KEALAKEKUA — The prosecution and defense each delivered closing arguments Wednesday after a weeklong jury trial for Brian Lee Smith of Honaunau, who is accused of the murder of Thomas Ballesteros Jr. and attempted murder of Nikolaus Slavik on Painted Church Road in South Kona last year.
The jury is now deliberating.
The 50-year-old Smith faces 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.
He faces life in prison without the possibility of parole if convicted of first-degree attempted murder.
The charges stem from a shooting incident June 23, 2018, on Painted Church Road.
According to testimony provided by several witnesses, including Smith, during the trial, Ballesteros and Slavik were 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 in the head, Slavik was shot three times and Smith was shot in the upper thigh.
During her closing argument, Deputy Prosecutor Kate Perazich said Smith murdered Ballesteros out of anger and attempted to kill Slavik for what he saw.
“Slavik told you exactly what happened that day,” the prosecutor told the jury. “The defendant started this whole incident.”
Perazich stated Slavik’s testimony earlier in the trial represented what actually happened that day.
“The physical evidence supports Brian Smith was the one who fired,” the prosecutor said.
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 reiterated to the jury, however, 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.”
Smith’s defense attorney, Jason Kwiat, told the jury in his closing argument that the issue is why Smith fired the first shot.
“Only Brian can tell us that,” Kwiat stated.
Kwiat continued that the result of the first shot is tragic, but stated his client didn’t intend to “fire the shot at Thomas.”
“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.
The legal focus is on Smith’s state of mind, he said.
“The state has not proven that Brian acted with murder in his heart — because it isn’t true,” Kwiat said.
The jury was released at 4:30 p.m. and will reconvene today to continue deliberations.
Email Tiffany DeMasters at tdemasters@westhawaiitoday.com.
