State v. Gilliard

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-JAN-2026
07:47 AM
Dkt. 57 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
DONNELL R. GILLIARD, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DCW-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

After a jury-waived trial, Donnell R. Gilliard was
found guilty of Terroristic Threatening in the Second Degree
because of an incident on July 19, 2023. He appeals from the
Notice of Entry of Judgment and/or Order entered by the District
Court of the First Circuit, Honolulu Division, on December 19,
2023.1 We affirm.
Gilliard states a single point of error: "The district
court erred when it violated Mr. Gilliard's constitutional
confrontation right by allowing the complaining witness to hide
her face while testifying."
The Sixth Amendment to the United States Constitution
and article 1, section 14 of the Hawai#i Constitution guarantee a
defendant in a criminal case the right "to be confronted with the
witnesses against" them. The United States Supreme Court has
stated that

1
The Honorable David M. Hayakawa presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the right guaranteed by the Confrontation Clause includes
not only a "personal examination," but also (1) insures that
the witness will give his statements under oath — thus
impressing him with the seriousness of the matter and
guarding against the lie by the possibility of a penalty for
perjury; (2) forces the witness to submit to cross-
examination, the greatest legal engine ever invented for the
discovery of truth; and (3) permits the jury that is to
decide the defendant's fate to observe the demeanor of the
witness in making his statement, thus aiding the jury in
assessing his credibility.
The combined effect of these elements of confrontation
— physical presence, oath, cross-examination, and
observation of demeanor by the trier of fact — serves the
purposes of the Confrontation Clause by ensuring that
evidence admitted against an accused is reliable and subject
to the rigorous adversarial testing that is the norm of
Anglo–American criminal proceedings.

Maryland v. Craig, 497 U.S. 836, 845–46, 110 S. Ct. 3157, 3163,
111 L. Ed. 2d 666 (1990) (cleaned up).
Here, the complaining witness (CW) testified in person
at Gilliard's trial. She wore sunglasses and a surgical mask
when she took the stand. Gilliard asked that she remove her
sunglasses. The trial court granted the request. CW complied.
After CW identified Gilliard, Gilliard asked that CW
remove her mask. It appears the trial court may have thought in
part that Gilliard had difficulty hearing CW's testimony. After
correctly noting that it could allow CW to wear a face mask,2 the
court advised CW, "if we're going to keep the mask on, you have
to raise your voice."
Gilliard clarified and asked that CW use a clear mask
"For our confrontation purposes."
CW stated, "I don't want [Gilliard] to see me. I don't
want to reveal my face to him."
The trial court provided CW with a clear mask. She put
it on. But Gilliard argues CW then "covered her face with her
hands."
At one point, the deputy prosecuting attorney told CW,
"You can take your hands off your – – [.]"

2
"The Presiding Judge has the authority to require the use of face
masks in that Judge's courtroom." In re Cir. Ct. of the 1st Cir.'s Response
to the COVID-19 Outbreak, SP No. 1CSP-XX-XXXXXXX, dkt. 218 at 3 (General
Order #3 Regarding All Trial Courts of the First Circuit of the State of
Hawai#i) (Haw. 1st Cir. Apr. 10, 2023).

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

CW responded, "I don't want him to see my full face."
Gilliard never objected to CW covering her face with
her hands. Nor did he make a record of what parts of CW's face
were covered or whether she continued to cover any part of her
face after this one point in the proceeding.
The trial court then stated:

I understand the defense concern about this particular
issue. I don't believe it's a concern. I think you can --
the court is able to judge credibility. I'm judging
credibility based on what people say. I get the issue with
the mask. And I get why it's hard to hear with the mask
behind here. And I think content of what people are saying
is what the major factor in this particular case will be.

The State's direct examination continued without
further mention of the issue. Gilliard conducted an extensive
cross-examination without objecting to or otherwise mentioning CW
covering her face. There was redirect, and recross, without the
face-covering issue arising.
When the trial court announced its verdict it stated,
"I want to make it clear that I find the complaining witness to
be credible in the sense of she was freaked out by specific
statements you made. . . . [T]here is proof beyond a reasonable
doubt that you did say I'm gonna kill you, that it was directed
at this particular lady."
On this record, we conclude there was no constitutional
violation. The December 19, 2023 Notice of Entry of Judgment
and/or Order is affirmed.
DATED: Honolulu, Hawai#i, January 23, 2026.

On the briefs:
/s/ Keith K. Hiraoka
Sara K. Haley, Presiding Judge
Deputy Public Defender,
State of Hawai#i, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge

Robert T. Nakatsuji, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.

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