The Constitutional Dimension of the Insanity Defense Requires Colloquy and Waiver of Defense Before Trial
State v. Glenn (HSC June 30, 2020)
Background. Michael Glenn was charged with terroristic threatening in the first degree. Glenn filed a motion to determine fitness to proceed and penal responsibility. The motion was granted and three examiners were appointed to determine his mental capacity and opine on whether he had penal responsibility at the time of the offense. Two of the three examiners found that he was unfit to proceed and that he lacked penal responsibility. Dr. Marvin Acklin, Ph.D. disagreed. He determined that Glenn “appeared” fit and that he was not mentally ill at the time of the offense. At the first hearing, the parties stipulated to the findings in all three reports. Counsel did state on the record that Glenn did not agree with the majority findings that he was unfit to proceed. The circuit court with the Hon. Judge Richard Perkins presiding committed Glenn to the Director of the Department of Health for detention, care, and treatment. Glenn was placed at the Hawai'i State Hospital in Kaneohe.
Glenn was reevaluated after three months of treatment. Counsel again stated that Glenn believed he had no mental health issues. A second round of examinations about fitness to proceed was ordered. The examinations hardly changed. One examiner feared that if “Mr. Glenn is found fit he will receive a punishment for a serious offense for which he lacked cognitive capacity.” The circuit court found that he was still unfit and continued another three months of treatment. Eventually, at Glenn’s request the circuit court found him fit and set a trial date.
At trial, the prosecution presented evidence that the complainant and his cousin were at the Windward City Shopping Center in Kaneohe when they almost bumped into Glenn. Glenn muttered something, kept walking, and then called the complainant a “fat boy.” When the complainant turned around and challenged them to a fight. He pulled a baseball bat out of his backpack and slammed it on the ground so hard that it chipped the pavement. A manager at a nearby Foodland called the police and Glenn was arrested.
Glenn testified in his own defense. He said he took the bat out to protect himself and de-escalate the situation, not to hurt the complainant. He admitted to calling the complainant “fat boy” but explained it was in response to the complainant calling him a dog and the N-word. He explained to the jury he came to Hawai'i to fulfill an “odyssey.” He was a “master mason” working within his “guild” to plant seed, and “lay squares.” He added that on the night of the incident he was at Starbucks networking and working on anatomic nuclei as a “practicing amateur physicist.” He left for McDonald’s to “burn the midnight oil” and work on equations and theorems in his lab. None of the examiners who evaluated Glenn testified.
The circuit court did not provide an instruction on the insanity defense. Glenn was found guilty as charged and sentenced to five years imprisonment. Glenn appealed to the ICA, which affirmed.
The Right to Assert the Insanity Defense is a Fundamental Right Under the Hawai'i Constitution. “The due process guarantee of the Hawai'i Constitution serves to protect the right of an accused in a criminal case to a fundamentally fair trial, the central to the protections of due process is the right to be accorded a meaningful opportunity to present a complete defense.” State v. Matsumoto, 145 Hawai'i 313, 328, 452 P.3d 310, 325 (2019). The HSC examined the deep roots of the insanity defense in Hawai'i and in the common law. It also noted that the Supreme Court of the United States has recently held that the lack-of-penal-responsibility defense is not required by the federal constitution. Kahler v. Kansas, __ U.S. __, 140 S. Ct. 1021, 1025 (2020).
That did not persuade the HSC. “We have long recognized . . .that as the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawai'i Constitution, we are free to give broader protection under the Hawai'i Constitution than that given by the federal constitution.” State v. Vigilielmo, 105 Hawai'i 197, 210-211, 95 P.3d 952, 965-966 (2004). And due process in Hawai'i “is not necessarily limited to that provided by the fourteenth amendment of the United States Constitution.” State v. Bernades, 71 Haw. 485, 487, 795 P.2d 842, 843 (1990).
Given the long history of the insanity defense in the Anglo-American law and in the Hawaiian Kingdom and its later codification in HRS § 704-400, the HSC disagreed with the SCOTUS, found Justice Stephen Breyer’s dissent in Kahler v. Kansas more persuasive. The HSC had “no hesitation in concluding that due process prevents criminal punishment of defendants who, as a result of physical or mental disease, disorder, or defect lack substantial capacity either to appreciate the wrongfulness of the person’s conduct or to conform the person’s conduct to the requirements of the law.” See HRS § 704-400.
The Constitutional Dimension to this Defense Requires an on-the-Record Waiver. The best way to ensure that a defendant’s fundamental rights are protected before they are waived is through a colloquy. State v. Murray, 116 Hawai'i 3, 12, 169 P.3d 955, 964 (2007). Moreover, the HSC held that the penal-responsibility defense is in stark contrast to other defenses. See Treece v. State, 547 A.2d 1054, 1060 (Md. 1988). While other defenses negate criminal liability, lack of penal responsibility eliminates a moral responsibility too. Moreover, when a defendant prevails in this defense, the determination of irresponsibility becomes part of his or her record. HRS § 704-402(3). The trial court also can commit the defendant to an appropriate institution and grant conditional release. HRS § 704-411. The HSC noted that in a lot of ways this defense, with its severe collateral consequences, is more akin to the guilty plea. And so, Hawai'i has joined the other jurisdictions that have required a colloquy. Frendak v. United States, 408 A.2d 364, 830 (D.C. 1979); See also People v. Gettings, 530 N.E.2d 647, 650 (Ill. App. 1988); Jacobs v. Commonwealth, 870 S.W.2d 412, 418 (Ky. 1994), overruled on other grounds in St. Clair v. Commonwealth, 451 S.W.3d 597 (Ky. 2014); Treece, 547 A.2d at 1063; State v. Gorthy, 145 A.3d 146, 157 (N.J. 2016); City of Bismarck v. Nassif, 449 N.W.2d 789, 798 (N. D. 1989); State v. Brown, 890 A.2d 79, 91 (Vt. 2005); State v. Jones, 664 P.2d 1216, 1221 (Wash. 1983); Farrell v. People, 54 V.I. 600, 615 (2011).
The New Colloquy for Defendants who are Waiving the Insanity Defense at Trial. The HSC fleshed out more details about this colloquy. It is required when defense counsel files a notice that the defendant intends to rely on the insanity defense or if “there is reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case.” HRS § 704-407.5(1). The colloquy must take place no later than the court’s pretrial advisement pursuant to State v. Lewis, 94 Hawai'i 292, 297, 12 P.3d 1233, 1238 (2000). This, according to the HSC, gives the defendant a chance to consider his or her options before trial without interfering with the attorney-client relationship. As for what the colloquy should actually cover, the HSC adopted the recent case from New Jersey:
The court should explain to the defendant the nature and purpose of the defense. It should generally describe the evidence relevant to that defense, including expert opinion that could be used to support or counter that defense. The court should inform the defendant of his or her sentencing exposure in the event of a conviction. It should describe commitment and the other potential dispositions that are prescribed by [HRS § 704-411] in the event of an acquittal by reason of insanity. The court should confirm the defendant’s understanding of the insanity defense as it may affect the outcome of the trial, defendant’s risk of incarceration and the prospect of civil commitment.
State v. Gorthy, 145 A.3d at 157. After the colloquy, the trial court should make a “finding on the record whether the defendant’s decision to not rely on the penal responsibility defense was knowing, intelligent, and voluntary.”
It’s a New Rule, Prospective Use Only. This new procedural requirement applies prospectively to cases in which trial begins after June 30, 2020. Tachibana v. State, 79 Hawai'i 226, 238, 900 P.2d 1293, 1305 (1995). And so in this case, there was no error when the circuit court did not colloquy Glenn to make sure he understood he was waiving the insanity defense.
Instructions on the Insanity Defense Still Require Evidence of Insanity (Regardless of the Statute). When at least one examiner states that the defendant lacked penal responsibility, “the court shall submit the defense of physical or mental disease, disorder, or defect to the jury or the trier of fact at the trial of the charge against the defendant.” HRS § 704-408. Glenn argued that because two of the three examiners concluded that he was lacked penal responsibility, there should have been an instruction to the jury even though they did not testify at trial. The HSC disagreed.
HRS § 704-408 must be read alongside HRS §§ 704-402 and 701-115. Statutes “that are in pari materia may be construed together  so that inconsistencies in one statute may be resolved by looking at another statute on the same subject.” State v. Kamanao, 118 Hawai'i 210, 218, 188 P.3d 724, 732 (2008). In other words, “What is clear in one statute may be called in aid to explain what is doubtful in another.” HRS § 1-15. And so HRS § 704-408 must be interpreted in the context of Section 407 and the Hawai'i Penal Code as a whole.
“No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented.” HRS § 701-115. The insanity defense is an affirmative defense. HRS § 704-402. Before the trial court can instruct the jury about the insanity defense, there must be some evidence to support it. The word “shall” in HRS § 704-408 does not mean that it must give the instruction when the examiner reaches that opinion. It is only obligated to give the instruction when there is evidence presented to the jury.
Here the HSC held there was no evidence. True, Glenn’s testimony about having a lab at McDonald’s where he was going to burn midnight oil studying anatomic nuclei was bizarre, but without more the HSC held it was not error for the circuit court to fail in instructing the jury about the insanity defense. Glenn’s conviction was affirmed.