author:
Judge CASEBOLT.
      Judge ROY

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Manuel HERRERA, Jr., Defendant-Appellant.
    No. 01CA1511.
    Colorado Court of Appeals, Div. V.
    Dec. 31, 2003.
    Rehearing Denied Feb. 26, 2004.

      Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Naney J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Manuel Herrera, Jr., appeals the judgment of conviction entered upon a jury verdict rejecting his insanity defense and finding him guilty of first degree murder. We reverse and remand for a new trial.

Some hours after defendant's father told him he needed to get a job or move out of the family home, defendant retrieved a knife from the garage, walked to his parent's bedroom, awakened his father, and stabbed him repeatedly. Defendant's brother stopped the attack and defendant fled. His father died from the injuries, and upon his arrest several days later, defendant admitted the killing.

Defendant had been previously treated for a number of mental health issues. Because he asserted that he suffered from a condition of mind caused by.mental disease or defect that prevented him from forming a culpable mental state, defendant pleaded not guilty by reason of insanity. The trial court ordered him to submit to a sanity examination at the Colorado Mental Health Institute in Pueblo (CMHIP). -

Before trial, defendant filed motions challenging the constitutionality of several provisions of the insanity statutes, including the unitary trial procedure, and requesting a bifurcated trial on the issues of sanity and guilt. Defendant also moved to suppress his statements to the CMHIP psychiatrist, alleging that they were involuntary. The trial court denied the motions.

At trial, defendant's expert opined that defendant was probably psychotic at the time of the offense and lacked the capacity to form the requisite culpable mental states of intent and deliberation. However, the CMHIP psychiatrist opined that defendant was not suffering from a mental condition that rendered him unable to form the requisite mental state at the time of the offense. Despite defendant's motion in limine that sought to prohibit such testimony, this expert also opined that defendant acted with intent and after deliberation during the killing.

L.

Defendant contends the trial court erroneously denied his challenge to the constitutionality of four provisions in the insanity statute, § 16-8-101, et seq., C.R.98.2008. He asserts that the current statutory scheme violates his privilege against self-inerimination and his right to effective assistance of counsel. We disagree.

The interpretation of statutes is a question of law subject to de novo review. Hendricks v. People, 10 P.3d 1281 (Colo.2000).

Our task in construing a statute is to ascertain and give effect to the intent of the General Assembly. To determine that intent, we look first to the plain and ordinary meaning of the statutory language. People v. Dist Court, 713 P.2d 918 (Colo.1986). When the language is clear and unambiguous, the statute must be construed as written, without resort to interpretive rules of statutory construction. People v. Zapotocky, 869 P.2d 1234 (Colo.1994).

If, however, the statutory language lends itself to alternative constructions, and its intended scope is unclear, a court may apply other rules of statutory construction to determine which alternative construction is in accordance with the objective sought to be achieved by the legislation. People v. Terry, 791 P.2d 374 (Colo.1990).

When reviewing a statute upon a constitutional challenge, we must presume the statute is constitutional, People v. Baer, 973 P.2d 1225 (Colo.1999) and we must interpret the statute to avoid constitutional de-feets. People v. Torres, 848 P.2d 911 (Colo.1993). Additionally, to overcome the presumption that a statute is constitutional, the challenger bears the burden of proving that it is unconstitutional beyond a reasonable doubt. See People v. Buckallew, 848 P.2d 904 (Colo.1993).

A.

Subsections (1)(a) and (1.5)(a) of § 16-8-107, C.R.S$.2003, deal with introduction of evidence in cases involving insanity pleas. Defendant contends, and the People agree, that both subsections apply to him. Those subsections provide, in pertinent part:

(1)(a) [NJlo evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination is admissible against the defendant on the issues raised by a plea of not guilty, if the defendant is put to trial on those issues, except to rebut evidence of his or her mental condition introduced by the defendant to show incapacity to form a culpable mental state; and, in such case, that evidence may be considered by the trier of fact only as bearing upon the question of capacity to form a culpable mental state, and the jury, at the request of either party, shall be so instructed. (1.5)(a) [EJvidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination ... is admissible only as to the issues raised by the defendant's plea of not guilty by reason of insanity, and the jury, at the request of either party, shall be so instructed.. ..

Defendant contends that the use of statements obtained from his sanity examination violates his privilege against self-incrimination because the statute allows the prosecution to employ his own statements to prove his guilt of the charged offense. He argues that § 16-8-107(1.5)(a) does not include the protective language of § 16-8-107(1)(a) that such evidence may be considered by the trier of fact only as bearing upon the question of "capacity to form a culpable mental state." Therefore, he asserts, the phrase in § 16-8-107(1.5)(a), "the issues raised by a defendant's plea of not guilty by reason of insanity," includes the ultimate issue of whether a defendant had in fact formed the requisite culpable mental state and not merely whether he or she had the capacity to do so. The People assert that the proper statutory interpretation makes it clear that the only permissible use of such statements is in determining, as relevant here, whether a defendant was capable of forming the culpable mental state and, so construed, the provisions are constitutional. We agree with the People.

Defendant's assertion of the insanity defense was based solely upon the "impaired mental condition" definition contained in the statute. See § 16-8-101.5(1)(b), C.R.S.2003. Accordingly, our analysis is limited to circumstances involving that assertion.

To preserve the privilege against self-inerimination, evidence derived from court-ordered sanity examinations can only be used to determine a defendant's capacity to form the requisite mental state. See People v. Rosenthal, 617 P.2d 551 (Colo.1980)(unrestricted use at the guilt trial of the defendant's psychiatric communications is contrary to the privilege against self-incrimination; procedures governing the insanity defense cannot be applied to destroy that privilege); Lewis v. Thulemeyer, 189 Colo. 139, 142, 538 P.2d 441, 443 (1975)("By definition, self-incrimination contemplates the use of the con-fessgion or admission to aid in establishing the guilt of the defendant."). Hence, the privilege against self-incrimination is not implicated by a court-ordered mental examination when the information obtained therefrom is admitted only on the issue of mental condition. See People v. Galimanis, 765 P.2d 644 (Colo.App.1988) privilege against self-incrimination implicated only when evidence he is compelled to produce is admitted on the issue of guilt); see also People v. Tally, 7 P.3d 172 (Colo.App.1999){(statements made by a defendant in a psychiatric exam may be admitted to prove sanity but not guilt of the charged offense). Therefore, the statutory provisions at issue must be interpreted accordingly.

As the People note, the quoted subsections provide essentially the same protection: evidence first acquired from a defendant during court-ordered examinations may only be used at trial to establish the defendant's capacity to form the mental state at issue. While we acknowledge that § 16-8-107(1.5)(a), unlike § 16-8-107(1)(a), does not contain specific language stating that such evidence may be considered "only as bearing upon the question of capacity to form a culpable mental state," nevertheless, whether the subsection specifically refers to "capacity" is not conclusive. The reference in § 16-8-107(1.5)(a) to issues raised by the insanity plea relates to the defendant's "mental condition," and is, in our view, equivalent to the reference in § 16-8-107(1)(a) to a defendant's "capacity to form a culpable mental state."

To the extent these two subsections could be given an alternative. construction, the legislative history supports our interpretation. Section 16-8-107(1)(a) was originally applicable to the former affirmative defense of impaired mental condition. When that defense was incorporated into the insanity defense, see § 16-8-101.3, C.R.S.2003, testimony before the General Assembly noted that § 16-8-107(1.5)(a) simply restated former law providing that any communications were admissible only as to issues raised by an insanity plea. See Hearings on H.B. 96-1145 before the House and Senate Judiciary Committees, 60th General Assembly, Second Session (Jan. 16 & 24, 1996). So construed, those subsections do not infringe upon the privilege against self-incrimination.

Defendant nevertheless asserts that the jury instructions provided for by these subsections are insufficient to protect statements from being used to establish guilt of the charged offense. We disagree.

Both subsections provide for jury instructions to permit use of the cited evidence as bearing only on issues of a defendant's sanity. Juries are presumed to understand and heed jury instructions absent evidence to the contrary. See People v. Ibarra, 849 P.2d 33 (Colo.1993). Jury instructions can therefore be sufficient to protect a defendant's privilege against self-incrimination in the face of a court-ordered sanity examination. See Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 LEd.2d 606 (1967)(two-stage jury trial for habitual offenders not unconstitutional because of some collateral prejudice to defendant; while all joint trials furnish inherent opportunities for unfairness, jury is expected to follow limiting instructions); People v. Bielecki, 964 P.2d 598 (Colo.App. 1998)(jury instructions limiting use of evi-denee obtained during sanity exam were sufficient).

Here, the jury was properly instructed to consider evidence derived for the first time from defendant's sanity examination only as to issues raised by his insanity plea, and for no other purpose. The instruction, which tracked § 16-8-107(1.5)(a), served to ensure that defendant was protected from the improper use of such evidence.

B.

Defendant next contends that § 16-8-106(2)(c), C.R.S.2008, is unconstitutional because it impermissibly required him to choose between cooperating with the sanity exam and thus incriminating himself or forfeiting his insanity defense. We disagree.

Section 16-8-106(@2)(c) essentially requires a defendant to cooperate with a court-ordered sanity examination or lose the ability to call psychiatrists or other expert witnesses to provide evidence on his or her mental condition, including insanity or competency. The section provides, in pertinent part:

The defendant shall cooperate with psychiatrists and other personnel conducting any examination ordered by the court pursuant to this section. Statements made by the defendant in the course of such examination shall be protected as provided in seetion 16-8-107. If the defendant does not cooperate with psychiatrists and other personnel conducting the examination, the court shall not allow the defendant to call any psychiatrist or other expert witness to provide evidence at the defendant's trial concerning the defendant's mental condition including, but not limited to, providing evidence on the issues of insanity or competency.... In addition, the fact of the defendant's noncooperation with psychiatrists and other personnel conducting the examination may be admissible in the defendant's trial to rebut any evidence introduced by the defendant with regard to the defendant's mental condition including, but not limited to, the issues of insanity and competency.... This paragraph (c) shall apply to offenses committed on or after July 1, 1999.

1.

As previously noted, a defendant does not incriminate himself or herself by making statements during a court-ordered sanity examination so long as the use of such statements is limited to the issue of mental condition. Indeed, § 16-8-106(2)(c) provides that statements made during the examination are protected pursuant to § 16-8-107. Hence, the privilege against self-incrimination is not violated when psychiatrists who have examined a defendant testify regarding the defendant's statements to them in that context. See Castro v. People, 140 Colo. 493, 346 P.2d 1020 (1959); People v. Bielecki, supra; People v. Vialpando, 954 P.2d 617 (Colo.App.1997).

Defendant argues that cases such as Castro and Bielecki were decided before 1999, when § 16-8-106(2)(c) was enacted, and that the applicable statute then stated "[The defendant shall have a privilege against self-incrimination during the course of an examination under this section," a phrase that § 16-8-106(2)(c) does not include. See § 16-8-106(2)(a)(b), C.R.S.2003. However, the fact that § 16-8-106(2)(c) fails to mention the privilege against self-incrimination does not mean it has abolished that protection. Indeed, a statute cannot abolish a constitutional right. See Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)(constitutional mandate may not be overruled legislatively); Im re Interrogatories by Colo. State Senate, 168 Colo. 558, 452 P.2d 391 (1969)(a. legislature is supreme in legislative matters except as its power is limited by a constitutional provision).

Thus, a defendant who commits a crime subject to this new statutory scheme retains the privilege against self-incrimination during a court-ordered sanity examination. The insanity statute protects that privilege by limiting evidence obtained during an examination to a defendant's mental condition. See § 16-8-107(1)(a), (1.5)(a).

2.

Defendant also asserts that because the 1999 statute excludes defense expert testimony on the issue of insanity if the defendant does not cooperate in the sanity examination, the use of statements from that exam forces a defendant to choose between self-incrimination or loss of the right to present an insanity defense. We are not persuaded.

Section 16-8-106(2)(c) does not force such a choice. First, it does not require a defendant to cooperate against his or her will during an exam. There is no mechanism by which a defendant can be legally compelled to answer an examiner's questions or participate in testing.

Second, the statute does not completely bar a defendant from raising insanity as a defense. See French v. Dist. Court, 153 Colo. 10, 884 P.2d 268 (1963)(trial court could not strike insanity plea in response to defendant's refusal to cooperate). It only precludes expert testimony in support of such a defense and allows evidence of noneooperation to be used to rebut the defense. A defendant is only required to comply with § 16-8-106(2) if expert testimony in support of an insanity defense is desired. Whlle a court may not strike a defense based on failure to cooperate, it may bar the defendant from introducing psychiatric testimony in support thereof. See Lee v. County Court, 27 N.Y.2d 482, 318 705, 267 N.E.2d 452 (1971)(when defendant chooses not to cooperate with exam, he or she can be precluded from offering psychlatrlc testimony); Johnson v. People, 172 Colo. 72, 470 P.2d 837 (1970); of People v. Roadcap, T8 P.3d 1108 (Colo.App.2003)(trial court did not preclude mental condition defense by requiring defendant to comply with portion of insanity statute requiring notice to be given to prosecution and submission to court-ordered examination).

A contrary result would permit a defendant to raise and support an insanity defense while unfairly depriving the prosecution of any method of testing the validity of that defense. See Johnson v. People, supra, 172 Colo. at 77, 470 P.2d at 40 (if defendant raises a mental defense, he or she still has the right to remain silent during an exam; however "the State is placed at a great disadvantage when it must prepare against a plea of insanity, and if its psychiatrists are met with a wall of silence, they would have no way of forming an opinion as to the defendant's sanity at the time of the commission of the act") (quoting State v. Huson; 73 Wash.2d 660, 440 P.2d 192, 197 (1968)).

Thus, requiring a defendant to cooperate during an exam does not subject him or her to an unconstitutional risk of self-incrimination, nor is cooperation a prerequisite to asserting a mental condition defense. Hence, a defendant is not forced to choose between constitutional rights.

Before the enactment of § 16—8—106(2)(c) in 1999, the remedy for noncooperation was limited to comment by the state on that noneooperation, a remedy approved in People v. Vialpando, supra. The new provision precluding defense expert testimony unless the defendant cooperates is simply another means to discourage defendants from raising an insanity defense and then refusing to cooperate in the testing process that is necessary to determine the validity of the defense. See People v. Bielecki, supra (a defendant must accept the burdens as well as the benefits that flow from the decision to assert such a defense).

8.

Defendant also contends that under the present statutory scheme, statements derived from his court-ordered exam were compelled in violation of his due process rights. Specifically, he argues that such statements were involuntarily made because they were elicited by the threat of losing his insanity defense. We disagree.

The Fifth Amendment prevents admission of involuntary statements into evidence, regardless of the defendant's custodial situation. See People v. Medina, 25 P.3d 1216 (Colo.2001). A statement is involuntary if coercive governmental conduct played a significant role in inducing the statement. See Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

Courts determine whether a statement was voluntary by considering the totality of the cireumstances surrounding the statement. When a defendant challenges a statement, the prosecution must establish by a preponderance of the evidence that the statement was voluntarily made, from a free and unconstrained choice by the maker. See People v. Gennings, 808 P.2d 839 (Colo.1991).

Here, as previously discussed, defendant could cooperate with the court-ordered examination or lose the ability to call expert witnesses in support of his insanity defense and have the fact of his noncompliance used at trial. See § 16-8-106(2)(c). Before the sanity examination took place, the trial court advised defendant of those consequences. Additionally, the CMHIP psychiatrist informed defendant that he was not required to cooperate with the examination. At no time was defendant in danger of sacrificing his insanity defense; he was simply faced with a difficult choice. See Castro v. People, supra, 140 Colo. at 505, 346 P.2d at 1026 ("If [defendant] voluntarily elects to exercise the privileges granted by the [insanity] plea he must accept the burdens as well as the benefits which flow from it. One of these burdens is that statements to psychiatrists commissioned by the court will become part of the testimony of the case.").

Hence, defendant was not compelled to make involuntary statements during his court-ordered examination under the present statutory scheme.

C.

Defendant next contends that § 16-8-108.6(2)(a), C.R.S.2003, unconstitutionally forced him to relinquish his privilege against self-incrimination as to communications made to a physician or psychologist. Specifically, he argues that, under the present statutory scheme, he lacked protections to ensure that his waiver applied only to issues regarding the capacity to form the culpable mental state at issue. We disagree.

Section 16-8-108.6(2)(a) concerns waiver of privilege and provides, in pertinent part:

A defendant who places his or her mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-108 ... waives any claim of confidentiality or privilege as to communications made by the defendant to a physician or psychologist in the course of an examination or treatment for such mental condition for the purpose of any trial [or] hearing on the issue of such mental condition.... The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for such mental condition.

The supreme court has upheld the constitutionality of a very similar version of this provision. See Gray v. Dist Court, 884 P.2d 286 (Colo.1994). In Gray, the court held that a defendant's confidentiality rights or privileges do not extend to communications made to physicians or psychologists who are eligible to testify concerning the defendant's mental condition onee an insanity defense is raised. It also held that the statutory attorney-client privilege does not extend to communications made to physi-clans or psychologists who are eligible to testify about a defendant's mental condition. The court thus concluded that the statute requires disclosure of all information, pre-or post-offense, concerning a defendant's mental condition.

In support of its decision, the court cited legislative history indicating an intention to allow full disclosure of medical and mental health records concerning the mental condition that a defendant places in issue. Full access to such records was found to be necessary in the public interest for the ascertainment of truth. See Gray v. Dist Court, supra; People v. Bielecki, supra (relying upon Gray in holding that the waiver did not compromise a defendant's ability to prepare an effective defense).

Defendant contends that the present statutory scheme, adopted subsequent to Gray and Bielecki, renders those cases and their holdings inapplicable here. He first points to amendments to § 16-8-107. According to defendant, because that statute no longer limits the use of his court-ordered communications to the issue of insanity, the words "mental condition" in § 16-8-108.6(2)(a) may refer to the culpable mental state of the offense at issue, instead of to the capacity to form such a state. For reasons similar to those discussed in our analysis of § 16-8-107 above, we reject this argument. "Mental condition," while not defined in the statute, refers in this context, as the People concede, to capacity to form the culpable mental state.

Defendant further argues that the prdse— ecution now has access to a defendant via a court-ordered examination pursuant to § 16-8-106(2)(c). Thus, he asserts the state no longer needs information obtained from other physicians or psychologists, which alleviates the concern expressed in Gray that a defendant would not cooperate and the state would then have no way to assess sanity.

However, simply because a defendant is ordered to submit to a sanity exam does not insure that the defendant will cooperate by providing all information relevant to a mental condition. And regardless of a defendant's apparent cooperation, the prosecution still needs access to psychiatric records to evaluate effectively the defendant's insanity claim. See Hendricks v. People, supra, 10 P.3d at 1242 ("the evaluating psychiatrist must review all necessary information needed to conduct the examination, which may include traditionally privileged information such as the defendant's records from prior hospitalizations and medical therapies").

Similarly, even if a defendant cooperates, he or she may not be able or willing to do so in a manner sufficient for a proper sanity assessment. The defendant may be unable to recall the events of the offense, or the information a defendant imparts could be inaccurate. Thus, regardless of a defendant's cooperation with a court-ordered examination, there is significant value in thoroughly reviewing a defendant's past mental health history to assess the defendant's capacity to form a culpable mental state at the time of the offense.

Finally, without such information, the assessment of sanity could be incomplete and subject to attack if it is based only upon a defendant's statements made during the exam. -An assessment that ignores or cannot be tested against a defendant's prior mental health history has marginal utility.

For these reasons, the basis for the conclusion in Gray and Bielecki that the waiver provision is valid remains applicable here.

D.

Defendant next contends that the unitary trial procedure provided in the insanity statutes violated his right to due process and privilege against self-incrimination in light of the entire statutory scheme described above. We disagree.

Section 16-8-104.5(1), C.R.8.2003, provides for a unitary trial procedure:

The issues raised by the plea of not guilty by reason of insanity shall be treated as an affirmative defense and shall be tried at the same proceeding and before the same trier of fact as the charges to which not guilty by reason of insanity is offered as a defense.

Colorado courts have consistently held that a single trial on insanity and guilt does not violate a defendant's privilege against self-incrimination. See Castro v. People, supra; People v. Bielecki, supra. In Bielecki, a division of this court rejected arguments sim-flar to those defendant makes here. The division held that despite the admission of psychiatric testimony at trial, a unitary trial does not violate a defendant's rights, due in part to the self-incrimination protections included in §§ 16-8-106(2)(b) and 16-8-107(1.5). See also People v. Freeman, 47 P.3d 700 (Colo.App.2001){citing § 16-8-107(1.5)(a) as a provision that protects a defendant's privilege against self-incrimination in a unitary trial); People v. Tally, supra (adopting the analysis of Bielecki in finding the unitary trial provision constitutional).

Because §§ 16-8-108.6(2)(2), 16-8-106(2)(c), and 16-8-107(1)(a) and (1.5)(a) protect a defendant's privilege against self-incrimination by limiting the use of evidence and do not preclude the insanity defense by requiring cooperation with a court-ordered examination, we conclude the rationale of Bielecki remains persuasive, and the unitary trial procedure is constitutional.

We therefore reject defendant's additional contention that the trial court erred in denying his motion to bifurcate the insanity determination from the trial on the first degree murder charge.

IL

Defendant next contends that the trial court erred when it permitted evidence obtained from his court-ordered examination to be used to prove his guilt. Specifically, he argues that his due process rights and privilege against self-inerimination were violated when portions of the CMHIP psychiatrist's testimony were improperly admitted and used. We agree.

The CMHIP psychiatrist stated in his report to the court concerning the sanity exam that defendant had the capacity to form a culpable mental state. He further opined that defendant had acted "with some degree of deliberation and ... with specific intent" during the stabbing.

Defendant filed a motion in limine before trial in which he sought to preclude the CMHIP psychiatrist from opining to the jury concerning actual deliberation and intent, asserting that he could not testify to those ultimate guilt issues. The court held a hearing outside the jury's presence just before the psychiatrist testified. During that hearing, the prosecutor asserted that the jury could use the psychiatrist's testimony "for intent or deliberation or the sanity issues." The court determined to allow the witness to offer opinions as to "defendant's plea of not guilty by reason of insanity."

After the witness was qualified as an expert, the court gave a limiting instruction:

[AJlny evidence you are about to hear that was acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of the court-ordered sanity examination ... [may] be considered only as to the issues raised by the defendant's plea of insanity, and you should consider it as evidence for no other purpose.

Thereafter, the CMHIP psychiatrist testified to a number of statements defendant made to him and opined that defendant did not suffer from a mental disease or defect that would have prevented him from acting intentionally or after deliberation. Following defense counsel's objection that such information went beyond the sanity issues, he thereafter testified:

After [defendant] got so angry at his father and made the decision to take his father's life, he actually went to the garage and retrieved a large knife with which he inflicted the fatal wounds. I am not going to say that [defendant] had premeditated the murder for a lengthy period of time, like I am not saying he planned to kill his father the day before ... I don't think he deliberated this very long. I think he did deliberate it. I think there was a period of at least two minutes between the time he made up his mind to act and the time he actually acted and took his father's life.

The witness further stated, without objection, that defendant was "basically trying to inflict lethal wounds," that "he knew what he was doing and he did what he was trying to do," and that defendant "had a lethal intent." The witness said, "At that moment, anyway, I think he intended to kill his dad." added, again without objection: He later

I think the defendant had a goal, and that goal was to harm or inflict a fatal injury on his father based upon this very long record of hostility and antipathy between the father and the son. I think it all came to a head on that particular night. I don't think his intention was to harm other members of the family ... I think the intention was to harm his father.

As previously noted, and as conceded by the People, § 16-8-107(1)(a) and (1.5)(a) limit the admissibility of evidence acquired for the first time from defendant's mental processes during the court-ordered examination to issues involving his capacity to form a culpable mental state. Thus, such evidence may not be employed by the psychiatrist to opine on defendant's guilt of the offense at issue.

In our view, the recited evidence impermissibly related to defendant's guilt of the substantive offense. Some of this evidence, such as defendant's own communications to the psychiatrist and the psychological testing, was acquired for the first time during the court-ordered examination and thus was admissible at trial only as to insanity issues pursuant to § 16-8-107(1.5)(a). Because the psychiatrist's statements related to defendant's culpability, and were not limited to his capacity to form the mental state at issue, they were erroneously admitted.

We do not perceive that the testimony related to defendant's intent and deliberation was employed only to demonstrate defendant's capacity to form the culpable mental states at issue. Testimony that a defendant acted with specific intent and after deliberation necessarily presupposes an opinion that he or she had the capacity to form such a culpable mental state. But if this evidence must be limited to capacity, as the People acknowledge it must, opinions from this witness that defendant actually formed those mental states here necessarily relate to guilt of the substantive offense.

The People assert that we should apply plain error analysis because, except as noted above, defense counsel did not object to this testimony. And the People also point out that the prosecutor's questions did not seek opinions in the prohibited areas. However, defendant's motion in limine and his objection during trial were sufficient to preserve the issue for review. See Uptain v. Huntington Lab, Inc., 728 P.2d 1322 (Colo.1986)(specific objections made in motion in limine to specific items of anticipated evidence satisfy the purposes of the contemporaneous objection rule). Further, given the prosecutor's contention that the psychiatrist could render opinions on the substantive culpability issues relevant to guilt, the phraseology of the questioning is not determinative.

The People also assert that any error is harmless beyond a reasonable doubt. We disagree.

Errors in the admission of evidence, even of constitutional dimension, do not require reversal of a criminal conviction if the errors are harmless beyond a reasonable doubt. Under a constitutional harmless error standard, reversal is required unless the court is confident beyond a reasonable doubt that the defendant was not prejudiced by the error. See Blecha v. People, 962 P.2d 931 (Colo.1998).

The constitutional harmless error test is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Bernal v. People, 44 P.3d 184 (Colo.2002).

To determine whether such an error is harmless, an appellate court must examine the facts of the case to determine whether the error affected its outcome. Topping v. People, 798 P.2d 1168 (Colo.1990). In making that determination, we consider the entire record, including the jury instructions and the evidence and arguments presented at trial. See Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 85 (1999); People v. Harlan, 8 P.3d 448 (Colo.2000).

Here, the People point out that the trial court gave a proper instruction to the jury regarding the admissibility and use of the CMHIP psychiatrist's testimony before he testified as to defendant's communications, an instruction repeated in the closing instructions. They also assert that other information concerning defendant's intent and deliberation was not first acquired during the sanity exam, and the quantum of properly admitted evidence was of such significance that we may be confident beyond a reasonable doubt that the jury's determination was surely unattributable to the error. The People rely upon the following evidence.

Defendant's brother and mother, both of whom witnessed most of the offense, testified to defendant's demeanor, his actions, and the events subsequent to the offense. The mother described how, before the offense, the victim told defendant, as he had done regularly in the past, that he was lazy and needed to get a job, whereupon defendant was silent in response. She also indicated the victim's verbal admonition took place somewhere between 8 p.m. and 10 p.m., and the knock on the bedroom door before the stabbing took place around midnight. Additionally, defendant's brother said he chased defendant down the street after the offense.

The two arresting officers testified at trial to defendant's voluntary confession in which he acknowledged he had an argument with his father, who exhibited anger at defendant for not working, after which defendant went to the garage, got a knife, and stabbed his father. He also told the officers that he felt bad about the stabbing.

Duly authenticated photographs were admitted depicting knives in the kitchen, which indicated that defendant bypassed a convenient choice of weapons in favor of another knife in the detached garage. The sheath that had held defendant's weapon was found under some of defendant's papers in a closed desk drawer in the garage.

However, the CMHIP psychiatrist was the only witness who rendered an opinion that defendant acted with specific intent and after deliberation. Defendant's own expert testified that defendant did not have the capacity to form intent and act after deliberation. And in the closing argument, the prosecutor extensively used the psychiatrist's testimony to argue that guilt on the substantive offense had been established. The prosecutor stated:

Would you want to know if the person accused of the murder made any statements about their intention? Well, of course you would. Your common sense tells you that, and what statement did the defendant make to [the CMHIP psychiatrist]? Quote: "I was so mad I wanted to kill him," end quote. That's pretty powerful evidence of intention, isn't it?
How about deliberation? Do you have that in this case beyond a reasonable doubt? ... Well, what did the defendant's own statements tell you about deliberation? A defendant who was in a psychotic state ... does this sound like it? Quote this is from [the psychiatrist's] testimony: "... Dad was really mad at me when I got home that night ... I got so mad and nervous I didn't have no place to go. I couldn't control myself." And you can read that I couldn't control my anger. I couldn't control my temper. "I went to the garage and got the knife after he started in on me." ... And isn't it interesting that he closed the drawer after himself after he took the knife out of the sheath? Al of those showed deliberation. Deliberate acts. Acts after reflection and judgment.

While discussing the limiting instruction on the CMHIP psychiatrist's testimony, the prosecutor also argued to the jury that it could not use the psychiatrist's testimony to prove identity, venue, or cause of death, but "you can and should and I think, and the instructions tell you, you must use his testimony in evaluating the defendant's culpable mental state 'after deliberation' and 'with intent' and the issue of sanity as it relates to the issue of sanity."

The prosecution's references to this testimony were not isolated, and they intermingled proper and improper use of such evidence. And although there was independent evidence of defendant's premeditation and planning, the expert testimony as to defendant's mental state and sanity at the time of the shooting was contradictory, given testimony by defendant's expert that he lacked capacity to form intent and to deliberate. Even with the appropriate limiting instruetion given to the jury, we cannot say with fair assurance that the prosecution's improper use of this evidence did not influence the jury's verdict. See People v. Rodgers, 756 P.2d 980 (Colo.1988)(if there is a reasonable possibility that the defendant could have been prejudiced, the error cannot be harmless beyond a reasonable doubt). Consequently, we must reverse defendant's convietion and remand for a new trial. See People v. Cobb, 962 P.2d 944 (Colo.1998)(when error is of constitutional dimension and not harmless beyond a reasonable doubt, defendant's conviction must be reversed).

TIL

Because it will likely arise on retrial, we address defendant's remaining contention that the trial court infringed upon his constitutional right of confrontation by prohibiting cross-examination of the CMHIP psychiatrist regarding his treatment of another patient. Specifically, defendant asserts that the expert erroneously dismissed defendant's previous diagnoses of psychotic behavior because they were based upon his self-reports of symptoms. Thus, to challenge the psychiatrist's credibility and expertise, defendant sought to cross-examine him regarding another case in which he allegedly disregarded the patient's self-reports prior to the patient's suicide. We agree with the trial court's ruling that this line of inquiry was irrelevant.

The right of a defendant to confront adverse witnesses is guaranteed by the Sixth and Fourteenth Amendments and includes an opportunity for effective cross-examination. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 LEd.2d 518 (1988); Merritt v. People, 842 P.2d 162 (Colo.1992). Nevertheless, effective cross-examination does not mean unlimited cross-examination. Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985)(Sixth Amendment guarantees a defendant an opportunity for effective eross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish). The trial court has discretion to place reasonable limits on cross-examination based on concerns about such factors as harassment, prejudice, confusion of the issues, or interrogation that would be repetitive or only marginally relevant. See Olden v. Kentucky, supra; Merritt v. People, supra. Absent a showing of abuse of discretion or manifest prejudice, limitation of eross-examination does not constitute reversible error. People v. Saiz, 832 P.3d 441 (Colo.2001).

Here, the record does not reveal that the psychiatrist disregarded defendant's self-reports. In fact, he identified defendant's previous mental history but then explained why he did not perceive that evidence would support a diagnosis of schizophrenia. Further, he acknowledged that portions of defendant's mental health records showed some evidence of psychosis, but explained that self-reports can exaggerate, and hence caution should be exercised in relying upon them. Under these cireumstances, we do not perceive that evidence regarding the psychiatrist's former patient would have been relevant to show that his opinion in this case was inaccurate or biased.

Moreover, allowing eross-examination regarding such evidence would have correspondingly allowed the prosecution, in rebuttal, to present information regarding the psychiatrist's successful treatment of other patients. Such admissions may have resulted in a significant amount of collateral testimony.

Finally, defendant was given ample opportunity to challenge the psychiatrist's eredibility and expertise during eross-examination. Defense counsel extensively questioned him on a number of topics, from the methodology of his clinical interviews with defendant and the particularities of the resulting sanity evaluation to his prior testimony in other insanity trials. In fact, counsel asked several questions about the previous patient before the prosecution's objection was sustained.

Therefore, defendant's confrontation rights were not impermissibly infringed.

The judgment is reversed, and the case is remanded for a new trial in accordance with the views expressed in this opinion.

Judge PICCONE concurs.

Judge ROY specially concurs.

Judge ROY

specially concurring.

I concur in the majority's result and rationale with respect to unitary trials. I write separately to express a concern about the conflict between a unitary trial and a defendant's right against self-inerimination. The linchpin of the majority opinion is the presumption that juries follow the trial court's limiting instructions. While I repose considerable confidence in juries, I am concerned that the protection of fundamental constitutional rights is ultimately entrusted to juries whose conduct with respect to those rights is not subject to reasonable challenge or review.

My concerns were summarized by a division of the Missouri Court of Appeals in a case applying a statute similar to ours:

Implicit in the posture of the prosecution is the contention that the procedure required by [the statute] for an oral instruction concurrently with the admission of the in-culpatory statements and the formal instruction at submission of the case insures that the jury will confine consideration of the evidence to the issue of the mental state of the accused and not to guilt, and so vouchsafes the constitutional right against self-incrimination. That assumes an ability for fairness to tax even the most earnest jury.

State v. McGoautha, 617 SW.2d 554, 561 (Mo.Ct.App.1981)(emphasis added). But see State v. Ohmes, 645 S.W.2d 681 (Mo.Ct.App.1984).

The presumption that the jury followed the court's instructions and the limitations on review of the jury's deliberations, CRE 606, are intended to assure the finality of the judgment, not to assure that a defendant's fundamental constitutional rights have been respected and preserved. Indeed, while it may be theoretically possible, it is practically impossible to verify that those rights were respected and preserved. And in a case in which the evidence of guilt is weak and a verdict of guilty is returned, it would, in my view, be likely that the defendant's rights were not respected or preserved.


source: Caselaw Access Project

author: Judge PICCONE.

license: Public Domain

text:
    Gillian P. HARTMAN, Plaintiff-Appellee, v. COMMUNITY RESPONSIBILITY CENTER, INC., Defendant-Appellant.
    No. 02CA2525.
    Colorado Court of Appeals, Div. V.
    Jan. 15, 2004.

      Holland & Hart LLP, Christopher H. Toll, Megan C. Bertron, Denver, Colorado, for Plaintiff-Appellee.
    Fowler, Schimberg & Flanagan, P.C., Daniel M. Fowler, Katherine T. Eubank, Amy Bauer, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge PICCONE.

In this Wage Claim Act (Wage Act) case, defendant, Community Responsibility Center, Inc. (CRC), appeals the trial court order awarding attorney fees to plaintiff, Gillian P. Hartman, pursuant to the former § 8-4-114. We affirm and remand for an award of appellate attorney fees.

After resigning from her employment, Hartman requested payment of wages and vacation time. CRC refused to pay. Hartman brought a Wage Act claim against CRC for $16,489.20 in unpaid wages and accrued vacation pay, the statutory penalty of fifty percent, and attorney fees.

CRC asserted various defenses, including misconduct, setoff, lack of consideration, lack of valid contract for the wages, and disloyalty. CRC also asserted counterclaims for conversion, civil theft, and breach of fiduciary duty, seeking $486,306 in damages, primarily based on Hartman's alleged improper payment of excessive salary to herself and others.

After a five-day jury trial, the court entered judgment in Hartman's favor for $16,135.86 in unpaid wages; $8,067.93 in penalties; and $3,202.49 in prejudgment interest, for a total judgment of $27,406.28. The trial court also entered judgment against CRC on its counterclaims. The judgment was affirmed on appeal. Hartman v. Cmty. Responsibility Ctr., Inc., 87 P.3d 202, 2003 WL 225098369 (Colo.App. No. 02CA1308, Nov. 6, 2003).

Thereafter, Hartman requested attorney fees as the winning party under the former § 8-4-114. At the attorney fees hearing, Hartman's expert witness testified that the hourly rates charged by her lawyers were reasonable given the complexity of the case. CRC's expert witness testified the rates charged by Hartman's lawyers were unreasonable for an employment case and that the associate working on the case was inefficient. The trial court awarded Hartman substantially all her attorney fees in the amount of $159,888.08.

I.

CRC contends the trial court erred in awarding Hartman attorney fees incurred in defending its counterclaims. We disagree.

The relevant provision of the Wage Act, § 8-4-114, in effect at the time provided:

Whenever it [is] necessary for an employee to commence a civil action for the recovery or collection of wages and penalties due as provided by sections [8-4-104] and [8-4-105], the judgment in such action shall include a reasonable attorney fee in favor of the winning party, to be taxed as part of the costs of the action.

Colo. Sess. Laws 1967, ch. 398, § 80-8-14 at 861 (repealed Colo. Sess. Laws 2003, ch. 286, § 2 at 1863).

"The purpose of [§ 8-4-114] is twofold, to indemnify the employee against the necessity of paying an attorney's fee when he is successful and to protect the employer against nuisance litigation." Hartman v. Freedman, 197 Colo. 275, 280, 591 P.2d 1318, 1322 (1979).

Here, the trial court's order gave ef-feet to the first goal of the Wage Act, indemnification of the employee against the necessity of paying attorney fees when she is successful, without running afoul of the see-ond goal, protection of the employer against nuisance litigation.

We acknowledge the trial court's statement that a "huge portion of the discovery and time spent in this case related to [CRC's] counterclaims ... because [CRC's] counterclaims transformed the nature of the litigation." However, we do not interpret that statement as supporting CRC's claim that the trial court "recognized that the fees for prosecuting the wage claim and for defending the counterclaim were severable." CRC's defenses to the wage claim-disloyalty and lawful setoff-and its countercelaims-disloyalty and breach of fiduciary duty-involved many of the same facts and legal issues.

Hartman claimed approximately $16,000 in wages and unpaid vacation time based on her annual salary of $122,000. CRC asserted that Hartman's claimed salary of $122,000 resulted from her disloyalty and that her correct salary was, at most, only $80,000 annually. Thus, to prevail on her wage claim, Hartman had to defeat CRC's defense of disloyalty and its statutory setoff of lawful charges or indebtedness, both of which were based on counterclaims for breach of fiduciary duty, for allegedly paying herself and others excessive salaries. Had she not rebutted these allegations, her wage claim would have failed, leaving her liable to CRC for its attorney fees under the former § 8-4-114. See, eg., Davidson v. Bonteso Gold Corp., 851 P.2d 254 (Colo.App.1993). Moreover, the fees for prosecuting the wage claim, rebutting CRC's defenses, and defending against CRC's counterclaims are not separable.

CRC's reliance on Porter v. Castle Rock Ford Lincoln Mercury, Inc., 895 P.2d 1146 (Colo.App.1995), is misplaced. In Porter, the employee prevailed on his wage claim, and the employer prevailed on a negligence counterclaim that did not arise from the same factual cireumstances as the wage claim. The issue in Porter was the applicability of the net judgment rule to determine who was the prevailing party. In concluding the employee was the prevailing party for purposes of an attorney fees award, the court declined the employer's request to apply the net judgment rule. Here, the net judgment rule has no application because Hartman prevailed on all claims, defenses, and counterclaims. Unlike Porter, Hartman had to defeat the disloyalty allegations to establish the validity and the amount of her wage claim.

Accordingly, we conclude the court did not err by including in the award attorney fees incurred in defending CRC's counterclaims.

II.

CRC next contends the trial court's award of attorney fees was unreasonable given the time spent prosecuting the claim, the amount in controversy in relation to the results obtained, and the hourly rates charged by Hartman's attorneys. We disagree.

When a statute mandates an award of attorney fees to the prevailing party through the use of the word "shall," as § 8-4-114 did, this language "leaves nothing to the discretion of the trial court except to determine what is a reasonable fee." Montemayor v. Jacor Communications, Inc., 64 P.3d 916, 925 (Colo.App.2002)(quoting Keeton v. Rike, 38 Colo.App. 505, 506, 559 P.2d 262, 263 (1977)). "The determination of the reasonableness of attorney fees is a question of fact for the trial court and will not be disturbed on appeal unless patently erroneous and unsupported by the evidence." Porter, supra, 895 P.2d at 1150; see Fang v. Showa Entetsu Co., -- P3d --, 2003 WL 22722955 (Colo.App. No. 02CAO0886, Nov. 20, 2003). Thus, we review the reasonableness of the amount of attorney fees awarded under an abuse of discretion standard. See Deighton v. City Council, 3 P.3d 488 (Colo.App.2000).

In awarding attorney fees, a trial court may consider several factors, including (1) the amount in controversy, (2) the time required to effectively represent the client, (8) the complexity of the case, (4) the value of the legal services to the client, and (5) the customary practice in the legal community regarding fees in similar cases. Fong, supra; Porter, supra.

A.

CRC urges us to find the amount of attorney fees unreasonable because most of these fees were incurred defending its counterclaims. CRC relies on a statement by the trial court that the case could have been tried in "a day, maybe a day and a half" if no counterclaims were at issue. However, we have already concluded that Hartman's fees incurred in successfully prosecuting her wage claim are not separate from those incurred in defending the counterclaims.

B.

CRC contends the trial court erred in finding the rates of Hartman's lawyers reflected the amount customarily charged in the locality for similar services because her attorneys charged commercial litigation rates, not employment litigation rates. We are not persuaded.

The trial court found, "[Bly virtue of the [CRC's] counterclaims, the entire nature of the litigation was transformed, and the case became easily in this Court's view a commercial litigation case. And not just that, but a fairly complex commercial litigation case." The court went on to detail the issues implicated by CRC's counterclaims, including, "issues regarding the volume of documents involving CRC's financial investments ... issues regarding the board minutes ... [and] issues regarding the board's authority."

The trial court concluded that the hourly rates of Hartman's attorneys were reasonable, the main partner's rate being on the low end of the commercial litigation seale and the associate's rate being on the high end of the scale. The court found the associate's rate reasonable because a considerable amount of that attorney's time was written off, which resulted in the equivalent of a lower hourly rate. Because the record supports the trial court's findings, those findings may not be disturbed on appeal. See Porter, supra.

C.

CRC contends the trial court erred because the attorney fees awarded are almost ten times the amount in controversy. CRC argues the trial court failed to consider the amount in controversy and the results obtained, which are among eight factors set forth in Mau v. E.P.H. Corp., 638 P.2d T77, 779 (Colo.1981), to be considered when determining the reasonableness of attorney fees. We disagree.

Here, contrary to CRC's assertion, the court referenced the amount in controversy, noting that Hartman won a judgment for just over $24,000 on her Wage Act claim. The court took into account the results obtained, mentioning that Hartman "won every dollar that she requested in her $16,000 claim" and "prevailed completely on the counterclaims." The court further noted that it "ruled almost without exception, in favor of [Hartman] and against [CRC] on the multitude of pretrial motions in this case." Thus, the trial court adequately considered the Maw factors.

We also disagree with CRC's contention that the $159,888.08 fee award is unreasonable simply because it is disproportionate to a wage claim worth only about $16,000. In Hartman v. Freedman, supra, 197 Colo. at 281, 591 P.2d at 1821, the supreme court expressly rejected the contention that "the award of attorney's fees is limited by the amount of the judgment on the merits." See also Mau, supra.

D.

CRC contends that the trial court erred in awarding attorney fees for duplicative work because this was a "one-attorney case" and Hartman had two attorneys present throughout the trial. We are not persuaded.

In support of this assertion, CRC cites Ramos v. Lamm, 718 F.2d 546, 554 n. 4 (10th Cir.1983), which stated, "No fees should be awarded for hours reported by lawyers or law clerks who are present at depositions, hearings, or trial for the purposes of being trained and who do not participate in or contribute to the proceedings."

We find Ramos inapposite, as that case involved more than twelve attorneys, at least five of whom "spent more than 200 hours each on the case and two spent more than 2000 hours each." Ramos, supra, 713 F.2d at 554; see also Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 488 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (disapproving Ramos on other grounds). Unlike Ramos, here only two attorneys were present during the trial, and one of them billed for only two hours of his time each day. Further, the record does not support CRC's assertion that the associate attorney did only "clerical work."

The Ramos court also acknowledged that "utilizing more than one lawyer may be reasonable in some situations, such as during settlement conferences or during trial." ° Ramos, supra, 713 F.2d at 554. Here, the trial court found that "[this was a complicated case," and "it was completely appropriate to have a partner and an associate, especially given the number of hours that were written down by the law firm for [the associate's] hours."

Accordingly, we conclude that the trial court did not abuse its discretion as to the amount of fees awarded.

On remand, the trial court is directed to determine Hartman's reasonable attorney fees to be awarded for defending this appeal. See Montemayor, supra; Porter, supra.

The order is affirmed, and the case is remanded for an award of Hartman's appellate attorney fees.

Judge VOGT and Judge WEBB concur.


author: Judge VOGT.

text:
    Delieth L. JONES, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO, Duckwall Alco Stores, Inc., and Liberty Insurance Group, Respondents.
    No. 03CA0768.
    Colorado Court of Appeals, Div. V.
    Jan. 29, 2004.
    The Frickey Law Firm, Janet L. Frickey, Lakewood, Colorado, for Petitioner.
    Ken Salazar, Attorney General, Eric S. Rothaus, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    Zarlengo, Mott, Zarlengo & Winbourn, P.C., Seott M. Busser, Denver, Colorado, for Respondents Duckwall Alco Stores, Inc. and Liberty Insurance Group.
   Opinion by

Judge VOGT.

In this workers' compensation case, Deli-eth L. Jones (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) denying her claim for penalties against Duckwall Alco Stores, Inc., and its insurer, Liberty Insurance Group (collectively employer), for failure to pay temporary total disability (TTD) benefits in a timely and regular fashion. We affirm.

Employer filed a general admission of liability for TTD benefits on September 19, 2001 and began paying benefits. In May 2002, claimant applied for a hearing. She alleged that employer was liable for penalties for making late and irregular payments of TTD benefits, in violation of § 8-42-105(2)(a), C.R.S.2008 (requiring payment of TTD benefits at least onee every two weeks). At the hearing, claimant produced copies of checks that employer had issued for payment of her TTD benefits.

The administrative law judge (ALJ) found that one check had been mailed three days after expiration of the two-week period for which it was intended and therefore imposed a penalty of $100 per day, for a total of $300, pursuant to § 8-48-804(1), C.R.8.2003.

However, the ALJ rejected claimant's argument that, whenever employer issued a check before the end of the two-week period for which TTD was owed, it was required to issue another check within two weeks thereafter. The ALJ reasoned that the statute should not be interpreted in a manner that would discourage early payment of benefits and that when claimant received an early payment, she could "just hold the check until its usual due date to avoid any problems caused by the early payment." Thus, the ALJ concluded that onee a payment date was established by the first payment, subsequent checks were due every two weeks thereafter, and early payment of some checks did not alter the due dates. The Panel affirmed.

Claimant again contends on appeal that employer should have been penalized for noncompliance with § 8-42-105(2)(a) because its early payment of some checks meant that more than two weeks elapsed before the next check was mailed. According to claimant, receiving checks in an "inconsistent manner" disrupted her household finances. We are not persuaded.

Section 8-42-105(2)(a) provides that "[elompensation shall be paid at least once every two weeks, except where the director determines that payment in installments should be made at some other interval." Consistent with the statute, Dep't of Labor and Employment Rule IV(E)(2), 7 Code Colo. Regs. 1101-8, provides that TTD "benefits awarded by admission are due on the date of the admission and payable once every two weeks thereafter."

In construing a statute, we must determine and give effect to the intent of the general assembly. We do so in the first instance by affording the language of the statute its plain and ordinary meaning. Midboe v. Indus. Claim Appeals Office - P.3d -, 2003 WL 22208414 (Colo.App. No. 08CA01159, Sept. 25, 2003). If the language is simple and its meaning clear, a forced, subtle, or strained construction should be avoided. Miller v. Indus. Claim Appeals Office, 985 P.2d 94 (Colo.App.1999).

We give deference to the Panel's interpretation of workers' compensation statutes and will set that interpretation aside only if it is inconsistent with the clear language of the statute or the legislative intent. Midboe v. Indus. Claim Appeals Office, supra.

Here, we agree with the Panel that $ 8-42-105(2)(a) simply requires that TTD benefits be paid at least every two weeks from the date compensation first becomes payable and that it contains no language suggesting that the date for payment of compensation is to be adjusted based on the date the insurer issued the most recent check. Nor, as the Panel observed, should the statute be construed to "establish grounds to punish insurers who make payments before the two-week window expires, or to accelerate the due date for the next payment if the insurer decides to make an early payment."

This interpretation is consistent with Rule IV(E)(2), which establishes the date of the admission of liability as the due date for back benefits and makes subsequent benefits payable "once every two weeks thereafter," without in any way suggesting that the date of the most recent check imposes a new baseline date for issuance of the next payment. See Magnetic Engineering, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo.App.2000)(interpretation given statute by officer or agency charged with its administration is entitled to deference).

Accordingly, the ALJ and the Panel did not err in concluding that employer's duty to pay TTD benefits commenced on September 19, 2001, with subsequent payments due at two-week intervals thereafter. Employer's decision to pay some TTD benefits before completion of the two week intervals did not alter the due dates for subsequent payments or accelerate the payment schedule. Thus, except for the one late payment, employer did not violate § 8-42-105(2)(a) or Rule IV(E)@Q).

The order is affirmed.

Chief Judge DAVIDSON and Judge DAILEY concur.


author: Judge CARPARELLL

text:
    Kimahli S. PEREGOY, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO, United Parcel Service, and Liberty Mutual Insurance Co., Respondents.
    No. 03CA0557.
    Colorado Court of Appeals, Div. II.
    Jan. 29, 2004.

      The Frickey Law Firm, Janet L. Frickey, Lakewood, Colorado, for Petitioner.
    Ken Salazar, Attorney General, John D. Baird, First Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    The Connell Law Firm, John M. Connell, Denver, Colorado, for Respondents United Parcel Service and Liberty Mutual Insurance Co.
   Opinion by

Judge CARPARELLL

In this workers' compensation proceeding against United Parcel Service and its insurer, Liberty Mutual Insurance Co. (collectively employer), Kimahli S. Peregoy (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that the issues of permanent disability and disfigurement were closed. We affirm.

The facts are undisputed. Claimant sustained a compensable injury in 1999. A division-sponsored independent medical examination (DIME) was conducted, and employer filed a Final Admission of Liability (FAL) for permanent partial disability (PPD) and disfigurement benefits.

In March 2002, claimant filed a timely objection to the FAL and an application for hearing. However, her application did not identify any disputed issues for determination. Instead, she maintained that, although she disputed no issues and none were ripe for determination, "all issues remain open." Employer responded that the claim was closed and no issues remained.

At the hearing, the parties stipulated that no issues were disputed or ripe. Claimant's counsel explained that this meant claimant could not put on any evidence that would raise any factual dispute concerning the issues admitted in the FAL. The administrative law judge (ALJ) concluded that, because claimant admitted there was no legitimate dispute concerning PPD and disfigurement and the purpose of § 8-48-203(2)(b)(ID), C.R.S.2008, is to promote prompt closure of issues regarding which there is no legitimate controversy, these two issues were closed. The ALJ also ruled that the issue of Grover-type medical benefits remained open. See Grover v. Indus. Comm'n, T59 P.2d 705 (Colo.1988). The Panel affirmed.

I.

Claimant contends that, under § 8-43-203(2)(b)(II), her objection, despite its failure to identify any contested issues, keeps her case open until she identifies a dispute that is ripe for hearing. We disagree.

When construing a statute, we must give effect to the General Assembly's purpose and intent as reflected in the plain language of the statute. People v. Luther, 58 P.3d 10183 (Colo.2002). We do not depart from the plain meaning unless it leads to an absurd result. Colo. Dept of Soc. Servs. v. Bd. of County Comm'rs, 697 P.2d 1 (Colo.1985). In addition, we read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts. Charnes v. Boom, 766 P.2d 665 (Colo.1988); Martinez v. Cont'l Enters, 730 P.2d 308 (Colo.1986).

"Section 8-48-208(2)(b)(II) is part of a statutory scheme designed to promote, encourage, and ensure prompt payment of compensation to an injured worker without the necessity of a formal administrative determination in cases not presenting a legitimate controversy." Dyrkopp v. Indus. Claim Appeals Office, 30 P.3d 821, 822 (Colo.App.2001).

Articles 42 and 48 of the Workers' Compensation Act of Colorado (Act), $ 8-40-101, et seq., C.R.S.2003, establish the procedures for DIMEs, FALs, settlements, and hearings.

Section 8-42-107.2(4), C.R.S.2003 (enacted effective Aug. 5, 1998), requires that the insurer or self-insured employer must either file an admission of liability or request a hearing to contest one or more findings in the DIME report. See Dep't of Labor & Employment Rule IV(N)(6), 7 Code Colo. Regs. 1101-8.

Section 8-48-208(2)(b)(II) grants a claimant the right "to file an application for hearing, or a response to the [employer's] application for hearing, as applicable, on any disputed issues that are ripe for hearing." It also makes it clear that a claimant "may contest" the FAL "if the claimant feels entitled to more compensation." Still further, it requires notice to the claimant "that the case will be automatically closed as to the issues admitted in the final admis-gion if the claimant does not ... contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing." Section 8-48-208(2)(b)(IH).

When there is a hearing, the findings of a DIME physician can be overcome only by clear and convincing evidence. Section 8-42-107(8)(b)(III), (b.5)(I)(D), (c), C.R.S.2003. An ALJ's award, whether resulting from an admission or a contested hearing, "becomes final by the exhaustion of, or the failure to exhaust, review proceedings," and thereafter "no further proceedings to increase or decrease [the awarded] benefits beyond those granted by the order are authorized, unless there is an appropriate further order entered directing that the proceedings be reopened." Brown & Root, Inc. v. Indus. Claim Appeals Office, 838 P.2d 780, 788 (Colo.App.1991).

Onee issues are closed, they may only be reopened on the grounds stated in § 8-48-308, C.R.S.2003. Section 8-43-208(@2)(d), C.R.S.2003. Among those grounds is a change in the claimant's condition. Section 8-483-308(1), C.R.98.2003.

Claimant asserts that, when neither the claimant nor the employer disputes DIME findings and the employer files an FAL, the claimant who feels entitled to more compensation but cannot presently identify any basis for it may prevent the case from being closed by filing a general objection to the FAL. She argues that a claimant is required to request a hearing to keep the case open only when there is a disputed issue that is ripe for hearing. In her view, when there is no disputed issue that is ripe for hearing, a claimant's general objection is sufficient to keep the case open without a request for a hearing. Claimant contends that a "disputed issue" exists when a claimant timely requests that the employer provide a benefit, the claimant can prove his or her entitlement to the benefit, and the employer refuses to provide it. She also contends that an issue is not ripe for hearing until it is ready for adjudication, both legally and factually. It appears that claimant is arguing, at least in part, that although her condition at the time of employer's FAL provided her with no present and legitimate controversy regarding PPD and disfigurement, she may have a dispute if her condition changes.

We conclude that claimant's argument strains the statutory language and is contrary to the General Assembly's purpose and intent as reflected in the plain language of the Act. Neither § 8-48-208(2)(b)(I1) nor any other provision in the 'Act states or implies that a claimant may file an objection to an FAL without identifying a contested issue. Likewise, no provision states or implies that issues admitted in an FAL may remain open indefinitely until the claimant identifies a disputed issue and requests a hearing. See Lobato v. Indus. Claim Appeals Office, - P.3d --, 2008 WL 21283770 (Colo.App. No. 02CA1145, June 5, 2003)(there was no requirement to file a DIME request within a certain time until the 1998 amendments).

To the contrary, the plain language of the pertinent provisions of the Act demonstrates that the General Assembly's intent was to provide procedures to determine a claimant's medical condition; to utilize a DIME to assist in that determination; to require the employer to admit or "contest" the DIME report; to give the claimant an opportunity to "contest" the DIME report and the FAL; to give effect to the DIME physician's findings unless the contesting party overcomes them by clear and convincing evidence; to close all issues determined by the DIME physician when there is no dispute and, thus, no need for a hearing; when there has been a hearing, to close all issues determined by the hearing and review process; and to permit reopening of a final award on specified grounds, including a change in the claimant's condition.

Giving effect to the plain language of § 8-43-208(2)(b)(II), giving consistent, harmonious, and sensible effect to all parts of the statute, and refraining from a strained interpretation, we conclude that a claimant has thirty days after the date the employer files an FAL to file an application for a hearing. Lobato v. Indus. Claim Appeals Office, supra. The application for the hearing must contest some aspect of the FAL. To contest an aspect of an FAL, a claimant must be able to state the benefit to which he or she is entitled. To prevail at the hearing, the claimant must overcome the DIME by clear and convincing evidence. Section 8-42-107(8), C.R.S.2003. If a claimant does not contest the FAL within thirty days, the case is automatically closed pursuant to § 8-48-208(2)(b)(I1).

Thus, the Panel correctly ruled that the issues of PPD and disfigurement are closed, subject to the reopening provisions of the Act.

IL.

Claimant also contends that if § 8-43-208(2)(b) is interpreted in this manner, her due process and equal protection rights are violated because it is unfair to require claimants to seek reopening of claims. Claimant posits a situation in which an injured worker returns to employment and is dismissed after closure of the claim because of injury-related restrictions. She argues that the hypothetical worker could not seek reopening absent the ability to prove a worsening of condition. We perceive no constitutional defect.

We first note that this court has initial jurisdiction to address challenges to the constitutionality of the Act. MGM Supply Co. v. Indus. Claim Appeals Office, 62 P.3d 1001 (Colo.App.2002).

When determining whether § 8-48-203(2)(b) is constitutional, we begin with the presumption that it is valid. Therefore, the burden is on claimant, as the challenging party, to prove the statute is unconstitutional beyond a reasonable doubt. See MGM Supply Co. v. Indus. Claim Appeals Office, supra.

A.

Because the receipt of workers' compensation benefits is not a fundamental right, the rational basis test applies to claimant's equal protection challenge. See Lobb v. Indus. Claim Appeals Office, 948 P.2d 115 (Colo.App.1997). Under that test, a statutory classification will stand if it bears a rational relationship to a legitimate governmental objective and is not unreasonable, arbitrary, or capricious. Further, if any conceivable set of facts would lead to the conclusion that a classification serves a legitimate purpose, a court must assume that those facts exist. Alexander v. Indus. Claim Appeals Office, 42 P.3d 46 (Colo.App.2001).

The threshold question in an equal protection challenge is whether the legislation results in dissimilar treatment of similarly situated individuals. To violate equal protection provisions, the classification must arbitrarily single out a group of persons for disparate treatment from other persons who are similarly situated. Lobb v. Indus. Claim Appeals Office, supra.

Initially, we will assume, arguendo, that a claimant whose claim remains open as the result of a dispute and a hearing under § 8-43-203(2)(b) is similarly situated to a claimant whose claim has been closed and is subject to the reopening provisions of § 8-48-303. See Duran v. Indus. Claim Appeals Office, 883 P.2d 477, 482 n. 9 (Colo.1994)("too exacting a focus" on classifications between claimants overlooks the fact that the Act "categorizes injured workers as a whole"). Persons in both classes seek additional benefits, but arguably claimants in the two classes are treated differently based on whether their claims had been previously closed.

The purpose of the 1998 amendments to § 8-48-208(2)(b) was to promote, encourage, and ensure the prompt payment of compensation without the necessity of a formal administrative determination in cases not presenting a legitimate controversy. Dyrkopp v. Indus. Claim Appeals Office, supra. That purpose is accomplished by requiring the closure of claims if no disputed issues are ripe for determination.

Furthermore, it is rational to provide time limitations on a claimant's right to contest closure. In that way, the express intent of the Act, to provide "quick and efficient delivery of disability and medical benefits" to injured workers "without the necessity of any litigation" and "at a reasonable cost to employers," is advanced. See § 8-140-102(1), C.R.S.2008; McManus v. Indus. Claim Appeals Office, 81 P.8d 1074 (Colo.App.20083).

Therefore, we conclude that the legitimate state goals of relieving injured workers from the adverse economic effects of disabling work-related injuries and reducing costs are furthered by § 8-48-208(2)(b). Thus, neither state nor federal guarantees of equal protection are offended by the fact that the classification may require some claimants to comply with the reopening provisions of § 8-48-803. See Lobb v. Indus. Claim Appeals Office, supra.

B.

We also reject claimant's due process argument based on her failure to develop the issue, see Cordova v. Indus. Claim Appeals Office, 55 P.8d 186 (Colo.App.2002)(claim rejected in part because claimant did not present court with specific argument or authority challenging the constitutionality), or to prove a due process violation beyond a reasonable doubt. See MGM Supply Co. v. Indus. Claim Appeals Office, supra.

The order of the Panel is affirmed.

Judge TAUBMAN and Judge NIETO concur.


author: Judge CARPARELLLI.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eddy HUERTA, Defendant-Appellant.
    No. 02CA0913.
    Colorado Court of Appeals, Div. III.
    Feb. 12, 2004.
    Ken Salazar, Attorney General, Alisha M. Burris, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Eddy Huerta, Pro Se.
   Opinion by

Judge CARPARELLLI.

Defendant, Eddy Huerta, appeals the trial court's order denying his Crim. P. 85(a) motion to correct an illegal sentence. We vacate the order and remand for dismissal of the motion.

In 1994, defendant pleaded guilty to one count of second degree burglary, a class three felony, for an offense occurring in May 1993. The trial court sentenced him to sixteen years in the Department of Corrections (DOC), and the sentence was later reduced to fifteen years.

Defendant was released on discretionary parole on June 15, 2000. The parole agreement attached to defendant's Crim. P. 85(a) motion indicates that his parole was to be discharged on June 15, 2005. Defendant violated his parole in August 2000 and was returned to DOC. It appears from the record that defendant's reinearceration will continue through 2007, the statutory discharge date on his original sentence.

After defendant was returned to prison, he filed pro se a Crim. P. 85(a) motion to correct his allegedly illegal sentence and argued that DOC was applying the wrong discretionary parole statute to his sentence. He asserted that he had been paroled under § 17-22.5-303(6)-(7), C.R.S.2008, which provides that the parole period shall be five years and, upon revocation of parole, the parolee may be returned to DOC for a period of not more than five years.

The People filed a response to defendant's motion, contending that defendant had been paroled pursuant to § 17-22.5-408(5)-(6), C.R.98.2008. Under that statute, upon revocation of parole, the parolee may be returned to DOC for a period up to the discharge date of the parolee's sentence.

The trial court denied defendant's motion, concluding that his sentence was not illegal based on its review of defendant's submissions, the People's response, and the court's file.

On appeal, defendant contends that the trial court erred when it denied his motion. Specifically, he asserts that DOC applied the wrong parole statute in calculating his release date upon his reincareeration.

We invited supplemental briefs on the questions of whether Crim. P. 35 grants jurisdiction to district courts to address issues related to the administration of parole and whether an action raising such an issue must be brought in a civil suit against the DOC and parole board as defendants. Having reviewed the supplemental briefs, we conclude that the trial court's order must be vacated and on remand the motion must be dismissed.

Defendant filed his motion pursuant to Crim. P. 85(a), which provides authority for the trial court to correct an illegal sentence or a sentence that was imposed in an illegal manner. For purposes of Crim. P. 35(a), an illegal sentence is one that is inconsistent with the statutes governing sentencing. See People v. Green, 36 P.3d 125, 126 (Colo.App.2001)

Because defendant's challenge is not to his sentence, but rather to an act by DOC, Crim. P. 35(a) does not give the trial court the authority to decide the issues raised in defendant's motion. People v. Carrillo, 70 P.3d 529 (Colo.App.2002). Defendant's claim lies in an action against DOC or the State Board of Parole, neither of which is a party here. See People v. Carrillo, supra (defendant's claim that restitution payments from his inmate account were being improperly withheld not cognizable under Crim. P. 85; relief lies in an action against DOC); People v. McMurrey, 39 P.3d 1221, 1225 (Colo.App.2001)(concluding that defendant's claim regarding his sex offender classification had to be brought against DOC); People v. Gallegos, 975 P.2d 1185 (Colo.App.1998)(parole board determines which statute to apply to an application for parole), aff'd by operation of law, 2 P.3d 716 (Colo.2000); ef. People v. Lowe, 60 P.3d 758, 755 (Colo.App.2002)(reviewing trial court's order in criminal case where defendant asked for an order to show cause and court ordered and received a response from DOC).

Defendant's claim also does not state a ground for relief under Crim. P. 85(c). Crim. P. 85(c)(2)(VII) allows a defendant to seek immediate release when the sentence has been fully served or when the revocation of parole was unlawful. Defendant does not make either claim here. See People v. Carillo, supra; cf. People v. Gallegos, supra (granting review under Crim. P. 35(c) when defendant asserted sentence had been fully served).

Therefore, the trial court's order is vacated, and the case is remanded to the trial court with instructions to dismiss the motion for lack of jurisdiction.

Judge TAUBMAN and Judge NIETO concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cathy Jane BRUNNER, Defendant-Appellant.
    No. 02CA2321.
    Colorado Court of Appeals, Div. III.
    Feb. 12, 2004.

      Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Donald R. Carwin, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CARPARELLL

Defendant, Cathy Jane Brunner, appeals the trial court's order revoking her probation and imposing a twenty-day county jail sentence. We affirm.

On June 1, 1992, following defendant's guilty plea to a felony theft count, the trial court sentenced her to eight years of probation and ordered her to pay $39,865.17 in restitution and court costs. On June 1, 2000, the prosecution filed a complaint for revocation of probation alleging that defendant failed to make payments. The trial court revoked defendant's probation and, after confirming that she had paid the restitution in full, sentenced her to twenty days in county jail.

L.

Defendant contends that the trial court lacked jurisdiction to revoke her probation because the last day of her probation was May 31, 2000, and the prosecution filed its complaint to revoke her probation on June 1, 2000. We are not persuaded.

This court reviews jurisdictional questions de novo. Springer v. City & County of Denver, 13 P.3d 794 (Colo.2000); People v. Valdez, 68 P.3d 484 (Colo.App.2002).

A district court loses jurisdiction over a probationer after the term of probation has expired. People v. Galvin, 961 P.2d 1137 (Colo.App.1997)

In § 24-101, et seq., C.R.8.20083, the General Assembly provides general rules for the construction of statutes. Section 2-4-107, C.R.S.2003, provides that the word "year" means a calendar year. With regard to computation of time, § 2-4-108, C.R.S.2003, provides that:

(1) In computing a period of days, the first day is excluded and the last day is included.
(8) If a number of months is to be computed by counting the months from a particular day, the period ends on the same numerical day in the concluding month as the day of the month from which the computation is begun....

However, the statute is silent with regard to the method for calculating a period of years.

In light of the statutory methods of computing a period of days and a number of months, we conclude that a period of years ends on and includes the anniversary date in the concluding year, that is, the same month and day of the concluding year as the month and day from which the computation began. See also Gibson v. People, 44 Colo. 600, 99 P. 333 (1909)(holding that a child is sixteen years of age on the sixteenth anniversary of his birth); Cade v. Regensberger, 804 P.2d 238 (Colo.App.1990)(holding that the date of the event that triggers the start of a limitation period is excluded from the computation of the statutory period, and the anniversary date is included); Patterson v. Monmouth Reg'l High Sch. Bd. of Educ., 222 N.J.Super. 448, 587 A.2d 696 (N.J.Super.Ct.App.Div.1987)(discussing methods for determining periods of years and concluding that anniversary date is included).

Therefore, the last day of defendant's probation was June 1, 2000. Thus, because the complaint was filed on the last day of the probation period, the trial court had jurisdietion to revoke defendant's probation.

Having so ruled, we need not address the People's alternative argument that service of the summons tolled the term of the probation period or defendant's argument in reply that there was no tolling because the summons and service were defective.

IL.

Defendant next contends that the trial court abused its discretion when it imposed a punitive twenty-day jail sentence. We disagree.

On appellate review of a sentence, the decision of the sentencing court must be accorded deference, and the sentence imposed will not be overturned absent a clear abuse of discretion. People v. Fuller, 791 P.2d 702 (Colo.1990); see also § 18-1-409(1), C.R.8.2008.

Defendant settled with the victims in September 2002. However, because defendant failed to comply with court-ordered payments for eight years, we conclude that the court did not abuse its discretion when it imposed a punitive jail sentence.

The order is affirmed.

Judge KAPELKE and Judge ROY concur.