, in

People v. Wilburn,

, ¶¶ 1–3,

, we considered whether

a defendant’s intention to put on evidence about a learning disability required the 14 defendant to plead NGRI. In that case, the defendant was charged with violating

his bond conditions for failing to appear in court. Id. at ¶ 6,

. He

argued that he miswrote the court date and sought to admit expert testimony

regarding his dyslexia to support his mistake-of-fact defense and to negate the

requisite culpable mental state.

at ¶¶ 7–8,

. But the prosecution

insisted, and the trial court agreed, that he had to plead NGRI before he could seek

admission of such evidence. Id. at ¶¶ 12, 14, 272 P.3d at 1080–81.

¶36 We disagreed. Id. at ¶ 18,

. True enough, as the district court

here rightly noted in its order, our decision in Wilburn discussed the purpose of

the proffered testimony. See

at ¶¶ 20–21, 272 P.3d at 1081–82 (distinguishing

evidence for an insanity plea from evidence that doesn’t meet the insanity

threshold when it is “offered to show that the defendant had a mistaken belief of fact

that negates the existence of a culpable mental state” (emphasis added)). And the

defendant certainly argued that his purpose wasn’t to show that he was incapable

of forming the requisite culpable mental state, but to show that he hadn’t

“knowingly” missed his court date. Id. at ¶ 13,

. But that wasn’t

the basis of our decision. Instead, we emphasized that section 16-8-107(3)(b)

allows the admission of evidence of a mental condition that doesn’t constitute a

“mental disease or defect” necessitating an NGRI plea.

at ¶¶ 22–27, 272 P.3d at

1082–83. 15 ¶37 Likewise, in People v. Vanrees,

(Colo. 2005), we focused on

the mental condition at issue when we considered whether “mental slowness”

implicated the legal definition of insanity. In concluding that it did not, we noted

that “there [was] nothing within Colorado’s statutory insanity framework

indicating that our General Assembly intended to create an ‘all or nothing’

insanity defense that applies in all cases where the defendant presents evidence

challenging the culpable mental state element of the crime charged.”

.

¶38 In both instances, we interpreted section 16-8-107(3) as requiring trial courts

to determine whether testimony regarding a mental condition meets the definition

of insanity; we did not instruct trial courts to yield to a defendant’s stated purpose

in seeking admission of the evidence. See also People v. Requejo,

(Colo. App. 1996) (concluding that “mental slowness” didn’t meet the definition

of “mental disease or defect” because it wasn’t “severely abnormal” and didn’t

“grossly and demonstrably impair [the] ‘perception’ of reality”).

¶39 Moore, however, argues that our decisions in Rosas and People v. Flippo,

(Colo. 2007), and the court of appeals’ decision in People v. Lane,

,

, on which the district court relied, require that the

court consider the purpose of the evidence. We disagree.

¶40 Rosas was an insanity case, pure and simple. The defendant in Rosas was

trying to admit evidence of his bipolar disorder to show that he was acutely manic 16 and suffered from delusions at the time of the offense so that he was incapable of

forming the requisite culpable mental state. ¶¶ 2, 6, 459 P.3d at 542–43. He did

not, however, plead NGRI and, instead, sought to admit this evidence under the

abolished affirmative defense of impaired mental condition.

at ¶¶ 4–7, 459 P.3d

at 542–43. Although we began our analysis by “assess[ing] the nature of the

evidence Rosas wishe[d] to present,” id. at ¶ 22,

, we concluded that

the evidence was “clearly relevant to the issue of insanity” because it was

“evidence of a mental disease or defect that rendered the defendant incapable of

forming the requisite culpable mental state at the time of the offense,”

at ¶¶ 23–

24,

. Rosas’s mental condition evidence therefore unequivocally

implicated the definition of insanity.

¶41 While Rosas clearly was an insanity case, Flippo clearly was not. In fact, it

didn’t concern insanity at all. The defendant in Flippo sought to introduce

evidence of his “intellectual disability” to challenge the voluntariness of a

videotaped confession, but he failed to comply with the notice requirement of

section 16-8-107(3)(b). 159 P.3d at 102–03. Here too, we referred to the purpose

for which the defendant offered mental condition evidence. See

(stating

that section 16-8-107(3)(b) applies in situations “where insanity is not the reason the

evidence is being introduced” (emphasis added)). But we dealt solely with

interpreting “mental condition” under section 16-8-107(3)(b) and didn’t address 17 when an insanity plea is required under section 16-8-107(3)(a). Flippo, therefore,

doesn’t undercut our conclusion.

¶42 Moore’s reliance on Lane is similarly unavailing. In Lane, the defendant

claimed that he woke up in the middle of the night to find the victim groping him,

so he stabbed the victim to death. ¶ 3,

. The defendant argued

that he acted in self-defense against a sexual assault and sought to admit lay

testimony about physical and sexual abuse he experienced as a young child. Id. at

¶¶ 3, 29,

. He also sought to admit expert testimony to

educate the jury about PTSD generally, without having the expert examine him or

testify that he in fact suffered from PTSD, but he did so without complying with

the notice requirements of section 16-8-107(3)(b) or undergoing a court-ordered

examination pursuant to section 16-8-106.

at ¶¶ 24–25,

. In

concluding that the trial court’s exclusion of the proffered expert testimony was

proper, the division held that the evidence involved the defendant’s mental

condition; therefore, the defendant had to comply with the statutory notice and

mental examination requirements before offering the expert testimony at trial.

at ¶¶ 26–28,

.

¶43 In its order, the district court concluded that Lane, in effect, stood for the

proposition that defendants who comply with the statutory notice and mental

examination requirements may offer expert testimony regarding their mental 18 condition when it explains their subjective need for self-defense, without pleading

insanity. But unlike the case before us now, the parties in Lane didn’t argue that

the defendant had a mental condition that implicated the definition of insanity

under section 16-8-101.5(1). Whether the defendant in Lane should have pled

NGRI was not at issue. Thus, it is inapposite.

¶44 To recap, in determining whether evidence is “relevant to the issue of

insanity” under section 16-8-107(3)(a), the trial court should determine whether

the proposed testimony, in whole or in part, is probative of what the legislature has

defined as insanity. That is, whether any of the proposed testimony tends to prove

that the defendant (a) was so diseased or defective in mind at the time of the

commission of the act as to be incapable of distinguishing right from wrong, or

(b) suffered from a condition of mind caused by mental disease or defect that

prevented the defendant from forming a culpable mental state that is an essential

element of a crime charged. See § 16-8-101.5. To implicate the definition of mental

disease or defect, the defendant’s mental condition must be “severely abnormal”

so that it “grossly and demonstrably impair[s] [the defendant’s] perception or

understanding of reality.” § 16-8-101.5(2)(c). Evidence that tends to prove insanity

is inadmissible, absent an NGRI plea, regardless of the defendant’s ostensible

purpose in offering it, while evidence that doesn’t tend to prove insanity may be

19 admitted to support a defendant’s self-defense claim so long as such evidence

otherwise conforms to the statutory requirements and the rules of evidence.5

¶45 In the interest of making this scheme clearer, let’s discuss the possible

permutations. If the court finds that none of the proposed testimony tends to prove

insanity, the defendant may introduce it at trial without pleading NGRI (again, so

long as it otherwise satisfies any applicable statutory requirements and rules of

evidence, including, for example, CRE 401 to 403 and CRE 702). If, however, the

court finds that all the proposed testimony tends to prove insanity, the defendant

may introduce it only by pleading NGRI. But if the court finds that some of the

proposed testimony tends to prove insanity and some doesn’t, the defendant must

make a choice: (1) plead NGRI and seek to introduce all of the proposed testimony;

or (2) withdraw the notice of intent to introduce mental condition evidence as to

the portions that tend to prove insanity. Selecting the latter course means

5In serving as the evidentiary gatekeeper in this context, the trial court is vested with broad discretion. The court’s pretrial ruling on the admission of mental condition evidence under this statutory test would typically be an evidentiary ruling that’s reviewed for abuse of discretion on appeal. See Venalonzo, ¶ 15,

.

20 embracing the court’s redactions and abiding by them at trial (while, of course,

retaining the ability to object for the purpose of preserving issues for appeal).

¶46 Contrary to Moore’s assertion, limiting the admission of mental condition

evidence in this manner doesn’t violate his due process rights because he has the

option to plead NGRI and admit the evidence. See Flippo,

(“Although a defendant is entitled to present evidence in his or her defense, the

manner in which the evidence is presented may be controlled by statute.”);

People v. Roadcap,

(Colo. App. 2003) (concluding that the trial

court’s exclusion of expert testimony regarding the defendant’s mental condition,

where the defendant didn’t comply with the statutory notice requirement, didn’t

preclude this line of defense but only required him to comply with the statute if

he chose to pursue it); cf. Hendershott v. People,

, 392–97 (Colo. 1982)

(concluding that a statute that restricted the admission of mental condition

evidence to specific intent crimes violated the defendant’s due process rights

because it eliminated any meaningful opportunity for him to contest the mens rea of

the crime rather than merely limiting an affirmative defense to a certain category

of offenses).

¶47 Moreover, we are not persuaded to take a different approach by the

prosecution’s argument that admitting mental condition evidence in this fashion

contravenes public policy because it might enable defendants like Moore to avoid 21 confinement in a mental health facility. See § 16-8-105.5(4), C.R.S. (2020)

(providing that defendants who are found not guilty by reason of insanity are to

be committed to the custody of the Department of Human Services until they are

found eligible for release). First, the unambiguous language of the insanity

statutes controls. Therefore, the prosecution’s policy argument would be better

directed at the legislature. Second, the prosecution’s argument fails on its own

terms. For Moore to be acquitted, a jury must find that Moore had a reasonable

ground to believe that he was in imminent danger of being killed or of receiving

great bodily injury and that Moore reasonably believed less force would have been

inadequate. See § 18-1-704(2)(a), C.R.S. (2020) (defining the justifiable use of

deadly physical force). In other words, Moore’s subjective impression alone

doesn’t control the viability of his self-defense claim. So, this hardly seems like a

recipe for chaos.

¶48 We are equally unpersuaded by the prosecution’s argument that Moore’s

proposed use of mental condition evidence is a non-starter because self-defense

focuses on the reasonableness of a defendant’s belief, and Moore’s proffered

evidence would necessarily render his subjective belief objectively unreasonable.

To be sure, the proffered evidence must be relevant, but the self-defense statute

explicitly implicates a defendant’s subjective belief in the need for self-defense for

consideration by the jury. See id. (providing that the use of deadly force is justified 22 only where the defendant has “reasonable ground to believe, and does believe, that

he or another person is in imminent danger of being killed or of receiving great

bodily injury” (emphasis added)). Yet, irrespective of that subjective belief,

whether Moore acted reasonably remains a question of fact for the jury to resolve.

See People v. Jones,

(Colo. 1984) (stating that the reasonableness of the

accused’s belief in the necessity of defensive action is determined by the trier of

fact).

D. Application

¶49 The prosecution essentially argues that testimony related to both expert

reports is inadmissible because the reports include references to Moore having

bipolar disorder, which the prosecution contends is a “severely abnormal mental

condition” that is “relevant to the issue of insanity.” We disagree.

¶50 Moore’s bipolar disorder diagnosis alone doesn’t render testimony related

to the reports wholly inadmissible. As we discussed above, insanity requires more

than just a showing that the defendant’s mental condition was “severely

abnormal”—the condition must also grossly and demonstrably impair the

defendant’s perception or understanding of reality. A bipolar disorder diagnosis

doesn’t necessarily meet that threshold. For example, the fifth edition of the

Diagnostic and Statistical Manual of Mental Disorders notes that bipolar disorder

I, with which Dr. Wells diagnosed Moore, doesn’t require a presentation of 23 psychosis. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental

Disorders (5th ed. 2013).

¶51 Here, Dr. Brar’s report concludes that, although “Moore’s trauma-related

disorder and intoxication” likely affected his decision-making at the time of the

incident, he “did not suffer from a severe, abnormal mental condition which

grossly and demonstrably impaired his perception or understanding of reality,”

and he “was not so diseased or defective in mind . . . as to be incapable of

distinguishing right from wrong with respect to the alleged acts or to be prevented

from forming the culpable mental states.” The district court must therefore

consider whether there are any statements in Dr. Brar’s report that are probative

of insanity, and if there aren’t, it may choose to allow the admission of the report

in its entirety.

¶52 Dr. Wells’s report, however, requires a deeper analysis. For example, the

report states that “Moore’s thinking (even when not in a stressful situation) tends

to be distorted with psychotic qualities”; that his “elevated mood” at the time of

the incident “may have led him to feel grandiose”; that he “evinces signs of

delusional thinking”; and that his “ability to perceive reality accurately” was

“extraordinarily poor,” resulting in “distorted conclusions and impaired

judgment.” These statements, and other similar statements discussing Moore’s

“psychotic” thinking and impaired perception of reality, may be probative of 24 insanity. On the other hand, the court may find that Dr. Wells’s statement that

“[t]rauma symptoms also contributed to [Moore’s] paranoid ideation,

hyper-vigilance, agitation[,] and his feelings of vulnerability,” and other such

statements not suggesting psychosis or an impaired perception of reality, are

admissible.

III. Conclusion

¶53 We vacate the district court’s order allowing the blanket admission of

evidence of Moore’s mental condition and remand the case for further proceedings

consistent with our opinion.

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