POSTED: 1:30 a.m. HST, Mar 11, 2013
LAST UPDATED: 10:36 p.m. HST, Jul 17, 2013
U.S. State Department special agent Christopher Deedy will withdraw his request for dismissal of his murder charge that was based on his contention that he was acting as a federal law enforcement officer when he fatally shot a Kailua man at a Waikiki restaurant in 2011.
Deedy's attorney, Brook Hart, filed the dismissal request in May last year, but recently notified Circuit Judge Karen Ahn during a private status conference that he would be withdrawing the motion, according to the court file.
The reason was not listed in the court minutes of the meeting. Hart has declined to comment.
Deputy Prosecutor Janice Futa also declined comment on the latest development.
The withdrawal clears the way for the start of what is expected to be a lengthy jury selection and murder trial. Jury selection had been scheduled to start April 1, but has been delayed until later in the month.
The withdrawal also means there will be no pretrial hearing on the motion, which might have turned into a minitrial that would parallel evidence presented at trial.
Deedy would have had a chance to testify for the first time about the shooting to bolster his defense that he was acting as a law enforcement officer.
The hearing might also have included the release of a surveillance video recording of the shooting.
Withdrawal of the motion would mean that Deedy and Hart will be giving up the defense under the U.S. Constitution's Supremacy Clause, barring state prosecutions of federal law enforcement officers acting in the scope of their duties.
Deedy's defense at trial is expected to be that he was acting to protect himself.
Deedy, 28, a Virginia resident here to provide security for the Asia-Pacific Economic Cooperation conference, is charged with murder and a related firearms offense.
He is accused of shooting Kollin Elderts, 23, in the chest at about 2:45 a.m. Nov. 5 at the McDonald's restaurant on Kuhio Avenue with his service weapon.
In pretrial documents, city prosecutors say Deedy appeared "intoxicated" after a night of drinking and bar hopping and became the aggressor who started an altercation.
According to prosecutors, Deedy kicked Elderts and repeatedly told him he was going to shoot him "in the face."
The defense's position outlined in court documents contends it was Elderts who was the aggressor. Hart's filings said an intoxicated Elderts called Deedy a "f------ haole" and challenged him to a fight.
Hart said Deedy identified himself as a law enforcement officer, but Elderts attacked Deedy, who felt compelled to fire in self-defense.
Hart's motion last year sparked a controversy when he filed an exhibit of the McDonald's surveillance video recording.
Court filings are open to the public, but Ahn granted a request by city prosecutors to seal the video despite objections by Hart and the Honolulu Star-Advertiser, its television partner, Hawaii News Now, and online news site Hawaii Reporter.
The hearing and trial have been repeatedly postponed. One reason was Hart sought to transfer the case to federal court. Later, Ahn asked the lawyers to submit legal arguments on whether she or a jury should decide on the motion.
Both the defense and prosecution said the judge should decide.
Another issue was whether the prosecution could use Deedy's testimony at the pretrial hearing at the trial.
Hart said in a court filing Deedy would testify in the pretrial hearing about his thoughts, intentions and beliefs before, during and after the shooting. He would also testify about what he heard, which is "crucial" because the surveillance video does not have sound, Hart said.
A new date for the start of jury selection has not been set, according to the electronic court file on Friday, but is expected to be sometime in the middle of the month. Jury selection could span weeks to ensure jurors can be fair because of extensive news coverage of the case.
Lawyers involved in other criminal cases say Ahn has notified them that she will be clearing her calendar through August for the case.
Deedy, who posted $250,000 bail, returned to his Arlington, Va., home and work at a desk job at the State Department.