Here are two indisputable facts: Kollin Elderts is dead. Christopher Deedy shot him.
But whether Deedy, a U.S. State Department special agent, gets convicted of murder is a question that largely centers on Hawaii’s self-defense law.
Deedy, 29, killed the 23-year-old Kailua resident in a Waikiki McDonald’s in the early morning hours of Nov. 5, 2011. The federal agent had just arrived in Honolulu as part of a security detail for the Asia-Pacific Economic Cooperation summit.
The long-awaited trial has been going on since July 8 with the prosecution, led by Deputy Prosecuting Attorney Janice Futa, calling its final witness Wednesday. Prosecutors have charged Deedy with second-degree murder in Elderts’ killing.
From the start, Deedy’s defense team has made clear that it intends to invoke self defense and keep the special agent out of prison.
In opening statements, Deedy’s attorney, Brook Hart, said his client was acting as a law enforcement officer when trying to diffuse a tense situation. Hart had also unsuccessfully tried to get the charges dropped against his client because he believed Deedy was immune from prosecution under federal law.
Hawaii statute says a person is justified in using deadly force if they believe they’ll be killed, suffer debilitating bodily injury or fall victim to other potentially violent crimes, such as kidnapping, rape or forced sodomy.
Caveats exist, of course. For instance, a person can’t knowingly provoke someone into violence with the ultimate intention of killing them after starting the fight.
Hawaii’s law is also different from other states with so-called “stand your ground” laws that don’t require a person to evade or retreat before reacting with deadly force.
In Hawaii, someone who feels threatened must first look for a way out before using deadly force against whomever is coming after them. This isn’t necessarily the case when protecting one’s own home or place of work.
“Stand your ground” has come under intense national scrutiny with the media attention surrounding the George Zimmerman murder trial in Florida. Like Deedy, Zimmerman claimed self-defense when he shot and killed Trayvon Martin, an unarmed teenager with a bag of Skittles.
While many of the similarities end there, Honolulu defense attorney Marcus Landsberg, who has been blogging about the cases on his website 808crime.com, said there’s one correlation between the two. Both Zimmerman and Deedy were the first to make contact with the people they eventually shot and killed.
“Had Zimmerman never gotten out of the car then Trayvon could be eating Skittles right now, and if Deedy had just stayed at his table then Elderts could be eating a McDouble right now,” Landsberg said. “The real interesting part in the Deedy case is when does a conversation turn into an illegal confrontation.
“Clearly, Deedy is allowed to approach Elderts. Clearly, he’s allowed to have a conversation with Elderts. He’s probably even allowed to say, ‘Hey, don’t mess with that guy.’ But at some point somebody got shot.”
Surveillance video shown during Deedy’s trial is inconclusive and witness testimony has been contradictory.
No one can say for sure what words were exchanged between Elderts and Deedy after the special agent approached the Kailua man’s table inside the restaurant. Did Deedy threaten to shoot Elderts in the face after watching him pick on another customer? Or was Elderts egging on the special agent by calling him a haole and telling him to mind his own business? Both scenarios have been alleged.
There also hasn’t been any convincing evidence so far to prove that Deedy told Elderts he was a law enforcement officer. Some witnesses say he identified himself but others are certain he didn’t. Take into account that alcohol was involved — it was 2:30 a.m. on a Saturday in Waikiki after all — and any certainty seems to fade away.
And then there’s the kick. Did Deedy strike first with a front-kick to Elderts which then resulted in retaliation, as the prosecution said? Or was it a defensive maneuver used to keep an aggressive Elderts at bay, as the defense contends?
Landsberg said all of these are important questions for the jury to consider when deciding whether Deedy acted in self-defense.
He said Deputy Prosecuting Attorney Janice Futa’s attempt to describe the federal agent as a “first aggressor” is her way of getting around the matter to possibly secure a conviction. If Deedy struck first, Landsberg said, it makes it hard to claim self defense.
“Basically you can’t draw the foul,” he said. “You can’t provoke a fight and say, ‘Well, he punched me so I had a right to punch him harder and kill him.’”
Other wrinkles complicate the matter even further. The defense has claimed that Deedy was protecting not only himself, but was also trying to defend his former college roommate, Adam Gutowski, who was involved in the late night brawl with Elderts and his friend, Shane Medeiros.
Hawaii allows for the use of force to protect others. There’s also provisions related to law enforcement officers, although whether Deedy’s actions can be considered under that category remains highly controversial.
There’s also the issue of timing and whether Elderts was going for Deedy’s gun. The defense claims this is the case, which could play a role in whether jurors feel that Deedy was justified in using deadly force.
It’s not uncommon for police to draw their weapons to get someone to stop or back off. But was that Deedy’s intention when he drew his Glock 26? Did he fear that Elderts would get his weapon and use it against him? Or had he made the decision to shoot long before?
University of Hawaii law professor Virginia Hench, who refused to comment specifically on the Deedy trial, said there are several scenarios under which deadly force can be justified, including certain circumstances when law enforcement officials are trying to apprehend a suspect.
She said the key to justifying the use of deadly force is the determination of whether a person believed the circumstances they were in at the time were “immediately necessary” to prevent themselves from becoming the victim of a serious crime, such as murder.
“If a defendant establishes that the justification criteria have been met, then the state must disprove the justification beyond a reasonable doubt,” Hench said in an email. “The jury has the challenging job of, in effect, getting inside the mind of the defendant at the time of the use of deadly force, weighing all the conflicting evidence, and coming to a just result.”
At this point, it’s hard to know exactly how Deedy’s attorneys intend to build their case that the federal agent was acting in self defense.
Only a handful of witnesses have been called on the defense’s behalf so far, including one expert — a forensic pathologist — who said Deedy fired the fatal shot while Elderts was on top of the federal agent pummeling him.