NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 31-JUL-2024 03:29 PM Dkt. 77 AMSDO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
CRAIGE K. MAKEKAU, Petitioner-Appellant, v. STATE OF HAWAI‘I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (1PR161000031; 1PC041001801)
AMENDED1 SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Guidry, JJ.)
Petitioner-Appellant Craige K. Makekau (Makekau)
appeals from the Findings of Fact (FOF), Conclusions of Law
(COL) and Order Denying Petitioner's Hawaiʻi Rules of Penal
Procedure (HRPP) Rule 40 Petition for Post-Conviction Relief,
entered on October 1, 2021 (Order Denying Petition), and Order
Regarding Petition to Vacate, Set Aside, or Correct Judgment or
to Release Petitioner for [sic] Custody Filed December 7, 2016,
1 The July 31, 2024 Summary Disposition Order (docket 75) header, "Not for Publication" is now added. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
entered on March 4, 2019, (Order Regarding Petition), in the
Circuit Court of the First Circuit (circuit court).2
In 2005, Makekau was convicted of sexually assaulting
a minor (the CW). Makekau appealed, and this court affirmed.
State v. Makekau, Nos. 27622 & 27744, 2007 WL 5210472 (Haw. App.
Dec. 31, 2007) (mem. op.). On December 7, 2016, Makekau filed a
HRPP Rule 40 Petition for Post-Conviction Relief (Rule 40
Petition). Makekau alleged that his trial counsel was
ineffective by: (1) not presenting evidence of bias and motive
of the CW to fabricate the accusations against Makekau; (2) not
objecting to expert witness testimony of Dr. Victoria Schneider
(Dr. Schneider), who interviewed the CW, which unfairly
bolstered the CW's credibility; (3) failing to call a rebuttal
expert witness to counter Dr. Schneider's testimony; and (4)
failing to request a jury instruction that a rape charge is
easily made but difficult to disprove. Makekau also alleged
that appellate counsel was ineffective for not raising
ineffectiveness of trial counsel.
The circuit court found only one colorable claim for
relief: that trial counsel was ineffective for not presenting
evidence of bias and motive of the CW to fabricate the
accusations against Makekau. Makekau contended that, after he
2 The Honorable Shirley M. Kawamura presided.
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
ended an eleven-year relationship with the CW's mother, the CW's
mother harassed him and struck him with her car in December 2003
(December 2003 incident), requiring him to seek emergency
medical treatment. Makekau alleged that when he refused to
assure the CW's mother that he did not, or would not, call the
police to report the December 2003 incident, the CW's mother
threatened to have the CW say that Makekau molested the CW.
Makekau claims he told his trial counsel about the
December 2003 incident, and that his trial counsel refused to
present the incident as part of his defense because it was only
after Makekau was arrested for the sexual assault charges that
Makekau's mother called the prosecutor's office to inquire about
pressing charges over the incident.
The circuit court appointed counsel to represent
Makekau, conducted a hearing, and denied Makekau's Rule 40
Petition. The circuit court found that trial counsel was not
informed of the December 2003 incident.
Makekau raises six points of error on appeal,
contending that: (1) FOF 20, 24, 25, 28-37, 41-50 of the Order
Denying Petition are clearly erroneous; (2) COL 11-14 of the
Order Denying Petition are wrong because there is no fact or
testimony in the record to support these conclusions; (3) the
circuit court erred in concluding that the claim that trial
counsel was ineffective for not calling an expert witness to
3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
rebut Dr. Schneider's testimony was meritless; (4) the circuit
court erred in concluding that the claim that Makekau's
appellate counsel was ineffective for not raising the
ineffectiveness of trial counsel was meritless; (5) the circuit
court erred by denying Makekau court-appointed counsel to assist
him in preparing his HRPP Rule 40 Petition; and (6) the circuit
court erred when trial counsel referred to "other notes" while
testifying at the hearing on the Petition, and the circuit court
did not order that the "other notes" be provided to Makekau or
grant him a new hearing because the "other notes" were not
provided to Makekau.
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 by the parties, we
resolve Makekau's points of error as follows.
We review orders denying HRPP Rule 40 petitions de
novo. Lewi v. State, 145 Hawaiʻi 333, 345, 452 P.3d 330, 342
(2019). We review a "circuit court's conclusions of law de
novo, and findings of fact for clear error." De La Garza v.
State, 129 Hawaiʻi 429, 438, 302 P.3d 697, 706 (2013) (cleaned
up). We "may recognize plain error when the error committed
affects substantial rights of the defendant." State v.
Metcalfe, 129 Hawaiʻi 206, 222, 297 P.3d 1062, 1078 (2013)
(cleaned up).
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
(1) "[A]n appellate court will not pass upon issues
dependent upon the credibility of witnesses and the weight of
the evidence; this is the province of the trier of fact."
State v. Jenkins, 93 Hawaiʻi 87, 101, 997 P.2d 13, 27 (2000)
(cleaned up). Makekau fails to establish that the challenged
FOFs are clearly erroneous.
(2) In COL 11-14, the circuit court concluded that
Makekau had not established that trial counsel was ineffective
for failing to present the December 2003 incident as part of
Makekau's defense. The circuit court concluded that trial
counsel was not informed of the December 2003 incident, and of
the alleged witnesses to the incident. Trial counsel testified
that he first learned of the December 2003 incident when he read
Makekau's Rule 40 Petition and that, had he been informed of the
December 2003 incident, he would have presented it for the
defense. The circuit court found trial counsel credible with
regard to his testimony that he was not informed of the December
2003 incident, that Makekau's brother and his brother's
girlfriend witnessed the December 2003 incident, and that there
was a hospital record of Makekau's visit to the emergency room
on the date of the incident. Makekau's challenge to COL 11-14
lacks merit.
(3) In State v. Richie, 88 Hawaiʻi 19, 39, 960 P.2d
1227, 1247 (1998), the Hawaiʻi Supreme Court held that
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 31-JUL-2024 03:29 PM Dkt. 77 AMSDO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
CRAIGE K. MAKEKAU, Petitioner-Appellant, v. STATE OF HAWAI‘I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (1PR161000031; 1PC041001801)
AMENDED1 SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Guidry, JJ.)
Petitioner-Appellant Craige K. Makekau (Makekau)
appeals from the Findings of Fact (FOF), Conclusions of Law
(COL) and Order Denying Petitioner's Hawaiʻi Rules of Penal
Procedure (HRPP) Rule 40 Petition for Post-Conviction Relief,
entered on October 1, 2021 (Order Denying Petition), and Order
Regarding Petition to Vacate, Set Aside, or Correct Judgment or
to Release Petitioner for [sic] Custody Filed December 7, 2016,
1 The July 31, 2024 Summary Disposition Order (docket 75) header, "Not for Publication" is now added. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
entered on March 4, 2019, (Order Regarding Petition), in the
Circuit Court of the First Circuit (circuit court).2
In 2005, Makekau was convicted of sexually assaulting
a minor (the CW). Makekau appealed, and this court affirmed.
State v. Makekau, Nos. 27622 & 27744, 2007 WL 5210472 (Haw. App.
Dec. 31, 2007) (mem. op.). On December 7, 2016, Makekau filed a
HRPP Rule 40 Petition for Post-Conviction Relief (Rule 40
Petition). Makekau alleged that his trial counsel was
ineffective by: (1) not presenting evidence of bias and motive
of the CW to fabricate the accusations against Makekau; (2) not
objecting to expert witness testimony of Dr. Victoria Schneider
(Dr. Schneider), who interviewed the CW, which unfairly
bolstered the CW's credibility; (3) failing to call a rebuttal
expert witness to counter Dr. Schneider's testimony; and (4)
failing to request a jury instruction that a rape charge is
easily made but difficult to disprove. Makekau also alleged
that appellate counsel was ineffective for not raising
ineffectiveness of trial counsel.
The circuit court found only one colorable claim for
relief: that trial counsel was ineffective for not presenting
evidence of bias and motive of the CW to fabricate the
accusations against Makekau. Makekau contended that, after he
2 The Honorable Shirley M. Kawamura presided.
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
ended an eleven-year relationship with the CW's mother, the CW's
mother harassed him and struck him with her car in December 2003
(December 2003 incident), requiring him to seek emergency
medical treatment. Makekau alleged that when he refused to
assure the CW's mother that he did not, or would not, call the
police to report the December 2003 incident, the CW's mother
threatened to have the CW say that Makekau molested the CW.
Makekau claims he told his trial counsel about the
December 2003 incident, and that his trial counsel refused to
present the incident as part of his defense because it was only
after Makekau was arrested for the sexual assault charges that
Makekau's mother called the prosecutor's office to inquire about
pressing charges over the incident.
The circuit court appointed counsel to represent
Makekau, conducted a hearing, and denied Makekau's Rule 40
Petition. The circuit court found that trial counsel was not
informed of the December 2003 incident.
Makekau raises six points of error on appeal,
contending that: (1) FOF 20, 24, 25, 28-37, 41-50 of the Order
Denying Petition are clearly erroneous; (2) COL 11-14 of the
Order Denying Petition are wrong because there is no fact or
testimony in the record to support these conclusions; (3) the
circuit court erred in concluding that the claim that trial
counsel was ineffective for not calling an expert witness to
3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
rebut Dr. Schneider's testimony was meritless; (4) the circuit
court erred in concluding that the claim that Makekau's
appellate counsel was ineffective for not raising the
ineffectiveness of trial counsel was meritless; (5) the circuit
court erred by denying Makekau court-appointed counsel to assist
him in preparing his HRPP Rule 40 Petition; and (6) the circuit
court erred when trial counsel referred to "other notes" while
testifying at the hearing on the Petition, and the circuit court
did not order that the "other notes" be provided to Makekau or
grant him a new hearing because the "other notes" were not
provided to Makekau.
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 by the parties, we
resolve Makekau's points of error as follows.
We review orders denying HRPP Rule 40 petitions de
novo. Lewi v. State, 145 Hawaiʻi 333, 345, 452 P.3d 330, 342
(2019). We review a "circuit court's conclusions of law de
novo, and findings of fact for clear error." De La Garza v.
State, 129 Hawaiʻi 429, 438, 302 P.3d 697, 706 (2013) (cleaned
up). We "may recognize plain error when the error committed
affects substantial rights of the defendant." State v.
Metcalfe, 129 Hawaiʻi 206, 222, 297 P.3d 1062, 1078 (2013)
(cleaned up).
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
(1) "[A]n appellate court will not pass upon issues
dependent upon the credibility of witnesses and the weight of
the evidence; this is the province of the trier of fact."
State v. Jenkins, 93 Hawaiʻi 87, 101, 997 P.2d 13, 27 (2000)
(cleaned up). Makekau fails to establish that the challenged
FOFs are clearly erroneous.
(2) In COL 11-14, the circuit court concluded that
Makekau had not established that trial counsel was ineffective
for failing to present the December 2003 incident as part of
Makekau's defense. The circuit court concluded that trial
counsel was not informed of the December 2003 incident, and of
the alleged witnesses to the incident. Trial counsel testified
that he first learned of the December 2003 incident when he read
Makekau's Rule 40 Petition and that, had he been informed of the
December 2003 incident, he would have presented it for the
defense. The circuit court found trial counsel credible with
regard to his testimony that he was not informed of the December
2003 incident, that Makekau's brother and his brother's
girlfriend witnessed the December 2003 incident, and that there
was a hospital record of Makekau's visit to the emergency room
on the date of the incident. Makekau's challenge to COL 11-14
lacks merit.
(3) In State v. Richie, 88 Hawaiʻi 19, 39, 960 P.2d
1227, 1247 (1998), the Hawaiʻi Supreme Court held that
5 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
"[i]neffective assistance of counsel claims based on the failure
to obtain witnesses must be supported by affidavits or sworn
statements describing the testimony of the proffered witnesses."
(Citations omitted). The circuit court properly applied Richie
to this case. Because Makekau did not submit an affidavit or
sworn statement describing the testimony of the rebuttal expert
witness that he contends his trial counsel should have called,
this point of error lacks merit. See State v. Jackson, No.
CAAP-XX-XXXXXXX, 2013 WL 1148393 (Haw. App. Mar. 19, 2013)
(SDO).
(4) Because Makekau did not meet his burden to
establish that trial counsel was ineffective, Makekau's claim
that appellate counsel was ineffective, for failure to raise the
ineffectiveness of trial counsel, also lacks merit.
(5) Makekau contends that HRPP Rule 40(i) provides for
court-appointed counsel to represent indigent petitioners
seeking post-conviction relief. HRPP Rule 40(i) specifically
provides that "no such referral [to the public defender for
representation] need be made if the petitioner's claim is
patently frivolous and without trace of support either in the
record or from other evidence submitted by the petitioner."
Makekau did not present a colorable claim for relief until he
submitted sworn statements of witnesses on August 21, 2017.
Richie, 88 Hawaiʻi at 39, 960 P.2d at 1247. Therefore, the
6 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
circuit court did not err when it denied his request for counsel
on July 18, 2017. The circuit court promptly appointed counsel
to represent Makekau upon its determination that Makekau had
presented a viable claim.
(6) Makekau admits that no objection was made to the
circuit court when trial counsel referred to "other notes" while
testifying at the hearing on the Rule 40 Petition, and that the
"other notes" are not part of the record.
"As a general rule, if a party does not raise an
argument at trial, that argument will be deemed to have been
waived on appeal; this rule applies in both criminal and civil
cases." State v. Moses, 102 Hawaiʻi 449, 456, 77 P.3d 940, 947
(2003) (citations omitted). We find Makekau waived this point
of error on appeal.
Even if we were to address Makekau's arguments on the
merits, it is not clear from the record that the "other notes"
exist, and we find that the circuit court's failure to sua
sponte order a new hearing regarding the "other notes" is not
plain error. During the hearing on the Rule 40 Petition, trial
counsel first used the term "other notes" in response to
questions from the deputy prosecuting attorney about why he
amended his witness list. Before that, trial counsel read for
the circuit court his eight pages of handwritten case notes,
which the parties had stipulated into evidence as Respondent's
7 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Exhibit 19. It is unclear whether trial counsel's use of the
term "other notes" refers to notes that were not part of
Respondent's Exhibit 19, or simply another page of notes
included within Respondent's Exhibit 19. And assuming arguendo
there exist "other notes" that are not included as part of
Respondent's Exhibit 19, the failure of the circuit court to sua
sponte order its production, or a new hearing regarding its non-
production, does not constitute plain error.
For the foregoing reasons, we affirm the circuit
court's Findings of Fact, Conclusions of Law, and Order Denying
Petitioner's Hawaiʻi Rules of Penal Procedure Rule 40 Petition
for Post-Conviction Relief, entered on October 1, 2021, and the
Order Regarding Petition to Vacate, Set Aside, or Correct
Judgment or to Release Petitioner for [sic] Custody Filed
December 7, 2016, entered on March 4, 2019.
DATED: Honolulu, Hawaiʻi, July 31, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Kai Lawrence, for Petitioner-Appellant. /s/ Clyde J. Wadsworth Associate Judge Donn Fudo, Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry City and County of Honolulu, Associate Judge for Respondent-Appellee.