State v. Glenn

Decision Date30 June 2020
Docket NumberSCWC-16-0000604
Citation468 P.3d 126
Parties STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Michael GLENN, Petitioner/Defendant-Appellant.
CourtHawaii Supreme Court

Emmanuel G. Guerrero, Honolulu, for petitioner

Sonja P. McCullen, Honolulu, for respondent



In order to commit a crime, a defendant must be capable of intending to act wrongfully. The bedrock principle that a crime requires a wrongful intent "is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 96 L.Ed. 288 (1952). For this reason, if a mental illness or impairment results in a defendant lacking substantial capacity to appreciate the wrongfulness of their conduct or to conform their conduct to the law, then the defendant cannot be held criminally responsible. Hawai‘i Revised Statutes (HRS) § 704-400 (2019).1 When, after a mental evaluation, an examiner opines that the defendant lacked penal responsibility, HRS § 704-408 (2019)2 provides that the court "shall" instruct the jury on the penal-responsibility defense. We are now asked to interpret and define the safeguards embedded in this defense.

This case arises from a confrontation between Michael Glenn (Glenn) and the Complaining Witness (CW), which escalated when Glenn allegedly began threatening to strike CW with a baseball bat. Glenn was arrested and charged with one count of Terroristic Threatening in the First Degree.

Early in the proceedings, the Circuit Court of the First Circuit (circuit court) ordered evaluations on Glenn's mental health. Two of the three examiners concluded that Glenn was unfit to proceed and that he lacked penal responsibility. However, Glenn told his examiners that he did not believe he was mentally ill and that he did not want to assert a defense based on lack of penal responsibility. After further evaluations and hearings, the circuit court found Glenn was fit to stand trial, despite mixed conclusions by his examiners.

Rather than raise lack of penal responsibility as a defense, Glenn asserted a theory of self-defense at trial, but was found guilty.

Glenn now argues that the circuit court should have either sua sponte instructed the jury about the defense of lack of penal responsibility, or conducted a colloquy to ensure that Glenn knowingly and voluntarily decided not to raise the defense. The Intermediate Court of Appeals (ICA) affirmed Glenn's conviction, holding that HRS § 704-408 must be read in pari materia with HRS 704-402 and 701-115 and that consequently, " HRS section 704-408 should be interpreted as requiring the trial court to instruct the jury or to obtain a waiver on the insanity defense only when the jury was presented with evidence [supporting the defendant's lack of penal responsibility]." We agree with the ICA that the trial court was under no duty to sua sponte instruct the jury under the circumstances of this case; however, we disagree that courts have no duty to obtain a knowing, intelligent, and voluntary waiver of a penal-responsibility defense.

Lack of penal responsibility is not merely a statutory affirmative defense; it reflects a precept that is fundamental to due process under the Hawai‘i Constitution: "A defendant who, due to mental illness, lacks sufficient mental capacity to be held morally responsible for his actions cannot be found guilty of a crime." Kahler v. Kansas, ––– U.S. ––––, 140 S. Ct. 1021, 1039, 206 L.Ed.2d 312 (2020) (Breyer, J., dissenting). Accordingly, we prospectively hold that once the court receives notice, pursuant to HRS § 704-407.5(1),3 that a defendant's penal responsibility is an issue in the case, the circuit court must advise a defendant of the penal-responsibility defense and obtain a knowing waiver of the defense. Cf. Tachibana v. State, 79 Hawai‘i 226, 236, 900 P.2d 1293, 1303 (1995). However, because we adopt the colloquy requirement prospectively, and insufficient evidence was presented at trial to require a jury instruction on whether Glenn lacked penal responsibility, we affirm Glenn's conviction and the judgment of the ICA.

A. Pre-Trial Proceedings4

On June 5, 2014, the State charged Glenn with one count of Terroristic Threatening in the First Degree, in violation of HRS § 707-716(1)(e) (Supp. 2013).5 Shortly thereafter, Glenn's defense counsel filed a "Motion for the Appointment of Examiners to Determine Defendant's Fitness to Proceed and Penal Responsibility," notifying the court that "there exists a reasonable basis to question Defendant's current fitness to proceed and penal responsibility during the time in question." The State did not object to the appointment of examiners. The circuit court granted the motion, appointing a panel of three mental health professionals to evaluate Glenn and staying the proceedings until the evaluations could be completed.

1. The Examiners’ Reports

In their initial evaluations, two of the three examiners found Glenn unfit to proceed and opined that he lacked penal responsibility at the time of the offense.

Leonard Jacobs, M.D. (Dr. Jacobs), concluded that at the time of Glenn's alleged offense, as well as at the time of his evaluation, Glenn suffered from a major mental illness and was not receiving treatment. Because Glenn's "capacity to appreciate the wrongfulness of his conduct and [ ] conform his conduct to the requirements of the law was substantially impaired by his mental disorder at the time of his alleged actions[,]" Dr. Jacobs concluded that Glenn was not penally responsible.

Like Dr. Jacobs, Tom Cunningham, Ph.D. (Dr. Cunningham), concluded that Glenn was unfit to proceed and lacked penal responsibility. Dr. Cunningham opined that Glenn's "cognitive and possibly volitional capacity was most likely substantially impaired by mental disorder" at the time of the alleged offense. Additionally, Dr. Cunningham concluded that although Glenn was able to understand the proceedings against him, his ability to "assist in his own defense and consult with an attorney rationally was substantially impaired."

The third evaluator, Marvin Acklin, Ph.D. (Dr. Acklin), concluded that Glenn "appeared" fit to proceed and penally responsible. Dr. Acklin explained that at the time of the evaluation, Glenn "appear[ed] to be cognitively and psychiatrically intact" with no psychiatric diagnosis. And he noted that Glenn did not believe he was mentally ill at the time of the offense, and that he did "not understand the necessity, nor ... intend to utilize, a mental defense." Furthermore, Dr. Acklin noted that during his evaluation, Glenn "demonstrated a rational understanding of his circumstances, [and noted] that he [was] not pursuing a mental health defense because of [its] consequences," which included the risks of having it on his record and future stigma. Nothing suggested to Dr. Acklin that "Mr. Glenn's cognitive and volitional capacities [at the time of the alleged offense] were substantially impaired" by mental illness. Accordingly, Dr. Acklin concluded that Glenn likely was penally responsible.

2. October 2014 Fitness Hearing

At the first fitness hearing in October 2014, Glenn's counsel stipulated to the examiners’ reports but informed the court, "[Glenn] did, however, want me to place on the record that he does not agree that he is not fit to proceed. So I agreed to do that on his behalf." Nevertheless, in light of Dr. Jacobs’ and Dr. Cunningham's findings, the circuit court determined that Glenn was not fit to proceed. The circuit court then committed Glenn "to the custody of the Director of [the Department of] Health for detention, care[,] and treatment" and placed Glenn at the Hawai‘i State Hospital (HSH).

3. January 2015 Reevaluation Hearing

After about three months of treatment, HSH requested Glenn's reevaluation. At the hearing for reevaluation, defense counsel again explained that Glenn did not believe he had any mental health issues. However, counsel deferred to the court as to whether to order a reevaluation. The circuit court ordered another round of examinations, but only to evaluate Glenn's fitness.

4. Reevaluations of Glenn's Fitness

Dr. Jacobs and Dr. Cunningham's re-evaluations were substantially similar to their initial assessments. And, although not specifically requested to do so, Dr. Cunningham continued to express reservations about Glenn's penal responsibility: "I fear that if Mr. Glenn is found fit[,] he will receive a punishment for a serious offense for which he lacked cognitive capacity."

After the second evaluation, Dr. Acklin changed his diagnosis of Glenn from "none" to "indeterminate." Dr. Acklin also noted that "a diagnosis of malingering is ruled out since [Glenn] denies mental health problems." Nevertheless, Dr. Acklin concluded that there was "no reason that Mr. Glenn [was] not fit to proceed," although he explained that this conclusion was not the same as an opinion based on positive findings.

5. June 2015 Fitness Hearing

Following the reevaluations, at the June 2015 fitness hearing, defense counsel asked the court to find Glenn fit to proceed, or in the alternative, to order another round of evaluations after a shorter period of treatment. The circuit court determined that Glenn was still unfit, but in light of the defense's request, decided the court would reassess in three months’ time.

6. September 2015 Report from the Hawai‘i State Hospital

Prior to the September fitness hearing, Glenn's HSH treatment team updated the circuit court on Glenn's mental health treatment. HSH concluded that Glenn "has the capacity to work with his attorney in his defense, knows his charge, his available pleas, the possible penalties if found guilty, the roles of various courtroom personnel, and can maintain proper court decorum." Accordingly, HSH...

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    ...influence of a voluntarily ingested substanceWe first provide context to our discussion. As we recently explained in State v. Glenn, 148 Hawai‘i 112, 468 P.3d 126 (2020) :In order to commit a crime, a defendant must be capable of intending to act wrongfully. The bedrock principle that a cri......
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