Birano v. State, No. 29050 (Haw. App. 4/24/2009)

Decision Date24 April 2009
Docket NumberNo. 29050,29050
PartiesARTHUR BIRANO, Petitioner-Appellant, v. STATE OF HAWAI'I, Respondent-Appellee.
CourtCourt of Appeals of Hawai'i

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (S.P.P. NO. 07-1-0012; CRIMINAL NO. 01-1154)

On the briefs:

Cynthia A. Kagiwada, for Petitioner-Appellant

Loren J. Thomas, Deputy Prosecuting Attorney, City and County of Honolulu, for Respondent-Appellee.

SUMMARY DISPOSITION ORDER

RECKTENWALD, C.J., Watanabe and Leonard, JJ.

Petitioner-Appellant Arthur Birano (Birano) appeals the Order Denying Petition for Post-Conviction Relief (Order), filed on September 26, 2007, in the Circuit Court of the First Circuit (Circuit Court)1

On April 3, 2007, Birano filed a Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner From Custody (Petition). Birano alleged eight grounds for relief as follows:

Ground One: The trial court violated Mr. Birano's right to be present at every stage of trial under the Hawai'i Rules of Penal Procedure and the Hawai'i Constitution.

State supporting FACTS (do not cite cases or law): At trial, codefendant and prosecution witness Nicolas Nakano invoked his Fifth Amendment privilege against self-incrimination. The trial court then conducted an improper ex parte in-chambers meeting with the prosecutor, Nicolas Nakano, and Nakano's attorney. Neither Mr. Birano nor his attorney were present. Following this improper ex parte communication, Nakano then testified at length on behalf of the prosecution.

Subsequently, Nakano has indicated that his trial testimony was not truthful.

Ground Two: The trial court violated Mr. Birano's right to be present at every critical stage of trial under the United States Constitution.

State supporting FACTS (do not cite cases or law): At trial, codefendant and prosecution witness Nicolas Nakano invoked his Fifth Amendment privilege against self-incrimination. The trial court then conducted an improper ex parte in-chambers meeting with the prosecutor, Nicolas Nakano, and Nakano's attorney. Neither Mr. Birano nor his attorney were present. Following this improper ex parte communication, Nakano then testified at length on behalf of the prosecution. Subsequently, Nakano has indicated that his trial testimony was not truthful.

Ground Three: The trial court violated Mr. Birano's right to have counsel present at all critical stages of the proceedings under the Hawai'i Constitution.

State supporting FACTS (do not cite cases or law): At trial, codefendant and prosecution witness Nicolas Nakano invoked his Fifth Amendment privilege against self-incrimination. The trial court then conducted an improper ex parte in-chambers meeting with the prosecutor, Nicolas Nakano, and Nakano's attorney. Neither Mr. Birano nor his attorney were present. Following this improper ex parte communication, Nakano then testified at length on behalf of the prosecution. Subsequently, Nakano has indicated that his trial testimony was not truthful.

Ground Four: The trial court violated Mr. Birano's right to have counsel present at all critical stages of the proceedings under the United States Constitution.

State supporting FACTS (do not cite cases or law): At trial, codefendant and prosecution witness Nicolas Nakano invoked his Fifth Amendment privilege against self-incrimination. The trial court then conducted an improper ex parte in-chambers meeting with the prosecutor, Nicolas Nakano, and Nakano's attorney. Neither Mr. Birano nor his attorney were present. Following this improper ex parte communication, Nakano then testified at length on behalf of the prosecution. Subsequently, Nakano has indicated that his trial testimony was not truthful.

Ground Five: The trial court violated Mr. Birano's right to due process under the United States Constitution by precluding the disclosure of exculpatory and impeachment evidence of one of the prosecution's key witnesses.

State supporting FACTS (do not cite cases or law): At trial, codefendant and prosecution witness Nicolas Nakano invoked his Fifth Amendment privilege against self-incrimination. The trial court then conducted an improper ex parte in-chambers meeting with the prosecutor, Nicolas Nakano, and Nakano's attorney. Neither Mr. Birano nor his attorney were present. Following this improper ex parte communication, Nakano then testified at length on behalf of the prosecution. At trial, Mr. Birano was precluded from asking any questions concerning the improper ex parte meeting. Subsequently, Nakano has indicated that his trial testimony was not truthful.

Ground Six: The trial court violated Mr. Birano's right under the Confrontation Clause of the Hawai'i Constitution by precluding Mr. Birano from any cross-examination of the prosecution's key witness on the improper ex parte communication.

State supporting FACTS (do not cite cases or law): At trial, codefendant and prosecution witness Nicolas Nakano invoked his Fifth Amendment privilege against self-incrimination. The trial court then conducted an improper ex parte in-chambers meeting with the prosecutor, Nicolas Nakano, and Nakano's attorney. Neither Mr. Birano nor his attorney were present. Following this improper ex parte communication, Nakano then testified at length on behalf of the prosecution. At trial, Mr. Birano was precluded from asking any questions concerning the improper ex parte meeting. Subsequently, Nakano has indicated that his trial testimony was not truthful.

Ground Seven: The trial court violated Mr. Birano's right under the Confrontation Clause of the United States Constitution by precluding Mr. Birano from any cross-examination of the prosecution's key witness on the improper ex parte communication.

State supporting FACTS (do not cite cases or law): At trial, codefendant and prosecution witness Nicolas Nakano invoked his Fifth Amendment privilege against self-incrimination. The trial court then conducted an improper ex parte in-chambers meeting with the prosecutor, Nicolas Nakano, and Nakano's attorney. Neither Mr. Birano nor his attorney were present. Following this improper ex parte communication, Nakano then testified at length on behalf of the prosecution. At trial, Mr. Birano was precluded from asking any questions concerning the improper ex parte meeting. Subsequently, Nakano has indicated that his trial testimony was not truthful.

Ground Eight: The trial court violated the Sixth and Fourteenth Amendments of the United States Constitution by imposing extended terms of imprisonment on Mr. Birano as both a multiple offender and a persistent offender because the facts underlying these terms were never submitted to a jury.

State supporting FACTS (do not cite cases or law): Following the jury verdict, the prosecution filed motions seeking extended terms of imprisonment based on Mr. Birano being a multiple offender and a persistent (or repeat) offender. The prosecution sought to increase Mr. Birano's terms of imprisonment beyond the prescribed statutory maximum terms determined by the jury. The trial court granted the prosecution's motion...

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