83 Hawai'i 229, State v. Pulse, 16726

• Decision Date: 17 September 1996
• Docket Number: No. 16726,16726
• Citation: 925 P.2d 797
• Parties: 83 Hawai'i 229 STATE of Hawai'i, Plaintiff-Appellee, v. Emil R. PULSE, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 797

925 P.2d 797

83 Hawai'i 229

STATE of Hawai'i, Plaintiff-Appellee, v. Emil R. PULSE, Defendant-Appellant.

No. 16726.

Supreme Court of Hawai'i.

Sept. 17, 1996.

As Amended Sept. 23, 1996.

As Amended on Partial Grant of

Reconsideration Oct. 14, 1996.

Richard T. Pafundi, on the briefs, Honolulu, for defendant-appellant.

Caroline M. Mee, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee.

MOON, C.J., KLEIN, LEVINSON and RAMIL, JJ., and TOWN, Circuit Judge in place of NAKAYAMA, J., recused.

KLEIN, Justice.

Defendant-Appellant Emil R. Pulse was convicted of violating Hawai'i Revised Statutes (HRS) §§ 134-6(a) and 134-6(b). ¹ For the reasons set forth below, we (1) reverse Pulse's HRS § 134-(6)(a) conviction and sentence and (2) vacate and remand Pulse's HRS § 134-6(b) conviction and sentence for proceedings consistent with this opinion.

I. BACKGROUND

On February 27, 1991, a complaint was filed in the circuit court charging Pulse with one count of violating HRS § 134-6(a), one count of violating HRS § 134-6(b), and two counts of terroristic threatening, in violation of HRS § 707-716(1)(d) (1993). ² The circuit court action was assigned criminal number 91-0467. Count I of the complaint charged:

On or about the 14th day of February, 1991, in the City and County of Honolulu, State of [Hawai'i], EMIL R. PULSE did knowingly possess or intentionally use or threaten to use a firearm while engaged in the commission of a felony, whether the firearm was loaded or not, and whether operable or not, thereby committing the offense of Possession, Use or Threat to Use a Firearm in the Commission of a Felony, in violation of Section 134-6(a) and (d) of the [Hawai'i] Revised Statutes.

Count II of the complaint charged:

On or about the 14th day of February, 1991, in the City and County of Honolulu, State of [Hawai'i], EMIL R. PULSE did carry or possess a loaded or unloaded pistol or revolver without a license issued as provided in Section 134-9 of the [Hawai'i] Revised Statutes and did fail to confine said pistol or revolver as required under Section 134-6(b) of the [Hawai'i] Revised Statutes, thereby committing the offense of Place to Keep Loaded Firearm or Pistol or Revolver, a Class B felony, in violation of Section 134-6(b) and (d) of the [Hawai'i] Revised Statutes.

In addition, both of the terroristic threatening counts charged Pulse with "the use of a dangerous instrument, to wit, a firearm." ³

The incident that gave rise to the charges took place at Keehi Lagoon Harbor. Pulse and his girlfriend, Hai Thi Nguyen (also known as Sandy), lived on a boat that was located on the 600 pier, and an acquaintance of theirs, Steve Cartagena, lived on a boat on the 700 pier. According to the prosecution's theory of the case, after an argument between Pulse and Sandy on the night of February 13, 1991, Sandy had gone to the boat where Cartagena lived. Then, shortly after midnight on February 14, 1991, Pulse boarded Cartagena's boat with a loaded revolver and demanded to see Sandy. Pulse shoved the revolver into Cartagena's abdominal region and threatened to shoot both Cartagena and Sandy. After an exchange of words, Pulse returned to his boat, where he was later arrested.

On April 15, 1991, Pulse filed a motion to suppress evidence obtained by the police when they boarded his boat, arrested him, and seized a gun located therein. On June 18 and 19, 1991, the circuit court conducted a hearing on Pulse's motion to suppress.

Honolulu Police Department (HPD) Officer Timothy Mariani was the sole witness called by the prosecution. He testified that on February 14, 1991, after receiving a call from Harbor Patrol regarding an incident involving a firearm at Keehi Lagoon Harbor, he proceeded to the harbor. When he arrived, he met with Officer Keith Becker of the Harbor Patrol who informed him that one male (Pulse) had threatened another male (Cartagena) with a firearm and that the suspect was on a boat in slip number 618. The boat located in that slip was registered to Pulse. Officer Mariani walked down the finger pier next to the boat and, with the aid of a flashlight, looked into the cabin. He observed Pulse lying down on a mattress, asleep, and what appeared to be the butt of a handgun next to him. Officer Mariani had "started to point [the handgun] out" to HPD Officer William Lurbe and Officer Becker, who were behind him on the finger pier, when he saw Pulse move. Because he was afraid that Pulse would awake, in order to protect the safety of everyone in the vicinity, he and some of the other officers boarded the boat and seized the handgun. According to Officer Mariani, they did not wake Pulse until after the handgun had been seized. Pulse was then wakened and escorted off of the boat.

After Officer Mariani completed his testimony, Pulse called several of the other officers who had been involved to testify. Officer Lurbe testified that the finger pier was "[m]aybe 30 feet, 25, 30 feet" long and that the boat was longer than the finger pier. Prior to boarding the boat, Officer Lurbe never saw anything inside of the boat. He testified, however, that, while Officer Mariani was standing on the far end of the finger pier, Officer Mariani stated that he could see a male and a handgun inside the cabin. He further testified that he and Officer Mariani boarded the boat and proceeded to the doorway of the cabin, that Officer Mariani recovered a handgun from the "bed area where [Pulse] was sleeping," and that Pulse did not awake at that time.

Pulse then called Hawai'i State Marine Patrol officer Terry Lyman Gaeta, who testified that she had observed Pulse go onto a boat on the 700 pier and then stagger back towards the 600 pier. She saw Pulse carrying what appeared to be a beer can and did not see anything that appeared to be a weapon. When the HPD officers arrived later, she accompanied them to Pulse's boat. She testified that the length of the finger pier was "[m]aybe about 20, 25 feet at most, maybe a little bit less." She did not walk onto the finger pier but stayed on the main pier near the bow of the boat. While there, she saw the HPD officers standing on the finger pier, shining a flashlight into the boat and looking inside. She also heard one of the officers say that he saw a man who appeared to be sleeping on board and that he saw a gun.

Officer Becker testified that he met up with the HPD officers on the night in question and walked onto the finger pier next to Pulse's boat. While on the finger pier, Officer Becker did not see the handgun, but he did see it after he boarded the boat and was standing on the deck looking into the cabin.

Pulse then sought to have Earl Aku, an investigator from the Public Defender's Office, testify, and the following exchange took place:

THE COURT: [Defense Counsel], your offer of proof with respect to this witness.

[Defense Counsel]: Yes, Your Honor. In light of yesterday's testimony, I was very concerned regarding the evidence that came out. Therefore, at 7:30 this morning, my investigator and myself went out to the scene and took photographs. I think it is crucial for the court to have an opportunity to view these photographs and the scene. The boat is at the same slip and at the same location it was on February 14th, 1991. I think it would help or assist the court in its determination as to whether or not there was actually justification to this warrantless search. And therefore, I have brought my investigator to not only describe, through his testimony, how the pier looks and the finger pier looks out but, also, photographs reflecting the finger pier, the pier, and the vessel itself.

THE COURT: When you say justification for the warrantless entry, what are you referring to? The ability to see the handgun?

[Defense Counsel]: Yes, Your Honor. Yes.

THE COURT: Okay. [Prosecutor]?

[Prosecutor]: Your Honor, the State does object. [Defense Counsel] tells us it's the same as that early morning. But we have had four people testify as to what they saw that particular morning. And certainly the investigator from the Public Defender's Office is not able to tell the court more than the four people who were there on the morning in question. And we don't know if there are any changes. I mean [Defense Counsel] has said that there are not. But he wasn't there that morning. So we do object to the pictures, Your Honor.

[Defense Counsel]: Your Honor, I didn't mean to make any representations that there were not any changes. If there is a further foundational requirement regarding whether or not the photos accurately reflect the scene on February 14th, 1991, my client may be able to lay the proper foundation. So any objections regarding that, I would respectfully submit, is premature at this time.

THE COURT: Okay. Well, while the court finds that it may be helpful, the court would like to just go with the testimony of the witnesses on that night in question. So the court's not going to take additional testimony concerning the photographs or investigation done this morning.

[Defense Counsel]: Your Honor, can I have a basis on the ruling for refusal to allow this type of evidence. My investigator can describe specifically the length of the finger pier in question at the time. And that is crucial as to whether or not the officer was actually capable of viewing inside the cabin.

THE COURT: Well, the reason for the ruling is this. We have sufficient testimony or there's been a number of witnesses concerning that issue. And the court finds that there's sufficient evidence for the court to make a ruling based on that information.

Pulse then took the stand himself. He testified that he was the owner of the sailboat that was located at slip 618 on February 14, 1991, and that he lived on the sailboat at that time. Pulse testified as follows regarding the length of the finger pier: "Approximate length, I guess it would only be around 12 feet." Pulse then identified and authenticated...