Psychologist's Report Must Explain why Defendant Refused to Participate in 704 Examination

State v. Tierney (HSC May 7, 2012)

Background. Michael Tierney sat on a bench in downtown Honolulu. A police officer saw him smoking what he believed to be a marijuana cigarette. The officer approached him and asked if he had any weapons. Tierney said no, and pulled out a bag of marijuana from one of his socks. Tierney was arrested and later charged with promoting a detrimental drug in the third degree. At the arraignment in district court, the court entered for Tierney a not guilty plea and referred him to the public defender's office. Tierney told the court that he wanted to represent himself. The judge said that he would not be adequate to represent himself. At the next court date, Tierney appeared with the public defender. Tierney said he still wanted to represent himself and told the court that the public defender "threatened to kill me" and that he was in court for felonies a few days before the appearance. He asked for discovery and a speedy trial. The district court at that point stated that fitness may be an issue and ordered a doctor to examine Tierney. Tierney said that no one could "force counsel upon me[.]"

The proceedings were suspended for one month. The court ordered a doctor to determine Tierney's fitness to proceed and the cognitive and his volitional capacity. It also ordered that if the examination "cannot be conducted by reasons of the unwillingness of [Tierney] to participate therein, the report shall so state and shall include, if possible, an opinion as to whether [Tierney's] unwillingness was the result of physical or mental disease, disorder, or defect." Dr. Olaf Gitter was appointed to conduct the examination. In his report, he wrote that after introducing himself to Tierney, he told the doctor that "he would like to invoke his Fifth Amendment rights and not participate in the evaluation. He then left the room." Dr. Gitter reported that he could not determine Tierney's fitness to proceed.

Tierney appeared without counsel at the fitness hearing. The court stated that it had "serious concerns" about his fitness to proceed and ordered him to go to an in-patient evaluation at OCCC. Again he refused to participate. Tierney was never informed that his statements to the doctor in the course of the evaluation could not be used against him at trial.

At the next hearing, the public defender appeared for Tierney and informed the court that he still wanted to proceed pro se. Tierney agreed. The court performed a colloquy on Tierney's understanding of his right to counsel and found that Tierney had knowingly, intelligently, and voluntarily waived his right to counsel. The court expressly found that Tierney was fit to proceed. Tierney was found guilty as charged and sentenced to five days jail. He appealed and was represented by counsel. The ICA affirmed.

Fitness to Proceed to Trial is a Necessary Finding Before Going to Trial. When the defendant's fitness to proceed "is drawn in question, the issue shall be determined by the court." HRS § 704-405. Determining fitness is based on an examination and report by a medical professional. Id. If the defendant is unwilling to participate in the examination, "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." HRS § 704-405(5). Tierney refused to participate in the examination and so there was no medical opinion as to whether he was fit to proceed. But the report did not contain any opinion as to whether his unwillingness to participate was due to a mental disease, disorder, or defect or if it was even possible to render such an opinion.

Defendant's Unwillingness not an Excuse to Ditch the Report. The HSC held that HRS § 704-405(5) is mandatory. The report "shall" state an opinion as to whether Tierney's refusal to participate was caused by a mental disease, disorder, or defect. After Tierney twice refused to participate, the district court nonetheless chose to rely on its own observations to determine if Tierney was fit to proceed. Without a medical opinion, the court proceeded to trial in violation of HRS § 704-405(5).

The HSC explained that while the court has discretion in determining fitness to proceed, it cannot make that determination without the expert's report. See State v. Castro, 93 Hawai'i 454, 461, 5 P.3d 444, 451 (2000). Tierney's failure to participate did not relieve the court of its burden.

And the Remedy? Without any medical opinion as to whether the refusal to participate was based on a mental impediment, the trial court, according to the HSC, "cannot reasonably be assured that an evaluation under HRS § 704-404(5) has been undertaken by the examiner." So what should the court do?

The HSC presented a few options. According to the HSC, if the defendant keeps refusing, "the court should order that the examiner render an opinion based on 'medical, mental health, social, police, and juvenile records, including those expunged, and other pertinent records in custody of public agencies.'" HRS § 704-404(8). On the other hand, the court can always appoint another examiner.

Justice Nakayama's Dissent. When a defendant's fitness to proceed is questioned, the trial court may suspend proceedings and appoint experts to "examine and report upon the physical and mental condition of the defendant." HRS § 704-404(2). When the examination cannot be finished because the defendant is unwilling to participate, "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). Justice Nakayama wrote that the majority inappropriately read out the words "if possible" from the statute. "The first cardinal rule of statutory construction is that legislative enactments are presumptively valid and, if possible, every word, clause, and sentence of a statute should be interpreted       in such a manner as to give them effect." Sato v. Tawata, 79 Hawai'i 14, 22, 897 P.2d 941, 949 (1995) (Ramil, J., dissenting). That's not, according to Justice Nakayama, what happened here. If the defendant refuses to participate, "the report shall so state[.]" HRS § 704-404(5). That happened here. The report accurately reflected that Tierney got up and left the interview.

If the defendant is unwilling to participate, then "if possible, an opinion" as to whether the refusal was caused by a mental defect should be reported too. Id. For Justice Nakayama, the requirement that the report must include an opinion on why the defendant refused was conditioned on if it was possible to render that opinion. Under these circumstances, it was not possible. Chief Justice Recktenwald joined.