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Oral Argument Before the Hawaii Supreme Court–SCWC-15-841

(2nd Amended 07/31/17)

No. SCWC-15-0000841 Tuesday, October 17, 2017, 8:45 a.m.

ARTHUR BIRANO, Petitioner/Petitioner-Appellant, vs. STATE OF HAWAI I, Respondent/Respondent-Appellee.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Keith S. Shigetomi

Attorney for Respondent:

Stephen K. Tsushima, Deputy Prosecuting Attorney

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 06/08/17.

NOTE: Order assigning Circuit Court Judge Bert I. Ayabe, in place of Recktenwald, C.J., recused, filed 06/14/17.

NOTE: Order accepting Application for Writ of Certiorari, filed 06/21/17.

COURT: PAN, Acting C.J., SSM, RWP, and MDW, JJ., and Circuit Court Judge Ayabe, in place of Recktenwald, C.J., recused.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

On May 24, 2001, Petitioner Arthur Birano (Petitioner) and his co-defendants Bryce Takara and Nicolas Nakano were indicted on charges of robbery in the first degree, kidnapping, and burglary in the first degree; in addition, Petitioner was indicted on firearm-related offenses. Prior to trial, Takara and Nakano pleaded no contest to the charges relating to each of them.

During Petitioner’s trial, co-defendant Nakano was called to testify by the State, and he invoked his constitutional right to remain silent. The court took a recess, during which time Nakano’s attorney, the prosecutor, and the judge met in chambers without Petitioner’s counsel. Following the ex parte meeting, Nakano decided to testify. Petitioner’s attorney objected to the ex parte meeting and moved for a mistrial, which the circuit court denied. On the State’s motion, the court also prohibited Petitioner’s counsel from questioning Nakano regarding his invocation of the right to remain silent and his subsequent change of mind regarding testifying. When trial resumed, Nakano testified as a witness for the State. Petitioner was subsequently found guilty of all of the charged offenses. The circuit court sentenced Petitioner, inter alia, to two concurrent extended terms of life imprisonment with the possibility of parole.

At Nakano’s sentencing, which occurred after the conclusion of Petitioner’s trial, the State withdrew its previous motion for extended term sentencing. Nakano was sentenced as a young adult defendant in accordance with the prosecution’s recommendation, which statutory provision provided for an eight-year term of imprisonment on the robbery and kidnapping convictions and four years on the burglary conviction, with the terms to run concurrently.

Petitioner appealed the judgment of conviction in his case asserting, inter alia, that the ex parte chambers conference during his trial violated his constitutional rights to an impartial judge, to be present at every stage of trial, and to confront an adverse witness with impeachment evidence. On January 11, 2006, this court held that although there was an improper ex parte communication among the court, the prosecutor, and Nakano’s attorney, that communication did not unfairly prejudice Petitioner’s right to a fair trial and did not constitute harmful error.

On September 9, 2009, Petitioner asserted in a Hawai i Rules of Penal Procedure (HRPP) Rule 40 petition (petition) that testimony provided by Nakano was a product of an undisclosed plea agreement that violated Petitioner’s fair trial and due process rights. Petitioner’s assertion was supported by Nakano’s 2009 declaration that his testimony at Petitioner’s trial had been untruthful and had been induced by the State’s promise of leniency at sentencing. On appeal of the circuit court’s denial of the petition, the Intermediate Court of Appeals (ICA) held that Petitioner stated a colorable claim for relief and remanded to the circuit court for a hearing on whether Petitioner’s due process rights were violated by the use of Nakano’s testimony. The circuit court again denied the petition, finding that the State’s witnesses were credible while Nakano was not and further finding that there was no off-the- record plea agreement and therefore nothing for the prosecution to disclose to the defense. On appeal, the ICA agreed with the reasoning of the circuit court and affirmed the court’s denial of the petition.

In his application for writ of certiorari, Petitioner asserts that an off-the-record plea agreement did exist between Nakano and the State, and he further argues that the prosecution’s failure to disclose this agreement violated his constitutional rights concerning the disclosure of exculpatory and impeachment evidence. In response, the State contends that Petitioner’s claims have been litigated thoroughly and found to lack merit, and it further submits that the ICA did not err in affirming the denial of Petitioner’s petition.