Agent labeled as aggressor in shooting

State Department agent Christopher Deedy spent the night drinking and bar-hopping before going to a Waikiki McDonald’s restaurant where he shot and killed a 23-year-old Kailua man, city prosecutors said in court papers filed in Deedy’s murder case.

Deedy appeared "intoxicated" before firing three shots from his 9 mm Glock — the first narrowly missing a customer, another lodging in the restaurant wall and the third fatally wounding Kollin Elderts in the chest, prosecutors said.

Deedy was not heard identifying himself as a law enforcement officer, but told Elderts he had a gun and would shoot him in the face, according to prosecutors.

City Deputy Prosecutor Janice Futa filed the papers Friday in opposing Deedy’s request for dismissal of the murder charge.

Deedy’s defense maintains he is immune from state prosecution under the U.S. Constitution’s Supremacy Clause because he was acting as a federal law enforcement officer when the incident occurred early Nov. 5 last year at the Kuhio Avenue restaurant.

Deedy’s attorney, Brook Hart, said Tuesday their position is "contrary to what she (Futa) asserted" and that the defense will respond in its own court papers this week.

Deedy, 28, who was in Hawaii to provide security at the Asian-Pacific Economic Cooperation meetings, is charged with murdering Elderts.

Hart has maintained that Deedy identified himself as a law enforcement officer and acted to protect himself and others from a belligerent Elderts, who had assaulted him and tried to grab Deedy’s gun.

But in the prosection’s most detailed version of its case, Futa portrayed Deedy as the aggressor who "thrust kicked" Elderts and repeatedly told him, "I have a gun; I’m going to shoot you in the face."

Elderts responded, "Shoot me, then," the deputy prosecutor said in the court filing.

After the kick, Deedy reached for his holstered gun and moved toward Elderts, who then hit Deedy in the face, Futa said.

Deedy fell to the floor, but as he got up he pulled out the gun and began firing, Futa said.

Futa said Deedy had been "slurring his words as he argued with Elderts."

"At no time was defendant heard to identify himself as a law enforcement officer or federal agent," Futa said.

The deputy prosecutor said Deedy and two friends began drinking at the King’s Pub in Waikiki before going to the First Friday event downtown, where they ate and drank before returning to Waikiki.

They went to Moose McGillicuddy’s and Coconut Willy’s where Deedy bought a round of drinks, Futa said.

They were on their way to another bar when they stopped at McDonald’s, Futa said.

"While defendant was bar-hopping he was in possession of his 9 mm Glock; conduct that the Department of State’s rules clearly prohibit," Futa said.

The deputy prosecutor said Elderts and his friend Shane Medeiros also had been to First Friday, where they celebrated birthdays of two friends.

At McDonald’s, Elderts was sitting at a table waiting for his food when Deedy confronted him, Futa said.

Alexander Byrd, a customer and a Marine, attempted to break up the "verbal exchange" between the two men, according to Futa.

Jessica West, one of Deedy’s friends, also tried to intervene, but couldn’t stop the argument, Futa said.

West was standing between Deedy and Elderts when Deedy moved around her and kicked Elderts, the deputy prosecutor said.

West later "tried to stop the defendant from continuing the fight," but Deedy again got around her and was hit by Elderts, Futa said.

Futa said there is no evidence to show that Deedy’s use of deadly force was "objectively or constitutionally reasonable" to support dismissal of the charges.

"Simply stated, defendant instigated an altercation that resulted in him shooting Elderts to death," Futa said.

Circuit Judge Karen Ahn is scheduled to hear the defense’s dismissal request Jan. 22.

When Hart filed the request in May, he also filed McDonald’s surveillance video of the events, but at the request of city prosecutors, Judge Ahn sealed the exhibit despite objections by the Star-Advertiser, its television partner Hawaii News Now and the online news site Hawaii Reporter.

She ruled that making the video public might taint potential jurors and jeopardize rights to a fair trial.

The judge said the video would remain confidential until she rules on whether it is admissible at either the dismissal hearing or the trial.

The dismissal hearing was originally scheduled for July.

It was not clear Tuesday whether Ahn will allow the video, which has no audio, to be made public at the dismissal hearing.

Deedy’s trial is scheduled for April.