CENTENNIAL, Colo. – For the first time with short hair that’s brown instead of a wild shade of orangish-red, the suspect in Colorado’s movie theater shooting appeared in court Thursday as prosecutors gave up their fight to see a notebook he sent to a university psychiatrist, saying they didn’t want to delay proceedings.

James Holmes appeared more animated during the hearing than he has in the past. He smiled and glanced around the courtroom, looking at his lawyers and reporters covering the hearing. He appeared to be moving his mouth but not actually talking.

Defense attorneys say Holmes is mentally ill and that the notebook, sent to Dr. Lynne Fenton, shouldn’t be released because of doctor-patient privilege. Fenton last saw Holmes professionally June 11 before seeing him again in court Aug. 30.

Prosecutors have argued that the notebook and its contents are fair game. The former University of Colorado, Denver, graduate student planned to be dead or in prison after the shooting rampage at a special midnight showing of “The Dark Knight Rises,” they said, and he had no plans to undergo therapy.

But Deputy District Attorney Rich Orman said even if prosecutors convinced the judge the notebook isn’t protected, defense attorneys would likely appeal the decision.

If Holmes’ mental health becomes an issue in the case, Orman said, the suspect would have to waive privilege and prosecutors likely would gain access to the notebook, which remains in the custody of the court.