The defense says the federal officer was not drunk and that he fired his gun in self-defense
POSTED: 1:30 a.m. HST, Jul 9, 2013
LAST UPDATED: 6:22 p.m. HST, Jul 31, 2013
A Honolulu police officer testified Monday that State Department special agent Christopher Deedy smelled of alcohol, had glassy eyes, slurred his speech and had a hard time balancing himself after the 2011 fatal shooting of a Kailua man at a McDonald's restaurant in Waikiki.
Asked whether Deedy appeared to be under the influence of alcohol, officer Kaleo Hosaka replied, "Based on my opinion, yes."
Hosaka took the stand Monday at the start of Deedy's trial on charges that he murdered 23-year-old Kollin Elderts at the fast-food restaurant on Kuhio Avenue early on Nov. 5, 2011.
He was among the first three prosecution witnesses testifying on whether Deedy was drunk and on State Department regulations about federal law enforcement agents drinking alcohol.
Whether Deedy was intoxicated looms as a key issue in the trial, which focuses on whether the special agent was justified in firing a fatal shot to Elderts' chest.
The defense said Deedy refused to take a breath test for alcohol after police did not allow him to make a phone call to a supervisor.
Deedy, 29, an Arlington, Va., resident free on $250,000 bond, was here to provide security for the Asia-Pacific Economic Cooperation conference.
The shooting drew massive media coverage, much of it framing the conflict as between a mainland federal agent and a local.
Relatives and friends of Deedy and Elderts watched the trial's opening from Circuit Judge Karen Ahn's courtroom gallery, which overflowed with spectators.
Deedy wore a suit and tie and sat quietly, sometimes jotting notes and whispering to his attorneys. At McDonald's, Deedy wore shorts, a polo-type shirt and slippers.
The defense and prosecution gave conflicting accounts during opening statements about what happened early that Saturday at the restaurant and whether Deedy was drunk.
Deputy Prosector Janice Futa told the jury that Deedy was driven by "alcohol, inexperience and the unmitigated power of a gun."
She did not say how much alcohol Deedy consumed, but said he had been at bars in Chinatown and Waikiki before the shooting.
Deedy's defense attorney, Brook Hart, said in his opening Deedy drank some beers but was not drunk when he shot an intoxicated Elderts in self-defense.
Hosaka testified he transported Deedy from McDonald's to the Queen's Medical Center for treatment for a possible broken nose and then to the police receiving desk.
The officer said he could smell alcohol on Deedy's breath.
"He had a hard time balancing," Hosaka said.
But under defense questioning, the officer acknowledged that Deedy's eyes did not appear to be red or glassy in photos taken of the agent at the hospital.
Hosaka added, though, that suspects' eyes can be red and glassy when they get arrested but not when they are later booked.
To bolster the contention that Deedy was not drunk, the defense showed Hosaka and the jury a video taken from a cellphone by a passer-by that showed Deedy standing still while being handcuffed at the restaurant after the shooting.
Kamahuialani Barbett, a bartender at Coconut Willy's, on Lewers Street at the time of the shooting, testified Deedy paid a tab of $52.75 for four drinks of vodka and bourbon, four beers and a glass of wine.
But Barbett said she did not see Deedy drink and could not say for sure how many people were drinking with him.
During her opening, Futa suggested the drinks were for Deedy and his two friends, but Hart told the panel that others also bought drinks on Deedy's tab.
Matthew Golbus, who is in charge of the State Department's Diplomatic Security Service office in Honolulu, testified that the State Department Foreign Affairs Manual prohibits agents from carrying firearms while drinking or six hours prior to being armed.
But he said federal law prohibits agents only from carrying firearms while under the influence of alcohol.
"I would say that it's not (department) policy to carry (while drinking), but the federal authority is a separate issue from the FAM," he said.
When asked by the defense whether the federal statute that permits federal agents to carry concealed firearms off-duty prevents agents from consuming alcohol while armed, Golbus replied, "No, it does not."
Golbus also testified that the manual is not law and cannot override federal law, and said that the manual applies to agents only when they are on duty on a domestic assignment.
In her opening, Futa said Elderts was celebrating the birthdays of two friends and ended up at McDonald's after also drinking in Chinatown.
She said Elderts was in a "very good mood," laughing and joking with another customer who was "very drunk."
The prosecutor said in the moments leading to the altercation, Deedy told Elderts, "Acting like that is going to get you shot."
"Do you want to get shot?" Deedy asked Elderts, she said. "I'm going to shoot you."
Futa said Elderts either punched or slapped Deedy, who fell backward, got up and fired his gun at Elderts at close range.
Elderts lunged at Deedy, and two more shots were fired before Elderts fell on Deedy, who was on the floor, Futa said.
Hart told the jury that Elderts attacked Deedy, drove him into the back corner of the restaurant, grabbed Deedy's gun, mounted him and started beating him in the face before Deedy fatally shot him.
"Agent Deedy acted responsibly in self-defense as a federal agent when he did what he did," Hart said. "And the evidence will show that he used a number of measured steps to try to sway Mr. Elderts" from the violent assault.
The agent delivered a "frontal kick" as he was trained to do, but Elderts knocked the agent to the floor, Hart said. When the agent drew his gun, Elderts attacked him and grabbed for the weapon, Hart said.
The first two shots didn't hit anyone, but the third shot was the fatal one, Hart said.
A half-dozen protesters lined Punchbowl Street on Monday morning near the front of the Circuit Court building, holding signs that said, "Justice for Kollin Elderts."
Liz Rees, who said she represents the protest group World Can't Wait, likened the court session to the murder trial of George Zimmerman in the death of Trayvon Martin in Sanford, Fla.
"It's really important to make the connection," she said. "We demand justice for Trayvon Martin and Kollin Elderts. They are both victims of a racist system."
There also was a line in front of Ahn's third-floor courtroom before the 9 a.m. opening session, with the clerk telling the crowd that everyone would not be seated.
Relatives and supporters of both Deedy and Elderts watched the trial but declined to comment.
Star-Advertiser reporter Gregg K. Kakesako contributed to this report.