State v. Moses

• Decision Date: 22 October 2002
• Docket Number: No. 23038.,23038.
• Citation: 103 Haw. 111,80 P.3d 1
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Peter MOSES, Defendant-Appellant.
• Court: Hawaii Court of Appeals

80 P.3d 1

103 Haw. 111

STATE of Hawai'i, Plaintiff-Appellee, v. Peter MOSES, Defendant-Appellant.

No. 23038.

Intermediate Court of Appeals of Hawai'i.

October 22, 2002.

Reconsideration Denied November 21, 2002.

Certiorari Granted November 29, 2002.

Susan L. Arnett (Deborah L. Kim, on the brief), Deputy Public Defenders, for defendant-appellant.

James M. Anderson (Caroline M. Mee, on the brief), Deputy Prosecuting Attorneys, City and County of Honolulu, for plaintiff-appellee.

BURNS, C.J., WATANABE and FOLEY, JJ.

Opinion of the Court by FOLEY, J.

On September 16, 1998, Defendant-Appellant Peter Moses (Moses) was charged by indictment with the following offenses:

Count I, Attempted Murder in the First Degree of Earl Haskell in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1993),¹ 707-701(1)(b) (1993),² and 706-656 (1993 & Supp.2001)³;

Count II, Attempted Murder in the First Degree of John Veneri, Sr. in violation of HRS §§ 705-500 (1993), 707-701(1)(b) (1993), and 706-656 (1993 & Supp.2001);

Count III, Escape in the First Degree in violation of HRS § 710-1020 (1993)⁴;

Count IV, Theft in the First Degree in violation of HRS § 708-830.5(1)(b) (1993)⁵;

Count V, Place to Keep Pistol or Revolver in violation of HRS § 134-6(c) and (e) (Supp.1998)⁶; Counts VI and VII, Terroristic Threatening in the First Degree in violation of HRS § 707-716(1)(d)(1993)⁷;

Count VIII, Unauthorized Entry into Motor Vehicle in violation of HRS § 708-836.5 (Supp.2001)⁸; and

Count IX, Attempted Unauthorized Control of Propelled Vehicle in violation of HRS §§ 705-500 (1993) and 708-836 (Supp.1998).⁹

Pursuant to a jury trial before the Honorable Marie Milks in the Circuit Court of the First Circuit (circuit court), Moses was convicted of Count I as charged; convicted of the included offense of Attempted Assault in the First Degree in violation of HRS §§ 705-500 (1993) and 707-710 (1993)¹⁰ as to Count II; and convicted as to Counts III-VIII as charged. Judgment was filed on December 8, 1999.

Moses contends the circuit court erred by: (1) failing to instruct the jury regarding his theory of defense that the State failed to prove beyond a reasonable doubt the shootings were the result of a voluntary act; (2) admitting evidence of the drug test results, which detected trace amounts of cocaine metabolite, where the negligible probative value was substantially outweighed by the highly prejudicial impact of cocaine use; (3) instructing the jurors that they could consider "evidence of self-induced intoxication" to prove Moses acted with the requisite state of mind where there was insufficient evidence to conclude that Moses was actually under the influence of cocaine at the time of the shooting; (4) excluding testimony by Moses' firearm expert refuting the State's theory that Moses acted with the requisite intent to kill; (5) allowing Moses to be convicted of theft of a firearm (Count IV) and place to keep firearm (Count V) since the charges merged under HRS § 701-109; (6) imposing mandatory terms of incarceration under HRS § 706-660.1(3) in the absence of proof that Moses recklessly disregarded a substantial risk that the gun he possessed was a semi-automatic firearm; and (7) failing to grant his motion for a new trial.

We conclude the circuit court erred when it admitted drug test results indicating Moses had ingested cocaine and that this error was not harmless beyond a reasonable doubt. We therefore vacate the December 8, 1999 Judgment, with the exception of Moses' conviction and sentence pursuant to Count VIII (Unauthorized Entry into Motor Vehicle) which we affirm, and remand this case to the circuit court for a new trial on the remaining counts.

I. BACKGROUND

The offenses Moses was charged with and subsequently convicted of arose out of a shooting incident that occurred on September 11, 1998, near the Makapu'u Lighthouse access road.

Moses testified that on September 11, 1998, he was twenty years old, was approximately six-feet tall, and weighed approximately 250 pounds. On that date, he had gone to the Makapu'u Lighthouse access road with a screwdriver to steal money from cars. Moses had selected a white Pontiac (white car) and gained access to the car through the passenger door by taking out the keyhole.

That same day, Police Officers Earl Haskell (Haskell), Laura Chong (Chong) and John Veneri, Sr. (Veneri) (collectively "the officers") were assigned to the Beach Task Force. Their duty was to patrol the area between Hanauma Bay and Makapu'u Lighthouse to deter thefts. Haskell and Chong were dressed in the Honolulu Police Department (HPD) uniform: shirt with police badge and insignia, bike shorts, and gun belt. Veneri was dressed in plain clothes: shirt, shorts, and tennis shoes, with his gun belt and handcuffs under the shirt. Chong and Haskell each carried a Smith & Wesson nine-millimeter semi-automatic, and Veneri carried a Glock nine-millimeter firearm. Veneri's gun was loaded with fifteen rounds of ammunition in the magazine and one in the chamber.

Haskell testified that shortly before 1:00 p.m., he, Chong, and Veneri were at Sandy Beach watching a taping of the Hawaiian Moving Company. At approximately 1:00 p.m., Haskell left Sandy Beach in his HPD-marked vehicle to make a routine check of the cars parked at the Makapu'u Lookout. He saw nothing unusual in the area and headed back toward Sandy Beach.

A bicyclist waved to Haskell to stop, and Haskell pulled over. The bicyclist reported that he saw a male at a white car down the road and "that it looked like the guy was breaking into the car." Haskell could see the white car parked on the Makapu'u-bound side of the road. He drove down and parked across the street from it. Haskell looked at the white car and saw a person's hand on the steering wheel and then a head pop up. Haskell identified Moses as being the person he saw in the car. Believing this was an unauthorized entry into a motor vehicle case, Haskell called Veneri and Chong for backup.

Haskell got out of his car because Moses was attempting to cross the street to approach him. Before Haskell said anything, Moses stated, "[t]his is my family's car. They went hiking. I came to grab some things and I'm going to go back up the trail to meet them." Haskell responded, "[o]kay, just stay across the street, you know, let me get some information. If everything checks out, it's cool, you can go."

Haskell crossed the street and stood in front of the white car with Moses. Moses carried a bag rolled up in his hand. Haskell took notice of Moses' size because, as a possible suspect in a crime, someone bigger and heavier than Haskell might be stronger. Haskell testified that Moses looked "really nervous" and "agitated," seemed "pissed off" because Haskell was delaying him, and would not stand still. Moses' eyes appeared glassy, red, and unblinking (to Haskell, the unblinking was a "sign of being on ice"). Haskell was concerned for his safety because of the way Moses continued to pace. Haskell asked Moses if he could take the bag from Moses' hand. Haskell took the bag and placed it on the hood of the white car. He then had Moses sit down on the front of the car. Haskell noticed the passenger-side door lock of the white car was severely damaged.

Haskell testified that as Chong and Veneri's cars approached, Moses said to Haskell, "[o]kay, okay, bruddah, I going tell you the truth. This isn't my family's car." Haskell responded, "[y]eah, I noticed the lock." Moses asked him, "[y]ou can help me out or what?" Haskell said, "[w]ait till these two officers come up here." Haskell noticed Moses appeared more nervous, stood up, and started pacing. Chong arrived first and parked to the left of the white car, and Veneri parked behind Chong's car. Moses started to walk away between the white car and Chong's car. Haskell told him to "get back," but Moses did not come back. Chong, who had gotten out of her car, said "get over here," grabbed Moses' arm, and brought Moses back to the front of the white car. Haskell asked Moses to sit down. Moses sat facing the road on a concrete pillar located in front of and to the passenger side of the white car. Behind where Moses sat was a steep embankment, some kiawe¹¹ trees, and a dirt and gravel trail. Haskell stood about three feet in front of Moses, to Moses' left and next to the white car. Chong stood about the same distance to Moses' right. Veneri stood in front of Moses. Haskell reported to Veneri that Moses "pretty much admitted to breaking into the car." Haskell informed Moses he was going to be arrested. Moses said nothing, just remained sitting and looked side to side. Haskell noticed that Moses was "gritting his teeth." Haskell approached Moses from behind, told Moses he was going to be arrested, and went to handcuff him. Haskell did not have Moses stand up. Haskell reached for Moses' left hand, but before Haskell could get the handcuffs on him Moses stood up and started swinging his arms, knocking the handcuffs from Haskell's hand.

Chong tried to subdue Moses, but Moses kicked her and she fell down. Veneri then moved toward Moses and tried to grab him. It appeared to Haskell that Moses and Veneri were in a "slight struggle." Haskell was behind Moses as Haskell and Veneri tried to "take him down." Haskell identified Moses as the aggressor at that point, stating that Moses appeared to be grabbing Veneri with both arms in a bear hug type of hold. Haskell attempted to grab Moses' left arm and push him over so they could get him to the ground and get his arms behind his back. Haskell testified that with one arm around Veneri, Moses was "pretty much lifting [Veneri] off the ground."

As Haskell and Veneri were getting Moses to the ground, Veneri let go of Moses and rolled out to the side. While Haskell was still holding Moses' arm, Moses' weight carried Haskell with him and Haskell fell "over on top of Moses." Haskell testified that Moses was "sort of on his knees leaning over on...