Shots were accidental,
lawyers say in appeal

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By Debra Barayuga
dbarayuga@starbulletin.com

Convicted cop shooter Peter Moses may have intended to fire at police officers trying to arrest him at Makapuu Point nearly three years ago, but pulling the trigger was not intentional, his defense lawyers argued.

"You can mean to do something, but accidentally do it," said deputy public defender Susan Arnett during oral arguments yesterday before three judges of the Intermediate Court of Appeals.

Moses was denied his right to a fair trial, Arnett argued, because the shooting was not intentional and the jury was not told it could consider the defense's accidental theory.

Moses is trying to reverse his September 1999 conviction for attempted first-degree murder, punishable by life without parole. He was accused of shooting police officer Earl Haskell in the abdomen and shooting at another police officer who returned fire during a routine arrest for breaking into a rental car on Sept. 11, 1998.

Haskell survived but was in the hospital for almost two months. Moses was shot at least 16 times, but his injuries were not life-threatening.

The evidence showed that Moses had the gun in his hand that was behind his back, and Haskell's hand was over his. Haskell was trying to handcuff Moses when they both fell backward over a concrete pillar laying on its side and the gun went off, Arnett said.

After the hearing, Deputy Public Defender Deborah Kim said even if Moses had intended to shoot the officer and took a step toward that end, there is still a question of whether the shooting occurred because of his effort or accidentally during the struggle.

Deputy Prosecutor James Anderson argued that the instructions made it clear to the jury that shooting the gun had to be voluntary in order to convict. "If you have an intended step with an intended plan, it can't be an accident."

The defense also argued that introducing the results of Moses' toxicology test was "incredibly prejudicial" and that the state violated the patient-doctor privilege by obtaining the records.

The state had argued before the trial court that the drug test results were relevant to testimony by the officers about Moses' demeanor when they tried to arrest him.

And because Moses was charged with a crime, the fact that someone had drugs in his system is relevant to proving the offense and therefore prosecutors should be entitled to use it at trial, prosecutors argued.

Chief Judge James Burns was joined by Associate Judges Corinne Watanabe and Dan Foley. The judges took the matter under advisement and are expected to rule later.