State v. McMillan

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-FEB-2023
08:23 AM
Dkt. 51 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
WYNETTE McMILLAN, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Wadsworth and Chan, JJ.)

Defendant-Appellant Wynette McMillan (McMillan) appeals
from the April 6, 2022 Judgment of Conviction and Sentence;
Notice of Entry (Judgment), entered in the Circuit Court of the
First Circuit (Circuit Court).1/ Following a jury trial, McMillan
was convicted of Robbery in the First Degree, in violation of
Hawaii Revised Statutes (HRS) § 708-840(1)(b)(ii) (2014).
On appeal, McMillan contends that the Circuit Court
erred: (1) in taking no action on McMillan's challenge to the
court's jurisdiction; and (2) in failing to conduct a proper pre-
trial advisement under State v. Lewis, 94 Hawai#i 292, 12 P.3d
1233 (2000), and a proper ultimate colloquy under Tachibana v.
State, 79 Hawai#i 226, 900 P.2d 1293 (1995).
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
McMillan's contentions as follows:

1/
The Honorable Catherine H. Remigio presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

(1) McMillan argues that the Circuit Court erred "when
it failed to act upon McMillan's challenge to the court's
jurisdiction." This argument appears to rest not on any explicit
jurisdictional challenge in the Circuit Court, but on McMillan's
statement at a July 9, 2019 trial call, as follows: "I'm a
Kanaka Maoli, heir of the Hawaiian Kingdom governed by our own
law, our own jurisdiction, and a neutral country."
The Hawai#i Supreme Court has held that "'whatever may
be said regarding the lawfulness' of its origins, 'the State of
Hawai#i is now, a lawful government.' Individuals claiming to be
citizens of the Kingdom and not of the State are not exempt from
application of the State's laws." State v. Kaulia, 128 Hawai#i
479, 487, 291 P.3d 377, 385 (2013) (brackets, ellipses, and
internal citation omitted) (quoting State v. Fergerstrom, 106
Hawai#i 43, 55, 101 P.3d 652, 664 (App.), aff'd, 106 Hawai#i 41,
101 P.3d 225 (2004)).
Here, the State charged McMillan based on her conduct
in the City and County of Honolulu. McMillan is thus subject to
the State's criminal jurisdiction in this case.
(2) McMillan argues that the Circuit Court's pre-trial
Lewis advisory was defective because the court: "failed to
succinctly advise McMillan of her constitutional right to
testify"; "failed to confirm that McMillan understood that she
had a constitutional right to testify"; "rattled off five
separate statements without any response or confirmation from
McMillan that she understood what the circuit court was trying to
relate"; and "failed to confirm that McMillan understood that she
had the right not to testify." McMillan makes a similar argument
regarding the court's ultimate Tachibana colloquy. McMillan also
argues that "McMillan's bizarre and irrelevant responses to the
circuit court's questions raise true issues of the salient fact
that McMillan's mental health status more than likely prevented
her from understanding and appreciating the circuit court's Lewis
and Tachibana colloqu[ie]s[.]"
In State v. Martin, 146 Hawai#i 365, 463 P.3d 1022
(2020), the Hawai#i Supreme Court summarized the relevant case
law as follows:

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Our law protects both the right to testify and the
right not to testify. State v. Celestine, 142 Hawai #i
165, 169, 415 P.3d 907, 911 (2018). Tachibana v.
State, 79 Hawai#i 226, 900 P.2d 1293 (1995),
established the requirement that when a defendant in a
criminal case indicates an intention not to testify,
the trial court must advise the defendant of the right
to testify and must obtain an on-the-record waiver of
the right. 79 Hawai#i at 236, 900 P.2d at 1303. We
stated that this advisement should consist of
informing the defendant (1) that they have a right to
testify, (2) that if they want to testify, no one can
prevent them from doing so, and (3) that if they
testify, the prosecution will be allowed to
cross-examine them. 79 Hawai#i at 236 n.7, 900 P.2d
at 1303 n.7. We also stated that in connection with
the privilege against self-incrimination, the
defendant should also be advised (4) that they have a
right not to testify and (5) that if they do not
testify, then the jury can be instructed about that
right. Id. (citations omitted). . . .
After Tachibana, we also held that a second component
of the Tachibana colloquy involves the court engaging
in a true "colloquy" with the defendant. Celestine,
142 Hawai#i at 170, 415 P.3d at 912, citing State v.
Han, 130 Hawai#i 83, 90-91, 306 P.3d 128, 135-36
(2013). This requires "a verbal exchange between the
judge and the defendant 'in which the judge ascertains
the defendant's understanding of the proceedings and
of the defendant's rights.'" Celestine, 142 Hawai #i
at 170, 415 P.3d at 912 (citing Han, 130 Hawai #i at
90, 306 P.3d at 135 (emphasis omitted)).

. . . .

A defendant's right to testify is violated when the
colloquy does not establish "an objective basis for
finding that [the defendant] knowingly, intelligently,
and voluntarily gave up" their right to testify. Han,
130 Hawai#i at 91, 306 P.3d at 136. Courts look to
the totality of the facts and circumstances to
determine whether a waiver of the right to testify was
voluntarily and intelligently made. 130 Hawai #i at
89, 306 P.3d at 134.

Id. at 378-79, 463 P.3d at 1035-36 (footnotes omitted).
Additionally, in Lewis, the supreme court adopted a
prospective requirement that, "prior to the start of trial, trial
courts must '(1) inform the defendant of his or her personal
right to testify or not to testify and (2) alert the defendant
that if he or she has not testified by the end of the trial, the
court will briefly question the defendant to ensure that the
decision not to testify is the defendant's own decision.'" State
v. Monteil, 134 Hawai#i 361, 371, 341 P.3d 567, 577 (2014)
(quoting Lewis, 94 Hawai#i at 297, 12 P.3d at 1238); see also id.
at 373, 341 P.3d at 579 (adopting a prospective rule that trial
courts are required to inform defendants during the Lewis

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advisement that the decision not to testify cannot be used by the
fact finder to decide the case).
Here, prior to the start of trial on January 22, 2020,
the Circuit Court advised McMillan as follows:

THE COURT: . . . .
. . . Miss McMillan, you have a constitutional right
to testify in your own defense. I believe that it's a
decision that you are going to make. Even though [defense
counsel] has an obligation to give you his advice, obviously
based on what we've discussed before with your relationship,
I think you understand that it's your decision. Right? No
matter what he says, you can make that decision, right,
whether you want to testify?
THE DEFENDANT: Yes.
THE COURT: And you also understand that if you
testify that not only will [defense counsel] ask you
questions, but . . . the prosecutor, will be asking you
questions called cross-examination. Do you understand that?

THE DEFENDANT: Hai. (Nods head).

THE COURT: Yes. "Hai" means yes. You also have a
constitutional right not to testify. That means to remain
silent. If you decide not to testify, then I will let the
jury know in writing, and orally, that they cannot use your
silence against you when they decide if the State has met
their burden of proof.
So just as you make a decision if you want to testify,
you also make a decision if you don't want to testify. Do
you understand that?

. . . .
THE COURT: . . . [R]egarding your right not to
testify, do you understand that you don't have to testify if
you don't want to? Do you understand that?
THE DEFENDANT: Hai.

THE COURT: Okay. If you have not testified by the
end of trial, I will briefly question you to make sure that
it was your decision not to testify, and not [defense
counsel's] decision. Okay?
THE DEFENDANT: (Shrugging shoulders)
THE COURT: Do you understand what I'm saying?

THE DEFENDANT: Yeah, I did understand everything you
said.

THE COURT: Okay. Thank you. . . .

After the State rested, defense counsel indicated his
understanding that McMillan did not wish to testify, and the
Circuit Court engaged in the following colloquy with McMillan:

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THE COURT: Hi, Miss McMillan. This is the same thing
I talked with you when we started trial. This has to do
with your right to testify or to remain silent. And I just
want to make sure that it's not [defense counsel] who is
putting pressure on you to do this, that it's your decision
and not his. So you understand that he's your lawyer. And
you can ask him for legal advice. But it's your decision,
right? Not his. Do you understand that?
THE DEFENDANT: Yes.

THE COURT: And you also know that if you decided to
testify that you would be questioned also by the prosecutor;
is that right? That guy. Do you understand that?
[DEFENSE COUNSEL]: You have to answer.
THE DEFENDANT: Yes.
THE COURT: If you decided not to testify and remain
silent, then I would instruct the jury that they cannot use
your silence against you when they decide if the
prosecution's case has been proven beyond a reasonable
doubt. So there is an actual written instruction that I
would give to them saying -- I will give to them, saying
just because you didn't testify they can't -- they can't go
back there and ask each other why didn't she testify? Or
what would she have said? All of that is not allowed. Do
you understand that?

THE DEFENDANT: Yes.
THE COURT: Now, [defense counsel] is telling me you
do not intend to testify. Is this your decision?

THE DEFENDANT: Yes.

THE COURT: Okay. Thank you. . . .

The supreme court has found Tachibana advisements
deficient where they "did not fully advise [the defendant] of his
rights . . . ." State v. Pomroy, 132 Hawai#i 85, 92, 319 P.3d
1093, 1100 (2014). In Pomroy, for example, the supreme court
ruled that the trial court's ultimate Tachibana colloquy
"incompletely followed Tachibana's directive" because it failed
to advise the defendant that he had the right not to testify and
that no one could prevent him from testifying. Id. at 92, 319
P.3d at 1100. Similarly, in State v. Eduwensuyi, 141 Hawai#i
328, 409 P.3d 732 (2018), the supreme court found that the trial
court's ultimate Tachibana colloquy was deficient because it
failed to advise the defendant that no one could prevent him from
testifying. Id. at 333, 409 P.3d at 737.
Under these standards, the Circuit Court's ultimate
Tachibana colloquy was deficient. Although the court's pre-trial

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advisement informed McMillan that she had a constitutional right
to testify and a constitutional right not to testify, the court's
ultimate colloquy did not expressly inform or remind McMillan
that she had these independent rights, or ascertain that she
understood them, but instead conflated them in a mere passing
reference to "your right to testify or to remain silent." In
addition, the Circuit Court did not directly inform McMillan that
if she wanted to testify, no one could prevent her from doing
so.2/ See Pomroy, 132 Hawai#i at 92, 319 P.3d at 1100;
Eduwensuyi, 141 Hawai#i at 333, 409 P.3d at 737. The Circuit
Court instead focused on a related but narrower concern,
"mak[ing] sure" that defense counsel had not pressured McMillan
"to do this," and that "it's your decision and not his." As a
result, McMillan's "Yes" response to the court's inquiry — "But
it's your decision, right? Not his. Do you understand that?" —
does not indicate that McMillan understood she had a
constitutional right to testify and that if she wanted to
testify, no one could prevent her from doing so. Cf. Celestine,
142 Hawai#i at 172, 415 P.3d at 914 ("[The defendant's] 'No'
response to the court's inquiry of whether anyone was forcing her
not to testify does not indicate that she understood she had a
constitutional right to testify, only that no one was forcing her
not to testify.") Rather, McMillan's "Yes" response indicated
only that she understood it was her decision, not her lawyer's
decision, and her response did not indicate an objective basis
for finding she understood she had a right to testify. See id.
On this record, given the totality of the facts and
circumstances, we cannot conclude that McMillan's waiver of the
right to testify was knowingly, intelligently, and voluntarily
made.3/

2/
The Circuit Court's pretrial advisement similarly failed in this
respect.
3/
The Circuit Court's ultimate Tachibana colloquy was deficient even
in the absence of any "salient fact" concerning McMillan's ability to
understand the colloquy. We thus need not decide whether McMillan's allegedly
"bizarre and irrelevant responses to the [C]ircuit [C]ourt's questions"
constituted evidence of "salient facts" that should have served as an
additional reason for a more searching inquiry of McMillan. See Han, 130
Hawai#i at 92, 306 P.3d at 137.

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"Once a violation of the constitutional right to
testify is established, the conviction must be vacated unless the
State can prove that the violation was harmless beyond a
reasonable doubt." Pomroy, 132 Hawai#i at 94, 319 P.3d at 1102
(quoting Tachibana, 79 Hawai#i at 240, 900 P.2d at 1307). Here,
the record does not contain any indication of what McMillan would
have said if she had testified. See State v. Hoang, 94 Hawai#i
271, 279, 12 P.3d 371, 379 (App. 2000) ("In general, it is
inherently difficult, if not impossible, to divine what effect a
violation of the defendant's constitutional right to testify had
on the outcome of any particular case."). Based on our review of
the record, we cannot conclude that the Circuit Court's deficient
colloquy was harmless beyond a reasonable doubt.
For these reasons, we vacate the April 6, 2022 Judgment
of Conviction and Sentence; Notice of Entry, entered in the
Circuit Court of the First Circuit. We remand the case for a new
trial and for further proceedings consistent with this Summary
Disposition Order.

DATED: Honolulu, Hawai#i, February 27, 2023.

On the briefs:
/s/ Lisa M. Ginoza
Walter J. Rodby Chief Judge
for Defendant-Appellant.

Donn Fudo, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Derrick H.M. Chan
Associate Judge

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