NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-APR-2023
08:10 AM
Dkt. 74 SO
NO. CAAP-XX-XXXXXXX
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) § 291E-
61(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[.]
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
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.
2
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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:
/s/ Katherine G. Leonard
Marcus B. Sierra Presiding Judge
for Defendant-Appellant.
Stephen L. Frye, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
County of Hawai#i
for Plaintiff-Appellee.
/s/ Derrick H.M. Chan
Associate Judge
4
