State v. Tyrrell

• Decision Date: 16 November 1978
• Docket Number: No. 5987,5987
• Citation: 60 Haw. 17,586 P.2d 1028
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. David F. TYRRELL, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1028

586 P.2d 1028

60 Haw. 17

STATE of Hawaii, Plaintiff-Appellee, v. David F. TYRRELL, Defendant-Appellant.

No. 5987.

Supreme Court of Hawai'i.

Nov. 16, 1978.

Syllabus by the Court

1. The impanelling of a board of examiners to examine and report on the physical and mental condition of a defendant alleged incompetent to stand trial rests in the sound discretion of the trial court. HRS § 704-404.

2. Failure of the trial judge to impanel a board of examiners to examine and report on the physical and mental condition of defendant did not violate defendant's due process rights where defendant had been found competent by a single psychiatrist and the indicia of incompetency were weak.

3. Instruction that voluntary intoxication was not a defense to the commission of a crime was not plain or fundamental error or a violation of due process where instructions as a whole properly indicated that the jury could consider the effect of intoxication on defendant's state of mind.

4. A defendant cannot complain of an erroneous instruction which benefits him by enlarging the jury's opportunity to mitigate the offense.

5. Effective counsel is not errorless counsel but counsel whose assistance is within the range of competence demanded of attorneys in criminal cases.

Alvin T. Ito, Deputy Public Defender, Honolulu, for defendant-appellant.

Paul H. Toyozaki, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee. Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

This appeal is from a conviction of murder in violation of HRS § 707-701. Appellant's opening brief states the victim and appellant were at appellant's home on a Sunday evening, both intoxicated. They commenced fighting, appellant hit the victim's head against some steps, and the victim fell from the steps to the ground. The next morning appellant and one Tongelao placed the victim in the trunk of appellant's car where he was later found dead. There was testimony that Tongelao had been seen jumping on a stick placed over the victim's neck and that Tongelao hit the victim on the back of the head with a rake. According to medical experts, death occurred as the result of a blow to the head.

In this appeal, appellant raises questions with respect to the disposition of a pretrial motion for a psychiatric examination to determine competency; the instructions given to the jury on voluntary intoxication and manslaughter; and the effectiveness of the assistance provided by appellant's counsel. The state of the record with respect to each of these issues will be outlined as we separately discuss the issues below. We affirm.

I

Appellant contends that the trial court was both statutorily and constitutionally barred from proceeding with the trial without more extensive inquiry into his competence to stand trial. The question of appellant's possible incompetence was raised prior to trial by appellant's motion for a mental examination under HRS § 704-404. ¹ As support for the motion appellant's counsel submitted an affidavit stating his belief that appellant was mentally disturbed and reporting that appellant had been treated at mental health clinics for a chronic alcoholic problem. The affidavit also noted that a jail counselor had observed instances of irrational behavior and that the police investigation indicated appellant may have acted under extreme emotional distress. The motion sought a determination both of appellant's mental condition at the time of the alleged offense and at the present time. ²

In response, the trial court ordered appellant examined by a State-employed psychiatrist. Approximately six weeks after the date of the order, the psychiatrist reported that, in his opinion, appellant neither demonstrated any indication of mental defect or disorder which would affect his criminal responsibility nor lacked substantial capacity to understand the proceedings against him and to assist in his own defense. There were no further pleadings or proceedings related to appellant's competency, and the case proceeded to trial.

The issue raised by appellant has two aspects. We must first consider whether HRS §§ 704-404 and -405 entitled appellant, upon his motion, to the appointment of a panel of three examiners and to a hearing upon their report on his competency. If we find no deprivation of a statutory right, then we must consider whether the procedure followed by the court afforded him due process as guaranteed by the fourteenth amendment of the United States Constitution and article I, section 4 of the Hawaii Constitution.

A

HRS § 704-403 provides:

Physical or mental disease, disorder, or defect excluding fitness to proceed. No person who as a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.

In order to carry out this mandate, under HRS § 704-404 the court may suspend all further proceedings whenever (a) the defendant has filed a notice of intention to rely on the defense of physical or mental disease, disorder or defect excluding responsibility, (b) there is reason to doubt his fitness to proceed, or (c) there is reason to believe that the physical or mental disease, disorder or defect of the defendant will or has become an issue. The statute further provides that upon such suspension, the court shall appoint a State-employed physician or psychologist and two additional "unbiased" physicians, or a physician and a psychologist, to examine and report upon the physical and mental condition of the defendant. The court may order the defendant committed to a hospital or other suitable facility for the purpose of the examination, and sets forth requirements with respect to the conduct of the examination and the content of the report.

The procedure upon receipt of the report is provided by HRS § 704-405. If there is no dispute as to the finding of the panel, the court may determine the defendant's competency on the basis of the report. If the finding is contested, then a hearing is required.

Appellant reads these statutes as requiring the appointment of a panel of examiners and the attendant right to a full hearing if the finding is disputed whenever the defendant's ability to stand trial is questioned. We do not agree.

As originally enacted in 1972, HRS § 704-404 provided that upon the occurrence of any of the three circumstances mentioned above, the court "shall" suspend further proceedings and appoint the panel of three examiners. By Act 136, Sess.L.1973, the section was amended to substitute "may" for "shall". The legislative history indicates that the purpose of the change was to make the action of the court discretionary rather than mandatory. House Standing Committee Report No. 726, 1973; Senate Standing Committee Report No. 858, 1973. We conclude from this that the impanelling of a board of three examiners rests in the sound discretion of the court.

In the present instance, the court responded to appellant's motion by ordering an examination by a single psychiatrist. We view this action as an effort by the court to arm itself with another, more reliable opinion preparatory to exercising its discretion to proceed with the examination into appellant's competency by a panel of examiners as prescribed by statute. When the psychiatrist's report wherein appellant was found to be competent to stand trial was compared to the observations recorded in counsel's affidavit, the decision of the court to terminate the inquiry at that point was clearly within the discretion vested in it by § 704-404.

We hold that there was no abuse of the court's discretionary power. What was before the court was insufficient to compel the exercise of its discretion to proceed with a statutory examination into appellant's competency. Appellant has not contended that we could find, and we do not find, from the record before us that he was in fact so lacking in capacity that his trial was proscribed by § 704-403. Accordingly, he fails to show any deprivation of a statutory right.

B

Failure of a state court "to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial" in violation of the fourteenth amendment. Drope v. Missouri,420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975). Since the issue is the defendant's incompetency, it is the duty of the trial court to order Sua sponte a hearing on competency when what is before it sufficiently indicates that the defendant may be incompetent to stand trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Where there is no dispute as to the relevant evidence before the trial court, it is for the reviewing court to determine what inferences are to be draw from the undisputed facts and whether further inquiry into the defendant's competence was required. Drope, supra, 420 U.S. at 175, 95 S.Ct. 896.

Appellant would carry the constitutional analysis further and contends that in this case due process required that appellant be examined by a panel of three examiners in accordance with the statutory procedure. But appellant has referred us to no authority indicating that the statutory procedure is constitutionally mandated. The court carefully points out in Drope that its conclusion that a statutory procedure is constitutionally adequate to provide the inquiry into competency required for due process does not imply that the statutory procedure must be followed in order to provide due process. 420 U.S. at 172, 95 S.Ct. 896. Moreover, no general standard has been prescribed in these cases with respect to the nature or quantity of evidence necessary to require resort to a constitutionally adequate procedure.

In Robinson, ...