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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
29-APR-2021
02:44 PM
Dkt. 44 AMSDO
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
DAVID T. FLEMING,
Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2PC061000570)
AMENDED SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)
Petitioner/Defendant-Appellant David T. Fleming
(“Fleming”) appeals from the Intermediate Court of Appeals=
(“ICA”) September 6, 2017 Judgment on Appeal, remanding the case
to the Circuit Court of the Second Circuit (“circuit court”) to
determine if Fleming was competent at the time he was tried.1
1 The Honorable Joel E. August presided over the case until his
retirement on March 18, 2011. Upon his retirement, the case was assigned to
the Honorable Rhonda I.L. Loo.
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On November 3, 2006, Fleming was charged by indictment
with one count of Sexual Assault in the First Degree.2 Prior to
trial, on October 23, 2007 and again on August 14, 2008,
Fleming’s counsel filed separate Motions for Examination
pursuant to Hawai‘i Revised Statutes (“HRS”) § 704-404 (1993 &
Supp. 2012)3 to determine if Fleming was fit to proceed to trial.
The circuit court granted both motions. On two separate
occasions, Fleming was examined by the same three court-
appointed mental health examiners to determine whether Fleming
had the capacity to understand the proceedings against him and
2 HRS § 707-730(1)(a) (2019) provides that “[a] person commits the
offense of sexual assault in the first degree if . . . [t]he person knowingly
subjects another person to an act of sexual penetration by strong
compulsion[.]”
3 HRS § 704-404 provides as follows:
§ 704-404. Examination of defendant with respect to
physical or mental disease, disorder, or defect
Excluding fitness to proceed.
(1) Whenever the defendant has filed a notice of
intention to rely on the defense of physical or
mental disease, disorder, or defect excluding
responsibility, or there is reason to doubt the
defendant’s fitness to proceed, or reason to believe
that the physical or mental disease, disorder, or
defect of the defendant will or has become an issue
in the case, the court may immediately suspend all
further proceedings in the prosecution. If a trial
jury has been empaneled, it shall be discharged or
retained at the discretion of the court. The
discharge of the trial jury shall not be a bar to
further prosecution.
2
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to assist in his own defense.4 Based on the independent opinions
of all three examiners, on February 27, 2008 and December 3,
2008, the circuit court found Fleming fit to proceed to trial.5
Trial began on January 11, 2010. Fleming elected to
testify in his defense. Prior to the presentation of the
defense’s case, Fleming’s counsel informed the circuit court
that, based on his interactions with Fleming that day, it was
his belief that Fleming was not fit to proceed. Fleming’s
counsel argued to the court:
Judge, before we get the jury in, I have a concern
about whether my client – his right to testify in his, and
I completely understand that. I am concerned, and based on
my discussions with him today, that I don’t believe that
his testimony, that he’s able to assist in his defense to
some degree, without revealing the contents of any
discussions.
4 HRS § 704-404(2) provides:
Upon suspension of further proceedings in the
prosecution, the court shall appoint three qualified
examiners in . . . to examine and report upon the
physical and mental condition of the defendant. . . .
The examination may be conducted on an out-patient
basis or, in the court’s discretion, when necessary
the court may order the defendant to be committed to
a hospital or other suitable facility for the purpose
of the examination for a period not exceeding thirty
days, or such longer period as the court determines
to be necessary for the purpose. The court may
direct that one or more qualified physicians or
psychologists retained by the defendant be permitted
to witness the examination. As used in this section,
the term “licensed psychologist” includes
psychologists exempted from licensure by section 465-
3(a)(3).
5 The terms “fit to proceed” and “competent” are used
interchangeably by both the circuit court and the ICA.
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I just believe that there is a fitness to proceed issue,
especially with regards to his ability to testify and
communicate, and that I believe some of the comments that
may come out, and we’re not talking about confessions, but
would be so highly prejudicial to him, it almost – what may
happen to him is that he could testify and improper
inferences could be made with regards to his testimony.
And I’m not talking about that at all.
That there’s been discussions, which I, at least as an
officer of the Court, and as a defense attorney, have been
doing this for a long time, feel very uncomfortable, even
with this waiver, as well as with the fact that my client
is going to take the stand, and based on what I know about
what he’s going to talk about, some of what he’s going to
talk about, I have some real concerns.
And I think I need to orally move this Court, at least for
the record, I understand we’ve had two prior 704-404 exams,
but I feel it necessary to make an oral motion for a 704-
404 exam limited strictly to fitness to proceed.
The circuit court denied the motion, explaining that
it reviewed the previous two HRS § 704-404 exam reports, and the
circuit court had “not observed Mr. Fleming to have done or said
anything in court that would indicate that he [was] not
competent or fit to proceed.”
Thereafter, Fleming testified in his own defense. On
January 25, 2010, the jury found Fleming guilty of Sexual
Assault in the First Degree.
After the jury verdict, Fleming filed a Motion for New
Trial.6 Fleming argued, in part, that he was incompetent during
the trial. He argued that, because a significant amount of time
had passed since the trial, a hearing retrospectively evaluating
6 Following the trial Fleming retained new counsel.
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whether he had been competent at the time of trial would be
impractical. In support of the argument that Fleming was
incompetent at the time of trial, the defense provided a report
from Marvin W. Acklin, Ph.D. (“Dr. Acklin”), in which Dr. Acklin
opined that Fleming was not fit to proceed during trial and that
he was not currently competent to stand trial. The circuit
court denied Fleming’s Motion for New Trial; however, the court
ordered a third examination pursuant to HRS § 704-404,
specifically to determine if Fleming was competent to proceed to
sentencing. The circuit court’s order denying Fleming’s Motion
for New Trial did not address whether Fleming was competent
during his trial, but did find that Fleming’s counsel failed to
exercise due diligence to obtain evidence to support the claim
of “pre-trial unfitness.” Specifically, the circuit court noted
that the “most critical evidence” supporting a new trial was the
report by Dr. Acklin, which the court determined could have been
discovered well in advance of trial.
Based on the unanimous expert findings of Dr. Acklin
and the three court-appointed examiners that Fleming was
incompetent to be sentenced, both the State and Fleming
stipulated that Fleming was not fit to proceed to sentencing.
Accordingly, the circuit court found Fleming was not fit to
proceed and suspended proceedings.
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Subsequently, on February 12, 2014, following a
contested competency hearing, the circuit court issued its
ruling that Fleming was fit to proceed to sentencing, the
testimony of a treating psychiatrist who had treated Fleming and
two of the three court-appointed examiners testifying that
Fleming was not so fit.
On May 29, 2014, the circuit court filed its “Findings
of Facts, Conclusions of Law, and Order Finding Defendant Fit to
Proceed” in support of its conclusion that Fleming was fit to
proceed to sentencing. On July 18, 2014, Fleming was sentenced
to twenty years of imprisonment.
On July 21, 2014, Fleming filed a notice of appeal.
Fleming argued in his opening brief, in part, that the circuit
court erred in denying his Motion for New Trial and that he had
been incompetent during his trial.
The ICA held, in part, that the circuit court erred in
failing to render a decision regarding Fleming’s competency
during trial and remanded the case to have the circuit court
determine whether Fleming was competent at the time of his
trial. The ICA instructed the circuit court that if it
determined that Fleming was incompetent at trial or was unable
to determine Fleming’s competency at the time of trial, the ICA
would vacate Fleming’s conviction and grant him a new trial.
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Fleming filed an application for writ of certiorari to
review the ICA’s memorandum opinion on November 6, 2017.
Fleming raised the issue as to whether the ICA correctly held
that Fleming was not deprived of due process when the circuit
court refused to provide him a hearing during trial as to
whether he was incompetent pursuant to HRS § 704-404.
After accepting certiorari, this court remanded to the
circuit court to determine whether it was possible to determine
that Fleming was fit during trial.7 Having found it impossible
to determine whether Fleming was fit during trial, the circuit
court duly transferred jurisdiction back to this court.
The circuit court’s conclusion that it is not possible
to determine whether Fleming was competent during trial
necessitates that he receive a new trial. It is well settled
that “the criminal trial of an incompetent defendant violates
7 The Order for Temporary Remand provided:
IT IS HEREBY ORDERED that the case is temporarily
remanded to the Circuit Court. Within 180 days from the
date of this order, the Circuit Court shall, after hearing,
decide whether a retrospective determination as to whether
the defendant was competent during trial is possible[.] If
a retrospective competency determination is possible, the
Circuit Court shall decide whether the defendant was
competent during trial.
Within 10 days after the Circuit Court makes the
aforementioned determinations, the clerk of the Circuit
Court shall supplement the record on appeal with all
documents entered on temporary remand.
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due process.” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996).
This is because
[f]or the defendant, the consequences of an erroneous
determination of competence are dire. Because he
lacks the ability to communicate effectively with
counsel, he may be unable to exercise other “rights
deemed essential to a fair trial.” Riggins v.
Nevada, 504 U.S., at 139, 112 S.Ct., at 1817
(Kennedy, J., concurring in judgment). After making
the “profound” choice whether to plead guilty, the
defendant who proceeds to trial
“will ordinarily have to decide whether to
waive his ‘privilege against compulsory selfincrimination,’ Boykin v. Alabama, 395 U.S.
238, 243,
89 S.Ct. 1709, 1712,
23 L.Ed.2d 274
(1969), by taking the witness stand; if the
option is available, he may have to decide
whether to waive his ‘right to trial by jury’;
and, in consultation with counsel, he may have
to decide whether to waive his ‘right to
confront [his] accusers,’ by declining to
cross-examine witnesses for the prosecution.”
With the assistance of counsel, the defendant also is
called upon to make myriad smaller decisions
concerning the course of his defense. The importance
of these rights and decisions demonstrates that an
erroneous determination of competence threatens a
“fundamental component of our criminal justice
system” - the basic fairness of the trial itself.
Id. at 364 (some citations omitted).
As noted by the ICA, ample evidence subsequent to
trial supported Fleming’s Motion for New Trial. The report of
defendant’s expert, Dr. Acklin, was based upon Fleming’s
behavior during trial. In addition, based on the fitness
examinations after trial, the circuit court determined that
Fleming was not fit to proceed to sentencing. In this context,
the circuit court’s refusal to consider the new evidence that
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Fleming was incompetent during trial constituted an abuse of
discretion.
For the reasons set forth herein, the ICA’s September
6, 2017 Judgment on Appeal, the circuit court’s July 18, 2014
Judgment of Conviction and Sentence, and the circuit court’s
March 16, 2011 Findings of Fact, Conclusions of Law and Order
Denying Defendant’s Motion for New Trial are vacated and the
case is remanded to the circuit court for further proceedings
consistent with this summary disposition order.
DATED: Honolulu, Hawai‘i, April 29, 2021.
Hayden Aluli /s/ Mark E. Recktenwald
for petitioner/defendant-appellant /s/ Paula A. Nakayama
Richard K. Minatoya /s/ Sabrina S. McKenna
for respondent/plaintiff-appellee /s/ Michael D. Wilson
/s/ Todd W. Eddins
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