State v. Birano

126 P.3d 357, 109 Haw. 314, 2006 Haw. LEXIS 11
CourtHawaii Supreme Court
DecidedJanuary 11, 2006
Docket25699
StatusPublished
Cited by7 cases

This text of 126 P.3d 357 (State v. Birano) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Birano, 126 P.3d 357, 109 Haw. 314, 2006 Haw. LEXIS 11 (haw 2006).

Opinions

Opinion of the Court by

MOON, C.J.

Defendant-appellant Arthur Birano timely petitioned this court for a writ of certiorari to review the Intermediate Court of Appeals’ (ICA) published opinion in State v. Birano, No. 25699, 109 Hawai'i 327, 126 P.3d 370 (Haw.App. Sept. 28, 2005) [hereinafter, opinion]. Therein, the ICA affirmed the February 18, 2003 Judgment of the Circuit Court of the First Circuit, the Honorable Sandra A. Simms presiding, convicting Birano of the following offenses subsequent to a jury trial: (1) Robbery in the First Degree (Count I), in violation of Hawai'i Revised Statutes (HRS) § 708—S40(l)(b)(ii) (1993 and Supp.2004);1 (2) Kidnapping (Count II), in violation of HRS § 707-720(l)(e) (1993);2 (3) Burglary [317]*317in the First Degree (Count III), in violation of HRS § 708-810(l)(c) (1993);3 (4) Possession of a Prohibited Firearm (Counts IV and V), in violation of HRS § 134-8(a) (1993);4 (5) Ownership or Possession of any Firearm or Ammunition by a Person Convicted of Certain Crimes (Counts VI and VII), in violation of HRS § 134-7(b) and (h) (Supp.2004);5 and (6) Carrying, Using, or Threatening to Use a Firearm in the Commission of a Separate Felony (Count VIII), in violation of HRS § 134-6(a) and (e) (Supp.2004).6 The trial court sentenced Birano to: (1) an extended term of life imprisonment with the possibility of parole, with a mandatory minimum sentence of fifteen years for use of a semiautomatic weapon and six years and eight months as a repeat offender for Count I; (2) an extended term of twenty years of imprisonment for use of a semi-automatic weapon and three years and four months as a repeat offender for Count III; (3) an extended term of ten years of imprisonment, with a mandatory minimum of one year and eight months as a repeat offender for Counts IV and VI; (4) an extended term of twenty years of imprisonment, with a mandatory minimum of [318]*318three years and four months as a repeat offender for Counts Y and VII; and (5) an extended term of life imprisonment with the possibility of parole, with a mandatory minimum sentence of six years and eight months as a repeat offender for Count VIII.

In his petition, Birano contends that the ICA gravely erred in affirming his convictions, discussed in more detail, infra. We granted certiorari on November 3, 2005, solely to address whether Birano’s constitutional rights to an impartial judge and to cross-examine his witnesses were violated as a result of an ex parte communication between the trial judge, the prosecutor, and a co-defendanVwitness.7

I. BACKGROUND

We adopt the unchallenged factual background as set forth in the ICA’s opinion. Briefly stated, the charges against Birano arose out of an incident that occurred on May 16, 2001 when he pointed a gun at Frederick Dumlao and demanded money from him and, thereafter, when the police seized Birano’s backpack in the course of his capture later the same day.8 Also, at trial, all of the witnesses testified to substantially similar events but differed as to Birano’s intent.

Prior to trial on September 4, 2002, Birano filed a Motion to Suppress Evidence (motion to suppress), claiming that “the police seized and searched [his] property without a warrant.” The trial court denied the motion to suppress at a hearing on September 10, 2002.

Jury selection began on September 11, 2002, followed by trial. During trial, Birano moved for a mistrial on the ground that one of the jurors: (1) admitted during selection that he was “predisposed” to accepting the testimony of police officers as true; (2) recognized one of the police witnesses during trial; and (3) checked the officers’ teaching records as an instructor in the Criminal Justice Program at Chaminade University, where the juror was the dean of the graduate school. Opinion at 109 Hawai'i at 332-33, 126 P.3d at 375-76. The trial judge denied Birano’s motion, finding that the juror’s ability to be fair and impartial was not affected. Opinion at 332-33, 126 P.3d 375-76.

1. The confrontation

On September 18, 2002, the prosecution called Nakano (co-defendant, see supra note 8) as a witness to testily as to his version of the events that occurred on May 16, 2001. At that time, Nakano

invoked his Fifth Amendment right to remain silent. The prosecutor requested a bench conference and informed the [trial] judge that the prosecutor had met with Nakano “this morning, and it went fine. He was supposed to testify. And I don’t know.” The [trial] judge recessed and had Nakano’s attorney called to come immediately to court. After the [trial] judge held a meeting in chambers with the prosecutor, Nakano, and Nakano’s attorney, Naka-no decided to testify. Birano’s attorney objected to not being allowed to attend the meeting in chambers and asked for a mistrial, claiming that an ex parte communication had occurred with the judge because the prosecutor was allowed to attend the meeting while Birano and his attorney were excluded. The [trial] court denied Birano’s request for a mistrial, finding that the meeting was not an ex parte communication because Nakano was a defendant in the case and was represented by counsel. The [trial] court granted the State’s oral motion in limine to exclude questioning of Nakano by Birano’s counsel about Naka-no’s reasons for pleading the Fifth Amendment and then changing his mind. Bira-no’s counsel objected.

Opinion at 333, 126 P.3d at 376. Nakano related the following events during his subsequent testimony:

[O]n May 16, 2001[,] he met Takara [ (other co-defendant, see supra, note 8) ] at Makiki Village and told Takara he wanted to smoke dope. Birano was also there, and [319]*319Nakano walked over and introduced himself to Birano; Nakano had never met Birano before. It was Takara’s idea to go to Dumlao’s residence to get the dope. Birano, Takara, and Nakano discussed that they were going to “take dope” from Dum-lao.
Birano, Takara, and Nakano got in Bira-no’s Camaro, drove down Kewalo Street to Dumlao’s apartment building, turned into the parking lot, and parked behind Dum-lao’s ear. Dumlao and his girlfriend were getting out of their car with a laundry basket. Nakano testified that Birano got out of the car, walked over to Dumlao, and put a black “machine gun” to Dumlao’s head. Nakano identified State’s Exhibit 18 as the black “machine gun” Birano was holding. State’s Exhibit 18, a S.W.D. [Model] 11 semiautomatic firearm (the SWD 11) was received in evidence. Naka-no testified he “panicked” when he saw Birano point the SWD 11 at Dumlao’s head and Dumlao’s girlfriend ran away when Birano pointed the SWD 11 at Dumlao’s head.

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Related

Slavick v. State
474 P.3d 682 (Hawaii Intermediate Court of Appeals, 2020)
Birano v. State.
426 P.3d 387 (Hawaii Supreme Court, 2018)
State v. Acker.
327 P.3d 931 (Hawaii Supreme Court, 2014)
BIRANO v. State
205 P.3d 648 (Hawaii Intermediate Court of Appeals, 2009)
State v. Mars
170 P.3d 861 (Hawaii Intermediate Court of Appeals, 2007)
State v. Birano
126 P.3d 357 (Hawaii Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
126 P.3d 357, 109 Haw. 314, 2006 Haw. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-birano-haw-2006.