1477_15.pdf

Criminal Responsibility

HAROLD V. HALL

SANDRA B. MCPHERSON

STUART W.TWEMLOW

ERROL YUDKO

The Hawaii Revised Statutes (HRS) deﬁnes pathological intoxication as

“intoxication

grossly excessive

in degree, given the amount of the intoxicant,

to which the defendant

does not know

the defendant is susceptible and which

results from a

physical

abnormality of the defendant.” HRS §702-230(5)(c)

(emphasis added).

Despite frequent attempts by defendants to present voluntary intoxica-

tion as pathological intoxication, and therefore as an exculpating factor, the

courts have consistently maintained that voluntary intoxication is not admis-

sible to negate state of mind to establish an element of the offense. See

State

v. Souza

(1991);

State v. Hall

(1983);

State v. Freitas

(1980);

State v. Nuetzel

(1980).

(1991), the defendant admittedly smoked methamphet-

amine just before he stabbed the victim in the back with a knife. Souza then

repeatedly stabbed the victim as the latter attempted to escape, and then

pursued the victim in a car, grazing his leg as the victim jumped into the

bushes. Souza was subsequently arrested, charged, and convicted of

attempted murder in the second degree and unauthorized control of pro-

pelled vehicle. On appeal, the Hawaii Supreme Court held that voluntary

intoxication was not admissible and that it was a gratuitous defense that is

not constitutionally protected as a defense to criminal conduct.

Psychological and psychiatric experts have not been deterred by the

courts’ ostensibly clear rulings. In

State v. Souza

State v. Romel

(1990), the facts were

, 1997.) On June

30, 1988, 18-year-old Romel shot his summer-school teacher while she was

teaching English at Aiea High School. At trial, Romel testiﬁed that he had

been smoking crystal methamphetamine since his junior year and had

smoked “ice” every day of summer school up to the time of the shooting.

Prior to the shooting, he smoked ice before going to school with his gun. He

further testiﬁed that the ice made him feel paranoid, and that he believed

that the victim-teacher had been picking on him.

Tradewind Insurance

Co., Ltd. v. Stout

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straightforward. (See

A psychiatrist based in Honolulu testiﬁed that ice smokers develop a

paranoid psychosis similar to the symptoms of paranoid schizophrenia. In a

further restatement of general ﬁndings from the literature, she observed that

large quantities of ice make a person “very paranoid and delusional.” Based

on her interview of Romel, she concluded that he had experienced a “severe

paranoid hallucinatory or persecutory state,” had gotten to the point of

“absolute desperation,” and “felt he had no recourse but to try to kill [the

victim], kill the object of his pain.” Unsupported by any statistics or base rate

information, she speculated that it “was 99.9 percent that he was not able to

choose to stop” taking methamphetamine. She then concluded that the

defendant would not have shot the victim had he not been methamphetamine

intoxicated.

A clinical psychologist testiﬁed that, based on his interview of the defen-

dant and his mother, Romel showed behavior consistent with ice abuse. Based

on his interview and police reports, he conjectured that Romel had a minimal

history of acting out. He then opined that the chances of the shooting occur-

ring “without some kind of drug involvement would have been negligible,

minimal.” He then added that ice “was a major, major contributing factor, if

not the causal one of what [Romel] did.”

The state’s expert agreed with the expert psychiatrist’s conclusion that,

at the time of the shooting, Romel was paranoid and deluded. He then opined

that Romel’s state of mind “was a classic picture of focused delusion,” mean-

ing the false belief directed at a particular set of circumstances. A particular

person “is the one responsible for everything and right or wrong[,] everything

kind of comes down on that one person.” This expert also failed to incorpo-

rate the defendant’s probable history of violence, especially under metham-

phetamine. Had such an evaluation been performed, the “focused delusion”

may have been found to be directed at parties who placed expectations for

performance on the defendant.

The jury in the

Romel

State v. Holbron

(1995), unlike those in the

case, experts offered diagnoses of multiple mental conditions to

explain methamphetamine-related violence. In

, on April 21, 1990,

the defendant, in what appeared to be heinous conduct, threw a plate of food

brought to him by his girlfriend at her head, then threw a radio at her.

Holbron then asked her, “You ready to f_____ die?” He then poured gasoline

on her and attempted to set her aﬁre with a match. The attempt failed, but

a second match ignited the gasoline and the victim suffered severe burns

Holbron

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case decided beyond a reasonable doubt that the

defendant intended to shoot his teacher. Romel was convicted of attempted

murder in the second degree, which meant that, despite the proffered con-

clusions of the experts on the accused’s drug use, the jury believed he had

formed the speciﬁc intent to kill his teacher.

In the more recent case of

Romel

trying to extinguish the ﬂames. The defendant ran out of the house and down

the street. The house was destroyed by ﬁre.

Holbron did not dispute the facts, but instead offered the defense that

he had “potentially suffered a lot of trauma to the head … and that he has

recognized organic difﬁculties in the way his brain works and the way he

functions in a day-to-day situation.” One of the defense experts testiﬁed that

Holbron’s right frontal lobe was damaged, which created difﬁculties in

impulse control. A second defense expert diagnosed Holbron’s condition as

Organic Mental Disorder NOS and an Antisocial Personality Disorder. A

third expert diagnosed substance-induced Organic Mental Disorder and

Methamphetamine Use.

The defense theory, as argued to the jury on the basis of cerebral damage,

was that Holbron’s bizarre actions clearly indicated that he did not have the

requisite state of mind to commit attempted murder. Obviously referring to

the amotivational effects of methamphetamine and brain damage, among

other factors, his defense attorney then maintained that Holbron was not

sufﬁciently “aroused” by the events of the alleged crimes to the point where

he would have formed the speciﬁc intent to cause the victim’s death. The

defense attorney argued that “if anything, [Holbron] acted recklessly.” The

trial ended with the return of the jury’s guilty verdict after 29 minutes of

deliberation.

Pathological intoxication has been successfully used as a defense if, by

reason of such intoxication at the time of the alleged offense, the defendant

lacked substantial capacity either to appreciate its wrongfulness or to conform

his or her conduct to the requirements of the law (HRS §702-230(4) and

(5)). In other words, pathological intoxication can assume the status of a

mental condition and hence may allow exculpation if a link to a cognitive or

volitional impairment can be demonstrated.

Such was the case in

State v. Kuhia

raises the troubling question of the necessity of intoxication at the

time of the alleged killing in order to establish pathological intoxication, a

Kuhia

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(1992), a landmark case in several

respects. Here, the defendant was acquitted by virtue of the afﬁrmative

defense of pathological intoxication by methamphetamine, a ﬁrst in Hawaii,

which the defense proved by a preponderance of the evidence. Two important

facts were determinative: (1) the defendant was not substance intoxicated at

the time he killed the victim; and (2) multiple diagnoses were offered, at least

one of which had exculpating potential. In Kuhia, mental health experts, as

well as other corroborating evidence, suggested that the defendant suffered

from paranoid schizophrenia and an organic delusional disorder, in addition

to methamphetamine abuse. The organic delusional disorder was seen as

caused by chronic methamphetamine use, impairing his ability to conform

his conduct to the requirements of the law.

clear implication of HRS §702-230. This outcome appears to contradict the

general principle limiting the availability of pathological intoxication as a

defense in that it permits a defendant to avail himself or herself of a mental

condition at the time of the alleged offense that is linked to a history of

voluntary self-induced intoxication. Note that in all pre-1998 methamphet-

amine cases presented in this chapter in which the pathological intoxication

defense was unsuccessfully offered, the defendant was methamphetamine

intoxicated at the time. Under

Kuhia

(1996), the defendant was convicted of robbery.

During trial, Garringer admitted that he and a younger accomplice had

planned to rob a Jack-in-the-Box. The minor threatened a worker, pounded

the shotgun on the counter, where it discharged, and killed the worker.

Garringer then grabbed the money from the cash register and the two males

ﬂed in a car stolen by Garringer prior to the robbery. The defendant testiﬁed

at trial that he had smoked methamphetamine almost every day for about 2

years and that he and the minor had smoked methamphetamine before the

robbery and planned to rob the Jack-in-the-Box after running out of drugs.

Garringer testiﬁed that “despite feeling the symptoms of withdrawal during

the incident in question, he had control over what he was doing.” He never

blamed methamphetamine for the robbery. Garringer was convicted of rob-

bery in the ﬁrst degree and of ﬁrearms-related charges.

Garringer later ﬁled an action for postconviction relief. One of the

grounds for the requested relief was ineffective assistance of his trial counsel,

who had failed to raise the issue of the defendant’s temporary insanity due

to the effects of drug usage and had failed to obtain psychiatric evaluations

of the defendant prior to trial. The Hawaii Supreme Court held in part that

Garringer should have been allowed to clarify his petition by amending it to

include factual allegations showing that (1) his appellate counsel omitted an

appealable issue, and (2) in light of the entire record, the status of the law,

and the space and time limitations inherent in the appellate process, a rea-

sonably competent attorney would not have omitted that issue. The court

noted that, despite the fact that the defendant’s acquittal in

State v. Garringer

was based

on the afﬁrmative defense of pathological intoxication, Garringer was

required to “overcome signiﬁcant hurdles in order to establish that such a

defense was potentially meritorious and that a reasonably competent attorney

would not have omitted that issue.”* On remand for a hearing to determine

Kuhia

* Among these hurdles were Garringer’s trial testimony that, despite his use of crystal

methamphetamine, he had control over what he was doing, and that he was voluntarily

intoxicated at the time of the crime.

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, pathological intoxication could be

presented as a defense for a defendant who had not ingested methamphet-

amine for a considerable period of time, perhaps months or years, before the

alleged crime.

the merits of Garringer’s ineffective assistance of counsel claim, the circuit

court found against him. Garringer has appealed this ruling.

Other cases are of interest in untangling the issues surrounding patho-

logical intoxication. In recent years, the methodology of the sanity examiner

has been scrutinized in cases of criminal responsibility in which the role of

methamphetamine was minimized, ignored, or misconstrued by the expert.

In methamphetamine cases, no longer can it be assumed that a consensus of

the three panel §704-404 examiners to the effect that the defendant is men-

tally incapacitated automatically leads to an acquittal on grounds of physical

or mental disease, disorder, or defect.

The key case in Hawaii is

State v. Monte Louis Young

(1998). In that case,

. at the Burger King on University

Avenue in Honolulu, Young pulled a hammer from behind his back and

began striking the victim, Paul Ulbrich, on the back of the head. The victim’s

screams could be heard for some distance. After each blow, Young examined

his handiwork as if to survey the damage. After the third blow, Young raised

the hammer toward a Burger King worker and said, “Get in[side] before I

kill you too.” Young leapt over a wall, dropped the hammer in the parking

lot, and left in his pickup truck.

According to witnesses and the experts, Young had been acting strangely

before the killing, and had heavily abused alcohol and marijuana in the weeks

before the instant homicide. He had a history of violent acting out within a

strong polysubstance abuse pattern extending back at least a decade. His

previous abuse of methamphetamine, apparently his drug of choice when

available, was extensive. In 1993, Young’s father had reported a 10-year his-

tory of methamphetamine use by Young. Young last became intoxicated on

methamphetamine approximately 2 months before the instant homicide.

Computerized tomography (CT) scanning revealed a small subarachnoid

hemorrhage and a cerebral contusion in Young’s right parietal area. Based

on his strange behavior, evidence of brain damage, and other factors, each

of the examiners rendered a diagnosis of Psychotic Disorder NOS, among

other diagnoses, and all but one examiner linked that disorder to a substantial

impairment in both cognition and volition. The state retained the senior

author to comment on the methodology of the sanity examiners pursuant

to HRS §704-410. The state also retained the services of a clinical-forensic

psychiatrist who had examined Young for the defense 5 years earlier in

California.

In its Findings of Fact and Conclusions of Law, the court ruled that Young

was guilty of murder in the second degree. The court correctly noted that

(1) a condition excluding responsibility is an afﬁrmative defense that must

be shown by a preponderance of the evidence; (2) the lack of substantial

capacity means “capacity which has been impaired to such a degree that only

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on May 10, 1997, shortly before 7

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