*1
STATE BAXLEY, Defendant- Gavin
James
Appellant.
No.
Supreme of Hawai'i. Court
July Schoettle, briefs, Honolu- R.
Walter lu, formerly defendant-appellant. for Honolulu, Kim, counsel of record Tae Chin defendant-appellant. Fudo, Attorney, Prosecuting Deputy Donn briefs, plaintiff-appellee. MOON, C.J., LEVINSON JJ„ ALM, NAKAYAMA, Judge Circuit Vacancy, Assigned by Reason of ACOBA, J., Dissenting Part and Concurring in Part. *2 NAKAYAMA,
Opinion actions, of the Court would J. she have suffered substantial bodily injury death. We hold that Defendant-Appellant Baxley James Gavin this court lacks over this appeals acquittal, from his the Honorable and, therefore, Baxley’s appeal. dismiss Q.F. Wong presiding, Frances attempted degree, assault in the second Hawai'i Revised (HRS) (1993)1 §§ Statutes 705-500 and 707- I. BACKGROUND (1993)2 (Count 711(1)(d) I), terroristic threat ening 11, 1999, degree, § the first January Baxley 707- On 716(1)(d) (1993)3 (Count II), and kidnapping, attempted with assault in degree, the second 707-720(1)(e) (1993)4 (Count III), threatening terroristic degree, the first ground penal of lack responsibility kidnapping allegedly trapping and (1993).5 pursuant § Baxley threatening to kill mutilate and Michelle (1) argues that the circuit court: erred Marciel, employee, a 7-Eleven on December III, acquitting him of kidnapping, Count on 26,1998. disease, disorder, ground of mental or January Baxley On filed motion excluding penal responsibility defect when giving relying notice that he would be on the there was prove insufficient disease, disorder, defense mental or defect kidnapping instance; elements of in the first [hereinafter, excluding penal responsibility (2) by refusing erred to admit evidence re (1993 “insanity”] pursuant § to HRS 704-404 garding possible existence surveil court, Supp.1999).6 upon & (3) Baxley’s incident; videotape lance plainly motion, ordered a mental by relying erred evaluation to deter- records materials gathered by Baxley proceed mine whether the Adult Probation was fit to Division (4) regarding examination; his mental trial. Pursuant to the court by finding erred appointed but for the qualified persons victim’s three to examine (1) provides: 1. HRS 705-500 person A commits the offense of terroristic (1) threatening degree person person in the guilty A first if the attempt of an to commit threatening: commits terroristic person: a crime if the (a) Intentionally engages in conduct which (d) dangerous would With the use of a constitute the crime if instrument. the attendant person circumstances were as the believes be; 707-720(l)(e) them (b) provides: 4. HRS which, Intentionally engages in conduct person A kidnap- commits the offense of person under the circumstances as the be- ping person intentionally knowingly if the be, lieves them to constitutes a substantial person restrains another with intent to: step in a course of conduct intended to cul- person's minate commission of the (e) person person[.] Terrorize that or a third crime. causing particular When result is an ele- provides part: 5. HRS 704-400 in relevant crime, person guilty ment of the of an if, attempt acting to commit the crime with the person responsible, A is not under this required liability state of mind to establish with Code, for conduct if at the time of the conduct respect speci- to the attendant circumstances disease, physical as a result of der, or mental disor- crime, person fied in the definition of die person defect lacks substantial ca- intentionally engages in conduct which is a pacity appreciate wrongfulness either to step substantial in a course of conduct intend- person’s per- conduct or to conform the ed or known to cause such result. requirements son’s conduct to the law. (3) Conduct shall not be considered a substan- step strongly tial under this section it unless provides part: 6. HRS 704-404 in relevant corroborative of the defendant’s criminal in- tent. (1) Whenever the defendant has filed a notice rely physical of intention to defense 1(1)(d) provides: 2. HRS 707-71 disease, disorder, or mental or defect exclud- person A commits the offense of assault ing responsibility, or there is a reason to doubt degree the second if: proceed, the defendant’s fitness to or reason to disease, physical believe that the or mental (d) person intentionally knowingly disorder, or will defect of the defendant or has bodily injury person causes to another with a become issue in the dangerous instrument!.] immediately suspend procеedings all further 707-716(1)(d) provides: prosecution. 3. HRS approximately Baxleys report All theft. At mental condition. three medical lice Baxley proceed p.m., police fit to 10:00 officei's returned to the examiners found However, they Baxley Baxley employees if also found that store asked the trial. Baxley they taking man history disorder and recom- was the observed had of mental Baxley identifying Baxley, positively court commit After *3 mended the beer. beer, Baxley pay Hospital police for officers made Hawaii treatment. On 24, 1999, him Baxley Baxley fit out of the store and told May the court found was escorted evening, not to that same proceed with trial. return. Later Baxley returned. Marciel was behind the 2, 1999, Baxley filed a motion to On June register counter at the cash when she ob- attempted kidnap- and dismiss the assault Baxley entering Marciel served the store. ping charges, premised on the contention immediately Baxley called entered the support that the evidence was insufficient store, directly walked toward Marciel and Baxley charges. asserted that a surveil- the stated, my fucking tape player.” “Give me premises, was on lance camera located the Baxley that Marciel demanded return police neglected to and the obtain the video- tapes tape player. and his Mаrciel did tape. sought to that He introduce evidence Baxley talking what know was about and told poten- tape existed and that it contained the knife, Baxley Baxley eventually pulled a so. evidence, tially exculpatory which would blade, pocket with a out of his and three-inch Baxley may that not have made demonstrate stated, you fucking “What would do if I killed knife, “jabbing” thereby motions with the you?” Baxley up proceeded to climb on the attempted negating one of the elements counter, “jabbed” the in Marciel’s di- knife motion, hearing assault. At the the times, several and to kill rection threatened manager 7-Eleven testified the surveil- eventually her. Marciel crouched behind the working ap- had not for lance camera been counter, counter, out from the crawled proximately year prior to and on the date safety storage and headed to the the back Moreover, involving Baxley. of the incident door, keep room where she could shut manager was the stated the camera out, Baxley and still have limited view of key open in a box and located secured Baxley Baxley approached and store. missing had for an the box been indetermi- Baxley the door and Marciel could hear that, Baxley argued regard nate time. threatening to mutilate her if called she kidnapping charge, there was no evi- police. attempt escape Marciel did out com- dence that he restrained Marciel or the real’ service door because the area be- manded that she enter and remain hind was walls. the store enclosed three storage back room. No witnesses were first, Baxley If arrived at the back Marciel and no was called evidence adduced trapped would with no have been outside July hearing support argument. On escape route. 30, 1999, Baxley’s the court denied motion to testimony and ruled that it would not disturb court also from dismiss heard Olaf Gitter, Ph.D., hearing preliminary finding probable appointed by who was Baxley Baxley. opined cause to show committed at- court to examine Dr. Gitter existed assault, Baxley tempted threatening, “cognitively volitionally and and terroristic was kidnapping. substantially impaired The court also found that there at the time of the existed, videotape diagnosed that a Dr. Bax- was no evidence offenses.” Gitter disorder, videotape police ley suffering schizophrenic no for thus there was dependence, recover. alcohol and adverse reaction to Baxley medication. He recommended trial, jury-waived At evi- hospital committed to the state treat- dence adduced. On December ment. store, Baxley intо walked the 7-Eleven beer, picked prosecution’s Bax- up a 40-ounce bottle of At the end of the ignoring ley judgment acquittal for a walked out of the store the assistant moved Baxley manager’s request pay ground of insufficient evidence for the at- manager po- kidnapping charges. tempted beer. The assistant called the assault and Baxley’s regarding possible denied motion and to admit subse- ex- quently acquitted Baxley videotape charges of all istence surveillance incident, ground insanity pursuant relying on records materials gathered by Probation Judgment the Adult Division was entered on Au- examination, regarding his mental gust Baxley timely appealed. 1999 and actions, but for victim’s she bodily would injury have suffered substantial II. STANDARD OF REVIEW death. A. Jurisdiction Baxley Because would remain committed “The existence custody Director of Health question of law that we review de novo under acquittals based on the circuit court’s as to *4 right/wrong Rapp, II, standard.” Lester v. I supported by Counts which were 238, 241, 502, (1997) 85 Hawai'i P.2d 942 505 substantial that would evidence have war- (quoting Yoshina, Bronster State ex. rel. v. Baxley’s ranted convictions but affirma- (1997)). 179, 183, 84 Hawai'i P.2d 320 932 tive insanity, Baxley defense of because
has challenged sufficiency the evi- Sufficiency supporting appeal, B. dence I and II on of the evidence Counts aggrieved by he is not the circuit court’s [Ejvidence adduced the triаl and, therefore, acquittal III, of Count this strong court must considered in be jurisdiction court lacks address the suffi- light est when the ciency supporting Count III. evidence appellate passes legal court suffi Moreover, jurisdiction this court lacks over ciency support of such evidence a the consideration of Adult Probation Di- conviction; applies the same standard statutory vision is no records because there judge
whether the ease before a provision dangerous- the issue of allows jury. appeal is The test on not whether appealed directly ness to be to this court guilt beyond a established reasonable acquittal. an doubt, but there was whether substantial support evidence to the conclusion of the Baxley aggrieved, A. Because is not this trier of fact. jurisdiction court lacks 224, 230, Young, State v. 93 Hawai'i 999 Baxley’s appeal review from an ac- (citations (2000) omitted) 237 quittal by insanity. reason of (brackets original). Appellate jurisdiction “in a criminal Valdivia, 465, 471, State v. Hawai'i 24 95 only purely statutory case is and exists when (2001). We have stated that given by statutory some constitutional “every substantial as to material Kalani, provision.” 87 Hawai'i State v. element of the offense is credible (1998) (quoting 953 P.2d State quality evidence which sufficient is of 462, 490, Fukusaku, v. 85 Hawai'i 946 P.2d probative person a value to enable of reason- Wells, (quоting v. 78 Ha support able caution to conclusion.” State 373, 376, 70, 73, wai'i 894 P.2d reconsidera 87, 99, Jenkins, 93 Hawai'i 997 P.2d denied, tion 896 P.2d Hawai'i (2000). (1995))). (1993)7 provides § 641-11 statutory upon may basis III. DISCUSSION judgment from a of the circuit court. Baxley argues Particularly circuit significant that the court this statute is erred III, by acquitting kidnap- requirement “ag him of Count the defendant be ping, ground insanity, grieved.” Baxley aggrieved party an refusing is not provides: 7. HRS 641-11 late Procedure. The sentence judgment. ap- criminal All case shall be Any party aggrieved by deeming oneself by peals, ap- judgment whether heard intermediate of a circuit court a criminal mat- court, ter, court, pellate supreme may supreme subject court or the shall be supreme chapter manner and filed with the clerk of the court and 602 in the within the provided by Appel- subject filing time shall fee. Rules of to one 351, 353-54, 884 P.2d adversely im acquittal does not because (1994). short, review, In without such rights. pact his jeopardy right against double defendant’s párty has been defined aggrieved An protected. could not be who by in a civil context as “one this court prejudiced by appealable or affected Baxley would in the custo- Because remain Hotel, Inc. v. Kinkai Waikiki Malia der.” pursuant to his dy of Director of Health 370, 393, Ltd., Haw. 862 P.2d Properties, II, acquittals I and has as to Counts he failed (quoting Montalvo prejudiced has been to demonstrate he 1321, 1326 Chang, Haw. аcquittal of III. This virtue of his Count (1982)). family court the context court, therefore, jurisdiction to is without decision, ag court has stated that Baxley’s arguments. address the substance of grieved party is legal right is an act whose invaded [o]ne lacks over the B. This court of, pecuniary interest complained or whose of the Adult Probation consideration judg- directly affected ^decree post-ac- Division records because right property ment. One whose requested quittal hearing if a must be “ag- or divested. The word be established disputes criminal defendant grievance, grieved” to a substantial refers present dangerousness. *5 personal property a denial of some Baxley argues trial court that the re upon party a right, imposition, or the coun records unavailable to defense viewed obligation. burden or making sel its commitment determination. Town, 66 Haw. ex rel. Marsland v. State compiled by that records He asserts (quoting n. 30 n. 3 and for Adult Probation Division reviewed (5th ed.1979)); Dictionary 60 see Black’s Law determining purposes of mental status at the Enters., Utsunomiya Inc. v. Moomu also S. cannot time the crimes were committed be Club, 480, 494, Country 75 Haw. 866 P.2d ku with the determination of used connection (defining aggrieved par “[a]n dangerousness purposes of for commitment. prejudiced ty one who is affected [as] Baxley request post-acquittal a failed order”), аppealable reconsideration de hearing dangerous address the issue nied, 75 Haw. 871 P.2d separate proceeding in a from the trial ness (1994); Resorts, v. Ak Inter-Island Ltd. Baxley proceedings. did not follow Because ahane, 93, 99, 44 Haw. 352 P.2d procedural mechanisms forth in HRS set may (noting that an not be 704-411(a) (1993), cannot this as we review judg by party aggrieved taken pect trial court’s decision. from). appealed ment provides § to an a mechanism A also be entitled defendant penal through In which an individual can avoid other limited conditions. under Minn, upon finding responsibility based of mental State disease, disorder, (1995), prosecution argued or defect. See HRS 704-402(1) § § 704-400. HRS states that this court lacked under HRS disease, disorder, “[p]hysical failed to ob or mental 641-11 because the defendant excluding responsibility bringing an is an affirma permission tain before interlocu defect 704-402(1); also tory explained that be tive defense.” HRS see appeal. This court issue, Young, 93 Hawai'i jeopardy was at the court State v. cause .double jurisdiction. (recognizing that 704- Id. The Minn had defense). A in which 400 is an affirmative defendant upon an earlier case we court relied who raises this defense is entitled three expressly adopted the rule that we would court-appointed required who affecting a criminal examiners are appeals defen review “upon physical jeopardy report and rights to examine dant’s under the double important rights condition of the defendant.” HRS it “involve[d] clause because 704-404(2). procedure This was the fol irreparably lost if review had which would be Baranco, trial court. Each of the three judgment.” lowed await final Baxley trial, examiners concluded that “signif was received Dr. impaired icantly ability appreciate in his stated: Gitter wrongfulness of (cognitive his behavior my opinion, presents capacity) and to conform his behavior to the danger person moderate risk of (volitional requirements of law capacity)-”8 opinion others and to himself. This The trial court acquittal issued verdict of offenses, based on instant his based, part, testimony Baxley’s history becoming documented assaultive Thus, expert, Baxley own Dr. prop Gitter. alcohol, when influence his erly presented raised and de affirmative fense, history dependence findings documented alcohol the court’s fact conclusions of non-compliance law reflect its history psy- determination and his Baxley penally responsible was not treatment, outpatient history chiatric his his conduct. psychotic episodes intermittent acute history hanging attempt of one two legal acquittal
The effect is to find years ago responsible perceived suicidality and his defendant not conduсt charged. 704-411. In the event when first admitted to OCCC. acquittal, such an the court shall enter one of trial responsibilities The court fulfilled its Implicated three orders.9 in this case is under HRS 704-411. 704-411(a), which the court “shall defendant to be committed to the proper by party course of who action custody of placed the director of health disagrees with a court’s of dangerous- appropriate in an institution ... if the court post-acquittal hearing is a ness trial presents finds that the defendant a risk of Commentary court. to HRS danger to oneself or others the defen- Commentary expressly states subject dant not a proper for conditional either the “[w]here the de- *6 704-411(a). release!.]” Although ev- trial fense believes the evidence the acquittal predicated an supporting idence on (including stipulations) dispositive is not of penal irresponsibility may be to “relevant present danger, the issue of each is free to probative present and of dangerousness, they separate post-acquittal hearing for a move on finding present are not for a of substitutes” statutory provi- that issue.” no Id. There is dangerousness. Commentary to HRS pursuant sion to which a defendant (1993). Thus, § 704-411 it is incumbent acquittal appeal may danger- an issue of the upon the court pres- to between differentiate directly to ousness this court. dangerousness ent and the state the at the time of the events lead- Baxley argues circuit court erred ing underlying charges. The Com- relying improperly upon the records mentary points to HRS out determining Adult Probation Division although the HRS 704-404 examiners are present dangerousness. remedy Baxley primarily focused the conduct related finding and a seeks vacation the court’s underlying charges, “they may be able judge. to an remand untainted Because we pres- indicate the which risks the defendant case, appellate jurisdiction lack to hear this Commentary ents.” to HRS we not comment on whether court upon, court The evidence the relied com- Baxley proper erred not. The route Baxley mitting to the of the care Director hearing Health, post-acquittal a testimony Baxley’s to seek determine included expert report, present dangerousness. his witness. the issue of written Greene, three examiners were James Tom 9. The Aree -orders are: commitment to the cus Roth, Ph.D., M.D., Gitter, tody upon finding the director health David S. Olaf K. and 1(1)(a); present dangerousness, 704-41 Baxley testify regarding Dr. Ph.D. called Gitter to upon finding defen conditional release that the Baxley’s incapacity appreciate substantial Ae care, given proper supervision can be dant and wrongfulness of his conduct and his substantial )(b); 704-411(1 discharge and from custo incapаcity to conform conduct to the law. dy upon finding present of the absence of 1(1)(c). dangerousness, §HRS 704-41 “Yes, said, I top up on the counter” and self
IV. CONCLUSION you.” going I’m to kill think this foregoing, we hold that Based and, behind counter Marciel crouched jurisdiction appeal. Baxley’s lacks over “[ajlmost motion,” crawling to a headed therefore, We, this for want of dismiss utility room. Marciel door led to jurisdiction. yelled to that Defendant had knife. Taele door, it shut. behind the Marciel held Once J., ACOBA, Dissenting in Part Opinion utility ran into the Marciel related she Concurring in Part. Defendant and he escape room to disagree I that this court lacks into the room. ordered her never following grounds: this case on to review door, Through a Marciel window claims of Jurisdiction exists decide counter see walk around the could Baxley Defendant-Appellant James Gavin toward door. Defendant shook the (Defendant) Revised Statutes obscenities, Marciel, knife screamed (HRS) 602-5(7) promotion ..., police “if [she] called the threatened (2) Plaintiff-Appellee of Ha- justice; kill back to store and he would come (the prosecution) prove must each ele- wai'i door for had been behind the [her].” Marciel beyond crime a reasonable ment thirty forty seconds before Defendant acquitted if doubt even the defendant is shook knife her. insanity; in the of such аbsence reason minute after Taele exited the restroom one applies proof presumption of innocence hearing yell to her that Defendant Marciel and, thus, acquittal in case not moot this does so, a knife. she did Defendant was had As conviction; underlying appeal of an through leaving Taele the store. looked dangerousness at trial door, utility room but did not window the resulting custody committal anyone. see subject pursu- director health is 602-5(7) to avoid due ant to HRS II. Exercising jurisdiction in
process violations. affirming I would concur A. grounds judgment but forth here- set in. January Defendant was On *7 Attempted with in the Sec Assault Degree, §§ and ond
I. 707-711(1)(d) (1993) (Count I); Terroristic Mar- relevant facts follow. Michelle Threatening Degree, First in the 27, 1998, that, on she ciel testified December (Count 707-716(1)(d) (1993) II); and Kid working at a store was “7-Eleven” 707-720(1)(e) (1993) (Count napping, O'ahu, on when entered Ka'a'awa Defendant III). 23, 1999, pursuant January to HRS On time, At Mar- approximately 2:00 a.m. that (1993 Supp.1999), no § 704-404 & Defendant Taele, co-worker, inwas ciel’s Simata rely prosecution of his to tified the intent her, approached When Defendant restroom. irresponsibility and the defense of mental standing register was behind the Marciel for a examination. moved said, my f_g “Give me counter. Defendant objection prosecution, from the Without responded tape player.” Marciel that she (the of the First Cirсuit the Circuit Court talking know he was about. did not what court) In ac- granted motion. 704-404(2) (Supp. pocket, Pulling a out of his cordance with HRS buck knife 1999), asked, appointed panel I you do if three “What would Defendant Marciel, Gitter, experts, you[?]” qualified two to Drs. Olaf James f_g who was killed Greene, Roth, time, David away back- Tom and S. examine feet at the walked three concluded, Marciel, experts All three According to Defendant Defendant. ward. 704-404(4)(c) (Supp. pursuant as he to HRS jabbing motion the knife made 1999), trial, him- that was fit to stand then “boosted Defendant spoke to her. Defendant 704-404(4)(d) opined, pursuant but videotape to HRS that there no evidence of the 27,1998 (Supp.1999), that at alleged the time of the December incident existed.” offense, he was to appreciate unable
wrongfulness of his behavior and conform III. requirements his behavior to the law. The prosecution dispute reports. not did A. proceed court found fit Defendant and set the matter for trial. right jury Defendant trial. waived his July 20, trial, beginning On at the B. sought call Defendant to Waiolama Yo- trial,
Prior to Defendant moved to dismiss kotake as witnesses ease-in-chief grounds I III Counts “on the [sic] that testify regarding possible existence police officers, investigating acting in bad videotape. Judge pre- Wong, Frances who faith, failed to recover surveillance video- over the trial and sided some of the motions tape alleged of the offense[J” Defendant pertinent appeal, pointed to this out that a subpoena issued for the “Judge actually Town made a videotape. tapes not did exist the relevant times.” Judge presided Michael Town over the informing After wit- motion to dismiss. At the June testify nesses would the same information hearing, prosecution explained July elicited at the June isn’t videotape “there incident[.]” healings, the defense maintained Waiolama, Emily manager a branch videotapes depending possible on what the 7-Eleven, Ka‘a‘awa 7-Elev- testified shown, may may have not be not en store had used the video surveillance assault, guilty attempted very' very long “for a camera time” and that any attempt have “made to restrain the com- running “possi- the camera had been plaining witness and the] therefore commit! bly year[.]” Yokotake, Blake human re- Wong con- kidnapping.” Judge offense Hawai'i, manager sources for 7-Eleven testi- basically cluded “that this is a [Hawai'i Rules July hearing fied at the 1999 continued (HRPP) of Penal Rule 16 issue ] Procedure company uses video surveillance Town Judge was dealt with at the protocol, cameras as a matter of but that he pre-trial stage!,]” prohibited motions De- did not know whether the was work- camei’a calling fendant from the two witnesses ing morning оf the incident. testify. I, assault,
Regarding Count defense coun- argued police sel failure B. fan’,” tape look for a surveillance was “not considering “potentially exculpatory” na- trial, July In the middle of *8 light tape, complain- of the and in of the ture subpoenaed of rec- Defendant the custodian ing allegedly contradictory witness’s state- ap- of Adult Division ords Probation regarding attempted ments assault.1 following morning “bring pear court the counsel also clarified that be- Defense he compiled ... all documents and records III, kidnapping, lieved Count should be dis- connection with the mental health evaluation “any missed because there was not evidence deputy attorney general of Defendant.” A ]” restraint!. quash subpoena. appeared and moved to dismiss,
Judge sought Town denied the motion Defense counsel indicated that he any explaining just dur- that “there isn’t evidence records order make them available SO, Gitter, tape July testimony that there all.” In his Dr. had ing was who denying original 2000 order motion to Defendant’s been member evaluation III, I Judge panel, dismiss Counts Town en- had relied on and who the records report. “that author tered written the effect 1. See note 10. infra quash 5.The is ex- granted the motion to Court The court finds Defendant despite having peri- tremely dangerous, pail late of the
based issuance order, lucidity, it apparent subpoena. In the court’s written ods calmness “[sjeetion despite of overt periodic cessation [HRS] ruled that psychotic symptoms. probation records are provides adult confidential, only divulged and can De- by forth statute.
the circumstances set has 7. The Count finds Defendant was that he failed to demonstrate fendant threatening pattern established a statutorily access entitled to the records.” family com- members and others in the
munity. pre- C. difficulty no 8. The Count finds dicting dangerousness became prosecution’s De- At the close by very acts committed Defendant III, Counts I and fendant moved to dismiss comprise charges. the instant arguing insufficient there was 9. The Court finds that this was a water- support charge. The denied the either court any shed event which would allow court motion. ability to find is ex- Defendant findings fact and entered community. tremely dangerous to the law, indicating it found conclusions 10. The finds that Court Defendant was guilty of mental Defendant not reason actively psychotic night of this defect, disease, disorder, pursuant to HRS extremely inebriated. Never- event (1993), and that Defen- § 704^100 ordered theless, perform was able to Hos- to the Hawai'i dant be committed very required acts which intentional pital. findings and conclusions state planning. some of volition and amount part, as follows: 11. The finds that were not Court it if would, actions, she Viсtim’s have suf- FINDINGS OF FACT bodily fered, injury substantial death a result behav- Defendant’s 704-400(1) and 1. Pursuant to Sections ior. de- the Court H.R.S. 701-4.01 finds prov- [sic] has met its burden of fendant by a ing preponderance the evidence OF LAW CONCLUSIONS offenses, that at the time Defen- substantially impaired voli- dant was tionally cognitively as a result of DEFENDANT AC- ACCORDINGLY IS (schizophrenia) and his mental illness QUITTED, AAS RESULT PHYSI- OF dependency. alcohol DISEASE, OR MENTAL DISOR- CAL DEFECT,
DER OR TO PURSUANT AND COM- SECTION H.R.S. that a 3. The Court finds careful review THE THE MITTED TO DIRECTOR OF of the record does show that Defendant DEPARTMENT OF HEALTH FOR illness, which underlying has an PLACEMENT INTO THE HAWAI'I not, itself, caused STATE HOSPITAL. illegal sub- dependency on alcohol or an stance. (Emphases not enter The court did *9 any findings proof regarding conclusions or finds, therefore, 4. The Court that Defen- charged. August of the crimes The 1999 acquitted the mental dant is on basis of stated, Judgment form of the court inter disease, disorder, pursuant to or defect alia, as follows: 704-400, Stat- Section Hawai'i Revised by custody having acquitted utes and to The Defendant is committed the been of offense(s) charged ... on Department the the of the Director of of disease, ground physical or placement the Hawaii the of mental Health at for excluding x-esponsibility, or Hospital. disorder defect State 139 (1993), § having reports and the court submit- 641-11 on read case under HRS as relied “[wjhere Defendant, because, pursuant by ted to 704-404 and HRS Section a Defendant having by heard the medical at the acquitted judge’s ruling, repre- the hearing favor, or trial on the date indicated in sents a the resolution of above. factual of elements the offense.” (Emphasis original.) pres- court finds that the Defendant danger a risk of ents to himseh/herself others; person property of V. subject that Defendant proper is not a for A.
conditional release. ORDERED, IT IS HEREBY AD- Initially, by it prosecution, as raised AND JUDGED DECREED Defen- jurisdiction must be determined whether ex- acquitted ground dant case points appeal. ists to review Defendant’s on physical disease, of disorder or jurisdictional by Generally, for bases review excluding responsibility. defect this court are set forth in our In statutes. Kealaiki, 95 Hawai’i P.3d ORDERED, IT IS AD- FURTHER (2001), jur- enumerated several for we bases that, AND pursu- JUDGED DECREED judgment, isdiction circuit court from stat- 704-411(l)(a), ant HRS Section Defen- that, ing may criminal “a in a defendant hereby custody dant is committed to the appeal judgment from the circuit placed (1) the Director Health in an court,” to be pursuant at P.3d at id. appropriate custody, 641-11, (2) instiUdion care interlocutory “from an HRS ... and treatment. order[,]” 591-92, pursu- P.3d at id. at (3) 641-17, by ant to HRS virtue of (Emphases 316-17, doctrine, see collateral order id. at IV. (4) 595-96, by applying P.3d at for a writ prohibition (1) or mandamus under 602- HRS on Defendant contends 5(4), see id. at P.3d at prosecution failed establish sufficient evi- requesting superviso- III; exercise this court’s kidnapping, “[t]he dence Count 602-4, ry powers id. pursuant see erroneously trial court admit refused to rele- at at 596.2 pertaining possible vant evidence exis- to the videotape of a as tence of the incident” (1993) provides part assault, I, attempted kidnapping; Count “[a]ny deeming aggrieved party oneself erroneously probation court on relied judgment circuit court in a criminal in records that Defendant “ex- matter, may appeal supreme court[.]” tremely dangerous”; and court's find- added.) “Judgment” (Emphasis is defined actions, ing but for Marciel’s she would court “[t]he HRS 641-11 sentence injury have suffered substantial death Thus, by case[.]” a criminal the terms supported by evidence. sufficient 641-11, appealable of the action is the con- asserts that this court circuit court sentence. As we Kealaiki, jurisdiction does have the instant firmed in “the sentence of the court hear Kealaiki, (DANC) plea, deferring contest ac- defendant had entered condi- tance of no 2. (a)(2), plea under HRPP ceptance plea. tional Rule We held that this court defendant, approval of the trial allows cor- to decide the lacked prosecution, and consent of the to enter a denying the the trial court’s order rectness of contendere, plea guilty conditional nolo suppress under the condi- defendant's motion defendant, reserving right had, plea when tional the trial court judgmеnt, to seek review of the adverse order, plea acceptance die deferred DANC any specified pretrial determination of motion. 311-12, 315, plea. 22 P.3d at See id. See 95 Hawai'i at at 591. If the circumstances, "grounds re- 594. Under prevails appeal, he or she inapplicable either [were] view or subversive plea. id. at withdraw conditional See purposes plea served a deferred or condi- However, the trial court Kealaiki plea Id. tional P.3d at order.” *10 granted accep- had also deferred 641-17, jurisdiction § judgment in a ease is the from which 32. Like under HRS criminal authorized[,]” appealed from must interlocu appeal an is and where the order be “[tjhere ..., judgment tory. supra, As no conviction and sentence noted [is] final, and, acquittal accordingly, § appeal can be no under HRS 641- there 95 Hawai'i 591 collateral order doctrine is unavailable to De 11[.]” (internal jurisdiction. quotation marks and citations omit- fendant as basis of ted). Accordingly, inasmuch as Defendant appellate specified In addition to review acquittal, for appeals judgment from 641, jurisdiction may chapter be avail- HRS “sentence,” no can be no which there is there chapter 602. Pursuant to able under HRS jurisdiction § under HRS 641-11. 602-5(4) (1993), jurisdiction original § HRS (1993)3 prohibition § 641-17 allows for lies this court to issue writs of
HRS
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court
DANC
of writ mandamus
permission
appeal.
prohibition,
such an
Inas-
where the
did
to take
judgment
acquittal
right
appeal
granting
much as Defendant’s
not have the
final,
641-13,
apply
plea
ultimately
and Defendant did not
for an
under HRS
issue).
jurisdic-
.interlocutory appeal,
determining
a writ
basis
such
will
inapplicable.
tion is
Oshiro,
Although,
prosecution in
like the
Similarly,
juris
preclusion
cannot invoke
641-11
review under HRS
doctrine,
seemingly
diction under the collateral order
renders Defendant without “other
exception
judgment
adequately
wrong
final
another
to the
re means to
redress the
or to
aetion[,]”
quirement
requested
Haw. at
See State
obtain the
Baranco,
442-43,
570-71,
884 P.2d
746 P.2d at
Defendant does
(1994).
allege
beyond
“[U]nder
the collateral order
the court acted
its
jurisdiction,
exception,
interlocutory
appeal-
required
prohi-
an
in a
as would be
(1) fully disposes
question
application,4
request
if it:
bition
trial
able
issue;
perform
duty
completely
resolves an issue
collat
a ministerial
owed to
case;
Defendant,
in
or demonstrate a “clear and un-
eral
the merits
necessary
important rights
disputed right
which would
ir
in a
volves
relief’ as
reparably
application,5
request
if
lost
review had to await a final mandamus
relief for
602-5(4).6
judgment.”
pursuant
Id. at
141 602-5(4) eordingly, connection, jurisdiction § afford a In HRS does not to decide jurisdiction present appeal. basis for in the may appropriately Defendant’s claims rest on 602-5(7). 602-5(7) provides HRS HRS jurisdiction potential basis of Another rests supervisory powers in this court’s courts over jurisdiction. of inferior 602-4 supreme jurisdiction [t]he court shall have supreme states that “[t]he court shall have powers ... [t]o make award such general superintendence of all courts of decrees, mandates, judgments, orders jurisdiction prevent inferior to and correct processes, issue other such executions and errors and abuses therein where no other such other take do acts and such other remedy expressly provided by This law.” steps may necessary carry be to into Fields, was the basis for review State v. 67 poivers which are or shall be full effect 268, (1984). Haw. In 686 1379 given promotion to it law or for powers supervisory this court asserted justice pending in matters it. before prevent under HRS 602-4 to the defen- 602-5(7) (Emphasis codifies dant, probationer, being subjected to court, powers supreme the inherent of the search, a warrantless which was a condition see Farmer v. Dir. Administrative 273, 276, probation. of her See id. at 686 Court, 232, 241, 457, 94 Hawai'i 11 P.3d 466 1384, P.2d at Deciding that “the “ (2000), powers which ‘are to create a represents situation at hand rare case remedy wrong for in the even absence public where it ‘would interest’ ” remedies[,]’ specific statutory id. at compel to ‘to way through the issue wend its (quoting Corp. Depart P.3d at 465 v. CARL appellate proeess[,]” id. at 686 P.2d Educ., 431, 460, ment 85 Hawai'i 946 P.2d (quoting Corp. Gannett v. Pac. Rich- (1997))(brackets omitted). 1, 30 ardson, 224, 227, 59 Haw. 580 P.2d “ (1978)), jur- this court asserted HRS 602-4 power Farmer declared that ‘inherent though isdiction “a strong even commitment itself; power protect prudential shaping rules the exercise power justice any pre administer whether sparing of our has resulted remedy granted vious has been form of extraordinary power,” use of (citing this id. not; power promulgate rules its Corp. Gannett Pac. 580 P.2d practice; power provide process and the ” 53). 241, 11 where none exists.’ Id. at P.3d at Moriwake, (quoting State v. 65 Haw. B. (1982)) (emphases 647 P.2d 711-12 added). circumstances, appropriate Farmer, Under the noted that this court supervisory powers exercise our over the court Moriwake indicated such “inherent judicial provides implied pow courts a basis powers” stems from the Howеver, VI, correcting delegated error. we are di- er to the courts article rectly in this case with the fact concerned section 1 the Hawai'i Constitution. Id. (internal appears pro- quotation citation be without marks and omit ted). judicial 602-5(7), obtaining Invoking cess for review of court remedy trial supposedly affecting proof errors fashioned Farmer order to him, underlying charges against opportunity afford a defendant “an to chal because acquittal. lenge [or the court’s affirmative defense lifetime revocation of his her] supreme proof extraordinary designed petition the respondent judge, for an service writ is parties all to the action in necessary ensure that the information and notice court, attorney general. the trial and the manner, orderly parties is set forth in an see (i) petition shall contain: statement facts Allen, Haw.App. 90 n. 744 P.2d State v. necessary understanding to an of the issues (1987), grounds n. 1 overruled other (ii) presented; presented a statement of issues State, 423, 427, Dan (iii) sought; and of the relief a statement (1994) (chastising defendant for not issuing the writ. reasons for brief, opening the format for an While this court does not exalt form sub- over HRAP, provided appendix when stance, Poohina, see review). helpful petition was not (2002), requested form of a *12 142 (“It court, also w^ell-settledthat upon (App.1994) 1229 in the district
driver’s license”
of
Fifth and
longer
Due Process Clause
could no
proof that his or her record
to the United
Amendments
period, and when no Fourteenth
support the revocation
protects
an accused
gave him or her au
States Constitution
statutory or court rule
except upon proof be
so,
justice
required.
against a conviction
so
thority to do
because
every
yond
doubt of
fact neces
239-41,
a reasonable
at 464-66.7
Id. at
11 P.3d
sary
[or
crime with -whichhe
to constitute the
(Internal quotation marks
charged.”
she] is
VI.
omitted.));
v. New
and citations
Patterson
ease, Defendant
Similarly, in the instant
2319,
197,
13,
York,
211 n.
97
432
S.Ct.
U.S.
challenge alleged trial
opportunity to
has no
(1977).
281
53 L.Ed.2d
underlying crimi-
respect to the
errors
propositions, in
face,
with these
In consonance
such
charges.
supra. On them
nal
See
“[p]hysieal
amending
provide
law to
validity
sufficiency of
go
errors
disease, disorder, or defect exclud-
challenged
upon which the
the evidence
defense,”
ing responsibility is an affirmative
charges
apparently sustained. Under
were
704-402(1) (1993),
Supplemental
constitution,
HRS
penal code and our state
our
Commentary on
704-402 instructs
is entitled to raise such errors.
insanity
establishing of
as an affir-
that “the
code,
penal
it is -wellsettled that
Under
does not relieve the State
mative defense
proving
prosecution has the burden
proof
the еlements
its burden of
beyond a reason
element of the offense
each
(Quoting
Rep.
Comm.,
Sen. Stand.
offense.”
701-114(1) (1993)
able doubt. See HRS
1112.)
Journal,
384,
No.
in 1982 Senate
(“[N]o person may
convicted of an offense
be
(Emphasis
beyond a
proved
are
unless
...
element of the
[e]ach
reasonable doubt:
VII.
offense[.]”).
process
This reflects the due
Consequently, pleading an affirmative de-
requirement under the United States Consti
requirement that
that,
system,
not diminish the
legal
our
fense does
“[u]nder
tution
prove
necessary
all
prosecution
ele-
always upon the
burden is
by proof
charged.
crime
State v.
every
of crime
ments of the
See
element
establish
Anderson,
479, 482,
159,
doubt,
Haw.
572 P.2d
upon the
58
beyond a reasonable
never
(explaining
entrap-
any
because
disprove
the existence of
nec
accused
defense,
Cuevas,
issue of
53 Haw. ment is
affirmative
essary
State v.
element.”
110, 113,
322,
entrapment
separate
apart
from the
(citing In
“is
488 P.2d
offense[,]”
358, 364,
proof
of an
of all the elements
Winship, 397
90 S.Ct.
re
U.S.
(1970),
any
pleading
entrapment
does not
proposition
“the
VIII. points granted should be 602- A. 5(7).8 then, Therefore, appeal,
On fact that Defendant cases where the defendant acquitted grounds physical acquitted has been the affirmative defense disease, disorder, defect, responsibility, mental is not of lack of over dispositive proved prosecution respect any underly- error whether the claims of with regard, although finding guilt express findings as to should make as whether the charges implied acquittal charge beyond proven is based on a has each disease, disorder, defect, trial courts reasonable doubt. stood, told her was power to behind where she he ing our offenses afforded 602-5(7). her, refuge in a going to kill Marciel took justice under HRS administer utility could Defendant walk underlying room. She see her, “moot,” door, then, the knife charges, urged toward the shake not as reasons, pre- kill it is Defendant’s acts prosecution. For the same threaten her. does, moving freely. about hold, majority Marciel from vented incorrect as Plainly, substantial “prejudiced by virtue of his there was III, substantially “interfere[d] acquittal” kidnapping conduct Count liberty.” charge, [her] “would because he remain custody on Counts of the Director Health” B. opinion Majority I and II. challenge the sufficien Defendant does
cy
supporting
of the evidence
the terroristic
threatening
in
charge
Count II. He main
IX.
however,
tains,
guilty
“is
that he
of the
jurisdiction,
I would find
Defen-
Because
...
did
kidnap[p]ing
because
he
offense
points
are considered
dant’s
infra.
in
nothing to restrain Ms. Marciel
addition
guilty
found
the conduct
which he was
A.
Threatening.”9
the offense of Terroristic
proposition,
For
he
on State v.
relies
conviction,
kidnaрping
his
Disputing
De
92,
Caprio,
(App.
85 Hawai'i
the is left with a definite ing extremely dangerous that he is “be vacat- firm conviction a mistake has been ” ed and the remanded[.]” matter be He con- Anderson, Id. (quoting made.’ State v. erroneously quashed tends the court (1997)). tecum, subpoena sought copies duces Judge finding supported by Town’s was probation upon records which the substantial at evidence. Waiolama testified court relied. hearing on the motion the to dismiss that the videotape Although parties, 7-Eleven store had not the used not raised the ju- “possibly year.” majority surveillance camera contends that court has no both they present She and Yokotake did risdiction to dan- stated review the issue working majori- gerousness following acquittal, not know was whether camera see ty opinion the time the incident. There is no basis because firm proper party for a definite or that a mis- “[t]he conviction action be taken circumstances, disagrees was take made. Under who with a dan- court’s Judge Town in gerousness request] post-acquittal did abuse his discretion [to 704-411(2) denying hearing” pursuant the motion to dismiss. See State to HRS point- 10. Defendant declares that he should [sic] have been "Defendant waived the knife ... and present "possible allowed to evidence de- ... [it] ed at her” and "cocked back like he [it] [her],” videotape going jab struction” of a because such a video- was to come forward and tape might discrepancy” testimony actually have "resolved the be- her at trial that Defendant police jabbed tween Marciel’s statements at her. (1993), provided at trial. HRS majority opinion at P.3d at the information majority express pro chapter that there not contain an holds does Because light order express respect no from an to an of such an vision Here, convene, committing a under 704- defendant HRS the court did not nor order. 411(1)(a) (1993), only for, it parties separate post- concludes that move did post-acquittal in a remedy danger for Defendant lies acquittal hearing to take ousness, hearing. alternatively as is allowed 704-411(1)(a). position. I believe agree I with this cannot consider correct- we have committing Defen-
ness of the court’s order B. custody of the director of health dant to the nothing But Hawaii Penal there is and, thus, findings may as to Defen- consider (Code) party that such a Code which directs dangerousness raised dant’s espe- post-acquittal hearing, must resort to a points. last two when, cially in this the issue phase. prosecu- during trial tried A. dispute reports. tion did not The Code post-trial procedures expressly instincts base chapter provide following trial dangerousness finding its on the uncontested responsibility, of lack of a determination expert panel reports of or on medical or the defendant to be shall: order trial, given at psychological evidence see custody director of committed to as was ease This here. 704-411(1)(a), health, see HRS “[although is because the evidence at trial released, conditionally see primarily will be devoted to determination 704-411(1)(b) (1993), (3) discharge physical of the defendant’s and mental condi- custody, § 704- see HRS the defendant offense, *16 tion at time of the (1993). 411(1)(c) make its The court must may to certain the examiners be able cases [panel] report order “on the basis of the pres- indicate which the risks the defendant 704^404, to if uneon- pursuant made section Commentary § on HRS 704-411. ents.” tested, psychological or the medical or evi separate at given at a dence the trial duplicative counterproduc- It would be 704-411(1) (emphases § hearing^.]” HRS that a for a tive mandate defendant move added). 704-411(l)(a) § that HRS directs separate proceeding danger- of the issue acquitted an to the courts commit defendant ousness, reports experts when the of of “to be custody of the health director danger- of disputed not issue were placed appropriate custo in an institution for trial, at the ousness was tried neither care, that dy, if the court finds treatment parties “a sought separate court nor the presents danger risk of defendant post-acquittal hearing purpose tak- for the of that the is oneself or others and defendant 704-411(2). ing § pursuant evidence” to HRS subject proper not for conditional rel Code, confirms, commentary “[t]he As the ease[.]”11 therefore, provides [HRS § 704-411] disposition may made on the In this the court did commit Defen be 1(1)(a). doing given § basis of either at the dant under HRS 704-41 medical evidence so, separate hearing.” Commentary it on two the three bases for trial or relied of added). reports pursuant (emphasis to HRS on HRS made order —the Hence, require does not that De- 704-404 which were contested Code disagreement find- psychological given fendant’s with the court’s medical or at. only supra page ing dangerousness 671. of raised in a page trial. be See fact, post-acquittal hearing. findings In its cora-t referenced However, subject for a tri does contend that the court conditional release.” neglecting findings make of fact on erred in the court did make al court should endeavor to such a release, although tire of conditional issue compliance statutory re to reflect full Judgment Acquittal state quirements. proper "is Commitment that Defendant not a
c.
After an initial order
committal
under
application for
release must
602-5(7)
Jurisdiction
ninety
days
await
the initial order
purpose
reviewing
the court’s order of
704-112.14 A
commitment.13 See
as,
appropriate,
committal is
inasmuch
subject
process
defendant
to due
violations in
previously,
power
stated
the “inherent
the determination of committal would have
provide pro
court is
...
power
[this]
no
obtaining
original
method of
review of the
Farmer,
cess where none exists.”
Hence,
justice
committal
requires
order.
(citation
omitted).12
tion
B. request vacation
finding light dangerousness frivolous challeng-
of Defendant’s stance he is not
ing the court's decision commit him the Hospital. is stat- Commitment
utorily premised danger on the Defendant
poses to others. himself See HRS and/or But,
§ 704-411. chal- neither
lenges the commitment nor most of the find-
ings regarding dangerousness.
C.
Finally, Defendant claims that the actions, “but would [Marciel]’s she bodily
have injury suffered substantial death,” supported by “was not the evi contrary,
dence[.]” On the there is substan supports
tial evidence in record that
finding. supra. See
XIV. reasons, foregoing respectfully
For the I and, exercising jur-
dissent as to
isdiction, August I would affirm the
judgment grounds stated herein.
David and dba Nursery, Stephen
Orchid Isle Mat
suura, Individually and dba Hawaiian Farm, Plaintiffs-Appellees,
Dendrobium
E.I. DE DU PONT AND NEMOURS
COMPANY, Defendant-
Appellant.
No.
Supreme of Hawai'i. Court
July