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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

testify.”    Id.

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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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