*1 agree majority’s holding I at cause with
p. clearly 12 that the record establishes Seeley’s discharge in accordance
that was personnel promulgated manual
with case, uphold the
the Sheriff in this I would summary granting
district court’s order
judgment county in favor of the and not decide whether Sheriff
basis
Brown bound the terms of the
personnel adopted. manual he
I am authorized to state that Justice joins special in this concurrence.
LOHR Colorado, of the State of PEOPLE
Plaintiff-Appellee, FULLER,
Douglas Burt
Defendant-Appellant.
No. 89SA288. Colorado,
Supreme Court
En Banc.
May 1990. Rehearing Amended on Denial of
As
July *2 counsel, rights to
ance of his constitutional law, process and his constitutional due rights against self-incrimination. also contends that his deferred *3 by receiving must be reinstated for theft since the deferred sentence was revoked on Woodard, Atty. Gen., B. Duane Charles of We affirm the basis invalid convictions. Howe, Atty. Gen., Deputy Richard H. Chief remand part, part, in reverse in and with Gen., Krause, Forman, and John Sol. J. directions. Denver, Gen., Atty. plaintiff-ap- for Asst. pellee. 30, 1987, July approximately 2:00 On at a.m., a young a man robbed convenience Defender, Vela, Public and
David
State
in
of
Greeley.
store
In the course
the
Lord, Deputy
De-
Kathleen A.
State Public
clerk,
robbery,
put
he grabbed the store
a
fender, Denver,
defendant-appellant.
for
the
knife to her throat and demanded
con-
the
Justice ERICKSON delivered
register.
tents of the store’s cash
The
Opinion
the
of
Court.
gave
money
reg-
from the
clerk
him the
ister,
twenty
defendant,
Fuller,
approximately
which
dol-
Douglas
was
Burt
was
The
lars,
aggravated robbery,1
give
money
of
second
and offered to
him the
convicted
also,
degree kidnapping,2
pursuant
and
to
purse.
the
from her
from
store’s safe and
16-11-309,
(1986),
8A C.R.S.
of two
section
refused,
The robber
and with the knife still
sentence enhancement counts.
violent crime
throat,
the clerk out
at the clerk’s
took
sentenced to consecutive sen-
Fuller was
side of
front door and toward the dark
twenty years
aggravated
on the
tences of
building.
pair
While
were still
front
thirty years
robbery
and
on the
conviction
store,
pulled
into the store’s
of
a ear
degree kidnapping conviction. As a
second
away
parking lot and the clerk broke
kidnapping
and
con-
result of the
captor.
her
After a brief confrontation
victions,
deferred
on a
Fuller’s
car,
the robber
with
driver of the
fled
by receiving3
prior
for theft
was
conviction
pursued
bicycle
on a
and the driver
him to
and he was resentenced to a term
revoked
nearby
park. Twenty minutes
a
trailer
la-
Department
custody
of the
of Cor-
ter,
police
he
stopped
Fuller while was
appeal,4 Fuller
that:
rections. On
claims
park
riding
bicycle
his
of the trailer
and
out
(1)
mandatory
sentencing
consecutive
him
store clerk
detained
until
was
provision
16-11-309
his
of section
violates
brought to
The clerk
the scene.
identified
right
equal protection of
to
constitutional
Fuller as the man who robbed her
took
law, (2)
there was insufficient evidence
her out of
Fuller was searched.
the store.
degree
support
to
his conviction
second
produced
money,
The search
a knife and
(3)
the trial court erred
de-
kidnapping,
including a
two dollar bill from the
marked
challenges
pro-
for cause
nying his
to two
register.
cash
store’s
(4)
improper-
trial
spective jurors,
court
charged
aggravated
Fuller was
with
rob-
ly
eye-
his tendered instructions on
denied
kidnapping and
bery,
second
two
(5)
identification,
the trial court
witness
counts of violent
sentence enhancement
sentence,
in imposing
discretion
abused its
crime,
to arraign-
section 16-11-309. Prior
(6)
providing
the de-
the statute
for
ment,
challenged
Fuller
the constitutionali-
impaired mental
violated
condition
fense
statutory requirements
rights
ty
of Colorado’s
effective assist-
constitutional
18-4-302,
(1986).
validity
challenge
of section
tutional
to the
16-
8B C.R.S.
1. Section
impaired
condition
11-309 and the
mental
stat-
18-3-302,
(1986 &
8B C.R.S.
Section
utes,
-122,
C.R.S.
8A
sections 16-8-101
Supp.).
Supp.),
appeal
transferred to
& 1989
according
sppreme
sections
court
13-4-
18-4-410,
(1986).
3. 8B C.R.S.
-110,
(1987).
102(l)(b) and
6A C.R.S.
4. initially
appeal was
filed in
the court
presents
appeals.
defendant
Since the
a consti-
E.g.,
v. Calvare
similarly
mental condition.5
situated.
the defense of
si,
277, 281,
statutory-
court found the
After the trial
crimes
Statutory classification of
constitutional, Fuller did not as-
provisions
differences
based on substantial
must be
impaired mental condi-
the defense of
sert
reasonably relat
that are based on fact and
tion.
Id. at
legislation.
purposes
ed to the
guilty
aggrava-
jury
found Fuller
281-82,
at 318.
that call
Statutes
degree kidnapping and
robbery, second
ted
penalties for the same conduct
for different
crime of violence.
two counts of
protec
equal
violate
defendant’s
Department
of Cor-
was sentenced to
People Young,
tion of the law.
thirty
consecutive terms
rections for
Calvaresi,
*4
(Colo.1988);
kidnapping conviction and
years
P.2d at 318. How
188 Colo. at
aggravated
twenty years on the
“
ever,
Assembly
free to
General
[is]
‘[t]he
addition,
re-
the trial court
conviction.
punishments
for con
prescribe different
on the theft
the deferred sentence
voked
may
rationally perceived to
duct
it
resentenced Fuller
receiving conviction and
degrees
reprehensi
of social
have different
years to
served consecu-
to a term of six
be
”
Thatcher,
People v.
bility.’
sentences.
tively to the other
Johnson,
(Colo.1981) (quoting People v.
(1978)).
More
who incidents, reasonable relation bears no rate the record does asserts that inter any legitimate governmental ship to degree conviction of second support not his est. was no evidence kidnapping since there that the that established presented at trial the law re protection of
Equal greater risk subjected to a clerk was who are store of all those quires like treatment may (1986), exception inform 16-8-103.5(1), that the defendant re- C.R.S. 8A 5. Section prior to trial or her inten- at time indicate his court of that intention quires a defendant to impaired mental good assert the defense shown. tion to cause arraignment, with the time of condition at the challenges her to two denying of harm when Fuller forced out of the for cause dire, knifepoint. prospective jurors. During voir one store at that, prospective juror stated because 18-3-302(1), 8B C.R.S. job in a laundromat where at times she her Supp.) provides “[a]ny person who know safety, sympathized feared for her she ingly any person and carries seizes victim in this case and that she with the another, place his consent one without promise sympathy could not that this justification, and without lawful commits Upon would not affect her decision. subse- degree kidnapping.” jury second quent questioning by judge, the trial how- given this case was an instruction on sec ever, she said that she would decide the kidnapping ond that tracked the case on the merits and would not let her satisfy language of the statute. To sympathy influence her deci- for the victim degree kidnapping, elements of second sub challenge sion. After his for cause was movement of the victim is not re stantial denied, peremp- Fuller exercised one of his quired. prosecution must establish tory challenges prospective that to exclude that the victim was moved and juror. prospective juror stated Another substantially increased the risk movement that he had been a victim of vandalism Apodaca People, of harm to the victim. *5 persons that he that theft and believed 467, 475 Fuller ar 712 P.2d too much accused of crimes were accorded gues prosecution that the failed estab by the protection. On further voir dire asportation lish the element of second de court, juror that stated that he believed an gree kidnapping taking since his conduct in proven guilty accused was innocent until expose the clerk out of the store did not the on the and that he would decide the case substantially greater clerk to a risk of presented request- at trial. Fuller evidence harm. juror prospective ed that the second be review, appellate a conviction On based the court denied excused for cause and trial jury upheld a verdict be if there is on must challenge. per- Fuller did not have a the record, in evidence viewed substantial emptory challenge available to exclude the light prosecu in to the most favorable prospective juror juror that sat second and tion, supports People that the verdict. v. jury. as a member 411, Schoondermark, (Colo. P.2d 414 699 determining The test for whether 1985). We will not set aside a conviction disqualified prospective juror a should be of evidence because a conclusion for lack person will render for bias is whether by jury different from that reached impartial according to the a fair and verdict might be reached on the same evidence. trial. presented law and the evidence at 423, 427, Rosenberg, 194 Colo. People v. (Colo. Drake, 1243 People v. (1978). prosecu 1214 1988); 16-10-103(1)(j),8A C.R.S. see also § presented in case evidence that the tion this (1986). given The trial court is broad dis by taken from the store store clerk was challenges cause ruling cretion in on for being night Fuller at and that she was not overturned un and its decision will be building. side of the taken to the dark appears in less a clear abuse of discretion evidence, jury have could From Drake, People 748 P.2d at the record. placed the clerk was fairly concluded that bias, deciding question 1243. In substantially greater risk of harm. at a credibility appearance of veniremen and evidence, light in the most fa viewed by are observed the trial court. Nai best prosecution, supports Full vorable to 30, 32, 612 P.2d People, lor v. degree kidnap of second er’s conviction 80 ping. jurors were prospective The two who III. displayed challenged may cause opinions gener- crime in robbery preconceived about attacking aggravated However, jurors convictions, prospective stat- kidnapping al. both and second the case based on by they ed that would decide argues that the trial court erred
707 sentencing and on crime statute in effect at the evidence submitted at trial sentenced,6 requires sen given on the instructions time Fuller was a law based Russo, aggravated P.2d 2 People felony court. tence for a class in the See (Colo.1986) (“[I]t trial range twenty-four forty-eight years. is the court’s weight to prerogative give robbery felony, considerable a Aggravated class juror’s fairly 18-4-302(3), that he can presumptive assurance section with a case.”). impartially on the The deni- serve range years. sentence of four to sixteen challenges al of the for cause this case 18-1-105(1)(a)(IV). Section 16—11— not an of discretion. abuse 309(1) a class 3 calls for a sentence on range
felony aggravated conviction in the IV. thirty-two years. Theft of sixteen to felony if receiving is a class 4 the value that the trial court Fuller contends property greater involved is that three refusing jury any to the erred to submit than ten thousand hundred dollars but less eyewitness one of the three instructions 18-4-410(4). A dollars. Section he tendered to the trial identification that felony a on a conviction of a class has so, doing urges he us to overrule court. years. presumptive range eight of two to that, held a line of cases in which we have theory of the case when the defendant’s The sentences on Fuller’s convictions for identity, jury need not be was mistaken degree kidnapping aggravated second eyewitness credibility on the instructed aggravated sen- were within given where an instruction is identification tencing ranges required by 16—11— section credibility general. on the of witnesses required to im- 309. The trial court was Vigil, See aggrava- in the pose consecutive sentences *6 (Colo.1986). Here, properly the trial court degree kidnap- range ted on Fuller’s second credibility of jury the on the instructed ping aggravated robbery and convictions. and Fuller’s claim is without witnesses 16-ll-309(l)(a). im- The sentences Section merit. aggra- end of the posed in the lower were the range and were consistent with vated V. pre- in contained Fuller's recommendations the trial court Fuller, Fuller claims that the report. sentencing In sentence by sentencing him to discretion abused its trial court considered the seriousness years thirty terms of on his consecutive crimes, the deterrent effect on the com- the conviction, kidnapping twen second community, munity, safety of the and the robbery convic ty years aggravated on his on a deferred the fact that Fuller was tion, conviction for years and six on his time of the commission of sentence at the receiving. particular, In by theft robbery kidnapping. The trial the and placed excessive em claims the trial court court stated: the crimes and phasis on the seriousness of Defendant The crimes of which the his rehabilitative failed to take into account The defen- was convicted are serious. potential. away leading the victim from dant was robbery a dark and the scene of the into degree kidnapping is a class Second par- Had third relatively a secluded area. person kidnapped is victim felony if the intervened, 18-3-302(3). customers who The ties not the robbery. of a Section the offering opportunity the for up a con drove range for a sentence on presumptive only speculate escape, one can eight from to victim to felony a class 2 viction for might come to the to harm years. Section 18-1- as what twenty-four that harm the fact 105(1)(a)(IV), 16- victim. Whether 8B C.R.S. Section (1986), the victim because of 11-309(1), didn’t come to 8A violent C.R.S. change applies acts committed on or amendment to was amended to 6. Section 16-11-309 aggravated range July in the to sec. minimum sentence after 1988. Ch. range. Sess.Laws, 679, midpoint presumptive of the 11—309(1)(a), Supp.). C.R.S. 8A 16 — Only intervention fact the court in uphold and the victim was must the sentence. point escape exceptional able at that to an appellate doesn’t mean cases will court that these crimes judgment aren’t serious and that substitute its for that of the trial something easily this is can be sentencing People court matters. passed by. Vigil, case, this con- section 16-11-309 mandated placed in should not be fear for personal aggravated secutive sentences safety
their or for life. their range. light of the fact They that Fuller shouldn’t be terrorized someone felony a on a deferred sentence at the time with knife. robbery of the of the and kid- commission out, attorney points theAs district it is napping, considering of the and the nature important message to send the com- crimes, court did its the trial not abuse robbery munity kidnap- that armed imposing discretion in consecutive sen- ping things are not that will be tolerated. aggravated robbery tences and second for At least for the time the defendant’s in degree kidnapping. custody community is safe at least conduct. Fuller also that the trial maintains regard potential With to Fuller’s reha- for failing court erred to set forth reasons bilitation, the stated: trial court year for the imposed six sentence for might Whether or not the Defendant by receiving theft conviction claims an rehabilitation, subject to be Court’s requiring abuse of discretion in that sen willing subject community not consecutively tence be served to his other having the risk of the Defendant out and that, during The record sentences. shows wandering potential around with the hearing, sentencing the trial court did committing these kind of crimes at underly separately not address the reasons time in the near future. ing imposed theft on the On review appellate of a sen rea receiving conviction. trial court’s tence, sentencing court decision record, soning, in the as shown relates must be accorded deference because of the imposed aggravated sentences judge’s familiarity with the trial circum degree kidnapping con and second *7 Watkins, the People stances of case. v. victions. 234, (Colo.1984). P.2d A trial 684 239 The judge imposing six-year imposed has broad discretion when sentence on the sentence, imposed by receiving and the sentence theft conviction the will was within presumptive range felony. in the absence of a clear for a 4 not be overturned class However, exercising for imposing of discretion. Id. sen no reasons the six abuse discretion, year tencing consecutively a trial court must con sentence to the other offense, appear the the in the The trial sider the nature of charac sentences record. potential by failing of court to set ter and rehabilitative the of erred forth the basic fender, development respect imposition of reasons for the for sentence crime, receiving by and the deterrence of and the on theft Pur- law conviction. 18-1-409(3), protection public. E.g., People of the suant to section 8B C.R.S. 221, Bruebaker, (1986), year P.2d that the six 189 Colo. 539 we order 18-1-102.5, (1975); imposed by 1279 see also on Fuller’s conviction for theft § (1986). sentencing concurrently with the receiving 8B C.R.S. court be served imposed on record the basic on his for must “state reasons sentences convictions aggravated robbery imposing People sentence.” and second kid- for Watkins, 163, 168, 633, napping. Accordingly 613 we with in- 200 Colo. P.2d remand If sentence is within the to amend mittimus to cause structions law, year receiving required appro by is on the six sentence for theft range based concurrently to be the sen- priate considerations as reflected in the served with record, factually supported by aggravated robbery tences for and second case, degree kidnapping. an appellate circumstances of case, In this VI. impaired did not assert the mental Fuller the stat Finally, Fuller claims that arraignment or condition defense at his the defense governing the assertion of ute 16-8-103.6. “It is not thereafter. See § mental condition is unconstitu impaired presump- function to ‘overturn statutes our that the particular, Fuller tional. claims strength specula- tively valid on the section 16—8— requirements of disclosure conjectures of counsel as to what tions and ” 103.6, (1989 Supp.), violated his 8A C.R.S. might happen under them.’ assistance of counsel be right to effective (Colo.1982) Mason, (quoting to attorney was uncertain as cause his Employ- Bayly Mfg. Department v.Co. during Fuller statements made whether ment, (1964)). P.2d 216 examina pre-arraignment the course of a injury from the Fuller did not suffer actual privileged.7 Fuller maintains tion would be statutory provisions complains. of which he uncertainty, compounded that this Accordingly, part, affirm in reverse we issue, so refusal to rule on the trial court’s part, and remand with directions attorney’s investigation into “chilled” his the mittimus to cause the sentence amend men impaired a defense of the existence of concurrently by receiving to run for theft constitu in this case that his tal condition consecutively with the sentences and not assistance of coun tional to effective kidnapping. Additionally, con violated. sel was 16-8-106(2), 8A C.R.S. tends that section (1986), on his constitu imposed a burden dissenting: Justice LOHR against self-incrimination privilege
tional majority holds that the defendant noncoopera it allows a defendant’s because challenge constitu- standing lacks of a court-ordered during tion the course 16-8-103.6, tionality 8A C.R.S. of section admissible in the defen examination to be governing waiver Supp.), the statute impaired mental the issue of dant’s trial on incident to confidentiality privilege or condition.8 impaired mental condi- the assertion of respectfully I dissent. tion defense. raise the defense of
Fuller did not subsequent impaired mental condition argues that the statute’s The defendant challenge of the constitu attorney the denial of his prevented his provision waiver impaired mental condition tionality mental con- investigating an standing Fuller does not that his attor- statute. defense. He asserts dition constitutionality of appeal unwilling investigate to attack the this de- ney was person and -106. A that the results of 16-8-103.6 he feared sections fense because *8 constitutionality state would not challenging any psychological of examination legally The defendant con- injury actual to a remain confidential. action must show result, French, amendment 762 that as a his sixth protected People interest. v. tends of counsel was 1372; Community right to effective assistance Bd. P.2d at State of Olson, v. violated. Occupational Educ. Colleges & psychologist any physician who has exam- provides: or Section 16-8-103.6 7. such mental treated the defendant for ined or places his condi- A defendant who mental condition. by asserting the defense of tion at issue ... pursuant sec- impaired condition to mental 16-8-106(2) provides: Section any claim of confi- ... waives tion 16-8-103.5 dentiality privilege communications or as to privilege against a defendant shall have The by physician psychologist in a or made him to during ex- the course of an self-incrimination or treatment for course of an examination The fact of the under this section. amination any purpose condition for psychiatrists such mental noncooperation with defendant's hearing the issue of such mental conducting trial or personnel the examina- and other both the court shall order condition. The may defendant's trial be admissible in the tion exchange the prosecutor and the defendant to insanity, competency, or im- on the issues of names, addresses, reports, statements of and paired mental condition. 710 challenge, I the substance of this to raise his constitutional
Rather than reach
claim,
the defen
majority holds that
would then reach the merits.
standing.
majority
reasons
dant lacks
attorney
The defendant contends that his
did not assert
that because the defendant
investigating
refrained from
whether
defense, he
impaired
mental condition
impaired men-
defendant suffered from an
injury
actual
could not have suffered
sure, giv-
tal condition because he was not
This
alleged
its
constitutional deficiencies.
16-8-103.6,
psychological
that a
en section
reasoning ignores the substance of the de
confidential.
examination
remain
would
challenge, which is that the con
fendant’s
result,
The defendant contends that as a
pre
stitutional deficiencies of this defense
right to effective as-
his sixth amendment
raising it.
interested defendants from
vent
pros-
of counsel
violated. The
sistance
compromising
A
need not risk
defendant
contends that under section 16-8-
ecution
challenge
the consti
his defense
order
only waives a claim to
103.6 the defendant
tutionality of a statute.
Doe Dun
See
confidentiality of the examination to be or-
1297,
(D.Colo.1970).
bar,
F.Supp.
320
1300
pursuant to section 16-
dered
the court
standing,
person
To
a
must show
8-103.5(4),
Supp.).
8A C.R.S.
As far
legally protected inter
“injury in fact to a
concerned,
examinations are
as other
French,
est.”
names,
only the
prosecution contends that
(Colo.1988).
litigant
standing
A
has
1372
reports
and
of these other exam-
addresses
alleged
challenge a statute when the
prosecution
iners need be disclosed.
adversely affects the
constitutional defect
concludes, therefore, that the statute does
Brown,
litigant. People v.
rights.
not violate the defendant’s
Tumbarello,
(Colo.1981); People v.
contentions,
evaluating
I
these
would
(Colo.1981).
evaluating
interpret
first
section 16-8-103.6.
standing,
person’s
all of that
an individual’s
16-8-103.6,
(1989 Supp.), pro-
8A C.R.S.
must be as
of material fact
averments
pertinent part that:
vides in
true.
As
sumed to be
Colorado General
(Colo.
Lamm, 700 P.2d
sembly v.
places
who
his mental con-
defendant
[a]
1985);
City
Friends
Chamber Music
asserting
at issue
...
the af-
dition
Denver,
P.2d
County
firmative
mental
defense
pursuant to section 16-8-103.5
condition
confidentiality
any
waives
claim of
or
...
case,
asserts an
In this
the defendant
privilege
made
as
communications
injury. He contends that he was
actual
physician
psychologist in the
him to a
or
through
procedure that denied
convicted
an
or treatment
course of
examination
right to effective as-
sixth amendment
purpose
for the
for such mental condition
the defen-
of counsel. Whether
sistance
hearing on the issue of
trial or
amendment
was violated
dant’s sixth
The court shall
such mental condition.
By
question.
in this case is a substantive
prosecutor
order both the
defen-
violation, however, the defen-
asserting the
names, addresses,
exchange
Having
dant
standing.1
de-
dant has established
any physician
standing
reports, and statements of
defendant has
termined that the
*9
"designed
impaired
When the
standing
mental condition statute.
doctrine is
to ensure
1. The
statute,
only
power
judicial
upheld
exercised
defendant
that the
district court
controversy.” Colorado
a case or
context of
requested the
court to rule whether the
district
Assembly,
A defen-
711 expert or psychologist who has examined other of his own choice connec- or any proceeding the defendant for such mental tion with under arti- treated this cle, court, timely motion, upon condition. shall order that the examiner chosen statutes, interpreting primary our given opportuni- defendant be reasonable task is to determine and effectuate ty to conduct the examination. legislature’s intent. Kane v. Town of Park, 412, (Colo.1990). P.2d (2) Estes 786 415 copy any report A of examination so, doing statutory first to the we look of the defendant made at the instance of P.2d language. People Morgan, the defense shall be furnished to the 1294, language of prosecution a reasonable time in advance imply a waiver of the this section seems to of trial. confidentiality regard claim to defendant’s provisions These demonstrate that the stat- ing any physician psychologist or consulta contemplates psychiatric utory scheme or preparation tion in for trial. We should psychological examinations conducted scheme, statutory also look to the entire experts requiring defense as well as however, interpret provision this in a be, may It court-ordered examination. way harmonizes it with the other ele that therefore, that the section 16-8-103.6 waiv- of the relevant statutes. ments confidentiality apply er of was intended to Court, (Colo. 713 P.2d District to the court-ordered examinations conduct- 1986). provisions Several other are rele 16-8-103.5(4) pursuant only. ed to section 16-8-103.5, vant. Section 8A C.R.S. Supp.) provides: & 1989 In interpreting statutes we also seek an interpretation that avoid constitu would (1) If the defendant intends to assert the Coins, tional defects. Exotic Inc. v. Bea impaired affirmative defense of mental com, (Colo.1985), condition, ap 947-48 intention he shall indicate that 892, 106 dismissed, peal 474 U.S. S.Ct. prosecution to the at the to the court and interpretation An arraignment; except 88 L.Ed.2d time shown, court, permit good require cause shall section 16-8-103.6 that would the court and the defendant to inform to confidential defendant to waive his prosecution of his intention to assert ity regarding conversations with a defense impaired defense of men- the affirmative amendment.2 expert would violate the sixth prior condition at time to trial. tal People, See Hutchinson (Colo.1987); Miller v. District Court of Denver, City County (4) in- defendant indicates his When the hold, (Colo.1987). I would there 838-39 the defense of tention to assert fore, only 16-8-103.6 was in that section condition, an mental the court shall order privilege of confiden tended to waive pursuant examination of the defendant during a tiality arising from communication shall or- to section 16-8-106. The court made for the court-ordered examination defen- prosecutor and the der both hearing pursuant trial or purpose of a addresses, names, exchange the dant to 16-8-103.5(4). section reports, persons, other and statements experts subject provi- to the medical than that remains is whether the The issue 16-8-103.6, whom the sions of section ambiguity of section 16-8-103.6 none- intend to call as witnesses with parties the defendant’s sixth theless violated of im- regard to the affirmative defense right to effective assistance of amendment paired mental condition. 16-8-103.6 is am- counsel. Because section 16-8-108, (1986 & 1989 8A C.R.S. may have reason- biguous, the defendant Supp.), provides: to choose ably that he was forced believed *10 impaired mental con- asserting an
(1) to be exam- between If the defendant wishes maintaining the confi- or dition defense and psychiatrist, psychologist, ined Const, VI. U.S. amend. dentiality might opportunity communications he dant a reasonable assert defense of mental condition. psychologist. have with a Section 16-8- thereby effectively 103.6 chilled his sixth QUINN, C.J., KIRSHBAUM, J., amendment to effective assistance of join this dissent. counsel. Accordingly, I would vacate the defen-
dant’s conviction and remand the case for
retrial, with directions allow defen-