KEALAKEKUA — While the prosecution insisted Brian Lee Smith was the instigator, the defense asserted the Honaunau man felt terrorized the day of the fatal shooting on Painted Church Road last year.
The state and defense delivered closing arguments today after a weeklong trial for Smith, who’s accused of the murder of Thomas Ballesteros Jr. and the attempted murder of Nikolaus Slavik. The jury is now deliberating.
Smith 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.
Jury was also instructed to consider the lesser offenses of manslaughter by extreme mental or emotional disturbance and manslaughter by reckless state of mind. Smith faces life in prison without possibility of parole if convicted of first-degree attempted murder.
Charges stem from a shooting incident on Painted Church Road on June 23, 2018.
According to testimony provided in the trial, Ballesteros and Slavik had been picking mangoes on the mauka side of the road, across the street from Smith’s residence. At 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 left the seen of the shooting on his motorcycle and drove to a home in Hookena where he testified he was scheduled to conduct a paint job. It was there he called a friend to take him to Kona Community Hospital.
Since it is the state that has the burden of proof to prove the 50-year-old’s guilt, Deputy Prosecutor Kate Perazich delivered her closing argument to the jury first.
She said the defendant murdered Ballesteros out of anger and attempted to kill Slavik for what he’d seen.
“Slavik told you exactly what happened that day,” the prosecutor told the jury. “The defendant started this whole incident.”
If Smith kept driving, gone home or gone to Hookena where he planned to go, “Thomas would be alive today.”
Perazich stated Slavik’s testimony was what actually happened that day on Painted Church Road – the defendant was the instigator.
“The physical evidence supports Brian Smith was the one who fired,” the prosecutor said.
“Nikolaus has spoken to officers the day of and after the incident and his story has stayed the same,” Perazich said. “The defendant’s story has changed numerous times, even within this trial.”
The prosecutor said Ballesteros and Slavik weren’t there to terrorize Smith that day. Slavik and the Honaunau man didn’t even know each other.
“The question is what his intention was when he fired that shot,” Perazich said. “If you believe the defendant’s testimony, he’s guilty of manslaughter because he acted recklessly.”
Perazich told the jury Smith brought the firearm to Painted Church Road that day.
“There is no defense for what the defendant did,” she said.
Testimony in trial indicated the day before the shooting, Ballesteros reportedly broke into Smith’s residence, stole some property and assaulted his friend, Leslie Mosier, the decedent’s ex-girlfriend.
“No one in this case is saying it was OK for Thomas to go to the defendant’s house, steal his property and hurt Leslie Mosier,” Perazich said. “He was not perfect, but he was a human being who had a loving family.”
Perazich reiterated to the jury that Smith was not in danger or in threat of serious bodily injury.
“His testimony, only words were exchanged,” the prosecutor reminded jurors.
What Smith reacted to was two people picking fruit on a public road.
“It doesn’t matter if the defendant didn’t like Thomas or was scared,” Perazich said. “The defendant’s intent was to kill.”
In reference to Smith’s encounter with Slavik, the prosecutor told the jury Slavik was fighting for his life.
Slavik lunged at Smith after he watched Smith gun down his friend. As they wrestled for the gun, Slavik was shot in the finger, forearm and cheek. Smith was also shot in the upper thigh.
Once Slavik took the gun from Smith, he pistol-whipped the 50-year-old several times in the head before throwing the gun and retreating.
“Only when he was too injured to go on did he stop,” the prosecutor said of Smith. “Defendant started this and Slavik was the one who let it end.”
Perazich stated this wasn’t accident; it was murder.
“We ask that you find the defendant guilty,” she stated.
Smith’s defense attorney Jason Kwiat told the jury that the issue is why Smith fired the first shot to begin with.
“Only Brian can tell us that,” Kwiat stated.
Kwiat continued the result of the first shot is tragic, but stated his client didn’t intent to “fire the shot at Thomas.”
Kwiat explained the gun was out, but by Smith’s side.
“He took the gun up there because he was being terrorized and didn’t know what was going to happen,” the defense counselor stated.
Kwiat attacked the integrity of the state’s key witness, Slavik. The defense counselor reminded jurors of Slavik’s testimony where he admitted Ballesteros was angry during the confrontation with Smith.
On top of that, Kwiat stated, Slavik tried to hide a toy gun, allegedly taken from Smith’s home the night before, and then lied on the stand about doing so.
“He’s dishonest. He cares about one person, himself,” Kwiat said.
During trial, Kwiat also questioned Slavik about his guilty plea to second-degree theft of SNAP benefits in 2015.
“The state’s whole case is dependent on Nik’s version of the story,” he said. “This is a dishonest person who steals from needy families.”
Kwiat talked about threats Smith endured in the past by Ballesteros.
“This guy had broken into his home,” the defense counselor stated. “Brian didn’t know what Thomas was going to do next.”
“In all the mango trees in all the county they chose to pick there,” Kwiat said. “Brian’s feeling so violated and terrorized by this guy. Despite this, isn’t it alarming that the prosecution is asking that you find Brian’s actions unreasonable?”
The legal focus is on Smith’s state of mind.
“The state has not proven that Brian acted with murder in his heart — because it isn’t true,” Kwiat said.
“On his behalf I ask that you acquit him of these charges,” the defense counselor added.
The jury was released at 4:30 p.m. and will reconvene Thursday to continue deliberations.