State v. TierneyState v. Tierney
Lead
Opinion of the Court by
We hold that when a court orders an examination to determine whether a defendant is fit to proceed to trial pursuant to Hawaii Revised Statutes (HRS) § 704-404(1), and the defendant refuses to cooperate with the examiner, the examiner must produce a report of the examination that expressly states whether “such unwillingness of the defendant was the result of physical or mental disease, disorder, or defect,” if possible. HRS § 704-404(5). If it is not possible for the examiner to make that determination, the examiner must expressly state in the report that it is not possible to determine whether the defendant’s unwillingness is the result of physical or mental disease, disorder, or defect. Because the examiner in this case did not state in his report whether Petitioner/Defendant-Appellant Michael C. Tierney
I.
On April 28, 2008, Petitioner was observed by Honolulu Police Officer Bronson Leana sitting on a bench in downtown Honolulu smoking a marijuana cigarette. When Officer Leana asked Petitioner if he had any weapons, Petitioner responded, “no,” and proceeded to pull out a small bag of marijuana from one of his socks. Officer Leana seized the marijuana and arrested Petitioner.
On May 19, 2008, Petitioner made his first appearance in court
[PETITIONER]: Well, one thing is Your Honor, you got drug court in Hawai'i. I’d like to get a program, rehab. I’m trying to get—
THE COURT: Okay. This is District Court.
[PETITIONER]:—treatment and recovery
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[PETITIONER]: I’m citing federal law, the Georgetown Law School.
THE COURT: From Georgetown Law School. Do you have a—
[PETITIONER]: The Georgetown Law Journal. All states must implement the SRA to the Resentencing Reform Act.
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[THE COURT]: But what I am doing is I’m entering a not guilty plea, refer you to the Public Defender’s Office.
[PETITIONER]: No. I waive counsel. I do not want an attorney.
[THE COURT]: Based on your replies to the court, the court feels that you would be inadequate to represent yourself.
On June 20, 2008, Petitioner appeared before the court
The proceedings were suspended for one month. The court’s June 20, 2008 Order Suspending Proceedings for Examination of [Petitioner] Under HRS Chapter 704 was couched in terms of the statute and stated, in part, that an opinion must be rendered as to Petitioner’s fitness to proceed and his capacity for criminal responsibility at the time of the incident:
Contents of Report, HRS §§ 704-404(4),(5),(6),(7), 704-105, 704-406:
The examiner(s) report shall include the following:
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3. An opinion as to [Petitioner]’s fitness to proceed, i.e., [Petitioner's capacity to understand the proceedings against [Petitioner] and to assist in [Petitioner’s own defense....
4. An opinion as to the extent, if any, to which the cognitive and/or volitional capacity of [Petitioner ]; i.e. the capacity to appreciate the wrongfulness of his conduct and/or to conform his conduct to the requirements of the law, was impaired at the time of the conduct alleged....
5. An opinion as to the capacity of [Petitioner] to have a particular state of mind which [is] required to established [sic] [an] element of the offense charged....
7. If the examination cannot be conducted by reasons of the unwillingness of [Petitioner] to participate therein, the report shall so state and shall include, if possible, an opinion as to whether [Petitioner]’s unwillingness was the result of physical or mental disease, disorder or defect.
(Emphases added.)
Olaf Gitter, Ph.D. (examiner), was appointed to prepare the report. Examiner was unable to conduct a personal examination of Petitioner because Petitioner refused to participate, invoking the fifth amendment.
“After I had introduced myself to [Petitioner] as a psychologist ordered by the court to perform a fitness to proceed and penal responsibility evaluation, the [Petitioner] informed me that ‘he would like to invoke his [f]ifth [a]mendment rights and not participate in the evaluation.’ He then left the interview room.”
Examiner’s clinical observations stated, in part, that he could not determine Petitioner’s fitness to proceed or his criminal responsibility:
“Since [Petitioner] refused to participate in the court ordered examination, I am unable to advise the court of my own independently derived psychiatric diagnoses nor am I able to answer the questions regarding [Petitioner ] ⅛ fitness to proceed, criminal responsibility and state of mind at the time of the alleged offenses.”
(Emphasis added.)
On July 18, 2008, Petitioner appeared without counsel at a fitness hearing before the court. The court
“[T]he 704 evaluation [Petitioner] earlier refused needs to be completed. The Court has serious concerns about this [Petitioner]’s mental health and has issues regarding this, so therefore the Court’s going to refer you for the in-patient evaluation. Itwill be at O-Triple-C. The court will ask the state to draft the order.”
(Emphasis added.)
Pursuant to the July 18, 2008 Order of Continued Suspension of Proceedings for Examination of [Petitioner] Under HRS Chapter 704, examiner submitted another report of his “attempt to reexamine [Petitioner].” As stated in his August 4, 2008 report, examiner conducted a two minute conversation with Petitioner:
Forensic Database
The examination consisted of a 2-minute face-to-face conversation with [Petitioner] at the Oahu Community Correctional Center on August 4, 2008, and a review of (1) his correctional medical record and (2) my own previous one-panel mental examination under the same ease numbers submitted to [the court], on July 11, 2008.
Due to the fact that [Petitioner ] refused, once again, to participate in the court ordered evaluation, no psychological testing was done.
Structure of Interview
[Petitioner] recognized me from my contact with him at OCCC on July 11, 2008. As soon as I explained to him the reason for my visit, i.e. that I was supposed to evaluate him for a fitness to proceed with his trial and penal responsibility, he informed me that, ‘He would like to invoke his Fifth Amendment rights and not participate in the evaluation.’ He then left the interview room.
I note that [Petitioner] has also refused to talk to the probation officer assigned to this ease as well as to the Department of Public Safety’s social worker. In both cases, he also invoked his Fifth Amendment rights.
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Clinical Observations
Since [Petitioner] refused to participate in the court ordered examination, I am unable to advise the court of my own independently derived psychiatric diagnoses nor am I able to answer the questions regarding [Petitioner’s fitness to proceed, criminal responsibility and state of mind at the time of the alleged offenses. It is of note, however, that [Petitioner] is housed in Annex II with the general population, that he has no psychiatric contacts at OCCC and that according to an adult correctional officer whom I checked with, he is not any management problem in Annex II.
(Emphases added.)
In his clinical observations, examiner noted a second time that he could not render an opinion as to Petitioner’s fitness to proceed or his criminal responsibility:
Since [Petitioner] refused to participate in the court ordered examination, I am unable to advise the court of my own independently derived psychiatric diagnoses nor am I able to answer the questions regarding [Petitioner’s fitness to proceed, criminal responsibility and state of mind at the time of the alleged instant offense.
The record does not reflect that Petitioner, at that time pro se, was ever informed that statements given during the examination, including admissions of guilt, are not admissible in any proceeding except on the issue of a person’s physical or mental condition.
II.
On August 19, 2008, Petitioner was present at his second fitness hearing with Deputy Public Defender Robert Olson (Olson) as counsel. At the hearing, Olson stated for the record that Petitioner did not want the public defender’s assistance as standby counsel or otherwise. Petitioner then reiterated that he wanted to represent himself. The court
MR. OLSON: Deputy Public Defender Robert Olson, Your Honor, present along with Mr. Tierney who is present.
For the—okay. For the record, Your Honor, I’ve attempted to speak with Mr. Tierney concerning his case. He has refused to cooperate and communicate with me. He doesn’t want the public defender’s assistance in any form be it standby counsel or otherwise. So I’m just stating that for the record.
THE COURT: Okay. Is that correct, Mr. Tierney?
[PETITIONER]: Yes. I’d like to represent myself under (inaudible) versus California.
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THE COURT: I have no—I have no problem granting you that, but you have to do so knowing, voluntary, and intelligently. Okay? SO let’s—let’s try this.
I understand what you’ve told the public defender. And Mr. Olson is an excellent attorney. And based on what you’ve told me, I’m just going to grant his wish that he not represent you. But let’s go through this colloquy. Okay?
[PETITIONER]: Okay.
THE COURT: All right. Okay. You’ve been charged with the offense of Promoting a Detrimental Drug in the Third Degree, two counts, on April 28, 2008. And both are petty misdemeanors. Maximum punishment could be 30 days jail and/or a thousand dollar fine for each. Okay? You understand that?
[PETITIONER]: Uh, no, I don’t. I filed a motion for consolidation. I feel—
(Confers with Olson.)
[PETITIONER]: Uh, no, I don’t understand what that means. I thought it was possession. I mean, you know, I thought it was possession. That’s what they told me.
THE COURT: Okay. Mr. Tierney, um—
[PETITIONER]: I don’t sell drugs.
THE COURT: Mr. Olson, you got to make a choice. Now either you’re not going to represent or advise or stand by or you’re going to stand by as counsel.
MR. MeMaster [sic]: Okay. I’ll sit down, Your Honor.
[PETITIONER]: Okay
THE COURT: And if you don’t understand what the charges are, how do you expect to represent yourself?
[PETITIONER]: Yes, sir.
THE COURT: Okay. Possession is included, if you read the statute, in the promoting detrimental drug in the third degree.
[PETITIONER]: Well, I haven’t been given discovery, so it’s hard to really do any type of reading. This is the first time I’ve been able to see it.
THE COURT: Okay. Mr. Tierney, do you want to go through this or you want to argue with the court?
[PETITIONER]: I want to go through this. I want to be able to represent myself.
THE COURT: Okay. Then you have to listen and answer the questions. Okay? This is what you’re being charged with. Do you understand that?
[PETITIONER]: Uh, yes, sir.
THE COURT: Okay. Do you understand the maximum penalties that I just informed you?
[PETITIONER]: Uh, yes, sir.
THE COURT: Do you understand—
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THE COURT:—you have the right to have the State prove these cases against you beyond a reasonable doubt by taking it to trial?
[PETITIONER]: Yes, sir.
THE COURT: Okay. Do you understand that ... you have the right to testify or remain silent.... That is your FifthAmendment right against self-inerimination. Do you understand that?
[PETITIONER]: Yes, sir.
THE COURT: Because these offenses have 30 days jail each, you are entitled to an attorney. Do you want to be represented by an attorney?
[PETITIONER]: Uh, no, sir.
(Emphases added.)
Subsequently, in answer to questions, Petitioner responded that his mind was clear, he was not under the influence of any drugs or alcohol, he had a high school diploma and a college degree, no one was forcing him to give up his right to an attorney, and that he was making this decision on his own. The court found Petitioner knowingly, voluntarily, and intelligently waived his right to counsel.
THE COURT: Okay. Is your mind clear this morning?
[PETITIONER]: Yes, sir.
THE COURT: Are you under the influence of any drug or alcohol that may affect your thinking?
[PETITIONER]: Uh, no, sir.
THE COURT: Okay. How much education do you have?
[PETITIONER]: I went to, uh, high school, college—I mean a high school diploma and a college degree.
THE COURT: Okay. Is anyone forcing to you give up your right to an attorney?
[PETITIONER]: No, sir.
THE COURT: You’re making this as your own decision?
[PETITIONER]: Yes, sir.
THE COURT: Okay. The court will find [Petitioner] is knowingly, voluntarily, and intelligently waiving his right to counsel.11
Thereafter, the court impliedly determined Petitioner was fit to proceed, inasmuch as it concluded that the proceedings would continue.
THE COURT: Well, I tell you what, Mr. Tierney, for these two offenses, because of the way you have behaved in the court on previous occasions, this court has referred you for a psychological evaluation. In both attempts you have refused. This morning is the first time the court has been able to have an actual—a colloquy discussion with you.
[PETITIONER]: Well, I think I’m getting’ better.
THE COURT: Well, what have you been doing that—that you’re getting better? Are you taking medication?
[PETITIONER]: No, I don’t take medication.
THE COURT: Okay. What—what have you been doing?
[PETITIONER]: Detoxing.
THE COURT: Okay. Because you’ve been in custody for—at least since May. These offenses maximum penalty of 30 days in jail if you were found guilty. The most you could spend would be 60 days in jail. You understand that?
[PETITIONER]: Yes, sir.
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THE COURT: [TJhe court’s going to ask the State to do the order resuming the proceedings. Um, you might want to have Mr. Tierney sign off on that before he leaves.
THE CLERK: You need him to sign something? Okay. Hold on, Mr. Tierney. There’s a document you have to sign.
[DEPUTY PROSECUTING ATTORNEY]: To clarify, Your Honor, is this DC-6?
THE COURT: Oh,um—
[DEPUTY PROSECUTING ATTORNEY]: Um—
THE COURT: DC-6, order resuming proceedings? Um—
THE CLERK: Order resuming proceedings after fitness examination under Chapter 10⅛.
THE COURT: Okay. Yes.
THE CLERK: Mr. Tierney. Thank you.
(Emphases added.)
On September 25, 2008, Respondent confirmed that the court had found Petitioner fit to proceed:
DEPUTY PROSECUTING ATTORNEY: Your Honor, at the outset the State would like to clarify a few things. At the August 19, 2008 date we resumed proceedings, there was no formal findings of fitness. Just to clarify for the record, in light of the fact that we resumed proceedings,—the court made a finding that [Petitioner ] is fit to proceed? ”
THE COURT: Yes.
(Emphases added).
As of August 19, 2008, Petitioner represented himself. Trial began on October 30, 2008 before the court
Petitioner also appeared not to understand that the nature of the charged offense was marijuana possession. When it was Petitioner’s turn to cross-examine Officer Leana, Petitioner insisted that he had not “promoted” any drugs.
[PETITIONER]: Um, on the, um—the— uh, was defendant in any way trying to promote any detrimental drugs?
[DEPUTY PROSECUTING ATTORNEY]: Uh, objection. Vague and ambiguous as to the term “promote.”
THE COURT: Nah, that’s a legal conclusion. So I’m not going to—I’m going to sustain the objection.
[PETITIONER]: He was not promoting in any way? He was just sitting there smokin’?
[DEPUTY PROSECUTING ATTORNEY]: Objection again as to the use of the term “promoting” as vague and ambiguous.
THE COURT: And the question you had about promoting I’m going to sustain the objection. But the second part of your question I’m going to allow it, about smoking—
Respondent attempted to call another witness, and Petitioner asked for a recess. When the parties returned, Respondent requested a continuance of the trial because its witness was not present. At that point, Petitioner asked for medical attention regarding a rash.
On November 18, 2008, Respondent resumed its case-in-chief. Petitioner again continued to object on the ground that “the one evidence has been dismissed by the
Respondent then again explained to the court:
[T]his is an issue that was previously addressed. However, in response [Respondent] will note that I believe that the two charges were erroneously duplicated to reflect two charges for this incident. However, [Respondent] is not submitting that there was any particular evidence tied to any particular police report but does just note that as there were two, [Respondent] dismissed one in the interest of efficiency and to reflect basically the charging.
(Emphasis added.)
The court denied the request “because the evidence presented is one based on the case at trial today.” Nevertheless, Petitioner still insisted, “That would be my objection, that it’s inadmissible evidence. It shouldn’t be in evidence anymore. It should be destroyed.” The court stated, “Well, since this was dealt with before ... and [Respondent] made the explanation in support of—in opposition to your motion, and based on that I’m still gonna deny your motion.”
Subsequently, Respondent rested. The court asked Petitioner whether he wanted to present his case. Petitioner said he did not. Petitioner also did not want to testify.
Respondent then made its closing argument. When it was Petitioner’s turn to make a closing argument, he asked the court to dismiss the case because he was not charged with possession but with “promotion”:
[PETITIONER]: Yeah, but they’re charging me with promotion of a detrimental drug. Is there a difference? Because when I was first arrested, I was charged with possessing. I’m just saying I’m not promoting drugs.
And when I came in to see [the court] May 19th, I asked for help and told him I had a drug problem and to take me into custody and off the streets. Drugs are not good. I’m not promoting drugs of any sort. I’m not a drug dealer. They charged me under the wrong statute. It should be possessing marijuana, not promoting detrimental drugs.
The charges must be dismissed with prejudice. I’m not promoting them. I never said—you know what I mean? I was not in possession. I’m just saying I’m not promoting the drug. They charged me under the wrong statute. (Emphasis added.)
The court explained again to Petitioner that “promoting” included “possession” of marijuana, although, as noted before, the court had already explained this on August 19, 2008, when it ruled that Petitioner knowingly, voluntarily, and intelligently waived his right to counsel. After explaining that “promotion” included “possession,” the court proceeded to sentence Petitioner, although he stated that he “didn’t know that[.]”
THE COURT: That’s the title of the charge, but really the real elements of the charge is to knowingly possess marijuana, not promote it.
[PETITIONER]: So there is no possession in Hawai'i of marijuana?
THE COURT: There’s no—there’s not a title called “possession.” It’s called “promoting.”
[PETITIONER]: So if you get caught with marijuana, it’s promoting?
THE COURT: It’s called—yeah. Even though you’re possessing it, it’s called “promoting.”
[PETITIONER]: Okay. I didn’t know that, Your Honor. I couldn’t find any statutes really on the subject.
THE COURT: Okay. So as to sentencing, [Respondent] first....
(Emphasis added.)
Petitioner was found guilty of the charge and sentenced to five days in jail with credit for time served, concurrent with any other sentence Petitioner may have been serving. Petitioner’s Notice of Appeal was filed on November 24, 2008.
On appeal, Petitioner was represented by counsel. On August 25, 2008, the ICA affirmed the court’s judgment. The ICA held that the court “did not abuse its discretion when it determined that [Petitioner] was fit to proceed with trial.” State v. Tierney, No. 29939,
The ICA also cited examiner’s observations that Petitioner was being housed with the general prison population, that he had no psychiatric contacts in prison, and that according to an adult correctional officer with whom the psychologist communicated, Petitioner was not a management problem.
Further, the ICA apparently extracted from the record other factors that were not mentioned in the court’s colloquy with Petitioner or listed in the psychologist’s report, such as Petitioner’s age and experience with the judicial system and the relative lack of complexity associated with the case and the charge. However, there is nothing to indicate which of the factors in this third group were in the record or were considered by the court in exercising its discretion.
IV.
Petitioner lists the following question in his Application:
Whether the ICA committed grave error of law when it affirmed the district court’s finding Petitioner fit to proceed without a psychological opinion as to whether it was possible/impossible to render an opinion whether Petitioner’s assertion of 5th Amendment rights when examined by a court ordered psychologist was the result of a physical or mental health disease, disorder or defect, and if possible what that opinion is.
(Emphases added).
It should be noted that the court orders for examination requested a report on fitness and on penal responsibility
Respondent did not file a Response to the Application.
Y.
A.
In his Application, Petitioner refers to the statutory provisions that follow. HRS § 704-405 (1993) states in part:
[W]hen [Petitioner's fitness to proceed is drawn in question, the issue shall be determined by the court. If neither the prosecuting attorney nor counsel for [Petitioner] contests the finding of the report filed pursuant to section 704-404, the court may make the determination on the basis of such report. If the finding is contested, the court shall hold a hearing on the issue. When the report is received in evidence upon such hearing, the party who contests the finding there of shall have the right to summon and to cross-examine the persons who joined in the report or assisted in the examination and to offer evidence upon the issue.
Further, HRS § 704-404(5) directs:
“If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include if possible, an opinion as to whether such willingness of the defendant was the result of physical or mental disease, disorder or defect.”
B.
Petitioner maintains that “there was no medical opinion provided on whether it was possible Petitioner’s refusal to be examined was the result of a mental or physical disease, disorder or defect.” He contends (1) HRS § 704-405 calls for a medical opinion as to whether it is possible or impossible to opine in the examiner’s report whether an unwilling defendant taking the fifth amendment is doing so as a consequence of physical or mental disorder, disease, or defect; (2) this issue requires special knowledge and a technical background in psychology; (3) a mistake will cause the loss of freedom of a mentally disabled citizen which is a due process violation, citing Drope v. Missouri,
VI.
In its Answering Brief, Respondent initially contended (1) “[Petitioner] is judicially estopped from complaining about the [court’s] findings that [Petitioner] was fit to proceed as [Petitioner] did not contest this finding”
According to Respondent, the inability of the psychologist to complete the examination due to Petitioner’s unwillingness to cooperate does not prevent the court from reaching its own conclusion. Respondent contends that the ultimate determination of a defendant’s fitness is reserved for the trial court, citing State v. Madden,
VII.
A review of the July 11, 2008 report indicates that there is no opinion offered by examiner in response to the directive in the June 20, 2008 Order that the report “shall include, if possible, an opinion as to whether [Petitioner's unwillingness was the result of physical or mental disease, disorder or defect.” Likewise, there is no opinion rendered by examiner in response to the July 18, 2008 Order that, as provided in the already filed Order for Examination and Appointing Examiner(s), the report “shall include, if possible, an opinion as to whether [Petitioner’s unwillingness was the result of physical or mental disease, disorder or defect.” Here, no opinion was rendered on whether Petitioner’s unwillingness was due to a mental impediment, or on whether it was possible to render such an opinion.
VIII.
In Castro,
Pursuant to HRS § 704-403, the trial court must determine whether the defendant either (1) lacks capacity to understand the proceedings against him or her; or (2) lacks capacity to assist in his or her defense.
When Petitioner first appeared in court, the two judges fulfilled “the duty of the trial court to order [s]ua sponte a hearing on competency when what is before it sufficiently indicates that the defendant may be incompetent to stand trial.” State v. Tyrrell,
In State v. Wilkerson,
IX.
Here, similarly, HRS § 704-404 provides that “[i]f the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state, and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of physical or mental disease, disorder, or defect.” (Emphases added.) The language of the statute is mandatory (“shall”) with regard to the nature of the report when the defendant is unwilling to cooperate.
Although HRS § 704-404 is mandatory and the mandate is set forth in the court’s orders, the statute and the orders were not followed. In his July 11, 2008 report, examiner did not opine as to whether Petitioner’s refusal to participate was a result of a mental defect, nor did he explain whether providing such an opinion was possible. This did not comply with HRS § 704-404(5) or with the court’s June 20, 2008 order. In his August 4, 2008 report, examiner again did not explain whether or not Petitioner’s refusal to cooperate was due to his ineompetency, and again did not state whether providing such an opinion was possible, contrary to HRS § 704-404(5) and the court’s June 20, 2008 and July 18,2008 orders.
As noted, the purpose of requiring an expert examiner’s report on the question of competency is to “remov[e] from trial the concern that incapacity which is not readily apparent to lay observation will surface during trial proceedings or, much worse, after trial has ended.” Castro I,
Although Petitioner twice refused to cooperate with examiner, the court apparently chose to rely on its own observations of Petitioner on August 19, 2008 in determining that Petitioner could proceed to trial, instead of requiring examiner to complete the report and render an opinion as to whether Petitioner’s refusal to cooperate was due to incompetency or as to whether it was possible to render such an opinion. Respectfully, in proceeding without an expert’s opinion, the court did not comply with HRS § 704-404(5) and did not enforce its own previous orders.
X.
Arguably, the trial proceedings implicated Petitioner’s fitness to understand the proceedings and to mount a defense. Castro II,
However, when the court reconvened on November 18, 2008, Petitioner continued to object during the prosecution’s ease-in-chief on the ground that one of the charges against him had been dismissed. Petitioner told the court, “[T]he one evidence has been dismissed by the court, I don’t think it should be entered now in evidence at all.... You know the only evidence that you could admit would be the Case No. 08158229. The other Case 081582230 has been dismissed by the prosecution. It would be inadmissible evidence.” Respondent again explained that two charges had been erroneously duplicated, but that it was not submitting that there was any evidence tied to any particular charge. The court then denied the objection “because the evidence presented is one based on the case at trial today.” However, after the court denied Petitioner’s objection, Petitioner again objected, stating that Respondent’s evidence was inadmissible. The court again denied the objection.
Petitioner also appeared not to understand the charge against him. During the August 19, 2008 hearing before the court, Petitioner told the court that he did not understand the charge. The court explained to Petitioner, “Possession is included, if you read the statute, in the promoting detrimental drug in the third degree.” Then, during the first day of trial, when Petitioner was cross-examining Officer Leana, Petitioner insisted that he had not “promoted” any drugs. The prosecution objected to Petitioner’s use of the word “promoted,” and the court sustained the objection. After the court sustained the objection, Petitioner again asked Officer Leana whether Petitioner had been “promoting [marijuana] in any way.” ' Respondent objected and the court sustained the objection. Later, when trial resumed on November 18, 2008, during the testimony of another of Respondent’s witnesses, Petitioner renewed his objection that he had not “promoted” any drugs. The court denied the objection.
Respondent then made its closing argument. When it was Petitioner’s turn to make his closing argument, the first thing Petitioner said was, ‘Yeah, but they’re charging me with promotion of a detrimental drug. Is there a difference? Because when I was first arrested, I was charged with possessing. ...” The court then explained to Petitioner that “promoting” is only the title of the chapter with which he was charged, but that the substance of the charged offense was marijuana possession. It is apparent from this sequence of events that Petitioner went through the trial proceedings without understanding the charges against him and believing that he was innocent of the charges.
The foregoing underscores the need for an expert opinion in assessing whether Petitioner was fit to proceed and criminally responsible at the time of the incident. Whether Petitioner “lacked the capacity to understand the proceedings” or “lacked capacity to assist
XI.
Therefore, while it is true, as Respondent contends, that the duty of determining Petitioner’s fitness to proceed ultimately lies with the trial court, HRS § 704-404(2) requires the trial court to make that determination with the aid of expert opinion. See Castro I,
XII.
In the absence of an express statement by an examiner that the examinee’s refusal to cooperate is or is not the product of a physical or mental defect or that it is not possible to render an opinion one way or the other, a trial court cannot reasonably be assured that an evaluation under HRS 704-404(5) has been undertaken by the examiner. Correla-tively, an appellate court cannot reasonably infer that the trial court has considered whether the examiner has made such a determination if the report is silent on this issue.
Physical and mental competence at the time of trial are central to the due process of law. Castro I,
If a defendant persists in refusing to participate in a personal examination and the examiner states that he or she cannot determine whether the defendant’s lack of cooperation is due to a mental illness, then the court should order that the examiner render an opinion based on the “medical, mental health, social, police, and juvenile records, including those expunged, and other pertinent records in the custody of public agencies,”
In the instant case, if Wilkerson had persisted in his refusal to cooperate with the mental health examining expert, the expert could have utilized the transcript of the pretrial matters, police reports, interviews of untnesses, and any other documentation deemed relevant to the expert to form an opinion on the competency of Wilkerson. Failing to make any additional effort to complete Wilkerson’s mental competency evaluation and provide the trial court a section 552.020 report prior to trial, however, does not comply with the statutory mandate of section 552.020 and results in reversible plain error.
(Emphasis added.) This alternative method would appear appropriate for determining fitness and penal responsibility.
XIII.
It may be noted that Petitioner was sentenced to five days in jail. Accordingly, it would appear Petitioner has served his sentence. The parties did not raise, and the ICA did not decide, whether this moots the case.
A case is not moot if the question presented is likely to recur but escape full review. Okada Trucking Co., Ltd. v. Board of Water Supply, 99 Hawai’i 191, 196,
The question raised by Petitioner could recur but escape review. Whether the court abused its discretion in finding Petitioner fit to proceed is practicably susceptible to review only after conviction and sentencing. Thus, the exception to mootness for questions that could recur but escape review applies in this case.
Further, unless reviewed, Petitioner’s conviction is reasonably likely to result in collateral consequences. Criminal convictions have collateral consequences even after sentences have been served. See Sibron v. New York,
XIV.
Petitioner is not foreclosed on remand from relying on HRS § 704-402(1), which affords an affirmative defense for “physical or mental disease, disorder, or defect excluding responsibility.” As noted, although the court twice asked examiner to opine on whether Petitioner was able to appreciate the wrongfulness of his actions at the time of the charged offense, examiner did not proceed past the fitness issue. Because there was no expert opinion rendered concerning whether Petitioner could appreciate the wrongfulness of his actions at the time of the offense, Petitioner may still rely on HRS § 704-402(1) on remand. See Castro I,
XV.
Based on the foregoing, we vacate the ICA’s September 9, 2011 judgment and the court’s November 18, 2008 judgment, and remand the ease to the court for further proceedings consistent with this opinion.
Notes
. The Honorable Lono J. Lee (Judge Lee) presided over the August 19, 2008 competency hearing, at which time the court found Petitioner fit to proceed and entered an Order Resuming Proceedings After Fitness Examination Under Chapter 704.
. The SDO was filed by Presiding Judge Katherine G. Leonard and Associate Judges Lawrence M. Reifurth and Lisa M. Ginoza.
. The Honorable Russell Nagata (Judge Nagata) presided over the trial and sentencing.
. HRS § 712-1249 Promoting a detrimental drug in the third degree
(1) A person commits the offense of promoting a detrimental drug in the third degree if the person knowingly possesses any marijuana or any schedule v. substance in any amount.
(2) Promoting a detrimental drug in the third degree is a petty misdemeanor.
(Emphases added.)
Punishment for a petty misdemeanor is "a fine not exceeding. $1,000" and/or "imprisonment for a definite term to be fixed by the court and not to exceed ... thirty days” for each offense. HRS §§ 706-640(e) and 706-663 (1972).
. Judge Lee presided.
. The Honorable Judge Paula Devens presided.
. In pertinent part, the Fifth Amendment to the U.S. Constitution states that, "No person shall ... be compelled in any criminal case to be a witness against himself[.]” U.S. Const, amend. V.
. Judge Lee presided.
. As stated in oral argument by Petitioner, HRS § 704-416 (1993) provides:
A statement made by a person subjected to examination or treatment pursuant to this chapter for the purposes of such examination or treatment shall not be admissible in evidence against the person in any penal proceeding on any issue other than that of the person’s physical or mental condition, but it shall be admissible upon that issue, whether or not it would otherwise be deemed a privileged communication, unless such statement constitutes an admission of guilt of the offense charged.
. Judge Lee presided.
. Although raised on appeal, Petitioner does not argue his competency to waive the right to counsel in his Application.
. Judge Nagata presided.
. The following exchange took place:
[PETITIONER]: I wanted to bring an issue up to you that I have a medical problem.
THE COURT: Oh, yeah. So—
[PETITIONER]: I have a rash all over my body.
THE COURT: Uh, no, you don’t have to show me, so.
[PETITIONER]: It's right here—
THE COURT: Well, so—
[PETITIONER]:—that they're not doing anything there. I brought it up to them. I was wondering if I could get to a hospital to get—
THE COURT: Well—
[PETITIONER]:—the rash taken care of.
[[Image here]]
[PETITIONER]: But it's all over. It’s open sores, Your Honor. That's all I'm asking for. Can you get me to a hospital.
THE COURT: Well, I can’t. I can't, I just—
[[Image here]]
[PETITIONER]: I’m just asking for help, Your Honor. It would be interfering with reporting an emergency. It is a petty misdemeanor, Your Honor. Judicial (inaudible). I need medical treatment immediately. This is—
THE COURT: Okay.
[PETITIONER]:—driving me into extreme discomfort and extreme pain. I've been to sick call seven times in 0-Triple-C. They have failed to give me nothing.
THE COURT: Well, Mr. Tierney, when the bailiff takes you back, he'll tell them of your condition also.
[PETITIONER]: Okay. Thank you very much, Your Honor.
. The court did not mention the factors from the report listed by the ICA. Although the court referred to examiner’s reports twice during the August 19, 2008 hearing, the court did not make any reference to the contents of the report. The court's first reference to the reports was in response to Petitioner’s claim that he wanted to represent himself. The court stated, "Okay. [Petitioner], I think we’ve been through this before. And I’ve read the evaluation letters when you were referred for an evaluation. We need to get through the colloquy regarding you representing yourself.” The court’s other reference to the reports occurred when Petitioner asked the court to order the jail to give him more envelopes and a paper and pen. The court said, "Well, I tell you what, [Petitioner], for these two offenses, because of the way you’ve behaved in the court on previous occasions, this court had referred you for a psychological evaluation. In both attempts you have refused. This morning is the first time the court has been able to have an actual—-a colloquy discussion with you.”
. HRS § 704-402(4) (1993) provides in relevant part:
The report of the examination shall include the following:
(d) An opinion as to the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was impaired at the time of the conduct alleged.
. Petitioner argues that the judgment should be vacated, the case remanded, and that Petitioner should be re-examined.
. However, it should be noted that Petitioner appeared pro se and it was two different district court judges who called for Petitioner’s mental examination.
. Respondent also notes that the United States Supreme Court also leaves it to the trial court to decide whether a defendant is competent to conduct trial proceedings by him or herself, citing Indiana v. Edwards,
. Vernon’s Annotated Missouri Statutes (V.A.M.S.) § 552.020 provides in relevant part:
2. Whenever any judge has reasonable cause to believe that the accused lacks mental fitness to proceed, he shall, upon his own motion or upon motion filed by the state or by or on behalf of the accused, by order of record, appoint one or more private psychiatrists or psychologists, as defined in section 632.005, or physicians with a minimum of one year training or experience in providing treatment or services to persons with an intellectual disability or developmental disability or mental illness, who are neither employees nor contractors of the department of mental health for purposes of performing the examination in question, to examine the accused; or shall direct the director to have the accused so examined by one or more psychiatrists or psychologists, as defined in section 632.005, or physicians with a minimum of one year training or experience in providing treatment or services to persons with an intellectual disability, developmental disability, or mental illness. The order shall direct that a written report or reports of such examination be filed with the clerk of the court.
(Emphases added.)
. HRS § 704-403 (1993) provides:
No person who as a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against the person or to assist in the person’s own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.
. The commentary to HRS §§ 704-404(4) and 704-404(5) states, in relevant part:
Subsections (4) and (5) state explicitly what the report of the examining physicians shall contain. ... These subsections are intended to assure the court and the parties ‘that the report will be adequate for the purpose for which the examinations and report were ordered.'
(Emphasis added).
. HRS § 704-404(8) provides in relevant part as follows:
(8) The court shall obtain all existing medical, mental health, social, police, and juvenile records, including those expunged, and other pertinent records in the custody of public agencies, notwithstanding any other statutes, and make such records available for inspection by the examiners.
(Emphasis added.)
. In the situation where the examiner does not render any opinion, at least two alternatives are open to the trial courts. The trial court may appoint a different examiner, or, as set forth above, the court may order that the examiner attempt to render an opinion from matters obtained pursuant to HRS § 704-404(8).
. HRS § 704-402 provides:
§ 704-402. Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense; form of verdict and judgment when finding of irresponsibility is made
(1) Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense.
(2) When the defense provided for by subsection (1) is submitted to a jury, the court shall, if requested by the defendant, instruct the jury as to the consequences to the defendant of an acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility.
(3) When the defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the verdict and the judgment shall so state.
. Pursuant to HRS § 704-406(3) (Supp.2011), if a defendant who has been found unfit to proceed regains his or her fitness to proceed, the court may, "if [it] is of the view that so much time has elapsed since the commitment or release on conditions of the defendant that it would be unjust to resume the proceeding, [dismiss] the charge...."
Dissenting Opinion
Dissenting Opinion by
in which RECKTENWALD, C.J., joins.
In criminal cases where a defendant’s fitness to proceed becomes an issue, the Ha-wai'i Penal Code authorizes a trial judge to suspend proceedings in the ease, Hawai'i Revised Statutes (HRS) § 704-404(1) (Supp. 2011), and “appoint three qualified examiners in felony cases and one qualified examiner in nonfelony cases to examine and report upon the physical and mental condition of the defendant.” HRS § 704-404(2) (Supp. 2011). The Code also envisions a situation where a defendant is unwilling to be examined for this purpose: “If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of physical or mental disease, disorder, or defect.” HRS § 704-404(5) (1993) (emphasis added). The majority holds that the trial court abused its discretion in proceeding to trial in this case even though it was not possible for the examiner to include such an opinion. See Majority Opinion at 171,
As we have noted in the interpretation of statutes, “this court recognizes that its primary duty is to ascertain and give full effect to the intent of the legislature.” Shimabuku v. Montgomery Elevator Co.,
In reading HRS § 704-404(5) so as not to exclude any words, I note that it contains two discrete requirements in relation to the examiner’s report. First, “[i]f the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state[.]” During both of the attempted examinations on July 11, 2008 and August 4, 2008, Tierney stated that he was unwilling to participate on account of his Fifth Amendment rights and then left the interview room; both of the examiner’s reports state this. Second, if the defendant is unwilling to participate, “the report ... shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of physical or mental disease, disorder, or defect.” (Emphasis added). Although “shall” is a mandatory term, as the majority points out, Majority Opinion at 169,
Nevertheless, the majority states that in both the July 11, 2008 report and the August 4, 2008 report, “there is no opinion offered by [the] examiner in response to” the court’s order, which mirrors the language of the statute, that the report “shall include, if possible, an opinion as to whether defendant’s unwillingness was the result of physical or mental disease, disorder or defect.” Majority Opinion at 168,
Additionally, I must also note my disagreement with the majority’s analysis of State v. Wilkerson,
A report of the examination made under this section shall include:
(1) Detailed findings;
(2) An opinion as to whether the accused has a mental disease or defect;
(3) An opinion based upon a reasonable degree of medical or psychological certainty as to whether the accused, as a result of a mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense;
(4) A recommendation as to whether the accused should be held in custody in a suitable hospital facility for treatment pending determination, by the court, of mental fitness to proceed; and
(5) A recommendation as to whether the accused, if found by the court to be mentally fit to proceed, should be detained in such hospital facility pending further proceedings.
Neither subsection 3 nor any other part of V.AM.S. § 552.020 contemplates what the examiner may do in the event that the defendant is unwilling to undergo examination. Thus, V.AM.S. § 552.020 and HRS § 704-404 are not “similar’ competence statute[s]” in this regard as the majority posits, Majority Opinion at 169,