State v. Nizam

• Decision Date: 21 March 1989
• Docket Number: No. 12635,12635
• Citation: 771 P.2d 899,7 Haw.App. 402
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Deviron M. NIZAM, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 899

771 P.2d 899

7 Haw.App. 402

STATE of Hawaii, Plaintiff-Appellee, v. Deviron M. NIZAM, Defendant-Appellant.

No. 12635.

Intermediate Court of Appeals of Hawai'i.

March 21, 1989.

Syllabus by the Court

Where the defendant is charged with attempted murder and assault in the first degree, and the jury finds him guilty of assault in the first degree only, the defendant has been implicitly acquitted of the attempted murder charge and of the lesser included offense of attempted manslaughter. Consequently, he cannot be retried either on the charge of attempted murder or attempted manslaughter.

A cardinal principle of statutory construction is that each part of a statute should be construed in connection with every other part so as to produce a harmonious whole.

Hawaii Revised Statutes (HRS) chapter 704 is part of the penal code, the legislature's broad and sweeping reform and codification of Hawaii's substantive and procedural criminal laws. Chapter 704 specifies the procedures for pleading and proving the affirmative defense of lack of substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law, or establishing the defendant's fitness to proceed. HRS § 704-404 (1985 & Supp.1988) provides the mechanism for appointment of an examining panel when the defendant gives notice of his intention to rely on the "insanity" defense or there is reason to doubt the defendant's fitness to proceed. HRS § 704-410 (1985 & Supp.1988) prescribes the substance and nature of the expert testimony regarding the defendant's state of mind or fitness to proceed.

Reading HRS chapter 704 in the context of the entire penal code indicates that the legislature intended chapter 704's provisions to apply only to the issues raised under that chapter. They were not intended to apply to the manslaughter defense under HRS § 707-702(2) (1985 & Supp.1988).

The defenses of insanity and extreme mental or emotional disturbance are not the same. The point of the extreme emotional disturbance defense is to provide a basis for mitigation that differs from a finding of mental defect or disease precluding criminal responsibility. The scheme of the penal code indicates an intent to require a precise and uniform method for proving the defense of mental defect or disease, but to allow less restrictive means of proving the mitigating extreme mental or emotional defense of manslaughter.

HRS § 704-410 relates only to testimony regarding the defense of physical or mental disease, disorder, or defect, or the issue of a defendant's fitness to proceed, and the provision of HRS § 704-410(1) that no one who has not examined the defendant shall be competent to testify to an expert opinion as to the defendant's physical or mental condition is not applicable to the defense of extreme mental or emotional disturbance raised in mitigation of a charge of attempted murder pursuant to HRS § 707-702(2).

A defendant charged with attempted murder may raise the defense of extreme mental or emotional disturbance for which there is a reasonable explanation afforded by HRS § 707-702(2) to reduce the charged offense to attempted manslaughter.

A defendant has the constitutional right to present any and all competent evidence in his defense.

Where the accused asserts a defense sanctioned by law to justify or excuse the criminal conduct charged, and there is some credible evidence to support it, the issue is one of fact that must be submitted to the jury.

A defendant's right to present relevant evidence is not without limitation and may, in appropriate circumstances, bow to accommodate other legitimate interests in the criminal trial process.

Restrictions on a defendant's right to present relevant testimony may not be arbitrary, or disproportionate to legitimate interests in the criminal trial process.

Courts have inherent authority to order a defendant to submit to a psychiatric examination by the state's expert where the defendant raises a defense requiring psychiatric testimony and introduces such testimony in support of the defense. The courts' inherent authority is grounded on the courts' responsibilities both to promote the ascertainment of truth and to insure the orderliness of judicial proceedings.

In the absence of contravening authority, the court has inherent authority to order its processes to further the goals of a fair trial, of a search for truth and of a procedure which will reduce or eliminate interruptions in a trial once it has begun.

The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.

Where the trial court struck all expert testimony regarding the defendant's defense of extreme mental or emotional disturbance for which there is a reasonable explanation, there was no evidence to support the defendant's attempted manslaughter instruction and it was correctly refused.

Hearsay may be used to present a case to the grand jury where direct evidence is unavailable, and where it is not deliberately used in place of better evidence to improve the case for indictment, dismissal of the indictment is not required.

Clifford Hunt and Linda C. Ramirez, Deputy Public Defenders, Office of the Public Defender, Honolulu, for defendant-appellant.

Ellen B. Politano, Deputy Pros. Atty., Office of the Pros. Atty., Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

Defendant was indicted in this case for attempted murder, Hawaii Revised Statutes (HRS) §§ 705-500, 707-701(1) (1985) ¹ (Count I), and assault in the first degree, HRS § 707-710 (1985) (Count II), arising out of the infliction of severe injuries on his six-month-old son. He was convicted by a jury on Count II only, a class B felony. HRS § 707-710(2) (1985). Under HRS § 706-662(5) (1985), ² however, Defendant was sentenced to an extended term of imprisonment for twenty years. He appeals. We affirm.

At trial, Defendant raised the HRS § 707-702(2) (1985 & Supp.1988) ³ defense of "extreme mental or emotional disturbance for which there is a reasonable explanation," through the testimony of his only witness, Dr. Daryl Matthews (Dr. Matthews), a psychiatrist, that in his opinion Defendant was under the influence of extreme mental or emotional disturbance at the time of the event. Dr. Matthews' opinion was based on interviews of Defendant, his wife, and his mother, together with a review of the police reports of the event and reports of other doctors who had evaluated Defendant after the alleged offense.

After the defense rested, the trial court denied a motion by Defendant to preclude the State's rebuttal witness, Dr. Harold Hall (Dr. Hall), from testifying. Dr. Hall then testified that some of Defendant's actions at the time of the offense tended to indicate he was not acting under the influence of extreme mental or emotional disturbance. Dr. Hall's testimony was based upon his review of police reports regarding the offense, another police report of a complaint of violence against his wife, interviews of Defendant's wife's sister and father, and the prosecutor's notes of Dr. Matthews' testimony. The State then moved the court to direct Defendant to allow Dr. Hall to interview him and to interview certain psychologists and psychiatrists at Pearl Harbor who had evaluated Defendant's mental condition after the alleged offense. Dr. Hall testified that he needed the information from those interviews in order to form an opinion on Defendant's mental or emotional state at the time of the offense. When Defendant refused to allow the interview on self-incrimination grounds, the court denied the State's motion and, on a further motion by the State, struck Dr. Matthews' testimony. The court also struck Dr. Hall's testimony.

On appeal, Defendant seeks a new trial for attempted manslaughter and assault in the first degree, asserting that the trial court erred in (1) denying his motion to dismiss the indictment; (2) denying his motion to preclude the State's expert from testifying on Defendant's state of mind because he had not personally examined the Defendant; (3) striking the testimony of his expert; (4) refusing to give his requested instruction that extreme mental or emotional disturbance for which there is a reasonable explanation reduces the offense from attempted murder to attempted manslaughter; (5) permitting the State's expert to testify about Defendant's acts of aggression toward people other than the victim, denying his motion to strike that testimony, and denying his mistrial motion based on that testimony; and (6) denying his motion at the end of the State's rebuttal for a continuance to pursue other defenses.

On August 8, 1988, after Defendant filed his opening brief, the State filed a motion in the supreme court to strike Defendant's points (2) through (6), arguing that, since Defendant cannot be re-tried either for attempted murder or attempted manslaughter, the points are moot. The supreme court denied the motion but ordered that the matters raised by the motion would be considered when determining the merits of the appeal.

We agree with the State that Defendant cannot have the remedy he seeks because he cannot be re-tried for attempted murder or attempted manslaughter. HRS § 701-110 (1985); State v. Feliciano, 62 Haw. 637, 618 P.2d 306 (1980). Moreover, we have examined the record with regard to Defendant's points (2) through (6) and find no error. We will first discuss those points.

I.

A.

Defendant objected to allowing Dr. Hall's testimony, relying on HRS § 704-410(1) (1985 & Supp.1988), which provides in pertinent part that,

no one who has not examined the defendant shall be competent to testify to an expert opinion with respect to the physical or mental condition of the defendant, as distinguished from...