by Douglas Ankney

The Supreme Court of Hawai’i announced that, going forward, trial courts have a duty to obtain a knowing and voluntary waiver of the penal-responsibility defense.

In June 2014, Michael Glenn was charged with Terroristic Threatening in the First Degree. Upon motion of defense counsel, the circuit court appointed three doctors to evaluate Glenn to determine his fitness to proceed and his penal responsibility. Two of the three doctors found him unfit to proceed and opined that at the time of the offense his mental illness prevented him from being penally responsible. (In Hawai’i, lack of penal responsibility means a person either lacks the capacity to appreciate the wrongfulness of the person’s conduct or to conform the person’s conduct to the requirements of law. Hawai’i Revised Statutes (“HRS”) § 704-400.)

At a subsequent fitness hearing in October 2014, defense counsel informed the circuit court that Glenn himself did not believe he had a mental illness, and he disagreed with the conclusion that he was unfit to proceed. Glenn also stated he did not want to assert a defense based on lack of penal responsibility. Nevertheless, the circuit court found him unfit to proceed and committed Glenn to the Hawai’i State Hospital (“HSH”). The doctors’ subsequent reevaluations were substantially similar. But in September 2015, HSH informed the circuit court that Glenn had the capacity to assist his attorney, knew his charge, the available pleas and possible penalties, and the roles of various courtroom personnel. At a subsequent fitness hearing, on Glenn’s request, the circuit court found him fit and set a trial date.

At Glenn’s trial, he presented a defense of self-defense. None of the doctors who evaluated him testified. The defense neither proposed an instruction on lack of penal responsibility nor objected to its omission. The jury found him guilty, and he was sentenced to five years in prison.

On appeal to the Intermediate Court of Appeals (“ICA”), Glenn argued, inter alia, that the circuit court erred in its failure to either secure from him a waiver of the insanity defense or to sua sponte require the jury to consider it. The ICA affirmed the judgment, explaining that although HRS § 704-408 provides that if a mental health examiner’s report states the defendant was affected by a mental disease then the court shall submit the defense of mental disease to the jury; the statute had to be interpreted in pari materia (rule of statutory construction that dictates laws on the same subject matter be construed with reference to each other) with HRS §§ 704-402 and 701-115. When read in pari materia, § 704-408 requires the trial court to obtain a waiver or instruct the jury on the insanity defense only when evidence of the mental disease was presented to the jury. Because no evidence supporting a penal-responsibility defense was presented to Glenn’s jury, the circuit court was neither required to obtain a waiver from Glenn nor sua sponte instruct the jury to consider whether Glenn lacked penal responsibility.

The Hawai’i Supreme Court granted Glenn’s application for writ of certiorari.

The Court explained that a defendant has a fundamental right under the Hawai’i Constitution to present a complete defense, State v. Matsumoto, 452 P.3d 310 (Haw. 2019), and this right includes the right to assert lack of penal responsibility as a defense. The Court has long recognized the vital importance of ensuring defendants know and understand their rights before waiving them. Tachibana v. State, 900 P.2d 1293 (Haw. 1995). A colloquy between the trial court and the defendant is the best way to ensure that a defendant’s rights are protected. State v. Murray, 169 P.3d 955 (Haw. 2007). For that reason, the Hawai’i Supreme Court requires 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 opinion for listing of rights and citations in support.) The Court concluded and announced it would require a colloquy with respect to the right to present a penal-responsibility defense.

The colloquy is required if the defendant files notice that the defendant intends to rely on the defense of physical or mental disease, disorder, or defect excluding penal responsibility or if there is reason to believe this will become an issue in the case. HRS § 704-407.5(1). The colloquy is to take place no later than the court’s pretrial advisement that the defendant has a right to testify. Tachibana.

As to the content of the advisement, the Court adopted the approach taken in State v. Gorthy, 145 A.3d 146 (N.J. 2016), i.e., the trial court should explain the nature and purpose of the defense, describe the evidence used to support or counter the defense, explain the sentencing exposure upon conviction, and explain the potential dispositions if acquitted by reason of insanity.

At the conclusion of the advisement, the trial court should make a finding on the record whether the defendant’s decision not to rely on the penal responsibility defense was knowing, intelligent, and voluntary. The court must accept the defendant’s decision. Gorthy. Because the Supreme Court adopted the colloquy requirement by exercising its supervisory powers to adopt new procedural requirements to prevent error in the trial courts, the rule applies only prospectively to cases commencing after the date of the decision, viz., June 30, 2020. Tachibana.

Accordingly, the decision did not apply to Glenn, so the Court affirmed the judgment of the ICA. See:  State v. Glenn, 2020 Haw. LEXIS 199 (2020). 

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