(1) (a) The court shall order that the evaluation be conducted on an outpatient basis or, if the defendant is in custody, at the place where the defendant is in custody. The defendant shall be released on bond if otherwise eligible for bond.
(b) Notwithstanding the provisions of paragraph (a) of this subsection (1), the court may order the defendant placed in the custody of the Colorado mental health institute at Pueblo for the time necessary to conduct the evaluation if:
(I) The court finds the defendant may be a danger to self or others as defined in section 27-65-102, C.R.S.;
(II) The court finds that an inadequate competency evaluation and report has been completed or two or more conflicting competency evaluations and reports have been completed;
(III) The court finds that an observation period is necessary to determine if the defendant is competent to stand trial;
(IV) The court receives a recommendation from the Colorado mental health institute at Pueblo court services evaluator that conducting the evaluation at the Colorado mental health institute at Pueblo is appropriate because the evaluator conducting the evaluation for the Colorado mental health institute at Pueblo determines that the defendant has been uncooperative or the defendant has clinical needs that warrant transfer to the Colorado mental health institute at Pueblo; or
(V) The court receives written approval for the evaluation to be conducted at the Colorado mental health institute at Pueblo from the executive director of the department of human services, or his or her designee.
(c) The court, when setting bond pursuant to section 16-4-103, if the defendant is eligible for bond, and after receiving any information pursuant to section 16-4-106, shall not consider the need for the defendant to receive an evaluation pursuant to this article.
(d) If a defendant is in custody at the Colorado mental health institute at Pueblo for purposes of the evaluation ordered pursuant to this article and the defendant has completed the evaluation and must be returned to a county jail, the county sheriff in the jurisdiction where the defendant must return shall make all reasonable efforts to take custody of the defendant as soon as practicable once the defendant's evaluation is completed.
(e) Nothing in this section shall restrict the right of the defendant to procure an evaluation as provided in section 16-8.5-107.
(2) The defendant shall cooperate with the competency evaluator and with other personnel providing ancillary services, such as testing and radiological services. Statements made by the defendant in the course of the evaluation shall be protected as provided in section 16-8.5-108. If the defendant does not cooperate with the competency evaluator and other personnel providing ancillary services and the lack of cooperation is not the result of a developmental disability or a mental disability, the fact of the defendant's noncooperation with the competency evaluator and other personnel providing ancillary services may be admissible in the defendant's competency or restoration hearing to rebut any evidence introduced by the defendant with regard to the defendant's competency.
(3) To aid in forming an opinion as to the competency of the defendant, it is permissible in the course of an evaluation under this section to use confessions and admissions of the defendant and any other evidence of the circumstances surrounding the commission of the offense, as well as the medical and social history of the defendant, in questioning the defendant. When the defendant is noncooperative with the competency evaluator or personnel providing ancillary services, an opinion of the competency of the defendant may be rendered by the competency evaluator based upon confessions, admissions, and any other evidence of the circumstances surrounding the commission of the offense, as well as the known medical and social history of the defendant, and the opinion may be admissible into evidence at the defendant's competency or restoration hearing.
(4) A written report of the evaluation shall be prepared in triplicate and delivered to the clerk of the court that ordered it. The clerk shall provide a copy of the report both to the prosecuting attorney and the counsel for the defendant.
(5) The report of evaluation shall include but need not be limited to:
(a) The name of each physician, psychologist, or other expert who examined the defendant; and
(b) A description of the nature, content, extent, and results of the evaluation and any tests conducted; and
(c) A diagnosis and prognosis of the defendant's mental disability or developmental disability; and
(d) An opinion as to whether the defendant suffers from a mental disability or developmental disability; and
(e) An opinion as to whether the defendant is competent to proceed.
Source: L. 2008: Entire article added, p. 1842, 2, effective July 1. L. 2016: (1) amended, (HB 16-1410), ch. 151, p. 450, 1, effective July 1.
Upon receiving an incomplete second evaluation, a court should order that (1) the evaluator render an opinion based on the available information, if possible, despite the defendant's noncooperation or (2) the defendant be returned to the appropriate facility for further observation so that a competency opinion can be rendered. People v. Presson, 2013 COA 120M, 315 P.3d 198.
Court erred in proceeding to determine defendant's competency to stand trial when the second competency evaluation did not contain the statutorily required diagnosis, prognosis, and opinion, and the court declined to return defendant to the facility to complete the evaluation. People v. Presson, 2013 COA 120M, 315 P.3d 198.
The error was not harmless because defendant was unfairly deprived of a second contemporaneous evaluation, to which defendant was statutorily entitled; the court explicitly relied on defendant's refusal to cooperate with the second evaluator in finding defendant competent; evidence of defendant's competency was not overwhelming; and a retrospective competency determination would not cure the error. People v. Presson, 2013 COA 120M, 315 P.3d 198.