A man says he tried to calm the dispute that led to gunfire
POSTED: 1:30 a.m. HST, Jul 17, 2013
LAST UPDATED: 6:29 p.m. HST, Jul 31, 2013
A former Kaneohe Marine testified Tuesday that he did not hear or see U.S. State Department special agent Christoper Deedy identify himself as a law enforcement officer, but heard him repeatedly threaten to shoot a 23-year-old Kailua man who moments later was fatally shot in the chest.
Alexander Byrd testified he tried to calm down both Deedy and Kollin Elderts but stepped aside when he realized he couldn't stop what turned out to be the deadly altercation.
Byrd said he ran from the restaurant.
"I figured I got away with my life," he said.
Byrd is considered a key witness for the prosecution, his significance underscored by his presence on the witness stand Monday afternoon and all day Tuesday. Both the defense and prosecution tried to limit each side's questioning of the witness.
Byrd is the first prosecution witness to testify about seeing Deedy draw his gun and fire the first shot, which he said missed Elderts.
The two men, Byrd said, grappled with each other and then ended up on the floor.
Byrd said he did not see the fatal shot.
Deedy, 29, of Arlington, Va., who was here to provide security for the Asia-Pacific Economic Cooperation conference, is on trial on a charge of murdering Elderts with one of three shots fired at about 2:45 a.m. Nov. 5, 2011, at the McDonald's restaurant on Kuhio Avenue.
The prosecution contends that Deedy was spurred by alcohol and inexperience in firing the shots without justification.
But Deedy's lawyers maintain that the off-duty agent acted as a law enforcement officer to protect himself from a drunken Elderts, who attacked and grabbed for Deedy's 9 mm Glock handgun.
Byrd, a New Jersey resident, was 21 and stationed at Kaneohe when he went out with friends to a nightclub in downtown Honolulu and another in Waikiki.
He testified he drank two beers and a shot of tequila in a 10-minute span at about 11 p.m. but was "completely sober" by the time he ended up at McDonald's after 2:30 the next morning.
Byrd said the agent was exchanging words with Elderts and Elderts' friend Shane Medeiros.
He said he tried to defuse the situation but that the agent's friend Adam Gutowski lunged at Elderts, who pushed him aside.
Byrd said at that point he felt he couldn't say anything more and moved to the other side of the restaurant.
He said he heard a drunken Deedy twice say, "I'm going to shoot you in the face."
"It was just mumbling," Byrd said. "He didn't say it loud."
Elderts slugged Deedy in the face and knocked him down, Byrd said.
When Deedy got up, he again repeated he was going to shoot Elderts in the face, Byrd testified.
Byrd said he saw the agent draw his gun and fire the first shot.
He testified that he watched from behind a McDonald's toy display as Deedy and Elderts scuffled to the floor.
Byrd said Elderts was on top straddling Deedy.
The former Marine said he saw the gun in Deedy's hand and that Elderts was pinning back the agent's hands.
The defense is contending that Deedy's third shot was the fatal one.
UNDER cross-examination, Byrd acknowledged that his testimony differed on some points from his recorded statement to police three days after the shooting and his statements nine days later to the Oahu grand jury, which indicted the agent on the murder charge.
Byrd stood by his testimony that Elderts' friend Medeiros became angry because Gutowski was staring at him.
In his statement to police, Byrd identified Michel Perrine, another McDonald's customer, as the one who stared at Medeiros.
Byrd also acknowledged he wasn't watching Deedy the entire time, a point the defense is expected to emphasize to suggest that Deedy showed his badge and identified himself when Byrd wasn't looking.
One major point of contention was whether city Deputy Prosecutor Janice Futa could ask Byrd his reaction when he saw Deedy draw his gun.
With the jury out of the courtroom, Futa told Circuit Judge Karen Ahn that Byrd's reaction was that he was surprised because there was no reason to pull out the gun.
Deedy's attorney Karl Blanke argued that Byrd should not be able to express a nonexpert opinion on a question that the jury must decide.
Ahn allowed Futa to ask the question but said Byrd could not testify about whether he thought there was a need to draw the weapon or whether it was justified.
When Byrd returned to the witness stand, he testified he was shocked when he saw the gun.
He said he didn't see a weapon when the agent had threatened to shoot Elderts.
"I was just shocked to see that there was a gun," Byrd said.
Star-Advertiser reporter Sarah Zoellick contributed to this report.