Birano v. State.

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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
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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.

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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 . . .)

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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. . . .

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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.”

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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.

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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.

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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.

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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

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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.

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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

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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.

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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.”

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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.

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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

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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

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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

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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

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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.

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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.

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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).

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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

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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

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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 . . .)

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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.

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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.

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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.

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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).

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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.

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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”

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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

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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 . . . .

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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

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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.

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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 . . .)

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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.”

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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).

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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

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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.”).

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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 . . .)

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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).

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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

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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,

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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 . . .)

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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”).

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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

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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.

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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

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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

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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.”).

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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

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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

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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 . . .)

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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.

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(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.

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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 . . .)

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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.

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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.

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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.

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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

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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

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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.”

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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

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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

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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

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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.

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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

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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.

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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

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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

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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

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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.

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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

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