State v. McQueen

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-SEP-2022
08:02 AM
Dkt. 111 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
KATHERINE RENEE MCQUEEN, Defendant-Appellant

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

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

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

1
The Honorable Paul B.K. Wong presided .
2
HRS § 707-711(1) reads in relevant part:
(1) A person commits the offense of assault in the second degree if:
(a) The person intentionally, knowingly, or recklessly causes
substantial bodily injury to another;
(b) The person recklessly causes serious bodily injury to
another;
. . . .
(continued...)
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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.
I. Discussion
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

2
(...continued)
(d) The person intentionally or knowingly causes bodily injury
to another with a dangerous instrument[.]

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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)
(noting basic instructions a court should provide regarding a
defendant's right to testify and not to testify); State v. Lewis,
94 Hawai#i 292, 294, 12 P.3d 1233, 1235 (2000) (concluding that
the prior-to-trial advisement recommended in Tachibana should
thereafter be mandated). 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

3
The State asserts that McQueen failed to object to the manner in
which the Circuit Court advised her of her right to testify and her right not
to testify, and that McQueen thus waived this issue. However, Hawai #i
appellate courts have consistently addressed this issue on a plain error
basis. See State v. Staley, 91 Hawai#i 275, 287, 982 P.2d 904, 916 (1999)
(holding there was plain error due to circuit court's failure to establish on
the record that defendant's decision not to testify was made knowingly and
voluntarily); State v. Celestine, 142 Hawai #i 165, 173, 415 P.3d 907, 915
(2018) ("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.") (citations omitted);
Hawai#i Rules of Penal Procedure Rule 52.

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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:
[Circuit Court:] I want to move on now to the next topic. In
this trial, Ms. McQueen, you have the constitutional right
to testify in your own defense. Do you understand what that
means?
[McQueen:] Yes.

[Circuit Court:] You should consult with your lawyer about
your decision to testify. But it is your decision. And no
one can stop you from testifying, if that’s what you choose
to do. Do you understand that?

[McQueen:] Yes.
[Circuit Court:] If you choose to testify, the prosecutor
. . . will have the opportunity to cross-examine or ask you
questions. Do you understand what that means?

[McQueen:] Yes.

[Circuit Court:] Do you have any questions about what
happens if you choose to testify in the trial?

[McQueen:] No.

[Circuit Court:] You also have a constitutional right to not
testify and to remain silent. Do you understand what that
means?
[McQueen:] Yes.

[Circuit Court:] If you choose not to testify, the jury will
be instructed that it cannot hold your silence, as well as
your decision to not testify, against you when it decides
the case. Do you have any questions about what that means?
[McQueen:] No.

[Circuit Court:] Do you understand what happens if you
choose not to testify?
[McQueen:] Yes.

In the ultimate colloquy before McQueen decided to
testify, the following exchange occurred, in relevant part:

4
In Pomroy, the supreme court also determined the lower court failed
to advise the defendant that "he had the right not to testify and that no one
can prevent him from testifying." 132 Hawai #i at 92, 319 P.3d at 1100.

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[Circuit Court]: When we started this trial, I told you you
have the constitutional right to testify in your own
defense. Do you understand what that means?
[McQueen]: Yes.
[Circuit Court]: You should consult with your lawyer about
your decision to testify. But it is your decision. And if
you want to testify, nobody can stop you from doing so. Do
you understand that?
[McQueen]: Yes.
. . . .
[Circuit Court]: You also have the constitutional right to
not testify, and to remain silent. Do you understand what
that means?
[McQueen]: Yes.

[Circuit Court]: If you choose not to testify, the jury will
be instructed that it cannot hold your decision to not
testify and it cannot hold your silence against you in any
way when it decides the case. Do you understand what that
means?
[McQueen]: Yes.
[Circuit Court]: Do you understand what happens if you
choose not to testify?

[McQueen]: Yes.
[Circuit Court]: Did you have a chance to talk to Mr. Amadi
about your decision?

[McQueen]: Yes.
[Circuit Court]: Did you have enough time?

[McQueen]: Yes. Yes.

[Circuit Court]: Okay. Did you need more time to discuss it
with Mr. Amadi?

[McQueen]: No.
[Circuit Court]: Okay. And what is your decision? Is it to
testify, or not testify?

[McQueen]: To testify.

(Format altered.)
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

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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.11,
409 P.2d at 737-38, 741 n.11.
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 "[w]atching the victim. Making sure she didn't . . .
collapse or go into shock." Defense counsel objected to the

5
Given that McQueen decided to testify, the advisements regarding her
right not to testify are relevant. See Lewis, 94 Hawai #i at 293-94, 12 P.3d
at 1234-35 (quoting Tachibana, 79 Hawai#i at 236 n. 7, 900 P.2d at 1303 n. 7)
("In connection with the privilege against self-incrimination, the defendant
should also be advised that he or she has a right not to testify and that if
he or she does not testify then the jury can be instructed about that
right.").

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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-XX-XXXXXXX, 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 not always result
in prejudicial error requiring that a conviction be vacated. See
id.; State v. Nomura, 79 Hawai#i 413, 417-18, 903 P.2d 718, 722-
23 (App. 1995) (use of term "victim" in instruction to jury was
harmless error even though whether complaining witness was abused
was a question yet to be determined by jury).
Here, Lee was a lay witness who referred to Lyle as a
"victim" one time. In these circumstances, Lee's use of the term
was harmless given that the court sustained the objection,
instructed the witness to refrain from using the term, and
instructed the jury at the end of trial that a defendant is
presumed innocent unless proven guilty. See Mundon, 129 Hawai#i
at 25-26, 292 P.3d at 229-230 ("use of the term 'victim' in the
limited circumstances of this case was not prejudicial to [the
defendant]" where court sustained an objection to use of the term
by a witness but overruled objections to the state's use of the
term during the testimony of three police officers).

6
The Circuit Court's instruction to the jury was: "You must presume
the defendant is innocent of the charge against her. This presumption remains
with the defendant throughout the trial of the case, unless and until the
prosecution proves the defendant guilty beyond a reasonable doubt."

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2. Evidence of McQueen Slipping Handcuffs
a. The evidence was relevant
McQueen next contends it was error for the Circuit
Court to admit evidence that after being detained, McQueen
"slipped the handcuffs" three times while in a Honolulu Police
Department (HPD) patrol car.7 At trial, the State argued the
evidence was relevant in the event McQueen claimed it was
physically impossible for her to stab Lyle due to voluntary
intoxication. On appeal, the State argues that "[t]he probative
value of McQueen slipping the handcuffs was significant because
it showed that she had the ability to control her movements, or
conduct, very soon after the stabbing despite being intoxicated"
and cites to HRS § 702-230(2) (2014 & Supp. 2019).8 We conclude
the Circuit Court was not wrong to admit this evidence.
In the State's case-in-chief, Officer Reid Nakamura
(Officer Nakamura) testified that his first interaction with
McQueen was in the back seat of his patrol car where he "had
noticed that she had slipped the handcuffs[.]" Defense counsel
objected, arguing that any observations of McQueen slipping the
handcuffs were irrelevant and prejudicial. The following
discussion then ensued:
[Circuit Court]: Is the objection to the state
eliciting evidence of defendant's demeanor, or the
fact that she was slipping out of handcuffs?

[Defense Counsel]: Slipping out of handcuffs.
[Circuit Court]: So you're allowed to get into
his physical observations of the defendant.

7
The evidence was presented in the State's case-in-chief. Although
McQueen had not made an argument claiming physical impossibility due to
voluntary intoxication at that time, counsel also did not disclaim that such a
defense would not be used.
8
HRS § 702-230(2) (2014) provides, in relevant part:
(2) . . . . Evidence of self-induced intoxication of
the defendant is admissible to prove or negative
conduct or to prove state of mind sufficient to
establish an element of an offense. Evidence of
self-induced intoxication of the defendant is not
admissible to negative the state of mind sufficient to
establish an element of the offense.

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[State]: Right. But that was -- the state would argue
that they cannot be separated. The act of slipping out
of the handcuffs if someone's handcuffed, the state's
going to argue that, you know, it's not normal to try
and slip out of them. It's not something that a
normal, sober person would do, if they're in the back
of a police vehicle. And attempt to slip out of the
handcuffs not once, but twice, even after she's
re-cuffed.
[Circuit Court]: Sobriety and the ability to
slip out of handcuffs are not connected.
[Defense Counsel]: Yes.
[State]: And, well, that's why the state wants that
information is because the voluntary intoxication
defense allows intoxication to negate conduct. And the
state is trying to show that she had physical prowess.
[Circuit Court]: Now I understand where you're –-

[State]: But mentally, as to the state of mind, it
cannot negate. So therefore there is a difference --
there's a reason why.

[Circuit Court]: The relevance goes to the
defendant's ability to control her conduct after she
was in the police custody. Therefore it's imparted
back to her ability to control conduct when she was
still in the apartment. The court finds probative
value to that.

(Format altered.)
After the Circuit Court overruled the objection,
Officer Nakamura proceeded to testify that he "noticed [McQueen]
with her hands in front. And the handcuffs were still attached to
her right wrist, with the left hand free, and then the left
handcuff dangling" but "[did not] know how she got out of the
handcuffs."
Evidence is relevant if it has "any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." Hawai#i Rules of Evidence
(HRE) Rule 401. Although all relevant evidence is generally
admissible, HRE Rule 402, "evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice," among other things. HRE Rule 403.

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"A trial court's determination that evidence is
'relevant' within the meaning of HRE Rule 401 (1993) is
reviewed under the right/wrong standard of review." State v. St.
Clair, 101 Hawai#i 280, 286, 67 P.3d 779, 785 (2003) (citation
omitted). In contrast, a trial court's balancing of the
probative value of evidence against the prejudicial effect of
such evidence under HRE Rule 403 (1993) is reviewed for abuse of
discretion. State v. Richie, 88 Hawai#i 19, 37, 960 P.2d 1227,
1245 (1998).
Here, evidence that McQueen slipped the handcuffs is
relevant to her physical ability soon after the incident
notwithstanding evidence of her alcohol consumption. Officer
Nakamura testified he did not know how McQueen actually slipped
the cuffs, but that McQueen's hands were initially cuffed behind
her back and then seen in the front of her body, which evidences
physical prowess to move her hand from behind her body to the
front. This is relevant to McQueen's potential defense of
physical impossibility due to voluntary intoxication.9
Therefore, the Circuit Court did not err in admitting the
evidence.
b. The evidence was more probative than prejudicial
Courts consider the following factors when weighing the
probative value of evidence against the prejudicial effect: "the
need for the evidence, the efficacy of alternative proof, and the
degree to which the evidence will probably rouse the jury to
overmastering hostility." State v. Uyesugi, 100 Hawai#i 442,
463, 60 P.3d 843, 864 (2002) (evidence not more prejudicial than
probative where it was necessary to show defendant had knowledge

9
McQueen also argues the Circuit Court was wrong to impart McQueen's
ability to control her conduct back to when she was still in the apartment
because the time gap between the incident and when police arrested McQueen
could have provided opportunity for McQueen to become intoxicated. However,
given the testimony by Lyle and McQueen that McQueen had been consuming
alcohol between 1:00 p.m. and 5:00 p.m. and Lyle's testimony of McQueen's
actions, there was ample evidence of McQueen's consumption of alcohol before
the incident.

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and ability to plan crime in light of conflicting evidence
available and defendant's defense) (citation omitted).
Here, the factors weigh in favor of admission of the
testimony. The evidence was necessary for the State to prove it
was physically possible for McQueen to have committed the alleged
offense, in the event she asserted physical impossibility due to
voluntary intoxication as a defense. This need is underscored by
the fact that McQueen was already claiming physical impossibility
as a defense.10 There was also limited evidence demonstrating
McQueen's physical abilities in light of other evidence calling
into question her ability to control her body.11
Moreover, McQueen's argument that the evidence "make[s]
her seem a seasoned criminal, and [makes] her appear guilty – as
if she needs to escape police" is unconvincing. In testifying
that McQueen had slipped the handcuffs multiple times, Officer
Nakamura did not state McQueen attempted to escape from the
police or insinuate such. The evidence was not likely to rouse a
jury to overmastering hostility. We conclude the Circuit Court
did not abuse its discretion in its HRE Rule 403 balancing of
this evidence.
3. Exclusion of testimony about
McQueen's preexisting injury was harmless

Next, McQueen argues the Circuit Court improperly
excluded her testimony regarding a shoulder injury predating the
incident. The State argues there was no error because it only
objected to the part of McQueen's testimony requiring a medical
opinion and defense counsel stated "if it's about [the State]

10
McQueen raised physically impossibility due to a preexisting
shoulder injury as a potential defense.
11
Officer Nakamura testified that when officers began photographing
McQueen's hands for evidence, she was instructed to hold her hands out and
then make a fist. However, McQueen failed to follow the simple instructions
although she appeared capable of doing so. Officer Moses Chang ( Officer
Chang) testified that when McQueen was arrested, he observed that she was
unable to keep balance and he held her up while escorting her so she would not
fall.

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objecting for medical testimony . . . you can strike that." The
State also points out that there was other testimony to the
effect that McQueen's shoulder injury pre-dated the incident.
During direct examination, when asked why she was
wearing a sling in court, McQueen testified:
[McQueen:] I had to have surgery. I had to have my tendon
and rotator collar repaired a couple weeks ago.
[Defense Counsel:] Okay. Is this a -- was this a preexisting
injury prior to September 21st or 22nd?
[McQueen:] This was a preexisting injury, because my arm
frequent -- was popping up. It was dislocating too many
times.

(Format altered.) Following this testimony, the State objected
as follows:
[State]: Your Honor, the testimony regarding the
rotator cuff and the surgery is a medical opinion,
especially on the rotator cuff being torn, and
the shoulder injury . . . .
[Circuit Court]: So what remedy do you want?

[State]: I would like the court -- I mean, I would
like the court to strike at the very least, and give a
curative instruction. . . . I think I'm okay with just
striking the testimony, and giving a curative
instruction, and the court's emphasis that [the jury
is] not to consider any injury to the defendant's
shoulder, or any testimony regarding a prior injury.

(Format altered.)
After sustaining the State's objection, the Circuit
Court stated the following to the jury:
The objection is sustained. Motion is granted. So,
ladies and gentlemen of the jury, you're to disregard
Ms. McQueen's last answer regarding the injury to her
shoulder. It actually calls for a medical conclusion.
So she's not the doctor. That testimony is stricken,
you're not [to] consider as part of your consideration
of the case.

(Format altered.)
In other testimony by McQueen, however, she testified
her shoulder injury pre-dated the incident. On cross-
examination, McQueen testified that she had a shoulder injury

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prior to September 22, 2019 and that it had "been weak for about
two years" prior to the incident.
We conclude the Circuit Court did not err in striking
McQueen's testimony about her shoulder surgery to repair her
"tendon and rotator collar" and that it was a "preexisting
injury" in that such testimony called for a medical opinion.
McQueen was nonetheless allowed to testify separately about her
shoulder injury.
4. The Circuit Court did not err regarding the
characterization of McQueen in closing argument

Lastly, McQueen contends the State improperly
characterized her as "a drunk person" or "that drunk person" in
closing argument. McQueen argues using these terms "connote[s] a
predetermination of motive for the alleged crime" and places her
"in an abhorrent light before the jury" because of the
association most people have with the term "drunk." The State
argues that characterizing McQueen as "drunk" in its closing
argument was a permissible and reasonable inference based on the
evidence from the State's witnesses and McQueen's own admission
that she had been drinking alcohol the day of the incident. We
conclude there was no error.
The supreme court has stated:
[A] prosecutor, during closing argument, is permitted to draw
reasonable inferences from the evidence and wide latitude is
allowed in discussing the evidence. It is also within the bounds
of legitimate argument for prosecutors to state, discuss, and
comment on the evidence as well as to draw all reasonable
inferences from the evidence.

State v. Clark, 83 Hawai#i 289, 304, 926 P.2d 194, 209 (1996)
(citations omitted).
Here, characterizing McQueen as "a drunk" and "that
drunk person" was a reasonable inference within the wide latitude
afforded to prosecutors. First, McQueen herself admitted to
consuming alcohol before the incident. Officer Nakamura
testified that McQueen could not follow simple instructions, and
Officer Chang testified McQueen was "really unsteady on her feet"

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and that she would have likely fallen if he had not held her up
while escorting her. Both Officers Nakamura and Chang also
testified McQueen was "slurring" her words during their
interactions with her. Another officer, Jason Yee Hoy, testified
that McQueen "[s]melled like the odor of alcohol" during his
interaction with McQueen following the incident. Moreover, Lyle
testified that on the evening of the incident, McQueen fell and
knocked over the TV in the apartment, fell into the front door,
and spoke nonsensically.
The State presented the following, in closing argument:
We first heard from [Lyle], who told you that this was
not the same person who she interacted with the day before.
Yesterday, she was nice. Earlier in the day, she bought her
lunch and food. But this was a different person. She was
stumbling over herself, knocking into furniture, falling
over, mumbling to herself, saying things that didn't make
sense, aggressive, yelling at her, calling her names. She
was upset because [Lyle] was lying down all day, and she had
to clean because she wanted to make the apartment nice for
her friend's inspection.

And that testimony was consistent with what the
officers told you, that she had slurred words. She was
unsteady on her feet. She could not walk unassisted.

Officer Moses Chang told you that if he didn't assist
her down those stairs, she definitely would have fallen.
Officer Nakamura said she was unable to follow simple
instructions. He said she was told to make her hands into a
fist and keep them in a fist. She kept opening and closing
them. Officer Yee Hoy told you that when he escorted her
down, he smelled an odor of alcohol on her.

And by the defendant's own admission, she had two full
glasses of Mike's Hard Lemonade.

. . . .
I want to focus . . . on the probability of what [Lyle
says] and whether it was supported by the evidence.
Now, what did she say? She said that around 6 or 7 p.m.,
she got into an argument with a drunk person, that drunk
person got upset –
. . . .
And it's also supported by the evidence.

(Format altered.)
There was ample evidence in the record from which the
State could reasonably infer and argue that McQueen was drunk
during the incident. The Circuit Court did not err in denying

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McQueen's objection to the State's characterization of her during
closing argument.
C. Ineffective assistance of trial counsel claims
McQueen also argues she was denied effective assistance
where her trial counsel failed to 1) move for judgment of
acquittal after the State's opening statement; 2) inquire about
the effects of Lyle's septic knee on her behavior; 3) question
the State's witnesses about the lack of choking injuries on Lyle
after the incident; and 4) allow McQueen to decide for herself
whether to testify.12
A defendant has the burden to prove ineffective
assistance of counsel by demonstrating 1) "that there were
specific errors or omissions reflecting counsel's lack of skill,
judgment, or diligence[;]" and 2) "that these errors or omissions
resulted in either the withdrawal or substantial impairment of a
potentially meritorious defense." State v. Salavea, 147 Hawai#i
564, 576, 465 P.3d 1011, 1023 (2020) (citation omitted).
Importantly, "[s]pecific actions or omissions that are alleged to
be erroneous but that had an obvious tactical basis for
benefitting the defendant's case will not be subject to further
scrutiny." Id.
1. Defense counsel was not required to seek judgment
of acquittal after the State's opening statement

McQueen argues her trial counsel should have filed a
motion for judgment of acquittal after the State failed to assert
in its opening statement that it would prove the incident
occurred in the City and County of Honolulu. This argument is
without merit.
The trial court has the authority to grant a motion for
judgment of acquittal at the close of the prosecutor's opening
statement if it is clear that the prosecution's argument will

12
HRAP Rule 28(a) provides: "If a brief raises ineffective assistance
of counsel as a point of error, the appellant shall serve a copy of the brief
on the attorney alleged to have been ineffective." Here, the record reflects
that McQueen failed to serve the opening brief on trial counsel. McQueen's
appellate counsel is therefore cautioned to comply with HRAP Rule 28(a).

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fail regardless of other evidence that may be introduced. State
v. Simpson, 64 Haw. 363, 368, 641 P.2d 320, 323-24 (1982).
However, "[a]n opening statement merely provides an opportunity
for counsel to advise and outline for the jury the facts and
questions in the matter before them[;] . . . [it] is not
evidence." Id. at 369, 641 P.2d at 324 (citations omitted).
Thus, a motion at the close of the prosecutor's opening statement
is rarely granted. Id. at 368, 641 P.2d at 323.
In criminal cases, the State is required to prove venue
beyond a reasonable doubt. HRS § 701-114(1)(d) (2014).13 Under
Hawai#i Rules of Penal Procedure (HRPP) Rule 18, "the prosecution
shall be had in the circuit in which the offense or any part of
it was committed." Moreover, "[t]he first judicial circuit is
the island of O[#]ahu[.]" HRS § 603-1(1). As this court has
stated, "the City and County of Honolulu covers the same area as
the first judicial circuit . . . . Consequently, proof that an
event occurred in the City and County of Honolulu or on the
Island of O[#]ahu is proof that it occurred within the first
judicial circuit." State v. Correa, 5 Haw. App. 644, 650, 706
P.2d 1321, 1325 (1985).
Here, the State proffered the following during its
opening statement: "[Lyle] found herself pinned underneath the
defendant, Katherine Renee McQueen, in a Waikiki studio -- in a
Waikiki studio apartment"; "This assault occurred on the eighth
floor of 2509 Ala Wai Boulevard"; "[Lyle] wasn't sure whether she
was going to move back to Kauai or stay on Oahu"; "Tony brought
the defendant to 2509 Ala Wai Boulevard"; "She works at a bar
called Kelly O'Neil's, which is also in Waikiki"; "You're also

13
HRS § 701-114(1) states, in relevant part:
(1) Except as otherwise provided in section 701-115, no person
may be convicted of an offense unless the following are proved beyond a
reasonable doubt:
. . . .
(d) Facts establishing venue[.]

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going to hear from Honolulu Police Department officers"; and "Dr.
Yost is a trauma surgeon at Queen's medical." (Emphases added.)
The opening statement does not clearly indicate the
State would fail to prove the incident occurred on O#ahu.
Simpson, 64 Haw. at 368, 641 P.2d at 323. In fact, the State
introduced ample evidence during the trial that the incident
occurred in the City and County of Honolulu during direct
examination of Lee, Perez's apartment office manager, and one of
the HPD officers who responded to the scene of the incident.
Based on the record, McQueen's trial counsel did not
erroneously fail to seek judgment of acquittal after the State's
opening statement, and McQueen was not denied effective
assistance of counsel on this basis.
2. Whether trial counsel was ineffective for not pursuing
questions about Lyle's septic knee should be
addressed in an HRPP Rule 40 proceeding

Next, McQueen argues her trial counsel was ineffective
for failing to inquire about Lyle's septic knee as an
"alternative theory for the source of [Lyle's] knife wound[,]"
considering the possible symptoms of being septic.14
While "matters presumably within the judgment of
counsel, like trial strategy, 'will rarely be second-guessed by
judicial hindsight[,]'" State v. Smith, 68 Haw. 304, 311, 712
P.2d 496, 501 (1986), as amended Jan. 14, 1986, where the record
does not explain a legitimate rationale for defense counsel's
decision within the range of competence demanded of criminal
attorneys, this court may deny a claim of ineffective assistance
of counsel without prejudice to the defendant to raise such
claims at an HRPP Rule 40 proceeding. See State v. Ramos, No.
28356, 2009 WL 353290, at *14 (Haw. App. Feb. 6, 2009) (mem.)

14
In her Opening Brief, McQueen lists a variety of effects from being
septic as published on the Center of Disease Control's website. Based on such
asserted effects, McQueen argues her trial counsel should have offered an
alternative explanation for Lyle's injuries, including that Lyle inflicted the
injuries on herself, or that Lyle's condition could have affected her memory
of what had occurred.

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(denying defendant's ineffective assistance of counsel claim
without prejudice to raising claim in an HRPP Rule 40 proceeding
where record did not adequately explain why trial counsel chose
to pursue lines of inquiry that elicited testimony from officer
pertaining to defendant's past criminal activities).
Here, McQueen's trial counsel questioned Dr. Yost,
Lyle's treating physician after the incident, regarding Lyle's
septic diagnosis, to which Dr. Yost responded he believed Lyle
was septic prior to the incident, the infection was from her
right knee, a person who is septic could exhibit signs of
fatigue, and whether someone who is septic could experience
symptoms of a cold or a flu would depend on how sick the person
was at that point. However, the record does not adequately
explain why McQueen's trial counsel stopped short of questioning
Dr. Yost about the effects of being septic and its impacts on
Lyle's behavior. Without more, it is unclear whether McQueen's
trial counsel declined to pursue this line of questioning
"pursuant to a legitimate trial strategy and within the range of
competence demanded of attorneys in criminal cases." Ramos, 2009
WL 353290, at *14 (mem. op.) (citation omitted). As earlier
noted, McQueen failed to serve her trial counsel with the Opening
Brief in this appeal, thus precluding a response from trial
counsel. McQueen's claim of ineffective assistance of counsel on
this basis is denied without prejudice to McQueen raising this
claim in an HRPP Rule 40 proceeding where trial counsel has an
opportunity to respond to the claim and the record can be
properly developed.
3. Trial counsel was not ineffective in failing
to elicit testimony regarding choking marks on Lyle
McQueen also argues she received ineffective assistance
of counsel because trial counsel did not elicit any testimony
about the lack of choking injuries sustained by Lyle during the
incident. We conclude this argument is without merit.
Lyle testified that during the incident, "[McQueen's]
whole body weight was on me. And she had her hand on my neck" for

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about three minutes, "[j]ust holding my neck[.]" Dr. Yost
testified that when Lyle was admitted to the emergency room for
treatment, Lyle's clothing was removed and he did a "quick
examination of the patient to see if there [were] any other
injuries." Dr. Yost then testified: "We didn't find any other
trauma." On cross-examination, trial counsel asked Dr. Yost
about any other injuries found on Lyle, to which he reiterated
none were found.
On appeal, McQueen's counsel attempts to construe
Lyle's testimony as an unsubstantiated allegation that McQueen
choked Lyle because there is no evidence that Lyle sustained any
injuries around her neck. Notably, however, Lyle never alleged
McQueen choked her at any point to prompt trial counsel to
inquire about the lack of injuries around Lyle's neck. Based on
the record, McQueen has not demonstrated there were specific
errors or omissions reflecting counsel's lack of skill, judgment,
or diligence in this regard. McQueen's trial counsel was not
ineffective on this point.
4. The record does not reflect that
trial counsel forced McQueen to testify
Last, McQueen argues she "made no knowing, intelligent,
or voluntary decision" to testify because the Circuit Court's
colloquy was deficient and because her trial counsel mandated
that she testify. This argument is without any support in the
record.
As noted above, the Circuit Court did not err in
advising McQueen of her Tachibana rights. Indeed, the court
specifically asked McQueen whether she understood if it was her
decision alone to testify:
[Circuit Court]: When we started this trial, I told you you
have the constitutional right to testify in your own
defense. Do you understand what that means?
[McQueen]: Yes.
[Circuit Court]: You should consult with your lawyer about your
decision to testify. But it is your decision. And if you want to
testify, nobody can stop you from doing so. Do you understand
that?

[McQueen]: Yes.

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(Emphasis added) (format altered). Further, McQueen fails to
cite where in the record her trial counsel "took the decision
[whether to testify] away from [her.]" Notably, at the
conclusion of McQueen's sentencing hearing she thanked the court
for the opportunity to have a trial and to testify at her trial
despite disagreeing with the verdict. Contrary to her argument
on appeal, this indicates McQueen's decision to testify was of
her own volition. McQueen's claim of ineffective assistance of
trial counsel based on being forced to testify by her trial
counsel is rejected.
II. Conclusion
Based on the foregoing, the May 29, 2020 "Judgment of
Conviction and Sentence; Notice of Entry" entered by the Circuit
Court of the First Circuit is affirmed. However, McQueen may
pursue her ineffective assistance of counsel claim in an HRPP
Rule 40 proceeding with respect to whether trial counsel
improperly failed to pursue further inquiry about Lyle's septic
knee.
DATED: Honolulu, Hawai#i, September 27, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Kai Lawrence,
for Defendant-Appellant /s/ Keith K. Hiraoka
Associate Judge
Sonja P. McCullen,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee Associate Judge

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