CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 30205; CR. NO. 056042).
Keith S. Shigetomi for petitioner.
Brandon H. Ito for respondent
RECKTENWALD, C.J., NAKAYAMA, J., AND CIRCUIT JUDGE NACINO, ASSIGNED IN PLACE OF POLLACK, J., RECUSED, WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY, WITH WHOM McKENNA, J., JOINS
Maryann and William Acker, a newly married couple, were involved in a series of crimes in California and Hawai'i during June, 1978. On June 10, 1978, Maryann went to a Waikiki bar and began conversing with Joseph Leach. William joined the conversation and introduced himself as Maryann's relative. Leach subsequently gave a ride to William and Maryann. During the drive, William pulled a gun on Leach, demanded his wallet, and ordered that he drive to Hanauma Bay. At Hanauma Bay, Leach was bound and taken to a secluded area off of the road. William and Maryann then left in Leach's vehicle.
On June 18, 1978, Maryann met Lawrence Hasker at a Waikiki bar. William, again posing as a relative of Maryann, joined the conversation and asked for a ride home. Hasker agreed to give William and Maryann a ride. Hasker was subsequently robbed at gunpoint and the three proceeded to Hanauma Bay. While at Hanauma Bay, Hasker was fatally shot. William and Maryann then left Hawai'i for California.
On June 24, 1978, William and Maryann were hitchhiking through California and were picked up by Cesario Arauza. Arauza was fatally shot and his body was later discovered by the side of the road. Maryann and William then engaged in several robberies before Maryann was apprehended. William fled California, but eventually turned himself in.
In July 1978, William and Maryann were charged in California with Arauza's murder. Following a jury waived trial, Maryann was convicted of Arauza's murder, but was acquitted of the allegation of use of a firearm. William, who was cooperating with authorities and had divulged information regarding the Leach and Hasker incidents in Hawai'i, pleaded nolo contendre to the murder of Arauza.
In August 1981, William and Maryann were indicted in Hawai'i for various charges relating to the Leach and Hasker incidents. William pleaded guilty to robbing Hasker and agreed to testify against Maryann. Maryann was subsequently found guilty of the charges regarding the Leach incident and Hasker's murder. Maryann appealed to this court, which affirmed her convictions.
In 1991, William testified under oath at a parole hearing in California that he was solely responsible for Hasker's murder.
Maryann eventually filed a Hawai'i Rules of Penal Procedure (HRPP) Rule 40 petition for post-conviction relief, and was granted a new trial in 2007 in relation to the charge for Hasker's murder. At the retrial, which is the basis for the instant appeal, the State was allowed to introduce evidence of the Leach incident, the Arauza murder, and the California robberies. Maryann was again convicted of Hasker's murder, and the Intermediate Court of Appeals affirmed her conviction.
In her application, Maryann asserts that she was denied a fair trial because: (1) the circuit court erred in ruling that she had opened the door, during the cross-examination of William, to the admission of "bad acts" evidence regarding her involvement with William in the murder of Arauza in California; (2) the circuit court erred in denying a mistrial after Hasker's friend, Timothy Millard, testified regarding a police request that Millard take a lie detector test; (3) the prosecution engaged in misconduct by improperly cross-examining her using information in her presentence report and by making false and misleading statements during rebuttal closing; and (4) the circuit court erroneously refused to enforce a subpoena recalling William to testify in Maryann's case. In addition, Maryann contends that the circuit court's jury instructions on murder and accomplice liability were erroneous, and that the cumulative effect of these errors violated her right to a fair trial.
We hold that the circuit court erred in its determination that defense counsel opened the door to evidence concerning Maryann's convictions in California. Nevertheless, such evidence was admissible under Hawai'i Rules of Evidence (HRE) Rule 404(b), and relevant to rebut Maryann's suggestion that she was acting under duress in the Hasker incident and to establish intent and a common plan. Thus, the circuit court's error regarding the basis for admitting this evidence was harmless beyond a reasonable doubt.
We also conclude that the circuit court did not abuse its discretion in denying Maryann's motion for mistrial because it struck the testimony of Millard regarding the lie detector test and instructed the jury to disregard that testimony. We further conclude that the prosecution did not engage in prosecutorial misconduct, and that the circuit court did not abuse its discretion in denying Maryann's request to extract William during Maryann's case and instead allowing a deputy sheriff to testify regarding William's refusal to testify. Finally, we hold that the challenged jury instructions were not prejudicially insufficient, erroneous, inconsistent, or misleading.
Accordingly, we affirm the ICA's judgment.
The following factual background is taken from the record on appeal, and recounts the various court proceedings related to this case.
A. Arauza Case
On June 28, 1978, Maryann was arrested while driving Arauza's vehicle. William subsequently turned himself in on July 1, 1978. On July 20, 1978, Maryann and William were charged in California with the murder of Arauza. The charge alleged that in the commission of the offense, William and Maryann "personally used a firearm, to wit a 38 caliber revolver[.]" Maryann and William were also charged with committing two unrelated robberies. Maryann was charged with an additional unrelated robbery.
The cases against William and Maryann were severed for trial. William pleaded nolo contendere to the murder of Arauza, which included the use of a firearm allegation. William also pleaded nolo contendere to the two charged robberies. William was sentenced 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; exerting unauthorized control of Hasker's vehicle; and burglarizing Hasker's residence. William was charged with the same offenses as Maryann, except that he was not charged with Hasker's murder. Pursuant to a plea agreement, William pleaded guilty to robbing Hasker in exchange for his testimony against Maryann. All other charges against William were dismissed.
William was called as a prosecution witness at Maryann's first trial in 1982, and testified that Maryann shot Hasker. William testified that he pleaded nolo contendere to Arauza's murder, even though he believed Maryann had shot and killed Arauza, because he thought he was responsible for her actions under California's felony murder rule. William, thus, suggested to the jury that he pleaded guilty to felony murder, when he in fact pleaded nolo contendere to murder and the use of a firearm allegation. The circuit court also allowed other individuals to testify regarding the Arauza incident.
Maryann was subsequently found guilty as charged on all counts. On the murder conviction, Maryann was sentenced to a term of life imprisonment with the possibility of parole, and a mandatory minimum term of ten years.
Maryann appealed her conviction to this court and argued in relevant part that the trial court erred in permitting evidence of her other crimes because:
[T]he Arauza case was not relevant to establish any of the exceptions to [HRE] Rule 404. It did not provide motive since the Arauza case occurred after the present case, and the two cases were not related. It did not prove opportunity since the crimes were committed several days and several thousand miles apart from each other. It did not prove preparation or plan since no common or continuing scheme was established by the State. It did not prove intent, knowledge, or absence of mistake or accident since these were not issues at trial. ... It did not establish identity since [Maryann] testified that she was present at the general scene of the shooting.
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 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
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,  evidence of that incident is prohibited by [HRE] Rule 404(b)[.] Nothing in 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 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 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 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?
THE COURT: And he'd like her to go free?
THE COURT: And you don't want to stop there, you want to also say he also didn't perform this earlier task?
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 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 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.
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 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.
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.
On June 19, 1978, William and Maryann kidnapped and robbed Hasker. Maryann got "dolled up, " went to the Garden Bar, and met Hasker. William approached Maryann and Hasker, and 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 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. 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 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 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?
[Defense]: Probably. Does that mean yes?
[William]: Yeah, that means yes.
[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, 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  completeness or the rule of relevance and under [HRE] Rule 611." 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.
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.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, after Maryann was arrested in connection with that incident.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, 197 9, 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 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:)
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 ...