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Victim's record in dispute for trial

By Ken Kobayashi

LAST UPDATED: 10:16 p.m. HST, Jul 17, 2013

The man fatally shot by a federal agent in Waikiki just before the 2011 Asia-Pacific Economic Cooperation conference had been involved in a disorderly conduct case 21⁄2 years earlier when he had to be subdued by officers outside a Kailua bar.

Kollin Elderts, 23, was drunk in 2008 when he resisted arrest and swore at police before being subdued, according to court documents recently filed on behalf of the federal agent charged with murder in the Waikiki shooting.

State Department Special Agent Christopher Deedy is accused of murdering Elderts during an altercation at the McDonald's restaurant on Kuhio Avenue at about 2:45 a.m. Nov. 5, 2011.

Deedy's lawyer, Brook Hart, filed a request this month seeking to introduce details from police in Elderts' disorderly conduct case at his client's trial this summer

Hart said the case shows Elderts' "aggressive and violent character" and supports the defense contention that the off-duty agent was forced to fire the shot to defend himself and others.

The defense lawyer filed the papers in response to an earlier request by city prosecutors seeking to exclude any evidence of Elderts' "specific instances of aggressive conduct," prior "bad acts" and his criminal record.

City Deputy Prosecutor Janice Futa said in her request that such evidence, if introduced, would create "unfair prejudice," confuse the issues and mislead the jury.

Futa declined to comment last week on the defense request but is expected to strongly oppose Hart's motion.

Circuit Judge Karen Ahn has yet to set a hearing on the defense request.

The trial is scheduled to start July 1.

The shooting occurred just before the start of the APEC meetings and drew widespread media coverage.

Deedy, 30, of Virginia, who is free on $250,000 bond, was here to help provide security.

City prosecutors maintain that Deedy appeared to be drunk after a night of bar-hopping and was the aggressor who "thrust kicked" Elderts and fired his 9 mm Glock three times after repeatedly telling the Kailua man he would shoot him in the face.

Deedy's defense is that a drunken and belligerent Elderts harassed a customer with racial slurs, instigated the deadly confrontation, tried to grab Deedy's gun and left the agent with no choice but to fire.

Elderts' disorderly conduct case, Hart said in his filing on May 16, is "highly relevant and critically important evidence."

According to the defense filing, which cites multiple police reports:

» Elderts was arrested outside Boardriders bar on Hamakua Drive at about 2 a.m. May 10, 2008.

» He was in an unruly crowd of 70 to 150 people that drew about 10 to 18 officers to the bar's parking lot. Some people in the crowd were fighting, including Elderts.

» Elderts, who had a cut to his nose and mouth, was "verbally aggressive." When police told him to "calm down," he refused, swore at police and challenged others in the crowd to fight.

» Elderts' brother, Zachary, and eight police officers tried to control Elderts, but he would not stop screaming, swearing and yelling about a fight. Elderts "kept pushing his body up against" the officers and his brother, who was trying to help.

» Elderts refused to be arrested for disorderly conduct and challenged the officers. Police took Elderts "to the ground," but he was still "considerably struggling and yelling" as police tried to handcuff him.

» Once Elderts was arrested, most of the bystanders left, and the "situation seemed to calm down."

» Elderts, who was 20 at the time, said he had used a fake identification card to get into the bar.

» Two months later Elderts was convicted of disorderly conduct.

"The sharply disputed question of who was the first aggressor in this case will be a key issue at trial," Hart argued in his motion. "Especially relevant are the facts that during Elderts' disorderly conduct crime, he was intoxicated, he was actively seeking to escalate the situation and fight, and he was being very aggressive toward and noncompliant with law enforcement officers."

The defense has maintained in earlier court documents that Deedy identified himself as a law enforcement officer at the McDonald's restaurant, but Elderts became more irate.

Hart's request is one of several motions on the admissibility of evidence pending before Judge Ahn.

The motions include the prosecution's request to exclude from trial Elderts' toxicology report that shows alcohol, cocaine and evidence of marijuana in his system.

The prosecutors cited the autopsy report that said Elderts died of the gunshot to his chest and did not indicate that alcohol or drugs contributed to his death. They said the presence of alcohol and drugs is "completely irrelevant" to the facts of the case.

Another motion is a defense bid to introduce at trial a cellphone video taken by a man after the shooting. The defense says the video shows Deedy rendering aid to Elderts, trying to stop the flow of blood and urging him to breathe.

Hart also wants to introduce a 2010 drunken driving conviction for Elderts to show his "character trait to engage in dangerous behavior that places other people at risk of death or serious injury."

A video recording taken by the McDonald's surveillance cameras of the altercation is expected to be shown to the jury.

A copy of the soundless recording was filed last year by the defense to support a request seeking the dismissal of the murder charge based on the U.S. Constitution's Supremacy Clause. The provision prohibits state prosecution of federal law enforcement officers acting in the scope of their duties.

Ahn granted a prosecution request to seal the recording until a hearing on the dismissal motion or the trial.

Hart withdrew the dismissal request this year, canceling the hearing.

Three weeks of jury selection in the high-profile case ended May 7. The trial opening had been previously set for July 1 to accommodate jury selection and the judge's vacation in June. Jury selection went faster than expected.

Ahn told the jurors to refrain from discussing the case with anyone or watching, reading or listening to anything regarding the case. The trial is expected to last one to two months.

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