Prosecutor pushes Deedy on why he didn’t walk away

Christopher Deedy faced cross-examination today from city Deputy Prosecutor Janice Futa who repeatedly pointed out times when the State Department special agent could have walked away before the deadly confrontation with Kailua resident Kollin Elderts.

Futa began her cross-examination of Deedy this afternoon on the second day of Deedy’s testimony in his murder trial.

Futa, like Deedy’s defense attorney Brook Hart, went over the Waikiki McDonald’s security camera video of the Nov. 5, 2011, confrontation frame by frame.

But unlike Hart, Futa focused on points in the confrontation where Deedy might have walked away and whether Deedy believed Elderts had actually committed a crime.

“Did you tell the security guard, ‘Hey I think something is going to happen here, call the police?’” Futa asked.

Futa asked if Deedy noticed the McDonald’s workers joking with Elderts and Elderts’ friend Shane Medeiros.

She questioned Deedy about what he actually heard of the conversation between Elderts and Medeiros and customer Michel Perrine at the McDonald’s counter and whether he really needed to get involved.

“You don’t know whether they were talking or joking,” Futa asked.

“I saw Mr. Perrine turn to Mr. Elderts when he said, ‘just leave me alone.’” Deedy said during the questioning.

“He wasn’t being bothered by anything anybody said as far as you could see?” Futa continued.

“I saw Elderts again turn to him, Mr. Perrine, and say something. I saw Mr. Perrine did not respond. … To me it looked intentional, like he was purposely not responding,” Deedy said.

“At this point in time, no crime had been committed, correct?” Futa asked — a question she repeated throughout her questioning over the afternoon.

Deedy said he was not sure that he could leave the McDonald’s safely and that he felt responsible for the other people in the restaurant because of Elderts’ aggressive behavior.

Futa showed a portion of the video and noted that Deedy’s friends Jessica West and Adam Gutowski were leaving the restaurant and that West came back in and grabbed Deedy’s arm, as if to pull him away.

“When she came back inside the McDonald’s, she told you, ‘Let’s go,’” Futa asked.

“I was interacting with Mr. Elderts, I didn’t hear her say anything to me,” Deedy responded.

“You could have just walked out with Jessica West and not put anyone in danger is that correct,” Futa asked.

“He had just threatened to hurt me. If i had walked to his left or right, I don’t know what would have happened.” Deedy said.

As the questioning over the events in the video continued, Deedy said, “this whole thing happened in maybe a minute and a half between the time I started talking to Mr. Elderts and when the last shot was fired. … I have watched this video hundreds, if not more times. I see it when I close my eyes and when I try to go to sleep, try. I see these events over and over.”

In the morning session, Deedy testified that he had to consider using deadly force after Elderts knocked him to the floor and continued assaulting him.

He said in his law enforcement training he was taught that being knocked to the ground in an assault “is one of the worst situations” for an officer.

“We’re trained that when an officer is taken to the ground, we should be prepared to use deadly force,” Deedy said.

He said during the fight, Elderts knocked him over and as Deedy rose, he saw Gutowski, his formercollege roommate, bleeding and being punched by Medeiros.

Because of the threat to Gutowski and the size and strength of Elderts and Medeiros, “the totality of all the circumstances here, I needed to respond with the deadly force option,” Deedy said.

“I escalated the threat of deadly force,” Deedy said. “I didn’t use it. I issued a command and warning for him to stop.”

“What was it that you expected to happen?” asked Hart.

“I hoped, I prayed that he would stop.”

“Did he stop?”

“No.”

Deedy said Elderts reached for Deedy’s gun and grabbed the special agent’s wrist.

Elderts knocked Deedy to the ground with his left hand on Deedy’s gun. With his right hand, Elderts began punching him, Deedy said.

“As he did that, I was trying to put my gun in a position where I could take a shot,” Deedy said. “Elderts hand came off my wrist, I took two shots.”

Deedy said at the time of the shooting, “It was so vivid. As I said, we were standing there, my gun was drawn. It was like time stood still. This was going by, I know it was only seconds, but to me it seemed like hours.”

During his testimony, Deedy took off his blue blazer, got on the courtroom floor and demonstrated for the jury what he was doing while on the ground and what Elderts was doing on top of him.

In his questioning, Hart took Deedy through the McDonald’s security camera video of the incident and asked him to explain what was happening in frame-by-frame detail. Hart also played a bystander’s cell-phone video that showed Deedy trying to revive Elderts.

Hart ended his questioning shortly after the trial resumed in the afternoon after a lunch recess.

In her initial cross-examination, Futa questioned Deedy about State Department polices over the use of deadly force and consumption of alcohol.

Futa asked if State Department police prohibits the consumption of alcohol for six hours prior to carrying a firearm.

Deedy replied that it does while “on duty.”

She asked Deedy if he saw any Hawaii state or federal laws being broken when he approached Elderts and Medeiros.

Deedy replied that he did not see any laws being broken.

Futa noted that the policy says that deadly force should not be used on “mere suspicion of a crime.”

She questioned Deedy about warnings before the use of deadly force, pointing out that they need be loud and clear enough so the suspect and people in the area can hear them and that alternatives to deadly force must be used if reasonably available.

“Retreat is an alternative to using deadly force is it not?” Futa asked.

“Yes, that’s correct,” Deedy replied, adding, “Retreat is sometimes an option not always an option.”

Deedy spent more than four hours on the stand Tuesday describing in detail his training as a special agent, his expertise in firearms, and his account of the events leading up to his shooting of Elderts at the McDonald’s on Kuhio Avenue.

Under questioning by Hart, Deedy told the jury about the confrontation that led to the fatal shooting. But court adjourned Tuesday afternoon before his testimony reached the point of the actual shooting.

In his Tuesday testimony, Deedy portrayed Elderts as an aggressive and belligerent man who was apparently drunk and who challenged him to a fight before the agent kicked him to ward off an assault.

But Deedy said Elderts countered the kick, grabbed the agent’s heel and pulled away a slipper.

The agent testified that based on his training as a law enforcement officer, it was an "Oh no moment" because it meant that Elderts knew how to fight.

"If somebody uses a countermaneuver against your defenses, it means they could very well know what they are doing," the agent testified.

Moments after the kick, Deedy pulled out his 9 mm Glock and fired three shots, including a fatal bullet to Elderts’ chest.

Deedy, 29, is accused of shooting Elderts without justification.

According to the prosecution, Deedy had been an agent for only about two years and did not identify himself as a law enforcement officer. 

Instead, Deedy drunkenly threatened to shoot Elderts in the face and aggravated the confrontation with the kick and later drawing his weapon, prosecutors maintain.

Deedy’s defense is that he relied on his law enforcement training, identified himself, then drew his gun when Elderts became more aggressive.

The defense contends the third and fatal shot hit Elderts in the chest as he grabbed the agent’s gun. 

Police testified the other two shots hit restaurant walls.

Deedy several times testifies that he had to process what was happening based on his law enforcement training to deal with what he believed was Elderts’ escalating aggression.

"My brain was going in a thousand directions," he testified.

Deedy said he had arrived in Hono­lulu the previous afternoon to provide security at the Asia-Pacific Economic Cooperation conference. 

He spent that night and early morning with Gutow­ski and West visiting bars in Chinatown during First Friday festivities and two bars in Waikiki.

He testified he had about four beers between 8:45 p.m. and 2:15 a.m.

"I make it a habit to keep track of what I’m drinking," Deedy said. "I always try to drink responsibly."

Deedy said he tries to limit his drinking to about one beer per hour so that he can drive and because he carries a gun.

He said he didn’t feel he was under the influence of alcohol and testified that he felt "normal" and "good."