dissenting.
While I have no quarrel with the proposition that insanity and intoxication are separate and distinct defenses, or even that insulin-induced hypoglycemia might conceivably produce a state legally defined as “intoxication” that was not “self-induced,” I find nothing in the record of this case to suggest that the defendant was erroneously deprived of a fair opportunity to present a defense of intoxication, self-induced or otherwise. Because I think it clear that the defendant’s own admissions in asserting insulin-induced hypoglycemia were inconsistent with a defense of intoxication that was not self-induced; and because any error in denying him evidence or instructions in that regard (had it actually occurred) would have been harmless, in light of the actual presentation of his proffered evidence to the jury with instructions that were indistinguishable from non-self-induced intoxication, I respectfully dissent.
The law of this jurisdiction relieves a person of criminal responsibility if he lacks the capacity to conform his conduct to the requirements of the law by reason of a disturbance of his mental or physical capacities, resulting from his knowing introduction of any substance into his body, as long as he either had no reason to know it would cause such a disturbance or he introduced it pursuant to medical advice. § 18-1-804(3) to (5), C.R.S. (2004). On the other hand, an accused has not committed the elements necessary for the commission of a crime at all if, at the time of doing a criminal act, he suffered from a mental defect that was not attributable to the voluntary ingestion of a psychoactive substance and was so severe it prevented him from forming a required culpable mental state. § 16-8-101.5(l)(b) and (2)(b), C.R.S. (2004). With regard to the latter defense, however, the legislature permits the admission of expert testimony in support only upon entering a plea of not guilty by reason of insanity, § 16-8-107(3), C.R.S. (2004); see People v. Low, 732 P.2d 622, 632 (Colo.1987), which then requires submission to a psychiatric exam, § 16-8-105.5, C.R.S. (2004), waiver of certain medical privileges, § 16-8-103.6(2)(a), C.R.S. (2004), and commitment for treatment if successful, § 16-8-105.5(4).
As the majority acknowledges, the defendant offered expert opinion only to show that hypoglycemia affected his rational thought processes to a degree that prevented him from forming the culpable mental state required for the charged offenses. Maj. op. at 778. To the extent that this expert opinion testimony could be considered to have been offered to prove that the defendant’s condition was not self-induced and that by reason of this condition, he lacked “the capacity to conform his conduct to the requirements of the law,” as distinguished from proving that he was incapable of forming a culpable mental state essential to violating the law in the first place, it would therefore not have amounted to evidence solely of the impaired mental condition aspect of insanity, and its admission arguably should not have been limited to the entry of such a plea. Such an assertion was, however, never made by the defendant, who argued, much to the contrary, merely that despite affecting his ability to form a culpable mental state, insulin-induced hypoglycemia was a physical, rather than a mental, condition.
In any event, the defendant’s expert witness was properly rejected because his opinion of the defendant’s hypoglycemic condition was premised upon the defendant’s admissions to the effect that this condition resulted, not from following medical advice, but rather from failing to follow medical advice by over-medicating in anticipation of eating foods he knew he should not eat and even then, by failing to eat anything after over-medicating, despite his prior bad experiences from acting similarly in the past. See People v. Garcia, 826 P.2d 1259, 1263-64 (Colo.1992) (holding defendant not entitled to instructions contrary to his own admissions, despite other credible evidence). The defendant’s evidence of “intoxication” was at one and the same time, evidence of “self-induced intoxication,” as distinguished from intoxication caused by unsuspecting reliance on medical advice. And the defendant, of course, chose not to assert self-induced intoxication, which *787could have done no more, even if successful, than mitigate his otherwise intentional conduct in committing first degree assault.
Moreover, even if the court’s rejection of the defendant’s tendered expert on insulin-induced hypoglycemia, except as his opinion was relevant to an impaired mental condition, had been error, it would have been harmless in light of the defense actually presented to the jury. When the court ruled that the expert’s proposed opinion testimony was relevant only to prove an impaired mental condition, the defendant chose to proceed by pleading insanity, rather than simply challenging the ruling. As a result, the defendant’s expert’s explanation of hypoglycemia was presented in its entirety to the jury. In addition, the psychiatric expert who examined the defendant testified for the defense that hypoglycemia caused by a combination of insulin and not eating (as the defendant admitted) amounted to a mental defect preventing him from behaving intentionally or knowingly, and therefore made him insane within the statutory definition.
The evidence presented by the defendant was clearly, therefore, to the effect that his hypoglycemia was not attributable to the voluntary ingestion of a psychoactive substance. Although the prosecution disputed that hypoglycemia rendered the defendant incapable of forming the culpable mental states required for his crimes, neither it nor any instruction by the court disagreed or suggested that the defendant’s insulin-induced hypoglycemia (to the extent that he suffered from this condition at all) was attributable to the voluntary ingestion of a psychoactive substance. Similarly, the jury was never instructed about “intoxication,” as a separate defense, or told that intoxication cannot in itself amount to insanity.
The jury therefore considered and rejected the defendant’s insanity defense, without having any reason to believe that hypoglycemia brought about by an improper balance of insulin and food intake could not produce, or was in any way legally inconsistent with a defense of, insanity. The jury verdict simply, and necessarily, rejected the defendant’s assertion that hypoglycemia prevented him from acting with the required culpable mental state, which amounted not only to a rejection of his insanity defense but also to any defense of non-self-induced intoxication, had there been sufficient evidence to bring one before the jury.
Although insanity and non-self-indueed intoxication are separate and distinct defenses, each with its own requirements and consequences, when a mental disturbance or defect is allegedly attributable to the involuntary ingestion of an arguably psyehoactive substance and the asserted effect is to prevent the formation of a required culpable mental state, any differences between the two are subtle, at best. Had the jury found the defendant not guilty by reason of insanity, the automatic commitment consequence of a successful insanity plea would have presented a compelling need to make the distinction. Where, as here, however, the jury is presented with and rejects an insanity defense, upon instructions that fail to distinguish it from a defense of non-self-indueed intoxication, no need for making such a fine distinction arises at all.
Even if the defendant had not made admissions depriving him of any entitlement to instructions on a defense of non-self-induced intoxication, where he was permitted to adequately present his theory of insulin-induced hypoglycemia to the jury, without any suggestion that the involuntary ingestion of insulin was inconsistent with a defense of insanity, any error would necessarily have been harmless.
I therefore respectfully dissent.
I am authorized to state that Justice KOURLIS and Justice RICE join in this dissent.