Appeals court vacates South Kona man’s murder conviction

  • Brian Lee Smith

An appellate court has vacated a South Kona man’s 2019 murder conviction, finding a Circuit Court 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 ownership or possession (firearm) prohibited and remanded the case to Third Circuit Court for further proceedings, including trial.


The court, however, affirmed convictions of one count ownership or possession (firearm) prohibited and carrying or use of a firearm in the commission of a separate felony.

Smith was sentenced on June 26, 2019, following a five-day trial, 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.

Smith, as of Tuesday, was confined at Halawa Correctional Center on Oahu, according to the Department of Public Safety.

Ballesteros was fatally shot June 23, 2018, on Painted Church Road in Honaunau. Ballesteros and a friend, Nikolaus Slavik, had been picking mangoes on the mauka 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 left the scene of the shooting on his motorcycle and drove to a home in Hookena where he testified during the April 2019 trial that he was scheduled to conduct a paint job. It was there he called a friend to take him to Kona Community Hospital.

Smith also testified Ballesteros had terrorized him and his roommate, stating that the night before the shooting, Ballesteros broke into his home, assaulted the roommate and stole property.

When he saw Ballesteros and Slavik across the street from his residence the following day, Smith stated he was scared and grabbed a gun he used for hunting to protect himself and insisted they leave.

Smith, in appealing the conviction, contended that Kona Circuit Court Judge Melvin H. Fujino erred in four ways.

First by prohibiting the defense from cross-examining Slavik about his unrelated arrest on 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 her 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 had stated he had smoked methamphetamine the day of the incident, according to the appeal.

The Intermediate Court of Appeals determined the Circuit Court’s preclusion of Smith from cross-examining Slavik about Slavik’s pending criminal charges and bail status on June 23, 2018, due to foundation was in error, as potential witness bias, interest or motive is always relevant.

“Because the Circuit Court precluded such cross-examination, the jury did not have ‘sufficient information from which to make an informed appraisal of the witness’s motives and bias,’” the appellate court wrote in its opinion.

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.

“On these counts, Slavik’s testimony was crucial to the prosecution’s case because he was the only eyewitness to the shooting incident, including the alleged murder and his own shooting. In addition, Smith offered testimony regarding the incident that directly contradicted Slavik’s testimony. The case as to these counts thus turned primarily on the credibility of Smith and Slavik,” the court’s memorandum opinion reads.

In affirming the other two firearms offenses, the court pointed to Smith’s own testimony that he possessed the firearm he brought to the incident and that it was loaded with ammunition. The appellate court further found Smith’s remaining points of error did not contribute to conviction on those two counts.

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