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Birano v. State

Supreme Court of Hawaii

August 31, 2018

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

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000841, S.P.P. NO. 09-1-0040, CR. NO. 01-1-1154)

          McKENNA, POLLACK, and WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM CIRCUIT JUDGE AYABE, IN PLACE OF RECKTENWALD, C.J., RECUSED, JOINS

          OPINION

          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 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.

         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(1)(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 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 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 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.

         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. 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 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 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 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 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 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 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 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 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 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 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 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 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.

         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- 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 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 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 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 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, 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 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.

         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 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: ...

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