State v. Kotis

Decision Date13 July 1999
Docket NumberNo. 18823.,18823.
Citation91 Haw. 319,984 P.2d 78
PartiesSTATE of Hawai`i, Plaintiff-Appellee, v. William KOTIS, Defendant-Appellant Director of Health, Department of Health, State of Hawai`i, Party In Interest-Appellee.
CourtHawaii Supreme Court

David Glenn Bettencourt, on the briefs, Honolulu, for the defendant-appellant William Kotis.

Donn Fudo, Deputy Prosecuting Attorney, for the plaintiff-appellee State of Hawai`i.

Blair Goto and Heidi M. Rian, Deputy Attorneys General, for the party in interest-appellee Director of Health, Department of Health of the State of Hawai`i.


Opinion of the Court by LEVINSON, J.

The defendant-appellant William Kotis appeals from the order of the circuit court granting the motion of the director of health (the director) for an order authorizing the involuntary administration of antipsychotic medications. On appeal, Kotis argues that: (1) the circuit lacked authority to issue its order; (2) the circuit court's order violated Kotis's constitutionally-protected interest in being free from the involuntary administration of antipsychotic medication because, in the alternative, (a) it is always constitutionally prohibited to authorize such involuntary medication of a defendant immediately prior to, and/or during trial, or (b) the circuit court erroneously applied the burden of proof by the "preponderance of the evidence" rather than by "clear and convincing evidence"; (3) the circuit court erred in taking judicial notice of certain facts in the record; and (4) there was an insufficient evidentiary basis to support the circuit court's findings of fact (FOFs) that (a) due to his mental illness, Kotis posed a danger to himself and to others, (b) the proposed treatment plan was medically appropriate and essential, and (c) alternative treatments had been inadequate.

Kotis's assertions that the circuit court lacked authority to issue an order authorizing the director to administer involuntary medication and that a circuit court may never order the involuntary administration of antipsychotic medications to a defendant before or during trial are without merit. We agree with Kotis that the burden of proof applicable to the Director's motion was proof by clear and convincing evidence. However, because the record does not indicate which burden of proof the circuit court applied with respect to the evidence, this court cannot presume that the circuit court erred. Furthermore, although we agree that the circuit court apparently erred in taking judicial notice of certain "facts," the mistake did not rise to the level of plain error. Finally, we disagree that the circuit court lacked substantial evidence to support its FOFs. Accordingly, we affirm the circuit court's order.


On September 10, 1992, Kotis was indicted for (1) murder in the second degree, in violation of Hawai`i Revised Statutes (HRS) § 707-701.5(1) (1993),1 (2) kidnapping, in violation of HRS § 707-720(1)(e) (1993),2 and (3) terroristic threatening in the first degree, in violation of HRS § 707-716(1)(d) (1993).3 The charges arose from an incident that occurred on or about September 7, 1992, in which Kotis allegedly threatened his wife, Lynne Kotis, and her companion, Gregory Wittman, with a knife, restrained Lynne with intent to terrorize her, and caused Lynne's death while in possession of a firearm.

On September 28, 1993, Kotis filed a notice of his intention to rely on the defense of lack of penal responsibility. On October 19, 1993, he filed a motion for a mental examination by a three-member panel.4 Kotis's motion was granted. Each of the three examiners, Elizabeth Adams, M.D., Peter Bianchi, Ph.D., and Olaf Gitter, Ph.D., reported that Kotis was unfit to proceed to trial. Each of the examiners also opined that Kotis was dangerous to himself and to others due to his mental illness. At the February 16, 1994 hearing on the motion, the prosecution conceded that Kotis was unfit to proceed to trial. In a written order filed on February 17, 1994, the circuit court found Kotis unfit to proceed to trial, pursuant to HRS § 704-405 (1993),5 and therefore suspended the proceedings pursuant to HRS § 704-406 (1993).6 In a subsequent order, the circuit court committed Kotis to the custody of the director.7

On September 7, 1994, during a hearing pertaining to a proposed transfer of the location of Kotis's confinement, see supra note 7, the director orally indicated that he intended to file a motion requesting an order authorizing him to medicate Kotis involuntarily. The director requested that the circuit court appoint a guardian ad litem (GAL) for Kotis to make a recommendation on the motion. The circuit court agreed to appoint a GAL, although it also made clear that Kotis's court-appointed defense counsel remained Kotis's advocate in the matter. The circuit court ordered the director to provide an outline of the specific course of medication being recommended for Kotis, together with a summary of the side effects associated with the drugs proposed for use in his treatment.

The circuit court's written order appointing a GAL was filed on September 12, 1994. On November 25, 1994, the GAL filed an ex parte motion for an order appointing an independent medical examiner to assist him in preparing his report to the circuit court. The circuit court granted the motion in an order apparently filed on the same day, appointing Vit U. Patel, M.D., as an examiner "to assist the [GAL] by rendering information, and by performing other services reasonably related to the [director's] motion for an order authorizing the administration of involuntary medication."

On December 27, 1994, the GAL submitted a report to the circuit court, noting, inter alia, that the basis of the director's claim of Kotis's dangerousness was vague and should be subjected to "further inquiry." Nevertheless, the GAL approved the treatment plan proposed by the director and recommended that it "be instituted, subject to review as needed, based on any adverse health affects to Mr. Kotis." (Emphasis in original.) The GAL attached Dr. Patel's report, which generally approved the course of treatment offered by the director, subject to "some concerns" regarding the use of the medications lithium and Mellaril.

The director's written motion requesting an order authorizing involuntary medication was filed on October 21, 1994, and an amended motion, including various new attachments, was filed on October 28, 1994. The memorandum in support of the director's motion alleged that the order was necessary because Kotis's mental condition rendered him dangerous to himself and others.

A hearing was held on the director's motion on December 29 and 30, 1994. At the hearing, the director's expert witness, Toshiyuki Shibata, M.D., who was qualified in the fields of medicine and psychiatry, testified that he had interviewed Kotis approximately seven times over a period of two and one-half to three months, in sessions ranging in length from ten to forty minutes. Dr. Shibata testified that he had diagnosed Kotis as suffering from "schizoaffective disorder," a condition manifested in Kotis by anger, paranoid delusions, and extreme mood swings. He testified that he had recommended that Kotis be placed on a course of antipsychotic and other medications, outlined in Director's Exhibits 3 and 4,8 which he believed to be "medically appropriate" because Kotis's "delusional belief status prevents him from becoming fit in court" and "the medications would stabilize his mood and potentially decrease his dangerousness."

With regard to Kotis's dangerousness to others, Dr. Shibata testified that Kotis's medical reports from the O`ahu Community Correctional Center (OCCC) indicated that "he ha[d] made threatening remarks to his attending physician," but that he had not threatened or accosted anyone else at OCCC. When asked his opinion "as to whether the defendant ... present[s] a danger to others," Dr. Shibata responded that he "believe[d] that [Kotis] may pose a possible danger to others." (Emphases added.) In this connection, Dr. Shibata opined that "[t]here's no empirical way of measuring or predicting future dangerousness," but noted that he had taken into account the fact that Kotis had been charged with kidnapping, as well as "the fact that he showed mood instabilities, display[ed] lots of anger, ... past substance abuse history, [and] his delusional belief status where he feels threatened by quite a few people." Nevertheless, although Dr. Shibata believed that his proposed treatment would diminish Kotis's dangerousness, he testified that he "couldn't say for a certainty, whether it would be essential" to that objective.

With regard to Kotis's dangerousness to himself, Dr. Shibata testified that he did not believe that Kotis was "imminently suicidal," but noted that "there is always the possibility [,] knowing Mr. Kotis'[s] labile mood, which could swing from agitation to depression." (Emphasis added.) He added that Kotis "has made statements about thoughts of dying, thoughts of committing suicide. He has made several statements about possibly hanging himself, getting the police to shoot him[.]" Dr. Shibata testified that the medications that he had proposed were "standard" for addressing the risk of suicide, inasmuch as they "decrease the mood swings..., making the person more stable emotionally, which would greatly reduce the possibility of suicide." He also noted that "[s]cientific reports indicate that[,] without treatment[,] people [who] ... suffer from mood swings[,] up to 15 per cent will complete the suicide and that number is greatly reduced with the use of medication."

Dr. Shibata also testified that he had considered two "other modalities of treatment" in Kotis's case: psychotherapy and behavior modification. Based on the medical reports from OCCC, Dr. Shibata concluded that these...

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