State v. McQueen
| Decision Date | 27 September 2022 |
| Docket Number | CAAP-20-0000496 |
| Parties | STATE OF HAWAI'I, Plaintiff-Appellee, v. KATHERINE RENEE MCQUEEN, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO 1CPC-19-0001394).
On the briefs:
Kai Lawrence, for Defendant-Appellant.
Sonja P. McCullen, Deputy Prosecuting Attorney, for Plaintiff-Appellee.
Defendant-Appellant Katherine Renee McQueen (McQueen) appeals from the "Judgment of Conviction and Sentence; Notice of Entry" (Judgment) entered on May 29 2020, by the Circuit Court of the First Circuit (Circuit Court)-[1] On March 10, 2020, a jury found McQueen guilty as charged of one count of Assault in the Second Degree, in violation of Hawaii Revised Statutes (HRS) § 707-711(1)(a), (1)(b) and/or (1)(d) (2014 & Supp. 2019).[2] On appeal, McQueen argues the Circuit Court erred by: (1) failing to engage her in a "back-and-forth" Tachibana colloquy; (2) making incorrect evidentiary rulings, including (a) failing to strike testimony that mischaracterized the complaining witness, Gabriela Lyle (Lyle), as the "victim", (b) ruling that post-arrest evidence of McQueen "slipping handcuffs" was more probative than prejudicial, (c) striking McQueen's testimony that she had a shoulder injury predating the alleged incident, and (d) overruling McQueen's objection to the State's characterization of her during closing argument as "a drunk person" and "that drunk person".
McQueen also argues she was denied effective assistance of counsel because her trial counsel: (a) failed to move for a judgment of acquittal after the Plaintiff-Appellee State of Hawaii's (State) opening statement; (b) failed to follow-up on Lyle's "septic" knee injury; (c) failed to question the State's witnesses regarding any evidence of choking injuries to Lyle in addition to a laceration injury; and (d) forced her to testify.
Lyle accused McQueen of attacking her with a knife and causing a five-inch laceration on her arm. At trial, the State argued McQueen caused Lyle's injury while intoxicated from alcohol. In defense, McQueen argued she had no reason to and did not attack Lyle.
A. Tachibana Colloquy
McQueen contends the Circuit Court violated her rights under Tachibana and its progeny because the colloquies provided to her did not constitute a "true exchange" in that it is unknown whether McQueen "actually understood" or had the "the correct understanding" of the Circuit Court's advisement, despite that she answered yes or no to the questions. See e.g., Tachibana v. State, 79 Hawai'i 226, 236 n.7, 900 P.2d 1293, 1303 n.7 (1995) (); State v. Lewis, 94 Hawai'i 292, 294, 12 P.3d 1233, 1235 (2000) (). McQueen asserts it was error for the court to read each of the Tachibana rights to her one by one, and then only ask yes-or-no questions as to whether she understood her rights.[3]
We conclude the Circuit Court did not err in conducting its colloquies pursuant to Tachibana and its progeny. A "[c]olloquy is defined as '[a]ny formal discussion, such as an oral exchange between a judge, the prosecutor, the defense counsel, and a criminal defendant in which the judge ascertains the defendant's understanding of the proceedings and of the defendant's rights.'" State v. Chong Hung Han, 130 Hawai'i 83, 90, 306 P.3d 128, 135 (2013), as corrected (July 10, 2013), as corrected (July 31, 2013) (second alteration in original) (emphasis omitted) (quoting Black's Law Dictionary 300 (9th ed. 2009)) . In Han, the Hawai'i Supreme Court held that a "true colloquy" did not occur where the trial court failed to sufficiently "engage[] in a verbal exchange with [the defendant] to ascertain [the defendant's] understanding of significant propositions in the advisement." Id.; see also State v. Pomroy, 132 Hawai'i 85, 93, 319 P.3d 1093, 1101 (2014), as corrected (Jan. 29, 2015) (concluding colloquy deficient because "the district court recited a litany of rights[,] it then asked [the defendant] if he 'understood that,' and it [was] unclear which right 'that' referenced");[4] State v. Celestine, 142 Hawai'i 165, 171, 415 P.3d 907, 913 (2018).
Here, the Circuit Court had the following pretrial exchange with McQueen:
In the ultimate colloquy before McQueen decided to testify, the following exchange occurred, in relevant part:
In both the pre-trial advisement and ultimate colloquy, the Circuit Court engaged in a "true exchange" by verbally ascertaining McQueen's understanding after each question with regard to her right to testify and her right not to testify.[5]The Circuit Court also provided McQueen opportunities to ask questions regarding her right to testify or not testify. Moreover, the questions were clear and pointed. Further, the record is devoid of any indication that McQueen was, at any point, confused by the Circuit Court's questions. Nor does McQueen claim to have been confused by the ultimate colloquy.
McQueen asserts this case is similar to State v. Eduwensuyi, 141 Hawai'i 328, 409 P.3d 732 (2018). We disagree. In Eduwensuyi, the Hawai'i Supreme Court held that the trial court failed to include necessary advisements in its colloquies. Id. at 333-34, 409 P.3d at 737-38. Thus, the supreme court declined to address Eduwensuyi's argument that the trial court failed to engage in a true colloquy. Id. at 333-34, 337 n.ll, 409 P.2d at 737-38, 741 n.ll.
We conclude the Circuit Court properly advised McQueen of her rights under Tachibana and its progeny.
B. Evidentiary Rulings 1. Reference to Lyle as a "victim" was harmless error
McQueen argues the Circuit Court erred in not striking testimony referring to Lyle as a "victim," although the court properly sustained the defense's objection to the use of that term.
John Lee (Lee) was a witness for the State who testified that he applied a tourniquet to Lyle's arm and called 911 after Lyle ran out of an apartment following the incident. Lee testified that while he was on the phone with dispatch, he was Defense counsel objected to the characterization of Lyle as "the victim" and moved to strike. The Circuit Court stated, "[i]t's granted" but "the motion to strike is denied." The Circuit Court then instructed Lee to refer to Lyle as "woman" or "complaining witness." Prior to deliberation, the court instructed the jury that McQueen should be presumed innocent unless proven guilty beyond a reasonable doubt.[6]
"Counsels and witnesses should refrain from using the term 'victim,' as the term is 'conclusive in nature and connotes a predetermination that the person referred to had in fact been wronged.'" State v. Stan CAAP-18-0000579, 2021 WL 1199823, at *4 (Haw. App. Mar. 30, 2021) (SDO) (citing State v. Mundon, 129 Hawai'i 1, 26, 292 P.3d 205, 230 (2012)). However, the use of the term by a witness or the prosecution will...
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