KEALAKEKUA — Testimony in 3rd Circuit Court points to an argument over a woman and a theft that led to last year’s shooting on Painted Church Road that left one person dead and two injured.
On Wednesday, Brian Lee Smith, of Honaunau, appeared before Judge Melvin Fujino for jury trial for the murder of Thomas Ballesteros Jr. and the attempted murder of Nikolaus Slavik.
Charges stem from an incident that occurred on June 23 on Painted Church Road. The 50-year-old is facing charges of 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.
Slavik was among those who took the stand on the first day of trial. He stated he first met Ballesteros in 2006 and considered him to be a good friend.
On the day of the shooting, Slavik testified he was driving his auntie’s truck with his then-girlfriend in the Honaunau area when he saw Ballesteros walking on the road by the Honaunau Rodeo Grounds. The area surrounding the rodeo grounds is a known homeless encampment.
“I asked him what he was doing he said he was going to pick fruit,” Slavik told the court. “I offered him a ride.”
Slavik testified he joined his friend in picking fruit that day. First they harvested avocados and then went for mangoes. Ballesteros would pick and Slavik would hold the bag to catch the fruit.
The group hit three different locations in that area. Deputy Prosecutor Kate Perazich asked Slavik to describe Ballesteros’ demeanor that day.
“He had the demeanor of my friend who I hadn’t seen in a while,” Slavik stated.
Slavik told the court Ballesteros had been going through a lot of personal issues and was just trying to balance his life.
“I saw a light in Thomas I hadn’t seen since I met him,” he added.
Slavik testified they were together for about 45 minutes — an hour at the most. They ended up picking mangoes in an area on the mauka side of Painted Church Road. He stated Ballesteros had the property owner’s permission to pick fruit there.
Slavik’s girlfriend had parked the truck further north from where the men were picking on the makai side of the road by a metal gate.
While at that location, Slavik told the court he noticed a motorcycle pass them in the opposite direction. Not thinking anything of it, they continued their conversation. However, Slavik stated he saw the same motorcycle going past them again.
The witness testified the motorcyclist drove past four times before stopping about 100 yards away south of where he and Ballesteros were picking. At that point, Slavik recalled noticing someone get off the running bike and taking off his helmet.
“I asked Thomas if he knew who it was and he said, ‘Yes, it was Brian,’” Slavik told the court.
Slavik added he had heard Smith’s name before when discussing Ballesteros’ ex-girlfriend.
Slavik testified he knew Smith stayed at a mango farm and Ballesteros’ ex-girlfriend stayed with him. When the men were arguing, Slavik stated he thought it was about the woman.
Slavik testified the man called out to Ballesteros asking: “Where’s my stuff?”
“(He) sounded hostile and angry,” he said of the motorcyclist.
Ballesteros, Slavik recalled, yelled back at him: “I left it at your house!”
At the time of this verbal exchange, Slavik described Ballesteros as above a rocky berm by a fence. At one point he dropped the picker he was using to grab mangoes and made his way down the berm.
“I assumed they were going to exchange words, argue and fight; then I noticed Mr. smith pull a gun from behind his back,” Slavik testified.
Slavik recalled the gun looking like a black and red luger, adding Smith pulled the gun and shot his friend in his left temple at an arms-length away.
Ballesteros died instantly.
“I saw him pull the trigger point blank and execute (him),” Slavik stated of Ballesteros’ death. “He had turned from facing Brian and was looking at me when he was shot. He fell instantly.”
After Ballesteros’ was fatally shot, Slavik testified, the next thing he remembered was Smith walking away then turning around and pointing the gun at him. Smith was about six inches back from an arms-length away from him.
Slavik stated Smith had the gun pointed at his chest and head area.
“He asked me if we were going to have a problem,” Slavik recalled, adding Smith’s tone of voice was threatening.
“I felt fight or flight,” Slavik testified of that moment. “I said, ‘Yeah, we’re going to have a problem. You just killed my friend.’”
Slavik testified he walked off the berm to put distance between Smith, himself and the truck where his then-girlfriend was sleeping.
As he moved, Smith moved, Slavik recalled – “like a dance.”
“We were arguing with each other,” he stated. “I saw his finger move on the trigger and I lunged.”
A shot was fired. Slavik stated Smith pulled the trigger again and it blew off his left middle finger. As the two continued to wrestle, the witness told the court he was shot in the forearm and in the right cheek.
“I thought he actually shot me in my ear cause I couldn’t hear,” Slavik said.
Slavik then recalled saying: “You shot me in the face. What the hell’s wrong with you?”
The witness then testified he forced the gun down to the ground and another shot was fired by Smith, which struck him in his left thigh. After that he let go of the gun.
“Took the gun and whacked (him) in the back of the head, five or six times. Didn’t shoot the gun,” Slavik said. “I split his skull.”
Slavik stated he stopped when he realized Smith wasn’t going to be a problem. At that point, he threw the gun, let go of Smith and proceeded to crawl away.
Slavik testified he started to yell for his girlfriend and told her to call 911.
The 911 call was played for the jury later during the court proceeding. In the recording a man can be heard screaming: “I’ve been shot in the head! He shot me!”
The dispatcher calmly asked for their location and who shot the man. The man in the recording said: “some guy named Brian.”
The callers related they were on Painted Church Road. A woman’s voice is also heard in the call. Her voice was frantic.
“Hurry, he’s f—king bleeding!”
Slavik and his girlfriend ended up meeting up with medics at J’s Super Store across from Honaunau Elementary School where he was then transported to Kona Community Hospital. As a result of the incident, Slavik testified he suffered a shattered jaw and a bullet is lodged against the back of his neck, which causes him to lose balance sometimes. He also states he can’t close his fist all the way.
During cross-examination, Defense Counselor Jason Kwiat asked questions related to Ballesteros’ ex-girlfriend.
Slavik stated the couple was on and off.
“Everyone at the rodeo grounds knew that (she) would stay with Thomas and Brian,” Slavik said.
Slavik recalled Ballesteros and the woman trying to reconcile and didn’t think there were any major issues “because the night prior she was in a truck at the rodeo grounds with Thomas having sex.”
Slavik stated he was not aware the day before the shooing Ballesteros allegedly broke into Smith’s house, stole his property and assaulted his ex-girlfriend.
During the confrontation with Ballesteros, Slavik testified, Smith told him to leave the woman alone and return his stuff.
“They were both angry with each other,” he recalled.
The jury trial continues today.
