No. SCWC-29939, Wednesday February 22, 2012, 10 a.m.

 STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. MICHAEL C. TIERNEY, Petitioner/Defendant-Appellant.

(Promoting a Detrimental Drug in the Third Degree)

Attorney for Petitioner/Defendant-Appellant: Jack Schweigert

Attorneys for Respondent/Appellee-Appellee: Keith M. Kaneshiro, Prosecuting Attorney; Delanie D. Prescott-Tate, Deputy Prosecuting Attorney

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Order Accepting Application for Writ of Certiorari, filed 01/05/12.

COURT: MER, CJ; PAN, SRA, JED, & SSM, JJ.

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Brief Description:

Petitioner/Defendant-Appellant Michael C. Tierney (Petitioner) filed an Application for Writ of Certiorari seeking review of the September 9, 2011 judgment of the Intermediate Court of Appeals affirming the November 18, 2008 Judgment of the First Circuit District Court(the court) convicting Petitioner of promoting a detrimental drug in the third degree, Hawai`i Revised Statutes (HRS) § 712-1249 (1993).

On April 28, 2008, Petitioner was observed by a police officer smoking a marijuana cigarette, and was arrested. On June 20, 2008, Petitioner appeared before the court and asked to represent himself. The court questioned Petitioner’s fitness, and ordered a one panel expert evaluation under HRS Chapter 704. Petitioner refused to cooperate with the examiner, asserting his Fifth Amendment rights. The examiner’s report did not indicate whether Petitioner’s uncooperativeness was due to a mental illness or whether providing such an opinion was possible. The court ordered another examination on July 18, 2008, but again Petitioner refused to speak to the examiner and the examiner did not opine on whether Petitioner’s lack of cooperation was due to mental illness or whether it was possible to make that determination. The court impliedly determined that Petitioner was fit to proceed. A trial was held during which Petitioner represented himself, and Petitioner was found guilty.

Petitioner contends that the court erred in finding Petitioner fit to proceed without a psychological opinion stating whether Petitioner’s refusal to cooperate with the examiner was the result of a physical or mental health disease, disorder, or defect or whether it was not possible to render such an opinion.