Acker v. State, No. 27081 (Haw. App. 9/27/2007), 27081.
| Decision Date | 27 September 2007 |
| Docket Number | No. 27081.,27081. |
| Parties | MARYANN ACKER, Petitioner/Appellee/Cross-Appellant, v. STATE OF HAWAI`I, Respondent/Appellant/Cross-Appellee. |
| Court | Hawaii Court of Appeals |
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (S.P.P. NO. 00-1-0031 (CR. NO. 56042))
On the briefs:
David F. Klein, Michael J. Brennan (pro hac vice) (Post-Conviction Justice Project, University of Southern California Law School), Shannon M. Henson (pro hac vice) and Christina M. Moore (pro hac vice) (Kirkland & Ellis LLP), for Petitioner/Appellee/Cross-Appellant.
Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, for Respondent/Appellant/Cross-Appellee.
SUMMARY DISPOSITION ORDER
Respondent/Appellant/Cross-Appellee State of Hawaii (the State) appeals from the "Amended Findings of Fact and Conclusions of Law and Order Re Petitioner's Amended Petition to Vacate, Set Aside, or Correct Judgment; Order" (Amended FOF/COL & Order) entered on March 7, 2005 in the Circuit Court of the First Circuit1 (circuit court). Petitioner/Appellee/Cross-Appellant Maryann Acker (Acker) cross-appeals from the Amended FOF/COL & Order.
On August 15, 2000, Acker filed her "Petition to Vacate, Set Aside or Correct Judgment or to Release Petitioner from Custody," pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 40, and a separate supporting memorandum. On May 13, 2002, Acker filed her "Amended Petition to Vacate, Set Aside or Correct Judgment or to Release Petitioner from Custody Pursuant to Rule 40 Haw. Rules of Penal Proc." The two petitions are collectively referred to as the "Rule 40 Petition.
On March 31, 1982, in the underlying criminal case (Cr. No. 56042), a jury found Acker guilty of two counts each of Kidnapping, Robbery in the First Degree, and Unauthorized Control of Propelled Vehicle and one count each of Murder and Burglary in the First Degree. The circuit court sentenced Acker to concurrent terms of imprisonment as follows: (1) life with the possibility of parole and a mandatory minimum sentence of ten years on the Murder charge; (2) ten years for one of the Kidnapping charges and twenty years for the other Kidnapping charge; (3) twenty years for each of the two robbery charges; (4) five years for the Unauthorized Control of Propelled Vehicle charge, and (5) ten years for the burglary charge.
Acker appealed her convictions, alleging that the circuit court had erred by (1) denying her motions to dismiss for pre-indictment delay and lack of probable cause, (2) permitting evidence of her alleged prior crimes, (3) giving a jury instruction on accomplice, and (4) denying her invocation of the spousal privilege. In No. 8745, the Hawai`i Supreme Court affirmed her convictions.
In her Rule 40 Petition, Acker alleged:
1. Her conviction for Murder should be dismissed or a new trial held on this charge because her husband, William Acker (William), admitted during his May 2, 1991 parole hearing in California that he was solely responsible for the murder in Hawai`i.
2. Her right to a fair and impartial trial had been violated by the suppression of Brady2 material favorable to her, namely, that William had pleaded nolo contendere to first degree murder with the use of a gun in California and been sentenced to life with the possibility of parole for that offense.
3. The State failed to disclose information about William's jailhouse activities as an informant.
4. The deputy prosecuting attorney committed prosecutorial misconduct by not informing Acker or the circuit court that William was serving a sentence of life with parole.
The circuit court entered its Decision on January 21, 2005. The circuit court then entered its Amended FOF/COL & Order, in which the court granted the Rule 40 Petition as to the State's failure to disclose evidence about William's prior conviction and sentence, but not as to the State's alleged failure to disclose evidence about William's jailhouse informant activities. The court declined to address Acker's prosecutorial misconduct claim. The circuit court vacated Acker's convictions and sentences in Cr. No. 56042 and ordered that Acker receive a new trial.
The State timely appealed, and Acker cross-appealed. On appeal, the State contends (1) the circuit court's Findings of Fact (FOFs) 1, 3, 10, 11, 12, 13, 14, 16, 17, and 18 were clearly erroneous; (2) the circuit court's Conclusions of Law (COLs) that Brady violations occurred were wrong (COLs 27, 28, 30, 33, 34, 38, 39, 40, 41, 42, 43, 44, and 45); and (3) the circuit court concluded wrongly that the waiver provision of HRPP Rule 40 did not apply (COL 47).
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 by the parties, we conclude the circuit court was correct to the extent it ordered that Acker's Rule 40 Petition be granted and her Murder conviction (Count 6) in Cr. No. 56042 be set aside for a new trial.
William pleaded nolo contendere in California to the first degree murder of Cesario Arauza (Arauza) and to using a gun in the commission of that offense, and he was sentenced to life imprisonment with the possibility of parole. Nevertheless, William testified at Acker's trial in Hawaii that Acker had been the shooter in the Arauza murder. William further explained that he pled to the Arauza murder only because under the felony murder rule, he felt "responsible" for Arauza's murder even though he had not been present when Acker shot Arauza. William's testimony that Acker had been the shooter in the Arauza murder was used to bolster his testimony that Acker had also been the shooter in the murder of Lawrence Hasker (Hasker) in Hawai`i.
The State did not disclose to Acker that William had pleaded nolo contendere to both murdering Arauza and using a gun in the commission...
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