People v. Herdman
2012 COA 89
Colo. Ct. App.2012Background
- Herdman, Army private, was charged with sexual assault, second-degree kidnapping, and a crime of violence sentence enhancer; conviction followed trial after various mental-health examinations were conducted and whether related evidence could be admitted was litigated.
- Herdman withdrew insanity, raised involuntary intoxication defenses tied to Lariam; multiple court-ordered examinations occurred (bond, competency, sanity) and later rebuttal testimony was offered by prosecution experts.
- Prosecution offered testimony from three court-ordered-exams to rebut Herdman’s mental-condition defenses; trial court admitted this evidence.
- A key trial issue was whether admission complied with statutory restrictions on mental-health evidence and whether it violated self-incrimination and discovery rules; the court upheld admission in part.
- The court affirmed convictions but remanded to correct the mittimus for kidnapping sentence and to determine presentence confinement credit; no reversal for cumulative error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prosecution experts under the mental-health statutes | Herdman argues inadmissible under §16-8-107(1)(a)/(1.5) | People contend exceptions allowed rebuttal and later notice sufficed | Admissible under §16-8-107(1.5)(a) and notice provisions |
| Privilege against self-incrimination and court-ordered examinations | Admission violated Fifth Amendment privilege | Examinations related to mental condition; rebuttal allowed | No violation; testimony admissible to rebut defense evidence |
| Rule-based challenges to prosecution experts (relevance/404/408/403) | Evidence of cocaine use, psychopathy, and malingering irrelevant or prejudicial | Evidence supported by defense; probative to involuntary intoxication defense | Not reversible; several pieces admissible as rebuttal; overall admissibility affirmed |
| Sergeant Gallegos' testimony (Iraq service, PTSD, and conduct) | Testimony was helpful to malingering theory; discovery concerns | Hearsay and prejudicial impact | Hearsay error harmless; most challenged portions not reversible |
| Mittimus correction and presentence confinement credit | Mittimus must reflect eight-year kidnapping sentence and proper parole law; credit calculation needed | Remand for precise factual determination of credit | Remanded for mittimus correction and determination of presentence confinement credit |
Key Cases Cited
- People v. Garcia, 113 P.3d 775 (Colo.2005) (when considering involuntary intoxication/mental-condition defenses, related evidence can be admissible)
- Gray v. Dist. Court, 884 P.2d 286 (Colo.1994) (purpose of court-ordered examinations; precaution against manipulation of system)
- Flippo, 159 P.3d 100 (Colo.2007) (mental-condition evidence broad definition; triggers notice requirements)
- Gonzales-Quevedo, 203 P.3d 609 (Colo.2008) (rebuttal of insanity/mental-condition defenses with alternative explanations)
- Mapps, 231 P.3d 5 (Colo.App.2009) (plain-error considerations for unconstrained witness references; Writings on limiting instructions)