State v. Glenn. ( 2020 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
30-JUN-2020
08:24 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
STATE OF HAWAI‘I,
Respondent/Plaintiff-Appellee,
vs.
MICHAEL GLENN,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1PC14-1-000921)
JUNE 30, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
In order to commit a crime, a defendant must be
capable of intending to act wrongfully. The bedrock principle
that a crime requires a wrongful intent “is as universal and
persistent in mature systems of law as belief in freedom of the
human will and a consequent ability and duty of the normal
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individual to choose between good and evil.” Morissette v.
United States, 342 U.S. 246, 250 (1952). For this reason, if a
mental illness or impairment results in a defendant lacking
substantial capacity to appreciate the wrongfulness of their
conduct or to conform their conduct to the law, then the
defendant cannot be held criminally responsible. Hawai‘i Revised
Statutes (HRS) § 704-400 (2019). 1 When, after a mental
evaluation, an examiner opines that the defendant lacked penal
responsibility, HRS § 704-408 (2019) 2 provides that the court
“shall” instruct the jury on the penal-responsibility defense.
1 HRS § 704-400 provides:
(1) A person is not responsible, under this Code,
for conduct if at the time of the conduct as a result
of physical or mental disease, disorder, or defect
the person lacks substantial capacity either to
appreciate the wrongfulness of the person's conduct
or to conform the person's conduct to the
requirements of law.
(2) As used in this chapter, the terms “physical or
mental disease, disorder, or defect” do not include
an abnormality manifested only by repeated penal or
otherwise anti-social conduct.
2 HRS § 704-408 provides:
If the report of the examiners filed pursuant
to section 704-404, or the report of examiners of the
defendant's choice under section 704-409, states that
the defendant at the time of the conduct alleged was
affected by a physical or mental disease, disorder,
or defect that substantially impaired the defendant's
capacity to appreciate the wrongfulness of the
defendant's conduct or to conform the defendant's
conduct to the requirements of law, the court shall
submit the defense of physical or mental disease,
disorder, or defect to the jury or the trier of fact
at the trial of the charge against the defendant.
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We are now asked to interpret and define the safeguards embedded
in this defense.
This case arises from a confrontation between Michael
Glenn (Glenn) and the Complaining Witness (CW), which escalated
when Glenn allegedly began threatening to strike CW with a
baseball bat. Glenn was arrested and charged with one count of
Terroristic Threatening in the First Degree.
Early in the proceedings, the Circuit Court of the
First Circuit (circuit court) ordered evaluations on Glenn’s
mental health. Two of the three examiners concluded that Glenn
was unfit to proceed and that he lacked penal responsibility.
However, Glenn told his examiners that he did not believe he was
mentally ill and that he did not want to assert a defense based
on lack of penal responsibility. After further evaluations and
hearings, the circuit court found Glenn was fit to stand trial,
despite mixed conclusions by his examiners. Rather than raise
lack of penal responsibility as a defense, Glenn asserted a
theory of self-defense at trial, but was found guilty.
Glenn now argues that the circuit court should have
either sua sponte instructed the jury about the defense of lack
of penal responsibility, or conducted a colloquy to ensure that
Glenn knowingly and voluntarily decided not to raise the
defense. The Intermediate Court of Appeals (ICA) affirmed
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Glenn’s conviction, holding that HRS § 704-408 must be read in
pari materia with HRS 704-402 and 701-115 and that consequently,
“HRS section 704-408 should be interpreted as requiring the
trial court to instruct the jury or to obtain a waiver on the
insanity defense only when the jury was presented with evidence
[supporting the defendant’s lack of penal responsibility].” We
agree with the ICA that the trial court was under no duty to sua
sponte instruct the jury under the circumstances of this case;
however, we disagree that courts have no duty to obtain a
knowing, intelligent, and voluntary waiver of a penal-
responsibility defense.
Lack of penal responsibility is not merely a statutory
affirmative defense; it reflects a precept that is fundamental
to due process under the Hawaiʻi Constitution: “A defendant who,
due to mental illness, lacks sufficient mental capacity to be
held morally responsible for his actions cannot be found guilty
of a crime.” Kahler v. Kansas, 140 S. Ct. 1021, 1039 (2020)
(Breyer, J., dissenting). Accordingly, we prospectively hold
that once the court receives notice, pursuant to HRS § 704-
407.5(1), 3 that a defendant’s penal responsibility is an issue in
3 HRS § 704-407.5(1) provides:
Whenever the defendant has filed a notice of
intention to rely on the defense of physical or
mental disease, disorder, or defect excluding penal
responsibility, or there is reason to believe that
(continued)
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the case, the circuit court must advise a defendant of the
penal-responsibility defense and obtain a knowing waiver of the
defense. Cf. Tachibana v. State, 79 Hawaiʻi 226, 236, 900 P.2d
1293, 1303 (1995). However, because we adopt the colloquy
requirement prospectively, and insufficient evidence was
presented at trial to require a jury instruction on whether
Glenn lacked penal responsibility, we affirm Glenn’s conviction
and the judgment of the ICA.
II. BACKGROUND
A. Pre-Trial Proceedings 4
On June 5, 2014, the State charged Glenn with one
count of Terroristic Threatening in the First Degree, in
violation of HRS § 707-716(1)(e) (Supp. 2013). 5 Shortly
thereafter, Glenn’s defense counsel filed a “Motion for the
Appointment of Examiners to Determine Defendant’s Fitness to
Proceed and Penal Responsibility,” notifying the court that
the physical or mental disease, disorder, or defect
of the defendant will or has become an issue in the
case, the court may order an examination as to the
defendant's physical or mental disease, disorder, or
defect at the time of the conduct alleged.
4 The Honorable Richard K. Perkins presided.
5 “A person commits the offense of terroristic threatening in the
first degree if the person commits terroristic threatening: . . . [w]ith the
use of a dangerous instrument[.]” HRS § 707-716(1)(e). Terroristic
threatening is defined as “threaten[ing], by word or conduct, to cause bodily
injury to another person . . . or to commit a felony: (1) With the intent to
terrorize, or in reckless disregard of the risk of terrorizing, another
person[.]” HRS § 707-715 (Supp. 2013).
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“there exists a reasonable basis to question Defendant’s current
fitness to proceed and penal responsibility during the time in
question.” The State did not object to the appointment of
examiners. The circuit court granted the motion, appointing a
panel of three mental health professionals to evaluate Glenn and
staying the proceedings until the evaluations could be
completed.
1. The Examiners’ Reports
In their initial evaluations, two of the three
examiners found Glenn unfit to proceed and opined that he lacked
penal responsibility at the time of the offense.
Leonard Jacobs, M.D. (Dr. Jacobs), concluded that at
the time of Glenn’s alleged offense, as well as at the time of
his evaluation, Glenn suffered from a major mental illness and
was not receiving treatment. Because Glenn’s “capacity to
appreciate the wrongfulness of his conduct and [] conform his
conduct to the requirements of the law was substantially
impaired by his mental disorder at the time of his alleged
actions[,]” Dr. Jacobs concluded that Glenn was not penally
responsible.
Like Dr. Jacobs, Tom Cunningham, Ph.D. (Dr.
Cunningham), concluded that Glenn was unfit to proceed and
lacked penal responsibility. Dr. Cunningham opined that Glenn’s
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“cognitive and possibly volitional capacity was most likely
substantially impaired by mental disorder” at the time of the
alleged offense. Additionally, Dr. Cunningham concluded that
although Glenn was able to understand the proceedings against
him, his ability to “assist in his own defense and consult with
an attorney rationally was substantially impaired.”
The third evaluator, Marvin Acklin, Ph.D. (Dr.
Acklin), concluded that Glenn “appeared” fit to proceed and
penally responsible. Dr. Acklin explained that at the time of
the evaluation, Glenn “appear[ed] to be cognitively and
psychiatrically intact” with no psychiatric diagnosis. And he
noted that Glenn did not believe he was mentally ill at the time
of the offense, and that he did “not understand the necessity,
nor . . . intend to utilize, a mental defense.” Furthermore,
Dr. Acklin noted that during his evaluation, Glenn “demonstrated
a rational understanding of his circumstances, [and noted] that
he [was] not pursuing a mental health defense because of [its]
consequences,” which included the risks of having it on his
record and future stigma. Nothing suggested to Dr. Acklin that
“Mr. Glenn’s cognitive and volitional capacities [at the time of
the alleged offense] were substantially impaired” by mental
illness. Accordingly, Dr. Acklin concluded that Glenn likely
was penally responsible.
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2. October 2014 Fitness Hearing
At the first fitness hearing in October 2014, Glenn’s
counsel stipulated to the examiners’ reports but informed the
court, “[Glenn] did, however, want me to place on the record
that he does not agree that he is not fit to proceed. So I
agreed to do that on his behalf.” Nevertheless, in light of Dr.
Jacobs’ and Dr. Cunningham’s findings, the circuit court
determined that Glenn was not fit to proceed. The circuit court
then committed Glenn “to the custody of the Director of [the
Department of] Health for detention, care[,] and treatment” and
placed Glenn at the Hawai‘i State Hospital (HSH).
3. January 2015 Reevaluation Hearing
After about three months of treatment, HSH requested
Glenn’s reevaluation. At the hearing for reevaluation, defense
counsel again explained that Glenn did not believe he had any
mental health issues. However, counsel deferred to the court as
to whether to order a reevaluation. The circuit court ordered
another round of examinations, but only to evaluate Glenn’s
fitness.
4. Reevaluations of Glenn’s Fitness
Dr. Jacobs and Dr. Cunningham’s re-evaluations were
substantially similar to their initial assessments. And,
although not specifically requested to do so, Dr. Cunningham
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continued to express reservations about Glenn’s penal
responsibility: “I fear that if Mr. Glenn is found fit[,] he
will receive a punishment for a serious offense for which he
lacked cognitive capacity.”
After the second evaluation, Dr. Acklin changed his
diagnosis of Glenn from “none” to “indeterminate.” Dr. Acklin
also noted that “a diagnosis of malingering is ruled out since
[Glenn] denies mental health problems.” Nevertheless, Dr.
Acklin concluded that there was “no reason that Mr. Glenn [was]
not fit to proceed,” although he explained that this conclusion
was not the same as an opinion based on positive findings.
5. June 2015 Fitness Hearing
Following the reevaluations, at the June 2015 fitness
hearing, defense counsel asked the court to find Glenn fit to
proceed, or in the alternative, to order another round of
evaluations after a shorter period of treatment. The circuit
court determined that Glenn was still unfit, but in light of the
defense’s request, decided the court would reassess in three
months’ time.
6. September 2015 Report from the Hawai‘i State Hospital
Prior to the September fitness hearing, Glenn’s HSH
treatment team updated the circuit court on Glenn’s mental
health treatment. HSH concluded that Glenn “has the capacity to
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work with his attorney in his defense, knows his charge, his
available pleas, the possible penalties if found guilty, the
roles of various courtroom personnel, and can maintain proper
court decorum.” Accordingly, HSH opined, “Mr. Glenn is not in
need of [hospital-level] care or treatment.”
At the subsequent fitness hearing, on Glenn’s request,
the circuit court found him fit to proceed and set a trial date.
B. Trial 6
The following evidence was adduced at Glenn’s jury
trial in March 2016.
On the night of May 27, 2014, CW and his cousin were
walking towards Foodland at the Windward City Shopping Center in
Kāne͑ohe. As they were walking, CW almost bumped into Glenn.
CW testified that although he heard Glenn mutter something under
his breath, he kept walking. CW then heard Glenn call him a
“fat boy.”
According to CW, when he turned around, Glenn pointed
at CW with his hand shaped like a gun and told CW that he was
going to shoot him. CW and Glenn both recalled that “the N-
word” was used during the encounter, but each claimed that the
other had said it. CW’s cousin testified that although he did
not remember exactly what was said, CW “wasn’t name calling, but
6 The Honorable Rom A. Trader presided.
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the defendant had been calling him fat boy and all that stuff.”
According to CW, Glenn told him to take his Bob Marley shirt
off, and CW did, ready to “scrap.” Glenn then removed a
baseball bat from one of his bags, raised it above his shoulder,
and began approaching CW. Glenn whacked the bat on the ground a
few times, hard enough that it may have caused a chip in the
pavement.
After witnessing the altercation between Glenn and CW,
a Foodland manager called the police, but by the time they
arrived, Glenn had left the scene. Glenn was arrested shortly
thereafter.
Testifying on his own behalf, Glenn explained that he
took his bat out to protect himself and to de-escalate the
situation, not to hurt CW. He admitted that he called CW a “fat
boy,” but explained that he only confronted CW because he
thought he had heard CW call him a dog and “the N-word.” Glenn
told the jury that he had come to Hawai‘i in 2012, in order to
“fulfill [his] odyssey and [his] expectations, you know, kind of
like the great expectations.” He explained that he was a
“master mason,” and that, in order to “fulfill [his] degrees
within [his] guild, [he had to] go and plant seeds or [] lay
squares, what we call ‘lay squares.’” He also explained that on
the night in question, he was at Starbucks, “doing some work,
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networking,” because he was also a “practicing amateur
physicist . . . working on anatomic nuclei[.]” Glenn stayed at
Starbucks until about 10 p.m., when he decided to go to
McDonald’s to “burn the midnight oil” and “work[] on [his]
equations and theor[e]ms” in his lab.
None of the examiners who had evaluated Glenn’s penal
responsibility testified at trial.
C. Jury Instructions and Verdict
Per the defense’s request, the circuit court
instructed the jury to consider whether Glenn had been acting in
self-defense. However, the defense neither proposed an
instruction for lack of penal responsibility nor objected to its
omission in the court’s finalized instructions. The circuit
court did not discuss the possibility of such an instruction
with Glenn or instruct the jury about lack of penal
responsibility sua sponte.
After deliberations, the jury found Glenn guilty of
Terroristic Threatening in the First Degree. The circuit court
sentenced him to five years of imprisonment.
D. ICA Summary Disposition Order
In his appeal to the ICA, Glenn argued that “(1) the
[c]ircuit [c]ourt erred in its failure to either secure from him
a waiver of the insanity defense or to sua sponte require the
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jury to consider it, and (2) there was insufficient evidence to
support his conviction.”
The ICA affirmed Glenn’s conviction in a summary
disposition order (SDO). The ICA first explained that despite
HRS § 704-408’s language that “the court shall submit the
defense of physical or mental disease, disorder, or defect to
the jury or the trier of fact at the trial of the charge against
the defendant,” the text had to be read in pari materia with HRS
§§ 704-402 (lack of penal responsibility is an affirmative
defense) and 701-115 (instructing that “[n]o defense may be
considered by the trier of fact unless evidence of the specified
fact or facts has been presented”).
Thus, when read in pari materia, the ICA interpreted
HRS § 704-408 as
requiring the trial court to instruct the jury or to
obtain a waiver on the insanity defense only when the
jury was presented with evidence indicating that the
defendant was affected by a physical or mental
disease, disorder, or defect that substantially
impaired the defendant’s capacity to appreciate the
wrongfulness of the defendant’s conduct or to conform
the defendant’s conduct to the requirements of law.
Since no evidence supporting a penal-responsibility
defense was presented to the jury, the ICA concluded that the
circuit court was not required to obtain a waiver from Glenn or
to sua sponte instruct the jury to consider whether Glenn lacked
penal responsibility. Moreover, the ICA concluded that “[e]ven
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if the Circuit Court submitted the insanity defense to the jury,
there was no context for the jury to consider it.”
The ICA also found that Glenn’s conviction was
supported by substantial evidence, and accordingly, affirmed his
conviction. Glenn filed a timely application for writ of
certiorari.
III. STANDARDS OF REVIEW
A. Constitutional Law
“We answer questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. Thus, we review questions of
constitutional law under the right/wrong standard.” State v.
Ui, 142 Hawaiʻi 287, 292, 418 P.3d 628, 633 (2018) (quoting State
v. Friedman, 93 Hawaiʻi 63, 67, 996 P.2d 268, 272 (2000)).
B. Statutory Interpretation
The interpretation of a statute is a question of law
that this court reviews de novo. State v. Arceo, 84 Hawai‘i 1,
10, 928 P.2d 843, 852 (1996).
[O]ur foremost obligation is to ascertain and give
effect to the intention of the legislature, which is
to be obtained primarily from the language contained
in the statute itself. And we must read statutory
language in the context of the entire statute and
construe it in a manner consistent with its purpose.
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State v. Ruggiero, 114 Hawai‘i 227, 231, 160 P.3d 703, 707 (2007)
(quoting Gray v. Admin. Dir. of the Court, 84 Hawai‘i 138, 148,
931 P.2d 580, 590 (1997)).
C. Jury Instructions
This court may notice the omission of an unrequested
jury instruction as plain error if it appears that “the
defendant has come forward with credible evidence going to the
defense that the jury should have been able to consider . . .
and it would serve the ends of justice and prevent the denial of
fundamental rights to address such an omission.” State v.
Taylor, 130 Hawai‘i 196, 207-08, 307 P.3d 1142, 1153-54 (2013)
(footnote and internal quotation marks omitted) (quoting State
v. Kikuta, 125 Hawai‘i 78, 95, 253 P.3d 639, 656 (2011)).
IV. DISCUSSION
A. A Defendant Has a Fundamental Right Under the Hawaiʻi
Constitution to Assert Lack of Penal Responsibility as a
Defense
“The due process guarantee of the Hawai‘i Constitution
serves to protect the right of an accused in a criminal case to
a fundamentally fair trial, and central to the protections of
due process is the right to be accorded a meaningful opportunity
to present a complete defense.” State v. Matsumoto, 145 Hawaiʻi
313, 328, 452 P.3d 310, 325 (2019) (quotation marks omitted).
Inherent in the promise of due process is the fundamental
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principle that a defendant who, due to mental illness, lacks the
capacity to conform their conduct to the law, or understand that
their conduct was wrongful, cannot be held criminally
responsible. See Kahler, 140 S. Ct. at 1038 (Breyer, J.
dissenting). As the California Supreme Court recognized, “the
suggestion that a defendant whose mental illness results in
inability to appreciate that his act is wrongful could be
punished by [] imprisonment raises serious questions of
constitutional dimension under both the due process and cruel
and unusual punishment provisions of the Constitution.” People
v. Skinner, 704 P.2d 752, 757 (Cal. 1985) (citing, inter alia,
Leland v. Oregon, 343 U.S. 790 (1952) and People v. Coleman, 126
P.2d 349 (Cal. 1942)). After all, the purposes of punishment
are not served by holding a person responsible for conduct they
did not know was wrong or could not control. See 21 Am. Jur. 2d
Criminal Law § 45 (“[A] basic postulate of criminal law is a
free agent presented with a choice between right and wrong and
choosing freely to do wrong[;] an insane person is not
punishable because he or she is outside this postulate, and is
incapable of knowing right from wrong.”).
We acknowledge that the United States Supreme Court
has reached a different conclusion with respect to the due
process clause in the federal constitution. Kahler, 140 S. Ct.
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at 1025. However, “[w]e have long recognized . . . that ‘as the
ultimate judicial tribunal with final, unreviewable authority to
interpret and enforce the Hawai‘i Constitution, we are free to
give broader protection under the Hawai‘i Constitution than that
given by the federal constitution.’” State v. Viglielmo, 105
Hawai‘i 197, 210–11, 95 P.3d 952, 965–66 (2004) (quoting State v.
Arceo, 84 Hawai‘i at 28, 928 P.2d at 870 (1996)). Thus, “in
Hawaii due process protection under our state constitution is
not necessarily limited to that provided by the fourteenth
amendment of the United States Constitution.” State v.
Bernades, 71 Haw. 485, 487, 795 P.2d 842, 843 (1990).
Other states have similarly recognized that under
their state constitutions, due process prohibits the conviction
of a defendant who, due to mental illness or infirmity, could
not understand the wrongfulness of their conduct. E.g., State
ex rel. Causey, 363 So.2d 472, 473–74 (La. 1978); Finger v.
State, 27 P.3d 66, 68 (Nev. 2001); Sinclair v. State, 132 So.
581, 582 (Miss. 1931) (per curiam). Indeed, as early as 1910,
the Supreme Court of Washington recognized that the defendant
had a fundamental right under the state constitution to offer
evidence that they were “unable to comprehend the nature and
quality of the act committed”:
[T]he sanity of the accused at the time of committing
the act charged against him has always been regarded
as much a substantive fact, going to make up his
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guilt, as the fact of his physical commission of the
act. It seems to us the law could as well exclude
proof of any other substantive fact going to show his
guilt or innocence. If he was insane at the time to
the extent that he could not comprehend the nature
and quality of the act - in other words, if he had no
will to control the physical act of his physical body
- how can it in truth be said that the act was his
act? To take from the accused the opportunity to
offer evidence tending to prove this fact is in our
opinion as much a violation of his constitutional
right of trial by jury as to take from him the right
to offer evidence before the jury tending to show
that he did not physically commit the act or
physically set in motion a train of events resulting
in the act.
State v. Strasburg, 110 P. 1020, 1021, 1024 (Wash. 1910).
“In determining which rights are fundamental, we must
look ‘to the traditions and collective conscience of our people
to determine whether a principle is so rooted there . . . as to
be ranked as fundamental.’” State v. Mallan, 86 Hawaiʻi 440,
443, 950 P.2d 178, 181 (1998) (quoting Baehr v. Lewin, 74 Haw.
530, 556, 852 P.2d 44, 57 (1993)) (alterations omitted). And in
this context, “[h]istorical practice overwhelmingly supports the
conclusion that legal insanity is a fundamental principle.”
Finger, 27 P.3d at 80.
“The idea that the insane should not be punished for
otherwise criminal acts has been firmly entrenched in the law
for at least one thousand years.” Jonas Robitscher & Andrew Ky
Haynes, In Defense of the Insanity Defense, 31 Emory L.J. 9, 10
(1982). In Anglo-American jurisprudence, the legal principle
that in order to commit a crime, a person must be “capable of
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perceiving the wrongful character of his act,” can be traced
back to scholars in the 13th Century. Kahler, 140 S. Ct. at
1040 (Breyer, J. dissenting) (citing 2 Bracton On Laws and
Customs of England 384 (S. Thorne transl. 1968)).
In 1843, these theories culminated in the legal
definition of insanity by the English House of Lords in
M’Naghten’s Case, “the most famous statement of the traditional
insanity defense[.]” Kahler, 140 S. Ct. at 1038 (Breyer, J.,
dissenting). The M’Naghten rule set forth a two-prong test that
focused on a defendant’s cognitive capacity to appreciate the
wrongfulness of their conduct:
[T]o establish a defence on the ground of insanity, it
must be clearly proved that, at the time of the
committing of the act, the party accused was labouring
under such a defect of reason, from disease of the
mind, [1] as not to know the nature and quality of the
act he was doing; or, [2] if he did know it, that he
did not know he was doing what was wrong.
M’Naghten’s Case, 8 Eng. Rep. 718, 722 (H. L. 1843).
By the time of the founding of the United States, the
principle of legal insanity was well-established in the common
law: “Judges regularly instructed juries that the defendant’s
criminal liability depended on his capacity for moral
responsibility.” Kahler, 140 S. Ct. at 1043 (Breyer, J.,
dissenting) (collecting cases demonstrating “the prevailing view
of the law around the time of the founding”). After M’Naghten’s
Case was decided in the mid-Nineteenth century, American courts
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widely adopted the rule, with some variations, maintaining it
throughout the Nineteenth into the Twentieth Century. Kahler,
140 S. Ct. at 1045 (Breyer, J. dissenting) (“Variations on the
M’Naghten rules soon became the predominant standard in the
existing states of the United States.”); see, e.g., Commonwealth
v. Rogers, 48 Mass. 500, 501–02 (1844) (“A man is not to be
excused from responsibility, if he has capacity and reason
sufficient to enable him to distinguish between right and
wrong[.]”). “[T]his long legal tradition. . . reflects the fact
that a community’s moral code informs its criminal law.”
Kahler, 140 S. Ct. at 1047 (Breyer, J. dissenting).
The legal tradition that penal responsibility should
track moral culpability also has a long tradition in Hawaiʻi. In
1850, the House of Nobles and Representatives of the Kingdom of
Hawaiʻi adopted a variation of the M’Naghten rule as part of the
new, written penal code. 7 Penal Code of the Hawaiian Islands
7 The Penal Code of 1850 provided in relevant part:
Any person acting under mental derangement, rendering
him incompetent to discern the nature and criminality
of an act done by him, shall not be subject to
punishment therefore: Provided, however, that if any
such person, while capable of discerning the nature
and criminality of any act, entertained the intent to
do the same, and subsequently does it in pursuance
and execution of such intent, he shall be held
responsible therefor, though the same be done in such
state of mental derangement[.]
(continued)
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June 21, 1850, ch. IV, § 4. That provision remained in force
for over a century.
In 1862, King Kamehameha IV signed an act establishing
insane asylums and, among other things, permitting courts to
commit to a mental hospital “[a]ny person indicted for any crime
who shall be acquitted by reason of insanity or mental
derangement.” An Act to Establish an Insane Asylum, § 5,
Appendix to Compiled Laws of the Hawaiian Kingdom 1884 at 507-
08. In the Penal Code of 1869 and through the remaining years
of the Hawaiian Kingdom, the law on penal responsibility
remained the same, preventing the conviction of anyone unable to
“discern the nature and criminality of [their] act[.]” Penal
Code of the Hawaiian Kingdom 1869, ch. IV, § 4; see also In re
Penal Code of the Hawaiian Islands June 21, 1850, ch. IV, § 4, available at
http://www.llmc.com/OpenAccess/docDisplay5.aspx?textid=33160589 (last visited
June 26, 2020).
In Hawaiian, this provision read:
O ka mea pupule maoli a me ka mea ike ole i kea no o
kana hana ana, aole ia e hoopaiia; aka hoi, ina i
manao maopopo kekahi e hana i kekahi hewa i kona wa
pupule ole, a mahope hooko maoli oia mamuli o kona
manao kolohe i kona wa pupule, alaila e hoopaiia no
ia no kela hewa; a pela no, ina loaa ia ia ka pupule
no kona inu rama a no kekahi hewa e ae paha, e
hoopaiia no ia.
He Kanawai Hoopai Karaima No Ko Hawaii Pae Aina June 21, 1850 [The Penal Code
of the Hawaiian Islands June 21, 1850], mokuna [chapter] IV, § 4, available
at http://www.llmc.com/OpenAccess/docDisplay5.aspx?textid=33160863 (last
visited June 26, 2020).
We have recognized that this language created a rule “similar to the
rule of criminal responsibility as established by the M’Naghten case.” State
v. Moeller, 50 Haw. 110, 114, 433 P.2d 136, 140 (1967); see also Territory v.
Alcosiba, 36 Haw. 231, 239 (Haw. Terr. 1942).
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The Mary Belle Roberts, 3 Haw. 823, 828 (Haw. Kingdom 1877)
(recognizing that insanity relieves a person of responsibility
for a crime). Following the overthrow of the Hawaiian Kingdom
in 1893, the Republic of Hawaiʻi maintained the same rule of
penal responsibility taken in its entirety from the 1869 penal
code of the Kingdom of Hawaiʻi. Penal Code of the Hawaiian
Islands 1897, ch. 4, § 24.
Thus, by the time the United States annexed Hawaiʻi in
1898 and established a territorial government in 1900, Hawaiʻi
had recognized for fifty years that a person who was incapable
of understanding “the nature and criminality of an act done” was
“not [to] be subject to punishment.” See Penal Code of the
Hawaiian Islands June 21, 1850, ch. IV, § 4; Penal Code of the
Hawaiian Islands 1897, ch. 4, § 24. The law on penal
responsibility remained the same for the duration of Hawaiʻi’s
territorial government and into its first two decades of
statehood. See Organic Act of April 30, 1900, ch. 339, 31 Stat.
141; Revised Laws of Hawai‘i (RLH) §203-3670 (1915); RLH § 249-4
(1955). And the insanity defense seems to have been in regular,
if not frequent, use during that time. See, e.g., Territory v.
Lum Dim, 23 Haw. 792, 794–95 (Haw. Terr. 1917); Territory v.
Fukunaga, 30 Haw. 697, 735 (Haw. Terr. 1929); Territory v.
Alcosiba, 36 Haw. 231, 238 (Haw. Terr. 1942); Territory v.
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Adiarte, 37 Haw. 463, 466 (Haw. Terr. 1947); State v. Foster, 44
Haw. 403, 428–29, 354 P.2d 960, 973 (1960).
In 1967, the Hawaiʻi Supreme Court observed that the
law on penal responsibility “has been in our statute books
without change since the compilation of the Penal Code of 1850
by Chief Justice Lee.” State v. Moeller, 50 Haw. 110, 115, 433
P.2d 136, 140 (1967). And we recognized that “[b]oth Section
249-4 [codifying the insanity defense] and the M’Naghten rule
hold that a person is criminally responsible for his act if he
understands the nature of the act and knew that the act was
wrong.” Id. at 114, 433 P.2d at 140. Further, we clarified
that the inability to distinguish between right and wrong is, by
itself, a basis for a finding of insanity:
[A] defendant is to be deemed insane and not
criminally responsible if he is found to be suffering
from a mental derangement and (1) he is incompetent
to understand the nature of the act committed, or (2)
if he understood the nature of the act but he was
unable to distinguish between right and wrong in
relation to the act.
Id. at 115, 433 P.2d at 140 (holding that the test is not
whether the defendant understood the nature of the act and could
distinguish between right and wrong) (emphasis added).
In 1972, the Hawaiʻi legislature enacted HRS § 704-400,
when it adopted a new penal code “modeled in great part after
the Model Penal Code.” See State v. Nuetzel, 61 Haw. 531, 537–
38, 606 P.2d 920, 925 (1980). As we recognized in Nuetzel, the
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legislature intended HRS § 704-400 to modernize the insanity
defense by providing that (1) “either the volitional or
cognitive aspects of an individual’s processes may be impaired”
and (2) “substantial incapacity,” rather than total incapacity,
was sufficient to establish lack of penal responsibility. Id.
at 542, 606 P.2d at 927. Thus, while the language of the rule
changed, the basic principle that a person is not criminally
responsible if they cannot appreciate the wrongfulness of their
conduct remained constant: “A person is not responsible . . .
[if] as a result of physical or mental disease, disorder, or
defect the person lacks substantial capacity either to
appreciate the wrongfulness of the person’s conduct or to
conform the person’s conduct to the requirements of law.” HRS
§ 704-400(1). As a result, when the Constitutional Convention
of 1978 reconsidered the text and meaning of the due process
clause in Hawai‘i’s Constitution, it did so after over a century
of consistent recognition, despite four different forms of
government, that the ability to distinguish right from wrong was
essential to criminal responsibility.
In the summer of 1978, delegates gathered to debate
and consider proposals to amend the state constitution, which
had been drafted in 1950, before statehood. 1 Proceedings of
the Constitutional Convention of Hawaiʻi of 1978, at vii-viii
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(1980). Notably, among the various proposed amendments was the
abolition of the insanity defense, which after its introduction
by Delegate Tam, was sent to the Committee on the Bill of Rights
for review. Id. at 491. The Committee voted down the proposal.
Id. The issue was brought to the floor during the last days of
the convention, at which point the delegates considered sending
a request asking the legislature to review the insanity defense
in order to prevent abuse of the system by individuals who did
not, in fact, merit the defense. Id. at 494.
It is striking that delegates on both sides of the
issue agreed that the insanity defense provided crucial
protection to individuals who did not merit punishment, with
Delegate DiBianco, who opposed the resolution, noting “[t]here
are people who have mental disorders such that they are not
criminally responsible,” and, as Delegate Tam explained, “[t]his
is not to say consideration shouldn’t be given where it is
deserved.” Id. at 493-94. Thus, even as the convention
discussed asking the legislature to consider the defense, there
was no suggestion that persons should be held criminally
responsible, regardless of their ability to appreciate the
wrongfulness of their conduct - only that there should be a way
to minimize abuse of the defense by those who “in no way qualify
for any type of consideration.” Id. at 494. In other words,
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the concern was “not so much with the defense itself as with the
administration of it.” Id. at 496. Accordingly, at the end of
the convention, when the delegates submitted their proposed
amendment to the due process clause of the Hawaiʻi Constitution 8
to the electorate – which subsequently approved it - they
preserved the ability to raise a penal-responsibility defense
for defendants who suffered from mental illness to such an
extent that they should not be held criminally responsible.
In sum, the lengthy history and tradition of the
insanity defense shows that lack of penal responsibility is a
deeply rooted concept, not only in Anglo-American law, but also
in Hawaiʻi. This fundamental premise of criminal liability has
remained consistent from the time of the Hawaiian monarchy until
today, and it was against this backdrop that the electorate
adopted the existing due process clause in our state
constitution. Consequently, we have no hesitation in concluding
that due process prevents criminal punishment of defendants who,
“as a result of physical or mental disease, disorder, or
defect . . . lack[] substantial capacity either to appreciate
8 The delegates ultimately decided not to change the substance of
the due process clause and recommended only a minor change in order to make
it gender neutral, changing “No person shall be deprived of life, liberty or
property without due process of law, . . . nor be denied the enjoyment of his
civil rights” to “No person shall be deprived of life, liberty or property
without due process of law, . . . nor be denied the enjoyment of the person’s
civil rights[.]” 1 Proceedings of the Constitutional Convention of Hawai‘i of
1978, at 831, 1149 (1980) (emphases added).
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the wrongfulness of the person’s conduct or to conform the
person’s conduct to the requirements of law.”
It is against this backdrop, then, that we turn to
Glenn’s first question presented – whether a trial court must
conduct a colloquy with the defendant regarding the penal-
responsibility defense.
B. We Adopt a Prospective Rule that, if a Trial Court Receives
Notice that Lack of Penal Responsibility May Be a Defense,
the Court Must Obtain a Knowing and Voluntary Waiver of the
Defendant’s Right to Assert the Defense
We have long recognized the vital importance of
ensuring that defendants know and understand their rights before
waiving them. After all, “basic values of personal dignity and
fairness are enhanced when the defendant is presented with an
opportunity to choose among relevant alternatives.” Tachibana,
79 Hawai‘i at 235, 900 P.2d at 1302 (quoting United States v.
Martinez, 883 F.2d 750, 766-67 (9th Cir. 1989) (Reinhardt, J.,
dissenting)). Moreover, “defendants are often unaware that they
have certain constitutional rights that may not be waived by
their counsel or that they must object to waiver by counsel at
trial.” State v. Murray, 116 Hawaiʻi 3, 13, 169 P.3d 955, 965
(2007) (citing Tachibana, 79 Hawaiʻi at 234, 900 P.2d at 1301).
This court has repeatedly found that a colloquy
between the trial court and defendant is the best way to ensure
that a defendant’s rights are protected. Id. at 12, 169 P.3d at
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964. Colloquies “promote[] judicial efficiency by establishing
on the record that the defendant has voluntarily waived [his
rights.]” Id. For that reason, we require trial courts to
engage in on-the-record colloquies with criminal defendants to
ensure the knowing, intelligent, and voluntary waiver of
numerous trial rights. See, e.g., State v. Vaitogi, 59 Haw.
592, 601, 585 P.2d 1259, 1265 (1978) (guilty plea); State v.
Ibuos, 75 Hawai‘i 118, 121, 857 P.2d 576, 578 (1993) (trial by
jury); Tachibana, 79 Hawai‘i at 235–36, 900 P.2d at 1300–01
(right to testify); Murray, 116 Hawai‘i at 21, 169 P.3d at 973(right to have each element proven to a jury beyond a reasonable
doubt); State v. Hernandez, 143 Hawai‘i 501, 515, 431 P.3d 1274,
1288 (2018) (plea of no-contest). Since the decision to assert
the defense of lack of penal responsibility raises similarly
weighty due process considerations, we impose such a requirement
prospectively here.
The penal-responsibility defense “stands in stark
contrast from all [] other affirmative defenses.” Treece v.
State, 547 A.2d 1054, 1060 (Md. 1988). While other defenses may
negate a defendant’s criminal liability, lack of penal
responsibility eliminates a defendant’s moral culpability as
well. Moreover, unlike other affirmative defenses, a defendant
who prevails on the penal-responsibility defense does not simply
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walk free – the determination of irresponsibility becomes part
of the defendant’s record, HRS § 704-402(3), and can result in
the defendant’s commitment to an appropriate institution or
supervision through conditional release, HRS § 704-411. Given
the significant consequences that can result, from a practical
standpoint, a determination of lack of penal responsibility is
more akin to a guilty plea than an affirmative defense. Treece,
547 A.2d at 1060; see also 21 Am. Jur. 2d Criminal Law § 55
(2019) (“[W]hile insanity is an affirmative defense in many
states, the decision to raise the defense is akin to a plea
decision, and as such, the decision rests with the defendant
alone.”). Thus, the nature of the penal-responsibility defense
and its resemblance to a guilty plea makes a colloquy necessary
to preserve the fundamental fairness of a trial. 9
We are not alone in adopting this colloquy
requirement. Numerous other jurisdictions have imposed colloquy
requirements when doubt arises as to a defendant’s penal
responsibility:
[W]henever the evidence suggests a substantial
question of the defendant’s sanity at the time of the
crime, the trial judge must conduct an inquiry
designed to [ensure] that the defendant has been
fully informed of the alternatives available,
comprehends the consequences of failing to assert the
9 Because the penal-responsibility defense is different from other
statutory defenses that are not required as a matter of due process, our
holding should not be read as requiring a colloquy for every plausible
affirmative defense.
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defense, and freely chooses to raise or waive the
defense.
Frendak v. United States, 408 A.2d 364, 380 (D.C. 1979); see
also People v. Gettings, 530 N.E.2d 647, 650 (Ill. App. 1988);
Jacobs v. Commonwealth, 870 S.W.2d 412, 418 (Ky. 1994),
overruled on other grounds by St. Clair v. Commonwealth, 451
S.W.3d 597 (Ky. 2014); Treece, 547 A.2d at 1063; State v.
Gorthy, 145 A.3d 146, 157 (N.J. 2016); City of Bismarck v.
Nassif, 449 N.W.2d 789, 798 (N.D. 1989); State v. Brown, 890
A.2d 79, 91 (Vt. 2005); State v. Jones, 664 P.2d 1216, 1221
(Wash. 1983); Farrell v. People, 54 V.I. 600, 615 (2011). Cf.
Hendricks v. People, 10 P.3d 1231, 1243 (Colo. 2000) (holding
statutory rule requires an inquiry into a defendant’s decision
not to plead insanity). But see State v. Peterson, 689 P.2d
985, 991 (Or. Ct. App. 1984) (holding that trial court did not
need to inquire whether a defendant, who was both competent and
represented by counsel, had voluntarily and intelligently chosen
to forgo a defense based on lack of penal responsibility); State
v. Francis, 701 N.W.2d 632, 640, 640 n.5 (Wis. Ct. App. 2005)
(holding that defendant’s counsel could withdraw a plea based on
lack of penal responsibility without requiring the court to
personally address defendant, but nevertheless advising that to
do so was best practice).
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In Frendak, the first case to impose a colloquy
requirement on this issue, the District of Columbia Court of
Appeals explained that when a defendant chooses not to raise an
insanity defense, the defendant “relinquishes important
safeguards intended to protect persons who are not legally
responsible for their acts from punishment and culpability in
the eyes of society.” Frendak, 408 A.2d at 378. While “there
are persuasive reasons why defendants convicted of an offense
may choose to accept the jury’s verdict rather than raise a
potentially successful insanity defense,” in order to ensure
that the defendant relinquishes those safeguards knowingly,
intelligently, and voluntarily, the court held that “a trial
judge must seek the same type of assurance when a defendant
chooses to reject an insanity defense” as when a defendant
pleads guilty or chooses to waive the right to counsel. Id. at
376, 378.
Since Frendak, which has been widely followed, many
states have drawn similar comparisons between the waiver of an
insanity defense and waiver of other rights. See, e.g., Treece,
547 A.2d at 1063 (“The decision to forego a not criminally
responsible plea requires the same ability to choose between
various alternatives as does the decision to plead guilty, to
elect to proceed without counsel, or to waive a jury trial.”);
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Jones, 664 P.2d at 1221 (“As with waiver of all rights, waiver
of an NGI plea must satisfy certain conditions in order to be
constitutionally valid.”); Brown, 890 A.2d at 90 (explaining
that waiver of the right to present an insanity defense “was de
facto a waiver of the essential right in a criminal trial to
present a defense”).
Thus, we join these other states in adopting the
reasoning of Frendak and hold prospectively that a trial court
has a duty to advise a defendant about the penal-responsibility
defense and to ensure that a defendant knowingly, intelligently
and voluntarily chooses to waive the defense.
The trial court has the “ultimate obligation to
promote justice in criminal cases.” State v. Haanio, 94 Hawai‘i
405, 414, 16 P.3d 246, 255 (2001), overruled on other grounds by
State v. Flores, 131 Hawai‘i 43, 314 P.3d 120 (2013). While a
defendant may have sound reasons for choosing not to assert such
a defense, a court does not “promote justice” by convicting a
defendant of an offense for which he or she lacked penal
responsibility, if the decision to forgo that defense was “based
on ignorance or incomprehension.” Treece, 547 A.2d at 1063.
We now turn to the practical considerations for a
penal-responsibility colloquy. First, a colloquy is required if
defense counsel files a notice that the defendant “inten[ds] to
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rely on the defense of physical or mental disease, disorder, or
defect excluding penal responsibility, or [if] there is reason
to believe that the physical or mental disease, disorder, or
defect of the defendant will or has become an issue in the
case[.]” HRS § 704-407.5(1); see also Phenis v. United States,
909 A.2d 138, 155 (D.C. 2006) (holding a colloquy is required
when there is “a substantial question of the defendant’s sanity
at the time of the crime” (quoting Briggs v. United States, 525
A.2d 583, 592 (D.C. 1987)).
Second, the colloquy should take place no later than
the court’s pre-trial Tachibana advisement. 10 See State v.
Lewis, 94 Hawaiʻi 292, 297, 12 P.3d 1233, 1238 (2000). This will
give the defendant an opportunity to consider their options
prior to the commencement of trial, without overly interfering
in the relationship between the defendant and defense counsel. 11
10 If a defendant decides to plead guilty after defense counsel
triggered the colloquy requirement by filing a notice under HRS § 704-
407.5(1), a discussion about the penal-responsibility defense may also be
necessary as part of the plea colloquy in order to ensure the defendant’s
guilty plea was made knowingly, intelligently, and voluntarily.
11 The trial court is free to advise a defendant about the penal-
responsibility defense as soon as practicable to afford a defendant time to
discuss their options with counsel and, if they so choose, to prepare the
defense before trial. Cf. Lewis, 94 Hawai‘i at 297, 12 P.3d at 1238. For
example, in this case, the circuit court could have given an advisement at
the September 2015 hearing, when the court found Glenn fit to proceed and set
a trial date.
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Third, with respect to the content of the advisement,
we adopt the approach recently taken by the New Jersey Supreme
Court:
The court should explain to the defendant the nature
and purpose of the defense. It should generally
describe the evidence relevant to that defense,
including expert opinion that could be used to
support or counter that defense. The court should
inform the defendant of his or her sentencing
exposure in the event of a conviction. It should
describe [] commitment and the other potential
dispositions that are prescribed by [HRS § 704-411]
in the event of an acquittal by reason of insanity.
The court should confirm the defendant’s
understanding of the insanity defense as it may
affect the outcome of the trial, defendant’s risk of
incarceration and the prospect of civil commitment.
Gorthy, 145 A.3d at 157.
At the conclusion of the advisement, the trial court
should make a finding on the record whether the defendant’s
decision to not rely on the penal responsibility defense was
knowing, intelligent, and voluntary.
We emphasize that, as with a Tachibana colloquy, the
court’s only inquiry should be whether the defendant’s decision
to waive lack of penal responsibility as a defense is knowing,
intelligent and voluntary – not whether it is wise. Valid
reasons certainly exist for choosing to reject a viable penal-
responsibility defense, not the least of which is the prospect
of commitment to an institution. See Frendak, 408 A.2d at 376–
77. Therefore, the trial court must respect the decision of a
competent defendant who is represented by counsel. Treece, 547
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A.2d at 1062 (“The decision is one for the defendant to make,
after proper consultation with counsel, just as a competent
defendant must, ultimately, decide the wisdom of self-
representation or of a plea of guilty.”); United States v.
Marble, 940 F.2d 1543, 1547 (D.C. Cir. 1991) (“[A] district
court must allow a competent defendant to accept responsibility
for a crime committed when he may have been suffering from a
mental disease.”). Thus, the colloquy given should be in terms
of the defendant’s rights and available alternatives, and the
potential ramifications of the defendant’s decision. See
Gorthy, 145 A.3d at 157.
Finally, in adopting this colloquy requirement we
exercise this court’s supervisory powers “to adopt [a] new
procedural requirement[] to prevent error in the trial courts.”
State v. Cabagbag, 127 Hawai‘i 302, 315, 277 P.3d 1027, 1040
(2012). Therefore, this rule applies prospectively to cases in
which trial commences after the date of this decision. See
Tachibana, 79 Hawaiʻi at 238, 900 P.2d at 1305. “[I]n all other
cases, post-conviction evidentiary hearings will be required to
resolve claims” that a defendant did not knowingly and
voluntarily waive lack of penal responsibility as a defense.
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Here, as the trial court followed the rules in place
at the time of Glenn’s trial, and as there is nothing in the
current record on appeal indicating that Glenn sought or wanted
to raise a penal-responsibility defense, we do not find that his
due process rights were infringed.
C. A Circuit Court Does Not Have a Duty to Sua Sponte Instruct
the Jury About Lack of Penal Responsibility When There is
Insufficient Evidence Presented at Trial to Support the
Defense
Glenn also argues that the circuit court erred by
failing to sua sponte instruct the jury on the defense of lack
of penal responsibility. 12 He asserts that HRS § 704-408
requires a circuit court to so instruct the jury whenever an
examiner concludes that a defendant lacked penal responsibility.
We disagree. We hold that the court did not have a duty to sua
sponte instruct the jury about lack of penal responsibility
because notwithstanding the examiners’ reports, there was
insufficient evidence presented at trial from which a jury could
conclude that Glenn lacked penal responsibility.
HRS § 704-408 provides:
If the report of the examiners filed pursuant to
[HRS] section 704-404, or the report of examiners of
the defendant’s choice under [HRS] section 704-409,
states that the defendant at the time of the conduct
12 We recognize that this issue is unlikely to be implicated in the
future, since a trial court must respect the decision of a competent
defendant made after a colloquy. However, because we adopt the colloquy
requirement prospectively, this issue may impact cases, like Glenn’s, in
which the trial court did not conduct a colloquy. Accordingly, we choose to
address it.
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alleged was affected by a physical or mental disease,
disorder, or defect that substantially impaired the
defendant’s capacity to appreciate the wrongfulness
of the defendant’s conduct or to conform the
defendant’s conduct to the requirements of law, the
court shall submit the defense of physical or mental
disease, disorder, or defect to the jury or the trier
of fact at the trial of the charge against the
defendant.
(Emphasis added).
Glenn argues that the word “shall” in HRS § 704-408
means that “a pretrial determination of penal irresponsibility
automatically triggers a mandatory trial action by the court to
submit the defense.” Because two of the three examiners who
evaluated him concluded that he lacked penal responsibility at
the time of the offense, he asserts that the circuit court was
obligated to instruct the jury about the defense. However, the
ICA correctly concluded that the circuit court did not have such
a duty because HRS § 704-408 must be read alongside HRS § 704-
402 (2019) 13 and HRS § 701-115 (2019). 14
13 HRS § 704-402 provides in relevant part: “Physical or mental
disease, disorder, or defect excluding responsibility is an affirmative
defense.”
14 HRS § 701-115 provides in relevant part:
(2) No defense may be considered by the trier of
fact unless evidence of the specified fact or facts
has been presented. If such evidence is presented,
then:
. . . .
(b) If the defense is an affirmative defense,
the defendant is entitled to an acquittal if the
trier of fact finds that the evidence, when
considered in light of any contrary prosecution
evidence, proves by a preponderance of the evidence
the specified fact or facts which negative penal
liability.
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“It is a canon of construction that statutes that are
in pari materia may be construed together, so that
inconsistencies in one statute may be resolved by looking at
another statute on the same subject.” State v. Kamana‘o, 118
Hawai‘i 210, 218, 188 P.3d 724, 732 (2008). HRS § 1-16 codifies
this rule, providing “[l]aws in pari materia, or upon the same
subject matter, shall be construed with reference to each other.
What is clear in one statute may be called in aid to explain
what is doubtful in another.” Thus, HRS § 704-408 must be
interpreted in the context of Section 704 and the Hawai‘i Penal
Code as a whole.
As the ICA recognized, HRS § 704-402 establishes that
lack of penal responsibility is an affirmative defense. And HRS
§ 701-115, which governs defenses generally, establishes that
“[n]o defense may be considered by the trier of fact unless
evidence of the specified fact or facts has been presented.”
Indeed, “[t]he defendant claiming lack of penal responsibility
‘has the burden of going forward with the evidence to prove
facts constituting the defense and of proving such facts by a
preponderance of the evidence.’” State v. Uyesugi, 100 Hawai‘i
442, 456, 60 P.3d 843, 857 (2002) (quoting State v. Fukusaku, 85
Hawai‘i 462, 481, 946 P.2d 32, 51 (1997)). Accordingly, there
must be evidence supporting the penal-responsibility defense
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presented during trial before a court is required to instruct
the jury.
Additionally, the legislative history of HRS § 704-408
demonstrates that the legislature never intended to impose a
duty on the court to sua sponte instruct the jury about lack of
penal responsibility. In 1980, the legislature amended HRS
§ 704-408, enacting the language at issue: “[T]he court shall
submit the defense of physical or mental disease, disorder, or
defect to the jury or the trier of fact at the trial of the
charge against the defendant.” (Emphasis added). In doing so,
the legislature’s purpose was “to require that an insanity
defense be submitted to a jury and disallow post-commitment or
post-conditional release motions based upon factual grounds.” 15
Conf. Comm. Rep. No. 72-80, in 1980 House Journal, at 1121.
Prior to the amendment, the “insanity defense [could]
be heard by, and ruled on in the first instance, by the court at
a pre-trial hearing.” Stand. Comm. Rep. 810-80, 1980 House
Journal at 1655. Under that procedure, a court could grant a
judgment of acquittal for lack of penal responsibility before
the case was even presented to a jury. Id. The legislature
decided to eliminate this possibility. As the conference
15 In fact, this was likely the legislature’s response to the
concerns about the insanity defense expressed at the Constitutional
Convention of 1978. Cf. S. Comm. Rep. No. 689-80, in 1980 Senate Journal, at
1335.
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committee report explained, “the validity of an insanity claim
should be subject to community scrutiny that a jury, or even a
judge as a fact-finder at trial, provides.” Conf. Comm. Rep.
No. 72-80, in 1980 House Journal, at 1121. Thus, “shall” in HRS
§ 704-408 does not mean that the court must instruct the jury on
lack of penal responsibility even if the defendant never raises
the defense at trial, but that the court must submit the
instruction to the jury and cannot dismiss a charge pre-trial
for lack of penal responsibility.
Reading HRS § 704-408 in conjunction with HRS § 704-
402 and HRS § 701-115, and in light of its legislative history,
we conclude that HRS § 704-408 does not impose a duty on the
trial court to instruct the jury on lack of penal responsibility
when there is insufficient evidence at trial to support giving
the instruction.
Moreover, as discussed above, significant consequences
result if a defendant is found to lack penal responsibility,
including indeterminate commitment to “an appropriate
institution for custody, care, and treatment.” HRS § 704-
411(1)(a). For that reason, asserting the penal-responsibility
defense is a decision that only the defendant can make.
Accordingly, it is questionable whether it would ever be
appropriate for a court to raise lack of penal responsibility
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over a defendant’s objection. See Jones, 664 P.2d at 1220
(“[B]asic respect for a defendant’s individual freedom requires
us to permit the defendant himself to determine his plea”).
D. Glenn Did Not Present Sufficient Evidence of His Lack of
Penal Responsibility to Require the Circuit Court to
Instruct the Jury About the Defense
Having established that the circuit court does not
have a duty to instruct the jury on lack of penal responsibility
when there is insufficient evidence offered at trial to support
the instruction, we must determine whether there was sufficient
evidence presented in this case. We find that there was not.
None of the examiners who concluded that Glenn lacked
penal responsibility testified at trial, and the parties adduced
no other direct evidence about Glenn’s mental health at the time
of the offense. We recognize that aspects of Glenn’s testimony
were bizarre. For instance, he explained that he was a “master
mason,” that he had a lab at McDonald’s, and that he was
studying “anatomic nuclei.” However, Glenn’s bizarre statements
during trial, without more, would not constitute evidence that
Glenn lacked penal responsibility “as a result of physical or
mental disease, disorder, or defect” at the time of the offense,
and so it would have been futile for the jury to consider the
defense. Thus, the circuit court did not plainly err in failing
to instruct the jury about lack of penal responsibility.
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V. CONCLUSION
In sum, we hold that the Hawaiʻi Constitution protects
defendants from being punished for committing a crime if they
lack substantial capacity to appreciate the wrongfulness of
their actions or to conform their conduct to the requirements of
the law; thus, lack of penal responsibility as a defense must be
available to defendants as a matter of due process, and the
decision to assert the defense is for the defendant alone. For
this reason, we hold prospectively that if the trial court
receives notice that the defendant’s penal responsibility is an
issue in the case, the court must conduct a colloquy with a
defendant to ensure that a waiver of the defense is intelligent,
knowing, and voluntary. Finally, we hold that a trial court
does not have a duty to sua sponte instruct a jury on lack of
penal responsibility when there is insufficient evidence in the
record to warrant such an instruction.
However, because we adopt the colloquy requirement
prospectively, the trial court followed the rules in place at
the time of Glenn’s conviction, and there is no evidence in the
record that Glenn’s decision not to assert the defense was not a
knowing, intelligent, or voluntary decision. And, as there was
insufficient evidence presented at trial to require an
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instruction on lack of penal responsibility, the trial court had
no duty to sua sponte instruct the jury.
Accordingly, we affirm Glenn’s conviction and the
March 29, 2019 judgment of the ICA.
Emmanuel G. Guerrero /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Sonja P. McCullen
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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