State v. Moses
| Decision Date | 24 September 2003 |
| Docket Number | No. 23038.,23038. |
| Citation | 77 P.3d 940,102 Haw. 449 |
| Parties | STATE of Hawai'i, Petitioner-Plaintiff-Appellee, v. Peter MOSES, Respondent-Defendant-Appellant. |
| Court | Hawaii Supreme Court |
James M. Anderson, deputy prosecuting attorney, on the briefs, for the petitioner-plaintiff-appellee State of Hawai'i.
Deborah L. Kim, deputy public defender, on the briefs, for the respondent-defendant-appellant Peter Moses.
Petitioner-plaintiff-appellee State of Hawai'i [hereinafter, "the prosecution"] applied for a writ of certiorari to review the Intermediate Court of Appeals' (ICA's) published opinion in State v. Moses, No. 23038, ___ Hawai'i ___, 80 P.3d 1, 2002 WL 31375697 (Haw.App. Oct. 22, 2002), in which the ICA vacated the circuit court's judgment and remanded for a new trial. The ICA concluded that, during Moses's trial on nine counts, the circuit court abused its discretion in admitting into evidence a toxicology report showing that Moses had ingested cocaine. The ICA vacated the circuit court's judgment on Counts I through VII and remanded for a new trial; the ICA affirmed Moses's conviction on Count VIII (unauthorized entry into motor vehicle) because Moses conceded the charge (such that the failure to suppress the drug test evidence did not contribute to Moses's conviction). The circuit court dismissed Count IX (attempted unauthorized control of propelled vehicle): the jury announced that it was deadlocked on that count, and the circuit court granted the prosecution's motion for nolle prosequi.
The ICA held that Moses's toxicology report was a privileged physician-patient communication under Rule 504 of the Hawai'i Rules of Evidence (HRE)1 and was therefore inadmissible. The ICA held that admission of this evidence was not harmless error because the evidence went to Moses's credibility and state of mind. Furthermore, the ICA held that the record was inadequate to determine whether Moses waived the privilege by voluntarily disclosing his medical records to the prosecution. Therefore, the ICA vacated the judgment of the circuit court (with the exception of Count VIII, which Moses conceded) and remanded for a new trial.
In its application for a writ of certiorari, the prosecution contends that the ICA gravely erred in not holding that Moses had waived his physician-patient privilege. In support of its contention that Moses waived his privilege, the prosecution asks this court to take judicial notice of certain documents not in the circuit court record. In the alternative, the prosecution contends that the ICA erred in not remanding the case to the circuit court for an evidentiary hearing on whether Moses waived his privilege.
In his response in opposition to the prosecution's application, Moses argues that this court should not consider the prosecution's "privilege waiver" argument, inasmuch as the prosecution raised this issue for the first time on appeal.
We hold that the ICA gravely erred in failing to remand this case to the circuit court for an evidentiary hearing on whether Moses did, in fact, waive his physician-patient privilege. Although the prosecution did not raise the issue of waiver until oral argument before the ICA, the prosecution's failure to raise the argument is excusable based on the circuit court's determination that there was no privilege; in other words, the prosecution had no reason to argue to the circuit court that the privilege had been waived when the court determined that there was no privilege to be waived. Therefore, we vacate the opinion of the ICA insofar as it remanded this case for a new trial on Counts I through VII; we affirm the opinion of the ICA insofar as it vacated the judgment and sentence of the circuit court as to Counts I through VII and affirmed the judgment and sentence of the circuit court as to Count VIII; and we remand this case to the circuit court for an evidentiary hearing to determine whether Moses waived his privilege. If the circuit court concludes that Moses did not waive his privilege, then the circuit court should proceed to a new trial; if the court finds that Moses did waive his privilege, then the circuit court should enter a new judgment reinstating Moses's convictions.
On September 11, 1998, Moses broke into a parked car (a white Pontiac Grand Am) along the Makapu'u Lighthouse access road. Honolulu Police Department (HPD) Officer Earl Haskell was checking the area when a bicyclist notified him that someone was breaking into a car nearby. Officer Haskell drove his marked police car to where the break-in was occurring; he saw Moses in the parked car and called HPD Officers John Veneri and Laura Chong for backup. Officer Haskell got out of his car, at which point Moses approached Officer Haskell and told him that the white Grand Am belonged to Moses's family. Officer Haskell testified that Moses's eyes appeared glassy and red and that Moses was not blinking; he also testified that these are signs of drug ingestion (, "ice" or crystal methamphetamine ingestion). During his testimony, Moses denied that he was on drugs at the time of the break-in.
Officer Haskell took Moses's personal information, at which point Moses confessed to having broken into the car. When Officers Veneri and Chong arrived on the scene, Moses approached the two officers; Moses testified that he wanted to confess to the two officers outside the presence of Officer Haskell in the hope that his confession would convince Officers Veneri and Chong to let him go without arrest. Officer Chong grabbed Moses and made him sit down on a pillar in front of the Pontiac Grand Am.
At this point, the officers' and the Defendant's stories diverge.
Officer Veneri testified that Officer Haskell took out his handcuffs and that Moses "stood up as though he were anticipating to be handcuffed." Officer Veneri stated that Officer Haskell reached for Moses's arm and that Moses pulled away, at which point Officers Chong and Veneri both reached for Moses's arms. Officer Veneri testified that Moses then threw Officers Chong and Veneri to the side; Officer Veneri grabbed Moses by the hair to try to get him to the ground and tried to take Moses's legs out from underneath him. Moses kneed Officer Veneri in the groin and stomach area. Officer Veneri continued to pull on Moses's hair, and Moses fell forward; as he fell, Moses grabbed Officer Veneri around the waist and grabbed Officer Veneri's weapon. Officer Veneri testified that he tried to hold onto his weapon using his elbow, but Moses kneed him in the stomach again, and Moses, Officer Veneri, and Officer Haskell all fell backwards. Officer Veneri stated that his gun came out of its holster, and he next saw the gun in Moses's right hand.
Officer Haskell testified that he was knocked over and ended up leaning over Moses's legs; he pulled himself up and saw Moses turn around to face him. Officer Haskell testified that Moses looked at him and said, "Come on, you fucker, come on." Officer Haskell heard the gun go off, and he fell to the ground. Officer Haskell stated that Moses then pointed the gun at Officer Haskell's head and kept saying, "Come on, you fucker, come on."
Officer Veneri testified that he heard (but did not see) the first shot go off and saw Officer Haskell in a semi-prone position. Officer Veneri yelled, "Gun," at which point Moses turned around and pointed the gun at Officers Veneri and Chong. Moses ran across the street and crouched behind the driver's door of Officer Haskell's police car. Officer Veneri then took Officer Chong's gun and instructed her to take care of Officer Haskell. Officer Veneri yelled out at Moses to drop the gun, at which point Moses leaned out from behind the door, pointed the gun in Officer Veneri's direction, and fired a shot. Officer Veneri fired sixteen rounds at Moses and reloaded his gun. Moses pointed the gun at Officer Veneri again, and Officer Veneri fired at Moses; this happened two more times, at which point Officer Veneri ran out of ammunition again. Officer Veneri testified that Moses pointed the gun at him a total of five times. After Officer Veneri reloaded a second time, he observed Moses crawl out of the police car and "flop on the ground alongside the vehicle." Officer Veneri approached Moses and asked him where the gun was; Moses then reached under his body and pushed the gun out from underneath him.
Moses gave a different version of the events that occurred after Officer Chong had Moses sit on the pillar. Moses testified that, after sitting for a few moments, Officer Chong had Moses stand up again. Moses testified that Officer Haskell grabbed his wrist and bent it behind him. This was painful to Moses, and he pulled his hand away—Moses stated that he was not trying to hurt anyone. All three officers then tried to get Moses's hands behind his back, and Moses testified that Officer Veneri grabbed Moses's hair and pulled him down. Moses stated that he tried to brace his fall and in so doing "[went] by" Officer Veneri's waist. The three officers continued to try to push Moses down. Moses stated that he then saw a gun on the ground in front of his foot, after which he lost his balance and fell down. When he got up, he picked up the gun; Moses testified that he did not know why he picked up the gun. Officer Haskell tried to grab Moses's arms, at which point Moses still had the gun in his right hand. Officer Haskell had to step over the pillar to reach Moses and, in so doing, ended up behind and below Moses. Moses testified that he and Officer Haskell fell backwards, with Officer Haskell still holding Moses's hands. During the fall, Moses heard a shot go off; he testified that he did not know who pulled the trigger, but that the gun was in Moses's right hand during the fall and Officer Haskell had his hand on Moses's...
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