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State v. Anger9/30/2004
ual injury, Officer Silva was not authorized to draw Anger's blood pursuant to HRS § 286-163, and the blood test results of the sample he obtained at the hospital were inadmissible as evidence against Anger.
We therefore hold that Officer Silva's testimony that an anonymous physician had stated that Anger had sustained injury as a result of his motor vehicle accident was inadmissible hearsay. Accordingly, we hold that the district court erred in denying Anger's motion to suppress the results of his blood test in sole reliance upon Officer Silva's inadmissible hearsay testimony.
B. The Prosecution Is Judicially Estopped From Arguing On Appeal That The HRE Do Not Govern Hearings On Motions To Suppress.
The prosecution argues, assuming arguendo that the district court erred in its ruling regarding the admissibility of the anonymous physician's out-of-court declaration, that the HRE do not govern pretrial hearings on motions to suppress at all. The prosecution theorizes that the district court was ruling on a preliminary question of fact to which the HRE do not apply, pursuant to HRE Rule 104(a), see supra note 7, and Rule 1101(d)(1), see supra note 6. [FN12] We decline to address the merits of the argument, inasmuch as the prosecution is judicially estopped from taking on appeal a position contrary to and inconsistent with the one that it **640 *433 took at the hearing on the motion to suppress.
FN12. Alternatively, the prosecution contends that Officer Silva's testimony was admissible under HRE Rule 803(b)(24), see supra note 8, and that the district court could have concluded that Anger was injured based on the severity of the accident alone. The prosecution's arguments are without merit.
HRE 803(b)(24) provides in relevant part that a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
The plain language of HRE Rule 803(b)(24) requires the prosecution to provide Anger notice of its intention to employ the hearsay statement, including the name and the address of the declarant. The prosecution did not provide Anger with notice that Officer Silva would testify regarding the physician's alleged statement, nor did it provide Anger with the physician's name or address prior to or during the hearing. The prosecution's contention that "the doctor could have been called to verify Officer Silva's statement[,] and Officer Silva had no reason to know that the doctor would not be called" begs the question and fails to cure the prosecution's noncompliance with HRE Rule 803(b)(24). Indeed, the prosecution should have called the physician to testify.
As for the "severity" of the accident alone, the record, as described supra in section I, is devoid of any evidence--direct or circumstantial--that Anger sustained an injury.
Pursuant to the doctrine of judicial estoppel,
[a] party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts, and another will be prejudiced by his action.
Roxas v. Marcos, 89 Hawai'i 91, 124, 969 P.2d 1209, 1242 (1998) (citation omitted).
Not only did the prosecution fail to argue at Anger's suppression hearing that the HRE did not govern hearings on motions to suppress, but it expressly proceeded on the basis that the proceeding was subject to the rules of evidence. The entire hearin
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