State v. Acker

• Decision Date: 12 October 2012
• Docket Number: No. 30205.,30205.
• Citation: 291 P.3d 395,128 Hawai'i 497
• Parties: STATE of Hawai‘i, Plaintiff–Appellee, v. Maryann ACKER, Defendant–Appellant and William Gerald Acker, Defendant.
• Court: Hawaii Court of Appeals

128 Hawai'i 497

291 P.3d 395

STATE of Hawai‘i, Plaintiff–Appellee,

v. Maryann ACKER, Defendant–AppellantandWilliam Gerald Acker, Defendant.

No. 30205.

Intermediate Court of Appeals of Hawai‘i.

Oct. 12, 2012.

Appeal from the Circuit Court of the First Circuit (CR. No. 056042).

Keith S. Shigetomi, for Defendant–Appellant.

Brandon H. Ito (Delanie D. Prescott–Tate with him on the brief), Deputy Prosecuting Attorneys City and County of Honolulu, for Plaintiff–Appellee.

NAKAMURA, Chief Judge, and FOLEY and REIFURTH, JJ.

MEMORANDUM OPINION

Defendant–Appellant Maryann Acker, now known as Maryann Bray (Maryann), was convicted on retrial of the murder of Lawrence Hasker (Hasker). She was sentenced to life imprisonment, with the possibility of parole, by the Circuit Court of the First Circuit (Circuit Court).¹

On appeal, Maryann argues that she was denied her right to a fair trial because: (1) the Circuit Court erred in ruling that, during her cross-examination of her ex-husband William Acker (William), she had opened the door to the admission of “bad acts” evidence concerning her involvement with William in the murder of Cesario Arauza (Arauza); (2) the testimony of Timothy Millard (Millard), Hasker's friend, concerning a police request that Millard take a lie detector test was an “evidentiary harpoon” requiring a mistrial; (3) the prosecutor improperly cross-examined Maryann using information in her presentence report; (4) the Circuit Court mishandled William's refusal to testify when he was recalled as a witness in the defense case; and (5) the prosecutor engaged in misconduct in closing argument. Maryann also argues that the Circuit Court's jury instructions regarding the offense of murder and accomplice liability were erroneous. We affirm.

BACKGROUND

This appeal concerns the retrial of Maryann for the murder of Hasker. The indictment charged Maryann with committing the murder of Hasker between on or about June 18, 1978, and June 20, 1978, in violation of Hawaii Revised Statutes (HRS) § 707–701 (1976).² On June 23, 1978, Hasker's dead body was discovered at Hanauma Bay. The cause of death was a gunshot wound to the head. Other incidents that are relevant to Maryann's retrial include the kidnaping and robbery of Joe Leach (Leach) on June 10, 1978, and the murder of Arauza in California on June 25, 1978. At the time of Hasker's murder and the Leach and Arauza incidents, Maryann was married to William.

I. The Arauza Case

After Hasker was murdered, William and Maryann left Hawai‘i and went to California. Within a week after Hasker's murder, Arauza's dead body was found. On June 28, 1978, Maryann was arrested while she was driving Arauza's car. William later turned himself in to California authorities on July 1, 1978.

On July 20, 1978, William and Maryann were charged by California authorities with the murder of Cesario Arauza. The murder charge alleged that on or about June 24, 1978, William and Maryann “did willfully, unlawfully, and with malice aforethought” murder Arauza. The murder charge further alleged that in the commission of this offense, William and Maryann “personally used a firearm, to wit a 38 calibre revolver, within the meaning of Penal Code Section 12022.5.” California authorities also charged Maryann with committing three robberies and charged William with committing two robberies.

The cases against William and Maryann were severed for trial. After a jury-waived trial, Maryann was found guilty of the murder of Arauza, but the court found the use of firearm allegation to be “not true” and ordered that allegation stricken. Maryann was also convicted of three robberies. William later pleaded nolo contendere to the murder of Arauza and the use of firearm allegation. He also pleaded guilty to two robberies. He was sentenced to life imprisonment with the possibility of parole. The California judgments of Maryann and William were filed in July 1979.

II. Maryann's First Trial in Hawai‘i

After William and Maryann had been convicted and sentenced on the California charges, they were indicted in Hawai‘i. In an indictment filed on August 19, 1981, Plaintiff–Appellee State of Hawai‘i (State) charged Maryann with: kidnapping Leach (Count I); robbing Leach (Count II); exerting unauthorized control over Leach's car (Count III); kidnapping Hasker (Count IV); robbing Hasker (Count V); murdering Hasker (Count VI); exerting unauthorized control over Hasker's car (Count VII); and buglarizing Hasker's residence (Count VIII). The crimes against Leach were alleged to have occurred on or about June 10, 1978, and the crimes against Hasker “on or about the 18th day of June, 1978, through and including the 20th day of June, 1978.” The murder count charged that “[Maryann] did intentionally or knowingly cause the death of Lawrence R. Hasker by shooting him with a firearm.”

William was also charged in the indictment with the same offenses as Maryann, except that he was not charged with the murder of Hasker. Pursuant to a plea agreement, William pleaded guilty to robbing Hasker as charged in Count V; he was granted transactional immunity for his testimony against Maryann; and the other charges against him were dismissed.

William subsequently testified as a prosecution witness at Maryann's first trial on the Hawai‘i charges. Through William's testimony, the prosecution was permitted to present evidence of Maryann's involvement in the murder of Arauza. William testified that Maryann had shot and killed both Hasker and Arauza. With respect to Arauza, William testified that Arauza had picked up William and Maryann as they were hitchhiking. According to William, after stopping at a rest area that had a restaurant, Maryann and Arauza left William behind and drove off in Arauza's car. Maryann returned alone in Arauza's car about twenty to thirty minutes later, and she told William that she had left Arauza on an on-ramp. William stated that in February 1979, long after they had been charged with Arauza's murder, Marryann told him that she had shot Arauza.

William also testified that based on his understanding of the felony murder rule, he decided to enter his plea to the murder of Arauza even though Maryann had shot and killed Arauza. Through his testimony, William suggested that he had pleaded guilty or nolo contendere to felony murder with respect to Arauza, whereas he actually pleaded nolo contendere to murder and the use of firearm allegation. The State also did not disclose to the defense that William had been sentenced to life imprisonment with the possibility of parole for the Arauza murder.

The jury found Maryann guilty as charged on all counts. The Circuit Court sentenced Maryann to a term of life imprisonment, with the possibility of parole, and a mandatory minimum term of term of ten years on the Count VI murder conviction; five years of imprisonment on Counts III and VII; ten years of imprisonment on Counts I and VIII; and twenty years of imprisonment on Counts II, IV, and V, all terms to be served concurrently.

On June 2, 1982, Maryann filed a direct appeal of her convictions. As one of the points of error in her opening brief, Maryann asserted that “[t]he trial court erred in permitting evidence of [Maryann's] prior crimes.” Maryann's brief argued that

the Arauza case was not relevant to establish any of the exceptions to Rule 404. It did not prove motive ... [i]t did not prove opportunity ... [i]t did not prove preparation or plan ... [i]t did not prove intent, knowledge, or absence of mistake or accident ... [i]t did not establish identity ... [and] [f]inally, it did not prove modus operandi....

Assuming arguendo that one or more exceptions were relevant, the prejudice against [Maryann] far outweighed any probative value in view of the issues and the evidence available to the State.

On December 11, 1984, the Hawai‘i Supreme Court issued a Memorandum Opinion affirming Maryann's convictions. State v. Acker, No. 8745 (Hawai‘i Dec. 13, 1984). The supreme court's Memorandum Opinion states: “This is an appeal from a conviction for murder. Numerous grounds are argued by [Maryann] on appeal. On a review of the record, we find no merit to any of them,. Affirmed.”

III. Maryann's Hawai‘i Rules of Penal Procedure (HRPP) Rule 40 Petition

Maryann filed a Petition for Post–Conviction Relief pursuant to HRPP Rule 40 on August 15, 2000, an Amended Petition for Post–Conviction Relief on May 13, 2002, and supporting memoranda and exhibits (collectively, “Rule 40 Petition”). In her Rule 40 Petition, Maryann alleged, among other things, that: (1) her conviction for murder should be dismissed or a new trial held on this charge because William admitted during his May 2, 1991, California parole hearing that he was solely responsible for the murder in Hawai‘i; and (2) her right to a fair and impartial trial had been violated by the suppression of information favorable to her that the State was required to disclose under Brady v. Maryland, 373 U.S. 83 (1963), namely, that William had pleaded nolo contendere to first degree murder with the use of a firearm in California and had been sentenced to life imprisonment with the possibility of parole for that offense.

The Circuit Court ³ filed a Decision on January 21, 2005, and amended findings of fact and conclusions of law and order on March 7, 2005, which granted Maryann's Rule 40 Petition as to her claim regarding the prosecution's failure to disclose evidence about William's prior conviction and sentence. The Circuit Court vacated Maryann's convictions and ordered that she receive a new trial. The State appealed. This court affirmed the Circuit Court to the extent that it vacated Maryann's murder conviction on Count VI and ordered a new trial on that count. Acker v. State, No. 27081, 2007 WL 2800803 (Hawai‘i App. Sept. 27, 2007) (SDO).⁴

IV. Maryann's Retrial

A. Pretrial rulings

Prior to Maryann's retrial, the State filed a notice of its intent to introduce evidence of the Leach robbery in...