Birano v. State

• Citation: 426 P.3d 387
• Decision Date: 31 August 2018
• Docket Number: SCWC-15-0000841
• Parties: Arthur BIRANO, Petitioner/Petitioner-Appellant, v. STATE of Hawai‘i, Respondent/Respondent-Appellee.
• Court: Supreme Court of Hawai'i

426 P.3d 387

Arthur BIRANO, Petitioner/Petitioner-Appellant,

v.STATE of Hawai‘i, Respondent/Respondent-Appellee.

SCWC-15-0000841

Supreme Court of Hawai‘i.

AUGUST 31, 2018

Keith S. Shigetomi, Honolulu, for petitioner.

Stephen K. Tsushima, Honolulu, for respondent.

McKENNA, POLLACK, and WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM CIRCUIT JUDGE AYABE, IN PLACE OF RECKTENWALD, C.J., RECUSED, JOINS

OPINION OF THE COURT BY POLLACK, J.

In the latest chapter in this long-running case arising from an alleged 2001 robbery, we consider a prosecutor's disclosure obligations with respect to evidence relevant to the credibility of a government witness. For his involvement in the incident, the petitioner in this case was convicted of a range of crimes based in part on the testimony of a codefendant who elected to testify for the State following an improper ex parte meeting between the judge, prosecutor, and codefendant's counsel. Petitioner now seeks post-conviction relief, alleging that an undisclosed, off-the-record agreement existed between the codefendant and prosecutor under which the codefendant received a favorable recommendation at sentencing in exchange for his testimony.

On review, we hold that the credible testimony during petitioner's post-conviction hearing clearly indicates that an arrangement existed in which the codefendant expected to benefit from his testimony, and that the nondisclosure of this arrangement deprived petitioner of a fair trial with respect to several of his convictions. We also provide guidance as to a prosecutor's constitutional obligations when a government witness provides testimony of a material fact that the prosecutor knows to be false or misleading. We vacate the Circuit Court of the First Circuit's order denying petitioner's petition for post-conviction relief, as well as those convictions and sentences that may have been reasonably affected by the nondisclosure, and we remand the case for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

A. Circuit Court Trial

On May 24, 2001, a grand jury of the Circuit Court of the First Circuit (circuit court) indicted codefendants Arthur Birano, Nicolas Nakano, and Bryce Takara on the following charges: robbery in the first degree in violation of Hawaii Revised Statutes (HRS) § 708-840(1)(b)(ii) (count one);¹ kidnapping in violation of HRS § 707-720(l)(e) (count two);² and burglary in the first degree in violation of HRS § 708-810(1)(c) (count three).³ Birano was also indicted on five counts of firearm-related offenses, including two counts of possession of a prohibited firearm in violation of HRS § 134-8(a)⁴ (counts four and six); two counts of ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes in violation of HRS § 134-7(b) and (h)⁵ (counts five and seven); and one count of carrying, using or threatening to use a firearm in the commission of a separate felony in violation of HRS § 134-6(a) and (e)⁶ (count eight). The charges involved an incident in which, the State alleged, Birano, Nakano, and Takara demanded property from Frederick Dumlao while threatening him with a firearm, walked Dumlao to his apartment and forced him to unlock it, and entered Dumlao's apartment without his consent with the intent to take property from the apartment.

On July 26, 2002, Nakano pleaded no contest to the charges of robbery in the first degree, kidnapping, and burglary in the first degree. The plea form stated that Nakano had not been promised "any kind of deal or favor or leniency by anyone for his plea."⁷

Prior to Nakano's sentencing and approximately one month before Birano's trial, on August 13, 2002, Lori Wada, the assigned prosecutor, filed a motion for extended terms of imprisonment in Nakano's case. The motion sought extended terms of life imprisonment for Nakano as to counts I and II and twenty years of imprisonment as to count III. In support of the motion, Wada declared the following: Nakano was a "multiple offender" within the meaning of HRS § 706-662(4)(a) ; Nakano was out on bail when he committed the charged offenses; Nakano had an extensive criminal history; Nakano's criminality had continued despite his prior contacts with the criminal justice system; Nakano had demonstrated a total disregard for the rights of others and a poor attitude toward the law; the pattern of criminality demonstrated by Nakano indicated that he was likely to be a recidivist; and Nakano posed a serious threat to the public.

A motion for extended term was not filed by the prosecutor in Takara's case, who would have qualified for an extended term under the same statute.⁸ See HRS § 706-662 (Supp. 1999). Trial in Birano's case commenced on September 18, 2002.⁹ A summary of the relevant evidence adduced at trial follows.

1. Dumlao's Testimony

Prior to commencement of Dumlao's testimony, the court granted the State's request to preclude defense counsel from asking Dumlao questions pertaining to the presence of drugs in the apartment in which Dumlao lived, the furnishing of drugs by Dumlao to a third person, and whether Dumlao was in debt for drug-related transactions. The court concluded that these questions would lead Dumlao to assert his Fifth Amendment right against self-incrimination.

Dumlao testified that on May 16, 2001, at approximately 6:20 a.m., he, his then-girlfriend Cari-Ann Casil, and his friend Brian Enos were unloading laundry baskets from Dumlao's vehicle in the parking lot of his apartment when a red Camaro drove up behind the vehicle. Dumlao stated that he saw three males, including Birano, exit the red Camaro. One of the two males with Birano was wearing a ski mask, Dumlao testified.¹⁰ Dumlao said that Birano approached him, pointed a gun in his direction, and directed him to open his safe--at which time Casil and Enos ran off. Birano was about an arm's length from him, according to Dumlao, when Birano pointed the gun at him. Dumlao stated that he told Birano he did not have a safe but nonetheless led the three men up to his apartment.

Dumlao explained that from the parking lot to the front door of the apartment, he did not feel free to leave because he felt frightened by the fact that Birano was holding a gun. While walking up the stairs to the apartment, Dumlao testified, he did not know where the gun was because Birano was behind him. When they reached the front door of the apartment, Dumlao stated, his neighbors Rei Kobayashi and Ruben Cruz came out of their apartment and asked if he was all right. Dumlao responded that he was fine.¹¹

Dumlao testified that he opened the door of the apartment because Birano told him to do so and he was afraid because Birano had a gun. Birano directed him to enter the apartment, Dumlao stated, but Dumlao refused. Dumlao related that he eventually complied because Birano said that he would shoot him if he did not enter the apartment.

Upon entering the apartment, Dumlao ran to his balcony, climbed over to his neighbor's balcony, and slid down to the first floor. After he exited the apartment, Dumlao called the police. Dumlao stated that he could not recall whether anything was taken from the apartment.

Dumlao initially testified that he did not know Birano, Nakano, or Takara prior to May 16, 2001. However, Dumlao acknowledged on cross-examination that he had been introduced to Birano by his friend, Joseph Poomaihealani, prior to May 16, 2001. Dumlao nonetheless maintained that he did not recognize Birano at the time of the incident. In addition, Dumlao denied that there had been a drug transaction between Birano and himself prior to the incident in question in which Birano had given him $2,500 for drugs that he never delivered.

Dumlao testified that a videotape, obtained from a video camera installed in his apartment, accurately depicted the events that occurred on the day in question and that it did not show a gun in Birano's hand until the point at which he entered the apartment. Dumlao acknowledged that the videotape showed him walking fairly casually; he also agreed that no one touched him as he walked from the parking lot to the front door of the apartment.

In response to questions regarding why he, Casil, and Enos were doing laundry early in the morning on May 16, 2001, Dumlao explained that he was not employed at the time and was accustomed to sleeping during the day and staying up through the night. As to Casil, Dumlao testified that she frequently worked nights, but she had not worked the evening before the incident. Dumlao also stated that he did not know whether Casil had used drugs on the morning in question, although he was aware that she was a methamphetamine user.

2. Nakano's Testimony

While being sworn in as a witness, Nakano invoked his Fifth Amendment right to remain silent. The deputy prosecutor, Lori Wada, expressed surprise, asked to approach the bench, and informed the court that she "had met with Mr. Nakano this morning, and it went fine. He was suppose to testify."¹² The court responded that a short recess would be taken and instructed Wada to "call [Nakano's counsel's] office. I want him here immediately. Absolutely." Wada informed the court that she could call Nakano's counsel, Myles Breiner, on his cellular phone. After Breiner appeared, Judge Simms met with Wada and Breiner in her chambers without Birano's counsel present. The meeting in chambers was not recorded.

Following the conclusion of the in-chambers off-the-record meeting with the prosecutor and Nakano's counsel, the court reconvened without the jury. Judge Simms stated that she had met in chambers with Wada and Breiner regarding Nakano invoking the Fifth Amendment and that Birano's counsel, Nelson Goo, had objected to not being present during the in-chambers meeting. Goo again asserted his objections, strenuously taking exception to what had occurred. Goo requested a mistrial--he stated that "not only was [he] precluded from being there, [he] did want to be there." Goo also stated that he did...