NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-JUL-2026 07:56 AM Dkt. 58 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
CALVIN ELIZARES, Petitioner-Appellant, v. STATE OF HAWAI I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CPN-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Leonard and Hiraoka, JJ.) Petitioner-Appellant Calvin Elizares (Elizares) appeals
from the May 7, 2024 Findings of Fact, Conclusions of Law and
Order Denying Petition to Vacate, Set Aside, or Correct Judgment
or to Release Petitioner From Custody (Order Denying Rule 40
Petition) entered against him by the Circuit Court of the Second
Circuit (Circuit Court).1 At the conclusion of a jury trial,
Elizares was convicted of, inter alia, Attempted Murder in the
First Degree (Attempted Murder).2
1 The Honorable Peter T. Cahill presided. 2 HRS § 705-500 (1993) states:
§ 705-500 Criminal attempt. (1) A person is guilty of an attempt to commit a crime if the person: (a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as the person believes them to be; or (continued...) NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Although not properly identified as such, Elizares
appears to raise a single point of error on appeal, contending
that the Circuit Court erred in denying his April 29, 2023
Petition to Vacate, Set Aside, or Correct Judgment or to Release
Petitioner From Custody (Rule 40 Petition) because he received
ineffective assistance of counsel at trial.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve
Elizares's assertion of error as follows:
2 (...continued) (b) Intentionally engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the person's commission of the crime. (2) When causing a particular result is an element of the crime, a person is guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, the person intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result. (3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent.
HRS § 707-701 (1993) states:
§ 707-701 Murder in the first degree. (1) A person commits the offense of murder in the first degree if the person intentionally or knowingly causes the death of: (a) More than one person in the same or separate incident; (b) A peace officer, judge, or prosecutor arising out of the performance of official duties; (c) A person known by the defendant to be a witness in a criminal prosecution; (d) A person by a hired killer, in which event both the person hired and the person responsible for hiring the killer shall be punished under this section; or (e) A person while the defendant was imprisoned. (2) Murder in the first degree is a felony for which the defendant shall be sentenced to imprisonment as provided in section 706-656.
2 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Elizares argues that his trial counsel was ineffective
with respect to his defense to the Attempted Murder charge
because, in closing argument, trial counsel did not argue that
the State's evidence did not show that Elizares had the requisite
mens rea for Attempted Murder. Elizares relatedly argues that,
even though Elizares himself testified he "never even had a gun
. . ., Defense counsel should have argued that even though this
[testimony] is true, the State's evidence, even if believed by
the jury, did not show the requisite intent to kill."
To establish ineffective assistance of counsel in
Hawai i, a defendant must show "1) that there were specific
errors or omissions reflecting counsel's lack of skill, judgment,
or diligence" and "2) that such errors or omissions resulted in
either the withdrawal or substantial impairment of a potentially
meritorious defense." State v. Yuen, 154 Hawai i 434, 444, 555
P.3d 121, 131 (2024). To satisfy the second prong, the defendant
need only show a possible, rather than probable, impairment of a
potentially meritorious defense. Id. However, "Counsel's
assistance need not be errorless nor will it be judged
ineffective solely by hindsight." State v. Antone, 62 Haw. 346,
348, 615 P.2d 101, 104 (1980). "Defense counsel's tactical
decisions at trial generally will not be questioned by a
reviewing court." Id. at 352, 615 P.2d at 106; see also State v.
Adviento, 132 Hawai i 123, 150, 319 P.3d 1131, 1158 (2014)
(observing that, even where trial court has a duty to instruct
the jury on a potential defense, defense counsel has discretion
to determine whether to argue the defense during closing).
3 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
As recounted in the unchallenged findings of fact set
forth in the Order Denying Rule 40 Petition, the two complaining
witnesses testified, inter alia, that Elizares confronted them
with a hand gun and a shot gun, accused them of betraying him,
ordered them restrained, struck the female witness, and directed
someone to put them in the trunk of a car and take them out to
the pineapple fields. The female complaining witness testified,
inter alia, that Elizares pointed the weapons at them, told them
they were going to die, and this was their last day on earth,
prior to their being tied up with their mouths taped shut and put
in the trunk from which they later escaped. The male complaining
witness testified, inter alia, that Elizares "sort of" told him
he was going to die that night. After they were able to escape
from the trunk of the moving vehicle and the complaining
witnesses ran in different directions, Elizares found the male
and took him back to the shack where the incident began. They
did not catch the female.
Elizares testified at trial that Brian Wong (Wong) was
the one who was "ballistic" and "crazy" during the incident and
had been awake smoking crystal meth for days. He testified that
it was Wong who lifted a pistol, ordered the complaining
witnesses to be tied and taped, and struck the female. Elizares
stated that as Wong was about to drive away with the complaining
witnesses in the trunk, Elizares took his pistol away, emptied
it, placed it under the passenger, and did not know if Wong was
going to kill them or just trying to scare them.
Consistent with Elizares's testimony, trial counsel
argued that the evidence showed it was Wong who was responsible
4 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-JUL-2026 07:56 AM Dkt. 58 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
CALVIN ELIZARES, Petitioner-Appellant, v. STATE OF HAWAI I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CPN-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Leonard and Hiraoka, JJ.) Petitioner-Appellant Calvin Elizares (Elizares) appeals
from the May 7, 2024 Findings of Fact, Conclusions of Law and
Order Denying Petition to Vacate, Set Aside, or Correct Judgment
or to Release Petitioner From Custody (Order Denying Rule 40
Petition) entered against him by the Circuit Court of the Second
Circuit (Circuit Court).1 At the conclusion of a jury trial,
Elizares was convicted of, inter alia, Attempted Murder in the
First Degree (Attempted Murder).2
1 The Honorable Peter T. Cahill presided. 2 HRS § 705-500 (1993) states:
§ 705-500 Criminal attempt. (1) A person is guilty of an attempt to commit a crime if the person: (a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as the person believes them to be; or (continued...) NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Although not properly identified as such, Elizares
appears to raise a single point of error on appeal, contending
that the Circuit Court erred in denying his April 29, 2023
Petition to Vacate, Set Aside, or Correct Judgment or to Release
Petitioner From Custody (Rule 40 Petition) because he received
ineffective assistance of counsel at trial.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve
Elizares's assertion of error as follows:
2 (...continued) (b) Intentionally engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the person's commission of the crime. (2) When causing a particular result is an element of the crime, a person is guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, the person intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result. (3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent.
HRS § 707-701 (1993) states:
§ 707-701 Murder in the first degree. (1) A person commits the offense of murder in the first degree if the person intentionally or knowingly causes the death of: (a) More than one person in the same or separate incident; (b) A peace officer, judge, or prosecutor arising out of the performance of official duties; (c) A person known by the defendant to be a witness in a criminal prosecution; (d) A person by a hired killer, in which event both the person hired and the person responsible for hiring the killer shall be punished under this section; or (e) A person while the defendant was imprisoned. (2) Murder in the first degree is a felony for which the defendant shall be sentenced to imprisonment as provided in section 706-656.
2 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Elizares argues that his trial counsel was ineffective
with respect to his defense to the Attempted Murder charge
because, in closing argument, trial counsel did not argue that
the State's evidence did not show that Elizares had the requisite
mens rea for Attempted Murder. Elizares relatedly argues that,
even though Elizares himself testified he "never even had a gun
. . ., Defense counsel should have argued that even though this
[testimony] is true, the State's evidence, even if believed by
the jury, did not show the requisite intent to kill."
To establish ineffective assistance of counsel in
Hawai i, a defendant must show "1) that there were specific
errors or omissions reflecting counsel's lack of skill, judgment,
or diligence" and "2) that such errors or omissions resulted in
either the withdrawal or substantial impairment of a potentially
meritorious defense." State v. Yuen, 154 Hawai i 434, 444, 555
P.3d 121, 131 (2024). To satisfy the second prong, the defendant
need only show a possible, rather than probable, impairment of a
potentially meritorious defense. Id. However, "Counsel's
assistance need not be errorless nor will it be judged
ineffective solely by hindsight." State v. Antone, 62 Haw. 346,
348, 615 P.2d 101, 104 (1980). "Defense counsel's tactical
decisions at trial generally will not be questioned by a
reviewing court." Id. at 352, 615 P.2d at 106; see also State v.
Adviento, 132 Hawai i 123, 150, 319 P.3d 1131, 1158 (2014)
(observing that, even where trial court has a duty to instruct
the jury on a potential defense, defense counsel has discretion
to determine whether to argue the defense during closing).
3 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
As recounted in the unchallenged findings of fact set
forth in the Order Denying Rule 40 Petition, the two complaining
witnesses testified, inter alia, that Elizares confronted them
with a hand gun and a shot gun, accused them of betraying him,
ordered them restrained, struck the female witness, and directed
someone to put them in the trunk of a car and take them out to
the pineapple fields. The female complaining witness testified,
inter alia, that Elizares pointed the weapons at them, told them
they were going to die, and this was their last day on earth,
prior to their being tied up with their mouths taped shut and put
in the trunk from which they later escaped. The male complaining
witness testified, inter alia, that Elizares "sort of" told him
he was going to die that night. After they were able to escape
from the trunk of the moving vehicle and the complaining
witnesses ran in different directions, Elizares found the male
and took him back to the shack where the incident began. They
did not catch the female.
Elizares testified at trial that Brian Wong (Wong) was
the one who was "ballistic" and "crazy" during the incident and
had been awake smoking crystal meth for days. He testified that
it was Wong who lifted a pistol, ordered the complaining
witnesses to be tied and taped, and struck the female. Elizares
stated that as Wong was about to drive away with the complaining
witnesses in the trunk, Elizares took his pistol away, emptied
it, placed it under the passenger, and did not know if Wong was
going to kill them or just trying to scare them.
Consistent with Elizares's testimony, trial counsel
argued that the evidence showed it was Wong who was responsible
4 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
for the incident, that he was "a beast," and "the center of drug
trafficking" in the community. Counsel argued at length that
neither complaining witness should be believed due to the
female's recent drug use, other involvement with drugs, the
male's lies to the police, their motivations to protect Wong, and
attacked their credibility noting, inter alia, their problematic
backgrounds. The defense strategy was clearly to attack the
credibility of the other witnesses and to urge the jury to
believe Elizares's testimony. As Elizares testified that it was
Wong, not him, that pulled a gun, scolded the complaining
witnesses, struck one, ordered them bound and gagged and thrown
in the trunk to be taken out to the pineapple fields, it was
clearly a tactical decision not to then argue, even if you
believe the complaining witnesses instead, the evidence does not
demonstrate the requisite intent to kill them.
We conclude that trial counsel was not ineffective for
not making a contradictory argument that would have undermined
Elizares's main defense theory as well as his credibility. We
will not second guess counsel's strategic choice to present a
single, cohesive argument to the jury. Viewed as a whole,
counsel's closing argument was consistent with Elizares's
testimony and the overarching defense presented throughout the
trial. We cannot conclude that counsel rendered ineffective
assistance by declining to advance an argument premised on facts
the defense otherwise denied.
5 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
For these reasons, the Circuit Court's May 7, 2024
Order Denying Rule 40 Petition is affirmed.
DATED: Honolulu, Hawai i, July 23, 2026.
On the briefs: /s/ Karen T. Nakasone Chief Judge Steven Slavitt, for Petitioner-Appellant /s/ Katherine G. Leonard Associate Judge Gerald K. Enriques, Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka County of Maui, Associate Judge for Respondent-Appellee