NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. CAAP-21-0000665

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"Not for Publication" is now added.

Electronically Filed

Intermediate Court of Appeals

CAAP-21-0000665

31-JUL-2024

03:29 PM

Dkt. 77 AMSDO
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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.
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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 
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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). 
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(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 
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"[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-11-0000658, 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 
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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 
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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 nonproduction, 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:

Kai Lawrence,

for Petitioner-Appellant.

Donn Fudo, 

Deputy Prosecuting Attorney,

City and County of Honolulu,

for Respondent-Appellee.

/s/ Katherine G. Leonard

Acting Chief Judge 

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Kimberly T. Guidry 

Associate Judge