State v. Acker, SCWC–30205.

Decision Date14 February 2014
Docket NumberNo. SCWC–30205.,SCWC–30205.
CourtHawaii Supreme Court
Parties STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Maryann ACKER, Petitioner/Defendant–Appellant, and William Gerald Acker, Respondent/Defendant.

133 Hawai'i 253
327 P.3d 931

STATE of Hawai‘i, Respondent/Plaintiff–Appellee,
Maryann ACKER, Petitioner/Defendant–Appellant,
William Gerald Acker, Respondent/Defendant.

No. SCWC–30205.

Supreme Court of Hawai‘i.

Feb. 14, 2014.

327 P.3d 935

Keith S. Shigetomi, Honolulu, for petitioner.

Brandon H. Ito, for respondent.

RECKTENWALD, C.J., NAKAYAMA, J., and Circuit Judge NACINO, Assigned in Place of POLLACK, J., Recused, with ACOBA, J., Concurring and Dissenting Separately, with whom McKENNA, J., Joins.

Opinion of the Court by RECKTENWALD, C.J.

133 Hawai'i 257

Maryann and William Acker, a newly married couple, were involved in a series of crimes in California and Hawai‘i during June, 1978. On June 10, 1978, Maryann went to a Waikiki bar and began conversing with Joseph Leach. William joined the conversation and introduced himself as Maryann's relative. Leach subsequently gave a ride to William and Maryann. During the drive, William pulled a gun on Leach, demanded his wallet, and ordered that he drive to Hanauma Bay. At Hanauma Bay, Leach was bound and taken to a secluded area off of the road. William and Maryann then left in Leach's vehicle.

On June 18, 1978, Maryann met Lawrence Hasker at a Waikiki bar. William, again posing as a relative of Maryann, joined the conversation and asked for a ride home. Hasker agreed to give William and Maryann a ride. Hasker was subsequently robbed at gunpoint and the three proceeded to Hanauma Bay. While at Hanauma Bay, Hasker was fatally shot.1 William and Maryann then left Hawai‘i for California.

On June 24, 1978, William and Maryann were hitchhiking through California and were picked up by Cesario Arauza. Arauza was fatally shot and his body was later discovered by the side of the road. Maryann and William then engaged in several robberies before Maryann was apprehended. William fled California, but eventually turned himself in.

In July 1978, William and Maryann were charged in California with Arauza's murder. Following a jury waived trial, Maryann was convicted of Arauza's murder, but was acquitted of the allegation of use of a firearm. William, who was cooperating with authorities and had divulged information regarding the Leach and Hasker incidents in Hawai‘i, pleaded nolo contendre to the murder of Arauza.

327 P.3d 936
133 Hawai'i 258

In August 1981, William and Maryann were indicted in Hawai‘i for various charges relating to the Leach and Hasker incidents. William pleaded guilty to robbing Hasker and agreed to testify against Maryann. Maryann was subsequently found guilty of the charges regarding the Leach incident and Hasker's murder. Maryann appealed to this court, which affirmed her convictions.

In 1991, William testified under oath at a parole hearing in California that he was solely responsible for Hasker's murder.

Maryann eventually filed a Hawai‘i Rules of Penal Procedure (HRPP) Rule 40 petition for post-conviction relief, and was granted a new trial in 2007 in relation to the charge for Hasker's murder. At the retrial, which is the basis for the instant appeal, the State was allowed to introduce evidence of the Leach incident, the Arauza murder, and the California robberies. Maryann was again convicted of Hasker's murder, and the Intermediate Court of Appeals affirmed her conviction.

In her application, Maryann asserts that she was denied a fair trial because: (1) the circuit court erred in ruling that she had opened the door, during the cross-examination of William, to the admission of "bad acts" evidence regarding her involvement with William in the murder of Arauza in California; (2) the circuit court erred in denying a mistrial after Hasker's friend, Timothy Millard, testified regarding a police request that Millard take a lie detector test; (3) the prosecution engaged in misconduct by improperly cross-examining her using information in her presentence report and by making false and misleading statements during rebuttal closing; and (4) the circuit court erroneously refused to enforce a subpoena recalling William to testify in Maryann's case. In addition, Maryann contends that the circuit court's jury instructions on murder and accomplice liability were erroneous, and that the cumulative effect of these errors violated her right to a fair trial.

We hold that the circuit court erred in its determination that defense counsel opened the door to evidence concerning Maryann's convictions in California. Nevertheless, such evidence was admissible under Hawai‘i Rules of Evidence (HRE) Rule 404(b), and relevant to rebut Maryann's suggestion that she was acting under duress in the Hasker incident and to establish intent and a common plan. Thus, the circuit court's error regarding the basis for admitting this evidence was harmless beyond a reasonable doubt.

We also conclude that the circuit court did not abuse its discretion in denying Maryann's motion for mistrial because it struck the testimony of Millard regarding the lie detector test and instructed the jury to disregard that testimony. We further conclude that the prosecution did not engage in prosecutorial misconduct, and that the circuit court did not abuse its discretion in denying Maryann's request to extract William during Maryann's case and instead allowing a deputy sheriff to testify regarding William's refusal to testify. Finally, we hold that the challenged jury instructions were not prejudicially insufficient, erroneous, inconsistent, or misleading.

Accordingly, we affirm the ICA's judgment.

I. Background

The following factual background is taken from the record on appeal, and recounts the various court proceedings related to this case.

A. Arauza Case

On June 28, 1978, Maryann was arrested while driving Arauza's vehicle. William subsequently turned himself in on July 1, 1978. On July 20, 1978, Maryann and William were charged in California with the murder of Arauza. The charge alleged that in the commission of the offense, William and Maryann "personally used a firearm, to wit a 38 caliber revolver[.]" Maryann and William were also charged with committing two unrelated robberies. Maryann was charged with an additional unrelated robbery.

The cases against William and Maryann were severed for trial. William pleaded nolo contendere to the murder of Arauza, which included the use of a firearm allegation. William also pleaded nolo contendere to the two charged robberies. William was sentenced

133 Hawai'i 259
327 P.3d 937

to life imprisonment with the possibility of parole.

After a bench trial, Maryann was found guilty of Arauza's murder, but the court found the use of a firearm allegation to be "not true and order[ed][it] stricken." Maryann also was convicted of the three charged robberies, and was sentenced to life imprisonment.

B. Initial Trial in Hawai‘i

On August 19, 1981, Maryann was charged with: kidnapping Leach; robbing Leach; exerting unauthorized control of Leach's vehicle; kidnapping Hasker; robbing Hasker; murdering Hasker in violation of HRS § 707–701 ;2 exerting unauthorized control of Hasker's vehicle; and burglarizing Hasker's residence. William was charged with the same offenses as Maryann, except that he was not charged with Hasker's murder. Pursuant to a plea agreement, William pleaded guilty to robbing Hasker in exchange for his testimony against Maryann. All other charges against William were dismissed.

William was called as a prosecution witness at Maryann's first trial in 1982, and testified that Maryann shot Hasker. William testified that he pleaded nolo contendere to Arauza's murder, even though he believed Maryann had shot and killed Arauza, because he thought he was responsible for her actions under California's felony murder rule. William, thus, suggested to the jury that he pleaded guilty to felony murder, when he in fact pleaded nolo contendere to murder and the use of a firearm allegation. The circuit court also allowed other individuals to testify regarding the Arauza incident.

Maryann was subsequently found guilty as charged on all counts. On the murder conviction, Maryann was sentenced to a term of life imprisonment with the possibility of parole, and a mandatory minimum term of ten years.

Maryann appealed her conviction to this court and argued in relevant part that the trial court erred in permitting evidence of her other crimes because:

[T]he Arauza case was not relevant to establish any of the exceptions to [HRE] Rule 404. It did not provide motive since the Arauza case occurred after the present case, and the two cases were not related. It did not prove opportunity since the crimes were committed several days and several thousand miles apart from each other. It did not prove preparation or plan since no common or continuing scheme was established by the State. It did not prove intent, knowledge, or absence of mistake or accident since these were not issues at trial.... It did not establish

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