426 P.3d 387 (Hawaii 2018), SCWC-15-0000841, Birano v. State
|Citation:||426 P.3d 387, 143 Hawaii 163|
|Opinion Judge:||POLLACK, J.|
|Party Name:||Arthur BIRANO, Petitioner/Petitioner-Appellant, v. STATE of Hawaii, Respondent/Respondent-Appellee.|
|Attorney:||Keith S. Shigetomi, Honolulu, for petitioner. Stephen K. Tsushima, Honolulu, for respondent.|
|Judge Panel:||McKENNA, POLLACK, and WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM CIRCUIT JUDGE AYABE, IN PLACE OF RECKTENWALD, C.J., RECUSED, JOINS NAKAYAMA, J., IN WHICH CIRCUIT JUDGE AYABE, JOINS|
|Case Date:||August 31, 2018|
|Court:||Supreme Court of Hawai'i|
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CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000841; S.P.P. NO. 09-1-0040; CR. NO. 01-1-1154)
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
[143 Hawaii 168] In the latest chapter in this long-running case arising from an alleged 2001 robbery, we consider a prosecutors 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 codefendants 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 petitioners 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 prosecutors 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 Circuits order denying petitioners 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.
[143 Hawaii 169] 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 Dumlaos 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
[143 Hawaii 170] Prior to Nakanos sentencing and approximately one month before Biranos trial, on August 13, 2002, Lori Wada, the assigned prosecutor, filed a motion for extended terms of imprisonment in Nakanos 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; Nakanos 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 Takaras case, who would have qualified for an extended term under the same statute.8 See HRS § 706-662 (Supp. 1999). Trial in Biranos case commenced on September 18, 2002.9 A summary of the relevant evidence adduced at trial follows.
1. Dumlaos Testimony
Prior to commencement of Dumlaos testimony, the court granted the States 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 Dumlaos 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 arms 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 neighbors balcony, and slid down to the first floor. After he exited the apartment, Dumlao called the police. Dumlao stated that he could not
[143 Hawaii 171] 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 Biranos 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...
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