82 Hawai'i 202, State v. Moore, 17872

Citation921 P.2d 122,82 Hawaii 202
Decision Date17 July 1996
Docket NumberNo. 17872,17872
CourtSupreme Court of Hawai'i
Parties82 Hawai'i 202 STATE of Hawai'i, Plaintiff-Appellee, v. Robert Steven MOORE, Defendant-Appellant.

Peter Van Name Esser, on the briefs, Honolulu, for defendant-appellant Robert Steven Moore.

Caroline M. Mee, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee State of Hawai'i.

Before MOON, C.J., and LEVINSON, NAKAYAMA and RAMIL, JJ., and CHANG, Circuit Judge, in place of KLEIN, J., Recused.

MOON, Chief Justice.

Following a jury trial, defendant-appellant Robert Steven Moore was found guilty of attempted second degree murder, in violation of Hawai'i Revised Statutes (HRS) §§ 707-701.5 and 705-500 (1985), and use of a firearm in the commission of a felony, in violation of HRS § 134-6 (1985). On appeal, Moore argues that: (1) the trial court committed plain error when it failed, sua sponte, to instruct the jury on (a) the included offense of attempted reckless manslaughter and (b) the mitigating defense of attempted extreme mental or emotional disturbance (EMED) manslaughter; 1 (2) the trial court's denial of his motion for new trial, based on prejudicial opening statements, violated his rights to due process and confrontation; (3) the trial court lacked jurisdiction to enter guilty verdicts because the complaint failed to allege a material element of attempted second degree murder, and, therefore, the trial court erred in denying defendant's motions to dismiss the complaint and for arrest of judgment; and (4) the trial court abused its discretion when it allowed the prosecution to elicit hearsay testimony under the "then-existing mental, emotional, or physical condition" and "former testimony" exceptions. For the reasons discussed below, we disagree with Moore's contentions and affirm his conviction.


At trial, the events of January 7, 1992, which form the basis of Moore's conviction, were related by Honolulu Police Department (HPD) officers April Daniels and Calvin Tong. Both officers testified that, on the evening of January 7, 1992, at approximately 10:00 p.m., they were preparing to depart from a call on Kahala Avenue when a light-colored Mercedes drove up behind their parked cars with its lights flashing and horn honking. Moore got out of the Mercedes, approached the officers, and said that "someone shot my wife." Officer Daniels proceeded to Moore's vehicle, looked in, and saw Lani Moore, Moore's wife (Mrs. Moore), sitting in the passenger seat. Officer Daniels testified that:

[Mrs. Moore's] head was resting against the headrest. There was blood on the front of her white-colored shirt from the upper chest area down to the waistline. She was holding her hand flat against her chest. She was perspiring. Her voice was barely audible.

Officer Daniels also observed a large hole in the windshield and a bloody napkin wedged between the passenger seat and the console. While waiting for an ambulance, Mrs. Moore told Officer Daniels that "[h]e shot me." Officer Daniels pointed to Moore, who was outside the car with Officer Tong, and asked if she meant him. Mrs. Moore responded affirmatively and stated: "He's a good man. I told him I was leaving him. He's distraught." Mrs. Moore then asked Officer Daniels whether she was going to die, and "[w]hat about my kids?" She told Officer Daniels, "Keep him away from me," and "get him away from me."

Officer Daniels heard Moore tell Officer Tong, "I didn't do it. What is she telling that officer?" Officer Tong testified that Moore, after repeatedly being asked, finally identified the shooter only as an "oriental male," who had also stolen his wallet. Officer Daniels signaled Officer Tong and indicated to him that Mrs. Moore had stated that Moore had shot her. Officer Tong arrested Moore, who resisted being handcuffed and said, "What's my wife telling the Officer? I didn't do it. I know we're having problems, but I didn't do it."

Mrs. Moore was taken to the hospital, where the treating physician determined that she had been shot five times. One bullet caused a superficial scalp wound; one passed through her chest, punctured her lung, and stopped just under the skin in her back; one entered the back of her left shoulder; one entered the left side of her neck, tore her esophagus, and passed into the right side of her neck; and one wounded the middle finger of her left hand.

On January 16, 1992, the prosecution filed a two-count complaint against Moore. 2 With respect to count I, attempted second degree murder, the complaint alleged that:

On or about the 7th day of January, 1992, in the City and County of Honolulu, State of Hawaii, Robert Steven Moore did intentionally engage in conduct which is a substantial step in the course of conduct intended or known to cause the death of Lani Moore, thereby committing the offense of Attempted Murder in the Second Degree, in violation of Section[s]

705-500,[ 3] 707-701.5(1)[ 4] and 706-656[ 5] of the Hawaii Revised Statutes.

Moore was held without bail. On January 7, 1993, Mrs. Moore testified in support of Moore's motion for supervised release. On cross-examination, the prosecutor asked, "Mrs. Moore, on January 7, 1992, it was your husband who shot you five times; is that correct?" Mrs. Moore responded, "Four or five, I'm not certain."

The trial began on December 3, 1993. The prosecution's opening statement described the encounter between Moore and Officers Daniels and Tong. Next, the prosecutor described the Moores' marriage, personal histories, careers, and marital difficulties. The prosecutor then described the circumstances of the shooting as follows:

It was the defendant's idea to go to Diamond Head Circle, the top of the circle, after dinner. He took Lani Moore up there, and parked on the right-hand side of the road at the top of Diamond Head Circle....


... Lani Moore's head was facing up towards the property [that Moore was showing her] when she heard a sound and felt a tingling sensation to the back of her head. She turned around and saw the defendant facing her. That's when she heard another loud sound and felt pain in the right chest.


It was at this point that Lani Moore felt very weak. There was no struggle. Everything sounded muffled. She felt that tingling sensation to the back of her head. It was then she started begging the defendant for help. "Get me to a hospital." The defendant said to her, at that point, he was taking her to the hospital. But Lani Moore quickly realized that he was not heading towards the hospital.... Lani Moore continued to bleed and continued to beg the defendant to take her to the hospital.

The defendant said to her at one point during the shooting, "I know what you're up to. You want to take the children away from me, and I'm not going to let you do that."


... This continued for the next thirty minutes, Lani Moore begging to get help, stating to him that she thought she was dying, and the defendant agreeing to get her help....

It was then that the defendant said the only way he was going to get her help is if she agreed with him that it was a robber, that somebody else had shot her. Out of fear she said she would. And she told him to get rid of the gun.

... Lani Moore remembers the defendant reaching underneath the seat and she remembers seeing two flashes. She remembers feeling pain to the left of her neck and her shoulder....

Out of fear, she continued to tell Robert Moore that she would go along with his story and to get rid of the gun. She did not want him to shoot her a third time in a third location....


It was the next day, January 8th, around 5:00 p.m., that Lani Moore, although under medication, gave a 45-minute, detailed statement to Detective Joseph Natividad, from the Honolulu Police Department. The statement was largely narrative [sic] and without prompting by the detective.... That would be the last statement that Lani Moore would make regarding the shooting of January 7th, 1992.

On the first day of trial, Officer Daniels took the stand and, over the defense's objection, was allowed to testify to the statements made to her by Mrs. Moore. The court ruled that the statements did not fall within the "excited utterance" or "present sense impression" hearsay exceptions, but, on its own initiative, found the statements admissible under Hawai'i Rules of Evidence (HRE) Rule 803(b)(3), 6 as statements of then existing physical, mental, or emotional condition. The court allowed Officer Daniels to relate Mrs. Moore's statements, but gave a limiting instruction to the jury that Daniels's testimony "is limited solely for the purposes of explaining and describing Lani Moore's then existing mental, emotional or physical condition."

On the second day of trial, the prosecutor informed the court that he had learned that Mrs. Moore had left the state. He also indicated that, if he could not locate her, he would be putting on witnesses to establish Mrs. Moore's unavailability. A hearing was held later that day, out of the presence of the jury, on the issue of Mrs. Moore's unavailability, and the admissibility of her former testimony.

The prosecution established that Mrs. Moore had been subpoenaed on July 2, 1993, for trial the week of November 22, 1993. The prosecutor was placed under oath and testified that, during the week prior to November 22, 1993, he had telephoned Mrs. Moore and left a message on her answering machine that he was calling to inform her that court was not meeting on November 22 and to please return his call so that he could advise her of the date that her presence would be required. The prosecutor further testified that, when Mrs. Moore returned his call,

Ms. Moore informed me at that time that she would know when to come to court. I informed her of her subpoena, she acknowledged her subpoena, and she stated that she would know when to come to court.

I asked her at that point how she would know when to come to court and...

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