NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

NO. CAAP-22-0000252

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-17-0000215)

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 pretrial 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.

Electronically Filed

Intermediate Court of Appeals

CAAP-22-0000252

27-FEB-2023

08:23 AM

Dkt. 51 SO
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER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:

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

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

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

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:

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

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

5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

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. 

6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

"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:

Walter J. Rodby

for Defendant-Appellant.

Donn Fudo,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Derrick H.M. Chan

Associate Judge

7