v. Gilbert

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
September 17, 2020

2020COA137

No. 18CA2050, People v. Gilbert — Criminal Law — Notice of
Intent to Present Mental Condition Evidence

A division of the court of appeals construes the term “good

cause” as it is used in section 16-8-107(3)(b), C.R.S. 2019. Relying

on the definition of “good cause” articulated in Ellis v. District Court,

189 Colo. 123, 125, 538 P.2d 107, 108 (1975), the division

concludes that a party demonstrates good cause for his or her

post-arraignment filing of a notice of intent to present mental

condition evidence when (1) such notice was not given at the time of

arraignment due to mistake, ignorance, or inadvertence; and (2)

justice is best served by permitting the introduction of evidence

regarding a defendant’s mental condition. The division further

concludes that defendant demonstrated good cause under this

standard because counsel notified the court as soon as he was
aware of defendant’s mental condition, there is no evidence that

counsel was negligent, and permitting defendant to secure evidence

to support his planned defense would serve the ends of justice.

The division also determines that, pursuant to People v.

Brown, 2014 CO 25, the district court made insufficient findings to

support its denial of defendant’s motion to continue the trial and for

substitution of counsel.

Finally, the division rejects defendant’s claim that the district

court erred in denying his motion to disqualify the trial judge.
COLORADO COURT OF APPEALS 2020COA137

Court of Appeals No. 18CA2050
Adams County District Court No. 16CR3182
Honorable Thomas R. Ensor, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Palmer Gilbert,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE RICHMAN
Dunn and Yun, JJ., concur

Announced September 17, 2020

Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Springer & Steinberg, P.C., Harvey A. Steinberg, Craig L. Pankratz, Denver,
Colorado, for Defendant-Appellant
¶1 Defendant, Palmer Gilbert, appeals a judgment of conviction

entered on a jury verdict finding him guilty of several crimes related

to the theft or attempted theft of cars. We reverse his convictions

and remand this case to the district court for additional findings.

I. Background

¶2 In September 2016, Gilbert committed a series of crimes that

occurred in rapid succession after a Best Buy employee found him

sitting in another employee’s car in the store’s parking lot. The

employee approached the car and spoke with Gilbert, who claimed

that the car was his or that he had permission to sit in it. When

the employee contradicted him, Gilbert exited the car with a knife

and began swinging it. As the employee retreated, Gilbert fled on

foot.

¶3 He subsequently stole or attempted to steal three different cars

by threatening the occupants of those cars with the knife. While

fleeing in one of the stolen cars, he caused a collision. He left the

scene of the accident, stole a truck, and drove away. Police found

him and the stolen truck a week later in Wyoming.

¶4 At trial, Gilbert’s defense was that several witnesses had

misidentified him. Nonetheless, the jury convicted him of one count

1
of aggravated robbery, § 18-4-302(1)(b), C.R.S. 2019; one count of

attempted second degree assault, §§ 18-2-101(1), 18-3-203(1)(b),

C.R.S. 2019; two counts of aggravated first degree motor vehicle

theft, § 18-4-409(2), (3)(a.5), C.R.S. 2019; one count of second

degree criminal trespass, § 18-4-503(1)(c), C.R.S. 2019; one count

of careless driving, § 42-4-1402(1), (2)(b), C.R.S. 2019; and one

count of leaving the scene of an accident, § 42-4-1601(1), (2)(a),

C.R.S. 2019.

¶5 He now contends that his convictions should be reversed

because the district court erred in denying (1) his request to

undergo a mental health examination and present evidence that he

was suffering from one or more mental conditions at the time of the

incidents; (2) his right to the retained counsel of his choice; and (3)

his motion to disqualify the trial judge.

II. Mental Examinations and Evidence

A. Relevant Facts

¶6 In November 2016, Gilbert appeared with retained counsel at a

bond hearing. After his release on bond in December 2016, he

absconded. He was apprehended and appeared for arraignment

nearly a year later, on December 7, 2017. At his arraignment, he

2
pleaded not guilty. The court set a motions hearing for February 9,

2018, with trial to follow on April 2, 2018.

¶7 The day before the motions hearing, defense counsel filed a

document entitled “Notice of Intent to Introduce Mental Condition

Evidence” pursuant to section 16-8-107(3)(b), C.R.S. 2019. Section

16-8-107(3)(b) requires a defendant to give notice of his intent to

present evidence of his mental condition, regardless of whether he

has entered a plea of not guilty by reason of insanity. Notice must

be given at his arraignment, or, if not at his arraignment, at any

time prior to trial for good cause shown. Id. To present such

evidence at trial, a defendant must permit a court-ordered mental

health examination. Id.

¶8 In his notice, Gilbert asked the district court to order a mental

health examination and vacate the scheduled trial date to allow

time for it. Defense counsel asserted that although he would not

change Gilbert’s plea to not guilty by reason of insanity, he “would

likely introduce evidence of Mr. Gilbert’s impaired mental condition”

to show that he did not have the necessary mens rea. Counsel

argued that he had shown good cause for the late notice “in light of

the defendant’s absence from the jurisdiction of the court for a

3
period of time, and undersigned counsel’s uncertainty . . . as to

whether to introduce evidence of the defendant’s mental condition,

until recently. . . .”

¶9 At the motions hearing the next day, counsel stated, “I

apologize to the Court, that in my review of the file, getting up to

today’s date and really going over everything with Mr. Gilbert, I have

determined that I must seek at least some sort of evaluation, even

on my side, to present my client’s mental condition. . . .” He

asserted that he would endorse four affirmative defenses: duress,

self-defense, mistake of fact, and intoxication. He also stated,

I believe that there might be an underlying
mental illness that Mr. Gilbert is suffering
from which may have added to his mistake of
fact, which may have interacted with the
intoxication, which may have interacted with
his duress. . . . [A]s soon as that hit my brain,
I thought I have got to immediately notify the
district attorney and the Court. . . . I, in good
faith, believe there’s some underlying
post-traumatic stress disorder and bi-polar
[sic] disorder.

¶ 10 The district court denied Gilbert’s requests on two grounds.

The court opined that section 16-8-107(3)(b) did not apply because

“[a]ll of these crimes are general intent crimes,” and a defendant

who does not raise an insanity defense may only present evidence of

4
his mental condition if it bears upon his capacity to form specific

intent. See § 16-8-103(1)(a), C.R.S. 2019. “And so the issue of the

defendant’s capacity to form specific intent simply is not material or

relevant in this case.”

¶ 11 The court also ruled that Gilbert had not shown good cause for

filing the motion after his arraignment because “there’s no

indication of what factual support there may be for this. And the

court finds, quite frankly, that this is simply an issue of delay.”

B. Standard of Review

¶ 12 A district court has considerable discretion in determining the

relevance and admissibility of evidence. People v. Ibarra, 849 P.2d

33, 38 (Colo. 1993). Similarly, whether a defendant has

demonstrated good cause for his actions is a question addressed to

the court’s sound discretion. Garza v. People, 200 Colo. 62, 64, 612

P.2d 85, 86-87 (1980). Absent a clear abuse of discretion by the

district court, we will not disturb its rulings on appeal. Id. A court

abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair. People v. Salazar, 2012 CO 20, ¶ 13.

5
C. Relevance of the Proposed Evidence

¶ 13 We first address the district court’s ruling that the proposed

evidence was irrelevant because the charged crimes did not require

specific intent. As an initial matter, we note that the district court

erred in determining that none of the crimes charged required

specific intent. In fact, the People charged Gilbert with second

degree assault, a specific intent crime.1 § 18-3-203(1)(b).

¶ 14 Even so, the relevance of Gilbert’s mental condition evidence is

not determined by whether the charged crimes require specific

intent. To support its ruling to that effect, the district court relied

on section 16-8-103(1)(a), which states that a defendant who has

not raised an insanity defense “when charged with a crime requiring

1 The court was correct, however, that with the exception of the
charges for leaving the scene of an accident, the other charged
crimes required general intent. § 18-4-302(1)(b), C.R.S. 2019
(requiring a mens rea of knowingly for conviction of aggravated
robbery); § 18-4-409(2), (3)(a.5), C.R.S. 2019 (requiring a mens rea
of knowingly for aggravated first degree motor vehicle theft);
§ 18-4-503(1)(c), C.R.S. 2019 (requiring a mens rea of knowingly for
second degree criminal trespass); § 42-4-1402(1), (2)(b), C.R.S. 2019
(requiring a mens rea of negligence for careless driving). Leaving
the scene of an accident is a strict liability crime. § 42-4-1601(1),
(2)(a), C.R.S. 2019; People v. Manzo, 144 P.3d 551, 557 (Colo.
2006).

6
a specific intent as an element thereof, may introduce evidence of

the defendant’s mental condition as bearing upon his or her

capacity to form the required specific intent.” However, according

to subsection (1)(b), subsection (1)(a) applies only to offenses

committed before July 1, 1995. The criminal conduct charged here

occurred in 2016. Therefore, the limitations contained in

subsection (1)(a) do not apply.

¶ 15 Moreover, as the People concede, regardless of whether Gilbert

pleaded not guilty by reason of insanity, pursuant to section

16-8-107(3)(b) and section 18-1-504(1)(a), C.R.S. 2019, evidence

concerning a defendant’s mental condition may be admitted to show

that he lacked the mental state necessary for conviction, or to

support an affirmative defense that negates the existence of a

particular mental state.2 People v. Wilburn, 2012 CO 21, ¶ 20

2 Colorado recognizes two forms of insanity. People v. Sommers,
200 P.3d 1089, 1093 (Colo. App. 2008). A person is considered
legally insane when he or she is “so diseased or defective in mind at
the time of the commission of the act as to be incapable of
distinguishing right from wrong” or is suffering from “a condition of
mind caused by mental disease or defect that prevented the person
from forming a culpable mental state that is an essential element of
a crime charged.” § 16-8-101.5(1)(a), (b), C.R.S. 2019. Whether the
proffered evidence requires a defendant to plead not guilty by

7
(noting that “when a defendant’s mental condition is not so severe

as to be included in the statutory definition of ‘insanity,’ but instead

is offered to show that the defendant had a mistaken belief of fact

that negates the existence of a culpable mental state, expert

testimony concerning the mental condition can be admissible”)

(footnote omitted) (citation omitted); People v. Vanrees, 125 P.3d

403, 409 (Colo. 2005) (concluding that the defendant could

introduce evidence of his “mental slowness” to factually contest

whether he formed the requisite mental state, although he did not

raise an insanity defense).

¶ 16 In fact, as a matter of constitutional due process, regardless of

whether a crime requires general intent or specific intent, a

defendant has a right to introduce relevant evidence that he did not

reason of insanity depends on the diagnosis rendered and the
degree of impairment found. People v. Wilburn, 2012 CO 21, ¶ 20
(noting that the proper use of evidence is determined by the severity
of impairment); People v. Requejo, 919 P.2d 874, 877-78 (Colo. App.
1996). At this point, Gilbert has offered only a good faith basis for
his defense and he has not had a mental health examination.
Therefore, the evidence is insufficient to determine whether his
alleged impairments rise to the level of insanity or are simply a
“mental condition.” We need not decide this issue to determine
whether the errors raised are reversible, and we decline to do so.

8
possess the necessary mens rea due to a mental condition.

Hendershott v. People, 653 P.2d 385, 391 (Colo. 1982) (“[I]t would be

a violation of due process to require the prosecution to establish the

culpable mental state beyond a reasonable doubt while, at the same

time, to prohibit a defendant from presenting evidence to contest

this issue.”); People v. Welsh, 176 P.3d 781, 791 (Colo. App. 2007).

¶ 17 Here, Gilbert sought to introduce evidence that due to bipolar

disorder and/or post-traumatic stress disorder, he made a mistake

of fact that prevented him from forming one or more of the mental

states required for conviction. This is exactly the type of evidence

that was deemed admissible in Wilburn and Vanrees, and Gilbert

has a due process right to present it so long as he has met the

procedural requirements of section 16-8-107(3)(b) and the evidence

is otherwise admissible under the Colorado Rules of Evidence.

People v. Flippo, 159 P.3d 100, 106 (Colo. 2007) (“Although a

defendant is entitled to present evidence in his or her defense, the

manner in which the evidence is presented may be controlled by

statute.”); Hendershott, 653 P.2d at 394 n.6 (noting that although

evidence of a mental impairment is admissible when the crimes

charged require general intent, the district court may require the

9
defendant to comply with the Colorado Rules of Evidence as a

condition precedent to its admission). Therefore, we conclude, and

the People agree, that the district court erred in excluding the

proffered evidence on the grounds that it was irrelevant under

section 16-8-103(1)(a).

D. Good Cause

¶ 18 We next address the district court’s ruling that Gilbert failed to

show good cause for his untimely notice pursuant to section

16-8-107(3)(b) because his claim lacked factual support and was

made to delay the proceedings.

1. Law

¶ 19 As discussed above, supra Part II.A, a defendant who intends

to introduce evidence of his mental condition must permit a

court-ordered mental health examination and “shall” give notice at

arraignment of his intent to present such evidence, “except that the

court, for good cause shown, shall permit the defendant to inform

the court and prosecution of the intent to introduce such evidence

at any time prior to trial.” § 16-8-107(3)(b).

¶ 20 “Good cause” is not defined anywhere in article 8 and we have

not found any published decisions clarifying its meaning as used in

10
section 16-8-107(3)(b). See Flippo,159 P.3d at 103 n.6 (declining to

define “good cause” under section 16-8-107(3)(b) because it was not

raised on appeal). Therefore, as a matter of first impression, we

must construe the term “good cause” as it is used in this

subsection. This is a purely legal issue that we review de novo.

People v. Garcia, 113 P.3d 775, 780 (Colo. 2005).

¶ 21 When construing a statute, our goal is to give effect to the

General Assembly’s intent, and we must first consider the plain

meaning of the statutory language. Flippo, 159 P.3d at 104.

Where, as here, a term such as “good cause” is not defined in the

statute, we may look to the statutory scheme as a whole to

determine its meaning. Id. We must also bear in mind that,

according to the supreme court, the current version of Colorado’s

insanity statute was enacted to “create[] a ‘unitary process for

hearing the issues raised’ by the combined affirmative defense of

‘not guilty by reason of insanity’ (insanity and impaired mental

condition), and a not guilty plea on the merits.” Vanrees, 125 P.3d

at 408 (quoting §§ 16-8-101.3 and 16-8-104.5, C.R.S. 2019).

¶ 22 Turning to plain language of the statute, we find it significant

that section 16-8-107(3)(b) states that it applies “[r]egardless of

11
whether a defendant enters a plea of not guilty by reason of insanity

pursuant to section 16-8-103 . . . .” As the supreme court noted in

Flippo, “[r]egardless of” may be defined as “in spite of; with no heed

to.” 159 P.3d at 104 n.7 (quoting American Heritage Dictionary

1469 (4th ed. 2000)). In other words, this language indicates that

the legislature did not intend to place weight on the legal distinction

between evidence that is introduced to support an insanity plea and

evidence of a “mental condition” that is introduced for other

purposes.

¶ 23 We also find it significant that the term “good cause” is used

elsewhere in article 8 in connection with late entry of insanity pleas.

Under section 16-8-103(1)(a) and (1.5)(a), a defendant who wishes

to enter a plea of not guilty by reason of insanity must do so at the

time of arraignment, “except that the court, for good cause shown,

may permit the plea to be entered at any time prior to trial.” This

language is substantially similar to that used in section

16-8-107(3)(b).

¶ 24 As in section 16-8-107(3)(b), good cause is not defined in

section 16-8-103(1)(a) and (1.5)(a), but case law holds that “good

cause” is demonstrated if (1) justice is best served by permitting the

12
additional plea; and (2) the correct plea was not entered at the time

of arraignment due to mistake, ignorance, or inadvertence. People

v. Reed, 692 P.2d 1150, 1151 (Colo. App. 1984) (citing Ellis v. Dist.

Court, 189 Colo. 123, 125, 538 P.2d 107, 108 (1975)); see also

Garza, 200 Colo. at 64, 612 P.2d. at 86.

¶ 25 Because the relevant statutory language and the insanity

statute’s unified structure indicate that “good cause” under section

16-8-107(3)(b) must mean something similar to “good cause” under

section 16-8-103(1)(a) and (1.5)(a), we conclude that a defendant

who has not pleaded insanity, but seeks to plead a mental condition

defense, demonstrates “good cause” for delay under section

16-8-107(3)(b) when (1) notice was not given at the time of

arraignment due to mistake, ignorance, or inadvertence; and (2)

justice is best served by permitting the introduction of evidence

regarding a defendant’s mental condition. See Garza, 200 Colo. at

64, 612 P.2d. at 86. Further, when considering whether good cause

has been shown, courts should construe section 16-8-107(3)(b)

liberally in the defendant’s favor. See Reed, 692 P.2d at 1151

(concluding that section 16-8-103(1) should be construed liberally

in favor of defendants).

13
¶ 26 Further, a court’s discretion to exclude evidence of a

defendant’s mental condition under section 16-8-107(3)(b) is

narrower than its discretion under section 16-8-103(1)(a) and

(1.5)(a). Subsection 107(3)(b) states that a court “shall permit”

notice to be given if good cause is shown, while subsections

103(1)(a) and (1.5)(a) state that a court “may permit” a change of

plea upon a showing of good cause. The language of subsection

107(3)(b) is therefore mandatory while the language of subsections

103(1)(a) and (1.5)(a) is permissive. Riley v. People, 104 P.3d 218,

221 (Colo. 2004) (“There is a presumption that the word ‘shall’ when

used in a statute is mandatory.”).

2. Analysis

¶ 27 For several reasons, we conclude that the district court erred

in determining that Gilbert failed to show good cause for delay.

¶ 28 First, while the fact that Gilbert absconded after he was

charged could weigh against a finding of good cause, see Garza, 200

Colo. at 64, 612 P.3d at 87, his flight is not a determinative factor

in deciding whether, at the time of arraignment, his counsel could

have given the required notice. Although counsel and his

associates met with Gilbert several times before Gilbert absconded,

14
they apparently noticed no mental health issues in those meetings.

Therefore, it is unclear whether Gilbert’s subsequent absence was

the reason his mental health issues went unnoticed.

¶ 29 Second, at the time of the hearing, the record contained no

evidence that counsel had delayed meeting with Gilbert or that he

had otherwise failed to properly investigate the case. And once

counsel had a good faith basis to notify the court of his concerns

about Gilbert’s mental health, he did so. In similar circumstances,

courts have found that counsel’s ignorance constituted good cause

for delay. See Reed, 692 P.2d at 1152 (concluding that it was an

abuse of discretion to deny defendant’s motion because counsel

promptly notified the court of the plea change as soon as he had a

good faith basis for doing so, and he had not performed negligently);

see also Ellis, 189 Colo. at 125, 538 P.2d at 108 (holding that the

defendant had shown good cause for a late change in plea where,

through no fault of his own, counsel had only recently learned that

his client was previously adjudged clinically insane); Taylor v. Dist.

Court, 182 Colo. 406, 408, 514 P.2d 309, 310 (1973) (deciding that

good cause for a change in plea was shown where the defendant

disclosed new evidence to defense counsel after arraignment

15
because his trial had recently been severed from his codefendant’s

trial).

¶ 30 Third, the record does not support the district court’s

conclusion that the notice was filed for purposes of delay. Counsel

filed the notice nearly two months before trial. Thus, notice was

given early enough to prevent substantial disruptions to the trial

schedule. This factor should have also weighed in Gilbert’s favor,

but it appears that the district court did not consider it. Gallegos v.

People, 166 Colo. 409, 417, 444 P.2d 267, 271 (1968) (stating that

when there is still time for an examination, a trial judge should

proceed with “utmost circumspection” in denying defendant’s

motion). Because the finding of no good cause prevented Gilbert

from potentially developing an affirmative defense of mistake of fact,

and, if justified, he had a constitutional due process right to present

it, justice would have been served by allowing the mental health

examination that Gilbert requested.

¶ 31 Fourth, in concluding that Gilbert had not shown good cause,

the district court stated that there was inadequate factual support

for the allegation that he suffered from one or more mental

conditions. However, once a defendant has shown that his

16
allegations regarding his mental condition have been made in good

faith, “the court’s inquiry must be focused on the reason for the

delay . . . rather than the potential merits” of the evidence. Reed,

692 P.2d at 1152. Counsel made a good faith representation that

Gilbert likely suffered from bipolar or post-traumatic stress

disorders. This offer of proof was facially adequate, and the district

court erred in prematurely considering the merits of the evidence.

¶ 32 The district court considered factors that it should not have

considered, and its findings are not supported by the record. We

therefore conclude that the district court abused its discretion in

determining that Gilbert had not shown good cause pursuant to

section 16-8-107(3)(b).

3. Reversal

¶ 33 The effect of the district court’s error was to impede Gilbert’s

plan to develop and present evidence in support of the affirmative

defense of mistake of fact at trial. If a defendant presents some

credible evidence in support of his affirmative defense at trial, i.e.,

he carries the burden of going forward, the prosecution then has

the burden of disproving the affirmative defense beyond a

reasonable doubt. Garcia, 113 P.3d at 783-84. Therefore, “[i]f the

17
trial court errs in disallowing an affirmative defense, then it

improperly lowers the prosecution’s burden of proof,” violating the

defendant’s right to due process. Id. at 784. Such an error is not

harmless and is reversible if the district court disallowed an

affirmative defense despite the introduction of credible evidence to

support it. Id. at 783-84; Hendershott, 653 P.2d at 392 n.5.

¶ 34 In this case, we cannot determine whether the error was

harmless because Gilbert was not given an opportunity to introduce

expert testimony or other mental condition evidence in support of

his affirmative defense. The district court made a pretrial ruling

that he was not entitled to a mental health examination and it

excluded all evidence of his mental condition before trial. This

ruling precluded the court from later ruling on whether there was

any credible evidence to support an affirmative defense at trial, a

question of law for the court. Garcia, 113 P.3d at 784.

¶ 35 Because Gilbert was denied the opportunity to meet the

burden of going forward with his affirmative defense, and the record

is insufficient to allow us to decide this issue, we reverse his

convictions except for the conviction for leaving the scene of

accident, a strict liability crime to which the defense of mistake of

18
fact does not apply. Manzo, 144 P.3d at 557. This conviction is,

however, reversed below subject to the district court’s findings on

remand pursuant to People v. Brown, 2014 CO 25.

¶ 36 We also remand this case to the district court for further

proceedings. On remand, the court must order a mental health

examination pursuant to section 16-8-107(3)(b). It must then allow

both parties to supplement the trial record with offers of proof or

expert testimony regarding Gilbert’s mental condition at the time of

the charged offenses.

¶ 37 If the district court subsequently determines that Gilbert has

admissible evidence that his mental condition at the time of the

offenses could support a mistake of fact defense, the judgment will

remain reversed and a new trial is required. If, however, Gilbert

fails to come forward with admissible evidence, or the evidence

presented indicates an illness so severe as to require an insanity

plea, then the district court shall reinstate the judgment, subject to

a right to appeal that determination.

19
III. Right to Counsel of Choice

A. Relevant Facts

¶ 38 At a pretrial hearing in March 2018, defense counsel notified

the court that Gilbert’s family was hiring new counsel. Trial was set

to begin five days later. The court responded, “[T]hat’s a little too

late.” It then preemptively denied any forthcoming motions to

continue noting that new counsel had not entered an appearance,

the trial was scheduled to begin in five days, and there had already

been several delays. Current defense counsel affirmed that he was

ready for trial.

¶ 39 The next day, two new attorneys filed a notice of appearance

and a motion to continue the trial. However, the notice of

appearance was made conditional upon a continuance. The People

filed a written objection to the motion, addressing each of the

factors set forth in Brown.

¶ 40 Two days later, Gilbert appeared at a hearing on the motion to

continue with defense counsel and his new attorneys. One of the

new attorneys asserted that defense counsel’s relationship with

Gilbert was fractured due to “comments that have been made in

regards to his attorney’s knowledge of the case and preparedness

20
for trial” and these “irreconcilable differences . . . will jeopardize his

ability to cooperate with [existing] counsel at trial.”3 The People

reiterated their written objections. Of particular import was the fact

that the victim who had confronted Gilbert in the Best Buy parking

lot had been diagnosed with lymphoma, was “undergoing very

aggressive chemotherapy,” and might not be able testify at a later

time. The People also stated that two other victims had expressed

frustration at the length of time the case had taken.

¶ 41 The district court denied the motion to continue. In doing so,

it acknowledged Gilbert’s right to hire the counsel of his choice, but

it noted that this right is not absolute. Setting forth several reasons

for its denial, the court opined that “this 11th hour attempt to . . .

enter an appearance to change attorneys is just one more attempt

by Mr. Gilbert to delay this case.” It also noted, among other

matters, that existing counsel remained able to render effective

assistance at trial.

3 It is apparent from the record that the comments to which counsel
referred were made by the trial judge at the hearing on February 9,
2018. The details of the judge’s statements are set forth in Part
IV.A of this opinion.

21
B. Standard of Review

¶ 42 District courts are given broad discretion to grant or deny a

continuance. People v. Travis, 2019 CO 15, ¶ 12. In this context, a

court errs only when is its decision is arbitrary, unreasonable, or a

cause of material prejudice to a defendant. Brown, ¶ 19.

C. Law

¶ 43 When a defendant has the financial means to retain private

counsel, the Sixth Amendment right to counsel includes the right to

be assisted by counsel of his choice and the right to the effective

assistance of counsel. U.S. Const. amend. VI; see also Colo. Const.

art. 2, § 16; Ronquillo v. People, 2017 CO 99, ¶ 16; People v.

Arguello, 772 P.2d 87, 92 (Colo. 1989). The right to counsel of

choice is the right to hire a particular lawyer regardless of his or her

effectiveness. Ronquillo, ¶ 16. The right to effective assistance

ensures the baseline competence of counsel. Id.

¶ 44 Because the right to counsel of choice is central to our

adversarial system, a district court must recognize a presumption

in favor of chosen counsel. Id. at ¶ 17. However, the defendant’s

right to choose his counsel is not absolute in all cases. Brown,

¶ 17. When his desire to hire new counsel will delay the

22
proceedings, a court must “balance the defendant’s Sixth

Amendment right to counsel of choice against the demands of

fairness and efficiency.” Id. at ¶ 20. Only when a court arbitrarily

insists upon moving forward despite a justifiable request for delay

will the denial of a motion to continue constitute an abuse of

discretion. Id.

¶ 45 To properly balance the defendant’s right to counsel of choice

against the public’s interest in the efficiency and integrity of the

justice system, the district court must consider and make a record

on the impact of multiple factors: (1) the defendant’s motive and

conduct related to the motion; (2) chosen counsel’s availability; (3)

the length of the necessary continuance; (4) the potential prejudice

to the prosecution, beyond mere inconvenience, if the motion is

granted; (5) any inconvenience to witnesses; (6) “the age of the case,

both in the judicial system and from the date of the offense”; (7) the

number of continuances that were already granted; (8) the timing of

the motion; (9) the impact of delay on the court’s docket; (10) if the

victims’ rights act applies, the victim’s position; and (11) any other

factors that militate against further delay. Id. at ¶ 24.

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D. Analysis

¶ 46 Gilbert contends that the district court abused its discretion

because it cited defense counsel’s ability to render effective

assistance in support of its decision to deny a continuance when

that is not one of the factors set forth in Brown. He also asserts

that the district court erred by failing to properly consider the

Brown factors. Id.

¶ 47 We acknowledge that, in Brown, the supreme court did not list

the ability of existing counsel to render effective assistance as a

relevant factor. Id. However, at the beginning of the hearing on the

motion to continue the trial, one of Gilbert’s new attorneys argued

that Gilbert and his existing counsel had such “irreconcilable

differences” that Gilbert might not be able to assist counsel in

preparing for trial. In essence, Gilbert’s new attorney was raising

the possibility that, due to a breakdown in communication, current

defense counsel might not be able to render effective assistance at

trial. Ronquillo, ¶ 35 n.2 (noting that good cause is not required to

dismiss retained counsel, “[b]ut if good cause exists, such as a

complete breakdown in communication or an irreconcilable conflict,

then current counsel cannot effectively represent the defendant”). If

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counsel cannot render effective assistance, a defendant is entitled

to a continuance to allow time for replacement counsel to become

effective. Id. Because Gilbert raised this additional concern, the

court did not err in addressing it.

¶ 48 However, the district court erred in denying the substitution of

counsel and the request for a continuance without citing the Brown

case and its eleven factors, and it failed to make specific findings

based on the eleven factors listed in Brown.

¶ 49 Brown holds that “when deciding whether to grant a

continuance to allow a defendant to change counsel, the trial court

must conduct a multi-factor balancing test and determine whether

the public’s interest in the efficiency and integrity of the judicial

system outweighs the defendant’s Sixth Amendment right to

counsel of choice.” Id. at ¶ 2. Because the district court failed to

do so, the record before us is inadequate to determine if the court

properly exercised its discretion. Thus, as in Brown, we must

reverse all of Gilbert’s convictions and remand this case to the

district court for additional findings and conclusions.

¶ 50 On remand, the district court should make specific findings

concerning each Brown factor. Additional findings are particularly

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necessary on the issues of chosen counsel’s availability, the age of

the case, the number of continuances already granted, the impact

of any delay on the court’s docket, and the positions of the victims.

If, after a full evaluation of the Brown factors, the district court

finds that Gilbert was not entitled to a continuance, it should

reinstate the judgment of conviction, subject to appeal. If, however,

the court finds that Gilbert’s right to counsel of choice was violated,

the reversal stands and a new trial is required.

IV. Motion to Disqualify Trial Judge

A. Relevant Facts

¶ 51 When defense counsel filed a late notice of his intent to

present evidence of Gilbert’s mental condition, the trial judge

revealed his frustration with counsel’s tardiness in the following

exchange:

Court: You know, frankly, [counsel], I’m getting
tired of the surprises that come in here when
you’re involved in cases. It’s concerning to this
Court as to whether or not you’re really
prepared for cases. Have a seat. We may have
to call this up — we are going to call this up at
1:30, okay.

Counsel: Your honor, I have a sentencing
hearing . . . .

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Court: I don’t care what you have got. You
were supposed to give me notice on this.
You’re going to be here at 1:30, period.

¶ 52 According to Gilbert, the trial judge subsequently demeaned

defense counsel by stating, “Let’s call the Urango matter, another

one of [counsel’s] former clients . . . . .” When the hearing

reconvened, the district court denied Gilbert’s request for a mental

health examination and concluded that no good cause had been

shown.

¶ 53 Several weeks later, Gilbert filed a motion for substitution of

the trial judge, arguing that his rulings regarding the proposed

mental condition evidence were clearly erroneous. Counsel also

argued that when expressing his frustration at the hearing, the

judge had “crossed the line into personal slander of undersigned

counsel’s character” and weakened Gilbert’s confidence in him.

Based on this conduct, counsel argued that the trial judge appeared

to be biased against him, and by extension, Gilbert. The district

court summarily denied the motion.

B. Law

¶ 54 We review de novo a motion to disqualify a judge in a criminal

case. People v. Schupper, 2014 COA 80M, ¶ 56.

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¶ 55 In Colorado, a judge’s authority to preside over a particular

case is limited by rule, statute, and judicial code. People v. Roehrs,

2019 COA 31, ¶ 8; Schupper, ¶ 57. As relevant here, pursuant to

section 16-6-201(1)(d), C.R.S. 2019, a “judge of a court of record

shall be disqualified to hear or try a case if . . . he [or she] is in any

way interested or prejudiced with respect to the case, the parties, or

counsel.” See also Crim. P. 21(b)(1)(IV); C.J.C. 2.11(A)(1).

¶ 56 The denial of the motion to disqualify a judge warrants

reversal only where the record clearly establishes the judge had “a

substantial bent of mind” against a party or his counsel. People v.

Drake, 748 P.2d 1237, 1249 (Colo. 1988); see also Schupper, ¶ 59.

A motion will be considered legally sufficient only if its allegations, if

taken as true, state facts from which it may reasonably be inferred

that the judge is biased or prejudiced with respect to the case, the

parties, or counsel. Rodriguez v. Dist. Court, 719 P.2d 699, 703

(Colo. 1986); Estep v. Hardeman, 705 P.2d 523, 526 (Colo. 1985).

¶ 57 In addition, the moving party’s filing must be verified, timely,

and supported by the affidavits of at least two credible persons

unrelated to the defendant. § 16-6-201(3); Crim. P. 21(b)(1).

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C. Analysis

¶ 58 Gilbert’s motion to disqualify the trial judge was verified, but

was not supported by two affidavits. The court’s denial of the

motion is proper on these grounds alone. People v. Taylor, 131 P.3d

1158, 1167 (Colo. App. 2005) (affirming the denial of a motion to

disqualify the judge, in part, because there were no affidavits); see

also Altobella v. People, 161 Colo. 177, 184, 420 P.2d 832, 835

(1966) (concluding that previously filed affidavits could not be

incorporated by reference and the motion was therefore

insufficient).

¶ 59 Further, even if we were to consider the motion on its merits,

its allegations are insufficient to permit a reasonable inference that

the trial judge was biased.

¶ 60 The motion alleged that the district court’s denial of Gilbert’s

request for a mental health examination and its exclusion of

evidence regarding his mental condition demonstrated bias because

it was clearly erroneous. As stated above, the district court’s ruling

was, indeed, erroneous. However, erroneous legal rulings alone do

not demonstrate that a judge is biased or prejudiced. Schupper,

¶ 58 (noting the even if a judge makes numerous and continuous

29
rulings that are erroneous, his or her errors alone are insufficient

proof of bias or prejudice); People v. Thoro Prods. Co., 45 P.3d 737,

747 (Colo. App. 2001), aff’d, 70 P.3d 1188 (Colo. 2003).

¶ 61 The motion also alleged that the trial judge treated defense

counsel with disdain by implying that he was unprepared, that the

trial judge mocked him in front of Gilbert when he made reference

to “another former client,” and that “the lack of judicial demeanor

towards undersigned counsel evidenced bias and prejudice . . . .”

¶ 62 Inappropriate expressions of frustration sometimes occur in a

courtroom. They generally do not require disqualification of the

trial judge. Klinck v. Dist. Court, 876 P.2d 1270, 1277 (Colo. 1994)

(concluding that the judge’s rude and accusatory statements were

not sufficient evidence of bias); Drake, 748 P.2d at 1249 (holding

that there was insufficient evidence of bias despite the judge’s snide

and insinuating manner); Bocian v. Owners Ins. Co. 2020 COA 98,

¶ 25 (noting that while the judge made a snide comment regarding

an ethical issue, he did not expressly accuse counsel of ethical

misconduct, and his comment was not evidence of bias).

¶ 63 Only where a judge’s comments evince something more than

rudeness are they sufficient to raise a reasonable inference that the

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judge is biased. Klinck, 876 P.2d at 1277 (holding that a judge’s

comment that counsel should be kept on a “short leash” created

uniquely restrictive conditions at trial, and therefore compromised

its fairness); Estep, 705 P.2d at 526-27 (noting that the trial judge’s

comments on the credibility of prospective witnesses suggested that

he had prejudged the case, an indication of bias). Here, the trial

judge’s comments may have been rude, but they were not so

inappropriate as to indicate that the judge lacked the impartiality

required to preside over the case. Therefore, the district court did

not err in denying Gilbert’s motion.

V. Conclusion

¶ 64 We reverse on two separate grounds in this case subject to the

district court’s findings on remand. As a practical matter, both

grounds for reversal must be addressed before the judgment of

conviction can be reinstated in full.

JUDGE DUNN and JUDGE YUN concur.

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