WATANABE, Acting C.J., LIM and FOLEY, JJ.
Opinion of the court by LIM, J.
Defendant-Appellant Ann Elizabeth Madden (Madden) appeals the April 5, 2000 judgment of the circuit court of the second circuit, the Honorable Douglas H. Ige presiding, that convicted her of the offenses of theft in the second degree and fraudulent use of a credit card, and sentenced her to a five-year term of probation for each offense, the two terms to run concurrently upon conditions, including one year in jail. On appeal, Madden raises two issues.
First, Madden contends that the court committed plain error by failing to unilaterally and on its own initiative provide police reports of the offenses to a psychiatrist examining her for fitness to proceed. We disagree. Hawaii Revised Statutes (HRS) § 704-404(8) (1993) provides:
The court shall obtain all existing, medical, social, police and juvenile records, including those expunged, and other pertinent records in the custody of public agencies notwithstanding any other statutes, and make such records available for inspection by the examiners.
HRS § 704-404(8) does not require the court to unilaterally and on its own initiative provide pertinent records to a fitness examiner. Our review of the record reveals that the court did not neglect its statutory duty to obtain the police reports and make them available to the fitness examiners. We therefore hold that the court did not commit plain error in this respect.
Madden's second point of error is that the court's finding that she was fit to proceed was based upon inadequate evaluations by the experts, thereby violating her right to due process. We do not hold, with Madden, that constitutional due process requires a fitness examination that "comport[s] with a minimum level of professional competence." We instead conclude that the court did not abuse its discretion in finding Madden fit to proceed.
We therefore affirm the judgment of the court.
The State alleged in this case that in May of 1999, Madden and an accomplice used the number of an American Express credit card, belonging to the pilot of the chartered Lear jet who flew them to Maui, to steal lodging, food and gift shop items from the Maui Marriott Resort. On May 24, 1999, the State filed a complaint charging them both with theft in the second degree and fraudulent use of a credit card.
On May 27, 1999, Madden moved for a mental examination pursuant to HRS § 704-404 (1993 & Supp.2000), that provides:
(1) Whenever 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 the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case, the court may immediately suspend all further proceedings in the prosecution. If a trial jury has been empanelled, it shall be discharged or retained at the discretion of the court. The dismissal of the trial jury shall not be a bar to further prosecution.
(2) Upon suspension of further proceedings in the prosecution, the court shall appoint three qualified examiners in felony cases and one qualified examiner in nonfelony cases to examine and report upon the physical and mental condition of the defendant. In felony cases the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be either a psychiatrist, licensed psychologist, or qualified physician. One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. In nonfelony cases the court may appoint either a psychiatrist or a licensed psychologist. All examiners shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. The examination may be conducted on an out-patient basis or, in the court's discretion, when necessary the court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty days, or such longer period as the court determines to be necessary for the purpose. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness and participate in the examination. As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3).
(3) In such examination any method may be employed which is accepted by the professions of medicine or psychology for the examination of those alleged to be suffering from physical or mental disease, disorder, or defect; provided that each examiner shall form and render diagnoses and opinions upon the physical and mental condition of the defendant independently from the other examiners, and the examiners may, upon approval of the court, secure the services of clinical psychologists and other medical or paramedical specialists to assist in the examination and diagnosis.
(4) The report of the examination shall include the following:
(a) A description of the nature of the examination;
(b) A diagnosis of the physical or mental condition of the defendant;
(c) An opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in the defendant's own defense;
(d) An opinion as to the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was impaired at the time of the conduct alleged;
(e) When directed by the court, an opinion as to the capacity of the defendant to have a particular state of mind which is required to establish an element of the offense charged; and
(f) Where more than one examiner is appointed, a statement that the diagnosis and opinion rendered were arrived at independently of any other examiner, unless there is a showing of a clear need for communication between or among the examiners for clarification. A description of the communication shall be included in the report.
(5) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, 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.
(6) The report of the examination, including any supporting documents, shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.
(7) Any examiner shall be permitted to make a separate explanation reasonably serving to clarify the examiner's diagnosis or opinion.
(8) The court shall obtain all existing, medical, social, police and juvenile records, including those expunged, and other pertinent records in the custody of public agencies notwithstanding any other statutes, and make such records available for inspection by the examiners.
(9) The compensation of persons making or assisting in the examination, other than those retained by the nonindigent defendant, who are not undertaking the examination upon designation by the director of health as part of their normal duties as employees of the State or a county, shall be paid by the State.
In her motion, Madden first stated that she was requesting the mental examination
to determine whether [Madden] was suffering from a physical or mental disease, defect, or disorder that would have affected [Madden's] ability to appreciate the wrongfulness of her conduct in allegedly committing the crimes she is charged with, or to conform her conduct to the requirements of the law at the time of the alleged violations.1
(Footnote supplied.) In the request pertinent to this appeal, Madden sought the mental examination to determine
whether [Madden] is fit to proceed pursuant to Section 704-405 of the [HRS].
Madden moved for an examination of her fitness to proceed because
[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.
HRS § 704-403 (1993). When a defendant's fitness to proceed is put at issue,
the issue shall be determined by the court. If neither the prosecuting attorney nor counsel for the defendant contests the finding of the report filed pursuant to section 704-404, the court may make the determination on the basis of such report. If the finding is contested, the court shall hold a hearing on the issue. When the report is received in evidence upon such hearing, the party who contests the finding thereof shall have the right to summon and to cross-examine the persons who joined in the report or assisted in the examination and to offer evidence upon the issue.
HRS § 704-405 (1993). If the court determines that a defendant is not fit to proceed,
the proceeding against the defendant shall be suspended, except as provided in section 704-407, and the court shall commit the defendant to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. If the court is satisfied that the defendant may be released on condition without danger to the defendant or to the person or
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