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Arthur Birano v. State of Hawaii

February 28, 2013

ARTHUR BIRANO,
PETITIONER-APPELLANT,
v.
STATE OF HAWAII, RESPONDENT-APPELLEE



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (S.P.P. NO. 09-1-0040; CR. NO. 01-1-1154)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Nakamura, Chief Judge, Leonard and Reifurth, JJ.)

Petitioner-Appellant Arthur Birano (Birano) appeals from the Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody, filed on April 21, 2010, in the Circuit Court of the First Circuit (Circuit Court).*fn1

On September 9, 2009, Birano filed a second Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Second Petition). The Second Petition stated five grounds for relief:

A. Ground One: The trial court violated my right to be present at every stage of trial under the Hawaii Rules of Penal Procedure, the Hawaii Constitution and the United States Constitution.

State supporting FACTS (do not cite cases or law): At trial, co-defendant and prosecution witness Nicolas Nakano invoked his Fifth Amendment privilege against self-incrimination.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 myself nor my attorney were present.

Following this improper ex parte communication, Nakano then testified at length on behalf of the prosecution. Subsequently, Nakano has indicated that the prosecutor put pressure on him to testify and that his testimony was not truthful (see attached Amended Declaration of Nicolas Nakano).

Ground Two: The trial court violated my right to have counsel present at all critical stage[s] of the proceedings under the Hawai�i Constitution and the United States Constitution.

State supporting FACTS (do not cite cases or law): At trial, co-defendant and prosecution witness Nicolas Nakano invoked his Fifth Amendment privilege against self-incrimination.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 myself nor my attorney were present. Following the improper ex parte communication, Nakano then testified at length on behalf of the prosecution. Subsequently, Nakano has indicated that the prosecutor put pressure on him to testify and that his testimony was not truthful (see attached Amended Declaration of Nicolas Nakano).

Ground Three: The trial court violated my 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): (Refer to supporting FACTS in Ground four)

Ground Four: The trial court violated my right under the Confrontation Clause of the Hawai�i Constitution and the United States Constitution by precluding me from any cross-examination of the ...


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