State v. Wong

• Decision Date: 17 February 1964
• Docket Number: No. 4343,4343
• Parties: STATE of Hawaii v. James Keawehalu WONG.
• Court: Hawaii Supreme Court

Page 439

389 P.2d 439

47 Haw. 361

STATE of Hawaii v. James Keawehalu WONG.

No. 4343.

Supreme Court of Hawai'i.

Feb. 17, 1964.

Syllabus by the Court

1. In determining whether an order of dismissal is 'an order or judgment, sustaining a special plea in bar' within the meaning of R.L.H.1955, § 212-2, providing for appeal by the State, the court is guided by substance, not form.

2. Where the effect of a dismissal ordered under H.R.Cr.P., Rule 48(b), if it stands, is to bar any further prosecution, the State has a right of review under R.L.H.1955, § 212-2.

3. A dismissal under H.R.Cr.P., Rule 48(b), may be the equivalent of a nolle prosequi that does not work an acquittal, or may be in bar of any further prosecution.

4. The standard for discharge from the State Hospital of a person adjudicated not competent to stand trial and committed under R.L.H.1955, § 258-36, is 'that such person is not mentally ill to an extent requiring mental hospital treatment' (R.L.H.1955, § 81-36, as amended), which is not the same as competency to stand trial.

5. When a person has been adjudicated not competent to stand trial and committed to the State Hospital under R.L.H.1955, § 258-36, so long as he is legally incarcerated the prosecutor is not on notice of any change in the condition which caused the original commitment.

6. Discharge from the State Hospital of a person adjudicated not competent to stand trial and committed under R.L.H.1955, § 258-36, is not an absolute condition precedent to a renewal of the criminal proceedings.

7. A trial judge, without psychiatric examination, has the power to find a defendant competent to stand trial subject to jury determination of the same issue.

8. The time when a person adjudicated not competent to stand trial and committed to the State Hospital under R.L.H.1955, § 258-36, should have been discharged from the hospital, may not be determined upon an application for dismissal of the indictment against him for delay in prosecution. Such person's remedy was to make a frontal attack on the commitment itself.

9. The rights of a defendant against delay in prosecution, protected by H.R.Cr.P., Rule 48(b), are personal to the defendant and may be waived if not properly asserted.

10. A nolle prosequi entered under R.L.H.1955, § 258-36, after adjudication that defendant is not competent to stand trial, has the usual consequence of terminating the pending prosecution without eliminating the possibility of a subsequent prosecution.

11. The sixth amendment, Article I, section 11 of the State constitution, and H.R.Cr.P., Rule 48(b), have no application to delay occurring when there is no pending prosecution.

12. In the case of a defendant whose defense is insanity and who seeks his discharge on the ground of denial of due process due to the delay incident to an adjudication, four years ago, of incompetency to stand trial, something more than the delay must be shown.

Herbert H. Tanigawa, Deputy Pros. Atty., City and County of Honolulu, Honolulu (John H. Peters, Pros. Atty., City and County of Honolulu, Honolulu, on the briefs), for appellant.

Hideki Nakamura and Myer C. Symonds, Honolulu (Bouslog & Symonds, Honolulu, on the brief), for respondent.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

LEWIS, Justice.

Defendant, who was in prison serving sentences for robbery and other offenses, escaped and while at large, on or about July 7, 1956, committed murder in the first degree, i. e., 'with extreme atrocity and cruelty,' ¹ according to the indictment before us.

This is the second indictment for the same offense. The present indictment, designated Criminal No. 33108 in the Circuit Court, was returned May 17, 1962 after defendant was discharged from the rolls of the State Hospital, formerly known as the Territorial Hospital, on February 27, 1962. The first indictment was returned July 25, 1957, after commitment by a magistrate on August 24, 1956, Criminal No. 29683.

Between the date of the 1956 commitment by the magistrate and February, 1958, defendant twice was examined by a psychiatric commission appointed under R.L.H.1955, § 258-36 ² (then R.L.H.1945, § 10826 as amended) in Criminal No. 29244 in which the charge was escape. The first examination was pursuant to a motion made on November 29, 1956 by defendant's court-appointed counsel in the escape case. In response to this motion the court, by an order filed December 12, 1956, appointed a commission consisting of Dr. Robert S. Spencer, who was the 'designated psychiatrist of the territorial hospital,' and Drs. Pershing Lo and Richard Kepner. The doctors were directed 'to determine whether or not, at the time of the alleged commission of the offense in the above named case, alleged to have been committed on the 1st day of July, 1956, he, the said defendant, was acting under mental derangement, rendering him incompetent to discern the nature and criminality of his acts, and to determine whether or not, at the present time, the said defendant is legally sane, and/or to determine the mental condition of the said defendant and the existence of any mental disease or defect which would affect his criminal responsibility herein.' Pursuant to this appointment the commission reported on April 23, 1957:

'As a result of our examinations, observations, and consideration of all available pertinent data, we are of the opinion that, at the time of the alleged commission of the offense in the above-named case, he was not acting under mental derangement rendering him incompetent to discern the nature and criminality of his acts. We are, however, of the opinion that, at the present time, the said defendant is suffering from a major mental illness or, in other words, from a psychotic reaction.'

An indictment thereafter having been returned in the murder case defendant was brought before the court on July 26, 1957 and counsel was appointed for him though according to the minutes 'defendant stated he did not want counsel.' (In the escape case he had requested the court to appoint counsel on November 16, 1956, and counsel had been appointed for him on that day. Different counsel was appointed in the murder case.)

After the appointment of defense counsel in the murder case continuances were sought and allowed on the ground defendant was undergoing electrical treatments. On August 28, 1957 counsel in the murder case was present at a hearing held in the escape case, at the conclusion of which the court ordered the prosecutor to submit a memorandum 'on what the law is as to when a person is of sufficient normal mentality to stand trial.' The required memorandum was submitted September 11, 1957, and on September 13, 1957 the State moved for a further examination pursuant to R.L.H.1955, § 258-36. Thereupon the court appointed the same three doctors as a commission 'to determine whether or not, at the present time, the said Defendant is legally sane, and/or to determine whether or not the defendant has the mental capacity to understand the nature and object of the proceedings against him, to comprehend his own condition in reference to such proceedings, and can, with the assistance of his attorney, make a rational defense.' This motion and order, like the first ones, were made in the escape case, and the commission made a report therein dated January 14, 1958, filed on or about January 30, 1958, concluding:

'As a result of our examinations, observations, and consideration of all available pertinent data, we are of the opinion that, at the present time, the said Defendant is still suffering from a major mental illness, or, in other words, from a psychotic reaction, as was reported by the provious commission to the Honorable W. Z. Fairbanks on April 23, 1957.

'We are therefore of the opinion that, at the present time, this Defendant does not have the mental capacity to understand the nature and object of the proceedings against him, to comprehend his own condition in reference to such proceedings, and to make a rational defense, even with the assistance of his attorney.'

On February 20, 1958 the following occurred:

(a) An order was made and entered in the escape case adjudging that the defendant 'is now mentally ill' and committing him 'to the Territorial Hospital, there to be detained as an insane person until discharged as provided by law; that prior to being discharged, the Public Prosecutor's Office and the Honolulu Police Department shall be duly notified.'

(b) A motion for nolle prosequi was made in each case. In the murder case said motion was 'for the reason that James Keawehalu Wong, the defendant above named, in criminal case no. 29244 Territory of Hawaii vs. James Keawehala [sic] Wong, Escape, was adjudged mentally ill, and pursuant to the provisions of Sec. 258-36 Revised Laws of Hawaii, 1955, on the 20th day of February, A.D.1958 was committed to the Territorial Hospital, there to be detained as an insane person until discharged as provided by law.'

(c) A joint hearing was held in the two cases on the motions for nolle prosequi. Each member of the commission was examined. Defense counsel in the murder case was present.

(d) A nolle prosequi was entered in each case.

Thereafter the Attorney General, by a letter of February 25, 1958, advised that under R.L.H.1955, § 81-12, Oahu Prison might be designated by the Director of Institutions, who was in charge of both the hospital and the prison, as a 'special' or 'separate' ward of the Territorial Hospital. The record does not show whether such an order was made but does show that defendant remained at the prison, where he was examined by Dr. Christopher Bull on February 27, 1958, shortly after the Attorney General's letter. We will have occasion hereafter to consider in more detail this and other visits made by psychiatric consultants of the Territorial Hospital.

After defendant's discharge from the hospital's rolls on February 27, 1962 and subsequent indictment on May...