The cast of characters and arguments are largely the same, but a pair of recent state Supreme Court decisions could color the retrial of State Department special agent Christopher Deedy.

Deedy, 30, is having to stand trial a second time for the Nov. 5, 2011, shooting death of 23-year-old Kollin Elderts in a Waikiki McDonald’s restaurant because the first trial last year ended with a hung jury.

Eight jurors voted to acquit Deedy while four voted to find him guilty of second-degree murder. They were not given the opportunity to consider any charges in between the two extremes.

In the first trial, neither side asked the court to give jurors the option to consider manslaughter. Circuit Judge Karen Ahn also did not give jurors the manslaughter option.

In opening statements of the current trial Thursday, neither side suggested to jurors that they should consider anything other than murder or acquittal.

Deputy Prosecutor Janice Futa told the jurors that Deedy was drunk when he attacked Elderts. She said Deedy did not identify himself as a law enforcement officer to anyone in the restaurant until after the shooting.

"Based upon the credible evidence that will be presented to you in this case, the state will ask at the close of the trial that you find the defendant Christopher Deedy unjustifiably used his firearm to intentionally and knowingly cause the death of Kollin Elderts," Futa said.

Defense lawyer Thomas Otake told the jurors that Deedy was not drunk or under the influence of alcohol. He said Deedy identified himself as a law enforcement officer more than once before shooting Elderts after Elderts and his friend attacked Deedy and his friend.

He said Deedy shot Elderts to defend himself and his friend from assault and did what he was trained to do as a law enforcement officer.

"If somebody is attacking you and reaching for your gun, and you’re at risk of serious bodily injury, or you think somebody else is at risk of serious bodily injury, he’s trained to shoot." Otake said. "He’s trained not to aim for extremities, but to aim for center mass."

Elderts died from a gunshot wound to his chest.

His parents are critical of the decision not to give the manslaughter option to the jury and said the city Prosecutor’s Office broke a promise by not asking for it.

The evidence and issues being presented in the current trial are largely the same as in the first trial. The prosecutors, Futa and Chasid Sapolu, are the same, as well as the judge. The only cast changes are the lawyers representing Deedy.

In the first trial, veteran Hawaii defense lawyer Brook Hart, associate Margaret Nammar and Virginia lawyer Karl Blanke were on Deedy’s legal defense team. Otake and Hayley Cheng make up Deedy’s new defense team.

Another change from last year concerns when Hawaii courts are required to instruct juries that they can consider crimes lesser than those charged.

After last year’s mistrial due to the jury deadlock, the Hawaii Supreme Court handed down two opinions involving defendants who asked for but were not granted instructions that would have allowed their juries to consider lesser included offenses.

In November the Supreme Court said it was wrong for a trial judge not to tell a jury that it can consider finding a man charged with kidnapping guilty instead of unlawful imprisonment. All five justices also said that the fact that the jury found the defendant guilty of kidnapping did not make the court’s error OK.

The high court overturned the conviction.

In February four of the five justices said the trial judge in another case was wrong for not telling the jury considering the fate of a man charged with murder that it can consider finding him guilty instead of first-degree assault. The judge refused to give an assault instruction because the man’s actions resulted in a death.

The jury found the defendant guilty of manslaughter, which the Supreme Court overturned.

Ahn was the trial judge in both cases.

The Supreme Court said there must be a rational basis, or some evidence, to support the lesser offense.

In Deedy’s first trial, Ahn said she did not find a rational basis to instruct the jury on reckless manslaughter. She has not indicated whether she is open to such an instruction in the current trial.

The defense team says Deedy should not have to face a manslaughter charge again because Ahn considered it and made a ruling on it. The team has filed papers seeking to prevent the court from giving the new jury a manslaughter instruction.

Ahn has scheduled a hearing later this month on the request.

Deedy was in Honolulu to provide security for the Asia-Pacific Economic Cooperation summit when the shooting occurred.