I concur in the result, but with a different perspective.
Hawaii Revised Statutes (HRS) § 704-403 (1993) reiterates the constitutional due process prohibition against trying a person who lacks the capacity to assist in his own defense. (1) Relatedly, HRS § 704-404 (1993 and Supp. 1999) provides that
[w]henever the defendant has filed a notice of intention to rely on the defense of physical or mental disease, disorder, or defect excluding responsibility, or there is reason to doubt the defendant's fitness to proceed, or reason to believe that [a] physical or mental disease, disorder or defect . . . will or has become an issue in the case, the court may immediately suspend all proceedings[,]"
and upon suspension "shall appoint three qualified examiners in felony cases[.]" HRS § 704-404(1) and (2) (emphases added).
While the term "may" suggests that discretion inheres in the trial court as to whether to appoint examiners, the balance of the pertinent statutory language suggests that only some rational basis for convening a panel is necessary to trigger
the court's appointive power. Absolutely no burden of proof is placed upon the defendant in requesting a panel evaluation. The filing of a notice aside, what would seem to be the most minimal of standards -- that there is "reason" to doubt fitness, or to believe that the defendant's physical or mental responsibility will or has become an issue in the case -- invokes the exercise of the court's discretion. Hence, the court is duty bound to sua sponte convene such a hearing if it itself has or is presented with a rational basis for believing that the physical or mental defect of a defendant will become an issue on the question of fitness or responsibility. Such a rational basis standard sets its face against any grudging application of the statute by the trial courts. (2)
In this case, the fitness of Defendant-Appellant Bryan Castro (Defendant) to proceed to trial had indisputably become an issue in the case despite Defendant's own wishes. Under the instant circumstances it can hardly be questioned that court-appointed counsel acted in good faith and out of a professional duty owed his client and the court when he filed the motion for an examination of Defendant's trial fitness and responsibility for the offense charged. As demonstrated by the court's colloquy with defense counsel, counsel had taken a position which placed him in direct conflict and on a tenuous footing with his own client who had resisted such an examination. Counsel's affidavit was not "premised only on unspecified conduct during his conferences with [Defendant]," State v. Tyrrell, 60 Haw. 17, 23 n.3, 586 P.2d 1028, 1032 n.3 (1978), but referred to specific conduct of Defendant which convinced counsel that an examination should be performed. (3)
"Judges must depend to some extent on counsel to bring" questions of fitness to stand trial to the court's attention. Drope v. Missouri, 420 U.S. 162, 176-77 (1975). Patently, it is at the pretrial stage where such questions, if raised, should be resolved. "[A]t that stage . . . it would have been, at the very least, the better practice to order an immediate examination[.]" Id. at 177. Such a practice removes 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. Obviously, if a defendant is found fit to proceed based upon expert testimony in the record, the question of whether an examination should have been judicially ordered or not is largely removed from judicial re-examination. See State v. Janto, 92 Hawaii 19, 29-30, 986 P.2d 306, 316-17 (1999) (holding that a trial court's determination of a defendant's competency is reviewed under the abuse of discretion standard, and that the trial court acted appropriately in evaluating a defendant's fitness in light of expert testimony). If, on the other hand, expert examination is rejected and it is subsequently determined that an examination should have been conducted, the violation of a defendant's due process rights is irremediable because of "the inherent difficulties of such a nunc pro tunc determination under the most favorable [of] circumstances." Drope, 420 U.S. at 183. See also State v. Soares, 81 Hawaii 332, 349, 916 P.2d 1233, 1250 (1996), reversed on other grounds by Janto, 92 Hawaii 19, 986 P.2d 306. This is especially so if the determination that an examination should have been conducted is made after an imprisoned defendant has served most of his or her term.
In the most egregious of circumstances, a mentally ill defendant who otherwise should have been subjected to examination, HRS § 704-404, and treatment, HRS § 704-406(1) (1993) (providing for commitment of a defendant for "detention, care, and treatment"), may remain untreated in prison and upon his or her release, present a further or greater risk to public safety. Because such a determination may come years after the case has run its course in state court and conceivably on habeas corpus grounds in federal court, retrial of a defendant may be rendered impossible, adversely affecting the community's interest in prosecuting crimes. It is not surprising, then, that in principle the prosecution did not object to Defendant's request for an examination. (4) The defense and Plaintiff-Appellee State of Hawaii, as well as the public, would have benefitted from the resolution of questions raised by counsel's affidavit.
In sum, I believe the statute requires only that there be a rational basis for convening an examination. At the very least, the issue of Defendant's fitness to proceed had become an issue in the case and counsel's affidavit contained facts and observations upon which Defendant's fitness could reasonably be called into question. I would agree, then, that in rejecting Defendant's request for an examination, the court abused its discretion.
I note that defense counsel "reluctantly, given the time and [Defendant's] demands" to go to trial, was amenable to having Defendant examined by one expert rather than by three experts as seemingly mandated in HRS § 704-404(2) for nonfelony cases. Although under the literal language of HRS § 704-404(2) the appointment of "three qualified examiners" is called for, the supreme court has held that the discretion inhering in a trial court to suspend all further proceedings pending a physical or mental examination includes the discretion to appoint only one examiner and thus to initiate a process involving less than a full panel of experts. Tyrrell, 60 Haw. at 21, 586 P.2d at 1031. While trial courts may have seized upon this holding as a means of curtailing the time spent on these types of proceedings, such an approach, in my view, should only be undertaken cautiously. The supreme court qualified its "one expert" holding in Tyrrell, stating that it did "not endorse an examination by a single psychiatrist, based on a single interview with the defendant, as sufficient to remove the question of competency to stand trial in the face of evidence raising a substantial question of competency." Id. at 23 n.3, 586 P.2d at 1032 n.3 (citation omitted). Tyrrell was expressly premised "on the circumstances of [that] case," id., and therefore, may represent an isolated exception to the requirements of administering the fitness procedures under HRS § 704-404.
Finally, the fact that defense counsel did not pursue at trial the defense afforded by HRS § 704-402, is not determinative of whether he may on appeal raise the issue of his client's fitness to proceed. The question of whether Defendant was fit to proceed is a separate one from that of whether any mental or physical defect affected his criminal responsibility for the crime charged. Additionally, I do not believe that Defendant is foreclosed on remand from relying on the HRS § 704-402 defense. In the ordinary course, an expert panel usually performs a dual fitness and responsibility examination of a subject defendant. The rejection of counsel's request for a fitness examination foreclosed any realistic possibility that the court thereafter would appoint experts for any further examination. Indeed, the court's order of October 21, 1997 denied Defendant's motion in its entirety.
SIMEON R. ACOBA, JR.
Associate Judge
1. Hawaii Revised Statutes (HRS) 704-403 (1993) states that
[n]o 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 statute appears somewhat redundant since the ability to assist in one's own defense would seem to incorporate the ability to understand the proceedings.
2. I do not mean to imply that the trial court in the instant case
acted in this manner.
3. All counsel are officers of the court and subject to serious
professional and personal sanctions for filing unfounded affidavits with the
court.
4. At the October 8, 1997 hearing on the motion for mental examination
filed by Defendant-Appellant Bryan Castro (Defendant), the deputy prosecuting
attorney objected to Defendant's motion only because he believed a physical
rather than "mental" examination, as requested by defense counsel, was required: THE COURT: -- and, [Prosecutor], what it is [sic]
that you were about to represent? [PROSECUTOR]: If -- if that's the position
[Defense counsel's] gonna be taking at this point, I
think we're gonna have to object to the motion for a
mental. The Declaration of [Defense c]ounsel . . .
indicates that the [D]efendant may have suffered some
kind of trauma to the head, which possibly resulted in
some brain damage. If that's the case, I don't even know if a one
panel or a three panel is gonna be appropriate. THE COURT: Right. [PROSECUTOR]: He may need a neuro-psyche. THE COURT: Right. [PROSECUTOR]: But that's not what he's moving
for. THE COURT: Right. [PROSECUTOR]: So -- THE COURT: Okay. . . . . THE COURT: Okay. Thank you. . . . . [Defense counsel], that was the point I was gonna
raise, and that's one touched upon by [the Prosecutor].
The, um -- whenever we talk about mental examinations,
more often than not we're talking about, you know, the
softer sciences, the psychiatry and psychology. But here in your declaration, you're talking about
severe head injury, possibility of brain damage, and -- and
the stuff that goes with that. And I was just wondering how
helpful, you know, a panel of psychologists would be to -- to
[Defendant's] case. But I -- I just put that out there. . . . . (Emphases added.) HRS § 704-404 (1993 and Supp. 1999) relates to diseases, disorders
or defects of a physical or mental nature. Obviously, if Plaintiff-Appellee
State of Hawaii or the first circuit court believed a "neuropsych" examination
was required, one should have been ordered under the procedure set forth in HRS
§ 704-404.