Birano v. State. , 426 P.3d 387 ( 2018 )

***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
31-AUG-2018
09:11 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
ARTHUR BIRANO,
Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAII,
Respondent/Respondent-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; S.P.P. NO. 09-1-0040; CR. NO. 01-1-1154)
AUGUST 31, 2018
McKENNA, POLLACK, and WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM CIRCUIT JUDGE AYABE, IN PLACE OF
RECKTENWALD, C.J., RECUSED, JOINS
OPINION OF THE COURT BY POLLACK, J.
In the latest chapter in this long-running case
arising from an alleged 2001 robbery, we consider a prosecutor’s
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
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
elected to testify for the State following an improper ex parte
meeting between the judge, prosecutor, and codefendant’s
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
petitioner’s post-conviction hearing clearly indicates that an
arrangement existed in which the codefendant expected to benefit
from his testiony, 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
prosecutor’s 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 Circuit’s order denying petitioner’s
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.
2
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
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
1
HRS § 708-840(1)(b)(ii) (1993 & Supp. 2000) provides as follows:
A person commits the offense of robbery in the first degree
if, in the course of committing theft:
. . .
(b) The person is armed with a dangerous instrument
and:
. . .
(ii) The person threatens the imminent use of
force against the person of anyone who is present with
intent to compel acquiescence to the taking of or escaping
with the property.
2
“A person commits the offense of kidnapping if the person
intentionally or knowingly restrains another person with intent to: . . .
[t]errorize that person or a third person[.]” HRS § 707-720(l)(e) (1993).
3
HRS § 708-810(1)(c) (1993) provides as follows:
A person commits the offense of burglary in the first
degree if the person intentionally enters or remains
unlawfully in a building, with intent to commit therein a
crime against a person or against property rights, and:
. . .
(continued . . .)
3
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
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
(. . . continued)
(c) The person recklessly disregards a risk that the
building is the dwelling of another, and the building is
such a dwelling.
4
HRS § 134-8(a) (1993) provides in relevant part as follows:
(a) The manufacture, possession, sale, barter, trade, gift,
transfer, or acquisition of any of the following is
prohibited: assault pistols, except as provided by section
134-4(e); automatic firearms; rifles with barrel lengths
less than sixteen inches; shotguns with barrel lengths less
than eighteen inches; . . . and any type of ammunition or
any projectile component thereof designed or intended to
explode or segment upon impact with its target.
5
HRS § 134-7 (Supp. 2000) provides in relevant part as follows:
(b) No person who is under indictment for, or has waived
indictment for, or has been bound over to the circuit court
for, or has been convicted in this State or elsewhere of
having committed a felony, or any crime of violence, or an
illegal sale of any drug shall own, possess, or control any
firearm or ammunition therefor.
. . .
(h) Any person violating subsection (a) or (b) shall be
guilty of a class C felony; provided that any felon
violating subsection (b) shall be guilty of a class B
felony. . . .
4
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
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 Dumlao’s 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
Prior to Nakano’s sentencing and approximately one
month before Birano’s trial, on August 13, 2002, Lori Wada, the
assigned prosecutor, filed a motion for extended terms of
6
HRS § 134-6 (Supp. 2000), which has since been recodified,
provided in relevant part as follows:
(a) It shall be unlawful for a person to knowingly carry on
the person or have within the person’s immediate control or
intentionally use or threaten to use a firearm while
engaged in the commission of a separate felony, whether the
firearm was loaded or not, and whether operable or not . .
. .
. . .
(e) Any person violating subsection (a) . . . shall be
guilty of a class A felony. . . .
7
Takara also pleaded no contest to the charges of robbery in the
first degree, kidnapping, and burglary in the first degree; on his plea form,
Takara similarly indicated that there had been no promise of “any kind of
deal or favor or leniency by anyone for [his] plea.”
5
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
imprisonment in Nakano’s 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; Nakano’s 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 Takara’s case, who would have qualified for an
extended term under the same statute.8 See HRS § 706-662 (Supp.
1999). Trial in Birano’s case commenced on September 18, 2002.9
A summary of the relevant evidence adduced at trial follows.
8
Takara was not called by the State as a witness in Birano’s
trial.
9
The Honorable Sandra A. Simms presided over the trial and
sentencing.
6
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
1. Dumlao’s Testimony
Prior to commencement of Dumlao’s testimony, the court
granted the State’s 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
Dumlao’s 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 arm’s length from
him, according to Dumlao, when Birano pointed the gun at him.
10
Although Dumlao did not identify which of the men wore the mask,
Nakano would later testify that he wore a ski mask during the initial parking
lot confrontation.
7
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
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 neighbor’s balcony, and slid down
to the first floor. After he exited the apartment, Dumlao
11
Kobayashi testified that she saw the group of men when she opened
her apartment door, but she did not see a gun drawn on Dumlao from where she
was standing--fifteen feet away. Cruz similarly testified that he did not
see a gun.
8
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
called the police. Dumlao stated that he could not 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 Birano’s 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 day and staying up through the
night. As to Casil, Dumlao testified that she frequently worked
9
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
nights, but she had not worked the evening before the incident.
Dumlao also stated that he did not know whether Casil had used
drugs on the morning in question, although he was aware that she
was a methamphetamine user.
2. Nakano’s Testimony
While being sworn in as a witness, Nakano invoked his
Fifth Amendment right to remain silent. The deputy prosecutor,
Lori Wada, expressed surprise, asked to approach the bench, and
informed the court that she “had met with Mr. Nakano this
morning, and it went fine. He was suppose to testify.”12 The
court responded that a short recess would be taken and
instructed Wada to “call [Nakano’s counsel’s] office. I want
him here immediately. Absolutely.” Wada informed the court
that she could call Nakano’s counsel, Myles Breiner, on his
cellular phone. After Breiner appeared, Judge Simms met with
Wada and Breiner in her chambers without Birano’s counsel
present. The meeting in chambers was not recorded.
Following the conclusion of the in-chambers off-the-
record meeting with the prosecutor and Nakano’s counsel, the
court reconvened without the jury. Judge Simms stated that she
had met in chambers with Wada and Breiner regarding Nakano
12
It was subsequently disclosed that Nakano and his counsel, Myles
Breiner, had met with Wada at the prosecutor’s office nine days prior to
Birano’s trial.
10
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
invoking the Fifth Amendment and that Birano’s counsel, Nelson
Goo, had objected to not being present during the in-chambers
meeting. Goo again asserted his objections, strenuously taking
exception to what had occurred. Goo requested a mistrial--he
stated that “not only was [he] precluded from being there, [he]
did want to be there.” Goo also stated that he did not know
“what kind of exparte communication Ms. Wada had in that
conference.”
Judge Simms denied that the meeting constituted an ex
parte communication, explaining, “This is not an exparte
communication in that the Prosecutor was present. Mr. Nakano is
a defendant in this case, and he’s represented by counsel.” Goo
disputed this explanation, emphasizing that he was the defense
counsel in Birano’s trial. Goo reiterated that he did not know
what kind of ex parte communication took place without him being
present in the meeting. And even if there was no communication
by Wada, Goo pointed out, “she’s privy to information about a
witness that she’s calling that I have an absolute right to
cross examine, and especially in the area of whether or not he
has any self interest in this case.” Goo further stated that he
did not know “if there was any kind of deal struck” and that he
did not know what changed Nakano’s mind.
Judge Simms told Goo that when she met with Wada and
Breiner, she was not informed whether Nakano was going to
11
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
testify. Judge Simms added that if there was “any question
about any deals,” that was not part of the off-the-record
discussion.
Goo further explained the basis for the motion for
mistrial:
this witness, Mr. Nakano, has pleaded no contest as charged
to, I believe, not only in this case but in another case
that he’s also been charged with without any kind of deal
from the Prosecution and still faces sentencing from this
Court. With that set of factors, how can the Defense here
for Mr. Birano not feel that something is amiss?
We have a witness who gets up on the stand. And,
Your Honor, my opinion is that he wasn’t scared. He seemed
nervous being in front of all these jury people.[13] He was
brought -- shuttled over by the Prosecutor’s investigator
through the back doors and in chains. And then over the
lunch break, there’s a secret meeting where no
representative for Mr. Birano is present. And next thing
you know, he’s apparently going to testify now.
When Judge Simms indicated that she still did not know whether
Nakano would testify and sought to confirm that Nakano was no
longer invoking his Fifth Amendment privilege, Goo informed her
that this was his understanding based on his conversation with
Wada and Breiner.
Judge Simms asked Wada whether she had a response to
the motion for mistrial. Wada replied that she thought the
court “made it amply clear that it was not exparte. And given
the nature and sensitivity regarding . . . Mr. Goo’s client, it
13
Judge Simms had stated that Breiner indicated during the
conference meeting that Nakano was very afraid.
12
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
was clearly appropriate.” Wada argued against the mistrial and
requested that the trial proceed. In response, Goo again
disputed that the meeting was appropriate, arguing that it
violated the Hawaii Rules of Professional Conduct because “the
defense was precluded from the in-chambers meeting while Wada
was present in that meeting.”
Judge Simms found that “the record speaks for itself”
and denied Birano’s motion for a mistrial. Wada then orally
moved to preclude Goo from making “any reference . . . if Mr.
Nakano should take the stand, regarding his -- invoking his
Fifth Amendment earlier.” Judge Simms granted Wada’s request,
stating, “I think it’s improper to question him regarding that.”
Goo then responded that he would “place a record objection” to
the court’s ruling. Goo also requested “a 104[14] hearing outside
the presence of the jury with Mr. Nakano on the stand,” adding,
“I want to know what happened over the lunch hour.” Judge Simms
denied the request, saying that she did not think it was
appropriate under the circumstances and that the trial would
14
Hawaii Rules of Evidence Rule 104 (1984) governs “[p]reliminary
questions concerning the qualification of a person to be a witness, the
existence of a privilege, or the admissibility of evidence.”
13
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
proceed. Breiner then confirmed that Nakano was going to
testify.15
Nakano returned to the witness stand and did not
invoke his right to remain silent. Nakano testified that he did
not have a plea agreement with the State and was testifying to
“tell the truth.” Nakano indicated that he had pleaded no
contest to robbery in the first degree, kidnapping, and
burglary, but testified that his plea was not motivated by a
desire to lighten his sentence. Nakano then denied that he
“wanted to do well” in testifying in front of the judge and
prosecution. When pressed, he maintained that his decision to
testify was not in any way motivated by a desire for leniency:
Q. You’re hoping that by testifying favorably for the State
against my client to make him look bad that perhaps the
judge will be lenient with you at sentencing; right?
A. No.
Nakano admitted that he had initially asked the court for
youthful offender sentencing--where he could be sentenced to an
eight-year term of imprisonment instead of twenty years to life-
-and then stated, “[b]ut now I’m pleading No Contest.” He
finally acknowledged that he was hoping for youthful offender
15
Immediately before Breiner’s announcement, the court granted the
State’s request to instruct the media not to show Nakano’s face on the news,
presumably when he testified.
14
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
sentencing but did not indicate his testimony was related to
this hope.
As to the incident that took place on May 16, 2001,
Nakano testified that he, Takara, and Birano decided to go to
Dumlao’s house to “[g]et dope.” Nakano first testified that the
three did not discuss whether they would “buy dope or rip off
dope.” However, Nakano later stated that, because they had no
money, he, Birano, and Takara planned to “take dope” and that
the three of them had discussed this plan. They drove to the
parking lot of Dumlao’s apartment, Nakano testified, where
Birano exited the vehicle, approached Dumlao, and pointed a gun
at Dumlao’s head. At the time, Nakano was wearing a face mask.
Nakano testified that Dumlao looked panicked. Birano’s
girlfriend, who was present, ran off screaming. Birano told
Dumlao to open the safe, Nakano recounted, after which Birano
walked Dumlao up to the apartment, with Nakano and Takara
following behind.
Nakano testified that while the four men were walking
up the stairs to Dumlao’s apartment, Birano’s gun was “[i]n his
hands,” and Dumlao was not free to leave. When they reached
Dumlao’s apartment, Nakano stated, Birano told Dumlao to open
the door and Dumlao did not respond. Nakano testified that
Dumlao’s neighbor came out of her apartment and asked if
everything was all right, and Nakano responded in the
15
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
affirmative. According to Nakano, Dumlao, who still looked
panicked, tried to walk away, but Birano “made him come back”
using the gun. Nakano testified that Birano told Dumlao that he
would be shot if he did not open the door to the apartment and
that Birano was pointing the gun at Dumlao. Dumlao then
unlocked the door and pushed it slightly open before Birano
“jumped kicked it.”
After Dumlao exited the apartment, Nakano stated,
Birano told Nakano to search the apartment, which he did.
Nakano testified that Birano and Takara were also searching the
apartment, “[p]ulling out the sheets and stuff, looking
underneath the bed.” Not finding anything of value, Nakano,
Takara, and Birano ran out of the apartment to the car. Nakano
testified that he, Birano, and Takara did not take anything from
the apartment because they were concerned that Dumlao was going
to call the police. After leaving the apartment, Nakano
recounted that he told Birano that he was worried about the
police; according to Nakano, Birano told him not to worry and
that he would “shoot [them] out of” the situation if the police
showed up. Nakano admitted that he was high on crystal
methamphetamine when the incident occurred.
3. Casil’s Testimony
Casil testified that while she, Dumlao, and Enos were
unloading laundry baskets from the vehicle around 6:30 a.m. on
16
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
May 16, 2001, a red Camaro pulled up behind the vehicle. The
driver of the red Camaro, later identified as Birano, “came out
pulling a gun” at Dumlao. Casil could not confirm at which part
of Dumlao’s body the gun was pointed and stated that she ran
away and went to a neighbor’s house and called the police.
When asked why she was doing laundry at 4:00 a.m.,
Casil responded, “Maybe because I had a lot of clothes that had
built up.” Casil testified that she could not recall whether
she had used crystal methamphetamine on the morning of the
incident but that she had tried it “a couple of times.” Casil
then testified that she previously used methamphetamine “a lot
more”--as in “[m]ore frequently”--and that she probably did use
it with Dumlao. Casil also stated that Dumlao gave her drugs
and that she did not know how Dumlao obtained money for drugs,
adding that Dumlao had a lot of friends. Casil further
testified that Dumlao “sometimes” “just had money.”
4. Poomaihealani’s Testimony
Poomaihealani testified that he and Dumlao were close
friends. Poomaihealani spoke about a conversation he had with
Dumlao that occurred about one or two days after the incident.
In that conversation, Dumlao admitted to Poomaihealani that the
incident was his fault, explaining that he and Birano
participated in a drug transaction in which he took
approximately $2,000 from Birano. Dumlao also informed
17
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Poomaihealani that he told police Birano robbed him because he
did not want the police to know about the drug transaction.
5. Birano’s Testimony
Birano testified that he and Dumlao had engaged in an
agreed-upon drug transaction two days before the incident when
he gave Dumlao $2,500 for cocaine. Dumlao did not return with
the cocaine, Birano stated, and he went to Dumlao’s apartment on
the day of the incident to recover his money or to get the
cocaine that Dumlao was supposed to provide.
Birano testified he was first introduced to Takara and
Nakano on the day of the incident. Birano related that, in
response to his request for help in finding Dumlao, Nakano said
that he knew where Dumlao lived, and the three of them then went
to Dumlao’s apartment. Birano explained that he had a gun that
day because he did not know if Dumlao would be armed and he had
been held at gunpoint on a prior occasion. When he saw Dumlao,
Birano testified, he approached and demanded that Dumlao return
his money. Birano stated that he had his gun out but that he
was not pointing it at Dumlao. He put the gun away when he saw
that Dumlao was unarmed, Birano testified, and he took it out
again only when Dumlao refused to enter the apartment after
opening the door because Birano feared someone was waiting
inside as part of a “setup.” Birano testified that he did not
intend to terrorize or kidnap Dumlao. He added that he was in
18
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Dumlao’s apartment for less than one minute, he did not touch
anything in the apartment, he did not threaten to shoot Dumlao,
and he never fired his gun.
Birano stated that as he, Nakano, and Takara drove
away from Dumlao’s apartment, Nakano was “tweaking” from
“smoking drugs all morning with us.” In addition, Birano
testified that when the police found him later that day, he fled
because he knew he had violated a condition of his parole and
that he was in possession of a gun.16
6. Jury Verdict
Following the conclusion of the evidence, the jury
found Birano guilty as charged on seven of the eight counts.17
Birano was sentenced to extended terms of life imprisonment with
the possibility of parole in counts one and eight; extended
terms of twenty years of imprisonment in counts three, five, and
seven; and extended terms of ten years of imprisonment in counts
four and six. The court ordered the extended terms to run
16
An officer of the Honolulu Police Department testified that he
recovered a black backpack from Birano on May 16, 2001. The following, inter
alia, were found inside the backpack: an M-11 semiautomatic handgun, a
magazine for the M-11 handgun, a ski mask, and a pair of sunglasses.
17
Count II, kidnapping, was dismissed because the jury found that
the State did not prove beyond a reasonable doubt that Birano acted with
separate and distinct intents in committing robbery in the first degree and
kidnapping.
19
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
concurrently and also imposed mandatory minimum terms in each of
the counts.
B. Nakano’s Sentencing
Following Birano’s trial and prior to Nakano’s
sentencing, Nakano filed a motion for supervised release. On
January 17, 2003, Judge Simms granted Nakano’s motion for
supervised release and set aside bail.
Wada and Breiner appeared as counsel at Nakano’s
sentencing proceeding, which was held on June 9, 2003. At the
onset of the proceeding, Judge Simms indicated that she had
received assurances from the Department of Public Safety (DPS)
that Nakano’s concerns regarding his security as it related to
his and Birano’s placement in prison were “given absolute
priority” and would be addressed. Judge Simms also stated that
she would strongly recommend to the paroling authority that
Nakano be released at the earliest possible date given how well
he had done on supervised release and “because of the assistance
that he provided to the State in the matters involving Mr.
Birano.”
Breiner then addressed the court. Breiner informed
Judge Simms that it was his understanding that Wada was going to
withdraw the State’s motion for extended term of imprisonment.
Wada then orally moved to withdraw the motion for extended term
of imprisonment.
20
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
As to her argument on sentencing, Wada indicated that
the court had already noted “the tremendous assistance” that
Nakano provided in Birano’s criminal case. Wada added that,
given Nakano’s progress and history, the State was recommending
that “Nakano be sentenced as a youthful offender for eight years
with applicable credit.” Wada further stated that she would
appear at Nakano’s parole hearing and would “be recommending a
low minimum and transfer to Kulani as well.”18
Judge Simms followed Wada’s recommendation and stated
to Nakano that “because of what you’ve done, and because of the
help you’ve given the State, I’m going to give you the youthful
offender.” Judge Simms thus sentenced Nakano pursuant to the
Youthful Offender Act, reducing the indeterminate term of twenty
years’ imprisonment to eight years.
C. Direct Appeal
Birano appealed to the Intermediate Court of Appeals
(ICA) from the circuit court’s judgment filed on February 18,
2003, challenging, inter alia, the ex parte chambers conference
that took place among Judge Simms, Breiner, and Wada, as well as
the circuit court’s ruling precluding the defense from cross-
18
Kulani Correctional Facility is a minimum security prison located
on the Big Island of Hawaii. Kulani Correctional Facility, State of Hawaii
Department of Public Safety,
http://dps.hawaii.gov/about/divisions/corrections/about-corrections/kcf/
(last visited June 7, 2018).
21
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
examining Nakano on his sudden change of heart regarding
testifying after the ex parte meeting. State v. Birano, 109
Hawaii 327, 329-30, 331, 126 P.3d 370, 372-73, 374 (App. 2005).
The ICA held that Judge Simms improperly participated
in an ex parte communication--in violation of Canons 2(A) and
3(B)(7) of the Revised Code of Judicial Conduct--thereby raising
a question as to the fairness of Birano’s trial. Id. at 337-38,
126 P.3d at 380-81. Reasoning, however, that there was
convincing evidence that the jury’s deliberations were not
biased by the undisclosed communication, the ICA determined that
the ex parte meeting did not deprive Birano of his
constitutional right to a fair trial. Id. at 338, 126 P.3d at
381. The ICA accordingly affirmed Birano’s convictions. Id. at
342, 126 P.3d at 385.
On certiorari, a three-member majority of this court
held that Birano’s right to a fair trial was not unfairly
prejudiced and affirmed his convictions. State v. Birano
(Birano I), 109 Hawaii 314, 322-23, 126 P.3d 357, 365-66 (2006).
Although the majority agreed that Judge Simms violated Canons
2(A) and 3(B)(7) of the Revised Code of Judicial Conduct by
improperly participating in an ex parte meeting, the court found
that there was nothing in the record indicating that Judge Simms
made improper remarks or engaged in improper conduct during the
22
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
trial. Id. at 323, 126 P.3d at 366. The majority also
concluded that the court’s preclusion of the defense’s
questioning of Nakano regarding his motive for changing his mind
about testifying was harmless error, stating that the only
difference between Birano’s testimony and the testimony of other
witnesses was Birano’s intent in going to Dumlao’s apartment.
Id. at 325, 126 P.3d at 368.
Justice Duffy, with whom Justice Acoba joined, issued
a strong dissent. They agreed with the majority that the ex
parte meeting between Judge Simms, Wada, and Breiner was
improper and violated multiple canons of the Revised Code of
Judicial Conduct, but disputed that the impropriety was harmless
beyond a reasonable doubt. Id. at 326-27, 126 P.3d at 369-70.
A “reasonable person using common sense,” the dissent
maintained, “would conclude that something happened in the
improper ex parte communication meeting which caused Nakano to
change his mind about testifying against Birano.” Id. at 327,
126 P.3d at 370. The trial judge compounded its error, the
dissent continued, “by (1) denying Birano’s motion for a
mistrial based upon the improper meeting, and (2) granting the
prosecutor’s motion in limine to prevent Birano’s counsel from
cross-examining Nakano about the meeting and his reasons for
changing his mind about testifying against Birano.” Id. “[I]f
a mistrial was not ordered,” the dissent reasoned, “basic
23
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
fairness would require that Birano be allowed to cross-examine
Nakano regarding what happened at the improper meeting.” Id.
The dissent thus concluded that the errors involving the trial
judge’s improper ex parte meeting and the events that followed
were not harmless beyond a reasonable doubt. Id.
D. 2007 Petition for Post-Conviction Relief
On April 3, 2007, Birano filed a petition for post-
conviction relief pursuant to Rule 40 of the Hawaii Rules of
Penal Procedure (HRPP) (Petition I). Petition I set forth eight
grounds for relief. Grounds one through four asserted that the
trial court violated Birano’s right to be present at every stage
of trial and to have counsel present at every critical stage of
trial under the HRPP, the Hawaii Constitution, and the United
States Constitution. Ground five alleged that the trial court
violated Birano’s right to due process under the federal
constitution by preventing the disclosure of exculpatory and
impeachment evidence from a key witness of the State. Grounds
six and seven asserted that the trial court violated Birano’s
right to confrontation under the Hawaii and United States
Constitutions by precluding him from cross-examining Nakano on
the “improper” ex parte communication.19 The circuit court
19
Ground eight contended that the trial court violated the Sixth
and Fourteenth Amendments of the United States Constitution by imposing on
(continued . . .)
24
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
denied Petition I without a hearing, finding that Birano’s
claims were “patently frivolous and without a trace of support
either in the record or from other evidence submitted by the
Petitioner.”20
Birano appealed the denial of Petition I and
thereafter moved to supplement the record on appeal with a
Declaration from Nakano, which was dated August 8, 2008. In his
Declaration, Nakano averred that in May 2001, he gave police a
false statement that had been coerced and induced by a promise
of a reduction in bail. Nakano also declared that he attempted
to invoke the Fifth Amendment at Birano’s trial because he did
not want to lie under oath, but Wada and Breiner informed him
that if he did not testify he would receive a sentence of twenty
years of imprisonment instead of eight years of imprisonment.
Nakano stated that he requested that the agreement of the
reduced sentence in exchange for his testimony be in writing,
but Wada and Breiner said it could not be done. Nakano averred
that he testified at Birano’s trial because of pressure from
(. . . continued)
Birano extended terms of imprisonment without submitting to a jury the facts
underlying these terms.
20
The Honorable Dexter D. Del Rosario presided.
25
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Wada and Breiner. The ICA denied the motion to supplement the
record on appeal.
On April 24, 2009, the ICA issued a summary
disposition order,21 in which it determined that there was no
evidence to support Birano’s claim of new evidence that Nakano’s
trial testimony was not truthful.22 This court denied Birano’s
application for a writ of certiorari without prejudice to Birano
filing another Rule 40 petition. Birano v. State, No. 29050,
2009 WL 2943170 (Haw. Sept. 4, 2009).
E. 2009 Petition for Post-Conviction Relief
On September 9, 2009, Birano, proceeding pro se, filed
a second Rule 40 petition (Petition II), which set forth five
grounds for relief. In ground three, Birano asserted that the
trial court conducted an improper ex parte meeting in chambers
with the prosecutor, Nakano, and Nakano’s counsel and that
Nakano’s trial testimony that followed the improper ex parte
meeting had been induced by pressure from the prosecutor and was
not truthful. Birano contended that by precluding the
disclosure of exculpatory and impeachment evidence from Nakano,
21
The ICA’s summary disposition order may be found at Birano v.
State, No. 29050, 2009 WL 1102048 (Haw. App. Apr. 24, 2009).
22
The ICA vacated the circuit court’s order denying Petition I to
the extent that it denied a hearing on ground eight, in which Birano
challenged the imposition of the extended term sentences; the ICA remanded
the case for resentencing.
26
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the trial court violated his constitutional right to
confrontation.23 Attached to Petition II was an Amended
Declaration from Nakano.24
The circuit court denied Petition II without a
hearing, ruling that Birano’s claims were previously ruled upon
or waived.25 Birano appealed to the ICA.
In a summary disposition order, the ICA determined
that the circuit court erred in failing to conduct a hearing on
ground three of Petition II, which challenged as
unconstitutional the trial court’s preclusion of the disclosure
of exculpatory and impeachment evidence from a key witness of
23
The other grounds for relief in Petition II were as follows.
Grounds one and two alleged that the trial court violated Birano’s right to
be present at every stage of trial and to have counsel present at every
critical stage of trial in violation of the HRPP, the Hawaii Constitution,
and the United States Constitution. Ground four challenged the trial court’s
ruling precluding Birano from cross-examining the State’s “key witness” on
the “improper” ex parte communication. Ground five asserted that the
prosecutor committed misconduct by engaging in the “improper” ex parte
communication with Nakano.
24
In his Amended Declaration, Nakano restated what was set forth in
his first Declaration and added that at some point after he invoked the Fifth
Amendment at Birano’s trial, he met with Judge Simms, who confirmed that she
would sentence him as a youth offender if he agreed to testify. Nakano
expressed that he testified against Birano because of pressure from not only
Wada and Breiner, but also Judge Simms. Nakano explained that his testimony
at trial was false because the reason in going to Dumlao’s house was to
recover money that Dumlao had owed Birano; Nakano stated that there was no
prior discussion regarding robbing Dumlao. Nakano also explained that Birano
had a gun because Dumlao was a known armed drug dealer.
25
The Honorable Dexter D. Del Rosario presided.
27
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the State.26 The ICA found that Birano stated a colorable claim
for relief on the grounds that his due process rights were
violated because Nakano’s testimony was untruthful and the
result of coercion by the prosecutor. The ICA accordingly
remanded the case to the circuit court for a hearing on ground
three of Petition II.
On remand, Birano was permitted to supplement Petition
II to include the following additional grounds for relief:
ground six, which contended that Birano’s right to confrontation
and right to due process were violated because the State failed
to provide discovery of impeachment evidence relating to an off-
the-record agreement between the State and Nakano; ground seven,
which maintained that the State’s failure to correct or disclose
Nakano’s untruthful testimony regarding the absence of a deal
with the State violated Birano’s rights to a fair trial and due
process; and ground eight, which asserted that Birano’s
constitutional right to a fair trial was violated when the State
improperly entered into an off-the-record agreement with Nakano
that was purposely concealed from the defense.
26
The ICA’s summary disposition order may be found at Birano v.
State, No. 30480, 2013 WL 764880 (Haw. App. Feb. 28, 2013).
28
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
A hearing on grounds three, six, seven, and eight of
Petition II commenced on January 7, 2015.27 Among those who
testified at the hearing were Breiner, Judge Simms,28 Wada, and
Nakano.
Breiner testified that he was Nakano’s counsel in the
underlying criminal case. He expressed that the State’s case
against Nakano was “very solid” and that Nakano did not have a
viable defense to the charges. Prior to Birano’s trial, Breiner
spoke to Nakano about youth offender treatment and the advantage
of cooperating. After Nakano invoked the right to remain silent
at Birano’s trial, Breiner received a telephone call and “had to
rush over there.” When he arrived, he spoke to Nakano,
reiterating to him that if he testified against Birano it would
improve his chances of receiving youth offender treatment.
Breiner testified that there was an unwritten
“understanding” that existed between Wada and himself. Breiner
drew a distinction between an “understanding” and an “agreement”
or “deal.”
Q: Okay. And sometimes those are deals where the
State’s going to make a recommendation for your client at
27
The Honorable Rom A. Trader presided. At the hearing, Birano was
represented by counsel.
28
Although Judge Simms was no longer a judge at the time of the
hearing, the hearing recounted events that took place while she was a judge,
and therefore she is referred to in that capacity.
29
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
sentencing but the judge is not bound by that
recommendation, correct?
A: You’re using the word “deal.” There’s an
understanding. If that’s what you mean by deal, that’s a
little different. There’s an understanding sometimes the
prosecutor will make a recommendation.
Q. Well, you could have -- you talked about -- you
know, you talked about there was no written agreement in
this case?
A: Um-hum.
Q: Correct?
A: Correct.
Q: Okay.
A: There was no agreement, period.
Q: Well, are you saying there was no written
agreement or you’re saying there was no agreement at all?
A: There was no agreement at all. There was an
understanding that if he cooperated, then the court -- then
the prosecutor, Ms. Wada, would take it into consideration
and recommend, we were hoping, youth offender treatment.
She couldn’t get approval for it. She couldn’t say that
she had authority to do that and there was nothing in
writing.
(Emphases added.) In response to whether there was a “deal” for
Nakano to get youthful offender sentencing, Breiner again stated
that “there was no written agreement, there was no oral
agreement”--simply his belief that if Nakano testified
truthfully, “the court would be inclined to grant him youthful
offender treatment.”
Judge Simms testified that after Nakano invoked the
Fifth Amendment at Birano’s trial, she met with Breiner and Wada
to discuss whether Nakano was going to testify. Judge Simms
stated that, during the chambers conference, she “understood”
30
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Wada and Breiner had discussed between themselves a
recommendation from the State of youthful offender sentencing in
exchange for Nakano’s testimony.
Q. And is it your recollection that while there was
no deal that would be -- that might be considered a Rule 11
deal --
A. Um-hum.
Q. -- that there nevertheless was an agreement
between Mr. Breiner and Mr. Nakano and the State that
Nakano would be testifying, if he did testify, in exchange
for a recommendation at sentencing from the State?
A. I’m -- I don’t know if I would characterize it as
that. I was not a party to that but I understood that
that’s what they talked about, yes.
. . .
Q. Okay. But your recollection is that after Nakano
took the Fifth, when Mr. Breiner came down to court, he and
Ms. Wada were talking about this agreement that if Nakano
testified truthfully against Mr. Birano, then the State
would recommend at sentencing that he receive the youth
act, it was still up to you whether or not he would get the
youth act?
A. I -- I can’t talk about what they discussed among
themselves, if that’s what they discussed, yeah.
Q. Okay. But your recollection is that they were --
they were talking about that to some degree, that’s what
you recall, you were not a party to it but --
A. They were talking about it but they were also
talking about, you know, what happened as to why he
wouldn’t testify at that particular time.
. . .
Q. Okay. But it’s fair to say that part of what was
discussed was some agreement that you were not a party to?
A. That’s fair. Yes.
(Emphases added.) Judge Simms later in her testimony confirmed
that there was a discussion between Wada and Breiner during the
31
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
chambers conference about an agreement between Nakano and the
State.
Q. Okay. And you told us earlier there was some
discussion that you were not -- you weren’t privy to all
the details but there was discussion about an agreement
between Mr. Nakano, his lawyer, and Ms. Wada representing
the State, correct?
A. Yeah.
Q. Okay. And would it be fair to say that, again,
you weren’t privy to all the details but the gist of that
agreement was that if he, Nakano, testified against Mr.
Birano, the State would recommend the Youthful Offender
Act?
A. I guess you could say that but yeah.
(Emphases added.)
Wada, in her testimony, denied the existence of an
agreement, explaining that she did not believe she needed
Nakano’s testimony to successfully prosecute Birano. Wada
testified that, during the in-chambers meeting without Birano’s
trial counsel, Breiner expressed his concern that, after Nakano
invoked the Fifth Amendment, Judge Simms would not sentence
Nakano as a youthful offender. Wada stated,
A. . . . Breiner was very concerned that Judge Simms,
after taking the Fifth Amendment, would not consider his
client a candidate for Youthful Offender, and he talked to
us about that, and he asked her “Would you still consider a
Youthful Offender if my client testifies?”
. . .
Mr. Breiner’s concern was because his client had
taken the Fifth, if he did testify, would the Court be
inclined or open to entertain a Youthful Offender
sentencing . . . .
32
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Wada testified that Judge Simms responded that it depended on
what the State asked for and that she was “inclined” to follow
the State’s recommendation regarding Nakano’s sentence. Wada
testified as follows:
[A]nd he asked her “Would you still consider a Youthful
Offender if my client testifies?” and she told him, “Well,
it’s clear that he’s very, very afraid of Birano and that’s
why we have all these sheriffs.” She says, “Well, it’s
going to depend on what the State asks. If the State asks
for it, then I’m inclined to follow it,” and I told him, “I
cannot tell you anything. I don’t know. We don’t have any
plea agreement.”
(Emphasis added.) Wada later reiterated in her testimony that
Judge Simms stated that Nakano’s sentence would depend on what
the State asked for. Wada said,
Mr. Breiner’s concern was because his client had taken the
Fifth, if he did testify, would the Court be inclined or
open to entertain a Youthful Offender sentencing, and Judge
Simms’ reply was, “Well, I don’t know. It depends on what
the State asks,” and I said, “I don’t know because we don’t
have a plea agreement. He hasn’t testified for me.”
(Emphases added.)
Nakano testified that Wada had told him “that in
exchange for [his] testimony against Birano [he] would get the
youth act.” Nakano explained that approximately a week and a
half prior to Birano’s trial, he was brought to the prosecutor’s
office, where he and Wada went over his testimony. At that
time, Nakano stated that he had asked for a written plea
agreement, which Wada refused. Nakano also stated that he was
lying at trial when he denied the existence of an unwritten deal
between himself and the State. Further, Nakano explained that
33
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
he was coming forward about the off-the-record agreement because
his untruthful testimony had gotten Birano convicted and this
bothered his conscience.29
On September 2, 2015, the court denied Birano’s
Petition II, finding the State’s witnesses--including Breiner,
Wada, and Judge Simms--credible and finding Nakano not
29
Terry Pennington, a private investigator assisting with Birano’s
case, also testified. Pennington related that he interviewed Breiner, whom
he had worked for in a number of previous cases. Pennington testified that
Breiner told him there had been an agreement between Nakano and the
prosecutor’s office that, in exchange for his truthful testimony, Nakano
would be sentenced under the Youthful Offender Act. Pennington also
testified that Breiner explained that he and Wada spoke to Nakano after
Nakano invoked the Fifth Amendment and “revisited the agreement with him,
that he was going to have to testify to what they had discussed or [Wada]
wasn’t going to ask for him to be sentenced under the Youth Act.” According
to Pennington, Breiner could not recall whether the agreement was in writing
and stated that he did not believe so.
Pennington testified that he also interviewed Wada, who provided
the same information Breiner did: that there was an agreement between the
State and Nakano that Wada would ask for him to be sentenced under the
Youthful Offender Act--eight years versus twenty--if he provided truthful
testimony; that she and Breiner reviewed the agreement with Nakano after he
invoked the Fifth Amendment; and that she could not recall whether the
agreement was in writing but that “it must have been, it would have had to
have been.”
Wada and Breiner were interviewed via telephone; the interviews
were not recorded but were summarized by Pennington in written reports, which
also contained the dates of the interviews and the dates of Pennington’s
unsuccessful attempts to reach Breiner.
Breiner testified that he did not recall telling Pennington that
a plea agreement had been negotiated in which Nakano would testify for the
State in exchange for a recommendation of youthful offender sentencing. In
addition, Breiner testified that he did not believe he told Pennington that
he and Wada informed Nakano, after Nakano invoked the Fifth Amendment, that
Nakano would have to testify to be sentenced under the Youthful Offender Act.
Wada, in her testimony, denied telling Pennington that there was an agreement
between the State and Nakano that if Nakano testified the State would
recommend youthful offender sentencing, that Breiner reminded Nakano about
the agreement after Nakano invoked the Fifth Amendment, and that the subject
matter of a plea agreement came up during the in-chambers conference.
34
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
credible.30 The court also found that “there was no off-the-
record plea agreement that induced Nakano’s cooperation to
testify against [Birano].” Because there was no plea agreement,
the court stated that the prosecution had nothing to disclose to
Birano or his trial counsel and no reason to correct Nakano’s
trial testimony that he did not have a plea agreement with the
State. The court concluded that Petition II was without merit.
Birano filed a notice of appeal to the ICA from the
circuit court’s order denying Petition II.
II. ICA PROCEEDINGS
In his opening brief, Birano asserted that the circuit
court erred in denying Petition II. Birano submitted that the
crux of this case was whether there was an off-the-record
agreement between Nakano and the State for Nakano to testify
against Birano in exchange for a recommendation that Nakano be
sentenced as a youthful offender. Birano first challenged
Wada’s assertion that she did not need Nakano’s testimony to
convict Birano, arguing that the court minutes showed
otherwise.31
30
The court did not make a credibility finding as to Pennington’s
testimony.
31
The minutes indicate, Birano argued, that the State made
continuous efforts to have a codefendant--including both Takara and Nakano--
testify against him. The series of court minutes to which Birano was
referring were from proceedings that took place before his trial. For
example, Birano pointed to the minutes of a pretrial conference, which
(continued . . .)
35
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Birano next contended that, while there was no written
agreement, the record showed that Nakano relied on the State’s
promise that he would receive a sentence recommendation of
youthful offender if he cooperated by testifying. This
reliance, Birano maintained, was supported by the testimony of
Breiner, who acknowledged that there was an understanding that
if Nakano cooperated, Wada would take it into consideration at
Nakano’s sentencing. Birano argued that an “understanding”
equates to an off-the-record agreement. Birano added that
Nakano’s reliance on the State’s promise was also supported by
the testimony of Wada, who stated that Breiner was concerned
that Judge Simms would not consider Nakano an appropriate
candidate for youthful offender sentencing after Nakano invoked
the Fifth Amendment and that Judge Simms had indicated that
whether Nakano would be sentenced as a youthful offender would
depend on what the State recommended. Birano concluded that the
circuit court’s findings of fact were clearly erroneous and its
conclusions of law were wrong.
In its answering brief, the State submitted that
Birano was challenging findings of fact that were based on
(. . . continued)
according to Birano “show that the State was trying to work out a plea
agreement with Nakano and the State may be willing to go with Youthful
Offender sentencing.”
36
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
determinations of credibility by the trial court and that,
pursuant to caselaw, the appellate court’s role is not to weigh
credibility or resolve conflicting evidence.
In the alternative, the State argued that Birano
failed to demonstrate that Nakano’s testimony was credible while
the testimony of Wada, Breiner, and Judge Simms were not. The
State contended that the court minutes do not show that Wada
needed Nakano’s testimony and the change of plea form does not
show the existence of an agreement between the State and Nakano.
The State concluded that the circuit court properly denied
Petition II as Birano’s claim that there was an off-the-record
agreement between Nakano and the State lacked merit.
On January 26, 2017, the ICA entered a summary
disposition order, affirming the circuit court’s order denying
Petition II.32 The ICA concluded that the circuit court’s
finding that there was no off-the-record agreement between the
State and Nakano that led Nakano to testify against Birano was
not clearly erroneous and that the court did not err in denying
Petition II.
32
The ICA’s summary disposition order can be found at Birano v.
State, CAAP-XX-XXXXXXX, 2017 WL 374762 (Haw. App. Jan. 26, 2017).
37
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
III. STANDARDS OF REVIEW
Findings of fact are reviewed on appeal under the
clearly erroneous standard. Jones v. State, 79 Hawaii 330, 334,
902 P.2d 965, 969 (1995). “A finding of fact is clearly
erroneous when, despite evidence to support the finding, the
appellate court is left with the definite and firm conviction in
reviewing the entire evidence that a mistake has been
committed.” Id. (quoting Tachibana v. State, 79 Hawaii 226,
231, 900 P.2d 1293, 1298 (1995)). “A finding of fact is also
clearly erroneous when the record lacks substantial evidence to
support the finding.” O’Grady v. State, 140 Hawaii 36, 43, 398
P.3d 625, 632 (2017) (quoting In re Grievance Arbitration
Between State of Haw. Org. of Police Officers, 135 Hawaii 456,
461-62, 353 P.3d 998, 1003-04 (2015)).
“An appellate court may freely review conclusions of
law and the applicable standard of review is the right/wrong
test.” Dan v. State, 76 Hawaii 423, 428, 879 P.2d 528, 533
(1994) (quoting Maria v. Freitas, 73 Haw. 266, 270, 832 P.2d
259, 262 (1992)).
IV. DISCUSSION
A defendant’s right to due process is guaranteed by
the Fourteenth Amendment to the United States Constitution and
article I, section 5 of the Hawaii Constitution. “The due
38
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
process guarantee of the . . . Hawaii constitution [] serves to
protect the right of an accused in a criminal case to a
fundamentally fair trial.”33 State v. Kaulia, 128 Hawaii 479,
487, 291 P.3d 377, 385 (2013) (alterations in original) (quoting
State v. Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672 (1990)).
Two of the constituent rights encompassed by due
process are relevant to this case. First, under the rule
adopted by the U.S. Supreme Court in Brady v. Maryland, 373 U.S.
83, 87 (1963), which “has been incorporated into the Hawaii due
process jurisprudence,” due process requires that the
prosecution disclose “evidence favorable to the accused” that,
if suppressed, would deprive the defendant of a fair trial.
Matafeo, 71 Haw. at 185-86, 787 P.2d at 672. Second, “it is
established that a conviction obtained through use of false
evidence, known to be such by representatives of the State, must
fall under the” constitutional dictates of due process. Napue
v. Illinois, 360 U.S. 264, 269 (1959) (citations omitted). “The
same result obtains when the State, although not soliciting
33
Though most often framed as a constitutional right of the
defendant, the responsibility to provide a fair trial also inheres in the
prosecutor’s duties as a “minister of justice,” which include “specific
obligations to see that the accused is accorded procedural justice and that
guilt is decided upon the basis of sufficient evidence.” American Bar
Association Standards for Criminal Justice: Prosecution Function § 3-3.11
cmt. at 97 (3d ed. 1993); see also Brady v. Maryland, 373 U.S. 83, 87 (1963)
(“Society wins not only when the guilty are convicted but when criminal
trials are fair; our system of the administration of justice suffers when any
accused is treated unfairly.”).
39
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
false evidence, allows it to go uncorrected when it appears.”
Id. (citations omitted).
We consider each right as it applies to this case in
turn.
A. The Duty to Disclose Favorable Evidence
1. Constitutional Principles
“[C]entral to the protections of due process is the
right to be accorded a meaningful opportunity to present a
complete defense.” State v. Tetu, 139 Hawaii 207, 219, 386 P.3d
844, 856 (2016) (quoting Matafeo, 71 Haw. at 185, 787 P.2d at
672). Under this “well-established principle,” “all defendants
must be provided with the basic tool[s] of an adequate defense.”
Id. (alteration in original) (quoting State v. Scott, 131 Hawaii
333, 352, 319 P.3d 252, 271 (2013)). One such basic tool is
access to known favorable evidence on which a defense may be
based. Matafeo, 71 Haw. at 185-86, 787 P.2d at 672. Therefore,
the prosecution has a constitutional obligation to disclose
evidence that is material to the guilt or punishment of the
defendant.34 Id. at 185, 787 P.2d at 672.
34
This obligation is also set forth in Rule 16 of the HRPP, which
provides in relevant part as follows:
The prosecutor shall disclose to the defendant or the
defendant’s attorney the following material and information
within the prosecutor’s possession or control:
(continued . . .)
40
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
The duty to disclose evidence that is favorable to the
accused includes evidence that may be used to impeach the
government’s witnesses by showing bias, self-interest, or other
factors that might undermine the reliability of the witness’s
testimony. Giglio v. United States, 405 U.S. 150, 154 (1972).
“The jury’s estimate of the truthfulness and reliability of a
given witness may well be determinative of guilt or innocence,
and it is upon such subtle factors as the possible interest of
the witness in testifying falsely that a defendant’s life or
liberty may depend.” Napue, 360 U.S. at 269. The U.S. Supreme
Court thus “has rejected any . . . distinction between
impeachment evidence and exculpatory evidence” in the context of
Brady disclosure obligations. United States v. Bagley, 473 U.S.
667, 676 (1985).
In Giglio v. United States, the seminal case extending
Brady to impeachment evidence, the defendant Giglio was
convicted of passing forged bank notes based in large part on
the testimony of a bank teller who allegedly participated in the
(. . . continued)
. . .
(vii) any material or information which tends to
negate the guilt of the defendant as to the offense
charged or would tend to reduce the defendant’s
punishment therefor.
HRPP Rule 16(b)(1)(vii) (2012).
41
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
scheme. 405 U.S. at 150. At trial, the bank teller identified
Giglio as the originator of the plan and, upon cross-
examination, denied that the prosecution had indicated that he
might avoid indictment by testifying against Giglio. Id. at
151-52.
Following Giglio’s conviction, Giglio filed a motion
for a new trial on the basis of newly discovered evidence,
citing an affidavit by an Assistant United States Attorney
(AUSA) who had initially secured a grand jury indictment against
Giglio. Id. at 152. The AUSA averred that he had, in fact,
told the bank teller that he would not be indicted if he
testified against Giglio. Id. In response to Giglio’s motion,
the Government submitted two affidavits. The first, from the
AUSA who had taken over the case for trial, averred that he had
been assured by the first AUSA that no promises of immunity had
been made to the bank teller. Id. In the second affidavit, the
supervising U.S. Attorney averred that he had personally met
with the bank teller and his attorney before trial to emphasize
that the bank teller “would definitely be prosecuted if he did
not testify and that[,] if he did testify[,] he would be obliged
to rely on the ‘good judgment and conscience of the Government’
as to whether he would be prosecuted.” Id. at 152-53.
On review, the U.S. Supreme Court unanimously held
that the government’s failure to disclose that the bank teller
42
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
reasonably expected to benefit from his testimony violated due
process and justified a new trial. Id. at 154-55. The Court
determined that the promise made by the first AUSA, regardless
of his “authority []or his failure to inform his superiors or
his associates,” must be attributed to the government. Id. at
154. Of the supervising U.S. Attorney’s statement to the bank
teller that he would simply have to rely on the Government’s
good judgment and conscience, the Supreme Court stated that this
“affidavit, standing alone, contains at least an implication
that the Government would reward the cooperation of the witness,
and hence tends to confirm rather than refute the existence of
some understanding for leniency.” Id. at 153 n.4 (emphases
added). “Evidence of any understanding or agreement” that
conveyed a benefit, the Court reasoned, would be relevant to the
witness’s credibility, “and the jury was entitled to know of
it.” Id. at 154.
Thus, although it is true that “[t]he prosecution must
reveal the contents of plea agreements with key government
witnesses” because such evidence is relevant to impeach the
witness by showing bias or interest, California v. Trombetta,
467 U.S. 479, 485 (1984) (citing Giglio, 405 U.S. 150),
disclosure obligations are not limited to formal written
documents memorializing a quid pro quo between the government
and the witness. Rather, the duty to disclose is triggered,
43
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
inter alia, when the government knows or should know that a
witness expects to receive some benefit or avoid a detriment by
testifying. The central inquiry is whether the government
possesses information that may have a potential negative impact
on a key witness’s credibility, including that an incentive
exists for the witness to deliver testimony that is biased
against the defendant. See Giglio, 405 U.S. at 154-55 (“When
the ‘reliability of a given witness may well be determinative of
guilt or innocence,’ nondisclosure of evidence affecting
credibility falls within [the] general rule” that “suppression
of material evidence justifies a new trial” (emphasis added)
(quoting Napue, 360 U.S. at 269)). This may often arise from an
“agreement or understanding” that the witness may receive a
reduction of charges or leniency in sentencing in exchange for
testifying as a government witness.35 See id. at 152-55.
35
The duty to disclose is not limited to evidence of promised
benefits from the State, and it may be triggered by any admissible evidence
affecting witness credibility, including a witness’s ulterior motive for
testifying, a relevant sensory or mental defect, inconsistent past
statements, or previous acts indicating dishonesty. See, e.g., Milke v.
Ryan, 711 F.3d 998, 1001 (9th Cir. 2013) (holding disclosure of witness’s
“long history of lying under oath and other misconduct” was required); United
States v. Kohring, 637 F.3d 895, 907 (9th Cir. 2011) (holding disclosure of
evidence that cast doubt upon witness’s memory and demonstrated witness had
previously suborned perjury was required); see also Stockdale v. Helper, No.
3:17-CV-241, 2017 WL 2546349, at *2 (M.D. Tenn. June 13, 2017) (explaining
that, under Giglio, a prosecutor may be unlikely to call as a witness a
police officer with a significant disciplinary history “because the
prosecutor would be required to disclose to the defense existing information
(continued . . .)
44
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
The duty to disclose material impeachment evidence is
compelled not only by due process, but also the constitutional
right to confrontation. This court has stated that “[a]n
accused’s right to demonstrate the bias or motive of prosecution
witnesses is protected by the sixth amendment to the United
States Constitution, which guarantees an accused, inter alia,
the right ‘to be confronted with the witnesses against him [or
her].’” State v. Balisbisana, 83 Hawaii 109, 115, 924 P.2d
1215, 1221 (1996) (second alteration in original) (quoting
Alford v. United States, 282 U.S. 687 (1931)). Article I,
section 14 of the Hawaii Constitution contains a parallel
provision, which we have held “includes a right to appropriate
cross-examination.” State v. Calbero, 71 Haw. 115, 124, 785
P.2d 157, 161 (1989). “It is well-settled that upholding a
defendant’s rights under the confrontation clause is essential
to providing a defendant with a fair trial.” State v. Mattson,
122 Hawaii 312, 325, 226 P.3d 482, 495 (2010).
The right to confrontation “provides the criminal
defendant with the opportunity to defend himself [or herself]
through our adversary system by prohibiting ex parte trials,
(. . . continued)
about the officer’s prior misconduct or other grounds to attack the officer’s
credibility . . . which could compromise the prosecution”).
45
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
granting the defendant an opportunity to test the evidence in
front of a jury, and guaranteeing the right to face-to-face
confrontation.” State v. Walsh, 125 Hawaii 271, 284, 260 P.3d
350, 363 (2011) (alteration in original) (quoting Mattson, 122
Hawaii at 325, 226 P.3d at 495). In affording the defendant an
opportunity to test the evidence, “[t]he right of confrontation
affords the accused both the opportunity to challenge the
credibility and veracity of the prosecution’s witnesses and an
occasion for the jury to weigh the demeanor of those witnesses.”
Batalona v. State, 142 Hawaii 84, 102, 414 P.3d 136, 154 (2018)
(quoting State v. Sua, 92 Hawaii 61, 70, 987 P.2d 959, 968
(1999)).
“Indeed, the main and essential purpose of
confrontation is to secure for the opponent the opportunity of
cross-examination[,] . . . [and] the exposure of a witness’
motivation in testifying is a proper and important function of
the constitutionally protected right of cross examination.”
Balisbisana, 83 Hawaii at 115, 924 P.2d at 1221 (alterations in
original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79
(1986)). “Cross-examination is the principal means by which the
believability of a witness and the truth of his testimony are
tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974). “The
partiality of a witness is subject to exploration at trial, and
46
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
is ‘always relevant as discrediting the witness and affecting
the weight of his testimony.’” Id. (quoting 3A J. Wigmore,
Evidence § 940, p. 775 (Chadbourn rev. 1970)).
In light of these constitutional principles, we
consider Birano’s arguments with regard to the State’s
disclosure obligations, together with the evidence adduced at
the hearing on Petition II.
2. Application to Birano’s Case
a. Agreement Regarding a Sentencing Recommendation
On certiorari, Birano contends that there was an off-
the-record agreement between the State and Nakano that if Nakano
testified against Birano, the State would recommend youthful
offender sentencing. In response, the State asserts that
Birano’s claim that there was such an agreement between the
State and Nakano lacks merit.
In denying Petition II, the circuit court found that
Breiner, Judge Simms, and Wada were credible while Nakano was
not. The court also found that there was no off-the-record plea
agreement between the State and Nakano and thus there was
nothing for the prosecution to disclose to Birano. There is,
however, overwhelming evidence in the record--including in the
testimony the court found credible--demonstrating that the State
possessed material information relevant to Nakano’s credibility
that was required to be disclosed.
47
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
First, the hearing testimony strongly contradicted the
circuit court’s conclusion that no agreement existed between
Nakano and the State. Judge Simms’s testimony expressly
referenced the existence of an agreement in which Nakano would
receive a benefit for his testimony. Judge Simms stated
repeatedly that, while she was not a party to some of the
exchanges between Breiner and Wada following Nakano’s invocation
of the Fifth Amendment, Judge Simms understood that Breiner and
Wada discussed an agreement in which Nakano would testify in
exchange for a favorable recommendation from the State at
sentencing. Specifically, Judge Simms confirmed upon
questioning that it was “fair to say” that there was a
discussion between Breiner and Wada about an agreement involving
Nakano. And she agreed that “the gist” of the arrangement
discussed “was that if he, Nakano, testified against Mr. Birano,
the State would recommend the Youthful Offender Act.”
Even the testimony of Breiner, who ostensibly denied
the existence of an agreement, actually indicated that some
arrangement existed in which Nakano’s testimony at Birano’s
trial would be beneficial to Nakano. Breiner testified that
there was an “understanding” that if Nakano testified against
Birano, Wada would “take it into consideration” with respect to
her sentencing recommendation. Breiner attempted to distinguish
this understanding from an agreement, noting that Wada had
48
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
indicated she did not have the authority to enter into a formal
arrangement on the subject:
There was no agreement at all. There was an understanding
that if he cooperated, then the court -- then the
prosecutor, Ms. Wada, would take it into consideration and
recommend, we were hoping, youth offender treatment. She
couldn’t get approval for it. She couldn’t say that she
had authority to do that and there was nothing in writing.
(Emphases added.) There are further statements in Breiner’s
testimony that suggest he considered any arrangement in which a
prosecutor makes a non-binding recommendation at sentencing in
exchange for testimony to be an “understanding” rather than a
deal or agreement:
Q. Okay. And sometimes those are deals where the State’s
going to make a recommendation for your client at
sentencing but the judge is not bound by that
recommendation, correct?
A. You’re using the word “deal.” There’s an understanding.
If that’s what you mean by deal, that’s a little different.
There’s an understanding sometimes the prosecutor will make
a recommendation.
(Emphasis added.)
The purported distinction between an agreement and an
understanding is spurious under the law, and it is irrelevant
for purposes of the State’s constitutional disclosure
obligations. “Agreement” is defined as “[a] mutual
understanding between two or more persons about their relative
rights and duties regarding past and future performances.”
Agreement, Black’s Law Dictionary (10th ed. 2014) (emphasis
added). Conversely, an “understanding” is “[a]n agreement, esp.
of an implied or tacit nature.” Understanding, Black’s Law
49
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Dictionary (10th ed. 2014) (emphasis added). The terms are
legally equivalent in this context, as demonstrated by the lack
of differentiation in the Supreme Court’s analysis in Giglio.
See 405 U.S. at 154-55 (holding that “evidence of any
understanding or agreement as to a future prosecution would be
relevant to his credibility and the jury was entitled to know of
it” (emphasis added)).
Thus, when Breiner used “understanding” to refer to an
unwritten, informal arrangement between Nakano and the State in
which Nakano would receive a youthful offender recommendation in
exchange for his testimony, the arrangement still amounted to an
agreement that was required to be disclosed.36 “[T]he Supreme
Court has never limited a Brady violation to cases where the
facts demonstrate that the state and the witness have reached a
bona fide . . . deal.” LaCaze v. Warden La. Corr. Inst. for
Women, 645 F.3d 728, 735 (5th Cir. 2011); accord United States
v. Bagley, 473 U.S. 667, 683 (1985) (holding disclosure is
required despite the witness’s “stake” not being “guaranteed
through a promise or binding contract”). Given this evidentiary
36
Wada’s lack of authority and inability to obtain approval to
enter into an agreement were similarly immaterial to her disclosure
obligations. See Giglio, 405 U.S. at 154 (“In the circumstances shown by
this record, neither [the AUSA]’s authority nor his failure to inform his
superiors or his associates is controlling. . . . The prosecutor’s office is
an entity and as such it is the spokesman for the Government. A promise made
by one attorney must be attributed, for these purposes, to the Government.”).
50
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
record, we are “left with the definite and firm conviction” that
the circuit court was mistaken in its finding that no agreement
existed. Jones v. State, 79 Hawai‘i 330, 334, 902 P.2d 965, 969
(1995) (quoting Tachibana v. State, 79 Hawai‘i 226, 231, 900 P.2d
1293, 1298 (1995)). Accordingly, this finding was clearly
erroneous.
Even had the circuit court’s finding that no agreement
existed between Nakano or his counsel and Wada not been clearly
erroneous, however, it would not be the end of our inquiry into
the State’s disclosure obligations. When determining whether
the disclosure of impeachment evidence is required, the relevant
question “is not whether the prosecutor and the witness entered
into an effective agreement, but whether the witness ‘might have
believed that the [S]tate was in a position to implement any
promise of consideration.’” LaCaze, 645 F.3d at 735(alterations omitted) (quoting Napue, 360 U.S. at 270). The
“possibility of a reward” gives a witness “a direct, personal
stake in [the defendant]’s conviction.” Bagley, 473 U.S. at 683(emphasis added). Thus, an indication by the State sufficient
to make Nakano believe his testimony might be rewarded was
sufficient to trigger Wada’s disclosure obligations, regardless
of whether an agreement existed.
This is to say that an indication that the State would
simply take Nakano’s assistance “into consideration”--which
51
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Breiner testified was part of the “understanding”--was required
to be disclosed even if it was not accompanied by a promise of
the exact reward. In Giglio v. United States, the supervising
U.S. Attorney made a similarly noncommittal statement regarding
the advantages of cooperation, telling the witness “that if he
did testify he would be obliged to rely on the” Government’s
“good judgment and conscience” as to whether he would be
prosecuted. 405 U.S. 150, 153 n.4 (1972). The U.S. Supreme
Court concluded that the statement nonetheless carried an
implication that the witness would receive a benefit from the
Government in exchange for his cooperation and thus “tend[ed] to
confirm rather than refute the existence of some understanding
for leniency.” Id. (emphasis added). Subsequent cases have
confirmed that an implication of consideration is sufficient to
trigger disclosure and that “[a] promise is unnecessary.”
Tassin v. Cain, 517 F.3d 770, 778 (5th Cir. 2008).
Indeed, when a witness’s stake in the outcome of the
case is “not guaranteed through a promise or binding contract,”
but is instead “contingent on the Government’s satisfaction with
the end result,” it “serves only to strengthen any incentive to
testify falsely in order to secure a conviction.” Bagley, 473
U.S. at 683 (emphasis added). This is because, when the State
conveys only that it will take a witness’s testimony into
account in determining whether to grant the witness favorable
52
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
treatment, it provides a motivation for the witness to testify
so as to curry as much favor with the State as possible. The
witness is then more likely to prioritize the State’s
satisfaction over testifying truthfully, making this incentive
structure highly relevant to the witness’s credibility. The
jury is therefore “entitled to know of it” in order to properly
assess the veracity of the witness’s testimony. Giglio, 405
U.S. at 154.
Thus, considered together, the testimony at the
Petition II hearing that was found to be credible strongly
evidenced that Nakano’s testimony at Birano’s trial was
motivated by the possibility of a reward from the State.
Notwithstanding any express denials of an agreement, Breiner’s
testimony that there was an “understanding” that the State would
provide a youthful offender recommendation if Nakano were to
testify, viewed in light of and in conjunction with Judge
Simms’s testimony expressly stating that such an arrangement
existed, clearly indicated that an actual agreement existed
between Nakano and the State.37 The circuit court therefore
37
It is noted that the progression of events is consistent with the
existence of such an agreement between Nakano and the State. Nakano was
indicted and pleaded no contest to charges of robbery in the first degree,
kidnapping, and burglary in the first degree. Although Wada later testified
that she believed Nakano was “peripheral,” “barely involved in the incident,”
and simply a “young kid” who “was in the wrong place at the wrong time,” she
filed a motion seeking extended terms of imprisonment against Nakano,
including a life sentence for the kidnapping and robbery charges. No similar
(continued . . .)
53
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
clearly erred in its factual findings to the contrary. See
Jones, 79 Hawaii at 334, 902 P.2d at 969 (“A finding of fact is
clearly erroneous when, despite evidence to support the finding,
the appellate court is left with the definite and firm
conviction in reviewing the entire evidence that a mistake has
been committed.” (quoting Tachibana, 79 Hawaii at 231, 900 P.2d
at 1298)). Yet disclosure would have been required even if such
an agreement did not exist because an indication that a
witness’s testimony will be taken into account is also strongly
probative of the witness’s credibility, and the jury is entitled
to know of it. Bagley, 473 U.S. at 683. The testimony adduced
at the hearing on Petition II indisputably indicated that such a
representation was made to Nakano or his counsel.
The arrangement between Wada and Breiner was crucial
evidence relevant to Nakano’s credibility because it provided an
incentive for him to “slant” his testimony against Birano.
State v. Levell, 128 Hawaii 34, 40, 282 P.3d 576, 582 (2012)
(. . . continued)
motion was filed against Takara, who was also eligible for an extended term
but whom the State did not later call as a witness at Birano’s trial. Prior
to Birano’s trial, Nakano and Breiner met with Wada at the prosecutor’s
office. Nakano thereafter appeared at Birano’s trial and, following the
unrecorded in-chambers meeting, declined to assert his Fifth Amendment
privilege and testified for the State. Wada then stated at Nakano’s
sentencing hearing that he had provided “tremendous assistance” by testifying
against Birano, withdrew the motion for extended terms of imprisonment, and
recommended that Nakano instead be sentenced as a youthful offender.
54
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
(quoting Addison M. Bowman, Hawaii Rules of Evidence Manual §
609.1–[1][C] (2010–11 ed.)). Had the arrangement been
disclosed, Birano would have been afforded the opportunity to
explore this motivation and challenge the veracity of Nakano’s
testimony.38 State v. Tetu, 139 Hawaii 207, 219, 386 P.3d 844,
856 (2016). In the absence of this evidence, the jury did not
have “sufficient information from which to make an informed
appraisal” of Nakano’s credibility. Levell, 128 Hawaii at 40,
282 P.3d at 582; accord State v. Acacio, 140 Hawaii 92, 100-01,
398 P.3d 681, 689-90 (2017) (concluding that the defendant’s
right to confrontation was violated when he was prevented from
cross-examining a witness about evidence tending to show motive
or bias). The State was thus required under due process and the
Confrontation Clause to disclose this arrangement. Tetu, 139
38
It is of no consequence whether this arrangement existed at the
time of Nakano’s plea. Under HRPP Rule 16(e)(2) (2012),
If subsequent to compliance with these rules or orders
entered pursuant to these rules, a party discovers
additional material or information which would have been
subject to disclosure pursuant to this Rule 16, he shall
promptly notify the other party or his counsel of the
existence of such additional material or information, and
if the additional material or information is discovered
during trial, the court shall also be notified.
Thus, “HRPP Rule 16(e)(2) places a continuing duty to disclose on the
parties.” State v. Moriwaki, 71 Haw. 347, 354-55, 791 P.2d 392, 396 (1990).
Moreover, an arrangement arising at any time prior to Nakano’s testimony was
highly relevant to his credibility, and thus disclosure is required under
constitutional due process.
55
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Hawaii at 219, 386 P.3d at 856; California v. Trombetta, 467
U.S. 479, 485 (1984) (citing Giglio, 405 U.S. 150); 21A Am. Jur.
2d Criminal Law § 1171 (2018); State v. Baron, 80 Hawaii 107,
117, 905 P.2d 613, 623 (1995). And the circuit court erred as a
matter of law in determining that no disclosure was required.
b. The Court’s Sentencing Inclination
The uncontroverted evidence in the record also
demonstrates that the circuit court made representations
regarding its inclination to follow the State’s recommendation
at Nakano’s sentencing. Wada testified that, during the in-
chambers meeting between herself, Judge Simms, and Breiner,
Breiner asked Judge Simms whether Nakano’s refusal to testify
would preclude him from receiving the benefit of the Youthful
Offender Act at sentencing. In response, Wada testified, Judge
Simms stated, “Well, it’s going to depend on what the State
asks. If the State asks for it, then I’m inclined to follow
it.” Later in her testimony, Wada reiterated that Judge Simms
had indicated that she would defer to the State in determining
Nakano’s sentence when Judge Simms stated, “Well, I don’t know.
It depends on what the State asks.”39
39
The dissent questions the reliability of this testimony,
characterizing it as “indirect evidence” of Judge Simms’s statements that is
“arguably hearsay-within-hearsay.” Dissent at 15-16 n.2. As an initial
matter, Judge Simms’s words would not themselves be barred by the rule
against hearsay because, as statements of intention, they reflect her then-
(continued . . .)
56
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
This court considered the role of a court’s expressed
sentencing inclination in State v. Sanney, 141 Hawaii 14, 404
P.3d 280 (2017). Analogizing a sentencing inclination to a plea
agreement, we recognized that such a suggestion from the court
is a powerful motivating force in inducing a defendant to plead
guilty or no contest, and we held that a court therefore must
allow a defendant an opportunity to withdraw a plea if the court
elects not to follow a previously expressed sentencing
inclination. Id. at 22-23, 404 P.3d at 288-89.
A court’s expression of a conditional sentencing
inclination brings a similar inducement to bear on a prospective
witness. In Tassin v. Cain, for instance, the U.S. Court of
Appeals for the Fifth Circuit considered a trial court’s
statement to a wife codefendant in a capital murder case that
the court was inclined to sentence her to twenty to thirty
(. . . continued)
existing mental condition and are admissible pursuant to Hawaii Rules of
Evidence Rule 803(b)(3) (2002). See State v. Robinson, 79 Hawaii 468, 470,
903 P.2d 1289, 1291 (1995). Thus, Wada’s direct testimony based on personal
knowledge of Judge Simms’s expressed sentencing inclination was clearly
admissible under the state of mind hearsay exception. And, while Wada also
testified to Judge Simms’s sentencing inclination statements in the context
of recounting information she had previously related to Pennington, the
duplicative nature of this testimony renders it unnecessary to consider
whether it would be barred by the rule against hearsay.
Furthermore, neither recounting of Judge Simms’s statements by
Wada garnered an objection from the State. And the State did not question
Wada’s testimony upon redirect or introduce any contrary evidence on the
matter. Wada’s testimony on this point is therefore uncontroverted.
57
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
years. 517 F.3d 770, 774 (5th Cir. 2008). The trial court
indicated, however, that it would consider reducing the wife’s
sentence to fifteen years if she waived the marital privilege to
testify against her husband and to ten years if her testimony
was consistent with her previous statement to police. Id. The
Fifth Circuit held that it was immaterial that the court’s
statement of inclination did not amount to a “promise”; the
State was constitutionally required to reveal the arrangement to
the defendant and the jury. Id. at 779.
When, as here, a court states that it is inclined to
make its sentencing contingent on a prosecutor’s recommendation,
the inclination is no less a motivating force in inducing a
witness’s favorable testimony than the tiered sentencing
inclination given in Tassin.40 Nakano knew that, if the State
was satisfied with his testimony and recommended a more lenient
sentence under the Youthful Offender Act, he was virtually
certain to receive that sentence based on the court’s stated
inclination. Conversely, Nakano knew that, if the State was not
satisfied with his testimony or his decision not to testify, he
40
This court also held in Sanney that a trial court should not use
a sentencing inclination as a tool to bargain with a defendant. 141 Hawaii
at 21, 404 P.3d at 287. Additionally, the “imposition of a sentence . . . is
a core judicial function” that “cannot be delegated to nonjudicial officers.”
United States v. Johnson, 48 F.3d 806, 808–09 (4th Cir. 1995) (citing Ex
Parte United States, 242 U.S. 27, 41 (1916)). Thus, it would appear to be
improper for a court to express an inclination to follow whatever sentence
the prosecution recommends.
58
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
was very likely to be sentenced as an adult offender and receive
at least a twenty-year prison term. Indeed, the court’s stated
inclination to follow the State’s recommendation may have
suggested to Nakano that the court would grant the State’s
pending motion for extended term sentencing if the motion was
not withdrawn, giving Nakano the impression that he would be
subject to life imprisonment if he did not testify to the
State’s satisfaction.
The coercive effect of this carrot-and-stick
arrangement should not be understated. By expressing its
inclination to follow the prosecution’s sentencing
recommendation, the circuit court elevated and reinforced the
unwritten bargain between Nakano and the State, granting it a
status somewhat akin to a HRPP Rule 11(f)(1) plea agreement in
which the court has agreed to be bound.41 Further still, the
court’s inclination suggested a harsh forfeit not generally
41
HRPP Rule 11(f)(1) provides as follows:
(f) Plea agreement.
(1) In general. The prosecutor and counsel for the
defendant, or the defendant when acting pro se, may enter
into plea agreements that, upon the entering of a plea of
guilty or no contest to a charged offense or to an included
or related offense, the prosecutor will take certain
actions or adopt certain positions, including the dismissal
of other charges and the recommending or not opposing of
specific sentences or dispositions on the charge to which a
plea was entered. The court may participate in discussions
leading to such plea agreements and may agree to be bound
thereby.
59
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
present in a binding plea agreement--the certain imposition of
the indeterminate twenty-year prison term and the real
possibility of an extended term sentence if Nakano did not
cooperate and testify to the State’s satisfaction. Under the
circumstances, Nakano possessed a compelling incentive not only
to testify against Birano but also to testify so as to curry
favor with the State.
In light of the circuit court’s sentencing
inclination, which informed Nakano that the determination of his
eventual sentence had essentially been delegated to the State,
Nakano may have “consciously or unconsciously . . . slant[ed]”
or biased his testimony to complement the State’s theory of the
case. State v. Levell, 128 Hawaii 34, 40, 282 P.3d 576, 582
(2012). “The partiality of a witness is subject to exploration
at trial, and is ‘always relevant as discrediting the witness
and affecting the weight of his testimony.’” Davis v. Alaska,
415 U.S. 308, 316 (1974) (quoting 3A J. Wigmore, Evidence § 940,
p. 775 (Chadbourn rev. 1970)). The jury was thus “entitled to
know of” the court’s sentencing inclination, and disclosure was
required prior to Nakano testifying. Giglio v. United States,
405 U.S. 150, 155 (1972). The State plainly failed to fulfill
this constitutional obligation. The circuit court therefore
clearly erred as a matter of fact and law in concluding that
60
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
there was no impeachment evidence that was required to be
disclosed to Birano.
B. The Duty to Correct False Testimony
Although not necessary to our decision today, we note
that “[t]he most rudimentary of the access-to-evidence cases
impose upon the prosecution a constitutional obligation to
report to the defendant and to the trial court whenever
government witnesses lie under oath.” California v. Trombetta,
467 U.S. 479, 485 (1984). This principle “does not cease to
apply merely because the false testimony goes only to the
credibility of the witness.” Napue, 360 U.S. at 269. Further,
the good faith of the prosecutor in failing to correct false
testimony regarding impeachment material has no bearing on
whether a defendant received a fair trial as required by due
process:
It is of no consequence that the falsehood bore upon the
witness’ credibility rather than directly upon defendant’s
guilt. A lie is a lie, no matter what its subject, and, if
it is in any way relevant to the case, the district
attorney has the responsibility and duty to correct what he
[or she] knows to be false and elicit the truth. . . . That
the district attorney’s silence was not the result of guile
or a desire to prejudice matters little, for its impact was
the same, preventing, as it did, a trial that could in any
real sense be termed fair.
Id. at 269-70 (emphases added) (quoting People v. Savvides, 1
N.Y.2d 554, 557 (1956)). Thus, when the State’s witness denies
the presence of an ulterior motive or other evidence bearing
negatively on the witness’s credibility and the State is aware
61
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the denial is false, the prosecution has a constitutional duty
to correct the false testimony, and the failure to do so
violates due process irrespective of the prosecutor’s intent.
In denying Petition II, the circuit court found that
because there was no off-the-record plea agreement between the
State and Nakano, there was no need for the prosecution to
correct Nakano’s testimony at trial. As discussed supra, the
arrangement between Nakano and the State was required to be
disclosed even if it did not constitute a formal agreement. But
even in the absence of an arrangement, it would not obviate the
prosecution’s duty to correct Nakano’s testimony.
“[T]he crux” of a due process violation arising from a
prosecutor’s failure to correct false testimony is the
“deception” of the finder of fact and not whether any deal for
leniency actually existed. Tassin v. Cain, 517 F.3d 770, 778
(5th Cir. 2008). “A promise is unnecessary.” Id. The proper
focus of such an inquiry is therefore “the extent to which the
testimony misled the jury, not whether the promise was indeed a
promise.” LaCaze v. Warden La. Corr. Inst. for Women, 645 F.3d
728, 735 (5th Cir. 2011) (quoting Tassin, 517 F.3d at 778).
At Birano’s trial, Nakano testified not only that he
had no plea arrangement with the State, but also that he was
testifying simply “[t]o tell the truth.” Nakano indicated that
he had not pleaded no contest so that he “could get off easier.”
62
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
He denied that he “wanted to do well” in testifying in front of
the judge and prosecution and insisted he was not hoping that by
testifying favorably for the State he would obtain a more
lenient sentence. And although Nakano admitted when pressed on
cross-examination that he had initially asked the court for
youthful offender sentencing and was still hoping to obtain it,
he strongly indicated that the possibility that his testimony
would be accounted for in that determination played no part in
his decision to testify.
The credible testimony at the hearing on Petition II
indicated that these statements were very likely to mislead the
jury regarding material facts. As discussed supra, Breiner
testified that an “understanding” existed between him and Wada
in which Nakano’s testimony would be taken “into consideration”
with respect to the State’s sentencing recommendation, and Judge
Simms repeatedly stated that it was her understanding that an
actual quid-pro-quo agreement existed. Nakano’s testimony at
Birano’s trial that no agreement existed was therefore very
likely to give the jury an inaccurate understanding of material
facts. Further, even the testimony of Wada, who denied the
existence of an agreement, indicated that portions of Nakano’s
testimony were highly misleading because he was in fact
motivated by a desire to obtain a lighter sentence under the
63
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Youthful Offender Act--and not simply a moral obligation “to
tell the truth.”
Wada testified that, prior to trial, Breiner “kept
asking [her] for a deal.” She stated that Breiner had
“basically told [her] his client had no case, he confessed and
he implicated everybody, and the only chance he ha[d] is a
Youthful Offender sentencing.” Wada testified that, during the
off-the-record meeting in chambers, Breiner told Judge Simms in
her presence that Nakano was afraid to testify against Birano
but he was concerned that Nakano would not be considered a
candidate for youthful offender sentencing if he did not do so.
Breiner then inquired whether Judge Simms would still consider
a youthful offender sentence if Nakano changed his mind and
elected to testify despite his fear of Birano. Wada stated
that she was included in this conversation, that Judge Simms
asked her whether the State would be recommending a youthful
offender sentence after indicating the court would defer to her
judgment, and that she responded by saying she did not know yet
because they did not have a plea agreement and Nakano had not
yet testified for her.
On this record, a prosecutor would have good reason to
be aware that Nakano’s purported fear of Birano was overcome by
his desire to obtain a youthful offender sentence and avoid the
extended life term the State had requested. Consequently, a
64
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
prosecutor would have reason to know that Nakano’s claims that
he was testifying to tell the truth and that he was not hoping
his testimony would earn him a more lenient sentence were
likely to mislead the jury. Similarly, there was ample reason
to surmise that Nakano’s assertion that he had no desire to “do
well” in front of the judge and prosecution was likely untrue--
particularly in light of Judge Simms’s stated inclination to
follow the State’s recommendation at sentencing.
Although the jury was informed that Nakano could
receive an extended term sentence that included life
imprisonment, it had no knowledge that the State had a pending
motion requesting such an extended term or that the court had
indicated it was inclined to follow the prosecution’s
recommendation. Under the circumstances, Nakano’s testimony
that he was not expecting or hoping for any sentencing benefit
in exchange for his testimony was deceptive and gave the jury a
highly inaccurate impression as to Nakano’s “personal stake” in
Birano’s conviction. United States v. Bagley, 473 U.S. 667, 683
(1985).
Because we hold that the State’s failure to disclose
information material to Nakano’s credibility warrants a new
trial, we need not decide whether the failure to correct
Nakano’s testimony would justify setting aside Birano’s
convictions in its own right. We note, however, that a
65
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
prosecutor’s constitutional duty to correct testimony is
triggered even when a witness’s testimony is “at best
misleading.” United States v. Dvorin, 817 F.3d 438, 452 (5th
Cir.), cert. denied, 137 S. Ct. 140 (2016). Prosecutors should
therefore err on the side of caution in future cases when faced
with testimony of a government witness that they know may
mislead the jury as to some material fact.
C. The Errors Were Material and Not Harmless
“Violation of the constitutional right to confront
adverse witnesses is subject to the harmless beyond a reasonable
doubt standard.” State v. Balisbisana, 83 Hawaii 109, 113-14,
924 P.2d 1215, 1219-20 (1996) (citing State v. Corella, 79
Hawaii 255, 261, 900 P.2d 1322, 1328 (App. 1995)).
Additionally, the failure of the prosecution to disclose
impeachment evidence warrants a new trial if the evidence is
“material.”42 State v. Arnold, 66 Haw. 175, 179, 657 P.2d 1052,
1054 (1983) (citing Giglio v. United States, 405 U.S. 150, 154
(1972); Napue, 360 U.S. at 264). When the “reliability of a
given witness may well be determinative of guilt or innocence,”
42
Because materiality represents a higher standard than harmless
beyond a reasonable doubt, facts establishing materiality will necessarily
establish a harmful error. See Kyles v. Whitley, 514 U.S. 419, 435-36 (1995)
(“[O]nce a reviewing court . . . has found constitutional error [from
nondisclosure], there is no need for further harmless-error review.”). We
therefore analyze the issues together.
66
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the nondisclosure of evidence affecting that witness’s
credibility is material. Giglio, 405 U.S. at 154 (quoting
Napue, 360 U.S. at 269). Put another way, evidence is material
“if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different.” State v. Moriwaki, 71 Haw. 347,
356, 791 P.2d 392, 397 (1990) (quoting United States v. Bagley,
473 U.S. 667, 676 (1985)). Thus, the nondisclosure of
impeachment evidence bearing on Nakano’s credibility warrants
granting Birano a new trial if Nakano’s testimony was material
in the obtainment of Birano’s convictions.
To convict Birano of the robbery offense with which he
was charged, the State was required to prove beyond a reasonable
doubt that Birano “threaten[ed] the imminent use of force
against” Dumlao “with intent to compel acquiescence to the
taking of or escaping with the property.” See HRS § 708-
840(1)(b)(ii). Therefore, the State was required to prove that
Birano intended to take property from Dumlao through the threat
of force in order to convict Birano of robbery.
Birano’s burglary conviction, on the other hand, could
be sustained only if the State proved beyond a reasonable doubt
that Birano entered or remained in Dumlao’s apartment intending
to commit a crime against persons or property. See HRS § 708-
810(1). Although a claim of right is not an available defense
67
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
to robbery through the threat of force, State v. McMillen, 83
Hawaii 264, 265, 925 P.2d 1088, 1089 (1996), such a defense is
available to theft--the crime the State argued Birano intended
to commit when he entered Dumlao’s apartment, see HRS § 708-34
(2014). Thus, in order to convict Birano of burglary, the State
was required to prove that Birano entered or remained in
Dumlao’s apartment while intending to either take property from
Dumlao through the threat of force or take property to which he
had no claim of right. Additionally, the indictment against
Birano stated that one of the firearm offenses with which Birano
was charged--carrying, using, or threatening to use a firearm in
the commission of a separate felony--was based on Birano’s
carrying of a firearm during the commission of the burglary
offense. This charge was therefore dependent on the State
proving that the burglary occurred, and Birano could not be
convicted for this firearm offense if he was not also convicted
of the burglary.43
Birano testified that, two days prior to the incident
at Dumlao’s apartment, Dumlao stole $2,500 from him in a
43
Birano did not dispute that he was in possession of the illegal
firearm that formed the basis of the other charged firearm-related offenses,
and the disclosure failures are thus harmless beyond a reasonable doubt with
respect to those convictions. Additionally, the jury acquitted Birano of the
kidnapping charge, and we therefore need not consider the effect of the
nondisclosures in regard to this offense.
68
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
fraudulent drug transaction. Birano stated that he, Nakano, and
Takara went to Dumlao’s apartment on the day of the incident to
get back his property. Although Birano acknowledged that he had
a gun with him at the time, Birano testified that he carried it
only for self-defense because he had previously been kidnapped
and held at gunpoint and he did not know if Dumlao was armed.
Birano further testified that he did not point the gun at Dumlao
and that he put the gun away when he saw that Dumlao did not
himself have a gun. Birano stated that, upon being confronted
about the unfulfilled drug transaction, Dumlao voluntarily
invited Takara, Nakano, and him up to the apartment to retrieve
Birano’s property. Birano testified that he did not intend to
terrorize Dumlao, that he never threatened Dumlao with the gun,
and that he drew the gun again only when Dumlao refused to enter
after opening the door to the apartment because Birano feared
someone was waiting inside as part of a “setup.” And Birano
stated that he did not take anything from the apartment after
Dumlao ran to the balcony and exited down the side of the
building.
If the jury credited Birano’s testimony, it would not
have convicted Birano of the robbery and burglary offenses
because he did not have the requisite intent to take property
from Dumlao or from his apartment through the threat of force,
nor did he enter or remain in Dumlao’s apartment intending to
69
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
take property to which he had no claim of right. The State’s
case against Birano with respect to these charges therefore
turned on whether it offered evidence disproving Birano’s claim
that he intended only to get his property back and neither
threatened Dumlao with the gun nor intended to do so.
Birano’s account was corroborated by Poomaihealani,
who testified that Dumlao had told him that he had taken $2,000
from Birano in a fraudulent drug transaction and had falsely
claimed Birano had robbed him to divert police attention from
this exchange. Birano’s testimony was also consistent with the
surveillance video, which showed Dumlao walking casually up the
stairs and did not show a gun in Birano’s hands until just
before he entered the apartment. It was consistent with the
testimony of Dumlao’s neighbors Kobayashi and Cruz, who both
stated that, when they opened their doors to check on the
disturbance they had heard, they did not see a gun and Dumlao
assured them everything was alright. And it was in accord with
the investigating police officer’s testimony that numerous
valuables were in Dumlao’s apartment during the incident, yet
nothing appeared to have been taken. The State’s case was
therefore entirely dependent on the jury crediting the testimony
of the three witnesses who claimed Birano had threatened Dumlao
with the gun and demanded that he open his safe so that Birano
70
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
could take property to which he had no claim of entitlement:
Casil, Nakano, and Dumlao himself.
There is ample evidence in the record from which a
reasonable juror could doubt the veracity of Casil’s and
Dumlao’s accounts. As stated, Birano’s and Poomaihealani’s
testimonies suggested that Dumlao was a drug dealer and that he
had stolen money from Birano through a sham drug transaction and
was attempting to implicate Birano to allay suspicion. In
addition to Casil’s romantic relationship with Dumlao, she
testified that she was a crystal meth user and that Dumlao had
given her meth on previous occasions, which granted her multiple
incentives to back up Dumlao’s version of events. Casil also
testified that she could not recall whether she had used crystal
methamphetamine on the morning of the incident, that she could
not confirm at which part of Dumlao’s body Birano pointed the
gun, and that she ran away almost immediately when the incident
began.
Nakano, a confederate of Birano in the most serious of
the charged offenses who from the jury’s point of view had
nothing to gain by lying, provided compelling testimony
describing a key aspect of the State’s case against Birano--that
Birano had threatened Dumlao with a gun for the purpose of
taking property from him. Nakano’s credibility was therefore an
integral part of Birano’s convictions on the robbery and
71
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
burglary offenses. Indeed, Nakano’s status as a codefendant
allegedly testifying out of a moral obligation to tell the truth
likely lent particular weight to his testimony, cementing the
crucial details the State was required to prove in the mind of
the jury. Wada herself described the assistance Nakano rendered
to the State as “tremendous” during Nakano’s sentencing hearing.
By failing to disclose that Nakano possessed a
significant incentive to curry favor with the State and was thus
not actually disinterested in the outcome of the case, the State
withheld highly relevant evidence to which the jury was entitled
and thereby deprived Birano of a fair trial. The error was
therefore material and not harmless beyond a reasonable doubt,
and neither Birano’s robbery and burglary convictions nor the
related carrying of a firearm conviction may stand.44
V. CONCLUSION
Based on the foregoing, the ICA’s March 10, 2017
Judgment on Appeal and the circuit court’s September 2, 2015
Order Denying Petition To Vacate, Set Aside, Or Correct Judgment
Or To Release Petitioner From Custody, Filed On September 9,
2009 are vacated. The circuit court’s February 18, 2003
44
Although the State’s nondisclosure is harmless beyond a
reasonable doubt with respect to Birano’s four other convictions involving
his possession of firearm, see supra note 43, Birano’s convictions that are
herein vacated were an integral part of the sentencing of Birano to
indeterminate and extended terms for the firearm possession convictions.
Birano’s sentences for these firearm offenses must therefore be vacated with
resentencing to occur following disposition of the vacated convictions.
72
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Judgment of Guilty Conviction and Sentence is vacated with
respect to Birano’s convictions for violations of HRS § 134-6(a)
and (e), HRS § 708-840(1)(b)(ii), and HRS § 708-810(1)(c).
Birano’s sentences for his convictions for violations of HRS §
134-8(a) and HRS § 134-7(b) and (h) are also vacated, with
resentencing to occur following disposition of the vacated
convictions, and the case is remanded to the circuit court for
further proceedings consistent with this opinion.
Keith S. Shigetomi /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Stephen K. Tsushima
for respondent /s/ Michael D. Wilson
73