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NO. CAAP-21-0000499

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

JACLYN PICKERILL, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT

KONA DIVISION

(CASE NO. 3DTA-20-02431)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, and Wadsworth and Chan, JJ.)

Defendant-Appellant Jaclyn Pickerill (Pickerill)

appeals from the Judgment and Notice of Entry of Judgment entered

on July 8, 2021 (Judgment), by the District Court of the Third

Circuit, Kona Division (District Court).

1 Pickerill was

convicted of Operating a Vehicle Under the Influence of an

Intoxicant in violation of Hawaii Revised Statutes (HRS) § 291E61(a)(1) (2020).2 Pickerill did not testify at trial.

1 The Honorable Joseph P. Florendo, Jr., presided.

2 HRS § 291E-61 states, in pertinent part: 

§ 291E-61 Operating a vehicle under the influence of

an intoxicant. (a) A person commits the offense of

operating a vehicle under the influence of an intoxicant if

the person operates or assumes actual physical control of a

vehicle: 

(1) While under the influence of alcohol in an

amount sufficient to impair the person's normal

mental faculties or ability to care for the

person and guard against casualty[.]

Electronically Filed

Intermediate Court of Appeals

CAAP-21-0000499

24-APR-2023

08:10 AM

Dkt. 74 SO
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Pickerill raises two points of error on appeal,

contending that the District Court erred by: (1) giving

Pickerill two advisements that did not comply with the

limitations, requirements, and standards set in Tachibana v.

State, 79 Hawai#i 226, 900 P.2d 1293 (1995), State v. Monteil,

134 Hawai#i 361, 341 P.3d 567 (2014), and State v. Celestine, 142

Hawai#i 165, 415 P.3d 907 (2018); and (2) conducting a defective

ultimate Tachibana colloquy.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, as well as the

relevant legal authorities, we address Pickerill's points of

error as follows:

(1) Pickerill argues that the District Court erred

(twice) when it added that she should consult with her attorney

regarding her decision to testify, just after the court advised

Pickerill that she had a constitutional right to testify and just

before the court advised Pickerill that it was ultimately her

decision and no one can prevent her from testifying should she

choose to do so. Pickerill argues that this "added instruction"

rendered the advisements defective in three ways. First,

Pickerill argues that this added instruction made the advisement

unbalanced – i.e., the advisement did not maintain an even

balance between the right to testify and the right not to testify

– because the court gave no similar instruction while advising

Pickerill of her right not to testify. Second, Pickerill argues

that the added instruction was improper because it was not

strictly informative - i.e., the District Court told her that she

should consult with her attorney regarding the decision to

testify. Third, Pickerill argues that the added instruction

ambiguously imposed an unlawful obligation on Pickerill to

consult with her attorney if her decision was to testify. 

Pickerill submits that the added instructions have the effect of

influencing a defendant not to testify because they impose an

additional requirement only if the defendant decides to testify.

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We decline to hold that it is plain error, regardless

of the totality of the Tachibana advisement and colloquy, for a

trial court to tell a defendant that he or she should consult

with his or her attorney in conjunction with the court's 

Tachibana advisement and colloquy with the defendant. 

We further decline to hold that, under the

circumstances here, the District Court's statement to Pickerill

that "you should consult with your lawyer regarding your decision

to testify" imposed an unlawful obligation on Pickerill to

consult with her attorney if her decision was to testify. That

statement was immediately followed by "[h]owever, it is

ultimately your decision, and no one can prevent you from

testifying should you choose to do so." 

However, the supreme court has repeatedly emphasized

its mandate to the trial courts to "maintain an 'even balance'

between a defendant's right to testify and the right not to

testify." Monteil, 134 Hawai#i at 370, 341 P.3d at 576, citing

State v. Lewis, 94 Hawai#i 292, 295, 12 P.3d 1233, 1236 (2000). 

This balance is important and intended to ensure that the trial

court's advisement does not influence the defendant's decision

one way or the other. See Tachibana, 79 Hawai#i at 236 n.7, 900

P.2d at 1303 n.7. Here, the District Court failed to maintain an

even balance between its advisements, twice telling Pickerill

that she should consult with her attorney in conjunction with the

advisement regarding her right to testify, but at no point

telling Pickerill that she should consult with her attorney in

conjunction with her right not to testify. 

As Pickerill did not exercise her right to testify, we

cannot conclude that the District Court's error was harmless

beyond a reasonable doubt because it is not knowable whether

Pickerill's testimony, had she given it, could have established

reasonable doubt that she operated a vehicle under the influence

of an intoxicant in violation of HRS § 291E–61(a)(1). See

Celestine, 142 Hawai#i at 173, 415 P.3d at 915. 

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(2) In light of the above, we need not reach

Pickerill's further argument regarding whether, in the ultimate

colloquy, the District Court engaged in a sufficient verbal

exchange with Pickerill.

Based on the above, the District Court's July 8, 2021

Judgment is vacated, and the case is remanded to the District

Court for further proceedings. 

DATED: Honolulu, Hawai#i, April 24, 2023.

On the briefs:

Marcus B. Sierra

for Defendant-Appellant.

Stephen L. Frye,

Deputy Prosecuting Attorney,

County of Hawai#i

for Plaintiff-Appellee.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Derrick H.M. Chan

Associate Judge

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