Murder suspect back in police custody

  • Brian Lee Smith

KAILUA-KONA — Hawaii County prosecutors confirm the suspect from last month’s fatal shooting on Painted Church Road is now back in custody after he was “erroneously released” from Hawaii Community Correctional Center on Tuesday.

The Department of Public Safety on Thursday announced that state sheriffs and Hawaii County police were searching for Brian Lee Smith after a “mistaken release.”


Smith, who faces a murder charge in the death of Thomas Ballesteros Jr, was supposed to be detained on a $1.15 million bail but was released, according to the Hawaii Department of Public Safety. An investigation into the circumstances surrounding the release is underway.

Smith’s arrest and the indictment filed against him stem from the June 23 shooting on Painted Church Road in Honaunau. At the scene of that incident, police confirmed one person, later identified as 42-year-old Ballesteros, was dead.

Officers also determined that two other men were injured in the incident, including the suspect. Those men left the scene before police arrived and were later located and taken to Kona Community Hospital and ultimately flown to The Queen’s Medical Center on Oahu for treatment.

An indictment filed July 9 charged Smith with second-degree murder, second-degree attempted murder, first-degree attempted murder, two counts of ownership or possession (firearm) prohibited and two counts of carrying or use of a firearm in the commission of a separate felony.

Smith was scheduled to appear in court Thursday afternoon, “but didn’t show,” the release added. Thursday’s hearing was only scheduled after prosecutors learned Smith had been mistakenly released, said Deputy Prosecutor Mark Disher.

The last contact Smith had with his attorney, Jason Kwiat, was Wednesday.

Smith appeared before 3rd Circuit Court Judge Melvin Fujino on July 20 for his arraignment and plea. Smith was in custody at the time and entered a plea of not guilty. Bail was set at $1.15 million.

Since Smith was indicted in 3rd Circuit Court, his District Court case, where charges against him were initially filed, was to be discharged. Disher said Smith was supposed to be held on the bail set in Circuit Court.

“It’s a fairly common practice,” Disher said.

However, the prosecutor cannot say how Smith was mistakenly released.

A jury trial was scheduled for Nov. 13.

A bench warrant was issued Thursday for $2 million.

This isn’t the first incident of its kind. In February, a bank robbery suspect was reportedly released accidentally from jail because of a staff mix-up before being later arrested without incident.

Last June, a man awaiting trial for numerous auto thefts was released and later apprehended following a “paperwork snafu,” in the words of a deputy prosecutor.

In that case, the 3rd Circuit Court didn’t issue orders related to bail or paperwork authorizing the suspect’s continued detention at HCCC, the Department of Public Safety’s spokeswoman said at the time.

The Hilo District Court had dismissed the cases and ordered his release, the spokeswoman added, and HCCC “followed through with the order and released him.”

A Hawaii Tribune-Herald article about that incident noted it was the third time since 2013 that a high-profile defendant was released from custody because of paperwork problems between the courthouse and HCCC.

HCCC, located in Hilo, referred questions to department public information officer Toni Schwartz, who said a full investigation is underway into how the release happened.

“At this point there is nothing more we can say about the matter until the investigation is completed,” Schwartz said.

Smith’s attorney, Jason Kwiat, said he has been in touch with his client.

Kwiat said there was a mixup at HCCC “for whatever reason.” He said he was trying to figure out whether Tuesday’s release was valid when Smith contacted him.

Kwiat said prosecutors found out the release was a mistake Thursday morning, and the court set a hearing for 1:15 p.m. in the hopes Kwiat could get his client there. Kwiat said he wasn’t able to reach Smith in time for the hearing. He added that Smith didn’t have prior notice of the hearing.

Kwiat said he hadn’t spoken to Smith on Thursday, but would advise Smith to turn himself in.

“I am upset and deeply concerned about the erroneous release of pre-trial detainee Brian Smith,” Gov. David Ige said in a press release Thursday. “Residents on Hawaii Island have had to deal with the lava emergency and the recent murder of a police officer, and I know this news is another blow.

“Our No. 1 priority right now is your safety, and that means getting the suspect into custody. I assure you that law enforcement agencies are doing everything they can to locate him. I urge all Hawaii residents to remain alert and call 911 if they see or hear something that could help.


“As is standard operating procedure, the department is investigating to determine what led to this error. I have asked Public Safety Department Director Nolan Espinda to personally oversee this investigation and report back to me as information is gathered.”

Reporters Tiffany DeMasters and John Burnett contributed to this report.

  1. Graystash July 26, 2018 8:17 pm

    Well by doing this “Catch & Release” it gives the Police lots of over time !!
    SAD, VERY SAD !!!

  2. John Smith July 26, 2018 11:44 pm

    Hawaiian government: Swedish levels of taxation for Guatemalan results.

    1. paul July 27, 2018 4:32 pm

      well said john….perfect description dude

  3. KonaDude July 27, 2018 3:21 am

    Wow! It sounds like it’s time for another round of raises!!

  4. guest July 27, 2018 5:03 am

    More incompetence on display. Next up, more tax increases, there is not enough money to safely keep criminals in custody!

  5. Scooby July 27, 2018 5:49 am

    Oh shucks we released a murderer by mistake, our bad. Fire them all and throw in Harry Kim too.

  6. Kona Wahoo July 27, 2018 7:19 am

    Not the first time that third world ineptness (or corruption?) has been shown by the county. Government in Hawaii is basically a joke but the public does not seem to be laughing or maybe just not paying attention.

    1. TaroGuy July 27, 2018 7:38 am

      Hawaii County has its share of screw ups but HCCC is run by the State of Hawaii Department of Public Safety. This one falls right into the lap of the state. And since it has happened three times in a little over a year it does not appear the state has done anything to correct its errors.

      Maybe Governor Ige should have a top to bottom review of the processes within the state’s correctional system.

      1. Scooby July 27, 2018 8:32 am

        True, but the prosecutors office has some culpability and should have made it clear that the case was being dismissed at the district court level but he is to be detained and his case transferred to Circuit Court! How hard is it to stick around another five to ten minutes to follow through on that? Lots of blaming and investigating going on with gross incompetence at all levels of government.

      2. Ernest T Bass July 28, 2018 10:17 am

        Include Professor Ige in the top down process.

  7. Pest Outwest July 27, 2018 7:22 am

    The normal words that should come to mind in a situation like this, such as “shocking”, “unbelievable” . . . don’t. The usual level of bureaucratic competence in this place calls for nothing more than a shrug, business as usual.

  8. metalman808 July 27, 2018 8:55 am

    Maybe someone who released him is trying to get him into more trouble that will only hurt his murder trial. We all know the word (Related) is why the ice heads run out of control on this island and get away with robbing and stealing cars all day.

  9. paul July 27, 2018 4:31 pm

    mistaken release?????? what a cluster F_ _ _!!!!!!!!!! between this and low bail….no wonder crime is an issue…….

  10. Ernest T Bass July 28, 2018 8:55 am

    I suspect Gov. Ige tried to activate the Emergency Warning System Siren again, but couldn’t find the button so he went home.

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