H Awaii V. Moore

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;*fn1 (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.