State Department special agent Christopher Deedy portrayed Kollin Elderts on Tuesday as an aggressive and belligerent man who challenged Deedy 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 is scheduled to retake the witness stand today and testify about the shooting.
Deedy testified for about an hour in the morning and the entire afternoon on the 18th day of his trial on a charge of murdering Elderts at about 2:45 a.m. Nov. 5, 2011, at the McDonald’s restaurant on Kuhio Avenue.
Deedy, 29, is accused of shooting the 23-year-old Kailua man without justification.
According to the prosecution’s case, 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, the 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.
In his testimony under questioning by his lawyer Brook Hart, Deedy portrayed Elderts as a man who appeared to be drunk and who harassed another McDonald’s customer to start the chaotic, fast-moving chain of events that was captured on the McDonald’s security video recording.
Deedy several times said 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 his former college roommate Adam Gutowski and Gutowski’s girlfriend, Jessica 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."
Deedy testified that he noticed what he described as a "hostile incident" at the McDonald’s counter between Elderts, Elderts’ friend Shane Medeiros and customer Michel Perrine.
He said he heard Perrine say, "Hey, just leave me alone," and a McDonald’s cashier telling Elderts to "stop."
"I thought there was a possibility he (Elderts) was under the influence of alcohol," Deedy said.
The agent said he went to the table where Elderts was sitting after Elderts challenged Perrine to a fight.
Perrine didn’t respond, Deedy testified.
"It appeared to me he actually had no idea what was going on," the agent said.
Deedy said that based on his training, he felt it was "appropriate for me to intervene."
He said when he asked Elderts, "What’s going on?" Elderts challenged him to a fight.
He testified Elderts at one point said, "Hey, f—— haole, you like beef?"
"Nobody wants to fight," Deedy said he told Elderts.
Elderts said, ‘I’ll f— you up,’" the agent testified.
At that point, Deedy said, he pulled his wallet from his back pocket, displayed his badge and identified himself as a law enforcement officer.
Deedy testified he told Elderts and Medeiros, "I’m a cop. If you assault me or anybody else here, you will be arrested."
Elderts’ response, according to Deedy, was, "You won’t arrest me. You got a gun?"
"It was not what I expected," Deedy testified. "It was not what I anticipated."
Deedy said the McDonald’s security guard said she had called police and that they were on their way.
"I thought, great, police were coming," Deedy said.
Hart asked Deedy why he didn’t leave the scene at that point.
"For me at this point to simply run would be irresponsible," Deedy answered.
"I had already displayed my identification, told him he would be arrested. As a law enforcement officer, to walk away from something I had taken responsibility for would be totally irresponsible."
Deedy said he also believed that other law enforcement officers would be there quickly. But the situation escalated within seconds.
Deedy denied testimony by prosecution witnesses that he threatened to shoot Elderts in the face.
He said it was Elderts who became more verbally aggressive by saying, "You’re going to shoot me? Go ahead. Shoot me."
Deedy testified Elderts also told him, "Oh, so you got a gun. You’re going to need to shoot me. I’ll get you first."
Deedy said he noticed Elderts acting aggressively, dropping his chin and changing his posture.
"This was an immediate behavior before an assault," Deedy said.
Deedy said Elderts then "came at me."
The agent said that based on his training, he delivered the kick with his right leg to Elderts’ thigh to create space between him and Elderts.
At that point, Deedy said he also had his right hand on his gun but had not pulled it out.
Deedy later drew his weapon.
Hart will resume questioning the agent this morning.
Deedy’s attorneys are hoping that the agent’s testimony will persuade Circuit Judge Karen Ahn to allow the defense to present to the jury Elderts’ 2008 disorderly-conduct conviction.
Ahn said the defense had not previously established that there was a "genuine" issue of who was the first aggressor, a requirement for the defense to introduce the conviction.
The defense said the disorderly-conduct case shows Elderts resisting arrest and swearing at police before officers subdued him outside a Kailua bar.
The agent’s earlier testimony Tuesday included his employment background with the U.S. State Department, including his security clearance and training.
Deedy, an Arlington, Va., resident who was born in Massachusetts and earned an economics degree from Tulane University, became a State Department agent in 2009.
Hart questioned Deedy about his training with firearms and dealing with a noncompliant person.
"We’re told constantly to assess and reassess the situation. … The most fundamental thing is to ask questions," Deedy said, later adding, "We are taught to maintain a tactical advantage in an assault situation."
Deedy said he was also trained on taking back or taking away a weapon.
"Your weapon is a deadly weapon. It’s a great responsibility, and we’re given statistics every year on how many officers are killed with their own weapon. It’s a very important topic, how to maintain control of our own weapon."
Deedy testified that federal law allows him to carry a weapon and that the director of his agency issued an email instituting a 24-hour-a-day carry policy.
Deedy said his job in the department’s diplomatic security service included working with then-Secretary of State Hillary Clinton as well as U.S. Sen. John McCain.
He said he was also assigned to the diplomatic mission in Benghazi, Libya, but returned to the U.S. before the Sept. 11, 2012, attack that left four dead, including U.S. Ambassador Christopher Stevens.
