Makekau v. State

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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"Not for Publication" is now added.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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.

8