    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***




                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                30-JUN-2020
                                                                08:24 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                                  ---o0o---


                           STATE OF HAWAI‘I,
                    Respondent/Plaintiff-Appellee,

                                     vs.

                            MICHAEL GLENN,
                   Petitioner/Defendant-Appellant.


                             SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-XX-XXXXXXX; 1PC14-1-000921)

                              JUNE 30, 2020

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

             OPINION OF THE COURT BY RECKTENWALD, C.J.

                             I.   INTRODUCTION

          In order to commit a crime, a defendant must be

capable of intending to act wrongfully.          The bedrock principle

that a crime requires a wrongful intent “is as universal and

persistent in mature systems of law as belief in freedom of the

human will and a consequent ability and duty of the normal
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



individual to choose between good and evil.”           Morissette v.

United States, 342 U.S. 246, 250 (1952).          For this reason, if a

mental illness or impairment results in a defendant lacking

substantial capacity to appreciate the wrongfulness of their

conduct or to conform their conduct to the law, then the

defendant cannot be held criminally responsible.            Hawai‘i Revised

Statutes (HRS) § 704-400 (2019). 1        When, after a mental

evaluation, an examiner opines that the defendant lacked penal

responsibility, HRS § 704-408 (2019) 2 provides that the court

“shall” instruct the jury on the penal-responsibility defense.



     1    HRS § 704-400 provides:

          (1)   A person is not responsible, under this Code,
          for conduct if at the time of the conduct as a result
          of physical or mental disease, disorder, or defect
          the person lacks substantial capacity either to
          appreciate the wrongfulness of the person's conduct
          or to conform the person's conduct to the
          requirements of law.

          (2)   As used in this chapter, the terms “physical or
          mental disease, disorder, or defect” do not include
          an abnormality manifested only by repeated penal or
          otherwise anti-social conduct.

     2    HRS § 704-408 provides:

                If the report of the examiners filed pursuant
          to section 704-404, or the report of examiners of the
          defendant's choice under section 704-409, states that
          the defendant at the time of the conduct alleged was
          affected by a physical or mental disease, disorder,
          or defect that substantially impaired the defendant's
          capacity to appreciate the wrongfulness of the
          defendant's conduct or to conform the defendant's
          conduct to the requirements of law, the court shall
          submit the defense of physical or mental disease,
          disorder, or defect to the jury or the trier of fact
          at the trial of the charge against the defendant.

                                      2
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



We are now asked to interpret and define the safeguards embedded

in this defense.

           This case arises from a confrontation between Michael

Glenn (Glenn) and the Complaining Witness (CW), which escalated

when Glenn allegedly began threatening to strike CW with a

baseball bat.    Glenn was arrested and charged with one count of

Terroristic Threatening in the First Degree.

           Early in the proceedings, the Circuit Court of the

First Circuit (circuit court) ordered evaluations on Glenn’s

mental health.    Two of the three examiners concluded that Glenn

was unfit to proceed and that he lacked penal responsibility.

However, Glenn told his examiners that he did not believe he was

mentally ill and that he did not want to assert a defense based

on lack of penal responsibility.          After further evaluations and

hearings, the circuit court found Glenn was fit to stand trial,

despite mixed conclusions by his examiners.           Rather than raise

lack of penal responsibility as a defense, Glenn asserted a

theory of self-defense at trial, but was found guilty.

           Glenn now argues that the circuit court should have

either sua sponte instructed the jury about the defense of lack

of penal responsibility, or conducted a colloquy to ensure that

Glenn knowingly and voluntarily decided not to raise the

defense.   The Intermediate Court of Appeals (ICA) affirmed



                                      3
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



Glenn’s conviction, holding that HRS § 704-408 must be read in

pari materia with HRS 704-402 and 701-115 and that consequently,

“HRS section 704-408 should be interpreted as requiring the

trial court to instruct the jury or to obtain a waiver on the

insanity defense only when the jury was presented with evidence

[supporting the defendant’s lack of penal responsibility].”                  We

agree with the ICA that the trial court was under no duty to sua

sponte instruct the jury under the circumstances of this case;

however, we disagree that courts have no duty to obtain a

knowing, intelligent, and voluntary waiver of a penal-

responsibility defense.

          Lack of penal responsibility is not merely a statutory

affirmative defense; it reflects a precept that is fundamental

to due process under the Hawaiʻi Constitution: “A defendant who,

due to mental illness, lacks sufficient mental capacity to be

held morally responsible for his actions cannot be found guilty

of a crime.”   Kahler v. Kansas, 140 S. Ct. 1021, 1039 (2020)

(Breyer, J., dissenting).       Accordingly, we prospectively hold

that once the court receives notice, pursuant to HRS § 704-

407.5(1), 3 that a defendant’s penal responsibility is an issue in


     3    HRS § 704-407.5(1) provides:

          Whenever the defendant has filed a notice of
          intention to rely on the defense of physical or
          mental disease, disorder, or defect excluding penal
          responsibility, or there is reason to believe that
                                                                  (continued)

                                      4
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



the case, the circuit court must advise a defendant of the

penal-responsibility defense and obtain a knowing waiver of the

defense.    Cf. Tachibana v. State, 79 Hawaiʻi 226, 236, 900 P.2d

1293, 1303 (1995).      However, because we adopt the colloquy

requirement prospectively, and insufficient evidence was

presented at trial to require a jury instruction on whether

Glenn lacked penal responsibility, we affirm Glenn’s conviction

and the judgment of the ICA.

                              II.   BACKGROUND

A.    Pre-Trial Proceedings 4

            On June 5, 2014, the State charged Glenn with one

count of Terroristic Threatening in the First Degree, in

violation of HRS § 707-716(1)(e) (Supp. 2013). 5            Shortly

thereafter, Glenn’s defense counsel filed a “Motion for the

Appointment of Examiners to Determine Defendant’s Fitness to

Proceed and Penal Responsibility,” notifying the court that



            the physical or mental disease, disorder, or defect
            of the defendant will or has become an issue in the
            case, the court may order an examination as to the
            defendant's physical or mental disease, disorder, or
            defect at the time of the conduct alleged.

      4     The Honorable Richard K. Perkins presided.

      5     “A person commits the offense of terroristic threatening in the
first degree if the person commits terroristic threatening: . . . [w]ith the
use of a dangerous instrument[.]” HRS § 707-716(1)(e). Terroristic
threatening is defined as “threaten[ing], by word or conduct, to cause bodily
injury to another person . . . or to commit a felony: (1) With the intent to
terrorize, or in reckless disregard of the risk of terrorizing, another
person[.]” HRS § 707-715 (Supp. 2013).

                                       5
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



“there exists a reasonable basis to question Defendant’s current

fitness to proceed and penal responsibility during the time in

question.”   The State did not object to the appointment of

examiners.   The circuit court granted the motion, appointing a

panel of three mental health professionals to evaluate Glenn and

staying the proceedings until the evaluations could be

completed.

     1.   The Examiners’ Reports

          In their initial evaluations, two of the three

examiners found Glenn unfit to proceed and opined that he lacked

penal responsibility at the time of the offense.

          Leonard Jacobs, M.D. (Dr. Jacobs), concluded that at

the time of Glenn’s alleged offense, as well as at the time of

his evaluation, Glenn suffered from a major mental illness and

was not receiving treatment.       Because Glenn’s “capacity to

appreciate the wrongfulness of his conduct and [] conform his

conduct to the requirements of the law was substantially

impaired by his mental disorder at the time of his alleged

actions[,]” Dr. Jacobs concluded that Glenn was not penally

responsible.

          Like Dr. Jacobs, Tom Cunningham, Ph.D. (Dr.

Cunningham), concluded that Glenn was unfit to proceed and

lacked penal responsibility.       Dr. Cunningham opined that Glenn’s



                                      6
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



“cognitive and possibly volitional capacity was most likely

substantially impaired by mental disorder” at the time of the

alleged offense.    Additionally, Dr. Cunningham concluded that

although Glenn was able to understand the proceedings against

him, his ability to “assist in his own defense and consult with

an attorney rationally was substantially impaired.”

           The third evaluator, Marvin Acklin, Ph.D. (Dr.

Acklin), concluded that Glenn “appeared” fit to proceed and

penally responsible.     Dr. Acklin explained that at the time of

the evaluation, Glenn “appear[ed] to be cognitively and

psychiatrically intact” with no psychiatric diagnosis.              And he

noted that Glenn did not believe he was mentally ill at the time

of the offense, and that he did “not understand the necessity,

nor . . . intend to utilize, a mental defense.”            Furthermore,

Dr. Acklin noted that during his evaluation, Glenn “demonstrated

a rational understanding of his circumstances, [and noted] that

he [was] not pursuing a mental health defense because of [its]

consequences,” which included the risks of having it on his

record and future stigma.       Nothing suggested to Dr. Acklin that

“Mr. Glenn’s cognitive and volitional capacities [at the time of

the alleged offense] were substantially impaired” by mental

illness.   Accordingly, Dr. Acklin concluded that Glenn likely

was penally responsible.



                                      7
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



     2.    October 2014 Fitness Hearing

           At the first fitness hearing in October 2014, Glenn’s

counsel stipulated to the examiners’ reports but informed the

court, “[Glenn] did, however, want me to place on the record

that he does not agree that he is not fit to proceed.             So I

agreed to do that on his behalf.”         Nevertheless, in light of Dr.

Jacobs’ and Dr. Cunningham’s findings, the circuit court

determined that Glenn was not fit to proceed.            The circuit court

then committed Glenn “to the custody of the Director of [the

Department of] Health for detention, care[,] and treatment” and

placed Glenn at the Hawai‘i State Hospital (HSH).

     3.    January 2015 Reevaluation Hearing

           After about three months of treatment, HSH requested

Glenn’s reevaluation.      At the hearing for reevaluation, defense

counsel again explained that Glenn did not believe he had any

mental health issues.      However, counsel deferred to the court as

to whether to order a reevaluation.         The circuit court ordered

another round of examinations, but only to evaluate Glenn’s

fitness.

     4.    Reevaluations of Glenn’s Fitness

           Dr. Jacobs and Dr. Cunningham’s re-evaluations were

substantially similar to their initial assessments.             And,

although not specifically requested to do so, Dr. Cunningham



                                      8
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



continued to express reservations about Glenn’s penal

responsibility: “I fear that if Mr. Glenn is found fit[,] he

will receive a punishment for a serious offense for which he

lacked cognitive capacity.”

          After the second evaluation, Dr. Acklin changed his

diagnosis of Glenn from “none” to “indeterminate.”             Dr. Acklin

also noted that “a diagnosis of malingering is ruled out since

[Glenn] denies mental health problems.”          Nevertheless, Dr.

Acklin concluded that there was “no reason that Mr. Glenn [was]

not fit to proceed,” although he explained that this conclusion

was not the same as an opinion based on positive findings.

     5.   June 2015 Fitness Hearing

          Following the reevaluations, at the June 2015 fitness

hearing, defense counsel asked the court to find Glenn fit to

proceed, or in the alternative, to order another round of

evaluations after a shorter period of treatment.            The circuit

court determined that Glenn was still unfit, but in light of the

defense’s request, decided the court would reassess in three

months’ time.

     6.   September 2015 Report from the Hawai‘i State Hospital

          Prior to the September fitness hearing, Glenn’s HSH

treatment team updated the circuit court on Glenn’s mental

health treatment.     HSH concluded that Glenn “has the capacity to



                                      9
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



work with his attorney in his defense, knows his charge, his

available pleas, the possible penalties if found guilty, the

roles of various courtroom personnel, and can maintain proper

court decorum.”      Accordingly, HSH opined, “Mr. Glenn is not in

need of [hospital-level] care or treatment.”

             At the subsequent fitness hearing, on Glenn’s request,

the circuit court found him fit to proceed and set a trial date.

B.   Trial 6

            The following evidence was adduced at Glenn’s jury

trial in March 2016.

            On the night of May 27, 2014, CW and his cousin were

walking towards Foodland at the Windward City Shopping Center in

Kāne͑ohe.      As they were walking, CW almost bumped into Glenn.

CW testified that although he heard Glenn mutter something under

his breath, he kept walking.         CW then heard Glenn call him a

“fat boy.”

            According to CW, when he turned around, Glenn pointed

at CW with his hand shaped like a gun and told CW that he was

going to shoot him.       CW and Glenn both recalled that “the N-

word” was used during the encounter, but each claimed that the

other had said it.       CW’s cousin testified that although he did

not remember exactly what was said, CW “wasn’t name calling, but



     6       The Honorable Rom A. Trader presided.

                                      10
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



the defendant had been calling him fat boy and all that stuff.”

According to CW, Glenn told him to take his Bob Marley shirt

off, and CW did, ready to “scrap.”         Glenn then removed a

baseball bat from one of his bags, raised it above his shoulder,

and began approaching CW.       Glenn whacked the bat on the ground a

few times, hard enough that it may have caused a chip in the

pavement.

            After witnessing the altercation between Glenn and CW,

a Foodland manager called the police, but by the time they

arrived, Glenn had left the scene.         Glenn was arrested shortly

thereafter.

            Testifying on his own behalf, Glenn explained that he

took his bat out to protect himself and to de-escalate the

situation, not to hurt CW.       He admitted that he called CW a “fat

boy,” but explained that he only confronted CW because he

thought he had heard CW call him a dog and “the N-word.”              Glenn

told the jury that he had come to Hawai‘i in 2012, in order to

“fulfill [his] odyssey and [his] expectations, you know, kind of

like the great expectations.”        He explained that he was a

“master mason,” and that, in order to “fulfill [his] degrees

within [his] guild, [he had to] go and plant seeds or [] lay

squares, what we call ‘lay squares.’”          He also explained that on

the night in question, he was at Starbucks, “doing some work,



                                     11
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



networking,” because he was also a “practicing amateur

physicist . . . working on anatomic nuclei[.]”             Glenn stayed at

Starbucks until about 10 p.m., when he decided to go to

McDonald’s to “burn the midnight oil” and “work[] on [his]

equations and theor[e]ms” in his lab.

           None of the examiners who had evaluated Glenn’s penal

responsibility testified at trial.

C.   Jury Instructions and Verdict

           Per the defense’s request, the circuit court

instructed the jury to consider whether Glenn had been acting in

self-defense.     However, the defense neither proposed an

instruction for lack of penal responsibility nor objected to its

omission in the court’s finalized instructions.             The circuit

court did not discuss the possibility of such an instruction

with Glenn or instruct the jury about lack of penal

responsibility sua sponte.

           After deliberations, the jury found Glenn guilty of

Terroristic Threatening in the First Degree.            The circuit court

sentenced him to five years of imprisonment.

D.   ICA Summary Disposition Order

           In his appeal to the ICA, Glenn argued that “(1) the

[c]ircuit [c]ourt erred in its failure to either secure from him

a waiver of the insanity defense or to sua sponte require the



                                      12
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



jury to consider it, and (2) there was insufficient evidence to

support his conviction.”

          The ICA affirmed Glenn’s conviction in a summary

disposition order (SDO).      The ICA first explained that despite

HRS § 704-408’s language that “the court shall submit the

defense of physical or mental disease, disorder, or defect to

the jury or the trier of fact at the trial of the charge against

the defendant,” the text had to be read in pari materia with HRS

§§ 704-402 (lack of penal responsibility is an affirmative

defense) and 701-115 (instructing that “[n]o defense may be

considered by the trier of fact unless evidence of the specified

fact or facts has been presented”).

          Thus, when read in pari materia, the ICA interpreted

HRS § 704-408 as

          requiring the trial court to instruct the jury or to
          obtain a waiver on the insanity defense only when the
          jury was presented with evidence indicating that the
          defendant was affected by a physical or mental
          disease, disorder, or defect that substantially
          impaired the defendant’s capacity to appreciate the
          wrongfulness of the defendant’s conduct or to conform
          the defendant’s conduct to the requirements of law.

          Since no evidence supporting a penal-responsibility

defense was presented to the jury, the ICA concluded that the

circuit court was not required to obtain a waiver from Glenn or

to sua sponte instruct the jury to consider whether Glenn lacked

penal responsibility.      Moreover, the ICA concluded that “[e]ven



                                     13
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



if the Circuit Court submitted the insanity defense to the jury,

there was no context for the jury to consider it.”

           The ICA also found that Glenn’s conviction was

supported by substantial evidence, and accordingly, affirmed his

conviction.    Glenn filed a timely application for writ of

certiorari.

                        III.   STANDARDS OF REVIEW

A.   Constitutional Law

           “We answer questions of constitutional law by

exercising our own independent constitutional judgment based on

the facts of the case.       Thus, we review questions of

constitutional law under the right/wrong standard.”              State v.

Ui, 142 Hawaiʻi 287, 292, 418 P.3d 628, 633 (2018) (quoting State

v. Friedman, 93 Hawaiʻi 63, 67, 996 P.2d 268, 272 (2000)).

B.   Statutory Interpretation

           The interpretation of a statute is a question of law

that this court reviews de novo.           State v. Arceo, 84 Hawai‘i 1,

10, 928 P.2d 843, 852 (1996).

           [O]ur foremost obligation is to ascertain and give
           effect to the intention of the legislature, which is
           to be obtained primarily from the language contained
           in the statute itself. And we must read statutory
           language in the context of the entire statute and
           construe it in a manner consistent with its purpose.




                                      14
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



State v. Ruggiero, 114 Hawai‘i 227, 231, 160 P.3d 703, 707 (2007)

(quoting Gray v. Admin. Dir. of the Court, 84 Hawai‘i 138, 148,

931 P.2d 580, 590 (1997)).

C.   Jury Instructions
           This court may notice the omission of an unrequested

jury instruction as plain error if it appears that “the

defendant has come forward with credible evidence going to the

defense that the jury should have been able to consider . . .

and it would serve the ends of justice and prevent the denial of

fundamental rights to address such an omission.”             State v.

Taylor, 130 Hawai‘i 196, 207-08, 307 P.3d 1142, 1153-54 (2013)

(footnote and internal quotation marks omitted) (quoting State

v. Kikuta, 125 Hawai‘i 78, 95, 253 P.3d 639, 656 (2011)).

                              IV.   DISCUSSION

A.   A Defendant Has a Fundamental Right Under the Hawaiʻi
     Constitution to Assert Lack of Penal Responsibility as a
     Defense

           “The due process guarantee of the Hawai‘i Constitution

serves to protect the right of an accused in a criminal case to

a fundamentally fair trial, and central to the protections of

due process is the right to be accorded a meaningful opportunity

to present a complete defense.”         State v. Matsumoto, 145 Hawaiʻi

313, 328, 452 P.3d 310, 325 (2019) (quotation marks omitted).

Inherent in the promise of due process is the fundamental



                                      15
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



principle that a defendant who, due to mental illness, lacks the

capacity to conform their conduct to the law, or understand that

their conduct was wrongful, cannot be held criminally

responsible.   See Kahler, 140 S. Ct. at 1038 (Breyer, J.

dissenting).   As the California Supreme Court recognized, “the

suggestion that a defendant whose mental illness results in

inability to appreciate that his act is wrongful could be

punished by [] imprisonment raises serious questions of

constitutional dimension under both the due process and cruel

and unusual punishment provisions of the Constitution.”              People

v. Skinner, 704 P.2d 752, 757 (Cal. 1985) (citing, inter alia,

Leland v. Oregon, 343 U.S. 790 (1952) and People v. Coleman, 126

P.2d 349 (Cal. 1942)).      After all, the purposes of punishment

are not served by holding a person responsible for conduct they

did not know was wrong or could not control.           See 21 Am. Jur. 2d

Criminal Law § 45 (“[A] basic postulate of criminal law is a

free agent presented with a choice between right and wrong and

choosing freely to do wrong[;] an insane person is not

punishable because he or she is outside this postulate, and is

incapable of knowing right from wrong.”).

          We acknowledge that the United States Supreme Court

has reached a different conclusion with respect to the due

process clause in the federal constitution.           Kahler, 140 S. Ct.



                                     16
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



at 1025.   However, “[w]e have long recognized . . . that ‘as the

ultimate judicial tribunal with final, unreviewable authority to

interpret and enforce the Hawai‘i Constitution, we are free to

give broader protection under the Hawai‘i Constitution than that

given by the federal constitution.’”         State v. Viglielmo, 105

Hawai‘i 197, 210–11, 95 P.3d 952, 965–66 (2004) (quoting State v.

Arceo, 84 Hawai‘i at 28, 928 P.2d at 870 (1996)).            Thus, “in

Hawaii due process protection under our state constitution is

not necessarily limited to that provided by the fourteenth

amendment of the United States Constitution.”            State v.

Bernades, 71 Haw. 485, 487, 795 P.2d 842, 843 (1990).

           Other states have similarly recognized that under

their state constitutions, due process prohibits the conviction

of a defendant who, due to mental illness or infirmity, could

not understand the wrongfulness of their conduct.             E.g., State

ex rel. Causey, 363 So.2d 472, 473–74 (La. 1978); Finger v.

State, 27 P.3d 66, 68 (Nev. 2001); Sinclair v. State, 132 So.

581, 582 (Miss. 1931) (per curiam).         Indeed, as early as 1910,

the Supreme Court of Washington recognized that the defendant

had a fundamental right under the state constitution to offer

evidence that they were “unable to comprehend the nature and

quality of the act committed”:

           [T]he sanity of the accused at the time of committing
           the act charged against him has always been regarded
           as much a substantive fact, going to make up his

                                     17
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



          guilt, as the fact of his physical commission of the
          act. It seems to us the law could as well exclude
          proof of any other substantive fact going to show his
          guilt or innocence. If he was insane at the time to
          the extent that he could not comprehend the nature
          and quality of the act - in other words, if he had no
          will to control the physical act of his physical body
          - how can it in truth be said that the act was his
          act? To take from the accused the opportunity to
          offer evidence tending to prove this fact is in our
          opinion as much a violation of his constitutional
          right of trial by jury as to take from him the right
          to offer evidence before the jury tending to show
          that he did not physically commit the act or
          physically set in motion a train of events resulting
          in the act.

State v. Strasburg, 110 P. 1020, 1021, 1024 (Wash. 1910).

           “In determining which rights are fundamental, we must

look ‘to the traditions and collective conscience of our people

to determine whether a principle is so rooted there . . . as to

be ranked as fundamental.’”       State v. Mallan, 86 Hawaiʻi 440,

443, 950 P.2d 178, 181 (1998) (quoting Baehr v. Lewin, 74 Haw.

530, 556, 852 P.2d 44, 57 (1993)) (alterations omitted).              And in

this context, “[h]istorical practice overwhelmingly supports the

conclusion that legal insanity is a fundamental principle.”

Finger, 27 P.3d at 80.

           “The idea that the insane should not be punished for

otherwise criminal acts has been firmly entrenched in the law

for at least one thousand years.”         Jonas Robitscher & Andrew Ky

Haynes, In Defense of the Insanity Defense, 31 Emory L.J. 9, 10

(1982).   In Anglo-American jurisprudence, the legal principle

that in order to commit a crime, a person must be “capable of


                                     18
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



perceiving the wrongful character of his act,” can be traced

back to scholars in the 13th Century.          Kahler, 140 S. Ct. at

1040 (Breyer, J. dissenting) (citing 2 Bracton On Laws and

Customs of England 384 (S. Thorne transl. 1968)).

          In 1843, these theories culminated in the legal

definition of insanity by the English House of Lords in

M’Naghten’s Case, “the most famous statement of the traditional

insanity defense[.]”     Kahler, 140 S. Ct. at 1038 (Breyer, J.,

dissenting).   The M’Naghten rule set forth a two-prong test that

focused on a defendant’s cognitive capacity to appreciate the

wrongfulness of their conduct:

          [T]o establish a defence on the ground of insanity, it
          must be clearly proved that, at the time of the
          committing of the act, the party accused was labouring
          under such a defect of reason, from disease of the
          mind, [1] as not to know the nature and quality of the
          act he was doing; or, [2] if he did know it, that he
          did not know he was doing what was wrong.

M’Naghten’s Case, 8 Eng. Rep. 718, 722 (H. L. 1843).

          By the time of the founding of the United States, the

principle of legal insanity was well-established in the common

law: “Judges regularly instructed juries that the defendant’s

criminal liability depended on his capacity for moral

responsibility.”    Kahler, 140 S. Ct. at 1043 (Breyer, J.,

dissenting) (collecting cases demonstrating “the prevailing view

of the law around the time of the founding”).            After M’Naghten’s

Case was decided in the mid-Nineteenth century, American courts


                                     19
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



widely adopted the rule, with some variations, maintaining it

throughout the Nineteenth into the Twentieth Century.             Kahler,

140 S. Ct. at 1045 (Breyer, J. dissenting) (“Variations on the

M’Naghten rules soon became the predominant standard in the

existing states of the United States.”); see, e.g., Commonwealth

v. Rogers, 48 Mass. 500, 501–02 (1844) (“A man is not to be

excused from responsibility, if he has capacity and reason

sufficient to enable him to distinguish between right and

wrong[.]”).   “[T]his long legal tradition. . . reflects the fact

that a community’s moral code informs its criminal law.”

Kahler, 140 S. Ct. at 1047 (Breyer, J. dissenting).

          The legal tradition that penal responsibility should

track moral culpability also has a long tradition in Hawaiʻi.                In

1850, the House of Nobles and Representatives of the Kingdom of

Hawaiʻi adopted a variation of the M’Naghten rule as part of the

new, written penal code. 7     Penal Code of the Hawaiian Islands




     7    The Penal Code of 1850 provided in relevant part:

          Any person acting under mental derangement, rendering
          him incompetent to discern the nature and criminality
          of an act done by him, shall not be subject to
          punishment therefore: Provided, however, that if any
          such person, while capable of discerning the nature
          and criminality of any act, entertained the intent to
          do the same, and subsequently does it in pursuance
          and execution of such intent, he shall be held
          responsible therefor, though the same be done in such
          state of mental derangement[.]

                                                                  (continued)

                                     20
      *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



June 21, 1850, ch. IV, § 4.         That provision remained in force

for over a century.

            In 1862, King Kamehameha IV signed an act establishing

insane asylums and, among other things, permitting courts to

commit to a mental hospital “[a]ny person indicted for any crime

who shall be acquitted by reason of insanity or mental

derangement.”      An Act to Establish an Insane Asylum, § 5,

Appendix to Compiled Laws of the Hawaiian Kingdom 1884 at 507-

08.   In the Penal Code of 1869 and through the remaining years

of the Hawaiian Kingdom, the law on penal responsibility

remained the same, preventing the conviction of anyone unable to

“discern the nature and criminality of [their] act[.]”                Penal

Code of the Hawaiian Kingdom 1869, ch. IV, § 4; see also In re



Penal Code of the Hawaiian Islands June 21, 1850, ch. IV, § 4, available at
http://www.llmc.com/OpenAccess/docDisplay5.aspx?textid=33160589 (last visited
June 26, 2020).

            In Hawaiian, this provision read:

            O ka mea pupule maoli a me ka mea ike ole i kea no o
            kana hana ana, aole ia e hoopaiia; aka hoi, ina i
            manao maopopo kekahi e hana i kekahi hewa i kona wa
            pupule ole, a mahope hooko maoli oia mamuli o kona
            manao kolohe i kona wa pupule, alaila e hoopaiia no
            ia no kela hewa; a pela no, ina loaa ia ia ka pupule
            no kona inu rama a no kekahi hewa e ae paha, e
            hoopaiia no ia.

He Kanawai Hoopai Karaima No Ko Hawaii Pae Aina June 21, 1850 [The Penal Code
of the Hawaiian Islands June 21, 1850], mokuna [chapter] IV, § 4, available
at http://www.llmc.com/OpenAccess/docDisplay5.aspx?textid=33160863 (last
visited June 26, 2020).
       We have recognized that this language created a rule “similar to the
rule of criminal responsibility as established by the M’Naghten case.” State
v. Moeller, 50 Haw. 110, 114, 433 P.2d 136, 140 (1967); see also Territory v.
Alcosiba, 36 Haw. 231, 239 (Haw. Terr. 1942).

                                       21
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



The Mary Belle Roberts, 3 Haw. 823, 828 (Haw. Kingdom 1877)

(recognizing that insanity relieves a person of responsibility

for a crime).    Following the overthrow of the Hawaiian Kingdom

in 1893, the Republic of Hawaiʻi maintained the same rule of

penal responsibility taken in its entirety from the 1869 penal

code of the Kingdom of Hawaiʻi.        Penal Code of the Hawaiian

Islands 1897, ch. 4, § 24.

          Thus, by the time the United States annexed Hawaiʻi in

1898 and established a territorial government in 1900, Hawaiʻi

had recognized for fifty years that a person who was incapable

of understanding “the nature and criminality of an act done” was

“not [to] be subject to punishment.”         See Penal Code of the

Hawaiian Islands June 21, 1850, ch. IV, § 4; Penal Code of the

Hawaiian Islands 1897, ch. 4, § 24.         The law on penal

responsibility remained the same for the duration of Hawaiʻi’s

territorial government and into its first two decades of

statehood.   See Organic Act of April 30, 1900, ch. 339, 31 Stat.

141; Revised Laws of Hawai‘i (RLH) §203-3670 (1915); RLH § 249-4

(1955).   And the insanity defense seems to have been in regular,

if not frequent, use during that time.          See, e.g., Territory v.

Lum Dim, 23 Haw. 792, 794–95 (Haw. Terr. 1917); Territory v.

Fukunaga, 30 Haw. 697, 735 (Haw. Terr. 1929); Territory v.

Alcosiba, 36 Haw. 231, 238 (Haw. Terr. 1942); Territory v.


                                     22
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



Adiarte, 37 Haw. 463, 466 (Haw. Terr. 1947); State v. Foster, 44

Haw. 403, 428–29, 354 P.2d 960, 973 (1960).

           In 1967, the Hawaiʻi Supreme Court observed that the

law on penal responsibility “has been in our statute books

without change since the compilation of the Penal Code of 1850

by Chief Justice Lee.”      State v. Moeller, 50 Haw. 110, 115, 433

P.2d 136, 140 (1967).      And we recognized that “[b]oth Section

249-4 [codifying the insanity defense] and the M’Naghten rule

hold that a person is criminally responsible for his act if he

understands the nature of the act and knew that the act was

wrong.”   Id. at 114, 433 P.2d at 140.         Further, we clarified

that the inability to distinguish between right and wrong is, by

itself, a basis for a finding of insanity:

           [A] defendant is to be deemed insane and not
           criminally responsible if he is found to be suffering
           from a mental derangement and (1) he is incompetent
           to understand the nature of the act committed, or (2)
           if he understood the nature of the act but he was
           unable to distinguish between right and wrong in
           relation to the act.

Id. at 115, 433 P.2d at 140 (holding that the test is not

whether the defendant understood the nature of the act and could

distinguish between right and wrong) (emphasis added).

           In 1972, the Hawaiʻi legislature enacted HRS § 704-400,

when it adopted a new penal code “modeled in great part after

the Model Penal Code.”      See State v. Nuetzel, 61 Haw. 531, 537–

38, 606 P.2d 920, 925 (1980).        As we recognized in Nuetzel, the


                                     23
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



legislature intended HRS § 704-400 to modernize the insanity

defense by providing that (1) “either the volitional or

cognitive aspects of an individual’s processes may be impaired”

and (2) “substantial incapacity,” rather than total incapacity,

was sufficient to establish lack of penal responsibility.              Id.

at 542, 606 P.2d at 927.      Thus, while the language of the rule

changed, the basic principle that a person is not criminally

responsible if they cannot appreciate the wrongfulness of their

conduct remained constant: “A person is not responsible . . .

[if] as a result of physical or mental disease, disorder, or

defect the person lacks substantial capacity either to

appreciate the wrongfulness of the person’s conduct or to

conform the person’s conduct to the requirements of law.”              HRS

§ 704-400(1).    As a result, when the Constitutional Convention

of 1978 reconsidered the text and meaning of the due process

clause in Hawai‘i’s Constitution, it did so after over a century

of consistent recognition, despite four different forms of

government, that the ability to distinguish right from wrong was

essential to criminal responsibility.

          In the summer of 1978, delegates gathered to debate

and consider proposals to amend the state constitution, which

had been drafted in 1950, before statehood.           1 Proceedings of

the Constitutional Convention of Hawaiʻi of 1978, at vii-viii



                                     24
      *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



(1980).    Notably, among the various proposed amendments was the

abolition of the insanity defense, which after its introduction

by Delegate Tam, was sent to the Committee on the Bill of Rights

for review.     Id. at 491.     The Committee voted down the proposal.

Id.   The issue was brought to the floor during the last days of

the convention, at which point the delegates considered sending

a request asking the legislature to review the insanity defense

in order to prevent abuse of the system by individuals who did

not, in fact, merit the defense.            Id. at 494.

            It is striking that delegates on both sides of the

issue agreed that the insanity defense provided crucial

protection to individuals who did not merit punishment, with

Delegate DiBianco, who opposed the resolution, noting “[t]here

are people who have mental disorders such that they are not

criminally responsible,” and, as Delegate Tam explained, “[t]his

is not to say consideration shouldn’t be given where it is

deserved.”     Id. at 493-94.      Thus, even as the convention

discussed asking the legislature to consider the defense, there

was no suggestion that persons should be held criminally

responsible, regardless of their ability to appreciate the

wrongfulness of their conduct - only that there should be a way

to minimize abuse of the defense by those who “in no way qualify

for any type of consideration.”          Id. at 494.      In other words,



                                       25
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



the concern was “not so much with the defense itself as with the

administration of it.”       Id. at 496.     Accordingly, at the end of

the convention, when the delegates submitted their proposed

amendment to the due process clause of the Hawaiʻi Constitution 8

to the electorate – which subsequently approved it - they

preserved the ability to raise a penal-responsibility defense

for defendants who suffered from mental illness to such an

extent that they should not be held criminally responsible.

           In sum, the lengthy history and tradition of the

insanity defense shows that lack of penal responsibility is a

deeply rooted concept, not only in Anglo-American law, but also

in Hawaiʻi.    This fundamental premise of criminal liability has

remained consistent from the time of the Hawaiian monarchy until

today, and it was against this backdrop that the electorate

adopted the existing due process clause in our state

constitution.     Consequently, we have no hesitation in concluding

that due process prevents criminal punishment of defendants who,

“as a result of physical or mental disease, disorder, or

defect . . . lack[] substantial capacity either to appreciate



      8     The delegates ultimately decided not to change the substance of
the due process clause and recommended only a minor change in order to make
it gender neutral, changing “No person shall be deprived of life, liberty or
property without due process of law, . . . nor be denied the enjoyment of his
civil rights” to “No person shall be deprived of life, liberty or property
without due process of law, . . . nor be denied the enjoyment of the person’s
civil rights[.]” 1 Proceedings of the Constitutional Convention of Hawai‘i of
1978, at 831, 1149 (1980) (emphases added).

                                      26
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



the wrongfulness of the person’s conduct or to conform the

person’s conduct to the requirements of law.”

           It is against this backdrop, then, that we turn to

Glenn’s first question presented – whether a trial court must

conduct a colloquy with the defendant regarding the penal-

responsibility defense.

B.   We Adopt a Prospective Rule that, if a Trial Court Receives
     Notice that Lack of Penal Responsibility May Be a Defense,
     the Court Must Obtain a Knowing and Voluntary Waiver of the
     Defendant’s Right to Assert the Defense

           We have long recognized the vital importance of

ensuring that defendants know and understand their rights before

waiving them.     After all, “basic values of personal dignity and

fairness are enhanced when the defendant is presented with an

opportunity to choose among relevant alternatives.”              Tachibana,

79 Hawai‘i at 235, 900 P.2d at 1302 (quoting United States v.

Martinez, 883 F.2d 750, 766-67 (9th Cir. 1989) (Reinhardt, J.,

dissenting)).     Moreover, “defendants are often unaware that they

have certain constitutional rights that may not be waived by

their counsel or that they must object to waiver by counsel at

trial.”   State v. Murray, 116 Hawaiʻi 3, 13, 169 P.3d 955, 965

(2007) (citing Tachibana, 79 Hawaiʻi at 234, 900 P.2d at 1301).

           This court has repeatedly found that a colloquy

between the trial court and defendant is the best way to ensure

that a defendant’s rights are protected.           Id. at 12, 169 P.3d at

                                      27
       *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



964.     Colloquies “promote[] judicial efficiency by establishing

on the record that the defendant has voluntarily waived [his

rights.]”      Id.   For that reason, we require trial courts to

engage in on-the-record colloquies with criminal defendants to

ensure the knowing, intelligent, and voluntary waiver of

numerous trial rights.         See, e.g., State v. Vaitogi, 59 Haw.

592, 601, 585 P.2d 1259, 1265 (1978) (guilty plea); State v.

Ibuos, 75 Hawai‘i 118, 121, 857 P.2d 576, 578 (1993) (trial by

jury); Tachibana, 79 Hawai‘i at 235–36, 900 P.2d at 1300–01

(right to testify); Murray, 116 Hawai‘i at 21, 169 P.3d at 973

(right to have each element proven to a jury beyond a reasonable

doubt); State v. Hernandez, 143 Hawai‘i 501, 515, 431 P.3d 1274,

1288 (2018) (plea of no-contest).            Since the decision to assert

the defense of lack of penal responsibility raises similarly

weighty due process considerations, we impose such a requirement

prospectively here.

             The penal-responsibility defense “stands in stark

contrast from all [] other affirmative defenses.”                Treece v.

State, 547 A.2d 1054, 1060 (Md. 1988).             While other defenses may

negate a defendant’s criminal liability, lack of penal

responsibility eliminates a defendant’s moral culpability as

well. Moreover, unlike other affirmative defenses, a defendant

who prevails on the penal-responsibility defense does not simply


                                        28
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



walk free – the determination of irresponsibility becomes part

of the defendant’s record, HRS § 704-402(3), and can result in

the defendant’s commitment to an appropriate institution or

supervision through conditional release, HRS § 704-411.               Given

the significant consequences that can result, from a practical

standpoint, a determination of lack of penal responsibility is

more akin to a guilty plea than an affirmative defense.               Treece,

547 A.2d at 1060; see also 21 Am. Jur. 2d Criminal Law § 55

(2019) (“[W]hile insanity is an affirmative defense in many

states, the decision to raise the defense is akin to a plea

decision, and as such, the decision rests with the defendant

alone.”).    Thus, the nature of the penal-responsibility defense

and its resemblance to a guilty plea makes a colloquy necessary

to preserve the fundamental fairness of a trial. 9

            We are not alone in adopting this colloquy

requirement.    Numerous other jurisdictions have imposed colloquy

requirements when doubt arises as to a defendant’s penal

responsibility:

            [W]henever the evidence suggests a substantial
            question of the defendant’s sanity at the time of the
            crime, the trial judge must conduct an inquiry
            designed to [ensure] that the defendant has been
            fully informed of the alternatives available,
            comprehends the consequences of failing to assert the



      9     Because the penal-responsibility defense is different from other
statutory defenses that are not required as a matter of due process, our
holding should not be read as requiring a colloquy for every plausible
affirmative defense.

                                      29
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



          defense, and freely chooses to raise or waive the
          defense.

Frendak v. United States, 408 A.2d 364, 380 (D.C. 1979); see

also People v. Gettings, 530 N.E.2d 647, 650 (Ill. App. 1988);

Jacobs v. Commonwealth, 870 S.W.2d 412, 418 (Ky. 1994),

overruled on other grounds by St. Clair v. Commonwealth, 451

S.W.3d 597 (Ky. 2014); Treece, 547 A.2d at 1063; State v.

Gorthy, 145 A.3d 146, 157 (N.J. 2016); City of Bismarck v.

Nassif, 449 N.W.2d 789, 798 (N.D. 1989); State v. Brown, 890

A.2d 79, 91 (Vt. 2005); State v. Jones, 664 P.2d 1216, 1221

(Wash. 1983); Farrell v. People, 54 V.I. 600, 615 (2011).              Cf.

Hendricks v. People, 10 P.3d 1231, 1243 (Colo. 2000) (holding

statutory rule requires an inquiry into a defendant’s decision

not to plead insanity).      But see State v. Peterson, 689 P.2d

985, 991 (Or. Ct. App. 1984) (holding that trial court did not

need to inquire whether a defendant, who was both competent and

represented by counsel, had voluntarily and intelligently chosen

to forgo a defense based on lack of penal responsibility); State

v. Francis, 701 N.W.2d 632, 640, 640 n.5 (Wis. Ct. App. 2005)

(holding that defendant’s counsel could withdraw a plea based on

lack of penal responsibility without requiring the court to

personally address defendant, but nevertheless advising that to

do so was best practice).




                                     30
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



            In Frendak, the first case to impose a colloquy

requirement on this issue, the District of Columbia Court of

Appeals explained that when a defendant chooses not to raise an

insanity defense, the defendant “relinquishes important

safeguards intended to protect persons who are not legally

responsible for their acts from punishment and culpability in

the eyes of society.”      Frendak, 408 A.2d at 378.        While “there

are persuasive reasons why defendants convicted of an offense

may choose to accept the jury’s verdict rather than raise a

potentially successful insanity defense,” in order to ensure

that the defendant relinquishes those safeguards knowingly,

intelligently, and voluntarily, the court held that “a trial

judge must seek the same type of assurance when a defendant

chooses to reject an insanity defense” as when a defendant

pleads guilty or chooses to waive the right to counsel.              Id. at

376, 378.

            Since Frendak, which has been widely followed, many

states have drawn similar comparisons between the waiver of an

insanity defense and waiver of other rights.           See, e.g., Treece,

547 A.2d at 1063 (“The decision to forego a not criminally

responsible plea requires the same ability to choose between

various alternatives as does the decision to plead guilty, to

elect to proceed without counsel, or to waive a jury trial.”);



                                     31
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



Jones, 664 P.2d at 1221 (“As with waiver of all rights, waiver

of an NGI plea must satisfy certain conditions in order to be

constitutionally valid.”); Brown, 890 A.2d at 90 (explaining

that waiver of the right to present an insanity defense “was de

facto a waiver of the essential right in a criminal trial to

present a defense”).

          Thus, we join these other states in adopting the

reasoning of Frendak and hold prospectively that a trial court

has a duty to advise a defendant about the penal-responsibility

defense and to ensure that a defendant knowingly, intelligently

and voluntarily chooses to waive the defense.

          The trial court has the “ultimate obligation to

promote justice in criminal cases.”         State v. Haanio, 94 Hawai‘i

405, 414, 16 P.3d 246, 255 (2001), overruled on other grounds by

State v. Flores, 131 Hawai‘i 43, 314 P.3d 120 (2013).             While a

defendant may have sound reasons for choosing not to assert such

a defense, a court does not “promote justice” by convicting a

defendant of an offense for which he or she lacked penal

responsibility, if the decision to forgo that defense was “based

on ignorance or incomprehension.”         Treece, 547 A.2d at 1063.

          We now turn to the practical considerations for a

penal-responsibility colloquy.        First, a colloquy is required if

defense counsel files a notice that the defendant “inten[ds] to



                                     32
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



rely on the defense of physical or mental disease, disorder, or

defect excluding penal responsibility, or [if] there is reason

to believe that the physical or mental disease, disorder, or

defect of the defendant will or has become an issue in the

case[.]”    HRS § 704-407.5(1); see also Phenis v. United States,

909 A.2d 138, 155 (D.C. 2006) (holding a colloquy is required

when there is “a substantial question of the defendant’s sanity

at the time of the crime” (quoting Briggs v. United States, 525

A.2d 583, 592 (D.C. 1987)).

            Second, the colloquy should take place no later than

the court’s pre-trial Tachibana advisement. 10           See State v.

Lewis, 94 Hawaiʻi 292, 297, 12 P.3d 1233, 1238 (2000).              This will

give the defendant an opportunity to consider their options

prior to the commencement of trial, without overly interfering

in the relationship between the defendant and defense counsel. 11




      10    If a defendant decides to plead guilty after defense counsel
triggered the colloquy requirement by filing a notice under HRS § 704-
407.5(1), a discussion about the penal-responsibility defense may also be
necessary as part of the plea colloquy in order to ensure the defendant’s
guilty plea was made knowingly, intelligently, and voluntarily.
      11    The trial court is free to advise a defendant about the penal-
responsibility defense as soon as practicable to afford a defendant time to
discuss their options with counsel and, if they so choose, to prepare the
defense before trial. Cf. Lewis, 94 Hawai‘i at 297, 12 P.3d at 1238. For
example, in this case, the circuit court could have given an advisement at
the September 2015 hearing, when the court found Glenn fit to proceed and set
a trial date.

                                      33
      *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



            Third, with respect to the content of the advisement,

we adopt the approach recently taken by the New Jersey Supreme

Court:

            The court should explain to the defendant the nature
            and purpose of the defense. It should generally
            describe the evidence relevant to that defense,
            including expert opinion that could be used to
            support or counter that defense. The court should
            inform the defendant of his or her sentencing
            exposure in the event of a conviction. It should
            describe [] commitment and the other potential
            dispositions that are prescribed by [HRS § 704-411]
            in the event of an acquittal by reason of insanity.
            The court should confirm the defendant’s
            understanding of the insanity defense as it may
            affect the outcome of the trial, defendant’s risk of
            incarceration and the prospect of civil commitment.

Gorthy, 145 A.3d at 157.

            At the conclusion of the advisement, the trial court

should make a finding on the record whether the defendant’s

decision to not rely on the penal responsibility defense was

knowing, intelligent, and voluntary.

            We emphasize that, as with a Tachibana colloquy, the

court’s only inquiry should be whether the defendant’s decision

to waive lack of penal responsibility as a defense is knowing,

intelligent and voluntary – not whether it is wise.               Valid

reasons certainly exist for choosing to reject a viable penal-

responsibility defense, not the least of which is the prospect

of commitment to an institution.            See Frendak, 408 A.2d at 376–

77.   Therefore, the trial court must respect the decision of a

competent defendant who is represented by counsel.               Treece, 547


                                       34
      *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



A.2d at 1062 (“The decision is one for the defendant to make,

after proper consultation with counsel, just as a competent

defendant must, ultimately, decide the wisdom of self-

representation or of a plea of guilty.”); United States v.

Marble, 940 F.2d 1543, 1547 (D.C. Cir. 1991) (“[A] district

court must allow a competent defendant to accept responsibility

for a crime committed when he may have been suffering from a

mental disease.”).       Thus, the colloquy given should be in terms

of the defendant’s rights and available alternatives, and the

potential ramifications of the defendant’s decision.               See

Gorthy, 145 A.3d at 157.

            Finally, in adopting this colloquy requirement we

exercise this court’s supervisory powers “to adopt [a] new

procedural requirement[] to prevent error in the trial courts.”

State v. Cabagbag, 127 Hawai‘i 302, 315, 277 P.3d 1027, 1040

(2012).    Therefore, this rule applies prospectively to cases in

which trial commences after the date of this decision.                See

Tachibana, 79 Hawaiʻi at 238, 900 P.2d at 1305.             “[I]n all other

cases, post-conviction evidentiary hearings will be required to

resolve claims” that a defendant did not knowingly and

voluntarily waive lack of penal responsibility as a defense.

Id.




                                       35
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



            Here, as the trial court followed the rules in place

at the time of Glenn’s trial, and as there is nothing in the

current record on appeal indicating that Glenn sought or wanted

to raise a penal-responsibility defense, we do not find that his

due process rights were infringed.

C.    A Circuit Court Does Not Have a Duty to Sua Sponte Instruct
      the Jury About Lack of Penal Responsibility When There is
      Insufficient Evidence Presented at Trial to Support the
      Defense

            Glenn also argues that the circuit court erred by

failing to sua sponte instruct the jury on the defense of lack

of penal responsibility. 12      He asserts that HRS § 704-408

requires a circuit court to so instruct the jury whenever an

examiner concludes that a defendant lacked penal responsibility.

We disagree.    We hold that the court did not have a duty to sua

sponte instruct the jury about lack of penal responsibility

because notwithstanding the examiners’ reports, there was

insufficient evidence presented at trial from which a jury could

conclude that Glenn lacked penal responsibility.

            HRS § 704-408 provides:

            If the report of the examiners filed pursuant to
            [HRS] section 704-404, or the report of examiners of
            the defendant’s choice under [HRS] section 704-409,
            states that the defendant at the time of the conduct


      12    We recognize that this issue is unlikely to be implicated in the
future, since a trial court must respect the decision of a competent
defendant made after a colloquy. However, because we adopt the colloquy
requirement prospectively, this issue may impact cases, like Glenn’s, in
which the trial court did not conduct a colloquy. Accordingly, we choose to
address it.

                                      36
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



            alleged was affected by a physical or mental disease,
            disorder, or defect that substantially impaired the
            defendant’s capacity to appreciate the wrongfulness
            of the defendant’s conduct or to conform the
            defendant’s conduct to the requirements of law, the
            court shall submit the defense of physical or mental
            disease, disorder, or defect to the jury or the trier
            of fact at the trial of the charge against the
            defendant.

(Emphasis added).

            Glenn argues that the word “shall” in HRS § 704-408

means that “a pretrial determination of penal irresponsibility

automatically triggers a mandatory trial action by the court to

submit the defense.”      Because two of the three examiners who

evaluated him concluded that he lacked penal responsibility at

the time of the offense, he asserts that the circuit court was

obligated to instruct the jury about the defense.              However, the

ICA correctly concluded that the circuit court did not have such

a duty because HRS § 704-408 must be read alongside HRS § 704-

402 (2019) 13 and HRS § 701-115 (2019). 14



      13    HRS § 704-402 provides in relevant part: “Physical or mental
disease, disorder, or defect excluding responsibility is an affirmative
defense.”
      14    HRS § 701-115 provides in relevant part:

            (2)   No defense may be considered by the trier of
            fact unless evidence of the specified fact or facts
            has been presented. If such evidence is presented,
            then:
            . . . .
                  (b)   If the defense is an affirmative defense,
            the defendant is entitled to an acquittal if the
            trier of fact finds that the evidence, when
            considered in light of any contrary prosecution
            evidence, proves by a preponderance of the evidence
            the specified fact or facts which negative penal
            liability.

                                      37
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



          “It is a canon of construction that statutes that are

in pari materia may be construed together, so that

inconsistencies in one statute may be resolved by looking at

another statute on the same subject.”          State v. Kamana‘o, 118

Hawai‘i 210, 218, 188 P.3d 724, 732 (2008).           HRS § 1-16 codifies

this rule, providing “[l]aws in pari materia, or upon the same

subject matter, shall be construed with reference to each other.

What is clear in one statute may be called in aid to explain

what is doubtful in another.”        Thus, HRS § 704-408 must be

interpreted in the context of Section 704 and the Hawai‘i Penal

Code as a whole.

          As the ICA recognized, HRS § 704-402 establishes that

lack of penal responsibility is an affirmative defense.              And HRS

§ 701-115, which governs defenses generally, establishes that

“[n]o defense may be considered by the trier of fact unless

evidence of the specified fact or facts has been presented.”

Indeed, “[t]he defendant claiming lack of penal responsibility

‘has the burden of going forward with the evidence to prove

facts constituting the defense and of proving such facts by a

preponderance of the evidence.’”          State v. Uyesugi, 100 Hawai‘i

442, 456, 60 P.3d 843, 857 (2002) (quoting State v. Fukusaku, 85

Hawai‘i 462, 481, 946 P.2d 32, 51 (1997)).          Accordingly, there

must be evidence supporting the penal-responsibility defense


                                     38
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



presented during trial before a court is required to instruct

the jury.

            Additionally, the legislative history of HRS § 704-408

demonstrates that the legislature never intended to impose a

duty on the court to sua sponte instruct the jury about lack of

penal responsibility.       In 1980, the legislature amended HRS

§ 704-408, enacting the language at issue: “[T]he court shall

submit the defense of physical or mental disease, disorder, or

defect to the jury or the trier of fact at the trial of the

charge against the defendant.” (Emphasis added).             In doing so,

the legislature’s purpose was “to require that an insanity

defense be submitted to a jury and disallow post-commitment or

post-conditional release motions based upon factual grounds.” 15

Conf. Comm. Rep. No. 72-80, in 1980 House Journal, at 1121.

            Prior to the amendment, the “insanity defense [could]

be heard by, and ruled on in the first instance, by the court at

a pre-trial hearing.”       Stand. Comm. Rep. 810-80, 1980 House

Journal at 1655.     Under that procedure, a court could grant a

judgment of acquittal for lack of penal responsibility before

the case was even presented to a jury.           Id.   The legislature

decided to eliminate this possibility.           As the conference


     15     In fact, this was likely the legislature’s response to the
concerns about the insanity defense expressed at the Constitutional
Convention of 1978. Cf. S. Comm. Rep. No. 689-80, in 1980 Senate Journal, at
1335.

                                      39
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



committee report explained, “the validity of an insanity claim

should be subject to community scrutiny that a jury, or even a

judge as a fact-finder at trial, provides.”           Conf. Comm. Rep.

No. 72-80, in 1980 House Journal, at 1121.           Thus, “shall” in HRS

§ 704-408 does not mean that the court must instruct the jury on

lack of penal responsibility even if the defendant never raises

the defense at trial, but that the court must submit the

instruction to the jury and cannot dismiss a charge pre-trial

for lack of penal responsibility.

          Reading HRS § 704-408 in conjunction with HRS § 704-

402 and HRS § 701-115, and in light of its legislative history,

we conclude that HRS § 704-408 does not impose a duty on the

trial court to instruct the jury on lack of penal responsibility

when there is insufficient evidence at trial to support giving

the instruction.

          Moreover, as discussed above, significant consequences

result if a defendant is found to lack penal responsibility,

including indeterminate commitment to “an appropriate

institution for custody, care, and treatment.”            HRS § 704-

411(1)(a).   For that reason, asserting the penal-responsibility

defense is a decision that only the defendant can make.

Accordingly, it is questionable whether it would ever be

appropriate for a court to raise lack of penal responsibility



                                     40
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



over a defendant’s objection.         See Jones, 664 P.2d at 1220

(“[B]asic respect for a defendant’s individual freedom requires

us to permit the defendant himself to determine his plea”).

D.   Glenn Did Not Present Sufficient Evidence of His Lack of
     Penal Responsibility to Require the Circuit Court to
     Instruct the Jury About the Defense

           Having established that the circuit court does not

have a duty to instruct the jury on lack of penal responsibility

when there is insufficient evidence offered at trial to support

the instruction, we must determine whether there was sufficient

evidence presented in this case.           We find that there was not.

           None of the examiners who concluded that Glenn lacked

penal responsibility testified at trial, and the parties adduced

no other direct evidence about Glenn’s mental health at the time

of the offense.     We recognize that aspects of Glenn’s testimony

were bizarre.     For instance, he explained that he was a “master

mason,” that he had a lab at McDonald’s, and that he was

studying “anatomic nuclei.”        However, Glenn’s bizarre statements

during trial, without more, would not constitute evidence that

Glenn lacked penal responsibility “as a result of physical or

mental disease, disorder, or defect” at the time of the offense,

and so it would have been futile for the jury to consider the

defense.   Thus, the circuit court did not plainly err in failing

to instruct the jury about lack of penal responsibility.



                                      41
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



                              V.   CONCLUSION

          In sum, we hold that the Hawaiʻi Constitution protects

defendants from being punished for committing a crime if they

lack substantial capacity to appreciate the wrongfulness of

their actions or to conform their conduct to the requirements of

the law; thus, lack of penal responsibility as a defense must be

available to defendants as a matter of due process, and the

decision to assert the defense is for the defendant alone.               For

this reason, we hold prospectively that if the trial court

receives notice that the defendant’s penal responsibility is an

issue in the case, the court must conduct a colloquy with a

defendant to ensure that a waiver of the defense is intelligent,

knowing, and voluntary.      Finally, we hold that a trial court

does not have a duty to sua sponte instruct a jury on lack of

penal responsibility when there is insufficient evidence in the

record to warrant such an instruction.

          However, because we adopt the colloquy requirement

prospectively, the trial court followed the rules in place at

the time of Glenn’s conviction, and there is no evidence in the

record that Glenn’s decision not to assert the defense was not a

knowing, intelligent, or voluntary decision.           And, as there was

insufficient evidence presented at trial to require an




                                     42
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



instruction on lack of penal responsibility, the trial court had

no duty to sua sponte instruct the jury.

          Accordingly, we affirm Glenn’s conviction and the

March 29, 2019 judgment of the ICA.

Emmanuel G. Guerrero                      /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Sonja P. McCullen
for respondent                            /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




                                     43
