An appeals court vacated a South Kona man’s 2019 murder conviction, finding a circuit judge erred in preventing the cross-examination of an eyewitness about pending criminal charges at the time of the 2018 shooting.
The Hawaii Intermediate Court of Appeals ruling, handed down Aug. 31, also vacated Brian Lee Smith’s convictions of first-degree reckless endangering and one count of ownership or possession (firearm) prohibited and remanded the case to 3rd Circuit Court for further proceedings, including trial.
The court, however, affirmed convictions of one count of ownership or possession (firearm) prohibited and carrying or use of a firearm in the commission of a separate felony.
Smith was sentenced June 26, 2019, to life in prison with the possibility of parole after 15 years for second-degree murder in the June 2018 shooting death of Thomas Ballesteros Jr.
The judge also sentenced Smith to a consecutive five-year term with a mandatory minimum of three years for first-degree reckless endangerment. Concurrent sentences of 10 and 20 years were ordered for the firearms offenses.
Ballesteros was fatally shot June 23, 2018, on Painted Church Road in Honaunau. Ballesteros and a friend, Nikolaus Slavik, were picking mangoes on the side of the road, across the street from Smith’s residence. About 3 p.m., Smith arrived home, and at one point approached the men armed with a gun.
After a short exchange of words, Ballesteros was fatally shot once in the head, Slavik was shot three times and Smith was shot in the upper thigh.
Smith, in appealing the conviction, contended that Kona Circuit Judge Melvin H. Fujino erred in four ways.
First by prohibiting the defense from cross-examining Slavik about his unrelated arrest June 20, 2018, pending felony charges, and bail status at the time of the shooting, and secondly by preventing the defense from calling a witness to establish Slavik and she conspired to hide evidence. The court further erred by preventing the hearsay statement of a property owner regarding permission to pick fruit and by admitting testimony by a Hawaii Police Department detective that Smith stated he smoked methamphetamine the day of the incident, according to the appeal.
The appeals court determined the circuit court’s preclusion of Smith from cross-examining Slavik about Slavik’s pending criminal charges and bail status June 23, 2018, due to foundation was in error, as potential witness bias, interest or motive is always relevant.
The appellate court further determined the error was not “harmless beyond a reasonable doubt” and might have contributed to Smith’s conviction on three of the five charges: second-degree murder, first-degree reckless endangering and one count of ownership or possession (firearm) prohibited.
Email Chelsea Jensen at cjensen@westhawaiitoday.com.
