dissenting:
I respectfully dissent from the majority’s holding, which reverses the judgment of the court of appeals and remands the case for a new release hearing. The defendant, under the provisions of section 16-8-115(1), 8A C.R.S. (1986), moved for a release hearing. The defendant timely requested a jury determination of his eligibility for release under section 16-8-115(2), 8A C.R.S. (1986). The defendant offered evidence of conditions and constraints if released to prevent any future episodes of dangerous behavior. The trial court ruled the evidence to be inadmissible because section 16-8-115(3)(a) mandates that it is the court’s prerogative alone and not the jury’s to impose conditions for release. I agree.
The sole question for the trier of fact in a release hearing is set forth in section 16-8-120(1), 8A C.R.S. (1986):
As to any person charged with any crime allegedly committed on or after June 2, 1965, the test for determination of a defendant’s sanity for release from commitment, or his eligibility for conditional release, shall be: “That the defendant has no abnormal mental condition which would be likely to cause him to be dangerous either to himself or to others or to the community in the reasonably foreseeable future.”
By a plain reading of the statute, one would conclude that section 16-8-115(3)(a), 8A C.R.S. (1986), does not become operational until after the trier of fact has returned a verdict that the defendant is eligible for release.
Section 16-8-115(3)(a) reads:
*1097If the court or jury finds the defendant eligible for release, the court may impose such terms and conditions as the court determines are in the best interests of the defendant and the community, and the jury shall be so instructed. If the court or jury finds the defendant ineligible for release, the court shall recommit the defendant.
(Emphasis added.)
In People v. Giles, 192 Colo. 240, 557 P.2d 408 (1976), we held that pursuant to section 16-8-115(3)(a), the jury was not to consider the question of conditional release in determining eligibility for release. We stated in Giles:
It is clear from the statute that the jury’s function ends with its determination whether or not the defendant is eligible for release. The decision whether to impose conditions on release is solely for the court.
Obviously, where conditional release is appropriate, the terms and conditions must be tailor-made by the court to fit the individual case. It is the court, not the jury, which has the necessary experience and knowledge of available alternatives to perform this function....
192 Colo, at 247, 557 P.2d at 413 (emphasis added).
The majority reads this holding in Giles to stand for the proposition that only evidence offered during trial for the purpose of submitting to the jury a special verdict form on conditional release is inadmissible as a matter of law. Majority Op. at 1093. I disagree. The majority’s interpretation undermines the unambiguous holding in Giles that the jury is not to consider evidence regarding treatment which would be available if a release were granted.
The trial court found the evidence of conditions to be imposed if release were granted to be irrelevant and inadmissible. Under C.R.E. 403, relevant evidence may be excluded under a balancing test if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The sole jury question to be determined in a release hearing is whether or not the defendant has no abnormal mental conditions which would be likely to cause him to be dangerous either to himself or to others or to the community in the reasonably foreseeable future. § 16-8-120, 8A C.R.S. (1986). The jury verdict determines whether the defendant is eligible for release. A conditional release verdict form is not proper under the statutes. See People v. Giles, 192 Colo. 240, 557 P.2d 408 (1976). Therefore, whether the defendant is eligible for release is a question wholly separate and distinct from the discretionary consideration of whether the court, after release is granted by the fact finder, will impose conditions on the release. It logically follows that testimony of conditions and constraints if released to prevent any future episodes of dangerous behavior would tend to confuse the issue or mislead the jury as to its sole purpose to determine if the defendant is eligible for release. If such evidence were admissible, a jury’s verdict to release a defendant would likely be based in part upon the jury’s mistaken belief that evidence as to conditions and constraints would be imposed upon the defendant. Pursuant to section 16-8-115(3)(a), the court, in accepting a verdict, is not bound to impose any conditions on release.
The judgment should be affirmed.
I am authorized to state that Justice ERICKSON and Justice ROVIRA join in this dissent.