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ADVANCE SHEET HEADNOTE

October 3, 2016

2016 CO 68

No. 16SA94, Higgins v. People—Criminal Law—Juvenile Law—Psychotherapist–

Patient Privilege—Constitutional Law.

This companion case to People v. Johnson, 2016 CO 69, P.3d , raises two 

questions. First, does a trial court have statutory authority to order a juvenile charged 

as an adult to undergo a state-administered mental health assessment for a reversetransfer proceeding? The supreme court answered that question in the negative in 

Johnson, but does not answer that question here because it is hypothetical—the 

question is not based on the facts of this case. Second, is a trial court required, before a 

mental health assessment, to provide a juvenile with warnings based on the Fifth 

Amendment right against self-incrimination? The supreme court does not answer that 

question either, because (1) Higgins consented to the evaluation while represented by 

counsel, and (2) any claims that ineffective assistance of counsel vitiated Higgins’s 

consent are premature. Therefore, the supreme court vacates the order to show cause 

and remands the case for further proceedings.
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2016 CO 68

Supreme Court Case No. 16SA94

Original Proceeding Pursuant to C.A.R. 21

Douglas County District Court Case No. 16CR28

Honorable Paul A. King, Judge

In Re

Plaintiff:

The People of the State of Colorado,

v.

Defendant:

Brooke Ann Higgins.

Vacate the Order to Show Cause and Remand for Further Proceedings

en banc

October 3, 2016

Attorneys for Plaintiff:

George H. Brauchler, District Attorney, Eighteenth Judicial District

Richard Orman, Senior Deputy District Attorney

Centennial, Colorado

Attorneys for Defendant:

Zonies Law LLC

Sean Connelly

Denver, Colorado

Eytan Nielsen LLC

Iris Eytan

Denver, Colorado

The McGuire Law Office, LLC

Kathleen McGuire

Denver, Colorado

CHIEF JUSTICE RICE delivered the Opinion of the Court.

JUSTICE BOATRIGHT does not participate.
2

¶1 This companion case to People v. Johnson, 2016 CO 69, P.3d , raises two 

questions. First, does a trial court have statutory authority to order a juvenile charged 

as an adult to undergo a state-administered mental health assessment for a reversetransfer proceeding? We answered that question in the negative in Johnson, but we do 

not answer that question here because it is hypothetical—the question is not based on 

the facts of this case. Second, is a trial court required, before a mental health 

assessment, to provide a juvenile with warnings based on the Fifth Amendment right 

against self-incrimination? We do not answer that question as well, because (1) Higgins 

consented to the evaluation while represented by counsel, and (2) any claims that 

ineffective assistance of counsel vitiated Higgins’s consent are premature. Therefore, 

we vacate the order to show cause and remand the case for further proceedings.

I. Facts and Procedural History

¶2 This controversy began when the petitioner–defendant, Brooke Higgins, was a 

juvenile respondent in front of a magistrate judge on December 17, 2015. The district 

attorney requested, and Higgins’s then-defense-counsel agreed to, a state-administered 

mental health assessment1 of Higgins. Because the parties agreed, the magistrate judge 

ordered the mental health assessment.

¶3 On January 14, 2016, now in front of trial court Judge King, the district attorney 

dismissed the juvenile charges against Higgins and charged her as an adult with two 

counts of conspiracy to commit murder. Higgins sought, and the trial court granted, a 

 

1 We use the term “mental health assessment” to cover all mental health or 

psychological screenings or assessments.
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reverse-transfer hearing to determine whether she should remain in adult court or 

return to juvenile court. On January 21, 2016, before the reverse-transfer hearing 

occurred, Higgins, represented by different counsel, filed a motion to suppress the 

mental health assessment and disqualify Judge King. Judge King denied both requests, 

reasoning that, notwithstanding the parties’ stipulation to the state mental health 

assessment, there was independent statutory authority for the magistrate judge to order 

a state mental health assessment of Higgins. 

¶4 Higgins then petitioned this court for relief under C.A.R. 21, arguing that (1) the 

trial court lacked authority to order a juvenile charged as an adult to undergo a mental 

health assessment for a reverse-transfer proceeding, and (2) the United States 

Constitution precludes such orders and requires the trial court to advise a juvenile of 

her Fifth Amendment rights in such an assessment. We issued a rule to show cause.

II. Original Jurisdiction

¶5 “This court will generally elect to hear C.A.R. 21 cases that raise issues of first 

impression and that are of significant public importance.” People v. Steen, 2014 CO 9, 

¶ 8, 318 P.3d 487, 490. We granted review in this case as a companion to People v. 

Johnson, 2016 CO 69. This case raises two issues of first impression. First, one of the 

issues we considered in Johnson, whether a trial court may order a juvenile who 

requested a reverse-transfer hearing to submit to a mental health assessment by a state 

doctor. Second, whether the Constitution requires a trial court to advise a juvenile of 

her Fifth Amendment rights before such an assessment.
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¶6 These issues are of significant public importance because they will impact when 

a district attorney files adult charges against a juvenile and when a trial court may order 

mental health assessments for juveniles. Therefore, original relief is appropriate in this 

case.

III. Standard of Review

¶7 The interpretation of statutes and the United States Constitution are questions of 

law, which we review de novo. See Bostelman v. People, 162 P.3d 686, 689 (Colo. 2007). 

IV. Analysis

¶8 Under section 19-2-517(1), C.R.S. (2016), district attorneys have the power to 

direct file adult criminal charges against a juvenile. After a district attorney has direct 

filed against a juvenile, the juvenile can request a reverse-transfer hearing—seeking 

transfer of the case to juvenile court—pursuant to section 19-2-517(3). After a juvenile 

requests a reverse-transfer hearing, the trial court “shall consider” eleven factors to 

decide whether it should reverse-transfer the case to juvenile court. See § 19-2-517(3)(b). 

Of those factors, one is relevant to this appeal: Section 19-2-517(3)(b)(VI) states that the 

trial court shall consider “[t]he current and past mental health status of the juvenile as 

evidenced by relevant mental health or psychological assessments or screenings that are 

made available to both the district attorney and defense counsel.” Here, we first 

consider whether a trial court may order a juvenile who requested a reverse-transfer 

hearing to submit to a mental health assessment by a state doctor. Next, we consider 

whether the U.S. Constitution requires trial courts to advise a juvenile of her Fifth 

Amendment rights before such an assessment.
5

A. We do not reach the first issue because it did not occur in 

Higgins’s case.

¶9 Higgins asks this court to decide whether the trial court possessed authority to 

order a juvenile to submit to a state mental health assessment. We answered that 

question in the negative in Johnson, 2016 CO 69, but we decline to address that question 

here. Higgins was not ordered by a trial court to undergo a state mental health 

assessment. Rather, Higgins (via defense counsel) agreed to submit to the state mental 

health assessment while in front of a magistrate judge in juvenile court. Because we do 

not “give advisory opinions based on hypothetical fact situations,” we decline to decide

Higgins’s first issue. Tippett v. Johnson, 742 P.2d 314, 315 (Colo. 1987).

B. We do not reach the second issue because it is premature.

¶10 Higgins argues that the mental health assessment should be suppressed because 

(1) the trial court did not provide Fifth Amendment warnings prior to the mental health 

assessment, and (2) any consent Higgins gave to the mental health evaluation was 

vitiated by her defense counsel’s ineffective assistance in violation of Higgins’s Sixth 

Amendment rights. Because these arguments are premature, we decline to reach them.

¶11 First, the Fifth Amendment to the U.S. Constitution guarantees that no person 

“shall be compelled in any criminal case to be a witness against [her]self.” But we 

decline to reach Higgins’s claimed deficient Fifth Amendment warnings because 

Higgins consented to the state mental health evaluation and had defense counsel to 

provide her advice. The cases Higgins cites for her argument that her Fifth Amendment 

rights were violated by a lack of warning from the trial court are distinguishable, 
6

because in those cases the defendant either (1) objected to the mental health assessment 

but was forced to participate anyway or (2) did not have access to counsel at the time 

the trial court ordered the assessment. See, e.g., People v. Branch, 805 P.2d 1075, 1084

(Colo. 1991) (requiring trial court to give defendant warnings when he did not have 

counsel present); People in Interest of A.D.G., 895 P.2d 1067, 1073 (Colo. App. 1994) 

(holding that court could not force juvenile to submit to state psychological examination 

after juvenile objected).

¶12 Second, the Sixth Amendment guarantees that a defendant have access to 

effective assistance of counsel. Carmichael v. People, 206 P.3d 800, 805 (Colo. 2009). 

But we do not consider Higgins’s argument that her consent to the mental health 

evaluation was vitiated by ineffective assistance of counsel in violation of her Sixth 

Amendment rights because that argument is premature. To show ineffective assistance 

of counsel, a defendant must show that (1) an attorney’s performance was “deficient,” 

and (2) the defendant suffered prejudice as a result of this deficient performance. Id. at

805–06 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “The prejudice 

determination is a mixed question of law and fact.” Id. at 807. A finding of ineffective 

assistance of counsel requires findings of fact that have yet to occur, and “[a]s an

appellate court, we will not engage in fact finding.” People v. Matheny, 46 P.3d 453, 462 

(Colo. 2002). Therefore, we do not decide Higgins’s second issue.

V. Conclusion

¶13 We do not reach either of Higgins’s arguments. The first argument is based on a 

hypothetical fact situation. The second argument is premature and would require this 
7

court to improperly engage in fact finding. Therefore, we vacate the order to show 

cause and remand the case for further proceedings.

JUSTICE BOATRIGHT does not participate.