Witness describes fatal shooting on Painted Church Road

  • LAURA RUMINSKI/West Hawaii Today Brian Smith watches as opening statements are made during his murder trial Wednesday in Kona Circuit Court.

KEALAKEKUA — Testimony in Kona Circuit Court points to an argument about a woman and a theft that led to a fatal shooting last year on Painted Church Road in South Kona.

On Wednesday, a jury trial for Brian Lee Smith of Honaunau appeared before Judge Melvin Fujino for a jury trial for the murder of Thomas Ballesteros Jr. and the attempted murder of Nikolaus Slavik.


Charges stem from an incident that occurred 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 met Ballesteros in 2006 and considered him to be a good friend.

Slavik testified that on the day of the shooting he was driving his auntie’s truck with his then-girlfriend in the Honaunau area when he saw Ballesteros walking on the road near 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. The group hit three different locations in that area.

Slavik testified that Ballesteros had been going through a lot of personal issues and was just trying to balance his life.

Slavik said they were together for about 45 minutes — an hour at the most. They ended up in an area on the mauka side of Painted Church Road.

Slavik told the court that while they were at that location he noticed a motorcycle pass them in the opposite direction. Not thinking anything of it, they continued their conversation.

But that wasn’t the last time Slavik saw the motorcycle. He testified that the motorcyclist drove past four times before stopping about 100 yards away from where he and Ballesteros were picking. At that point, Slavik recalled noticing someone get off the running bike and take 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 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, Slavic stated he thought it was about the woman.

“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 said Smith shot his friend in his left temple.

Ballesteros died instantly.

“I saw him pull the trigger point blank and execute (him),” Slavik stated. “He had turned from facing Brian and was looking at me when he was shot. He fell instantly.”

Slavik testified that after Ballesteros was fatally shot, the next thing he remembers was Smith walking away then turning around and pointing the gun at 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 said, ‘Yeah, we’re going to have a problem. You just killed my friend.’”

Slavik testified he walked away to put distance between Smith, himself and the truck where his then-girlfriend was sleeping.

“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. The witness told the court that he was shot in the forearm and in the right cheek as the two wrestled.

Slavik testified he was able to force the gun to the ground before another shot was fired by Smith, which struck Slavik in his left thigh. After that, Smith 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 and his girlfriend met medics at J’s Super Store across from Honaunau Elementary School. He was transported to Kona Community Hospital. Slavik testified he suffered a shattered jaw, and a bullet is lodged against the back of his neck.

During cross-examination, defense counselor Jason Kwiat asked questions related to Ballesteros’ ex-girlfriend.

Slavik stated the couple was on and off.

Slavic recalled Ballesteros and the woman trying to reconcile and didn’t think there were any major issues.


Trial continues today.

Email Tiffany DeMasters at tdemasters@westhawaiitoday.com.

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