Nicholas Moore's drive-by retrial could begin without government's key witness

Nicholas Moore is ready for round two - fighting the criminal charges against him in the 2020 Agana Heights drive-by shooting. 

Jury selection is underway in the Superior Court of Guam. 

Defense attorney Mike Phillips said Moore continues to maintain his innocence. 

"Absolutely, in fact, we've asked the court to dismiss the case because the prosecution is no longer calling their star witness. The one witness that

they said actually saw everything, Mr. Salone, who testified to the opposite and said he was the shooter and not my client."

The government's witness, Navy sailor Eric Salone, testified during Moore's trial held last year. But where was Salone?

"We don't know," Phillips said. "He is under a plea agreement to testify here but neither the prosecution or the court so far are requiring that he honor that agreement. So you have a person that fired at people, and then he received probation because he said he was going to testify in the trials, but he is a no-show."

Moore is on trial for a drive-by shooting that left another man injured.  

Salone testified Moore opened fire first - then later stated this: "Nick had the window down, I shot once and Nick shot once and that was it." When he was asked by defense attorney David Lujan who fired first, he said, "Me, Nick, I don’t remember."

The defense at the first trial poked holes at Salone's testimony. 

The case led to a mistrial after multiple delays. 

Now, the defense wants the case tossed as Salone is not expected to show up for Moore's retrial. 

"He's a no-show because quite frankly Mr. Lujan was able to prove that he was the one that fired the shot," Phillips said. "And he all but admitted that. That's the reason for the no-show. Our real concern is that the prosecution would just try to convince the jury that he's guilty in another way."

Not hearing from the star witness could negatively impact what the jury deliberates. We asked Phillips if that was what he was arguing.

"That and the fact that the prosecution knows it and they are going forward with it, and they know that Salone said that he fired the shot in self-defense because people were coming up to them," he said. "So they decided they don't want the jury to hear that part."

In court today, prosecuting attorney Grant Olan told Judge Alberto Tolentino they do not need Salone to prove this case, adding the victims in the alleged shooting are still expected to take the witness stand. 

The trial is expected to begin at the end of this month. 

It could take three to four weeks for parties to present their arguments to the jury.