State v. Acker.

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Electronically Filed
Supreme Court
SCWC-30205
14-FEB-2014
01:22 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
MARYANN ACKER, Petitioner/Defendant-Appellant,
and
WILLIAM GERALD ACKER, Respondent/Defendant.
SCWC-30205
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30205; CR. NO. 056042)
FEBRUARY 14, 2014
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.
Maryann and William Acker, a newly married couple, were
involved in a series of crimes in California and Hawai#i during
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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,
1
As set forth below, the State contends that Maryann shot Hasker,
while Maryann contends that it was William who fired the gun.
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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.
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
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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
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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
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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 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
2
HRS § 707-701 (1976), provided in relevant part: “a person commits
the offense of murder if he intentionally or knowingly causes the death of
another person.”
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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 identity since [Maryann] testified that she
was present at the general scene of the shooting.
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Finally, it did not prove modus operandi since the two
crimes were dissimilar in nature. . . .
Assuming, arguendo, that one or more of the
exceptions were relevant, the prejudice against
[Maryann] far outweighed any probative value in view
of the issues and the evidence available to the State.
This court issued a Memorandum Opinion affirming
Maryann’s convictions, stating that it found “no merit” to any of
Maryann’s arguments.
B. Hawai#i Rules of Penal Procedure (HRPP) Rule 40 Petition
Maryann filed an HRPP Rule 40 Petition for Post-
Conviction Relief on August 15, 2000, arguing, inter alia, that:
(1) her murder conviction should be dismissed, or she should
receive a new trial, because William admitted during a parole
hearing before the California Parole Board that he was
responsible for Hasker’s murder; and (2) she was denied a fair
trial because the State did not disclose that William pleaded
nolo contendere to first degree murder with the use of a firearm
in California and was sentenced to life imprisonment with the
possibility of parole for that offense. Acker v. State, No.
27081, 2007 WL 2800803, at *1 (Haw. App. Sept. 27, 2007) (SDO).
The circuit court granted Maryann’s HRPP Rule 40 Petition,
vacated her conviction and sentence, and ordered that she receive
a new trial for all counts. Id. On appeal, the ICA determined
in relevant part:
The State did not disclose to [Maryann] that William
had pleaded nolo contendere to both murdering Arauza
and using a gun in the commission of that murder.
Thus, contrary to the impression left by William’s
testimony, his first degree murder conviction in
California had not been based on a felony murder
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theory, but on the allegation that he had been the
person pulling the trigger. The State also failed to
disclose to [Maryann] that William had been sentenced
in California to life with the possibility of parole
and, instead, disclosed an FBI “rap sheet” that
erroneously reported William’s sentence as life
without parole.
We conclude that the State’s failure to disclose the
true facts concerning William’s nolo contendere plea,
conviction, and sentence in California denied Acker
her right to a fair trial on her Murder charge.
Id. at 2-3.
Accordingly, the ICA affirmed the circuit court’s order
to the extent that it vacated Maryann’s murder conviction and
ordered a new trial on only that count. Id. at *3.
C. Retrial on the Hasker Murder Charge
1. Circuit Court Proceeding
a. Pre-Trial
The State filed a Notice of Intent to Use Evidence, in
which it sought to admit evidence of the Leach and California
incidents, as well as evidence of the additional Hasker
convictions, i.e., robbery, kidnapping, burglary, and
unauthorized control of propelled vehicle.
Maryann opposed the notice of intent to use the prior
evidence. Maryann argued, “Besides the problems of allowing
William to again lie regarding the Arauza matter,[3] evidence of
that incident is prohibited by [HRE] Rule 404(b)[.] Nothing in
3
As will be discussed further infra, Maryann appears to be
referring to William’s 1991 testimony before the California Parole Board, in
which he testified that he shot both Hasker and Arauza and that Maryann did
“[a]bsolutely nothing[,]” which contradicted his testimony at Maryann’s
initial trial that she told him that she shot Arauza.
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the Arauza incident makes William’s assertion that Maryann shot
Hasker any more or less probable.”
At a subsequent hearing, the circuit court stated that
it would allow in the Leach incident, and that it would keep out
the Arauza incident “unless the door is open[ed]”:
What worries me is if William [] gets on the stand and
says he is pure as the driven snow and he has
constantly told the truth, we’re going to get into
whether or not he lied in this Court, in the Circuit
Court, lo these -- whatever many years ago it was.
. . . .
And whether he -- or whether he lied up in California
and pled to being the shooter. And we’ll get to that.
But if the door is opened, we’re going to have to go
down that road[.]
The circuit court subsequently entered its Findings of
Fact, Conclusions of Law, and Order which provided in relevant
part:
FINDINGS OF FACT
6. From March 16, 1982 to March 31, 1982, [Maryann]
proceeded to trial in the [circuit court], on
the offenses involving [] Leach and [] Hasker.
The original trial court allowed the State to
present evidence of [Maryann’s] complicity in
the murder of [] Arauza in its case in chief.
. . . .
8. On June 2, 1982, [Maryann] filed Notice of
Appeal of her convictions for the crimes
involving [] Leach and [] Hasker, including the
murder of [] Hasker. In her Opening Brief,
filed December 29, 1983, [Maryann] advanced as
point of error “C” that “The Trial Court erred
in permitting evidence of [Maryann’s] prior
crimes.”
. . . .
9. On December 11, 1984, the Hawai#i Supreme Court
issued its Memorandum Opinion affirming
[Maryann’s] convictions . . . and establishing
the “law of the case.”
. . . .
CONCLUSIONS OF LAW
. . . .
7. In the instant case, the cogent reasons
supporting the Court’s denial of State’s request
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to admit evidence regarding [Maryann’s]
complicity in the murder of [] Arauza are:
a) [William’s] plea of nolo contendere to the
offense of Murder . . . and the included
allegation of use of a firearm . . . for
the murder of [] Arauza;
b) [Maryann’s] conviction for offense of
Murder . . . and the court’s rejection of
the included allegation of use of a
firearm[;]
c) [William’s] sentence for the offense of
Murder and the included allegation of use
of a firearm for the murder of [] Arauza
was life with the possibility of parole, a
fact which was known to the State but not
to the Court or [Maryann] at the time of
trial in 1982. Evidence that [William]
had plead [sic] nolo contendere to being
the shooter and murdering [] Arauza would
have served to undermine and impeach his
claim that [Maryann] had shot [] Arauza.
It would also have served to contradict
[William’s] explanation for pleading to []
Arauza’s murder and cast [William’s] role
in the murders of [] Arauza and [] Hasker
in a different light to the jury.
Competent defense counsel could also have
used [William’s] sentence of life with the
possibility of parole to attack
[William’s] interest and motives for
cooperating with the State and placing
blame on [Maryann]. Finally, the belief
that [William] had been sentenced to life
without the possibility of parole may have
influenced defense counsel to tread
lightly in attacking [William] on bias and
caused the trial court to find that
evidence concerning [William’s] sentence
was not relevant. [William’s] testimony
was critical to the State’s murder
prosecution. The State’s non-disclosures
of the true facts concerning [William’s]
California plea, conviction, and sentence
deprived [Maryann] of valuable evidence
that could have been used to forcefully
impeach [William’s] credibility.
8. Upon revisiting the issue of the admissibility
of the evidence of [Maryann’s] complicity in the
murder of [] Arauza in its case in chief, this
Court concludes as a matter of law, the State is
not permitted to present such evidence in its
case in chief for the cogent reasons listed
above.
In her Third Motion in Limine, Maryann requested that
the circuit court preclude the State from calling William as a
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witness because the State was aware that his testimony was
“false” and, if allowed, “would be suborning perjury.”
Alternatively, Maryann requested that she be allowed to introduce
evidence that William failed a polygraph examination during the
initial investigation into Hasker’s murder, refused to take
another polygraph examination, and was still given immunity for
his role in the instant case. In addition, Maryann noted that on
May 2, 1991, and while under oath, William stated that he
“committed the murder for which he was incarcerated (California),
that he pulled the trigger and that he committed the murder in
Hawaii[.]” Attached as Exhibit C to Maryann’s Third Motion in
Limine were excerpts from William’s May 2, 1991 hearing before
the California Board of Prison Terms (California Parole Board).
The transcript indicates that the following exchange occurred
between William and a commissioner on the Board:
COMMISSIONER []: . . . Did you commit the murder for
which you’re in custody?
[William]: Yes, I did.
COMMISSIONER []: What about the one in Hawai#i?
[William]: I committed them all and I want the
woman behind it, the woman that’s
incarcerated, I would like her set
free.
COMMISSIONER []: Okay. So [Maryann] didn’t do
anything?
[William]: Nothing. Absolutely nothing.
COMMISSIONER []: And is this the first time you’ve
said that?
[William]: The very first time.
At a hearing on Maryann’s motions, the circuit court
considered whether Maryann would be allowed to cross-examine
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William about his statements to the California Parole Board in
1991. The following conversation occurred:
[Defense]: . . . I realize that the fact that
[William] failed a polygraph examination
is not admissible. I will grant the court
that and I’ll grant the State that.
However, I think that it’s fair for me to
ask that you were -– before entering into
agreement you were asked to complete
certain tasks which you failed but
nevertheless you still got a plea
agreement. I don’t have to come out and
say, did you fail -- didn’t they tell you
to take a polygraph test and you failed
it? But, I’m saying, hey, you were asked
to complete certain tasks before we would
accept you as a witness and you failed
those tasks but they still accept him as a
witness.
THE COURT: What task other than the polygraph which I
can’t let in?
[Defense]: That’s what I’m saying. I’m not going --
THE COURT: Just that one task?
[Defense]: Yes. I mean, that’s a pretty big task.
He lied. But I’m not going to term it
that way. I can simply say, you were
asked to complete a task, you failed that
task, nevertheless they still gave you
this plea agreement. And obviously I can
bring up all the lies he had at trial.
THE COURT: If he takes the stand here in this court,
you’re going to cross him on what he said
in 1991 to the Paroling Authority, is that
right, where he basically said he did it,
[Maryann] did not do it?
[Defense]: Yes.
THE COURT: And he’d like her to go free?
[Defense]: Yes.
THE COURT: And you don’t want to stop there, you want
to also say he also didn’t perform this
earlier task?
[Defense]: Yes.
THE COURT: The jury’s not going to understand that.
It’s another vague thing but I understand
your position.
. . . .
[State]: . . . [j]ust so long as the court’s clear,
if he goes there, the State’s position is:
can of worms.
. . . .
THE COURT: . . . Well, I’m going to obviously let
[William] testify subject to vigorous
cross. Court will not let in the -- and
you have a good record on . . . the
polygraph failure. If that’s the only
reason, I don’t even want you to ask that
question at this particular point but you
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certainly can cross him based upon what he
told the Paroling Authority. After he was
divorced from [Maryann] he testified in
this court in 1991 he basically wanted to
exculpate her, and that I’ll decide at the
time the scope beyond that.
At a subsequent hearing, defense counsel noted his
understanding from the initial hearing on the Motions in Limine
that if he attempted to use William’s statements before the
California Parole Board to show that William “committed
perjury[,]” then “the door could be opened” to the Arauza
incident. Defense counsel then stated: “[I]f I can’t bring in
the fact of [William’s] reputation and his admission of perjury,
then I don’t think I’m doing my job. If the Court says that by
bringing that in, I open the door, then so be it, but if that’s
what happens, that’s what happens.” The State argued that cross-
examining William on his statements to the California Parole
Board would lead to the State asking why his story changed. The
State contended that William’s answer “is going to be, well,
because he was approached by [Maryann’s] attorney, who told him
if he told the paroling authority that he did it, they’d let her
out, which is going to bring in the back that she’s serving a
life sentence in California[,]” thus opening the door to the
Arauza incident. The circuit court then stated, “That makes
sense to me[,]” and asked defense counsel, “How are we going to
get around that, the California situation?” Defense counsel then
replied: “If California comes in, California comes in for the
whole thing, Judge. I’m not trying to . . . just nip and tuck
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things. If it comes in, it comes in.” The State subsequently
stated:
Just to clarify, the only way then that California
should come in, if at all, through [defense counsel]
is if he confronts William [] with his statement to
the [California] paroling authority, at which point I
get to bring in evidence of her conviction because
that goes to his reason why he said that -- made that
statement.
Defense counsel replied “That’s my understanding[,]”
and the circuit court stated, “Fair enough.”
In its Order granting in part and denying in part
Maryann’s Third Motion in Limine, the circuit court determined,
inter alia:
IT IS HEREBY ORDERED that [Maryann’s] Third
Motion In Limine is hereby GRANTED IN PART, [Maryann]
may question William [] on his 1991 statement to the
California Parole Board, subject to proper foundation
being laid;
IT IS FURTHER ORDERED that should [Maryann]
question William [] on his 1991 statement to the
California Parole Board, the State may then introduce
evidence of William[’s] reasons for making that
statement, including [Maryann’s] conviction and
sentence for the murder of [] Arauza in California.
IT IS FURTHER ORDERED that [Maryann’s] Third
Motion In Limine is hereby DENIED IN PART, William []
may testify; [Maryann] may not introduce evidence of
failed or refused polygraph tests, and Defense Counsel
shall approach the bench and obtain a ruling prior to
attempting to introduce any evidence of or mentioning
William[’s] informant activities.
b. Trial
i. William’s Testimony
William acknowledged that he received a plea agreement
with the State when he testified against Maryann at her initial
trial, under which all of the other charges against him were
dropped in exchange for pleading guilty to robbing Hasker and
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testifying against Maryann. William was sentenced to twenty
years incarceration for the robbery charge, which he had
completed prior to Maryann’s retrial. William then stated that
no one made any promises to or agreements with him in exchange
for his testimony at Maryann’s retrial.
William stated that he and his then-wife Maryann came
to Hawai#i in June 1978 after Maryann purchased round trip
tickets. William brought a “.38 Special” gun and a hunting knife
with him to Hawai#i. William and Maryann eventually “[ran] out
of money.” To deal with their financial situation, William and
Maryann were “going to sell bunk marijuana to tourists.” William
explained that Maryann would get “dolled up” and go to bars in
Waikiki to look for tourists. William continued:
[Maryann’s] there to meet dudes, guys, men, and find
out everything she can about them. I’m going to sell
them bunk marijuana. And if we find out they’re
leaving – if we are there Friday and Saturday and
Sunday, and they are leaving Monday, well, what are
they going to do when they find out they got a bag of
nothing?
. . . .
I come up to her and I give her the signal, either
some kind of facial or I walk up, you know, walk up to
her, say, “What’s up, sis”. She was like usually my
sis when she’s meeting these guys. I would come up to
her and I would be like her brother.
. . . .
And I tell her, hey, let me talk to you a minute. I
pull her aside, what’s up. And she’d give me the low
down on what’s happening with the Vick [sic].
. . . .
If the guy is good, I take him to the park, get him
high, he buys it, he leaves. You know, very seldom
was a gun pulled or in play. Sometimes it was.
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Maryann kept the gun and the knife in her purse “if it
had to” be used. Maryann “could have left any time if she wasn’t
on board” with their plan.
William stated that on June 10, 1978, Maryann met
Leach. William could tell that Leach was not a tourist and did
not want to sell “bunk” to Leach. Maryann wanted to “just play
it out” with Leach because Leach had a lot of money. William and
Maryann agreed to rob Leach, rather than try to sell him “bunk”
marijuana. Maryann, William, and Leach left in Leach’s car.
While in the car, William “pulled the gun on [Leach] and told him
this [was] a robbery.” William instructed Leach to drive to
Hanauma Bay and to give his wallet to Maryann, and Leach did so.
When they arrived at Hanauma Bay, William tied Leach up and
gagged him, while Maryann pointed the gun at Leach. William and
Maryann left Hanauma Bay in Leach’s car and took things out of
his trunk.4
On June 19, 1978, William and Maryann kidnapped and
robbed Hasker. Maryann got “dolled up,” went to the Garden Bar,
and met Hasker.5 William approached Maryann and Hasker, and
4
Although Leach was unavailable to testify at Maryann’s retrial,
his testimony from Maryann’s initial trial was read into the record, without
objection. Leach’s testimony regarding his robbery was similar to the
testimony provided by William.
5
Timothy Millard testified that on June 19, 1978, he and Hasker
made plans to meet at the Hilton Hawaiian Village. Millard, however, did not
show at the Hilton Hawaiian Village that night. A few days later, Millard was
questioned by police officers. Millard stated: “They asked me if I would take
a lie detector test, asked me a lot of questions like where were you and all
this and all that. And apparently, you know, I answered all the questions and
(continued...)
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asked, “What’s happening, sis.” William got the impression that
Hasker was a drug dealer and discovered that Hasker was local.
William told Maryann to stop talking with Hasker so that they
could rob a tourist. Maryann responded, “No. . . . He’s got big
money, he’s a dealer.” William agreed and asked Hasker for a
ride back to their apartment, and Hasker agreed. When they
arrived, Maryann and William went into the bedroom and discussed
their plan. William again insisted that Hasker be taken home, to
which Maryann responded, “No, let’s take him. He’s got cocaine,
he’s got big money[.]” William agreed, grabbed the gun from
Maryann’s purse, pointed it at Hasker, and said, “This is a
robbery, man.” Maryann then tied Hasker’s hands behind his back,
and drove with William and Hasker to Hasker’s apartment. William
then told Maryann to go inside and “get the cocaine and the
money.” Maryann left and came back twenty minutes later with
money and marijuana, but no cocaine.
Maryann then drove William and Hasker to Hanauma Bay.
Maryann parked the car and William told Hasker to exit the
vehicle and walk down a grassy knoll. Maryann had the gun
pointed at Hasker. Hasker stated that he needed to urinate.
William told Maryann that they should leave, to which Maryann
responded, “Wait, I want to make sure he does what you tell him
5
(...continued)
everything to their liking.” Defense counsel objected, and the circuit court
struck the testimony from the record, and instructed the jury to “disregard
and also not speculate on any other police activity.”
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to do.” William stated, “[Hasker] took a leak first. . . . He
zipped up and he turned toward her. And she pulled the gun and
went (witness making shooting sound) shot him, fire came out of
the gun three times.” Maryann was approximately “[t]en, fifteen
feet” away from Hasker when she shot him.6 William stated that
he did not threaten or force Maryann to go along with their plan:
“We did this together. There was no force. She wasn’t compelled
to do anything. At any time she could have left. Any time.”
On cross-examination, William was asked, “Do you ever
lie under oath, commit perjury as it pertains to Maryann?”
William responded, “Yeah, I –- [,]” at which point the State
objected. At a bench conference, the State argued that the
question “opens the door” to William explaining his answer. The
circuit court overruled the objection and allowed defense counsel
to proceed. Defense counsel then asked William, “[h]ave you ever
committed perjury as it pertains to Maryann?” William stated
that he “never lied in court.” Defense counsel then asked, “have
you ever lied under oath as it pertains to Maryann?” William
then asked the circuit court, “does a board hearing count?” The
circuit court responded, “If it’s under oath, yes. I don’t know
what the board -- I assume we are talking about a California
6
Dr. William Goodhue, First Deputy Medical Examiner for the City
and County of Honolulu, testified that Hasker’s death was caused by a “fatal
penetrating gunshot wound” to the head, and that Hasker had a penetrating
gunshot wound to his left lower leg. Dr. Goodhue testified that he could not
determine the distance from the muzzle of the gun to the wound for the head
injury, but estimated that the distance from the muzzle of the gun to the leg
wound to be “six to eleven or twelve inches[.]”
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board hearing; is that right?” A bench conference was held, and
the following conversation occurred:
THE COURT: He can’t get into the California Paroling
Authority?
[State]: This is exactly what I was talking about.
. . . .
[Defense]: Let me make my –- I simply asked him have
you ever committed perjury, lied under
oath, and he’s saying -–
THE COURT: Are you going to get into him going before
the California Paroling Authority?
[Defense]: Not right now.
THE COURT: Do you want to get into that?
[Defense]: I’m not sure.
THE COURT: If you told him -– that’s a different
story there, you can’t get into that, what
he told them?
[Defense]: Judge, the ruling was the California stays
out unless I open the door, and I’m not
opening the door right now.
. . . .
THE COURT: Let me strike it and start all over again
after I have a thorough hearing, I know
where you’re heading. You’re going to
have to make offers of proof. I will give
you a lot of latitude.
[Defense]: Well, Judge, you know, I don’t think you
should strike it right now. You can just
tell me to stop going any further, but I
don’t think you should strike it right now
because I am entitled to open the door if
I choose to open the door.
. . . .
THE COURT: I’m going to strike it now, let you
reinitiate it if need be. I want to make
–- I’m giving you a lot of latitude.
[Defense]: I understand that, Judge.
THE COURT: And you kind of wiggled the doorknob, but
you haven’t opened it.
The circuit court struck “that last whole series of
questions about perjury and the answers” and directed the jury to
disregard those questions and answers.
Defense counsel then asked William about a 1978 report
in which he admitted to using cocaine since the age of 18, using
one to two grams of cocaine on a daily basis for approximately
three months, and supporting his cocaine habit by selling
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narcotics and robbing individuals. William stated that he lied
to the report writer so that he could go to a “rehab center as
opposed to prison.” William stated that he would lie to get
himself out of prison, but he would not lie under oath. At
another bench conference, defense counsel then stated, “[William]
just said he wouldn’t lie under oath. Now I can ask him.”
Defense counsel then informed the circuit court that he would ask
William “[i]f he’s ever committed perjury, he’s lied under oath.”
The circuit court stated, “[s]ounds like you are going to open
the door.” Defense counsel then replied, “I’m thinking about it,
but I’m not going to do it right now.” The following testimony
was then elicited:
[Defense]: My question then is to you, [William],
have you ever lied under oath as it
pertains to anything about Maryann?
[William]: Probably.
[Defense]: Probably. Does that mean yes?
[William]: Yeah, that means yes.
[Defense]: Okay.
[William]: But not in court.
[Defense]: And so when you lie -- I’m sorry. When
you lied under oath about Maryann, was
there any repercussion to you?
[William]: No.
[Defense]: No.
[William]: No, there wasn’t because there wasn’t a
lie on her. I’m trying to do something
for her.
Defense counsel then requested a recess and the trial
ended for the day.
The next day, the circuit court expressed its concern
that the door may have been opened on the Arauza matter: “It
strikes me that the door may well have been opened for a variety
of reasons to the California situation, either under the rule of
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[] completeness or the rule of relevance and under [HRE] Rule
611.”7 Defense counsel argued that the door was not opened. The
State asserted that the door was opened as to Maryann’s prior
convictions:
Your Honor, the only reason that the door has been
opened at this point is because William [] said on the
stand that he was lying for [Maryann]. What was
happening at the time was that he believed he had been
approached by some folks who said that they
represented Maryann []. He believes that they were
from the Innosense [sic] Project. He does not know
for sure and he did not attempt to confirm.
Defense counsel then stated:
Your Honor, I didn’t bring in his statement.
The order says if I bring in his statement, I have to
lay proper foundation.
His statement was, “I shot him.” That was not
brought in before the jury. So yes, if I bring in
that statement, yes, I have to lay the foundation.
I didn’t ask him that. I simply asked him have
you ever lied under oath.
And so, you know, obviously, now they want to
split the hairs and say, well, you can only talk about
this, you can only talk about that.
They need to know, in terms of motive, interest
or bias, that when he said that he was doing it for
Maryann [], that’s just another one of his outright
lies because he’s there asking for parole at this
point. And when he tells something like that, it is
damaging his opportunity for parole and it’s not
helping hers because they are not even considering her
for parole.
If the door is open, the door is open, that’s
fine.
7
HRE Rule 106 (1993), commonly referred to as the rule of
completeness, provides, “When a writing or recorded statement or part thereof
is introduced by a party, an adverse party may require the party at that time
to introduce any other part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously with it.”
HRE Rule 611(a) (1993) provides:
Control by court. The court shall exercise reasonable
control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless
consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
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The circuit court stated: “To me, the door is open
given what [William] has said. And I’m not criticizing anybody.
The door is open. Once it’s open, it’s going to be completely
open . . . to the entire Cesario Arauza – not about the incident,
certainly the convictions. Because [the jurors] are going to
need to have a context by which to operate.”
Based on its ruling, the circuit court admitted the
California judgments against Maryann and William into evidence.8
Although defense counsel objected to the circuit court’s ruling
regarding the Arauza conviction, it did not object to the
admission of the California judgments. The circuit court then
gave the jury the following limiting instruction:
[Y]ou are about to hear evidence that the
defendant and the witness at another time may have or
have engaged in and committed other crimes, wrongs or
acts. You must not use this evidence to determine
that . . . the defendant is a person of bad character
and must have committed the offense charged in this
case. Such evidence may be considered by you only on
the issue of the defendant’s motive, opportunity,
intent, preparation, plan, knowledge, identity, modis
[sic] operandi, absence of mistake or accident, and
for no other purpose.
So it doesn’t go to propensity or character. It
goes to the specific reasons detailed in our statute
and the rules.
Defense counsel resumed the cross-examination of
William. William testified that he turned himself in to
authorities in California in connection with the Arauza incident,
8
Exhibit 39 was a copy of Maryann’s judgment of conviction for the
murder of Arauza and for the three robberies. Exhibit 40 was a copy of
William’s California conviction for the murder of Arauza, in which William was
sentenced to a term of life imprisonment with the possibility of parole. The
judgment further indicated that William was convicted of two robberies.
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after Maryann was arrested in connection with that incident.9
William testified that he met with Deputy Sheriff Wilbert Ahn on
July 3, 1978, and lied to Deputy Sheriff Ahn about particular
details of the Arauza incident. William also testified that when
he talks to the police “[he] usually [does not] give them proper
— correct knowledge or correct information” in an effort to
improve his legal situation.
William testified that when he turned himself in, there
were no suspects in the Hasker and Leach incidents in Hawai#i.
Maryann went to trial for Arauza’s murder and in January 1979,
was found guilty of the murder, but the court determined that the
use of a firearm allegation was not true, and thus, the
allegation was stricken.
William again contacted Deputy Sheriff Ahn on March 9,
1979, and told him that he wanted “to come clean” about what
happened with Hasker and Leach. In addition, William told Deputy
Sheriff Ahn that he wanted to prove that he did not shoot Arauza.
On May 9, 1979, William pleaded nolo contendere to the
murder of Arauza and to using a firearm in the commission of the
murder. William stated, “I wanted to accept my responsibility
for the crimes that happened.” William thought he pleaded guilty
9
Sergeant Mark Aguirre, whose testimony from Maryann’s initial
trial was read into the record, testified that on June 28, 1978, he and his
partner stopped Maryann, who was driving a 1974 Chevy Blazer, that was
registered to Arauza. Sergeant Aguirre and his partner subsequently went to
Maryann’s motel room and recovered a brown pouch that contained thirty-three
.38 caliber revolver rounds.
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to felony murder, but acknowledged that the transcript of the
proceeding indicated that he pleaded nolo contendere to the
Arauza murder. William was sentenced to life with the
possibility of parole for Arauza’s murder.
In 1991, William appeared before the California Parole
Board and stated under oath that he committed the murders of
Arauza and Hasker and that Maryann did “[a]bsolutely nothing.”
In a 1994 hearing before the Board, William stated that he shot
Arauza in self-defense. William, however, testified at Maryann’s
retrial that he lied to the Board in both instances. William
stated that he lied because UCLA law students informed him that
Maryann could be set free if he told the Board that he shot
Arauza and Hasker. In 1997 and 2000 California Parole Board
hearings, William denied admitting in the prior Board hearings
that he killed Hasker and Arauza.
On redirect examination, William indicated that Arauza
gave him and Maryann a ride, that Maryann “drove off” with Arauza
when they got to a restaurant, and that Maryann came back without
Arauza. He acknowledged that he and Maryann were convicted of
Arauza’s murder, as evidenced by the California judgments. The
following exchange then occurred:
[State]: Now, in those judgments, there were other
robberies that occurred after [] Arauza’s
murder?
[Defense]: Objection, Your Honor. Ask to approach.
THE COURT: In those judgments? Why don’t you
approach briefly.
(The following proceedings had at the bench:)
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THE COURT: We’re talking about other robberies or the
Arauza robbery?
. . . .
[Defense]: Judge, they’re bringing up robberies that
the Court already said that they can’t
bring up. I mean, this is -–
THE COURT: Did you get into ‘em? Did you open the
door?
[State]: Yes, he did.
THE COURT: How?
[State]: He asked [William] what he pled guilty to.
[Defense]: I did not ask him that. I asked him did
he plead nolo contendre to murder of []
Arauza.
THE COURT: Yeah.
[State]: The judgment’s already in, Your Honor.
THE COURT: I understand. This is all new
information, and I don’t want a surprise
here.
[Defense]: Judge, I don’t think the judgments have
the other charges on ‘em.
. . . .
[State]: We can look at the judgment, Your Honor.
THE COURT: Let me look at the judgment.
[Defense]: This is Maryann and this is William.
THE COURT: As far as Maryann Acker’s, does it show
here? Got a bunch of ‘em there.
[Defense]: I move to strike. I wasn’t looking at
that. I was looking at the first page
when she was talking about --
THE COURT: They’re separate robberies?
[State]: Maryann’s charged with three, William’s
charged with two. The two that William is
charged with are the same two that Maryann
has. She also has a third.
THE COURT: Other than confuse the jury or dirty up
both of them, what’s the -- where is this
going to help --
[State]: Your Honor, this goes to the pattern and
practice. This goes to the crime spree
that they were engaged in. Your Honor,
she’s saying that she had no choice, that
she -- you know, that she was forced to do
this, that she had no opportunity to get
away, all those sort of things.
THE COURT: You were unaware of those others?
[Defense]: Yeah. I’m just saying I was unaware.
THE COURT: The objection’s overruled. We’re going to
get into ‘em.
[Defense]: What is he allowed to get into?
THE COURT: Pattern and practice.
[Defense]: So he’s allowed to get into all these
other robberies in California?
THE COURT: Yes.
[Defense]: Your Honor, at this point in time, I don’t
have discovery pertaining to that.
THE COURT: To me, it came in. It was cross-examined
and the jury is entitled to know. So with
that, let’s keep going.
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William testified that he and Maryann committed two
robberies together in California and that she committed one
additional robbery. But, William stated that he did not know, at
that time, that Arauza had been killed. William stated that he
found out that Maryann had been convicted of the Arauza murder
when they were both on a bus together while incarcerated.
William stated that Maryann told him, “Look, you idiot, haven’t
you snapped [] I shot him[.]”10
ii. Deputy Sheriff Ahn’s Testimony
Deputy Sheriff Ahn testified that he was assigned to
investigate the Arauza murder. On March 9, 1979, William
contacted Deputy Sheriff Ahn and talked to him about the Arauza
homicide and criminal activity that occurred in Hawai#i. William
told Deputy Sheriff Ahn that both he and Maryann robbed Leach and
Hasker in Hawai#i. William also indicated that Maryann shot
Hasker. Deputy Sheriff Ahn contacted HPD Detective Jimon You in
Hawai#i to confirm the allegations. Detective You flew to
California to interview Maryann and William, and brought with him
“two expended .38 caliber bullets . . . to compare with the
10
Dr. Eugene Carpenter, whose testimony from Maryann’s initial trial
was read into the record, testified that he performed an autopsy on Arauza on
June 27, 1978, and determined that the cause of Arauza’s death was two gunshot
wounds to Arauza’s head -- one entry wound on the right forehead and one entry
wound on the right cheek. Dr. Carpenter stated that Arauza was “shot at close
range[.]” Two bullets were recovered from Arauza’s head, which Dr. Carpenter
placed in an envelope and turned over to the evidence custodian.
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bullets” found in Arauza.11 Deputy Sheriff Ahn stated that he
had official contact with William between 50 to 75 times, and
acknowledged that William “was in [his] custody[.]”
iii. Defense’s Case
Maryann testified that in May of 1978, her then-
husband, William, “broke into a neighbor’s apartment and stole” a
.38 caliber revolver. Maryann did not question William because
she did not want to agitate him: “He wasn’t always the easiest
guy to talk to. He would get angry very quickly.” In June of
1978, the couple came to Hawai#i. William brought the .38
caliber revolver with him. Maryann stated that William began
talking about a plan to rob tourists:
[William] wanted [her] to be a lure basically and go
into bars, try and meet guys, see who lived here, who
was a tourist, and see if I could get them interested
in me. And then he would come up, introduce himself
either as my brother or brother-in-law, suggest that
we go someplace else, and ask for a ride. And during
that point he would rob the individual.
Maryann did not want to participate, but she eventually
agreed to do so because William started threatening her: “He
would hold the gun to my head or my ribs and tell me I would do
what he said.” Maryann never did anything about the situation
because she was fearful, did not know how to deal with the
situation, and did not have the courage or strength to deal with
11
Sergeant Robert Christansen, whose testimony from Maryann’s
initial trial was also read into the record, identified the four bullets
submitted by Deputy Sheriff Ahn and Detective You as “.38 Special caliber.”
Sergeant Christansen stated, “In my opinion, all four of the expended bullets
were fired in one firearm.”
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William. At one point, William aimed the gun toward Maryann and
fired it, and the bullet “went into the doorjamb right beside
[her] head.”
The couple first executed the plan against Leach.
While Maryann and Leach were talking at a bar, William introduced
himself as Maryann’s brother-in-law and requested a ride home.
Leach subsequently gave William and Maryann a ride in his car.
During the ride, William pulled a gun on Leach. William and
Maryann then robbed Leach and left him at Hanauma Bay. A few
days after the Leach incident, William “wanted to pull another
robbery[.]” Maryann stated, “I didn’t want to do it again. I
kept trying to talk him into letting me go get a job. If he was
insistent on staying here, I’ll go get a job, let’s do this the
right way.”
On June 19, 1978, while at a bar, Maryann met Hasker.
Maryann discovered that Hasker lived in Hawai#i and was not a
tourist. She tried to talk William out of the robbery, but
William, who was carrying the gun, stated: “But he’s talking
about having money and drugs, and I want that.” Maryann and
William then told Hasker that they were going to another bar, and
then left. Maryann and William were at another bar when Hasker
showed up. After a few drinks, William asked Hasker for a ride
back to their apartment. Hasker drove William and Maryann to
their apartment. Maryann tried talking William out of the
robbery. But, William pulled the gun on Hasker, and told him
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that he was being robbed. Maryann then drove the three of them
to Hasker’s apartment, and went inside in search of “money and
the drugs.” Maryann felt that she was being forced to burglarize
Hasker’s apartment because “of William, his threats, my
commitment to him, I guess. Eighteen years old and married to
this guy and doing what my husband told me to do.” Maryann took
money from the apartment, but did not look for any drugs.
William became angry when Maryann returned without
drugs, so he instructed her to return to Hasker’s apartment and
take Hasker’s cocaine. Although Hasker explained to Maryann
where the cocaine was, Maryann was unable to find it. William
and Maryann then decided that they would take Hasker to Hanauma
Bay. When they arrived at Hanauma Bay, William told Maryann to
pull over to the side of the road, and he instructed Hasker to
get out of the car. William, who was holding a gun, and Hasker
exited the car and walked down the embankment “out of [Maryann’s]
line of sight.” Maryann then heard two gunshots. William
returned to the car and got into the driver’s seat. When Maryann
asked William what happened, he responded, “Nah, don’t worry
about it. It’s just something I had to do. You wouldn’t
understand.” Later that day, William made flight reservations
for himself and Maryann to return to Los Angeles.
While in California, William and Maryann were
hitchhiking and were picked up by Arauza. During the ride,
William pulled the gun on Arauza and instructed him to pull over
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to the side of the road. William and Arauza exited the vehicle
and walked down an embankment on the side of the highway “[o]ut
of [Maryann’s] line of vision.” A few minutes later, Maryann
heard two gunshots. William returned to Arauza’s car. When
Maryann asked what happened, William stated that “it was just
something he had to do and [she] wouldn’t understand.” They
drove Arauza’s car to Los Angeles, where Maryann and William
participated in other robberies.
Maryann was subsequently arrested while driving
Arauza’s vehicle and charged with various robberies that she and
William committed, as well as the murder of Arauza. While
imprisoned, Maryann wrote William “love” letters because when he
was arrested, he told her that “he was going to tell the truth,
tell them what happened, and tell them that I didn’t kill
anybody, that he did, that he killed [] Arauza.”
Maryann also stated that, contrary to William’s
testimony, she was never represented by “UCLA” law students. She
was, however, represented by “USC” students in 1995, which was
after William testified to the California Parole Board in 1991
and 1994 that he shot Hasker and Arauza.
On cross-examination, Maryann could not recall whether
William had asked to move in with her two weeks after they met.
The State then provided Maryann with a statement that she made in
a confidential Presentence Diagnosis and Report (Presentence
Report) from her initial trial. Maryann objected to the use of
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the Presentence Report because such confidential reports cannot
be used to impeach the defendant. The circuit court overruled
the objection. After reviewing her Presentence Report, Maryann
was asked whether William asked to move in with her two weeks
after they met, whether she was initially reluctant, and whether
she eventually agreed to William moving in. Maryann responded
affirmatively to the inquiries.
Maryann also testified that she was involved in a total
of three robberies. Maryann testified that the first robbery
occurred in Los Angeles, and that she stood inside the door of a
store as the lookout, while William robbed the store. The State
asked whether Maryann had thought to “dash” into a neighboring
store to tell them, “There’s a man committing a robbery,” to
which Maryann responded, “I didn’t think to do that, no.” The
State continued:
[State:] And then the next one is you by yourself.
[Maryann:] Yes, I did.
[State:] Isn’t that right? You had the gun?
[Maryann:] I had the gun.
[State:] You went inside the store?
[Maryann:] I did. He had tried to get into the
store, and the woman that was working
wouldn’t let him in, and so he sent me in.
And I went in. And again, I see another
opportunity where I should have and wish I
had told the woman lock the door, call the
police. And I did not.
[State:] Instead you put your purse down on the
counter; right?
[Maryann:] Yes.
[State:] You pulled out the gun?
[Maryann:] Yes.
[State:] And you instructed that woman, Just put
all of the money in the purse?
[Maryann:] Yes.
[State:] I won’t hesitate to shoot? You told her
that; right?
[Maryann:] (Witness nodded.)
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[State:] I won’t hesitate to shoot? Those are your
words. Right?
[Maryann:] Probably.
[State:] William’s not in there next to you; right?
[Maryann:] No.
[State:] You have the gun at this point; right?
[Maryann:] Yes. And I was still doing what he told
me to do.
[State:] No. I understand that. But you’re in
there with the gun?
[Maryann:] Yes.
[State:] And he’s outside?
[Maryann:] Yes.
[State:] How far away?
[Maryann:] I’m not sure exactly where he was.
[State:] Could he see you?
[Maryann:] I don’t recall where he was. I don’t
know.
[State:] So there was nothing stopping you then
from just telling the clerk, Look, my
husband’s outside, he wants me to rob you,
call the police?
[Maryann:] And I realized later that that was the
perfect opportunity. At that moment I did
not. I was operating under what he told
me to do. I know now there were so many
times that there were things I could have
done. I made the wrong choices. I admit
that. I robbed that woman. I admit that.
And I admit that I know it was the wrong
choice to do. I knew the difference
between a right and wrong, and I did it
anyway.
Maryann also confirmed that she later committed another
robbery with William.
Outside of the presence of the jury, Maryann stated
that she would be recalling William to testify as to why he met
with Deputy Sheriff Ahn 50 to 75 times, and to further inquire
about William’s testimony that he met with “law students from
UCLA” who told him to take responsibility for the murders of
Arauza and Hasker so that Maryann could be released from prison.
The circuit court agreed to allow her to do so. Pursuant to a
subpoena, William was transferred to the courthouse and held in
the cellblock. Subsequently, Deputy Sheriff Thomas Cayetano was
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called to testify outside the presence of the jury, and stated
that William knew that he was subpoenaed to testify, but informed
Deputy Sheriff Cayetano that he “did not want” to testify because
of concern for his safety. On cross-examination, Deputy Sheriff
Cayetano specified that William was informed that the nature of
his testimony would be in regard to the “cooperation or testimony
he’s given in other cases on the mainland[.]” Deputy Sheriff
Cayetano stated that William expressed concern for his safety in
relation to testifying regarding his informant activities.
Deputy Sheriff Cayetano acknowledged that there was an
“extraction” process, by which the sheriffs could remove a
reluctant witness from his or her cell and bring him or her to
the courtroom. Deputy Sheriff Cayetano testified that it would
take between one to two hours to complete the extraction process,
during which time various command personnel would be notified, a
team of officers would be assembled, equipment would be
distributed, and an “operational plan” would be formulated.
Maryann requested that the circuit court extract William from his
cell.
The circuit court recognized Maryann’s right to
compulsory process, but decided against extracting William
because it concluded that “in the interest of justice” and out of
“fairness to both sides” that would not be helpful.
Specifically, the circuit court noted that extracting William
“wouldn’t work and wouldn’t be helpful for the jury.”
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Although the State argued that the jury should not even
be informed of William’s refusal to testify, the circuit court
allowed Maryann to call Deputy Sheriff Cayetano as a witness,
stating that it did so out of a concern for fairness and in order
to avoid any juror confusion.
Deputy Sheriff Cayetano testified before the jury that
William was transferred to the courthouse to testify as a
witness, but refused to testify.
iv. Jury Instructions
As relevant to this appeal, the State requested that
the following instruction be given on murder (State’s Instruction
No. 1):
A person commits the offense of Murder if she
intentionally or knowingly causes the death of another
person.
There are two material elements of the offense
of Murder, each of which the prosecution must prove
beyond a reasonable doubt.
These two elements are:
1. That on or about the 18th day of June
1978, through and including the 20th day
of June 1978, in the City and County of
Honolulu, the Defendant intentionally or
knowingly engaged in conduct; and
2. That by engaging in that conduct, the
Defendant intentionally or knowingly
caused the death of [] Hasker.
The State also proposed the following instruction on
accomplice liability (State’s Instruction No. 2):
A defendant charged with committing an offense
may be guilty because she is an accomplice of another
person in the commission of the offense. The
prosecution must prove accomplice liability beyond a
reasonable doubt.
A person is an accomplice of another in the
commission of an offense if, with the intent to
promote or facilitate the commission of the offense,
she
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a. Solicits the other person to commit it; or
b. Aids or agrees or attempts to aid the
other person in the planning or commission
of the offense.
Mere presence at the scene of an offense, or
knowledge that an offense is being committed, without
more, does not make a person an accomplice to the
offense. However, if a person plans or participates
in the commission of an offense with the intent to
promote or facilitate the offense, she is an
accomplice to the commission of the offense.
Maryann objected to the murder instruction:
I would only point to Count [VI] of the indictment
itself, which specifically states Maryann [] did
intentionally or knowingly cause the death of []
Hasker by shooting him with a firearm, thereby
committing the offense of murder. And they
specifically charged her with shooting him. And I
believe that that’s like a bill of particulars. It’s
not surplusage. The indictment cannot be modified or
amended and, therefore, they are limited to proving
that. . . . But that’s why I’m objecting to State’s
Instruction No. 1, because it does not include the
language that they need to prove that she shot and
killed [] Hasker.
(Emphasis added).
Maryann appeared to object to the accomplice liability
instruction on the same ground. Over Maryann’s objection, the
circuit court gave the State’s Instruction No. 1, and the
following modification of State’s Instruction No. 2:
A defendant charged with committing the offense
of Murder may be guilty because she is an accomplice
of another person in the commission of that offense.
The prosecution must prove accomplice liability beyond
a reasonable doubt.
A person is an accomplice of another in the
commission of the offense of Murder if, with the
intent to promote or facilitate the commission of that
offense, she
a. solicits the other person to commit it; or
b. aids or agrees or attempts to aid the
other person in the planning or commission
of that offense.
Mere presence at the scene of an offense, or
knowledge that an offense is being committed, without
more, does not make a person an accomplice to that
offense. However, if a person plans or participates
in the commission of that offense with the intent to
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promote or facilitate that offense, she is an
accomplice to the commission of that offense.
(Emphases added).
v. Closing Arguments, Verdict, and Sentence
The State argued that William was a credible witness
and that Maryann had shot Hasker. The State further emphasized
that Maryann had numerous opportunities to report William’s
criminal conduct, but never did. The State also argued that
Maryann lied multiple times during the investigation and that her
testimony was not credible.
Defense counsel attacked William’s credibility by
referring multiple times to his inconsistent statements under
oath regarding Maryann’s involvement in the murders of Hasker and
Arauza. For example, defense counsel argued, “William []
admitted that he committed perjury against Maryann. William
admitted under oath that he shot and killed [] Hasker and []
Arauza. And he did it more than once.” With regard to the
Arauza murder, defense counsel also stated, “William [] was
facing a murder charge. The Court found that Maryann did not
shoot [] Arauza. The only logical legal conclusion was that
William shot and killed Arauza. . . . And the truth is that
Maryann was found not to have shot and killed Arauza.”
In its rebuttal closing, the State again emphasized the
credibility of the witnesses. Relevant to this appeal, the State
asserted:
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[Defense counsel] wants you to believe that at the
time William [] gave his first statement to Detective
Ahn regarding the Hawaii and the California incidents
saying that Maryann was the shooter, he was trying to
save himself. [Defense counsel] says that [William]
knew that she had been convicted. [William] knew that
the use allegation was found untrue, and therefore, he
must be the shooter.
Well, think back to the testimony, ladies and
gentlemen. And you recall, when William [] was shown
Maryann[’s] judgment on the stand, that was the first
time he had ever seen it. He did not know that she
had her use allegation stricken. He only knew she had
been convicted of murder. And recall, the conviction
happened in January. William [] didn’t say anything
to Wilbert Ahn until March, after he had that meeting
with [Maryann] on the bus from court, where she said,
“Have you snapped? I killed Cesario Arauza.”
And at that point, he just gave up, ladies and
gentlemen. He pled nolo contendere, no contest. It’s
not an admission, but the Court did find him guilty of
everything charged. There was no trial, no admission,
but he just gave up. He didn’t ask for anything. He
didn’t get anything. He’s still in custody today.
Maryann then objected:
It’s improper. We weren’t allowed to present the
testimony of William that he made all these deals on
the side and he was trying to get something out of it.
So, I mean, he’s saying that he didn’t get anything
out of it. He didn’t have any other ulterior motive.
That’s not true. We couldn’t present that evidence
because he refused to testify.
The State then responded, “There’s no evidence of
that[.]” The circuit court overruled the objection and denied
Maryann’s subsequent motion for a mistrial.
The jury found Maryann guilty of murder. The jury was
given a special interrogatory: “Did the prosecution prove beyond
a reasonable doubt that [Maryann] actually possessed, used, or
threatened to use a pistol during the commission of the Murder or
Manslaughter?” The jury answered, “No.” The circuit court
subsequently entered its Judgment of Conviction and Sentence,
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convicting Maryann of murder and sentencing her to life in prison
with the possibility of parole. Maryann timely appealed.
2. ICA Appeal
In its Memorandum Opinion, the ICA affirmed Maryann’s
conviction, and concluded that: (1) Maryann opened the door to
the California incidents, and the circuit court did not abuse its
discretion in permitting the challenged evidence; (2) the circuit
court did not abuse it discretion denying Maryann’s motion for
mistrial because of Millard’s testimony regarding the lie
detector test; (3) the State’s use of Maryann’s presentence
report did not result in any significant prejudice to Maryann and
did not affect her substantial rights; (4) the manner in which
the circuit court dealt with William’s refusal to be recalled as
a witness in Maryann’s case did not deprive Maryann of a fair
trial; (5) the deputy prosecuting attorney (DPA) did not engage
in prosecutorial misconduct for his statements during rebuttal
closing; and (6) the circuit court’s jury instructions on murder
and accomplice liability were not erroneous. State v. Acker, No.
30205, 2012 WL 4857018, **1-17 (Haw. App. Oct. 12, 2012) (Mem.
Op.).
II. Standards of Review
A. Right to a Fair Trial
“A fair trial by an impartial jury is guaranteed to the
criminally accused by both the sixth amendment of the United
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States Constitution and article I, § 14 of the Hawai#i
Constitution.” State v. Furutani, 76 Hawai#i 172, 179, 873 P.2d
51, 58 (1994) (citation and brackets omitted). “This court
reviews questions of constitutional law de novo, under the
right/wrong standard and, thus, exercises its own independent
constitutional judgment based on the facts of the case.” State
v. Mattson, 122 Hawai#i 312, 321, 226 P.3d 482, 491 (2010)
(citation, brackets, and internal quotation marks omitted).
B. Evidentiary Rulings
The appellate court applies “two different standards of
review in addressing evidentiary issues. Evidentiary rulings are
reviewed for abuse of discretion, unless application of the rule
admits of only one correct result, in which case review is under
the right/wrong standard.” State v. Ortiz, 91 Hawai#i 181, 189,
981 P.2d 1127, 1135 (1999) (internal quotation marks and
citations omitted).
C. Prior Bad Acts Evidence
“Prior bad act” evidence under [HRE] Rule 404(b) . . .
is admissible when it is 1) relevant and 2) more
probative than prejudicial. A trial court’s
determination that evidence is “relevant” within the
meaning of HRE Rule 401 . . . is reviewed under the
right/wrong standard of review. However, a trial
court’s balancing of the probative value of prior bad
act evidence against the prejudicial effect of such
evidence under HRE Rule 403 . . . is reviewed for
abuse of discretion. An abuse of discretion occurs
when the court clearly exceeds the bounds of reason or
disregards rules or principles of law to the
substantial detriment of a party litigant.
State v. Behrendt, 124 Hawai#i 90, 102, 237 P.3d 1156, 1168
(2010) (brackets and ellipses in original) (citation omitted).
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D. Prosecutorial Misconduct
“Allegations of prosecutorial misconduct are reviewed
under the harmless beyond a reasonable doubt standard, which
requires an examination of the record and a determination of
whether there is a reasonable possibility that the error
complained of might have contributed to the conviction.” State
v. Rogan, 91 Hawai#i 405, 412, 984 P.2d 1231, 1238 (1999)
(internal quotation marks and citations omitted) (quoting State
v. Sawyer, 88 Hawai#i 325, 329 n.6, 966 P.2d 637, 641 n.6
(1998)).
“Prosecutorial misconduct warrants a new trial or the
setting aside of a guilty verdict only where the actions of the
prosecutor have caused prejudice to the defendant’s right to a
fair trial.” State v. McGriff, 76 Hawai#i 148, 158, 871 P.2d
782, 792 (1994). “In order to determine whether the alleged
prosecutorial misconduct reached the level of reversible error,
[the appellate court considers] the nature of the alleged
misconduct, the promptness or lack of a curative instruction, and
the strength or weakness of the evidence against defendant.”
State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992)
(citation omitted).
E. Jury Instructions
When jury instructions or the omission thereof
are at issue on appeal, the standard of review is
whether, when read and considered as a whole, the
instructions given are prejudicially insufficient,
erroneous, inconsistent, or misleading.
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Erroneous instructions are presumptively harmful
and are a ground for reversal unless it affirmatively
appears from the record as a whole that the error was
not prejudicial.
State v. Arceo, 84 Hawai#i 1, 11, 928 P.2d 843, 853 (1996)
(internal quotation marks, brackets, and citations omitted); see
also State v. Nichols, 111 Hawai#i 327, 337, 141 P.3d 974, 984
(2006) (“[O]nce instructional error is demonstrated, we will
vacate, without regard to whether timely objection was made, if
there is a reasonable possibility that the error contributed to
the defendant’s conviction, i.e., that the erroneous jury
instruction was not harmless beyond a reasonable doubt.”).
F. Motion for Mistrial
The denial of a motion for mistrial is within
the sound discretion of the trial court and will not
be upset absent a clear abuse of discretion. The
trial court abuses its discretion when it clearly
exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial
detriment of a party litigant.
State v. Lagat, 97 Hawai#i 492, 495, 40 P.3d 894, 897 (2002)
(internal quotation marks and citations omitted).
III. Discussion
Maryann argues that she was denied a fair trial
because: (1) the circuit court erred in admitting the prior “bad
acts” evidence, i.e., the Arauza incident and California
robberies; (2) the circuit court erred in denying a mistrial when
Millard testified that the police officers administered a
polygraph test on him and that he passed the test, implying that
William also passed a polygraph test; (3) the prosecutor engaged
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in misconduct when he cross-examined Maryann using her
confidential Presentence Report and bolstered William’s
credibility during his rebuttal closing; (4) the circuit court
erred in refusing to extract William; and (5) the jury
instructions on accomplice liability and the offense of murder
were erroneous.
A. Evidence of the Arauza incident and California robberies was
admissible
1. The circuit court erred in determining that Maryann
opened the door to evidence of the Arauza incident
Maryann argues that the door was not opened to the
Arauza incident by defense counsel’s cross-examination of William
regarding whether he lied under oath as it pertained to Maryann.
First, Maryann argues that “[t]he trial court indicated that
Maryann could ‘cross’ William about what he told the Paroling
Authority and his wanting to exculpate Maryann. The trial court
indicated that it would decide the scope beyond that.” Maryann
also appears to argue that in any event, defense counsel had not
questioned William about the facts of his testimony to the
California Parole Board at the time the circuit court determined
he opened the door.
The record shows that defense counsel did not open the
door to the Arauza incident and California robberies. At a pre-
trial hearing on July 24, 2009, the circuit court, which was
aware that William had exculpated Maryann in testimony to the
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California Parole Board, determined that defense counsel could
“cross [William] based upon what he told the Paroling Authority.”
In addition, the circuit court stated: “I’ll decide at the time
the scope beyond that.”
In its Order granting in part and denying in part
Maryann’s Third Motion in Limine, the circuit court ordered that
“should [Maryann] question William [] on his 1991 statement to
the California Parole Board, the State may then introduce
evidence of William[’s] reasons for making that statement,
including [Maryann’s] conviction and sentence for the murder of
[] Arauza in California.” (Emphasis added).
That same day, defense counsel cross-examined William,
and began with the question: “[Did] you ever lie under oath,
commit perjury as it pertains to Maryann?” William responded,
“Yeah,” the State objected and argued that the question had
opened the door to the Arauza incident. The circuit court
overruled the objection and allowed defense counsel to proceed.
Defense counsel asked: “[H]ave you ever lied under oath as it
pertain[ed] to Maryann?” William then asked the circuit court,
“does a board hearing count[,]” to which the circuit court
responded, “If it’s under oath, yes. I don’t know what the board
-- I assume we are talking about a California board hearing; is
that right?” After a bench conference, the circuit court struck
the “last whole series of questions about perjury and the
answers[.]” Defense counsel then questioned William about
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statements he had made regarding prior cocaine use. William
stated that he lied about his cocaine use so that he could go to
a rehabilitation center as opposed to prison. William then
stated that he would lie to get himself out of prison, but he
would not lie under oath.
Defense counsel then requested that he be able to
question William as to whether he ever lied under oath: “He just
said he wouldn’t lie under oath. . . . I’m going to ask him if he
ever did that.” The circuit court then stated, “I will allow
that particular question, but I want you to know you got your
hand on that doorknob.” The following exchange then occurred:
[Defense]: My question then is to you, [William],
have you ever lied under oath as it
pertains to anything about Maryann?
[William]: Probably.
[Defense]: Probably. Does that mean yes?
[William]: Yeah, that means yes.
[Defense]: Okay.
[William]: But not in court.
[Defense]: And so when you lie -- I’m sorry. When
you lied under oath about Maryann, was
there any repercussion to you?
[William]: No.
[Defense]: No.
[William]: No, there wasn’t because there wasn’t a
lie on her. I’m trying to do something
for her.
The circuit court ruled that defense counsel had opened
the door. Defense counsel objected to that ruling, but said he
would proceed based on the circuit court’s ruling.
Under the circuit court’s July 24, 2009 oral ruling,
defense counsel was expressly allowed to cross-examine William on
“what he told the Paroling Authority.” Specifically, pursuant to
the circuit court’s August 18, 2009 Order, defense counsel would
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open the door only if he questioned William about his “statement”
to the California Parole Board. Clearly, up until the point
where the circuit court ruled that defense counsel had opened the
door, defense counsel did not ask William what his “statement”
was to the California Parole Board. Defense counsel merely asked
William if he had ever lied under oath as it pertained to
Maryann, and if there were any repercussions for that lie.
When viewed in context, defense counsel limited his
line of questioning to elicit a response from William as to
whether he lied under oath as it pertained to Maryann and if
there were any repercussions to him. Defense counsel did not ask
about specific facts regarding the Arauza incident, or about the
details of William’s testimony to the California Parole Board.
Therefore, defense counsel’s questioning was consistent with the
circuit court’s oral rulings and written order granting in part
and denying in part Maryann’s Third Motion in Limine.
Accordingly, defense counsel had not yet opened the
door to the Arauza incident. Furthermore, in ruling that defense
counsel opened the door, the circuit court appears to have made
conflicting determinations as to what questions defense counsel
was allowed to pursue on cross-examination without opening the
door.12
12
Moreover, in both its August 18, 2009 Order and its oral ruling,
the circuit court indicated that only the Arauza convictions would be allowed
into evidence. The circuit court, however, disregarded its own limitation on
the evidence and allowed evidence of the facts of the Arauza incident.
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Thus, contrary to the ICA’s position, the door was not
opened to the Arauza convictions and the California evidence when
defense counsel asked whether William lied under oath as it
pertained to Maryann and whether there were any repercussions for
that lie. Accordingly, the circuit court erred in allowing the
testimony of the Arauza incident based on its determination that
defense counsel had opened the door.
2. The circuit court’s error was harmless because the
evidence of the Arauza incident and California
robberies was admissible under HRE Rule 404(b) to show
intent and a common plan, and to rebut Maryann’s
assertion that she was coerced
Although the circuit court erred in determining that
defense counsel opened the door to the Arauza incident and
California robberies, that error was harmless because the
evidence was admissible under HRE Rule 404(b).13 Maryann argues
that the evidence involving the Arauza incident was irrelevant
and inadmissible under HRE Rule 404(b), as it “served to prove
bad character[.]” However, as explained below, the Arauza
incident and California robberies were admissible for other
proper purposes.
HRE Rule 404(b) provides:
13
At Maryann’s initial trial, the circuit court allowed evidence of
the Arauza incident. That determination, which was initially challenged on
appeal, was affirmed by this court. At retrial, the circuit court revisited
this prior determination and, in its December 29, 2008 Findings of Fact,
Conclusions of Law, and Order Granting in Part and Denying in Part State’s
Notice of Intent to Use Evidence, concluded that regardless of the doctrine of
“law of the case” there were cogent reasons to preclude use of this evidence.
As explained infra, this determination was incorrect and we therefore reaffirm
our prior ruling regarding admissibility of this evidence.
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Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in
conformity therewith. It may, however, be admissible
where such evidence is probative of another fact that
is of consequence to the determination of the action,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, modus
operandi, or absence of mistake or accident. In
criminal cases, the proponent of evidence to be
offered under this subsection shall provide reasonable
notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of
the date, location, and general nature of any such
evidence it intends to introduce at trial.
The purpose of HRE Rule 404(b) is to prohibit the
admission of evidence “that a party possesses a criminal
character and acted in conformity therewith.” State v. Yamada,
116 Hawaii 422, 434, 173 P.3d 569, 581 (App. 2007). In addition,
Although such evidence may never be used solely for
the purpose of suggesting criminal propensity, under
certain circumstances it may be offered to prove other
facts of consequence. Such facts include, but are not
limited to, motive, opportunity, intent, preparation,
plan, knowledge, identity, modus operandi, or absence
of mistake or accident.
Id. at 435, 173 P.3d at 582 (citations and quotation marks
omitted).
Furthermore, under HRE Rule 404(b), “any purpose for
which bad-acts evidence is introduced is a proper purpose so long
as the evidence is not offered solely to prove character.” Id.(citation and emphases omitted). In addition, the evidence must
be more probative than prejudicial. Behrendt, 124 Hawai#i at
102, 237 P.3d at 1168. This court has stated:
When weighing probative value versus prejudicial
effect in this context, a court must consider a
variety of factors, including . . . the strength of
the evidence as to the commission of the other crime,
the similarities between the crimes, the interval of
time that has elapsed between the crimes, the need for
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the evidence, the efficacy of alternative proof, and
the degree to which the evidence probably will rouse
the jury to overmastering hostility.
Id. at 106, 237 P.3d at 1172.
Evidence of the Arauza incident was relevant to show
intent and common plan because the Arauza, Hasker and Leach
incidents involved similar scenarios, i.e., Maryann and William
robbed lone men, left them at remote locations, and escaped in
their victims’ vehicles. By so doing, they were able to minimize
their chances of being caught.
The Arauza incident and California robberies were also
relevant to refute Maryann’s theory that William orchestrated and
forced her to participate in the criminal activity, and to show
that Maryann was an intentional and willing participant in
Hasker’s murder and not merely a pawn in William’s conduct. In
Maryann’s opening statement, defense counsel argued that William
was an “infection” that had struck fear into Maryann by shooting
at her to force her to participate in his plan to commit
robberies. Defense counsel argued that William pressured and
forced Maryann to go along with William’s plan. Defense counsel
also asserted that Maryann did not shoot Hasker, did not intend
for Hasker to die, and did not know that William would shoot
Hasker.
The evidence of the California incidents was relevant
to rebut Maryann’s theory of coercion. It showed that she had
the opportunity on the mainland — after Maryann and William
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returned there from Hawai#i — to disassociate herself from
William’s control.14
Moreover, the probative value of the Arauza incident
and California robberies outweighs the prejudicial effect against
Maryann. Several factors weigh in favor of admission of the
evidence. The evidence was strong insomuch as it was undisputed
that the California incidents occurred and that, at the very
least, Maryann was present during each of the incidents. The
time that elapsed between the crimes was relatively brief:
Hasker was murdered “[o]n or about” June 18, 1978 through June
20, 1978, Arauza was murdered on June 24, 1978, and the
California robberies occurred on June 25, 26, and 28, 1978. See
United States v. Basham, 561 F.3d 302, 326-28 (4th Cir. 2009)
(holding that evidence of other acts during a sixteen-day crime
spree was more probative than prejudicial). There was a strong
need for the evidence, since the pattern of conduct helped to
rebut Maryann’s suggestion that she had been coerced into
participating in Hasker’s killing. All of the incidents involved
armed robberies, and there were strong factual similarities
between the Hasker and Arauza incidents. Although the Arauza
incident began somewhat differently than the Hasker incident
(with Maryann and William hitchhiking, rather than Maryann
14
With regard to the California robberies, defense counsel did not
object to the admission of Maryann’s California judgment, which included the
robbery convictions. Defense counsel appeared to suggest subsequently that he
did not realize that the robberies were included on the judgment.
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getting “dolled up” and meeting their victim at a bar), once they
were alone with Arauza the incidents were similar. Lastly, the
evidence of the California incidents was not likely to rouse the
jury to an overmastering sense of hostility against Maryann
because the conduct (murder and robbery) was the same type of
conduct that was committed in Hawai#i.
In sum, the California incidents were more probative
than prejudicial. Thus, evidence of the Arauza incident and the
California robberies was admissible under HRE Rule 404(b).
Additionally, through William’s testimony regarding the
Arauza incident and the California robberies, Maryann was able to
mount a strong attack on William’s credibility. On cross-
examination, defense counsel was able to elicit the following
testimony from William: (1) he acknowledged that he would lie in
order to obtain favorable treatment; (2) he stated that he would
lie under oath and that he lies to police and prosecutors; (3) he
testified that he reported the Hasker murder to divert suspicion
away from him in the Arauza incident and that when he talks to
police it is usually to improve his legal situation; (4) he
stated that he lied to Deputy Sheriff Ahn about details regarding
the Arauza incident; and (5) he stated that there was no
objective way to judge if he was telling the truth, and that he
was a convict and convicts do not tell truth.
Furthermore, Maryann used the evidence of the Arauza
incident and both Maryann’s and William’s convictions for the
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incident to argue during closing argument that William shot
Arauza (and therefore, also shot Hasker), and Maryann did not.
Finally, the jury was given the following limiting
instruction regarding the California convictions:
[Y]ou are about to hear evidence that the defendant
and the witness at another time may have or have
engaged in and committed other crimes, wrongs or acts.
You must not use this evidence to determine that the
defendant or the witness are persons of bad character
and, therefore, must have committed the offense
charged in this case.
Actually, I’m talking only about [Maryann], the
defendant is a person of bad character and must have
committed the offense charged in this case. Such
evidence may be considered by you only on the issue of
the defendant’s motive, opportunity, intent,
preparation, plan, knowledge, identity, modis [sic]
operandi, absence of mistake or accident, and for no
other purpose.
So it doesn’t go to propensity or character. It
goes to the specific reasons detailed in our statute
and the rules.
This limiting instruction dissipated the risk of
prejudice to Maryann because a jury is presumed to follow the
instructions it is given by the court. See State v. Knight, 80
Hawai#i 318, 327, 909 P.2d 1133, 1142 (1996) (“[A]s a rule,
juries are presumed to . . . follow all of the trial court’s
instructions.”).
Thus, although the circuit court erred in its
determination that defense counsel had opened the door to the
Arauza incident and California robberies, the error was harmless
because that evidence was nevertheless admissible under HRE Rule
404(b).
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B. The circuit court did not abuse its discretion in denying
Maryann’s motion for a mistrial because it struck Millard’s
testimony regarding the lie detector test and instructed the
jury to disregard it
Maryann contends that Millard’s testimony that he took
a lie detector test after being questioned by police regarding
the night of Hasker’s murder and passed that test “generated
insurmountable prejudice[.]” Citing State v. Kahinu, 53 Haw.
536, 498 P.2d 635 (1972), Maryann asserts that Millard’s
testimony was an “evidentiary harpoon” because the jury could
infer from Millard’s testimony that the police also administered
a lie detector test to William and that William passed.
Maryann’s argument is without merit.
In Kahinu, the defendant, Robert Edson Kahinu, was
convicted of burglary in the first degree and assault with the
intent to rape. Id. at 537, 498 P.2d at 637. During Kahinu’s
trial, Detective Rivera testified that Kahinu was in police
custody on another case at the time he interviewed the
complaining witness about her photographic identification of
Kahinu. Id. at 548, 498 P.2d at 643. Defense counsel objected
to the testimony, but the circuit court overruled the objection.
Id. The circuit court, however, struck any testimony regarding
other cases from the record. Id. Kahinu was subsequently found
guilty. Id. at 537, 498 P.2d at 637. This court stated, “the
deliberate and unresponsive injection by prosecution witnesses of
irrelevant references to prior arrests, convictions, or
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imprisonment may generate insurmountable prejudice to the cause
of an accused.” Id. at 549, 498 P.2d at 643 (citation omitted).
This court stated that Detective Rivera’s testimony could
constitute an “evidential harpoon” requiring a mistrial. Id.In this case, Millard’s testimony was not an
“evidential harpoon.” Millard testified that he and Hasker
planned to meet on the evening of June 19, 1978, at the Garden
Bar at the Hilton Hawaiian Village. Millard, however, did not
show for the meeting. A few days later, Millard was questioned
by police: “They asked me if I would take a lie detector test,
asked me a lot of questions like where were you and this and all
that. And apparently, you know, I answered all the questions and
everything to their liking.” Maryann objected to Millard’s
testimony, and at her request, the circuit court struck Millard’s
testimony regarding the lie detector test: “the Court has struck
from the record the testimony about the polygraph test as
irrelevant and inadmissible. And the jury will disregard and
also not speculate on any other police activity. It’s just not
going to be part of this case, nor any case.”
First, because the jury is presumed to follow the
court’s instructions, see Knight, 80 Hawai#i at 327, 909 P.2d at
1142, it cannot be said that Maryann was prejudiced. Second, it
is not clear from the record that the jury would have necessarily
inferred that William also took and passed a lie detector test.
Accordingly, the circuit court did not abuse its discretion in
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concluding that striking Millard’s testimony and directing the
jury to disregard it was sufficient to protect Maryann’s right to
a fair trial.
C. The DPA’s use of the Presentence Report to question Maryann
during cross-examination was harmless beyond a reasonable
doubt and the DPA’s comments during his rebuttal closing
argument did not violate Maryann’s right to a fair trial
First, citing State v. Greyson, 70 Haw. 227, 768 P.2d
759 (1989), Maryann argues that the State improperly cross-
examined her using information contained in her Presentence
Report. Maryann raised the same argument before the ICA. The
ICA concluded that the DPA’s use of the Presentence Report was
improper under Greyson, but held that the error was harmless
because it did not result in any substantial prejudice to Maryann
or affect her substantial rights. Acker, 2012 WL 4857018, at
*15.
Although Maryann argues that Greyson was applicable,
she does not challenge the ICA’s determination that the error was
harmless. HRAP Rule 40.1(d)(4) (“The application for a writ of
certiorari . . . shall contain [a] brief argument with supporting
authorities.”). Thus, Maryann’s argument is not discussed
further. See State v. Metcalfe, 129 Hawai#i 206, 221 n.8, 297
P.3d 1062, 1077 n.8 (2013) (noting that an issue not raised in an
application need not be discussed).
Second, Maryann contends that the DPA falsely and
misleadingly “argued that William didn’t ask for anything and
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didn’t get anything as part of its attempt to bolster William’s
credibility.” This argument also is without merit.
During rebuttal closing argument, the DPA stated:
[W]hen William [] was shown Maryann[’s] judgment on
the stand, that was the first time he had ever seen
it. He did not know that she had her use allegation
stricken. He only knew she had been convicted of
murder. And recall, the conviction happened in
January. William [] didn’t say anything to Wilbert
Ahn until March, after he had that meeting with
[Maryann] on the bus from court, where she said, “Have
you snapped? I killed Cesario Arauza.”
And at that point, he just gave up, ladies and
gentlemen. He pled nolo contendere, no contest. It’s
not an admission, but the Court did find him guilty of
everything charged. There was no trial, no admission,
but he just gave up. He didn’t ask for anything. He
didn’t get anything. He’s still in custody today.
The DPA’s comments did not constitute misconduct, but
rather permissible comment on the evidence. See Rogan, 91
Hawai#i at 412, 984 P.2d at 1238 (“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.” (citations omitted)). Here, the
DPA’s statement during rebuttal closing argument referred to
William’s plea to the California charges. William’s California
judgment reflects that he pleaded nolo contendere to the two
robbery charges and the murder of Arauza with the use of a
firearm. William also acknowledged that he pleaded nolo
contendere to Arauza’s murder and the use of a firearm
allegation. The judgment does not indicate that he received any
deal in exchange for his plea. Thus, there was a basis in the
evidence for the DPA’s argument and the DPA’s comments were
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permissible “comment[s] on the evidence[.]” Id.; see also State
v. Clark, 83 Hawai#i 289, 304, 926 P.2d 194, 209 (1996).
Although Maryann argues that there was evidence to show
that William was making “all these deals on the side[,]” that
William received preferential treatment, and that William’s
refusal to testify in her case precluded her from bringing in
that evidence, there is nothing in the record to indicate that
William asked for or was given “anything” for his plea of nolo
contendere on the California charges. Maryann had ample
opportunity to cross-examine William on any agreements he made
regarding the California incidents, but did not. All that is in
the record is William’s plea and his testimony, from which the
DPA could draw reasonable inferences. See Rogan, 91 Hawai#i at
412, 984 P.2d at 1238; Clark, 83 Hawai#i at 304, 926 P.2d at 209.
Moreover, Maryann adduced significant evidence to show
that William received a substantial benefit in his plea agreement
regarding the Hawai#i charges, specifically, that all charges
were dropped against him, except the robbery count, for his
testimony against Maryann. Defense counsel also argued during
closing argument that William continued to lie when he testified
in Maryann’s retrial regarding the Hasker murder in order to
maintain his immunity from the remaining Hawai#i charges that
were dismissed under his plea agreement with the State.
The DPA’s alleged misconduct occurred during rebuttal
closing, where the prosecution is given “wide latitude” to
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discuss the evidence. See State v. Mars, 116 Hawai#i 125, 142,
170 P.3d 861, 878 (App. 2007) (“Prosecutors have latitude to
respond in rebuttal closing to arguments raised by defense
counsel in their closing. The prosecution may base its closing
argument on the evidence presented or reasonable inferences
therefrom, respond to comments by defense counsel which invite or
provoke response, denounce the activities of defendant and
highlight inconsistencies in defendant’s argument.” (internal
citation and quotation marks omitted)); Clark, 83 Hawai#i at 304,
926 P.2d at 209. The DPA’s comments during rebuttal closing were
in direct response to defense counsel’s statements during
Maryann’s closing argument. Specifically, defense counsel argued
in closing that at the time William gave his statement to Deputy
Sheriff Ahn, William was trying to convince Deputy Sheriff Ahn
that he was not the shooter:
William [] was facing a murder charge. The
Court found that Maryann did not shoot [] Arauza. The
only logical legal conclusion was that William shot
and killed Arauza. Feeling desperate, William called
Ahn to try to convince him that William was not the
shooter.
Now, William thought they wouldn’t believe him
because of his criminal history, but he tried, anyway.
Maryann shot Arauza, even though a judge has already
said that was not true. Oh, and to prove to you that
she did it, she also shot a guy in Hawaii.
Now, all of his scheming, all of his statements
did not convince California that he did not shoot and
kill Arauza, because you know what? At that point,
William was right. They didn’t believe him.
California refused to drop the use-of-a-firearm
allegation, so William pled nolo contendere, and the
Court found that he shot and killed Arauza. He
voluntarily did that. Nobody forced him. He said he
understood everything that was going on, and he went
in and he said nolo contendere.
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Defense counsel thus portrayed William’s reporting of
the Arauza murder to Deputy Sheriff Ahn as an effort by William
to deflect blame for the Arauza murder from himself to Maryann.
However, the DPA argued in rebuttal closing that the evidence
showed that William pleaded no contest to the Arauza murder
because he knew that Maryann had been convicted, and because
Maryann had told him on the bus that she shot Arauza. When
viewed in context, the DPA’s comments with regard to the nolo
contendere plea, i.e., that “[William] didn’t ask for anything[,]
. . . [h]e didn’t get anything[,]” appear to have been in
response to defense counsel’s suggestion during Maryann’s closing
argument that William was trying to deflect the blame of the
murder from himself to Maryann, and had a reasonable basis in the
evidence. Again, the prosecution is given “wide latitude” during
rebuttal closing to respond to comments by defense counsel.
See Mars, 116 Hawai#i at 142, 170 P.3d at 878; Clark, 83 Hawai#i
at 304, 926 P.2d at 209.
Accordingly, the DPA did not mislead the jury and did
not engage in prosecutorial misconduct.
D. The circuit court did not abuse its discretion in denying
Maryann’s request to have William extracted from the
courthouse cellblock
Maryann argues that she had a right to compulsory
process and to present a defense, and that she was denied a fair
trial by the circuit court’s denial of her request to have
William extracted from the courthouse cellblock. On the facts of
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this case, we conclude that the circuit court did not abuse its
discretion in denying Maryann’s request to have William extracted
from his cell.
“The due process guarantee of the Federal and Hawaii
constitutions serves to protect the right of an accused in a
criminal case to a fundamentally fair trial.” State v. Matafeo,
71 Haw. 183, 185, 787 P.2d 671, 672 (1990) (citing State v.
Keliiholokai, 58 Haw. 356, 569 P.2d 891 (1977)). As relevant
here, a “fundamental element of due process of law is the right
of compulsory process.” State v. Diaz, 100 Hawai#i 210, 226, 58
P.3d 1257, 1273 (2002). “The right to compulsory process affords
a defendant in all criminal prosecutions, not only the power to
compel attendance of witnesses, but also the right to have those
witnesses heard.” State v. Mitake, 64 Haw. 217, 224, 638 P.2d
324, 329 (1981).
Although “the right to compulsory process is of
paramount importance in assuring a defendant the right to a
meaningful defense and a fair trial,” it “does not guarantee the
right to compel attendance and testimony of all potential witness
absolutely.” Id. In other words, the “right is not without just
limitations.” Id. at 224, 638 P.2d at 330. For example, this
court has stated that “unless the witness denied to defendant
could have produced relevant and material testimony benefiting
the defense, there exists no constitutional violation.” Id. at
224, 638 P.2d at 329; see also Diaz, 100 Hawai#i at 226, 58 P.3d
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at 1273 (noting that the right to compulsory process “is subject
to limitations, the most important of which, is that the
defendant may only obtain witnesses who can give relevant and
beneficial testimony for the defense” (quotation marks omitted));
State v. DeCenso, 5 Haw. App. 127, 133, 681 P.2d 573, 578 (1984).
A trial court is not required to have a witness take
the stand solely to invoke his privilege against self
incrimination in front of the jury. See State v. Sale, 110
Hawai#i 386, 392-94, 133 P.3d 815, 821-23 (App. 2006); HRE Rule
513; see also, United States v. Edmond, 52 F.3d 1080, 1109 (D.C.
Cir. 1995) (“[T]he accused’s right to compulsory process does not
include the right to compel a witness to waive his fifth
amendment privilege[.]” (quotation marks omitted)); United States
v. Bowling, 239 F.3d 973, 976 (8th Cir. 2001) (same). Thus,
“[o]nce a witness appears in court and refuses to testify, a
defendant’s compulsory process rights are exhausted.” United
States v. Griffin, 66 F.3d 68, 70 (5th Cir. 1995). In Griffin,
the defendants argued that their right to compulsory process
guaranteed them the right to place a witness on the stand for the
sole purpose of having that witness invoke an invalid Fifth
Amendment privilege in the jury’s presence. 66 F.3d at 70. The
Fifth Circuit rejected this argument, noting that the “Sixth
Amendment requires that a witness be brought to court, but it
does not require that he take the stand after refusing to
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Although William did not invoke his privilege against
self incrimination in this case, the analysis of the Fifth
Amendment cases is nevertheless pertinent. As the court noted in
Griffin, “[i]t is irrelevant whether the witness’s refusal is
grounded in a valid Fifth Amendment privilege, an invalid
privilege, or something else entirely.” Id.The right to compulsory process must therefore “be
considered in the light of its purpose, namely, to produce
testimony for the defendant.” United States v. Roberts, 503 F.2d
598, 600 (9th Cir. 1974). As the Ninth Circuit has observed,
“[c]alling a witness who will refuse to testify does not fulfill
[this] purpose[.]” Id.; In re Bizzard, 559 F. Supp. 507, 510
(S.D. Ga. 1983).
In Bizzard, for example, a defense witness refused to
testify out of a fear for his life after he had testified during
an earlier trial. Id. at 509. Bizzard argued that his right to
compulsory process was denied because the court did not enforce a
subpoena of the witness. Id. at 510. The court rejected this
argument, explaining that because the witness was excused as a
witness after he had refused to testify, enforcing the subpoena
“would have been an exercise in futility.” Id.
Here, after the circuit court determined that Maryann
would be allowed to recall William, William was transported to
the courthouse, informed that he was there to testify, and knew
that he had been subpoenaed to testify. After William refused to
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testify, Maryann requested that William be extracted from his
cell. As explained by Deputy Sheriff Cayetano, extraction would
have required command personnel to be notified, a team of
officers to be assembled, equipment to be distributed, and an
operational plan to be formulated. The team of officers may have
consisted of SWAT team members in battle dress uniform or other
personnel assigned to the courthouse cellblock. William would
then be removed from his cell and transported to the courtroom.
The circuit court noted that it was not concerned by the time
necessary to have William extracted, but that it was nevertheless
denying Maryann’s request because the court didn’t think “in the
interest of justice and in fairness to both sides that would be
helpful.” The circuit court further explained that there would
not be “any gain” in extracting William, since it “wouldn’t work
and wouldn’t be helpful for the jury.”
At that point, Maryann requested that she be allowed to
call Deputy Sheriff Cayetano as a witness so that he could
testify that William had been subpoenaed to testify but that he
was refusing to do so. The State, however, argued that the jury
should not be informed of William’s refusal to testify.
Specifically, the DPA stated “I don’t want them to know anything,
Your Honor.” The circuit court repeatedly noted that, given
William’s refusal to testify, it wanted to be fair to both sides
and that it didn’t want to confuse the jury. The circuit court
therefore allowed Maryann to call Deputy Sheriff Cayetano as a
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witness. Deputy Sheriff Cayetano then testified that a subpoena
was issued and served on William, William was transported to the
courthouse to testify, William was informed that he was
subpoenaed to testify as a witness, but that William was refusing
to testify.
In these circumstances, Maryann was neither denied her
right to compulsory process nor her right to a fair trial. The
circuit court explicitly recognized Maryann’s right to compulsory
process, but concluded that having a team of law enforcement
officers extract William from the courthouse cellblock and
transport him to the courtroom solely to have him refuse to
testify on the witness stand would not have resulted in “any
gain” and “wouldn’t [have been] helpful for the jury.” We agree.
As noted above, “unless the witness denied to [the] defendant
could have produced relevant and material testimony benefiting
the defense, there exists no constitutional violation.” Mitake,
64 Haw. at 224, 638 P.2d at 329. Here, the record is clear that
William would not have produced “relevant and material testimony
benefiting the defense” because he refused to testify. Moreover,
the circuit court allowed Maryann to call Deputy Sheriff Cayetano
to testify that William was served with a subpoena, he was
transported to the courthouse to testify, but that he was
refusing to do so. Maryann also reminded the jury of William’s
refusal to testify during her closing argument. Specifically,
Maryann argued that:
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Under oath, William told the California parole
board twice, in 1991 and 1994, that he shot and killed
Arauza and Hasker. But, oh, wait a minute. That
didn’t count, because it wasn’t in court, because
court is sacred. Court is like a church.
But, if court is so sacred, then why did he,
when called to return to church this past Friday,
refuse to come to church?
He flipped off the court, which he considers
sacred. He flipped you off by refusing to testify.
Is that who you would place your unquestioned,
beyond-a-reasonable-doubt belief in?
In these circumstances, the purpose of compulsory
process — i.e., to produce testimony for the defendant — would
not have been served by having William physically extracted from
the courthouse cellblock and placed on the witness stand in front
of the jury. See Roberts, 503 F.2d at 600, Bizzard, 559 F. Supp.
at 510. Thus, Maryann was not entitled to have William refuse to
testify in front of the jury. See, e.g., Sale, 110 Hawai#i at
392-94, 133 P.3d at 821-23. The circuit court therefore did not
abuse its discretion in denying Maryann’s request to have William
extracted from his cell.15
Maryann now argues that the circuit court should have
addressed William personally to inform him that he had been
subpoenaed to testify, and that if he refused to testify “he
could be held in contempt of court and imprisoned until he
complied.” However, those arguments are untimely and
15
The dissent contends that the circuit court “refusal to allow re-
examination of William as part of Maryann’s case-in-chief” amounted to a
denial of her right to compulsory process. Dissenting opinion at 16.
Respectfully, the circuit court did not refuse to allow Maryann’s re-
examination of William. Indeed, William was transported to the courthouse for
the express purpose of being recalled by Maryann. Once William was
transported to court and refused to testify, Maryann’s compulsory process
rights were satisfied. See, e.g., Griffin, 66 F.3d at 70.
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unpersuasive. First, at no point during the discussion regarding
how the court should handle William’s refusal to testify did
Maryann request the circuit court to address William personally.
Moreover, there is no suggestion in the record that such an
exchange would have persuaded William to testify. Indeed, upon
learning of William’s refusal, the parties focused exclusively on
whether William should be forced to refuse to testify in front of
the jury. And Deputy Sheriff Cayetano testified under oath that
William was informed of why he was brought to the courthouse and
that he had been subpoenaed to testify. In these circumstances,
the circuit court did not abuse its discretion in not personally
addressing William sua sponte.
Maryann’s assertion that the circuit court should have
informed William that he could be held in contempt of court and
imprisoned is equally unavailing. In many cases, a trial court
may be able to compel an uncooperative witness to testify through
its power to hold a witness in contempt of court. See, e.g.,
LeMay v. Leander, 92 Hawai#i 614, 621, 994 P.2d 546, 553 (2000)
(“[T]he constitutional courts of Hawai#i possess the inherent
power of contempt.”). Here, however, as the circuit court
recognized when it observed that, “There’s not much I can do
‘cause he’s doing life,” William’s life sentence effectively
prevented the court from compelling William’s testimony. See,
e.g., Griffin, 66 F.3d at 70 n.1 (“[Witnesses’s] life sentence
prevented the court from doing anything more to compel him to
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testify.”). In the unique circumstances of this case, therefore,
the circuit court did not abuse its discretion in not personally
informing William that he could be held in contempt of court and
imprisoned if he refused to testify.
Our conclusion that the circuit court did not abuse its
discretion in denying Maryann’s request to have William extracted
is further buttressed by the “broad discretion” bestowed on the
circuit court pursuant to Hawai#i Rules of Evidence Rule 611(a)
in controlling the mode of interrogating witnesses. That rule
provides:
Control by court. The court shall exercise reasonable
control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless
consumption of time, and (3) protect witnesses from
harassment or undue embarrasment.
HRE Rule 611(a).
As the commentary to the rule makes clear, HRE Rule
611(a) “states the common-law principle allowing the court broad
discretion in determining order and mode of interrogation” and is
intended to “define broad objectives and to leave the attainment
of those objectives to the discretion of the court.” HRE Rule
611(a), cmt. (citations omitted) (emphasis added). Trial courts
are therefore afforded broad discretion in determinating whether
to recall a prosecution witness during the defense’s case when
that witness was extensively cross-examined during the
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prosecution’s case-in-chief.16 As explained below, the circuit
court’s denial of Maryann’s request to extract William is
consistent with the court’s broad discretion in controlling the
mode of interrogating witnesses.
First, Maryann’s offers of proof demonstrate that she
sought to recall William solely to impeach his credibility.
Specifically, Maryann sought to elicit testimony from William
that he was a cooperating witness in four murder cases, that he
received preferential treatment as a result of this cooperation,
that he would again seek preferential treatment for his
16
Other jurisdictions have recognized the broad discretion granted
to trial courts in such circumstances. See United States v. Blackwood, 456
F.2d 526, 529 (2d Cir. 1972) (“[T]he trial court is the governor of the trial
with the duty to assure its proper conduct and the limits of cross-examination
necessarily lie within its discretion. And we should not overrule the
exercise of that discretion unless we are convinced that the ruling of the
court was prejudicial.”); United States v. Somers, 496 F.2d 723, 734 (3d Cir.
1974) (“A determination as to whether or not a witness should be recalled for
further cross-examination is a matter for the discretion of the [trial] court,
reviewable only upon a determination of an abuse of that discretion.”); United
States v. Kenny, 462 F.2d 1205, 1226 (3d Cir. 1972) (affirming the refusal of
a trial judge to recall a witness when the purpose of the recall was shown:
(1) not to introduce substantive evidence, but rather was to further impeach
the credibility of an already impeached witness; and (2) the documents upon
which the requested examination would have been based were available at the
time of the original cross-examination); People v. Saddler, 219 A.D.2d 796,
797 (N.Y. App. Div. 1995) (“There is no merit to the contention of defendant
that he was denied his constitutional rights of confrontation and compulsory
process by the trial court’s refusal to permit a prosecution witness to be
recalled, after the prosecution had rested, for further cross-examination.
The determination whether to reopen a case for further testimony is addressed
to the reasonable discretion of the trial court and it cannot be said that,
under the circumstances of this case, the trial court abused that discretion.”
(citing People v. Frieson, 103 A.D.2d 1009 (N.Y. App. Div. 1984))); 28 Charles
Alan Wright and Victor James Gold, Federal Practice & Procedure § 6164, at
374-76 (1993) (“Deciding whether to permit a witness to be recalled often
requires balancing the values identified by Rule 611(a) as pertinent to
determining the order of proof. . . . Because the question is one of balancing
conflicting values, appellate courts afford trial courts broad discretion to
resolve these issues.”); 3A Wigmore on Evidence § 1036, at 1041 (Chadbourn Ed.
1970) (“Where the impeacher is in danger of losing the use of his evidence by
not having asked the preliminary question on cross-examination, the witness
may of course be recalled in order to be asked. But this recall, like all
others is in the discretion of the trial court[.]”).
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cooperation in this case, and that it was not possible for UCLA
law students to have contacted William while he was in protective
custody. However, defense counsel had already elicited
substantial evidence for the jury to consider in evaluating
William’s credibility, and in assessing any of his potential
biases or motives, while cross-examining William extensively over
the course of three days during the State’s case-in-chief.
It is well settled that the right of cross-examination
protected by the Confrontation Clause of the Sixth Amendment is
satisfied where sufficient information is elicited to allow the
jury to gauge adequately a witness’s credibility and to assess
the witness’s motives or possible biases. See State v.
Balisbisana, 83 Hawai#i 109, 114, 924 P.2d 1215, 1220 (1996);
State v. Birano, 109 Hawai#i 314, 324, 126 P.3d 357, 367 (2006);
DeCenso, 5 Haw. App. at 133, 681 P.2d at 578-79. Accordingly,
the trial court does not abuse its discretion in excluding
evidence tending to impeach a witness, as long as the jury has in
its possession sufficient information to appraise the biases and
motivations of the witness. Balisbisana, 83 Hawai#i at 114, 924
P.2d at 1220.
Here, William was extensively cross-examined by defense
counsel, who elicited numerous inconsistences in William’s
testimony that directly affected his credibility as a witness.
There was also sufficient testimony from which the jury could
fairly determine William’s motive for testifying. William
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specifically stated that: he would lie in order to obtain
favorable treatment, he would lie under oath, there was no
objective way to judge if he was telling the truth, he reported
the Hasker murder to divert suspicion away from him as being the
shooter in the Arauza incident, he lied to Detective Ahn, he was
a convict and that convicts do not tell the truth, he lies to
police and prosecutors, and when he talks to police it is usually
to improve his legal situation. Maryann was also able to elicit
testimony that William stated, under oath, to the California
Parole Board that he shot Hasker and Arauza, and that Maryann had
nothing to do with those shootings. In sum, defense counsel was
able to elicit substantial testimony during the State’s case-in-
chief that undermined William’s credibility and established his
potential motives and biases.17
Second, William’s concern for his safety if he were
called to testify regarding his informant activities provided an
additional reason not to put William on the witness stand after
he refused to testify. Specifically, William’s concern was
supported by his declaration in which he stated that he provided
California authorities with “highly sensitive information” and
17
The dissent argues that William’s right to confrontation was
violated because, absent William’s testimony as part of the defense’s case-in-
chief, “the jury would not have ‘had sufficient information for which to make
an informed appraisal of [the complainant’s] motives and bias.’” Dissenting
opinion at 35 (alteration in original) (quoting Balisbisana, 83 Hawai#i at
116, 924 P.2d at 1222. Respectfully, however, for all the reasons set forth
above, it is plain that the jury had substantial information from which to
make an informed appraisal of William’s potential motives and biases.
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that “other inmates in the prison system, and their friends and
family outside of the system, have singled [him] out for
retribution as a result of [his] cooperation with the State of
California.” As a result, his life was in “substantial danger
because [of] threats and attempts.” The record also contains a
letter from California authorities “emphasiz[ing] the importance
of protecting the identity of [] William” insomuch as he had
“provided the Department of Corrections and Rehabilitation with
highly sensitive information.” The circuit court recognized this
concern when it orally granted William’s motion prohibiting
video, photographic or sketch art images of William.
Third, although the circuit court denied Maryann’s
request to have William extracted, it allowed Maryann to call
Deputy Sheriff Cayetano to testify in front of the jury that
William had refused to testify. Deputy Sheriff Cayetano’s
testimony was damaging to the prosecution’s case. Indeed, as
noted above, during closing argument Maryann capitalized on
William’s failure to testify. Specifically, Maryann argued that
William “flipped [the jury] off by refusing to testify,” and
asked whether “that [was] who [the jury] would place [their]
unquestioned, beyond-a-reasonable-doubt belief in.”
Maryann nevertheless argues that Deputy Sheriff
Cayetano’s testimony was not an adequate substitute for the
evidence she sought to elicit through William’s testimony.
However, because William refused to testify, the circuit court
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was not presented with the option of presenting William’s
testimony to the jury.
For these reasons, the circuit court did not abuse its
discretion in denying Maryann’s request to extract William so
that he could refuse to testify in front of the jury, and
Maryann’s rights to compulsory process, to present a defense, and
to a fair trial were not violated.
E. The jury instructions on murder and accomplice liability
were not prejudicially insufficient, erroneous,
inconsistent, or misleading
Maryann argues that the jury instructions regarding
murder and accomplice liability were erroneous. She argues that
because the indictment charged her with “shooting” Hasker, the
State was required to prove the “shooting” as an element of the
offense, i.e., it was required to prove that she was the
principal in the murder and not an accomplice. Thus, Maryann
argues that the circuit court erred in giving the jury an
instruction on accomplice liability. Similarly, Maryann argues
that the murder instruction was erroneous because it failed to
require the jury to find that she shot Hasker. As discussed
further below, the circuit court’s instructions on murder and
accomplice liability were not prejudicially insufficient,
erroneous, inconsistent, or misleading.
The jury was given the following instructions on murder
and accomplice liability:
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A person commits the offense of Murder if she
intentionally or knowingly causes the death of another
person.
There are two material elements of the offense
of Murder, each of which the prosecution must prove
beyond a reasonable doubt.
These two elements are:
1. That on or about the 18th day of June
1978, through and including the 20th day
of June 1978, in the City and County of
Honolulu, State of Hawaii, the Defendant
intentionally or knowingly engaged in
conduct; and
2. That by engaging in that conduct, the
Defendant intentionally or knowingly
caused the death of [] Hasker.
A person charged with committing the offense of
murder may be guilty because she was an accomplice of
another person in the commission of that offense. The
prosecution must prove accomplice liability beyond a
reasonable doubt.
A person is an accomplice of another in the
commission of the offense of murder if, with the
intent to promote or facilitate the commission of that
offense, she, A, solicits the other person to commit
it; or B, aids or agrees or attempts to aid the other
person in the planning or commission of that offense.
Mere presence at the scene of an offense or
knowledge that an offense is being committed, without
more, does not make a person an accomplice to that
offense. However, if a person plans or participates
in the commission of that offense with the intent to
promote or facilitate that offense, she is an
accomplice to the commission of that offense.
First, the instruction on accomplice liability was not
erroneous. It is well settled that “one who is charged as a
principal can be convicted as an accomplice without accomplice
allegations being made in the indictment.” State v. Fukusaku, 85
Hawai#i 462, 486, 946 P.2d 32, 56 (1997) (citation and internal
quotation marks omitted) (emphasis added); State v. Albano, 67
Haw. 398, 405, 688 P.2d 1152, 1157 (1984); State v. Rullman, 78
Hawai#i 488, 490, 896 P.2d 944, 946 (App. 1995).
Maryann acknowledges that she could be subject to
accomplice liability pursuant to this court’s holding in
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Fukusaku, but argues, without further support, that Fukusaku
should be overruled because “it fails to require the State to
prove what it charged.” Based on Fukusaku, however, the jury is
not required to find “shooting” by Maryann in order to convict
Maryann based on accomplice liability. 85 Hawai#i at 486, 946
P.2d at 56. Moreover, Maryann does not provide a compelling
reason or legal basis to overrule Fukusaku. See State v. Garcia,
96 Hawai#i 200, 207, 29 P.3d 919, 926 (2001) (holding that the
prosecution failed to provide a “compelling justification” for
departing from the doctrine of stare decisis) (citing Hilton v.
S.C. Pub. Rys. Comm’n, 502 U.S. 197, 202 (1991)). Thus, the
instruction on accomplice liability was warranted in this case.
Second, the murder instruction was not erroneous for
failing to require the jury to find that she shot Hasker. HRS
§ 707-701, provided, in relevant part: “a person commits the
offense of murder if he intentionally or knowingly causes the
death of another person.” Shooting a person with a firearm is
not required by statute to prove murder, and as such does not
constitute an essential element of the offense of murder.
Moreover, the inclusion of the “shooting” language in
the indictment gave Maryann notice that she was subject to a
mandatory minimum sentence if she was convicted as a principal.
State v. Apao, 59 Haw. 625, 635-36, 586 P.2d 250, 257-58 (1978).
In Apao, the defendant was charged with the murder of an
individual that was a witness in a murder prosecution, thus,
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making the defendant eligible for enhanced sentencing. Id. at
627, 633-34, 586 P.2d at 253, 257. On appeal to this court, the
defendant argued, inter alia, that the indictment was defective
because of the inclusion of language that the defendant knew the
victim was a witness in a murder prosecution, which was not an
element of the murder charge. Id. at 633, 586 P.2d at 257. This
court noted that “the victim’s status as a witness in a murder
prosecution was not an essential element of the crime of
murder[.]” Id. at 634, 586 P.2d at 257. However, this court
determined that by including the allegation that the victim was a
prosecution witness in another murder case, the defendant was
given “fair notice of the charges against [him].” Id. at 636,
586 P.2d at 258.
Similarly, here, the indictment gave Maryann “fair
notice” that she could be facing a mandatory minimum term of
imprisonment if she was convicted as a principal. See Garringer
v. State, 80 Hawai#i 327, 333-34, 909 P.2d 1142, 1148-49 (1996)
(holding that the imposition of a mandatory minimum term of
imprisonment due to a firearm enhancement is limited to those
defendants who “personally possess, threaten to use, or use a
firearm while engaged in the commission of [a] felony”).
Moreover, it appears that Maryann was not found guilty
as a principal for the murder of Hasker. Although found guilty
of murder, the jury determined in a special interrogatory that
the State failed to prove that Maryann “actually possessed, used,
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or threatened to use a pistol” during the commission of Hasker’s
murder. Thus, it appears that Maryann was not convicted as a
principal, but rather as an accomplice. For these reasons, the
murder instruction was not erroneous for failing to include
“shooting” language.
Accordingly, the jury instructions on murder and
accomplice liability were not prejudicially insufficient,
erroneous, inconsistent, or misleading.
F. The circuit court did not commit multiple errors warranting
retrial
Citing State v. Sanchez, 82 Hawai#i 517, 923 P.2d 934(App. 1996), Maryann argues that the cumulative effect of the
circuit court’s multiple instances of error violated her right to
a fair trial. Because Maryann’s arguments regarding the alleged
errors at her retrial are without merit, it cannot be said that
Maryann was denied the right to a fair trial.
IV. Conclusion
For the foregoing reasons, the circuit court’s judgment
is affirmed.
Keith S. Shigetomi /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brandon H. Ito
for respondent /s/ Edwin C. Nacino
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