Zapata v. People

Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s homepage at
http://www.courts.state.co.us. Opinions are also posted on the
Colorado Bar Association’s homepage at http://www.cobar.org.

ADVANCE SHEET HEADNOTE
October 15, 2018

2018 CO 82

No. 16SC552, Zapata v. People—Physician-Patient Privilege—Psychologist-Client
Privilege—Competency Evaluations—Res Gestae.

In this case, the trial court declined to give the defendant access to, or to review

in camera, competency reports regarding another defendant in a factually related but

separate case. Over objection, the trial court also admitted uncharged misconduct

evidence as res gestae.

The supreme court holds that competency reports are protected by the

physician-patient or psychologist-client privilege and that the examinee did not waive

the privilege as to the defendant when he put his competency in dispute in his own

case. The supreme court also holds that the defendant’s confrontation right is not

implicated and that the defendant did not make a sufficient showing that the

competency reports contained exculpatory evidence to justify their release to him or

review by the trial court pursuant to due process or Crim. P. 16.

The supreme court further holds that any error in admitting the uncharged

misconduct evidence as res gestae was harmless given the strong evidence of the

defendant’s guilt.
Accordingly, the supreme court affirms the judgment of the court of appeals.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2018 CO 82

Supreme Court Case No. 16SC552
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 13CA2155

Petitioner:

Nicholas Javier Zapata,

v.

Respondent:

The People of the State of Colorado.

Judgment Affirmed
en banc
October 15, 2018

Attorneys for Petitioner:
Megan Ring, Public Defender
Joseph P. Hough, Deputy Public Defender
Denver, Colorado

Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
Gabriel P. Olivares, Assistant Attorney General
Denver, Colorado

JUSTICE HOOD delivered the Opinion of the Court.
JUSTICE HART specially concurs, and JUSTICE GABRIEL joins in the special
concurrence.
JUSTICE SAMOUR dissents, and CHIEF JUSTICE COATS joins in the dissent.
 One afternoon several years ago, the petitioner, Nicholas Zapata, and Jose

Murillo entered a Littleton convenience store. Murillo darted behind the checkout

counter, where he used a knife to attack the clerk, the only other person in the store.

Zapata watched the attack from the other side of the counter. Perhaps to everyone’s

surprise, the victim quickly managed to subdue Murillo with a hammer that happened

to be located behind the counter. With that unexpected turn of events, Zapata fled.

The People charged Zapata with attempted first degree murder and other crimes.

At trial, the People asserted that Zapata orchestrated the attack. They painted a picture

of a jealous and controlling Zapata, seeking revenge on behalf of his ex-girlfriend, S.M.

S.M. worked in the convenience store and had confided in Zapata several weeks earlier

that her boss, the store owner and father of the victim, had sexually harassed her. The

People argued that Zapata convinced Murillo to do his dirty work in seeking revenge,

but at the store, they confused the son for his father. The jury convicted Zapata of

attempted second degree murder and first degree assault.

Zapata seeks a new trial because the trial court declined to give him access to, or

to review in camera, certain competency reports regarding Murillo (who suffered brain

damage as a result of the hammer blows). Zapata alleges the reports might contain

exculpatory information about the criminal offenses of which he now stands convicted.

He also argues that the trial court committed reversible error when it admitted “res

gestae” evidence of Zapata’s earlier threatening behavior toward S.M.

A division of the court of appeals affirmed Zapata’s convictions, concluding as

follows: Murillo’s competency reports were privileged and no waiver justified

2
disclosure in Zapata’s case; Zapata failed to make a particularized showing that the

reports contained exculpatory information; and any error in admitting the res gestae

evidence was harmless. People v. Zapata, 2016 COA 75, ¶¶ 22–30, 39, __ P.3d __.

We hold that Murillo’s competency reports are protected by the

physician-patient or psychologist-client privilege and Murillo did not waive the

privilege as to Zapata when he put his competency in dispute in his own case. We

further conclude that Zapata did not make a sufficient showing that the competency

reports contained exculpatory evidence to justify their release to him or review by the

trial court. Finally, we conclude that any error in the admission of res gestae evidence

was harmless given the strong evidence of Zapata’s guilt.

Thus, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

Before the assault in question, Zapata and Murillo boarded a light rail train in

downtown Denver. Video surveillance footage shows the two stepping off the train

seconds apart at the downtown Littleton station and walking side-by-side away from

the station. About that time, Zapata texted S.M.: “Don[’]t be there.” He sent S.M. the

same warning twice more in the next thirty minutes. S.M. responded to each message

with confusion, asking what and where Zapata was talking about.

A short time after getting off the train, Zapata and Murillo entered Littleton

Neighborhood Food and Gas. The victim, the son of the store owner, was there alone,

working as a clerk. Murillo headed straight behind the counter and attacked the victim

with a steak knife. The victim fought back first by yanking Murillo’s shirt over his

3
head, and then by grabbing a hammer from a nearby tool box and using it to repeatedly

strike Murillo in the head.

Zapata stayed on the other side of the counter and watched. A videotape of the

incident that was admitted into evidence reveals that some variation of the words, “Get

him, get him, get him good” were muttered, although at trial, the parties disputed

whether Zapata or Murillo said the words. As Murillo groaned, Zapata backed up,

turned around, and walked out of the store. The victim eventually subdued his

assailant, Murillo, by battering him into unconsciousness with the victim’s improvised

weapon.

The People charged Zapata and Murillo, separately, with attempted first degree

murder and other crimes. The People’s theory was that Zapata, upon learning that the

store owner had sexually harassed S.M., sought revenge. According to the People’s

version of events, Zapata and Murillo mistook the victim for his father. Zapata

countered that there was no shared plan; rather, “Murillo was a loose cannon,”

addicted to drugs.

In the proceedings against Murillo, Murillo’s counsel questioned his competency

to stand trial. The fight had left Murillo with brain damage. Murillo’s competency was

evaluated twice, once by court order and another time at his own request. The record

does not reveal what type of mental health professional examined Murillo. Regardless,

Murillo eventually withdrew his claim of incompetency and entered plea negotiations

with the prosecution. Murillo agreed to plead guilty to the lesser charge of conspiracy

to commit second degree murder; in exchange, he would testify against Zapata.

4
 Zapata sought access to records of any statements regarding the attack made by

Murillo during his competency evaluations. Zapata alleged there was potentially

exculpatory material in the competency reports, contending that Murillo could have

made inconsistent statements to the competency evaluators that would provide

impeachment material. Zapata argued the reports must be provided to him pursuant to

section 16-8.5-104, C.R.S. (2018) (addressing “[w]aiver of privilege” as to competency

evaluations), and Crim. P. 16.

Initially, the trial court ruled that Zapata was entitled to the reports. Murillo’s

counsel, however, objected on the grounds that the reports were privileged. At a

hearing on the matter, the prosecution acknowledged that it had examined at least one

of the competency reports during plea negotiations in Murillo’s case, noting that there

were “maybe two lines about the actual incident in this competency evaluation, and

there is nothing in the competency evaluation that is not in the proffer that we’ve

already discovered anyway.”

Ultimately, the trial court denied Zapata’s request for access to the competency

reports, reasoning that they are privileged and the statute outlining who may receive

information regarding a defendant’s competency evaluation—the judge, defense

counsel, and prosecution in the defendant’s case—doesn’t include a codefendant in a

separate case. Zapata’s attorney then requested that the court review the material in

camera. The court denied that request as well.

The People also sought to introduce evidence that Zapata knew about the alleged

sexual harassment of S.M. and evidence from a week before the convenience store

5
incident when Zapata allegedly sent a series of harassing, threatening, and

profanity-ridden texts to S.M. The People argued the evidence was res gestae because

“[Zapata’s] jealousy and desire to resume his relationship with [S.M.], coupled with [the

sexual harassment], form a crucial part of the overall narrative of this case,” and the

evidence regarding how obsessive Zapata was about S.M. was relevant to “why he

would choose to take such an extreme action against the store owner.” Zapata

protested, arguing that S.M. was expected to testify at trial about his connection to the

store and that Zapata’s actions weeks before the attack bore no relevance to the attack at

the convenience store and were unduly prejudicial. The trial court admitted the

evidence as res gestae, reasoning that the evidence was necessary to explain “why this

particular store, this particular store clerk,” and stating that otherwise, “we’re starting

in the middle of the story.”

On the first day of trial, before jury selection, defense counsel objected to any

testimony by S.M. regarding physical altercations between S.M. and Zapata that had

occurred in the six months before the convenience store attack. The People argued that

any such testimony would also be res gestae evidence. The trial court agreed, ruling to

allow the testimony.

S.M. testified at trial that she had asked Zapata to help her fill out a complaint

with the U.S. Equal Employment Opportunity Commission because of the store owner’s

alleged harassment. S.M. testified that she told Zapata that the store owner had made

sexual overtures and touched her inappropriately. S.M. also testified that Zapata was

controlling and wanted to know where she was at all times and that they would

6
physically fight when she talked to other men. She testified that about a week before

the attack, Zapata sent her a series of fifty or so text messages threatening her and her

family when he learned she was seeing someone else. The threatening and explicit text

messages were admitted into evidence at trial.

Murillo testified at trial that he had known Zapata for six months, had no

memory of the attack, and had never been to Littleton or seen the victim or the store

owner before the attack.

The jury convicted Zapata of attempted second degree murder (a lesser-included

offense) and first degree assault, acquitting him of conspiracy to commit murder in the

first degree. The court sentenced Zapata to twenty-one years in prison for each count,

to run concurrently.

Zapata appealed. In relevant part, he contended that there are two sources of

reversible error by the trial court: (1) the failure to provide the competency reports to

him, or at least conduct an in camera review of the reports, and (2) the admission of res

gestae evidence from the months leading up to the attack showing that Zapata was

controlling, obsessive, and physically abusive toward S.M.

A division of the court of appeals affirmed Zapata’s conviction. The division

held that Murillo’s competency reports were protected under the psychologist-client

privilege and the privileged material was discoverable only in Murillo’s case, not

Zapata’s. Zapata, ¶¶ 22–29. The court of appeals also concluded that Zapata had not

made a “particularized showing that the statements Mr. Murillo allegedly made during

7
the competency evaluations somehow exculpated [the] defendant, or were inconsistent

with the information in Mr. Murillo’s proffer.” Id. at ¶ 30.

Without addressing whether it was error to admit the evidence of res gestae, the

division also held that any error was harmless. Id. at ¶ 39. In reaching this conclusion

the division reasoned that “the evidence supporting the prosecution’s theory was

compelling,” and the evidence corroborating the defendant’s theory was weak. Id. at

¶¶ 40–41.

Zapata petitioned this court for review of the same issues. We granted

certiorari.1

II. Standard of Review

The issues regarding the competency reports are issues of law, insomuch as they

require us to interpret statutes governing privilege in the context of criminal discovery.

We review issues of law de novo. People v. Rediger, 2018 CO 32, ¶ 18, 416 P.3d 893, 898

(statutory interpretation); People v. Kailey, 2014 CO 50, ¶ 12, 333 P.3d 89, 93 (interaction

of psychologist-patient privilege with other statutes).

1 We granted certiorari to review the following issues:
1. Whether the court of appeals erred in not finding that the trial court
should have either disclosed or reviewed, in camera, the
co-defendant’s statements about the crime.
2. Whether the court of appeals erred in not finding that the admission of
irrelevant and prejudicial evidence of the defendant’s character and
other bad acts was reversible.

8
 We review evidentiary rulings, such as the admission of res gestae evidence, for

abuse of discretion. See People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial court

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

Id.

III. Analysis

We begin by considering whether Zapata was entitled to examine, or to have the

court examine, the competency reports regarding Murillo. We first conclude that

competency reports, completed by either a psychiatrist or licensed psychologist per the

competency statute, are protected by the physician-patient or psychologist-client

privilege. Next, we discuss whether Murillo waived that privilege. Based on the

language of the competency statute, we conclude that any statutory waiver was limited

and does not extend to Zapata’s case. We then address Zapata’s constitutional and

Crim. P. 16 arguments. After determining that Zapata’s confrontation right is not

implicated, we examine whether due process or Crim. P. 16 required the disclosure or

in camera review of the reports. We conclude that Zapata did not make a sufficient

showing that Murillo’s reports contained material evidence.

Finally, we consider whether the trial court committed reversible error by

admitting evidence of Zapata’s controlling and threatening behavior toward S.M. as res

gestae evidence. We conclude, after observing that there was strong evidence of

Zapata’s guilt, that any error in admitting the res gestae evidence was harmless.

9
 A. Competency Reports

First, Zapata asserts that Murillo’s competency reports should have been

provided to him or reviewed in camera.

1. The Competency Reports Are Privileged

Zapata argues that Murillo’s competency reports are not privileged. We

disagree. First, we observe that Zapata likely forfeited this argument, abandoned it on

appeal, or both. At the motions hearing, Zapata’s counsel appeared to assume that the

reports were privileged and argued only that the privilege was waived. Likewise, on

appeal, Zapata focused his argument on waiver. Regardless, we conclude that

competency reports are protected by the psychologist-client or physician-patient

privilege.

In addressing these privileges, we must first consider whether a psychologist or

physician was involved. Court-ordered and defendant-requested competency

evaluations must be conducted by a “competency evaluator.” § 16-8.5-101(5), C.R.S.

(2018) (defining “[c]ourt-ordered competency evaluation”); § 16-8.5-106, C.R.S. (2018)

(allowing a defendant “to be examined by a competency evaluator of his or her own

choice”). And “competency evaluator” means a licensed psychologist (with certain

qualifications) or a psychiatrist. § 16-8.5-101(2). The record does not include, under seal

or otherwise, copies of the reports. Thus, the record does not reveal the identity or

professional status of the competency evaluator(s) who conducted the evaluations at

issue here. But there is no indication of any failure to comply with section 16-8.5-101(2).

Therefore, we assume that either a psychologist or a psychiatrist conducted the

10
evaluations at issue here. We examine the requirements for privilege as to each type of

professional.

Communications between a client and licensed psychologist implicate the

psychologist-client privilege statute, section 13-90-107(1)(g), C.R.S. (2018). Under this

statute, “[a] licensed psychologist . . . shall not be examined without the consent of the

licensee’s . . . client as to any communication made by the client to the licensee . . . or the

licensee’s . . . advice given in the course of professional employment.” § 13-90-107(1)(g).

Here, the only portion of the psychologist-client privilege that would be at issue is that

which addresses communications made by the client to the licensed psychologist. We

acknowledge that the psychologist offers no “advice” (in the clinical sense) to the

defendant in this context.

Because psychiatrists are licensed physicians, their communications with

patients implicate the physician-patient statute, section 13-90-107(1)(d). Under this

statute, “[a] physician . . . shall not be examined without the consent of his or her

patient as to any information acquired in attending the patient that was necessary to

enable him or her to prescribe or act for the patient . . . .” § 13-90-107(1)(d).

Both privileges prohibit both testimonial disclosures and “pretrial discovery of

information within the scope of the privilege.” Clark v. Dist. Court, 668 P.2d 3, 8 (Colo.

1983). This includes “files or records derived or created in the course of the treatment.”

People v. Sisneros, 55 P.3d 797, 800 (Colo. 2002) (psychologist-patient privilege).

Because the competency evaluation statute required licensed psychologists or

psychiatrists to conduct the competency evaluations at issue here, the reports are

11
privileged if (1) Murillo was a patient or client of the evaluator, (2) the evaluator

“attended” to Murillo in conducting the evaluation, and (3) the information acquired in

attending to Murillo was necessary to enable the evaluator to act for Murillo. We

conclude that all three requirements are met. (We take it as a given that a licensed

psychologist would be acting “in the course of professional employment” in evaluating

a defendant’s competency.)

First, we observe that the question of whether the evaluator “attended to”

Murillo in conducting the evaluation is closely connected to the question of whether

Murillo was the evaluator’s patient or client. Merriam-Webster defines “attend,” as

relevant here, as “to look after” or “to visit professionally especially as a physician.”2

Attend, Merriam-Webster’s Online Dictionary, https://merriam-webster.com/

dictionary/attend [https://perma.cc/7L72-R75S]. Physicians certainly “visit” their

patients “professionally.” Thus, we begin by examining whether Murillo was a patient

or client of the evaluator.

The privilege statute does not define “patient” or “client.” Black’s Law

Dictionary simply defines “patient” as “[a] person under medical or psychiatric care.”

Patient, Black’s Law Dictionary (10th ed. 2014). While criminal defendants undergoing

competency evaluations typically are not patients or clients in a “fee-for-service” sense,

competency evaluations are utilized for diagnostic and treatment purposes. The

2 Black’s Law Dictionary does not define “attend.”

12
competency evaluator is, at least in part, performing a role typical of a physician or

psychologist in a physician-patient or psychologist-client relationship. In a

“[c]ourt-ordered competency evaluation,” the examination of the defendant is “directed

to developing information relevant to a determination of the defendant’s competency to

proceed at a particular stage of the criminal proceeding.” § 16-8.5-101(5). A defendant

is “[c]ompetent to proceed” if he:

do[es] not have a mental disability or developmental disability that
prevents [him] from having sufficient present ability to consult with [his]
lawyer with a reasonable degree of rational understanding in order to
assist in the defense or prevents [him] from having a rational and factual
understanding of the criminal proceedings.

§ 16-8.5-101(4). If the defendant is incompetent to proceed, the court has discretion to

determine how to restore the defendant to competency. See § 16-8.5-111, C.R.S. (2018).

Any course of action by the court, however, must contemplate using the competency

evaluation as a starting point for treatment to restore competency. In sum, the

competency evaluator examines the defendant to determine whether the defendant is

incompetent and thus needs treatment to address a mental or developmental disability

that prevents the defendant from consulting reasonably with his lawyer and

understanding the proceedings. Because the competency evaluator is, in part,

performing a role typical of a physician-patient or psychologist-client relationship, we

conclude that Murillo was a client or patient of the evaluator and the evaluator

“attended to” Murillo in conducting the evaluations.

Now we turn to whether the information acquired in attending Murillo was

necessary to enable the evaluator to act for him. In general, “before ruling on [a] claim of

13
privilege . . . , the trial court [must] determine[] whether the particular information . . .

sought . . . [is] in fact necessary for treatment.” People v. Reynolds, 578 P.2d 647, 649

(Colo. 1978). An evaluator may question the defendant about the offense and its

surrounding circumstances—and thus would “acquire that information” in the parlance

of the privilege statute—“[t]o aid in forming an opinion as to the competency of the

defendant.” § 16-8.5-105(3).

And acquiring that information enables the evaluator to act for the defendant.

Competency evaluations, even when court ordered, are conducted, at least in

substantial part, for the defendant’s benefit. The U.S. Supreme Court has “repeatedly

and consistently recognized that ‘the criminal trial of an incompetent defendant violates

due process.’” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Medina v. California,

505 U.S. 437, 453 (1992)). Thus, these evaluations benefit defendants by protecting their

due process rights. Because forming an opinion as to the defendant’s competence is

done for the defendant’s benefit, information utilized in forming such an opinion is

necessary for the evaluator to act for the defendant.

Thus, we conclude that competency reports are privileged. While the plain

language justifies this conclusion, we further note that the purpose of these privileges is

to encourage forthrightness between clients and patients and their psychologists and

psychiatrists. See People v. Dist. Court, 719 P.2d 722, 724 (Colo. 1986) (psychologist-client

privilege); Cmty. Hosp. Ass’n v. Dist. Court, 570 P.2d 243, 244 (Colo. 1977)

(physician-patient privilege). Given the weighty due process rights at stake, we surely

14
want to encourage such forthrightness between defendants and the professionals

evaluating their competency.

Because competency reports are privileged, they may not be revealed absent

Murillo’s consent or waiver. Murillo has not consented. Thus, Murillo’s competency

reports are privileged unless the privilege has been waived. We next address whether

the privilege was waived under section 16-8.5-104.3

2. The Competency Statute Waives Privilege Only as to the
Parties in that Defendant’s Case

Zapata argues that Murillo waived the physician-patient or psychologist-client

privilege when he put his mental condition at issue by raising competency under

section 16-8.5-104. We disagree. The statute waives a defendant’s privilege in the

competency evaluation only as to the parties and the court in that defendant’s case.

Thus, Murillo’s competency reports remain privileged outside of Murillo’s case. And

3 We acknowledge that our conclusion that competency reports are privileged may have
implications for the use of such information in other contexts, such as a competency
hearing or trial. Under section 16-8.5-108, evidence acquired during a competency
evaluation is admissible in certain circumstances during that defendant’s competency
hearing, trial, and sentencing. While one could argue this statute seeks to safeguard a
defendant’s Fifth Amendment rights, see § 16-8.5-104(6) (“Statements made by the
defendant in the course of any evaluation shall be protected as provided in section
16-8.5-108.”), cf. Lewis v. Thulemeyer, 538 P.2d 441, 442 (Colo. 1975) (concluding that the
legislative scheme governing sanity evaluations “carefully avoided the constitutional
proscriptions against self-incrimination”), the plain language addresses general
admissibility of evidence acquired during a competency evaluation. A defendant may
also waive his psychologist-client or physician-patient privilege through a course of
conduct that impliedly concedes the necessity of revealing otherwise confidential
information to third parties during the course of a presumptively public proceeding.
Cf. Gadeco, L.L.C. v. Grynberg, 2018 CO 22, ¶ 2, 415 P.3d 323, 326 (reviewing ways in
which a patient can impliedly waive his physician-patient privilege).

15
Zapata’s case, despite its obvious factual overlap with Murillo’s, was outside of

Murillo’s. Zapata and Murillo were prosecuted separately.

We begin our analysis with the statute, which enumerates the three parties as to

whom the privilege is waived. Section 16-8.5-104(1) provides: “When a defendant

raises the issue of competency to proceed, . . . any claim by the defendant to

confidentiality or privilege is deemed waived, and the district attorney, the defense

attorney, and the court are granted access, without written consent of the defendant or

further order of the court” to information relating to the competency evaluation,

including competency evaluation reports. § 16-8.5-104(1) (emphasis added). To the

extent the statute could be construed to suggest that there is a general waiver and the

enumerated parties are just those who receive the confidential material without a court

order, we reject that reading. Four of the five remaining subsections contemplate

disclosure only to the same three recipients—defense counsel, the prosecutor, and the

court in the defendant’s case—reinforcing that the waiver is limited to the parties and

the court in that case.4 Cf. Roberts v. Bruce, 2018 CO 58, ¶ 8, 420 P.3d 284, 286 (“[W]e

4 § 16-8.5-104(2) (“Upon a request by either party . . . the evaluator . . . shall provide the
information . . . .” (emphasis added)); § 16-8.5-104(3) (“An evaluator . . . is authorized to
provide . . . procedural information to the court, district attorney, or defense counsel . . . .”
(emphasis added)); § 16-8.5-104(4) (“Nothing in this section limits the court’s ability to
order that information . . . be provided to the evaluator, or to either party to the case . . . .”
(emphasis added)); § 16-8.5-104(5) (“The court shall order both the prosecutor and the
defendant or the defendant’s counsel to exchange the names . . . of each physician or
psychologist who has examined or treated the defendant for competency.” (emphasis
added)).

16
read the statute as a whole and seek to give consistent, harmonious, and sensible effect

to all its parts.”). Thus, section 16-8.5-104(1) creates a limited waiver of privilege.

While the statute does not create a general waiver, we consider whether

Murillo’s actions somehow did. Zapata argues that a defendant who raises competency

implicitly waives privilege by placing his mental condition at issue. True, we have said

that the test for waiver is “whether the [privilege-holder] has injected her physical or

mental condition into the case as the basis of a claim or an affirmative defense.”

Sisneros, 55 P.3d at 801. Yet, the question isn’t whether a defendant waives privilege by

raising competency. Of course he does: The statute says so. The question is about the

scope of the statutory waiver: Does it extend beyond the parties in the defendant’s case?

The General Assembly has expressly provided when, how, and to whom a defendant

waives his physician-patient or psychologist-client privilege by raising competency.

Zapata’s theory that raising competency waives privilege entirely would subvert that

legislative scheme.

In a similar vein, Zapata argues that exposure of the privileged information to a

third party breaks confidentiality and therefore destroys privilege. Specifically, he

claims that Murillo waived any privilege by sharing information about his competency

evaluations with the prosecution and the court. We have said, at least in other contexts,

that exposure to a third party can destroy privilege. See Hartmann v. Nordin,

147 P.3d 43, 52–53 (Colo. 2006) (“Information a person makes available to a third party

outside of the physician-patient privilege is not protected by the physician-patient

privilege.”); Wesp v. Everson, 33 P.3d 191, 198 (Colo. 2001) (“[I]f a communication to

17
which the [attorney–client] privilege has previously attached is subsequently disclosed

to a third party, then the protection afforded by the privilege is impliedly waived.”). Of

course, we have also noted that the scope of “implied waivers [has] always been limited

by the circumstances of the case.” Alcon v. Spicer, 113 P.3d 735, 739 (Colo. 2005). But

where, as here, the General Assembly has specified that only a limited waiver occurs,

that—not a general common law principle—controls. See Colo. Const. art. V, § 1(1)

(“The legislative power of the state shall be vested in the general assembly . . . .”).5

Because we have determined that section 16-8.5-104(1) waives Murillo’s

physician-patient or psychologist-client privilege in the competency reports only as to

the parties in Murillo’s case, we conclude that the privilege has not been impliedly

waived by exposure to third parties here. Because Zapata is a defendant in an entirely

separate criminal case, he is not entitled to the reports.

Finally, we address Zapata’s constitutional and Crim. P. 16 arguments. Zapata

argues that his confrontation right, due process, and Crim. P. 16 demand that he

receive, or at least the trial court review in camera, Murillo’s competency reports. We

turn to these claims now.

5 We do not foreclose the possibility that there may be an implied waiver of privilege
related to a competency report on other facts.

18
 3. The Trial Court’s Nondisclosure Does Not Violate the
Confrontation Clause, Due Process Clause, or Crim. P. 16

First, we address Zapata’s Confrontation Clause argument. We then consider

whether the Due Process Clause or Crim. P. 16 compels the trial court to review the

reports or provide them to Zapata.

A defendant has a right to confront witnesses against him. U.S Const. amend.

VI; Colo. Const. art. II, § 19. However, a defendant’s confrontation right “is a trial right;

it is not a ‘constitutionally compelled rule of pretrial discovery.’” People in the Interest of

E.G., 2016 CO 19, ¶ 28, 368 P.3d 946, 953 (quoting People v. Spykstra, 234 P.3d 662, 670

(Colo. 2010)); accord Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion).

Here, Zapata argues the Confrontation Clause required the court to conduct an in

camera review of pretrial discovery. In essence, he seeks to bootstrap his trial right to

confront his accusers into a pretrial discovery right. Because his trial right to confront

witnesses is not at issue, we reject Zapata’s confrontation argument.

Zapata’s due process argument warrants more discussion. Under Brady v.

Maryland, the Due Process Clause requires the government to disclose information that

is favorable to the accused and “material either to guilt or to punishment.” 373 U.S. 83,

87 (1963). Consequently, impeachment material must be disclosed under Brady. See

United States v. Bagley, 473 U.S. 667, 676 (1985) (“Impeachment evidence, however, as

well as exculpatory evidence, falls within the Brady rule.”); Giglio v. United States,

405 U.S. 150, 154–55 (1972) (holding that the government must disclose evidence

affecting a witness’s credibility, especially when that witness’s testimony is crucial to

19
the government’s case). Because Crim. P. 16 “codifies Brady’s constitutional disclosure

requirement,” we evaluate this argument “through the lens of Brady.” People v. Bueno,

2018 CO 4, ¶ 28, 409 P.3d 320, 326.6

Here, although Murillo and Zapata were defendants in entirely separate cases,

the prosecutor in Zapata’s case had access to the competency reports in Murillo’s case.

Zapata argues that those reports might contain exculpatory information, such as

inconsistent statements by Murillo about the assault. Thus, he contends the trial court

abused its discretion in declining to either provide him with the privileged reports or

review them in camera.

The U.S. Supreme Court considered a similar situation in Pennsylvania v. Ritchie,

480 U.S. 39 (1987). Ritchie wanted the trial court to review a file from the state

child-protection agency about his alleged sexual abuse of his daughter, arguing it might

contain exculpatory evidence, including the names of potentially favorable witnesses.

Id. at 43–44. A Pennsylvania statute made records from the agency privileged, but the

privilege contained some exceptions, including that the agency must disclose the

records to “[a] court of competent jurisdiction pursuant to a court order.” Id. Although

6 To the extent that Zapata’s Crim. P. 16 argument is not a constitutional one, we refer
back to our observation that the physician-patient and psychologist-client privileges
prohibit both testimonial disclosures and the pretrial discovery of privileged
information. See Sisneros, 55 P.3d at 800 (“Once the privilege has attached, the
Defendant may not compel discovery unless it is waived.”); Clark v. Dist. Court, 668 P.2d
at 8.

20
the prosecutor did not have the records, id. at 44 n.4, Brady applied because the agency

was part of the state government, see id. at 57.

The Ritchie Court held that the Due Process Clause required an in camera review

of the material:

Given that the Pennsylvania Legislature contemplated some use of [the
agency’s] records in judicial proceedings, we cannot conclude that the
statute prevents all disclosure in criminal prosecutions. In the absence of
any apparent state policy to the contrary, we therefore have no reason to
believe that relevant information would not be disclosed when a court of
competent jurisdiction determines that the information is “material” to the
defense of the accused.

Id. at 58.

The defendant, on the other hand, was not entitled to receive the file for his own

review. The Ritchie Court held that a defendant does not get to review a privileged file

himself for the benefit of the “advocate’s eye”; he gets at most the court’s in camera

review, if there is a legal basis for such review. Id. at 59–61.

Importantly, Ritchie does not hold that trial courts must always review privileged

reports in camera pursuant to Brady. The Court expressly noted that a defendant “may

not require the trial court to search through the [privileged] file without first

establishing a basis for his claim that it contains material evidence.” Id. at 58 n.15 (citing

United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (“He must at least make some

plausible showing of how their testimony would have been both material and favorable

to his defense.”)). We have expanded on this point: For a court to review statutorily

privileged material, the initial showing must be more than a “vague assertion that the

victim may have made statements to her therapist that might possibly differ from the

21
victim’s anticipated trial testimony.” People v. Dist. Court, 719 P.2d at 726; accord People

v. Wittrein, 221 P.3d 1076, 1084 n.7 (Colo. 2009); see also Dill v. People, 927 P.2d 1315, 1325

(Colo. 1996).

Here, Zapata made only a vague assertion that the statements might include

impeachment material. Zapata contends that Murillo “might have possibly” said

something in the context of a privileged relationship at odds with the witness’s

anticipated trial testimony based on other discovery. At a motions hearing, the

prosecution provided Zapata a proffer of Murillo’s expected testimony, which was that

Murillo did not remember the day of the event. The prosecutor represented, “as an

officer of the court,” that there were “maybe two lines about the actual incident in this

competency evaluation, and there is nothing in the competency evaluation that is not in

the proffer.” Zapata discussed how Murillo had been shown the video of the attack at

some point, and speculated that the reports might reveal that watching the videos

caused Zapata to add or subtract details about his story. However, Zapata does not

indicate what Murillo might have added or subtracted to his story. His speculative

contention does not rise to the level of more than the kind of “vague assertion” we have

deemed inadequate to mandate disclosure.

Therefore, we conclude that Zapata has not made a sufficient showing that the

privileged reports contain material evidence to justify disclosure or in camera review.

B. Res Gestae Evidence

Defense counsel argues the trial court abused its discretion when it admitted “res

gestae” evidence regarding threatening, harassing, and physically abusive behavior by

22
Zapata toward S.M. (and people close to S.M.). We conclude that we need not address

Zapata’s contentions because any error in admitting the evidence was harmless.

1. The Res Gestae Doctrine

We have defined res gestae evidence as uncharged misconduct evidence that is

intertwined with the charged conduct:

Res gestae evidence includes evidence of another offense, which is related
to the charge on trial, that helps to “provide the fact-finder with a full and
complete understanding of the events surrounding the crime and the
context in which the charged crime occurred.” Generally, res gestae
evidence is linked in time and circumstances to the charged crime, it
forms an integral and natural part of the crime, or it is necessary to
complete the story of the crime for the jury. When evidence is admitted as
res gestae evidence, it is not subject to the general rule excluding evidence
of prior criminality.

People v. Skufca, 176 P.3d 83, 86 (Colo. 2008) (quoting People v. Quintana, 882 P.2d 1366,

1373 (Colo. 1994)) (internal citations omitted).

Zapata argues that the evidence regarding his behavior toward S.M. should not

have been admitted as res gestae evidence because: (1) the evidence describes events too

unconnected to be considered res gestae; (2) it is improper character evidence pursuant

to CRE 404(b); (3) it is irrelevant pursuant to CRE 401; and (4) it is unduly prejudicial

pursuant to CRE 403.

However, we need not address these arguments. Even if the trial court erred in

admitting uncharged misconduct evidence as res gestae, we conclude any such error

was harmless.

23
 2. Any Error in Admitting the Res Gestae Evidence Was
Harmless

We review nonconstitutional trial errors that were preserved by objection for

harmlessness. Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119. Under this standard,

reversal is warranted if the error affects the substantial rights of the parties, meaning

“the error ‘substantially influenced the verdict or affected the fairness of the trial

proceedings.’” Id. (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)); accord

Johnson v. Schonlaw, 2018 CO 73, ¶ 11, __ P.3d __.

If we can say with fair assurance that, in light of the entire record of the trial, the

error did not substantially influence the verdict or impair the fairness of the trial, the

error is harmless. People v. Gaffney, 769 P.2d 1081, 1088 (Colo. 1989). While “[w]e have

never reduced the question of a trial error’s prejudicial impact to a specific set of

factors[,] . . . the strength of the properly admitted evidence supporting the guilty

verdict is clearly an ‘important consideration’ in the harmless error analysis.” Pernell v.

People, 2018 CO 13, ¶ 25, 411 P.3d 669, 673 (quoting Crider v. People, 186 P.3d 39, 43

(Colo. 2008)); accord Johnson, ¶ 12. Another important consideration “is the specific

nature of the error committed and the nature of the prejudice or risk of prejudice

associated with it.” Crider, 186 P.3d at 43; accord Johnson, ¶ 12. Thus, we turn to

evaluating the strength of the admissible evidence on which Zapata was convicted, as

well as the nature of the risk of prejudice associated with the potentially impermissible

admission of evidence.

24
 Zapata was convicted on a complicity theory. Under this theory, a defendant is

legally accountable as a principal for the criminal act of another if “he aids, abets,

advises, or encourages the other person in planning or committing that offense” with:

(1) the intent to aid, abet, advise, or encourage the other person in his
criminal act or conduct, and (2) an awareness of circumstances attending
the act or conduct he seeks to further, including a required mental state, if
any, that are necessary for commission of the offense in question.

People v. Childress, 2015 CO 65, ¶ 34, 363 P.3d 155, 165; see § 18-1-603, C.R.S. (2018).

“With regard to causing a particular result that is an element of the offense in

question, . . . complicitor liability as defined by statute in Colorado mandates that the

complicitor act with an awareness the principal is or would be acting with that required

mental state.” Childress, ¶ 29, 363 P.3d at 164. “[C]ircumstances attending the act or

conduct,” refer to “those elements of the offense describing the prohibited act itself and

the circumstances surrounding its commission, including a required mental state, if

any.” Id.

The jury convicted Zapata of attempted second degree murder and first degree

assault. The requisite culpable mental state for second degree murder is knowingly.

§ 18-3-103(1), C.R.S (2018). Attempt liability also requires that the defendant, acting

with the kind of culpability otherwise required for commission of an offense, engage in

conduct constituting a substantial step toward the commission of the offense. A

substantial step is any conduct that is strongly corroborative of the firmness of the

actor’s purpose to complete the offense. § 18-2-101, C.R.S. (2018). First degree assault,

25
as charged here, requires that a defendant act with the specific intent to cause serious

bodily injury by means of a deadly weapon. § 18-3-202(1)(a), C.R.S. (2018).

Thus, in order for Zapata to be guilty of the crimes for which he was convicted,

there needed to be evidence beyond a reasonable doubt that he intended to facilitate

Murillo in his criminal act or conduct, and that Zapata did so with an awareness of the

actual circumstances, namely an effort to kill the victim, and the specific intent to cause

him, at the very least, serious bodily injury by means of a deadly weapon.

The record reveals strong evidence of Zapata’s complicity in the offenses of

which the jury found him guilty. According to Zapata, he was merely present when

Murillo, a “loose cannon,” committed the attack. However, significant evidence

supports the notion that Zapata enlisted the aid of Murillo: the photos of Zapata and

Murillo entering and leaving the light rail together; Zapata’s numerous texts warning

S.M., “Don[’]t be there”; Zapata’s calm demeanor in the video while he watched the

attack; even Murillo’s testimony that he had never been to the store before—or to

Littleton for that matter—and that he had never seen the victim or store owner before

the attack. And there’s no evidence suggesting another motive for Murillo to go to the

Littleton store or to commit the attack. In contrast, even without the res gestae

evidence, the testimony by S.M. that she told Zapata about the unwanted sexual

attention from the store owner provided a very strong motive for Zapata to convince

Murillo to attack the store owner. That Murillo did so with a steak knife right in front

of Zapata without any protest from Zapata (coupled with the “get him good”

26
incitement that would more logically come from the viewer rather than the assailant)

provides even more evidence of the requisite culpable mental states.

Turning to the nature of the res gestae evidence and its risk for prejudice, we

acknowledge that some of the admitted, uncharged misconduct evidence was

inflammatory. However, given the strength of the other evidence against Zapata and

the implausibility of the defendant’s “innocent bystander” theory of the case, we do not

believe the uncharged misconduct evidence was so prejudicial as to substantially

influence the verdict or impair the fairness of the trial. Because there was strong

evidence of Zapata’s guilt and an implausible counterargument to that evidence, the res

gestae evidence was not so prejudicial as to substantially influence the verdict or impair

the fairness of the trial. Thus, we conclude any error as to the admission of res gestae

evidence was harmless. See Pernell, ¶ 25, 411 P.3d at 673; Crider, 186 P.3d at 43.

IV. Conclusion

We hold that Murillo’s competency reports are protected by the

physician-patient or psychologist-client privilege and Murillo did not waive the

privilege as to Zapata when he put his competency in dispute in his own case. We

further conclude that Zapata did not make a sufficient showing that the competency

reports contained exculpatory evidence to justify their release to him or review by the

trial court. Finally, we conclude that any error in the admission of res gestae evidence

was harmless given the strong evidence of Zapata’s guilt.

Thus, we affirm the judgment of the court of appeals.

27
JUSTICE HART specially concurs, and JUSTICE GABRIEL joins in the special
concurrence.
JUSTICE SAMOUR dissents, and CHIEF JUSTICE COATS joins in the dissent.

28
JUSTICE HART, specially concurring.

I join the majority opinion in full. I write separately, however, to express my

concern over the trial court’s decision to admit highly prejudicial and unrelated

evidence under the guise of “res gestae.” While I agree with the majority that, in this

particular case, the error in admitting the res gestae evidence was harmless, the issue is

a close one and I believe that it must be acknowledged as error. Further, I have serious

reservations about the continued appropriateness of the res gestae doctrine and believe

that, in an appropriate case, this court should consider whether to join other

jurisdictions that have abandoned the doctrine. See C.A.R. 35(e)(3) (recognizing, albeit

in a different context, the propriety of using a special concurrence to “direct[] attention

to the shortcomings of existing common law or inadequacies in statutes”).

I.

The res gestae doctrine has its roots in common law, where it was initially

employed as an exception to the general prohibition on the admission of hearsay and

permitted the admission of statements made at the time an event occurred. The idea

was that witnesses might need to include these statements to complete the story of what

had occurred, and that the statements were reliable because they were spontaneous.

See H. Patrick Furman & Ann England, The Expanding Use of the Res Gestae Doctrine, 38

Colo. Law. 35, 35 (2009). Over the years, the doctrine itself has expanded to permit the

introduction of evidence well beyond contemporaneous statements. As the majority

notes, our definition of res gestae now encompasses any “uncharged misconduct

evidence that is intertwined with the charged conduct.” Maj. op. ¶ 57.

1
 In this case, some of the evidence was appropriately admitted. In particular, text

messages between Zapata and S.M. concerning her alleged sexual assault by the

convenience store owner and Zapata’s request that she not be at the store on the day of

the crime were important to “complete the story of the crime for the jury.” In addition

to this evidence that explained Zapata’s motive and suggested his intent to commit the

crime, however, the trial court permitted the prosecution to introduce Zapata’s

profanity-filled texts about S.M.’s relationship with a new boyfriend who had no

connection with the crime and texts to and about S.M.’s family that were similarly

crude. The prosecution was also permitted to introduce evidence about Zapata’s

alleged physical abuse of S.M. during the last six months of their relationship and his

controlling behavior toward her during that same time frame.

Because I cannot discern a verifiable and significant connection between the

defendant’s alleged prior bad acts towards S.M., her new boyfriend, and her family and

the subsequent assault of the store clerk, I cannot conclude that this evidence was

properly admitted. In other words, I respectfully disagree with the trial court that the

jury needed this evidence because it was all part of one big story. To the contrary, this

evidence should not have been allowed to go before the jury; it served the prohibited

purpose of demonstrating the defendant’s purported threatening and violent bad

character.

That this evidence was improperly admitted is also shown by the way the

prosecutor used it in closing argument: “What else do you want to know about [the

defendant]? Prior to the incident you know how he reacts to and what he thinks about

2
people who are messing with [S.M.] And what he would like to do to them.” In

essence, the jury was encouraged to use the defendant’s threatening and violent bad

character from the past to determine what happened in the present case, with an

unrelated victim.

Our Rules of Evidence provide a specific mechanism in C.R.E. 404(b) for

considering whether this kind of otherwise-inadmissible character evidence may be

introduced. The evidence admitted in this case as res gestae should have been assessed

for whether it met the substantive and procedural requirements of 404(b). Had such an

assessment been made, I doubt that the trial court would have permitted the

prosecution to use the evidence as it did. Unfortunately, the label “res gestae”

short-circuited the evaluation called for in Rule 404(b), as it too often does.

II.

This case would not have been an appropriate vehicle to consider whether

Colorado should continue to recognize the res gestae doctrine because the error in

admitting the unrelated evidence was harmless. There is, however, good reason for this

court, in an appropriate case, to consider whether the doctrine has been rendered

obsolete by modern rules of evidence. It is a vague and nearly standardless concept

that is applied too expansively to admit otherwise inadmissible evidence. See, e.g.,

Edward J. Imwinkelried, The Second Coming of Res Gestae: A Procedural Approach to

Untangling the ‘Inextricably Intertwined’ Theory for Admitting Evidence of an Accused’s

Uncharged Misconduct, 59 Cath. U. L. Rev. 719, 729–30 (2010) (cataloging some of the

wide-ranging criticism of res gestae and noting that “[t]he looseness of the doctrine

3
allows the courts to engage in ‘result-oriented’ decision-making”) (citations omitted).

Moreover, the most appropriate contexts for its application are likely already covered

by the Colorado Rules of Evidence.

The continued utility of the doctrine has been questioned by a number of

prominent experts in the law of evidence. See 2 George E. Dix et al., McCormick on

Evidence § 268 (Robert P. Mosteller ed., 7th ed. Supp. 2016) (“[Res gestae’s] vagueness

and imprecision are apparent.”); 4 Clifford S. Fishman & Anne T. McKenna, Jones on

Evidence § 24:6 (7th ed. 2017) (“[U]se of the phrase ‘res gestae’ to delineate a hearsay

exception is rightly regarded with disfavor.”). One prominent treatise has ventured

even further: “The phrase res gestae has long been not only entirely useless, but even

positively harmful. It is useless, because every rule of evidence to which it has ever

been applied exists as a part of some other well-established principle and can be

explained in the terms of that principle.” 6 John Henry Wigmore, Evidence in Trials at

Common Law § 1767 (James H. Chadbourne rev., 1976).

The Federal Rules of Evidence avoid using the term. See Fed. R. Crim. P. 404(b).

And numerous jurisdictions, both state and federal, have rejected the use of the res

gestae doctrine. See Kenney v. Floyd, 700 F.3d 604, 609 (1st Cir. 2012) (“Categories of

evidence that were once excepted as ‘res gestae’ are now incorporated in either the

definition of hearsay itself, Fed. R. Evid. 801, or the defined exceptions to the hearsay

rule, Fed. R. Evid. 803–804.”); Miller v. Keating, 754 F.2d 507, 509 (3d Cir. 1985) (“The old

catchall, ‘res gestae,’ is no longer part of the law of evidence.”); State v. Fetelee,

175 P.3d 709, 735 (Haw. 2008) (“[T]he [Hawai’i Rules of Evidence] supersede[] the

4
common law res gestae doctrine.”); State v. Rose, 19 A.3d 985, 988 (N.J. 2011) (“[T]he

doctrine of res gestae no longer has vitality in light of the formal Rules of Evidence.”).

Of course, there are other jurisdictions that continue to refer to the doctrine. See

United States v. Brown, 888 F.3d 829, 836 (6th Cir. 2018) (“This Court recognizes an

exception to Rule 404(b) for res gestae evidence where the evidence ‘consis[t][s] of those

other acts that are inextricably intertwined with the charged offense or those acts, the

telling of which is necessary to complete the story of the charged offense.’”) (quoting

United States v. Olds, 309 Fed. Appx. 967, 974 (6th Cir. 2009)). Because we have received

no briefing on the question here, and because the error in this case was harmless, this is

not the moment to consider which of these approaches Colorado should take. But,

particularly in light of the expansive use of the doctrine in the trial courts, we might do

well to take the matter up in a future case.

I am authorized to state that JUSTICE GABRIEL joins in this concurrence.

5
JUSTICE SAMOUR, dissenting.

I. Introduction

I respectfully dissent because I disagree with the majority’s holding that

Murillo’s competency evaluation report is protected by the physician-patient or

psychologist-client privilege and is inaccessible to Zapata.1 In my view, Zapata was

entitled to Murillo’s competency evaluation report, and the trial court’s failure to afford

him access to it was erroneous. Further, although I agree with the majority’s conclusion

regarding the trial court’s admission of res gestae evidence, I feel compelled to briefly

comment on the concurring opinion.

II. Analysis

A. Privileges and Waiver

The majority concludes that, depending on the qualifications and training of the

evaluator, either the physician-patient privilege or the psychologist-client privilege

automatically attaches during the performance of any court-ordered competency

1 The majority, the court of appeals, and the parties refer to competency evaluation
reports (plural). By and large, I refer to a single report because only one appears to
have been filed with the trial court. After completion of the court-ordered competency
evaluation, which concluded that Murillo was competent, Murillo requested leave to
have an evaluator of his own choosing conduct a second competency evaluation. See
§ 16-8.5-106(1), C.R.S. (2018). The trial court granted the request and a second
evaluation was completed. However, it appears that the report related to that second
evaluation was never filed with the clerk of the court, although a copy of it was
provided to the prosecution. Murillo subsequently withdrew his claim of incompetency
and accepted the prosecution’s plea bargain offer.

1
evaluation in a criminal case. Moreover, according to the majority, the waiver created

by subsection 16-8.5-104(1), C.R.S. (2018), is limited to the parties and the judge in the

case in which the competency evaluation is completed. Therefore, the majority

determines that Zapata had no right to access the report of the competency evaluation

performed on Murillo in Murillo’s case.2

I address the physician-patient and psychologist-client privileges first and then

proceed to discuss the statutory waiver. Because I conclude that Murillo’s competency

evaluation report is not protected by either privilege, I would not reach the waiver

issue.3 I do so here because I disagree with the majority’s interpretation of subsection

16-8.5-104(1).

1. Physician-Patient and Psychologist-Client Privileges

Court-ordered competency evaluations must be conducted by (1) a licensed

physician who is a psychiatrist and who is trained in forensic competency assessments

2 At one point, the prosecution admitted to the trial court that there were “maybe two
lines about the actual incident” in Murillo’s second competency evaluation report, but
claimed that there was nothing in the report that was not included in a subsequent
“proffer” Murillo provided the prosecution as part of his plea agreement. This
statement, though, contradicted an earlier representation by the prosecution that
“essentially what [Murillo] says” in his first evaluation “is he doesn’t remember
anything about the incident.” Murillo testified during Zapata’s trial that, although he
did not remember the incident, he had known Zapata for six months before the attack,
the convenience store’s surveillance video showed him and Zapata while the attack
took place, he and Zapata were not there to rob the store, and Zapata left him at the
store to die.
3I limit my analysis to court-ordered competency evaluations; as such, I do not address
evaluations performed pursuant to section 16-8.5-106, which are requested and paid for
by the defendant and completed by an evaluator chosen by the defendant.

2
or a licensed psychologist who is trained in forensic competency assessments, (2) a

psychiatrist who is in forensic training and practices under the supervision of a

psychiatrist with expertise in forensic psychiatry, or (3) a psychologist who is in forensic

training and practices under the supervision of a licensed psychologist with expertise in

forensic psychology. § 16-8.5-101(2), C.R.S. (2018).4 The question, then, is whether the

report completed following Murillo’s competency evaluation is protected by the

physician-patient privilege or the psychologist-client privilege.5 Because the answer

necessarily depends on the scope of each privilege, I examine the statutory definition of

each privilege first.

In Colorado, the physician-patient and psychologist-client privileges are

governed by subsection 13-90-107(1), C.R.S. (2018). That statute prohibits a physician

from being “examined without the consent of his or her patient as to any information

acquired in attending the patient that was necessary to enable him or her to prescribe or

act for the patient.” § 13-90-107(1)(d). It also provides that a psychologist “shall not be

examined without the consent of the . . . client as to any communication made by the

4As the majority indicates, there is no basis to believe that the competency evaluation
performed on Murillo failed to comply with subsection 16-8.5-101(2). Consequently,
Murillo’s competency evaluation was conducted by a physician (including possibly a
psychiatrist) or a psychologist.
5 The majority correctly states that the record does not include, under seal or otherwise,
a copy of the competency evaluation report completed. Zapata attempted to make the
evaluation part of the record so that it would be available for review purposes. I believe
it was improper for the trial court to refuse to allow him to do so.

3
client to the [psychologist]” or as to any “advice given” by the psychologist to the client

“in the course of professional employment.” § 13-90-107(1)(g).

The majority concludes that Murillo’s competency evaluation report is protected

by the physician-patient privilege and the psychologist-client privilege. Maj. op.

¶¶ 31–40. As to the former, the majority finds that Murillo was his evaluator’s

“patient” and that the evaluator acquired information in “attending” Murillo that was

“necessary to enable” him “to act” for Murillo. Id. at ¶¶ 34–39. As to the latter, the

majority finds that Murillo was his evaluator’s “client” and that Murillo’s

communications to his evaluator were “in the course of professional employment.” 6 Id.

at ¶ 34.

Respectfully, the majority futilely attempts to pound the square peg of

competency evaluation reports into the round hole of the physician-patient and

psychologist-client privileges. I do not believe this ruling is tenable for multiple

reasons. First, subsection 16-8.5-105(2), C.R.S. (2018), which addresses the protection of

“[s]tatements made by the defendant in the course of the [competency] evaluation,”

does not contemplate protecting competency evaluation reports under the umbrella of

the physician-patient and psychologist-client privileges. Second, the plain language in

subsections 13-90-107(1)(d) and (1)(g) reflects that the physician-patient and

psychologist-client privileges do not apply to competency evaluation reports. Third,

6 The majority concedes that a psychologist “offers no ‘advice’ (in the clinical sense) to
the defendant in [the] context” of a competency evaluation. Maj. op. ¶ 31.

4
the majority misunderstands subsections 13-90-107(1)(d) and (1)(g) and overlooks our

decision in Martinez v. Lewis, 969 P.2d 213 (Colo. 1998). And finally, covering

competency evaluations with the protective cloak of the physician-patient and

psychologist-client privileges does not further the policies behind those privileges.

Subsection 16-8.5-105(2) fails to mention the physician-patient privilege, the

psychologist-client privilege, or section 13-90-107. Had the legislature intended to

afford a competency evaluation report the protection of the physician-patient privilege

or the psychologist-client privilege (or any other privilege in section 13-90-107), it

presumably would have done so in subsection 16-8.5-105(2).

The only protection subsection 16-8.5-105(2) affords statements made by the

defendant during a competency evaluation is as set forth in section 16-8.5-108, C.R.S.

(2018), which is titled “Evidence.” § 16-8.5-105(2). Neither we nor divisions of the court

of appeals have previously had occasion to interpret section 16-8.5-108. But its

counterpart in the insanity arena, section 16-8-107, C.R.S. (2018), which is also titled

“Evidence” and is nearly identical, has been repeatedly construed by divisions of the

court of appeals as protecting only the defendant’s privilege against self-incrimination

under the Fifth Amendment to the United States Constitution. See People v. Herrera,

87 P.3d 240, 247 (Colo. App. 2003) (“The insanity statute protects [the privilege against

self-incrimination] by limiting evidence obtained during [a sanity] examination to a

defendant’s mental condition” under “§ 16-8-107(1)(a), (1.5)(a).”); id. at 250 (subsections

“16-8-107(1)(a) and (1.5)(a),” along with other statutory provisions, “protect a

defendant’s privilege against self-incrimination by limiting the use of evidence” to

5
certain purposes); see also People v. Bondurant, 2012 COA 50, ¶ 45, 296 P.3d 200, 210 (the

General Assembly “replaced the express protection against self-incrimination with the

provision that statements made by the defendant in the course of [a sanity] examination

shall be protected as provided in section 16-8-107”) (quotation and original alteration

omitted).

The division of the court of appeals in this case incorrectly read section 16-8.5-108

as relevant to the psychologist-patient privilege. See People v. Zapata, 2016 COA 75M,

¶¶ 26–31, __P.3d__. The majority makes the same mistake in an attempt to harmonize

its holding—that competency evaluation reports are confidential and privileged

pursuant to subsections 13-90-107(1)(d) and (1)(g)—with the inescapable reality that the

information in such reports is regularly used in open court during competency

hearings, restoration hearings, jury trials, and sentencing hearings. Maj. op. ¶ 40 n.3.

Moreover, the plain language in subsections 13-90-107(1)(d) and (1)(g) does not

include competency evaluation reports. First, as it relates to the physician-patient

privilege, Murillo was not a “patient” of the evaluator. § 13-90-107(1)(d). Nor does the

report contain information that was acquired while “attending” Murillo or that was

“necessary to enable” the evaluator “to prescribe or act for” Murillo. Id. Rather, as part

of Murillo’s criminal case, and without first obtaining Murillo’s agreement or consent,

the court ordered the department of human services to have one of its evaluators (1)

conduct a competency evaluation of Murillo, (2) prepare a written report of the

evaluation, and (3) deliver the report to the clerk of the court so that a copy of it could

then be forwarded to the prosecutor and defense counsel. Because the evaluator was

6
not Murillo’s treating physician and did not obtain any information while attending to

him, much less information that was necessary to allow him to prescribe or act for

Murillo, the competency evaluation report does not fall within the scope of the

physician-patient privilege.

The psychologist-client privilege is equally inapplicable. Murillo was not a

“client” of the evaluator. § 13-90-107(1)(g). Nor did Murillo make any communication

to the evaluator “in the course of [Murillo’s] professional employment” of the evaluator.

Id.. The evaluator was not professionally employed by Murillo, and Murillo and the

evaluator did not have a professional employment relationship. Rather, the evaluator

evaluated Murillo pursuant to an order issued by the court.

The majority misconstrues subsections 13-90-107(1)(d) and (1)(g). It insists that

competency evaluations must be protected by the privileges because they “are utilized

for diagnostic and treatment purposes.” Maj. op. ¶ 36. Although the premise of this

contention is technically correct, it is out of context. The purpose of a court-ordered

competency evaluation in a criminal case is not to provide health care to the defendant

by diagnosing or treating illnesses or conditions from which he may suffer. To the

extent that there is a diagnosis in a competency evaluation, it is for the sole purpose of

complying with the court’s order to form and document certain opinions related to the

defendant’s competency. See § 16-8.5-105(5) (requiring the evaluator to provide “[a]n

opinion as to whether the defendant suffers from a mental disability or developmental

disability,” a “diagnosis and prognosis” of any such “mental disability or

developmental disability,” and “[a]n opinion as to whether the defendant is competent

7
to proceed”). Likewise, to the extent that any treatment takes place during an

evaluation, it is for the sole purpose of complying with the court’s order to attempt to

restore an incompetent defendant to competence. See § 16-8.5-111(2), C.R.S. (2018)

(discussing the court’s options when restoration is appropriate). In neither case does

the evaluator act as the defendant’s physician, psychologist, or health care provider; in

neither case is the defendant a patient or a client of the evaluator; and in neither case

does the defendant receive diagnostic care, treatment, or any other type of health care at

his request (or even with his agreement or consent) from a physician, psychologist, or

health care provider.

The majority next avers that evaluators “attend” to defendants during

competency evaluations, as required by the physician-patient privilege. Maj. op.

¶¶ 34–36. But this ignores the nature of competency evaluations, which is not at all

consistent with a physician “attend[ing]” to his patient. As relevant here, the word

“attend” is defined as “to look after,” “to go or stay with as a . . . nurse,” and “to visit

professionally especially as a physician.” Attend, Merriam-Webster’s Online Dictionary,

https:// merriam-webster.com /dictionary/attend [https://perma.cc/7L72-R75S]. An

evaluator ordered by the court in a criminal case to perform a competency examination

does not “look after” the defendant, “go or stay with” the defendant as a nurse, or

“visit” the defendant “professionally” as a physician would do with his patient. Rather,

he evaluates the defendant for competency because he is ordered to do so by the judge

presiding over the defendant’s criminal case.

8
 The analysis by the majority then turns conclusory. The majority admittedly

“take[s] it as a given” that evaluators act “in the course of professional employment,” as

required by the psychologist-client privilege. Maj. op. ¶ 34. In my view, that

proposition is not “a given.” While evaluators no doubt act “in the course of

professional employment” with the department of human services as they perform

court-ordered competency evaluations, that is not what subsection (1)(g) requires.

Subsection (1)(g) provides that the psychologist-patient privilege protects “any

communication made by the client to the [psychologist] . . . in the course of professional

employment.” § 13-90-107(1)(g). This cannot possibly mean what the majority

apparently thinks it means—that any communication by a client to a psychologist,

during a time when the psychologist is professionally employed somewhere by

someone, is protected by the psychologist-patient privilege. Instead, subsection (1)(g)

must be read as referring to a communication by a client to a psychologist during the

course of professional employment between the client and the psychologist. Because an

evaluator performing a court-ordered competency evaluation is not professionally

employed by and has no professional employment relationship with any defendant he

evaluates, competency evaluation reports are not protected by the psychologist-patient

privilege.

The majority further contends that the information in a competency evaluation

report is covered by the physician-patient privilege because “acquiring that information

enables the evaluator to act for the defendant.” Maj. op. ¶ 38. However, an evaluator

ordered by the court to perform a competency evaluation does not “prescribe or act” for

9
the defendant, as subsection 13-90-107(1)(d) requires. Rather, in contrast to a physician

who prescribes or acts to diagnose or treat his patient at his patient’s behest, an

evaluator acts at the court’s request to assess the defendant’s competency. Thus, the

information in a competency evaluation report is not necessary to prescribe or act for

the defendant; it is necessary to enable the evaluator to comply with the court’s order

and, by extension, with subsections 16-8.5-103(2), C.R.S. (2018) (discussing

court-ordered competency evaluations) and 16-8.5-105(5) (explaining the required

contents of competency evaluation reports).

In addition to misconstruing the plain language of subsections 13-90-107(1)(d)

and (1)(g), the majority pays no attention to our decision in Martinez Although Martinez

involved a medical malpractice claim, it is instructive.

Martinez was involved in a car accident, and Dr. Lewis performed an

independent medical evaluation at the request of State Farm Mutual Automobile

Insurance Company (State Farm), Martinez’s insurer. 969 P.2d at 215–16. In analyzing

whether Dr. Lewis owed Martinez a duty, we listed a number of factors that must be

considered: “the risk involved,” balancing “the foreseeability and likelihood of injury”

against “the social utility of the [physician’s] conduct,” the extent of “the burden of

guarding against the harm,” and any “consequences of placing the burden of a duty on

the defendant.” Id. at 218. In applying these factors, we reviewed the context in which

Dr. Lewis’s evaluation of Martinez occurred and contrasted Martinez’s health care

providers with Dr. Lewis. Id. We explained that “Martinez sought psychological and

psychiatric treatment from her own health care providers” and did not contend “that she

10
sought medical advice or treatment from Dr. Lewis, that he advised her in any way, that he

failed to inform her about an unknown condition, or that he injured her during the

course of the examination.” Id. (emphases added). We further observed that, under

State Farm’s agreement with Dr. Lewis, which was for State Farm’s sole benefit, “Dr.

Lewis’s obligations were to report to State Farm his opinions regarding the diagnosis,

prognosis, and other pertinent information regarding any treatment Martinez might

need.” Id. at 218–19. Therefore, we agreed with the court of appeals that “no

physician-patient relationship existed between Dr. Lewis and Martinez.” Id. at 219.

Similarly, here, Murillo did not seek medical advice or treatment from the

evaluator, and the evaluator did not advise him in any way or diagnose any condition.

Moreover, pursuant to the court’s order, the evaluator’s obligation was to report to the

court in writing the opinions and information required by subsection 16-8.5-105(5).

Thus, just as no physician-patient relationship was formed between Dr. Lewis and

Martinez, no physician-patient relationship or psychologist-client relationship was

formed between Murillo’s evaluator and Murillo.

Although the majority turns a blind eye to Martinez, it nevertheless reasons that

competency evaluations are privileged because they are conducted largely for the

defendant’s benefit. I take issue with this supposition. While it is now axiomatic that it

is unconstitutional to try an incompetent defendant, competency evaluations are

ordered and completed for the benefit of the court (not the defendant), in order to

afford the court an opportunity to make a fair and reliable determination regarding the

11
defendant’s competency to proceed. Indeed, it is not unusual for defendants and

defense counsel to object to court-ordered competency evaluations.

Lastly, I disagree that extending the aegis of the physician-patient and

psychologist-client privileges to competency evaluations serves the purposes behind

those privileges. The purpose of the privileges is “to enhance the effective diagnosis

and treatment of illness by protecting the patient from the embarrassment and

humiliation that might be caused by the . . . disclosure of information imparted . . . by

the patient during the course of a consultation.” Clark v. Dist. Court, 668 P.2d 3, 8 (Colo.

1983); see also People v. Sisneros, 55 P.3d 797, 800 (Colo. 2002). That purpose is in no way

achieved by casting the protective net of the physician-patient and psychologist-client

privileges so wide as to snare court-ordered competency evaluation reports, which

must be distributed to the court, the prosecutor, and defense counsel, see § 16-8.5-105(4),

and which are regularly discussed in open court during competency hearings,

restoration hearings, jury trials, and sentencing hearings.

Yet, Zapata was improperly denied access to Murillo’s competency evaluation

report based on the physician-patient and the psychologist-client privileges. As a

result, Zapata was forced to proceed to trial without the report, even though (1) Murillo

testified as a prosecution witness against Zapata in Zapata’s case, (2) Murillo was asked

about and discussed the convenience store attack during his competency evaluation, (3)

the prosecutor, defense counsel, and the judge in Murillo’s case all received a copy of

the report, (4) the prosecutor in Zapata’s case had access to the report because he was

the same prosecutor in Murillo’s case, and (5) since the same judge presided over both

12
cases, the judge in Zapata’s case, too, had access to the report. The majority’s decision

today ratifies this denial of access due to its mistaken interpretation of subsections

13-90-107(1)(d) and (1)(g).

2. Statutory Waiver

Because I do not believe the physician-patient and psychologist-client privileges

apply to competency evaluation reports, I would not reach the statutory waiver issue. I

address the question here, though, to express my disagreement with the majority’s

interpretation of subsection 16-8.5-104(1). Even if, as the majority concludes,

competency evaluation reports are protected by the physician-patient and psychologist-

client privileges, I would find that Zapata was nevertheless entitled to Murillo’s

competency evaluation report based on the waiver provision in subsection

16-8.5-104(1).

Subsection 16-8.5-104(1) states in pertinent part that, where, as here, “a defendant

raises the issue of competency to proceed, . . . any claim by the defendant to

confidentiality or privilege is deemed waived.”7 The legislature did not place a limit on

7 In full, subsection 16-8.5-104(1) provides,
When a defendant raises the issue of competency to proceed, or when the
court determines that the defendant is incompetent to proceed and orders
that the defendant undergo restoration treatment, any claim by the
defendant to confidentiality or privilege is deemed waived, and the
district attorney, the defense attorney, and the court are granted access,
without written consent of the defendant or further order of the court, to:
(a) Reports of competency evaluations, including second evaluations;

13
this waiver. Instead, it stated that any claim of confidentiality or privilege by the

defendant is deemed waived.

The majority infuses a limitation into the statute: a defendant’s physician-patient

and psychologist-client privileges are waived “only as to the parties and the court in

that defendant’s case.” Maj. op. ¶ 41. It does so based largely on what follows the waiver

language in subsection (1)—“and the district attorney, the defense attorney, and the

court are granted access, without written consent of the defendant or further order of

the court, to” certain reports, documents, information, and the evaluator.

§ 16-8.5-104(1). Additionally, the majority relies on the fact that four of the remaining

five subsections in the statute address disclosures to the same three recipients—the

court, the prosecutor, and defense counsel in the defendant’s case. Maj. op. ¶ 42.

In my view, the majority makes too much of the references in the statute to the

court, the prosecutor, and defense counsel in the criminal case. Of course the legislature

referred to the court, the prosecutor, and defense counsel in the criminal case; that is not

at all surprising. After all, having declared there is an automatic waiver, the legislature

set forth the records, documents, and information that must be made available to the

(b) Information and documents relating to the competency evaluation that
are created by, obtained by, reviewed by, or relied on by an evaluator
performing a court-ordered evaluation; and
(c) The evaluator, for the purpose of discussing the competency
evaluation.
Thus, this subsection does not reference the physician-patient or psychologist-client
privilege, and does not address the waiver of either privilege; rather, it forecloses “any
claim by the defendant” that the court-ordered competency evaluation is confidential or
privileged.

14
court and the parties in the case. There was no reason for the legislature to foresee—

and there is no basis to believe that it foresaw or even thought about—the rare scenario

that developed in this case involving a defendant who undergoes a court-ordered

competency evaluation and then testifies on behalf of the prosecution against his

codefendant in the codefendant’s trial. But the omission of a provision addressing such

an unusual case doesn’t mean that the legislature intended to limit the waiver as the

majority concludes.

Unlike the majority, I do not interpret the language used by the legislature as a

deliberate limitation on the scope of the waiver. The legislature certainly did not say in

the part of subsection (1) on which the majority relies that only the prosecutor, defense

counsel, and the court in the case in which the competency evaluation is completed may be

granted access to the listed reports, documents, and information. Nor did the

legislature state in the remaining subsections of the statute that only the prosecutor,

defense counsel, and the court in the case in which the competency evaluation is completed

are entitled to the additional disclosures identified. Had the legislature meant to limit

the scope of section 16-8.5-104 consistent with the majority’s position, it could have

easily done so by simply stating such a limitation.8

8 Notably, section 16-8-103.6, C.R.S. (2018), the waiver provision governing insanity
cases, contains the type of limiting language the majority injects into subsection
16-8.5-104(1). That section provides that a defendant who places his mental condition at
issue, by either pleading not guilty by reason of insanity or disclosing witnesses who
may testify regarding his mental condition during a capital sentencing hearing, “waives
any claim of confidentiality or privilege as to communications made by the defendant to

15
 In short, because the legislature did not include any language limiting the scope

of the waiver in subsection 16-8.5-104(1), I conclude that the waiver is not limited.

Consequently, even if the physician-patient and psychologist-client privileges apply to

protect Murillo’s competency evaluation report, I would find that Murillo waived any

claim of privilege or confidentiality as to the report.9

a physician or psychologist in the course of an examination or treatment for such
mental condition for the purpose of any trial, hearing on the issue of such mental
condition, or [capital] sentencing hearing.” § 16-8-103.6. Subsection 13-90-107(3) then
confirms that the physician-patient and psychologist-client privileges “shall not apply
to physicians or psychologists eligible to testify concerning a criminal defendant’s
mental condition pursuant to section 16-8-103.6.”
9 Unfortunately, section 16-8.5-104 is not a paragon of clarity. (This is in no way
intended as a criticism of our fellow branch of government; my goal is simply to draw
attention to some statutory ambiguities.) In addition to the issues already discussed, I
note that the waiver in subsection 16-8.5-104(1) purportedly applies only in two
scenarios: when restoration services are ordered and when the defendant raises the
question of competency. Yet, there are instances in which the court or the prosecution
raises the issue of competency, but the defense agrees that a competency evaluation is
appropriate. Further, the court, the prosecution, and defense counsel are entitled to
receive a copy of all competency evaluation reports, regardless of who raised the issue
of competency. § 16-8.5-105(4). If the waiver applies in situations not currently
mentioned in the statute, it is unclear when it is triggered. For example, if the
defendant requests and pays for an evaluation by an evaluator of his choosing (a second
evaluation), does the waiver apply when the evaluation is requested, or only if the
evaluation is completed and a report is submitted to the clerk of the court pursuant to
subsection 16-8.5-105(4)?

16
 B. Res Gestae Evidence

I agree with the majority’s conclusion regarding the evidence introduced by the

trial court under the res gestae doctrine.10 Maj. op. ¶ 5. However, the concurring

opinion warrants a few observations.

First, the concurrence speculates that it is doubtful the trial court would have

allowed under CRE 404(b) any evidence improperly admitted pursuant to the res gestae

doctrine. See Conc. op. ¶ 6 (Had the trial court analyzed this evidence pursuant to the

requirements of Rule 404(b), “I doubt” it “would have permitted the prosecution to use

the evidence as it did.”). In fact, the concurrence appears to surmise that all of the

improperly admitted res gestae evidence was inadmissible under any other theory of

relevance. Id. at ¶ 4.

10In Colorado, res gestae is simply “a theory of relevance which recognizes that certain
evidence is relevant because of its unique relationship to the charged crime.” People v.
Greenlee, 200 P.3d 363, 368 (Colo. 2009). The theory “is based on the idea that ‘[c]riminal
occurrences do not always take place on a sterile stage,’” and that where the events
leading up to the crimes charged help explain the setting in which the crimes took
place, “‘no error is committed by permitting the jury to view the criminal episode in the
context in which it happened.’” People v. Galang, 2016 COA 68, ¶ 15, 382 P.3d 1241, 1245
(quoting People v. Lobato, 530 P.2d 493, 496 (Colo. 1975)); see also People v. Quintana, 882
P.2d 1366, 1373 (Colo. 1994) (Res gestae seeks “to provide the fact-finder with a full and
complete understanding of the events surrounding the crime and the context in which
the charged crime occurred.”). Res gestae evidence is subject to the requirements of
CRE 401 and CRE 403. People v. Relaford, 2016 COA 99, ¶ 61, 409 P.3d 490, 500 (“Res
gestae evidence is admissible so long as it is relevant and its probative value is not
substantially outweighed by the danger of unfair prejudice.”). Thus, contrary to the
concurrence’s assertion, res gestae is not a “nearly standardless concept.” Conc. op. ¶ 7.

17
 Second, I take a moment to note that, as was the case with Mark Twain, the

concurrence’s report about the demise of the res gestae doctrine is greatly exaggerated.

While the term “res gestae” may be losing favor, courts continue to allow res gestae

evidence under a different name: “inextricably intertwined” evidence. See Edward J.

Imwinkelried, The Second Coming of Res Gestae, 59 Catholic U. L. Rev. 719, 722–24 (2010);

Christopher B. Mueller & Laird C. Kirkpatrick, 1 Fed. Ev. § 433 (4th ed., 2018) (“The

modern de-Latinized expression uses the phrase ‘inextricably intertwined’” instead of

the “mind-numbing and elastic term ‘res gestae[.]’”). And “the number of cases

invoking the [inextricably intertwined] doctrine grows largely unabated” even

“[d]espite [a] constant drumbeat of substantive criticism.” Imwinkelried, supra, at 724.

Finally, the concurrence expresses “serious reservations about the continued

appropriateness of the res gestae doctrine,” see Conc. op. ¶ 1, and conveys skepticism

regarding the doctrine’s current usefulness, see id. at ¶¶ 7–9. These issues were not

briefed or even raised by the parties. And, as mentioned, the majority does not resolve

whether the trial court erred in admitting evidence pursuant to the res gestae doctrine.

Maj. op. ¶ 5. Under these circumstances, the criticism levied against the res gestae

doctrine seems premature. As the concurrence aptly acknowledges, this case is not a

suitable conduit to consider whether we should continue to apply the res gestae

doctrine. Conc. op. ¶ 7. Respectfully, because neither the wisdom of the doctrine’s

continued use nor the doctrine’s present-day utility are issues before us, I believe that

the most prudent course of action is to abstain from commenting on them at this time.

18
 III. Conclusion

For the reasons articulated in this dissent, I respectfully disagree with the

majority’s holding regarding the physician-patient and psychologist-client privileges

and the waiver in section 16-8.5-104. I would remand the case to the trial court with

instructions to make Murillo’s competency evaluation report available to Zapata and to

then afford Zapata an opportunity to demonstrate that there is a reasonable probability

that, had the report been disclosed to him before trial, the result of the proceeding

would have been different. See Zoll v. People, 2018 CO 70, ¶ 12, 425 P.3d 1120, 1125.

I am authorized to state that CHIEF JUSTICE COATS joins in this dissent.

19