Minnesota Man Faces Double Murder Charges In Home Burglary Case

2smith121112A retired State Department employee has been indicted on two charges of first-degree murder in the latest case involving “castle doctrine” claims. There is little dispute that the two teens, Nicholas Brady, 17, and Haile Kifer, 18, broke in the Minnesota home of Byron Smith, 64, on Thanksgiving Day. Indeed, Brady may have broken into the home twice before. However, Smith’s shooting the unarmed teens and his actions captured on his own videotaping system led to the charges.


Smith was an expert in setting up security systems for embassies and that expertise could prove his undoing at the criminal trial. His own camera system captured his taunting the teens. The tapes show Smith telling Smith “you’re dead” after shooting him and then taunting Kifer and calling her a “bitch” while repeatedly shooting her. He then allegedly dragged the bodies to his workshop and left them until the next day when he called the police. Police report that he told them that he fired “more shots than I needed to” and fired “a good clean finishing shot” into Kifer’s head as she was gasping for air.

That is a bad record to take to a jury. However, he does have the Minnesota Caste Doctrine law:

609.065 JUSTIFIABLE TAKING OF LIFE.
The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.

Notably, the law does not limit the use to a reasonable belief of a threat of great bodily harm or death but also “preventing the commission of a felony in the actor’s place of abode.” That would seem pretty sweeping. The teens were indeed in the progress of the commission of a felony. However, what does “necessary” mean if the teens were unarmed and Smith was armed?

Prosecutors say that Smith shot the teens multiple times as they walked down the stairs to his basement about 10 minutes apart. It will be difficult to prove that he clearly knew the teens were not unarmed unless the videotape shows the teens surrendering. Even under the common law, juries and judges would give a homeowner a considerable degree of deference. With a criminal charge, such uncertainty places directly into the question of reasonable doubt.

Notably, Minnesota’s Governor recently vetoed an expansion of the state’s Castle Doctrine law to extend its protections outside of the home to cars, motor homes, boats and even tents.

There was also an interesting increase in the charges. Smith was initially charged with second-degree murder but the grand jury required first-degree charges.

I have been a long critic of Castle Doctrine laws. The title refers to the old adage that “a man’s home is his castle,” which is not a common law doctrine of criminal law or torts but rather an aspirational statement. The Castle Doctrine is generally a reference to the modern trend of legislatively empowering homeowners to use lethal force solely on the basis of a home invasion.

Under the common law, there was not “fear of prosecution or civil action for acting in defense of themselves and others” so long as you acted in reasonable self-defense or even “reasonable mistaken self-defense.” In the case of Courvoisier v. Raymond, 23 Colo. 113 (1896), a man chased a group out of his home only to fire when a man approached him outside his home from the stone-throwing mob. It turned out to be a deputy sheriff but the court found that Courvoisier could rely on reasonable mistaken self-defense.

The common law has long offered ample protections even for reasonable mistakes. These laws are based on an urban legend that people are routinely prosecuted for defending their homes from intruders. The laws have produced perverse results as in the infamous case of Tom Horn in Texas. Yet, the popularity of these laws have spawned “Make My Day Better” laws that extend the privilege of lethal force to businesses and cars. Montana’s law had been invoked in workplace shootings. As with the Harper case, these cases raise the question of whether lethal force would have been used absent the law, which is criticized as enabling certain people in the use of force. In one case, a Texas man was acquitted after allegedly forcing teens to kneel before him before shooting one. The teens had stolen junk food in his trailer home.

This case raises many of these classic issues of where to draw the line in the use of lethal force. The law was written to allow the use of lethal force in response to felonies in the home. It could well come down to the meaning of “necessary.”

Source: Star Tribune as first seen on ABA Journal

129 thoughts on “Minnesota Man Faces Double Murder Charges In Home Burglary Case

  1. ” Indeed, Brady had broken into the home twice before.”

    Obviously, the column has to present a condensed version, but I am intrigued by your statement above.

    Suggests history between them – a degree of recklessness on the part of Brady (maybe even a deliberate assault), inability/willful neglect by law enforcement, building anger, etc.

  2. Were I on the jury, I expect I would find him guilty. If it was not necessary to kill the teens to preserve his own life then their deaths were his choice and in my mind that makes it deliberate murder. His comments as quoted above are sufficient for me to see that he could have held them for police, I suspect his video shows the same, and IMO he should be put to death. Deliberately.

  3. I would vote with Tony if on a jury. I agree with the to right to use appropriate force in defense but this was an execution.

    Another story, from Texas of course, where a woman, after emptying a handgun at, and killing, a pursesnatcher was cleared of all charges.

  4. I have seen a lot about this case & its not pretty. The guy claims these kids had broken in before but I am not sure how he determined that. He shot the boy & when it was obvious he was not going to die he shot him again – all that without warning or any threat from the biy. He then waited for the girl to come downstairs and shot her. She didn’t die fast enough either but he had trouble with his gun and had to get another, walk over and by his own admission, talk to her before shooting her in the head.

    This was murder no matter what his justifications might be. He was no longer defending his home (you might argue he never really was since he could easily have called the cops & held the two at gun point) even if he had to shoot them the cold blooded execution was murder.

    The kids had no business in the house & deserved to be punished for it but last I check burglary was still not a capital offense in Minnesota

  5. I lived in a condo next to a Houston cop who was constantly stealing my Houston Post from my door. I told the paper to make sure the newspaper guy tossed my paper into the patio area which had a six foot wooden fence around it. Then if the cop came over the fence to steal the paper, I could legally shoot the SOB. I guess the cop knew the law too, and I had no more problems.

    So I am all in favor of castle laws since it should make crooks a lot more wary, and obviously the crooks thought that they were immune from being shot in this case. Too bad. Maybe the next burglars will take this example to heart.

  6. My daughter lives in the Twin Cities and this has been a big story. from speaking w/ folks up there and reading/watching the coverage the good people of the Twin Cities don’t abide this. I’m w/ them. First degree will be tough, it will probably be a second degree conviction. The good people of the Twin Cities also know these kids had some culpability.

  7. Arthur, You really have a problem w/ the Houston police! Do we need an intervention? Hopefully you know now this is simply good natured. I give you a verbal emoticon “wink.”

  8. ns The only problem I have with HPD is that most of them were crooks and killers. Now if they did their job properly and did not steal, rob, and basically acted like the public servants they are supposed to be, I would have no problem. Thankfully, over the years, many of the worst have retired and the KKK is no longer running the place as they were when I first came here.

    I most certainly hope that you TOO would have a problem with them back then. The Houston Post is no longer in existence by the way.

  9. If true.l. It sounds like the necessity ended when they became immobile….. Sucks for him that this guy is good with technology…. It will probably be his undoing….

  10. 1st degree, 2nd degree, that pitch will rest almost entirely upon the video evidence. However, given that the grand jury was sent 2nd and came back with 1st? That’s not a good sign for the defendant. A lone prosecutor might be simply overcharging. A grand jury – composed of a group of people – is less likely to do so. Either way, this guy is going to prison and – as our host notes – for how long is likely to turn on the definition of necessity.

  11. Arthur, I know cops better than most. I know they can be real good and REAL bad, most in the middle..that bell curve. Like yourself, I have nothing but derision for the bad ones. I just refuse to lump all cops in w/ them. I know you don’t, but you must admit in your dark moments, you may sometimes do.

  12. The law might support the first shot for the attempted felony, but the subsequent shots, the killing shots, were deliberate and unnecessary. He needs to spend the rest of his life in prison.

  13. According to police, the shooter left the two bodies in his basement and did not report it to the police because it was Thanksgiving and he didn’t want to bother them on a holiday. The next day the shooter told his neighbor about the two bodies in his basement and the neighbor called the police. The shooter called a lawyer.

    http://www.twincities.com/localnews/ci_22067764/little-falls-man-describes-finishing-teenagers-shots-heads

    “When Brady came down the steps, Smith shot him twice. The teen fell to the base of the stairs, and Smith shot him in the face. He then dragged his body to a workshop and return to his chair.

    “I want him dead,” the complaint says Smith told investigators.

    Minutes later, Kifer came down the stairs, and Smith shot her. After she fell to the bottom of the steps, Smith told investigators, he tried to fire at her again, but his rifle jammed.

    Smith said Kifer let out a laugh — a short one because she was in pain — when the gun didn’t fire. Smith told investigators that angered him, so he pulled out a .22-caliber revolver he was carrying and shot her several times in the chest.

    “If you’re trying to shoot somebody and they laugh at you, you go again,” Smith told investigators. (On the video tape I believe it was when she laughed that he called her a “*itch” )

    He also acknowledged firing “more shots than I needed to.”

    Smith said he dragged Kifer into the workshop. But when he realized she was still alive, he shot her “under the chin up into the cranium,” the complaint quoted him as saying.

    He described that action as “a good clean finishing shot” because he wanted to end her suffering.”

  14. Question haunts Little Falls: What led shooter to kill?

    Article by: JOY POWELL , Star Tribune
    Updated: December 3, 2012 – 6:47 AM

    Byron Smith admitted killing two teen burglars. Some see a decent man, one who helped youths and was only trying to protect himself. Others see a U.S. Foreign Service retiree who coldly executed two wayward teens

    http://www.startribune.com/local/181772751.html?refer=y

  15. “If you’re trying to shoot somebody and they laugh at you, you go again,” Smith told investigators.”

    That’s all they need. He is flat out admitting that he didn’t shoot her again because of fear for his life or even to prevent a felony.

    We don’t know the specifics of the first shooting, but it may be argued that once the guy fell down the stairs, again, the threat was over and there was no additional felony to prevent. He’s already committed Breaking and Entering, shooting him doesn’t stop or prevent that crime. Any evidence of burglary?

  16. How about a story on all the minorities in Connecticutthat are forced into guilty pleas…

    ________________________________

  17. “Lori and Scott Williams, whose property abuts the Smith land, said they were spooked by the man, who often fired guns on his property. They suspected Smith in the disappearance of neighborhood pets, Lori Williams said, and took their concerns to law enforcement. Deputies told her nothing could be done, she said.

    Bruce Smith said neither he nor his brother liked dogs because they leave messes.

    After six or eight burglaries of his house and garage in the past three or four years, Byron Smith was fed up and frustrated because he thought the sheriff’s office wasn’t doing enough to solve the break-ins, his brother said.

    Sheriff’s records show that Smith had reported only one burglary, on Oct. 27, when sentimental items, including his father’s hunting shotgun, were among $10,000 in reported losses

    http://www.startribune.com/local/181772751.html?refer=y

  18. Blouise,

    I knew that he had only “reported” one of the burglaries, but I’m curious about the other alleged incidents.

    I would want to know about all of his contacts with local authorities. Were there 911 or other calls to law enforcement?

    http://www.startribune.com/local/east/180785621.html?refer=y

    “The brother said this was the latest of eight burglaries within the last few years, with the most recent on Oct. 27, when about $10,000 worth of guns, electronic gear and cash were stolen after thieves broke out a panel in a lower-level door. He said not all the burglaries were reported but that the one last month was reported to the Morrison County Sheriff’s Office.”

  19. ap, People report burglaries to the cops unless there is a reason they don’t want the cops @ their house, or don’t want to report what was stolen, eg; drugs. “If you steal from a thief they can’t call the cops.”

  20. Gene H. 1, April 26, 2013 at 11:34 am

    1st degree, 2nd degree, that pitch will rest almost entirely upon the video evidence. However, given that the grand jury was sent 2nd and came back with 1st? That’s not a good sign for the defendant. A lone prosecutor might be simply overcharging. A grand jury – composed of a group of people – is less likely to do so. Either way, this guy is going to prison and – as our host notes – for how long is likely to turn on the definition of necessity
    ======================================
    Points taken, quite sound.

    I looked up 2nd degree in MN:

    609.19 MURDER IN THE SECOND DEGREE.

    Whoever does … the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:

    (1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation

    While the Castle Doctrine seems to be out the window because necessity was not viable in this case … it seems anyway … the issue of premeditation may be more relevant.

    A grand jury, as you know, is not usually like the petite jury because the grand jury does not hear a defense, cross-examination, and instructions prior to deliberation.

    If the jury takes sufficient notice that these young adults kept committing a felony in a person’s home, they may give premeditation a look-see.

    When the teens did it for the nth time the defendant snapped into an impassioned rage, but he had not premeditated killing them … I mean in terms of generally understood “premeditation.”

    The definition seems to be plain vanilla:

    609.18 DEFINITION.

    For the purposes of sections 609.185, 609.19, 609.2661, and 609.2662, “premeditation” means to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.

    Yes, I know this begs the question how much “prior to its commission.”

    Minnesota court cases indicate that it is a fact question for the jury, and they have upheld very short amounts of time to amount to premeditation.

    That means either first or second degree will be valid if the jury returns that as their verdict.

    Either way, “40 years” or “life” most likely mean the same thing because of this defendant’s age.

  21. I can understand firing when there is a question of threat or, perhaps, escape.

    But I find it difficult to accept that the law would allow executing someone when there is clear evidence that the person is not a threat and not a threat to complete the felony.

    The fact that Smith spoke to the victims and dragged one to a different location prior to the killing shot would seem clear evidence that he understood the victims posed no danger to himself or his home.

    To my mind the important point is not that previous break-ins might justify a higher state of vigilance.

    The key point would seem to be that the victims were helpless and Smith had time to determine that and understood they were no longer a threat.

    Smith’s own words would seem to undermine his defense. I don’t think the law allows one to shoot someone for laughing or to put someone out of their misery – regardless of the circumstances.

  22. ap,

    Good question but only one official complaint is on file to back up the brother’s claims. Perhaps other witnesses will testify to the validity of the brother’s words when the trial commences … neighbors, friends, acquaintances to whom he might have complained about the other 7 alleged burglaries over the years … though it’s going to be difficult to tie the two dead teenagers to any of the burglaries except the one he claims they were in the process of committing when he killed them.

    On the other hand we have neighbors who say they suspected him in the “disappearance” of their family pets and talked to the police about it but were told there was nothing they could do … so he might not be able to count on them … might not even want them on the stand.

  23. After reviewing the story I think that an appropriate sentence would be one year– a year in jail to the prosecutor for bringing these charges.

  24. Blouise,

    All good points.

    Stumbled on this:

    http://www.citypages.com/2013-01-30/news/national-stand-your-ground-debate-hits-home/

    “Nicholas Brady, 17, and his cousin Haile Kifer, 18, had robbed an unoccupied home outside of Little Falls just days before, making off with prescription medication. Likely they were looking for more pills when they broke into Smith’s house.”

    “William Anderson, Smith’s neighbor and friend, says that if law enforcement had done its job in October — the last time Smith’s home was burglarized — there wouldn’t be two dead kids today.

    “If they hadn’t been breaking into homes, they would be alive today,” adds Anderson. “That’s what we’re going to write in granite at the local school.””

    It will be interesting to see what comes to light.

  25. Going to get another gun in order to kill somebody is definitely “premeditation,” so is “ending her suffering” by shooting her in the head. So is going over to shoot the boy in the face after he fell down the stairs. That is two pre-meditated murders.

    2nd degree should be off the table. These are both pre-meditated murders, 1st degree, and the prosecutor should go for the death penalty.

  26. anonymously: No amount of previous burglary, robbery or drug abuse justifies killing these teens, not even a little bit. Nor should it be blamed on the cops, no level of failing to catch a burglar justifies murder.

    I will also point out the boy was a minor, at 17. Byron murdered a child.

  27. ap,

    I suspect that is true … the drugs angle or stealing things that can be sold/traded for drugs. The same car found around the corner from Smith’s house had been reported as parked in the driveway of one of his neighbors who was out of town the day before Thanksgiving. The neighbors reported it and the kid, Brady, was picked up, questioned, then let go.

    After all, Thanksgiving weekend was approaching … party time for teenagers. But, and keeping that in mind, let’s revisit Mr. Smith’s own narrative:

    Thanksgiving night … the pictures of Smith’s house show a small, single story structure. Was the house dark? Had Smith retired for the night? Were the teenagers breaking into a house with lights on? Not known.

    Okay, he claims to hear someone breaking in so he goes down to the basement, gets his guns and sits down on a chair, waiting. He hears footsteps on the upstairs floor. He waits as the footsteps start down the basement stairs, when he sees the legs he fires, when the body tumbles down to the bottom of the stairs he shoots the kid again in the face and then drags him into the workshop. He goes back to the chair, sits and waits. For what?

    Are we to believe that the two gunshots were silenced, that a second person upstairs in that small house didn’t hear the noise and get the he!! out of there? Yep, because approximately 10 minutes later the second person comes down the stairs and ends up getting shot multiple times and dragged into the workshop.

    Now, with two dead bodies full of bullet holes in his workshop, does he call the police? Nope, he calls his brother and then waits till the next day to do any official reporting.

    Good things come to those who plan … then wait.

  28. Wow, there’s a depraved mind for you.
    NOT to call 911 when he first realized he was being burglarized?
    Why should he bother with the law? He had a big gun.
    BCDog, what are they putting in your food?
    Or are you just in a bad mood because you’re a son of a b^tch?

  29. Speaking of dogs … I wonder how Mr Smith would have reacted had his neighbors, who suspected him of “disappearing” their family pets, decided to go all vigilante on him when the police told them there was nothing the police could do.

  30. Tony C. wrote:

    “anonymously: No amount of previous burglary, robbery or drug abuse justifies killing these teens, not even a little bit. Nor should it be blamed on the cops, no level of failing to catch a burglar justifies murder.

    I will also point out the boy was a minor, at 17. Byron murdered a child.”

    A full accounting and presentation of the facts is always the best course. Sometimes “the whole truth and nothing but the truth” leads to unexpected outcomes. We have trials in this country for a reason. A jury will decide. Or there will be a plea…

  31. AY: can be tried as an adult, but a decision has to be made. A 17-year old is a presumptive child, especially as a victim.

    AP: Obviously I am providing my opinion of the matter. My opinion will not change if others (like a Minnesota jury) have a different opinion; in my opinion there is no level of previous property crime, vandalism or drug abuse that diminishes HIS crime of deliberate premeditated murder. Ever. No amount of frustration with the law diminishes that crime either.

    If the reporting thus far is factual, deliberation by the jury should be done inside of 30 minutes; enough time to say, “All in favor of killing this evil basturd, say Aye,” and then do the paperwork. Either that or the jury is composed of morons and sociopaths. That is my opinion.

  32. Tony C. Ah, so anyone who disagrees with you, in this particular case, is a moron or a sociopath? Good to know.

  33. Tony C,

    Read the statue in the state you live in… Younger than 17 requires a designation hearing bucko….. If you ARE 17 and commit a crime, I shall say they will sentence you as an adult… In most states…. Nathaniel Abraham was the first successful case of Minor Designation as an Adult….

  34. For those sho want to execute this man, Minnesota has not had the daeth penalty since the early 1900’s.

    AY, In many states it’s called a certification hearing. When I worked as a juvenile probation officer in Jackson, Co. Missouri I had 3 kids on my caseload certified as adults. It doesn’t need to just be a homicide charge. One of the kids I had certified was for raping a 10 year old. At the certification hearing testimony is heard by the juvenile judge about the crime, the defendants criminal history, and psychological evaluations pertaining to both intelligence and behavior.

  35. this guy, Smith, is clearly insane. A “finishing shot”? What a crazy b*st*rd.

    this was cold blooded murder, castle doctrine or not. The guy should go to the padded cell for the rest of his life.

  36. During all of the years I have practiced law, I never heard anyone urge that the common law of self-defense was inadequate for its purposes. The statutes recently enacted in several states, including my own, are essentially licenses to execute any intruder. The state’s case will hinge entirely on a jury’s interpretation of the word “necessary.”

  37. Thank you for a lawyerly response to this. I also live in a castle doctrine state, and I think that is more than likely enough to not find him guilty. I am glad too that they did not extend the doctrine to cars, and other things that are more public than ones home.

    While it is too bad the kids were killed, they brought it on themselves. If they were not crooks, they would not have died. I hope that others so inclined will take note and stop their predations. A guilty verdict will encourage other crooks to continue which is what I am more worried about.

  38. If you think it wrong of one man to execute another person for merely commiting a crime in his presence then how do you reconcile The People of The Great State of Texas executing one man for any reason. Your collective objection to this guy’s shooting to death the intruders is his breaking of the Sixth Commandment. Thou shalt not kill. That is encripted into the criminal statute of every state. How that state deals with violators tells us how much the People of that particular state have any sense of Commands. Here is a guy who goes too far in defending hearth and home. He kills someone and now some of you want to kill him.

    Y’all can. But he can’t.

  39. In light of the fact that his last words to the decedents are going to be used against him, what happens to the person who pulls the switch on the electric chair in Texas when he says “Have a nice day” to the condemned shortly before killing him in the name of Y’all?

  40. I could see the shooting going either way until he finished off the two youngsters. Coup de grâce? Doesn’t hold water in the legal system here.

    I wouldn’t go with the premetidation bit but I would hold there might be PC to arrest for second degree murder (2x).

    Once they were down, he could have phoned the police and held them at gunpoint for his safety until they arrived and took charge. But instead he choose to blow them away. It is that act that bought him the murder charge in my book.

    I’ve been in situations where I had to use force against people, once the other person is no longer threatening you, it is time to restrain them if possible so that they will not further harm you or anyone else and to no longer use force if they are not using force against you.

    This is a situation where this guy should have looked at the worst case scenario and tried not go head in that direction. Once you cross that line, it is a huge big deal that can go on for years and result in worse harm to you than what the threat actually might have been.

    Best to keep in mind. Minimal force to protect yourself.

  41. nick spinelli
    1, April 26, 2013 at 1:34 pm
    ap, People report burglaries to the cops unless there is a reason they don’t want the cops @ their house, or don’t want to report what was stolen, eg; drugs. “If you steal from a thief they can’t call the cops.
    ==========================================================

    also a good reason to wait a few hours before calling and reporting a shooting. gotta clean out the house.

  42. Some commentors beleive it is appropriate for the state to seek the “death penalty” against this guy. That in raw language means to kill him. Kill him for killing them. That is cleaner language. But if we kill him for killing them then how do we square killing him with the Sixth Commandment: Thou Shalt Not Kill. ?

    When our time comes and we are called before the Pearly Gates we are going to have to answer for our sins and transgressions. This guy will personally be closer to the killing than say the People of the Great State in which he lives who killed him by lethal injection. But, how will Saint Peter parse the difference? If I was a citizen of the Great State of Texas I think I would emigrate to a state that does not kill. There is no exception to the Sixth Commandment of Y’all Can.

    Personally I think it was permissible to shoot the intruders. They invaded his home and he was under threat of death. Anyone whose home is invaded is under threat of death. He mocked them when he killed them. I did not see an exception in the Castle Doctrine which says that Y’all cant mock when defending the home.

    Sounds cruel and unusual coming from man’s best friend. But we dogs live in homes too.

  43. If the parents of the two dead intruders have other kids under age 18, or living in their abode, then those kids should be removed from the home by the state and placed in foster care. Those parents, after the grieving, should be questioned about what they knew about their kids behavior. If indeed the two perps had commited crimes recently and mommy and daddy were letting them roam, then mommy and daddy should be charged with the crime of chlld endangerment.

  44. Minimal force to protect yourself? How about minimal DEADLY force when someone invades your home and you are protecting self and home? Home entails the kids sleeping upstairs, the dog sleeping in the tv room while Animal Planet is on the tube. The Castle Doctrine does not say “sort of kill em when they invade your home.”
    People who invade homes should know that they can be killed. Period. No time off for good behavior.

  45. Section 609.065 does not apply in this case:

    609.065 JUSTIFIABLE TAKING OF LIFE.
    The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.

    This law does not apply for two reasons: (1) The circumstances of the shootings can in no way support a conclusion that Smith reasonably believed that he was exposed to “great bodily harm or death; and (2) Smith was a retired State Department employee, not an “actor,” and this law only applies to actors, whether working on the stage, TV, movies, radio, Internet, or any media whatsoever. It is not clear if this law applies to retired actors or unemployed actors, but in any event, because Smith can in no way be deemed an actor, professional or otherwise, the law is irrelevant.

  46. The defendant will want to exclude the evidence of the video. I dont know if Minnesota is a state that adopts or mimics the Federal Rules of Evidence in civil and criminal trials. In any event, the very best trial evidence book has just been published by the National Insttitute of Trial Advocacy. It is: Objections At Trial, by Bright, Carlson, Imwinkelreid, Sixth Edition. For the trial lawyers out there this is The Gospel. If you Google: NITA and go to Publications then it will show up. This is a small pocket book with a spiral binder so that you can leave it open to the right page when you sit at counsel table and get ready for your objection or response. You can find it in your library in the federal district court near you.

  47. bigfatmike at 1:56 pm: “I can understand firing when there is a question of threat or, perhaps, escape.

    But I find it difficult to accept that the law would allow executing someone when there is clear evidence that the person is not a threat and not a threat to complete the felony.” ….
    **********

    What bigfatmike said. After the “threat” was neutralized it became an execution.

  48. After the “threat” was neutralized it became an execution.” -bigfatmike

    On the heels of lottakatz, well and succinctly said.

    But I’d still like to know what might have caused Byron Smith to “go over the edge”, as it were — not to excuse or justify what he did but, rather, to better see the whole picture, perhaps. Were there triggers beyond those about which we’re already aware (no pun intended)? Were there neighborhood, community and/or law enforcement issues that might have altered events? Certainly, these subcultures should hold up under scrutiny.

    Looking for possible explanations isn’t an attempt to excuse what he did but, rather, a way of trying to prevent future tragedies. Operating in a vacuum never serves the greater good.

  49. Dog: But if we kill him for killing them then how do we square killing him with the Sixth Commandment: Thou Shalt Not Kill. ?

    The Biblical commandments are not the law of the land, we do not have to square them with the personal faith of any citizens.

    Our motivations are different. I would not put him to death if he had killed somebody in self-defense (which he clearly did not). Say somebody threatening him with a weapon of their own, or making a physical attack on him.

    That wasn’t the case; nobody threatened his life. His response was wildly out of proportion to any loss he suffered or was threatened with. Ours would not be, he took two lives, and we punish him by taking one. If anything, we should take the rest of his property and turn it over to the families of the teens he killed; that would move the losses further toward balance.

  50. AY: If you ARE 17 and commit a crime, I shall say they will sentence you as an adult… In most states

    At first I thought you misunderstood my post, since we were saying the same thing. However, the above line, while probable, is non apropos, the teen was not charged with a crime, and certainly was not deemed an adult by any branch of law enforcement.

    As I said, such determination can be made, but it cannot be assumed, and certainly cannot be assumed by Byron Smith. He purposely killed an unarmed child lying on the floor after being shot twice.

    Although I have certainly heard of minors being tried as adults, I have never heard of a minor victim being declared an adult postmortem. I do not know if Minnesota has any special law regarding the murder of a minor or not, but maybe they do.

  51. Tony C,

    I think this guy was clearly wrong…. He executed these children…. I also think that trying 17 year olds automatically as adults is wrong too… I’m speaking about some of the high school pranks that but for connections and age some would have felonys….

  52. Darren Smith How many shots are you allowed then? How long between shots do you get? I recall the NYC cops who shot down a guy on the steps of his apartment who was unarmed, and five cops put 44 rounds into him and were found to be justified. Using that as a standard, then it would appear that an untrained homeowner in his own home has more leeway than the police. You stated that the perps should be restrained, but I know very few homeowners who have a set of cuffs in their cupboard or on their person.

    Looking at the statute, it would appear that the guy should get a pass since it states that you can use deadly force to prevent the commission of a felony in ones own abode.I don’t think any person could say that these two were not committing a felony. I think that if you think or somebody has tried to kill you, one can be excused for killing that person in return. A person alone has no means of securing the crooks unless they have a means of restraining them such as cuffs, or they can take the chance that one may recover and do more harm. So how much risk is the homeowner supposed to take?

  53. Here is a Minnesota case where 1st degree murder was included in the charges.

    The defense put on an affirmative defense a la the Castle Doctrine.

    The jury returned a 2nd degree murder verdict: (State v Carothers). I think the past history of the victim weighed on the jury.

    The defense in this Byron Smith case has a steep climb to keep the verdict to 2nd degree murder.

  54. The Carothers case indicates some duty to “retreat” before using lethal force.

    Defendant Smith rettreated to his basement. Those committing the felony followed him.

    After the first shooting the second person, 10 minutes later, rather than running also advanced toward Smith.

    How could he know what caused the apparent lack of fear of the second person … a gun?

    It takes something not normal to not leave the house immediately upon hearing gunshots from the basement where the home owner had retreated.

    An aggressive move toward the home owner following that, 10 minutes later, makes me wonder what anyone would figure as the reason the second burgular was “coming after him.”

    His crazed behavior after he shot the intruders may work to neutralize any benefits of the castle doctrine defense.

  55. His crazed behavior after he shot the intruders may work to neutralize any benefits of the castle doctrine defense.

    My question is still how many times was he allowed to shoot? Once, twice, or as in the NYC case of an unarmed man who posed no threat to the cops, 44 times? If one can legally kill a home invader, who has the incrdible guts to keep on coming after hearing gun shots, what is the problem if the homeowner shoots to make sure they are incapacitated, ie dead. One can reasonably assume the reason for this lack of fear would be that one or both were armed and/or on drugs.

  56. “My question is still how many times was he allowed to shoot? Once, twice, or as in the NYC case of an unarmed man who posed no threat to the cops, 44 times?”

    It seems to me the focus on ‘how many times…to shoot’ obscures the real issue.

    I would argue that what is relevant is the reasonable assessment of threat.

    Shooting someone to put them out of their misery, to me at least, is a clear indication of no threat.

    Dragging some one to another area could, in concept, indicate threat, but in this particular circumstance does not.

    To my mind, Smith shot after he clearly understood there was no further threat to himself or to his home.

    My guess is that Smith’s words and actions will cause problems for him with the jury.

    In my opinion, Smith’s words and actions ought to also cause problems for him as a point of law.

  57. Dredd: Defendant Smith rettreated to his basement. Those committing the felony followed him.

    That is a bullschit assertion. They were unarmed, the most plausible scenario is clearly that they did not even know he was IN the house, they thought he was gone and they were searching the house for something to steal. Perhaps drugs, money, or something they could pawn. They did not “follow” him to the basement, they were unarmed and the boy entered the basement to search it, where Smith was lying in ambush. In all probability, the 10 minute delay before the Kifer girl entered the basement is because she and the boy had split up to search, and she had finished her part and was looking for him. If she heard the gun at all, she may have mistaken the noise for the boy knocking stuff over in a frantic search; since she did not expect anybody else to be there.

    You are correct, it would not be normal for her to enter a basement unarmed (and apparently without any caution) if she knew the homeowner was down there and that shots were fired. That is the very mental model of typical human behavior that we use to infer that she did NOT know the homeowner was down there, and probably had not even recognized the basement-muffled sounds as being gunshots, or she would not have left herself a wide open target at the top of the stairs.

    They were both surprised by Byron Smith; neither of them entered the basement with any intent of attacking him. He ambushed them, and then murdered them.

  58. Tony C. 1, April 27, 2013 at 2:44 pm

    Dredd: Defendant Smith rettreated to his basement. Those committing the felony followed him.

    That is a bullschit assertion. They were unarmed, the most plausible scenario is clearly that they did not even know he was IN the house,
    ======================================
    He shot the first one several minutes prior to shooting the second one.

    Unless the weapon had a silencer on it the loud gunshot should have alerted the second burglar.

    He would have been in his rights to be fearful when the second one came in his direction after a loud gunshot resonated through the house.

    It is not whether a burglar is armed or not, it is whether they are committing a felony or not under Minnesota law.

  59. Dredd: You keep twisting; by his own words he wasn’t fearful, and the Grand Jury had it right. These were murders, and you are defending a child killer out of spite for me. What a pathetic human you are.

  60. It should be an interesting trial, if it gets that far.

    http://www.startribune.com/local/east/183841961.html?refer=y

    Bail lowered for man accused of killing 2 Little Falls teens

    Article by: JOY POWELL , Star Tribune
    Updated: December 18, 2012 – 6:48 AM

    LITTLE FALLS – Byron David Smith taunted the teen as she lay dying, shooting her again and again, according to a prosecutor who said an audio recording shows Smith went beyond self-defense in the Thanksgiving Day shootings of two cousins trying to burglarize his home.

    “The state will show that this was an ambush, and a murder,” prosecutor Todd Kosovich said in a court hearing Monday, recounting the chilling details the recorder captured.

    Kosovich also argued for an increase in Smith’s $1 million bail, but Judge Douglas Anderson ordered that Smith could be released from jail if he posted $50,000 in cash or a $500,000 bond and met conditions, including surrendering his passport.

    Smith, 64, whose friends and relatives say had endured several previous break-ins, turned over the passport to authorities Monday night, but remained in Morrison County Jail as relatives worked to raise the bail money.

    He is charged with two counts of second-degree murder in the deaths of Haile Kifer, 18, and her cousin, Nicholas Brady, 17. The teens were apparently trying to break into Smith’s red-brick rambler along the Mississippi River when he shot them and then dragged their bodies into a workshop where they remained for more than 24 hours.

    Kosovich said that on the day of the killings, Smith had guns within reach as he sat in a chair, between tall bookshelves, facing the basement stairs.

    He had unscrewed light bulbs from sockets, save for one above the stairs.

    There was a loaded rifle next to him and a loaded .22-caliber revolver strapped to his side.

    Search warrants have revealed that Smith, a former security engineer for U.S. embassies, also had a surveillance system that picked up images of Kifer and Brady outside his home. Inside the house police found hours of audiotapes on a digital recorder.

    Kosovich said a recording includes the sound of breaking glass, presumably when Brady broke a rear window, crawled in and then went downstairs.

    Smith shot Brady three times, telling him, “You’re dead,” according to the recording. Within 18 seconds, Kosovich said, came the sound of Brady’s body being dragged on a tarp to a workshop.

    “That’s how fast, that’s how well equipped he was to deal with the death of Nick Brady,” Kosovich said.

    Ten minutes after the last shot, as Smith sat in his chair, Kifer’s voice can be heard on the tape, calling out “Nick?”

    Twelve seconds pass and Kifer begins down the stairs.

    “Then we hear the first shot,” and the sound of her body falling down the stairs, the prosecutor said.

    Smith’s rifle jams. The click is audible and Smith is heard saying, “Oh, sorry about that,”

    As Kifer moans, Smith switches to the revolver.

    After the second shot, Kifer says, “Oh, my God,” and on the third shot, “Oh, God.”

    After the fourth shot, she utters “aw” and Smith says to her: “You’re dying.”

    Now, Kosovich said, she’s on the basement floor, “helpless,” and Smith calls her “bitch.” The sound of Smith dragging her to his workshop is audible and she is heard gasping.

    One minute and 15 seconds later, again calling her “bitch,” Smith fired a shot beneath her chin and into her cranium, the prosecution contends.

    “He shot Haile Kifer three times in the head,” Kosovich told the judge. “There’s no way that’s self-defense.”

    The prosecutor noted that from the sound of the window breaking to when Brady came downstairs, seven minutes passed during which Smith could have called police.

    At that, Smith’s older brother, Bruce Smith of California, laughed in the courtroom. The prosecutor also quoted Smith’s description of Kifer’s death to police: “She gave out the death twitch; it works the same as in a beaver or deer,” the prosecutor quoted Smith as saying.

    “Oh, my God,” one of the teens’ family members whispered in the courtroom.

    In asking for lower bail, Anderson’s attorney, Steve Meshbesher, said Smith is a Little Falls native who retired after 16 years with the Department of Homeland Security in a computer job.

    Meshbesher also said Smith had written a memo to the sheriff’s office about his Oct. 27 burglary and others in the area. His basement door, on a walkout level, had been kicked in, and a lock broken, and guns, cash and other items stolen.

    “He told the police his story because he wanted their assistance and guidance,” Meshbesher said, calling Smith a concerned, good citizen.

    Kosovich argued that Smith is a danger to the community, noting that “he admitted he sat with the bodies for 24 hours.”

    A neighbor, William Anderson, contacted the sheriff’s office 24 hours after the slayings because Smith called him, asking if he knew a good attorney.

    After the hearing, Brady’s grandparents, Steve and Bonnie Schaeffel, said the bail should not have been lowered.

    “That is not who you want to see walking down the street,” Bonnie Schaeffel said.

    She doesn’t believe the cousins were involved in the earlier burglary at Smith’s home, and said they would have deserved legal punishment for breaking in on Thanksgiving.

    Instead, she said, they ran into an enraged homeowner who carried out “a vigilante-style murder of children.”

  61. It should be an interesting trial, if it gets that far.

    ****http://www.startribune.com/local/east/183841961.html?refer=y****

    Bail lowered for man accused of killing 2 Little Falls teens

    Article by: JOY POWELL , Star Tribune
    Updated: December 18, 2012 – 6:48 AM

    LITTLE FALLS – Byron David Smith taunted the teen as she lay dying, shooting her again and again, according to a prosecutor who said an audio recording shows Smith went beyond self-defense in the Thanksgiving Day shootings of two cousins trying to burglarize his home.

    “The state will show that this was an ambush, and a murder,” prosecutor Todd Kosovich said in a court hearing Monday, recounting the chilling details the recorder captured.

    Kosovich also argued for an increase in Smith’s $1 million bail, but Judge Douglas Anderson ordered that Smith could be released from jail if he posted $50,000 in cash or a $500,000 bond and met conditions, including surrendering his passport.

    Smith, 64, whose friends and relatives say had endured several previous break-ins, turned over the passport to authorities Monday night, but remained in Morrison County Jail as relatives worked to raise the bail money.

    He is charged with two counts of second-degree murder in the deaths of Haile Kifer, 18, and her cousin, Nicholas Brady, 17. The teens were apparently trying to break into Smith’s red-brick rambler along the Mississippi River when he shot them and then dragged their bodies into a workshop where they remained for more than 24 hours.

    Kosovich said that on the day of the killings, Smith had guns within reach as he sat in a chair, between tall bookshelves, facing the basement stairs.

    He had unscrewed light bulbs from sockets, save for one above the stairs.

    There was a loaded rifle next to him and a loaded .22-caliber revolver strapped to his side.

    Search warrants have revealed that Smith, a former security engineer for U.S. embassies, also had a surveillance system that picked up images of Kifer and Brady outside his home. Inside the house police found hours of audiotapes on a digital recorder.

    Kosovich said a recording includes the sound of breaking glass, presumably when Brady broke a rear window, crawled in and then went downstairs.

    Smith shot Brady three times, telling him, “You’re dead,” according to the recording. Within 18 seconds, Kosovich said, came the sound of Brady’s body being dragged on a tarp to a workshop.

    “That’s how fast, that’s how well equipped he was to deal with the death of Nick Brady,” Kosovich said.

    Ten minutes after the last shot, as Smith sat in his chair, Kifer’s voice can be heard on the tape, calling out “Nick?”

    Twelve seconds pass and Kifer begins down the stairs.

    “Then we hear the first shot,” and the sound of her body falling down the stairs, the prosecutor said.

    Smith’s rifle jams. The click is audible and Smith is heard saying, “Oh, sorry about that,”

    As Kifer moans, Smith switches to the revolver.

    After the second shot, Kifer says, “Oh, my God,” and on the third shot, “Oh, God.”

    After the fourth shot, she utters “aw” and Smith says to her: “You’re dying.”

    Now, Kosovich said, she’s on the basement floor, “helpless,” and Smith calls her “bitch.” The sound of Smith dragging her to his workshop is audible and she is heard gasping.

    One minute and 15 seconds later, again calling her “bitch,” Smith fired a shot beneath her chin and into her cranium, the prosecution contends.

    “He shot Haile Kifer three times in the head,” Kosovich told the judge. “There’s no way that’s self-defense.”

    The prosecutor noted that from the sound of the window breaking to when Brady came downstairs, seven minutes passed during which Smith could have called police.

    At that, Smith’s older brother, Bruce Smith of California, laughed in the courtroom. The prosecutor also quoted Smith’s description of Kifer’s death to police: “She gave out the death twitch; it works the same as in a beaver or deer,” the prosecutor quoted Smith as saying.

    “Oh, my God,” one of the teens’ family members whispered in the courtroom.

    In asking for lower bail, Anderson’s attorney, Steve Meshbesher, said Smith is a Little Falls native who retired after 16 years with the Department of Homeland Security in a computer job.

    Meshbesher also said Smith had written a memo to the sheriff’s office about his Oct. 27 burglary and others in the area. His basement door, on a walkout level, had been kicked in, and a lock broken, and guns, cash and other items stolen.

    “He told the police his story because he wanted their assistance and guidance,” Meshbesher said, calling Smith a concerned, good citizen.

    Kosovich argued that Smith is a danger to the community, noting that “he admitted he sat with the bodies for 24 hours.”

    A neighbor, William Anderson, contacted the sheriff’s office 24 hours after the slayings because Smith called him, asking if he knew a good attorney.

    After the hearing, Brady’s grandparents, Steve and Bonnie Schaeffel, said the bail should not have been lowered.

    “That is not who you want to see walking down the street,” Bonnie Schaeffel said.

    She doesn’t believe the cousins were involved in the earlier burglary at Smith’s home, and said they would have deserved legal punishment for breaking in on Thanksgiving.

    Instead, she said, they ran into an enraged homeowner who carried out “a vigilante-style murder of children.”

    (One link and it’s “awaiting moderation.”)

  62. Tony C. 1, April 27, 2013 at 11:33 pm

    Dredd: You keep twisting; by his own words he wasn’t fearful, and the Grand Jury had it right. These were murders, and you are defending a child killer out of spite for me. What a pathetic human you are.
    =================================
    Pontificating from your lonely world again Tony C.

    You would make a terrible lawyer.

    Like you, all I know is what I read in the newspaper, except I do not twist it.

    You falsely and dishonestly do twist things in order to molly coddle your narcissistic inner TC and your tiny laity’s world.

    I convey all the facts and/or allegations the jury will hear, speculating on how those issues may or may not impact their decision:

    Some of Smith’s neighbors and relatives have said that he was acting in self-defense after a series of burglaries at his home in the weeks and months preceding the shootings. Court records in a related case against one of Brady’s friends allege that Brady took part in at least two burglaries of Smith’s property last summer and fall.

    He was scared,” his attorney, Steve Meshbesher, has said of Smith.

    (Star Tribune). You are very much like the pitchfork wielding Luddite crowd who incessantly yell at lawyers “how could you defend that scum“, thus exposing your growing distance from the high school level understanding of the Constitution, down toward the Akinoid level.

    Some of those neighbors and others with like proclivities may be on the jury, and a seasoned lawyer, whether prosecution or defense, will be aware of that.

    A competent lawyer must be mindful of the world of the jury rather than injecting their own wishful thinking, as you do, into the mix.

    You might also take note of what the presiding judge said and ruled when the prosecution attempted to put him in jail without bond, as a reaction to the Grand Jury increasing the charge, up from 2nd degree as the prosecutor requested, to 1st degree:

    Smith was released from jail in December after posting $50,000 bail. At that time, he was ordered to turn over his passport and surrender all firearms to law enforcement. He also was prohibited from any contact with the families of the victims.

    His court appearance Thursday, with Meshbesher at his side, was his first since December.

    Wearing a gray suit and carrying a tan overcoat, Smith sat quietly as Meshbesher and Washington County Attorney Pete Orput, who is prosecuting the case at the request of Morrison County, debated whether Smith should be arrested again.

    Orput, citing the serious nature of the offense and the prospect that Smith could spend the rest of his life in prison if convicted, argued that Smith is a flight risk.

    He asked that unconditional bail be set at $2 million.

    “Friends could harbor him if he decided to leave,” Orput said.

    But Meshbesher said that his client “has abided by all the terms and conditions” of his release, set by the court in December. He said jailing Smith again and resetting bail were “not necessary.

    “He has not gone anywhere or done anything” without the court knowing of it, Meshbesher said.

    District Judge Douglas Anderson, citing Smith’s clean record before the shootings and the fact that the shootings occurred after intruders entered Smith’s home, ultimately decided that Smith would not be detained and that conditions of his bail would remain unchanged.

    Smith’s next court appearance is set for July 1.

    (ibid, emphasis added). You would do will to read some Minnesota law then contemplate both sides of the issue before spouting off things you hear on Faux Snooze.

    Jury trials often surprise people because they do not try to think about how the jury is going to handle the opposing allegations and testimony.

    That is why lawyers take reason to court instead of pitchforks.

  63. “Jury trials often surprise people because they do not try to think about how the jury is going to handle the opposing allegations and testimony.

    That is why lawyers take reason to court instead of pitchforks.” -Dredd

    Bears repeating.

  64. Dredd: Read the transcript of the article by Powell in the Star Tribune. It confirms my hypothesis and refutes yours. Because you do not understand how the world works, and I do. He ambushed them, he purposely undid the lights, except the one he needed to aim, and then lay in wait. The girl did not “follow” him to the basement, she was looking for Nick and called out for him, after the gunshots. The recording backs that up.

    Keep twisting; you are defending a real-world sadistic child murderer and you are taking sick pleasure in it, reveling in the torture of children.

  65. I see that the really dangerous persons walking the streets are the relatives of the crooks. They seem to think that it is OK for their sons and daughters to break into homes and be safe from the owners doing something bad to them. They refuse the right of self-defense for the poor guy who was their victim I can understand why their children became criminals now. Had they brought up their kids to fear for the consequences of their actions, they would be alive today. Instead they make excuses for their kids. They think that just because the crime that they committed was not punishable by death means that they are supposed to be immune from deadly force in the commission of a crime.

    It is amazing that one can be accused of setting an ambush in your own home. I guess that simply having a gun in your house is setting a trap if you take actions to protecf yourself and that it is the fault of the homeowner for having property that the crooks want. INcredible.

    While it is too bad that the crooks died, it is THEIR FAULT. Period. Now if the homeowner had tied them up and tortured them, then you might have a point. The facts and the law as I read it give the guy safe harbor.

    A case which I DO think was attempted murder was the Goetz case in NYC. That was done in a public place, the kids were exactly that, had committed NO crime, had no weapons, and were no threat to Goetz, and retreated from him, yet they got shot, and then he tried to finish them off.. My position is once you commit a felony in the victims home, you become a legal target for whatever the homeowner does to you to stop and render the crook dead or harmless. So if they can let Goetz off, I see even more reason to find this guy not guilty..

  66. Tony C. 1, April 28, 2013 at 10:23 am

    Dredd: Read the transcript of the article by Powell in the Star Tribune. It confirms my hypothesis and refutes yours. Because you do not understand how the world works, and I do. He ambushed them, he purposely undid the lights, except the one he needed to aim, and then lay in wait. The girl did not “follow” him to the basement, she was looking for Nick and called out for him, after the gunshots. The recording backs that up.

    Keep twisting; you are defending a real-world sadistic child murderer and you are taking sick pleasure in it, reveling in the torture of children.
    =====================================
    I would be impressed with your ramblings if you were the jury.

    Your fantasies are fine, make all you want, but the jurists and lawyers in the case do not have that play pretend luxury.

    The jury will hear all the allegations of fact, and the judge will have to hear all the arguments of law, and you won’t have any impact on it.

    So, soiling your knickers over it is ill advised.

    Every statement of fact I have stated comes from the reports, and so do yours.

    It is just that you err when you think your version is the only one the jury will hear.

    Don’t fret so senselessly.

  67. ‘ Now if the homeowner had tied them up’

    It seems to me there is, perhaps, another way to think of this event.

    At some point the legal justification to use lethal force has to terminate else individuals could walk around shooting anyone they please.

    I would argue that the legal justification for lethal force terminates when the crime is over.

    Could the home owner track the perpetrators to their home and shoot them there – I don’t think so. At point the crime complete and the threat to the home owner ceases.

    Could the home owner take the perpetrators into custody, handcuff them and then shoot them? I would argue – no – the threat to the homeowner and the threat of completing the crime are over when the perpetrators are in custody.

    In this case the homeowner shot the women as she lay, presumably helpless and likely mortally wounded, on the basement floor. In his words he shot her, not to deal with a real or perceived threat, but to put her out of her misery.

    It seems to me that in so far as the commission of the crime is concerned there is no difference between being tied up, and being wounded on the basement floor. In either case the perpetrator has no further ability to conduct the crime.

    Once the crime has terminated, I wonder what conceivable justification there is for the use of additional force.

    BTW, I don’t think anyone has suggested that the homeowner should not be able to defend himself or his home. What is under discussion is whether the homeowner can apply the coup de grâce once the perpetrator is helpless.

    What ever justification there is, it clearly has nothing to do with protecting the home owner or property.

  68. Arthur: It is amazing that one can be accused of setting an ambush in your own home.

    The ambush is in the purposeful deception with the intent to kill. The fundamental flaw in your concept is the idea that no laws whatsoever apply because you are in your home. To take an extreme example, do you also believe Smith could have tied up and raped the girl at gunpoint? Wouldn’t that have been a lesser crime than ending her life? If you believe that would have been wrong, why would rape be against the law but voluntary murder within it?

    I am not a lawyer, but I believe it is fair to say (as the Grand Jury also apparently believes) the Castle Doctrine does not exempt one from all law, it only protects one in defending one’s life or property within the home. it does not give a license to deliberately choose murder, it recognizes the use of lethal force may be necessary in the defense of life and property.

    These killings, however, were not necessary at all. Smith was never attacked, the kids did not even know he was in the house. He purposely deceived them multiple times and set a trap with the clear intent of killing them.

  69. Dredd, Well said..very well said. Some folks throw out words like, “sociopath,” “liar,” kill the b#stard,” so cavalierly. That says much more about the person speaking those words than it does about anything else. I’ve seen too much pain and death in my professional life. I’ve seen the pain inflicted by sociopaths and liars. That’s why I use those words carefully. And, despite all the horror I’ve seen done by bad people, I have never uttered the words, “kill the b#stard,” and never will.

  70. Dredd: Every statement of fact I have stated

    I am not concerned with any statement of actual fact, I am concerned with your misleading statements and speculation that you present as fact but have nothing to do with fact. For one example from many, your false claim that the teens “followed” him into the basement. No, they didn’t. They did not know he was there, they both entered the basement without any caution, and the girl entered the basement calling out, “Nick?” which means she was obviously looking for her cousin and did not know he was dead, she had not parsed the gunshots as gunshots, and she walked through the basement door unguarded and without any expectation of being assaulted by anyone. She was not “following” Smith; and neither was Nick when searching the house. As the surveillance video shows the teens weren’t even in the house when Smith set up his trap, they were outside it, and they never saw him in the house.

    But perhaps you are just so dense you think this is some fun debate and you fail to apprehend that two teens were killed in real life for no good reason. I have not forgotten that, and do not care to treat that tragedy as cavalierly and callously as you obviously do.

  71. The fact is that those two teens were killed for the REASON that they were committing a violent felony. I am amazed that some people can read minds. So since I am a far better mind reader than most, I will say what Smith thought. He knew that his home had been burglarized many times in the past, so he took defensive measures. He put himself in the out of the way basement, not his bedroom where he would stand little chance. So he shoots one crook, and the other one hearing the shots, rather than running comes down to investigate, showing that the person is more than likely ARMED. Smith knows that they know he is home since his car is there. It is nighttime,thus indicating that they have to assume he is home. Thus he shoots the next crook and shoots again and again. The law does not say he is only allowed one shot. Nor does being shot qualify as being harmless since even mortally wounded people have proven deadly to others.

    While it is too bad that these kids did not survive their youthful stupidity, they have no grounds for complaint. Don’t do the crime and they would have been fine

  72. Arthur: No, they were NOT committing a violent felony, they were committing a property crime which is definitively NOT a violent crime.

    You have absolutely zero proof the girl “heard the shots” and she probably did not, since she was recorded saying, “Nick?” which is the boy’s name. She was not attacking, she was searching for her companion. They were not committing a violent crime, they were committing a property crime. Look it up.

  73. Nick: Some folks throw out words like, “sociopath,” “liar,” kill the b#stard,” so cavalierly. That says much more about the person speaking those words than it does about anything else.

    That was me that said that; and in the hypothetical context of being on the jury where the decision to put Smith to death would be mine to legally propose, as bluntly as I wish during jury deliberations.

    What that says about me is I believe those that demonstrate inhumanity, sadistic brutality and a disregard for life deserve the same in return. I do not value the lives of monsters in the least. I will respect the law, but I definitely believe Smith deserves to be treated the same way he so cavalierly tortured and killed a child, and a near-child.

    If I were on this jury, I would absolutely veto any verdict but “guilty as charged.” I would let it be a hung jury, if necessary. I hope this goes to trial and there is at least one person on the jury with the steel to do the same.

  74. Once again, a moot argument. There has been no death penalty in Minnesota for over 100 years. However, please feel free to vent. I thinks it’s helping a bit.

  75. According to TC almost every crime would be a property crime then. From car jacking, bank robbery, since all of those crimes involve taking property. The fact is that burglary is as some say an inchoate crime which puts in jeopardy the safety of the people in the dwelling, thus it is a violent crime. If no person had been home, THEN I would agree that it would only be a property crime. Smith had no possible way of knowing whether or not the crooks were armed, In fact, waiting until the crooks shoot is a good way to wind up dead if they are.

    I find it almost impossible to believe that a person in the house could not hear a rifle going off. That makes one hell of a lot of noise and only if the house was a mansion with 30 or so rooms, then you might have a case. Simply calling out the crooks name does NOT mean she is not armed. Incredible that you can make such a leap..

  76. Ap,

    The other day I experienced the same “awaiting” hold … I changed the word *itch and it went through.

  77. Arthur: A property crime involves property. A violent crime involves attacking a person. These teens were not attacking anybody; the transcripts that refer to specific parts of the video make it clear they thought the house was empty, and when each teen entered the basement they had no idea Smith was even there until he shot them.

    Therefore any crime they were committing was a property crime, not a violent crime. They cannot have had any intent to do him harm if they did not know he was there.

    A mugging or car jacking can be both a violent crime and a property crime. A person can be charged with more than one crime; like assault and theft. These teens were NOT involved in a violent crime, the descriptions of the video, the remarks of the prosecutor, both show there will be zero evidence they ever attempted to attack Smith. They opened the door to the basement while in the course of a property crime, and got shot by somebody they did not even see, because Smith had purposely turned out the lights and was sitting in the dark to ambush them.

    That you “cannot imagine” something does not surprise me in the least.

  78. Nick: The lack of recourse to the death penalty does not make my argument moot in the least; my argument was not about the specific penalty. Had I known that, the argument remains the same, one question is needed; “All in favor of letting this basturd rot in jail the rest of his life, say Aye.”

    The argument is over how little jury deliberation is needed once the testimony is heard. But of course, you are too inept to maintain focus on real arguments, all you can do is look for inconsequential inaccuracies.

  79. I pointed out Minnesota does not have the death penalty 2 days ago. To say that fact is inconsequential is ridiculous on several levels.

  80. Nick: Any defense attorney worth a damn would try to plea this out; even a remote chance of parole would be better than what I suspect a jury will give him. The Grand Jury decision is evidence of that.

    But I have been chosen for more than one jury; I have a reasonable amount of control over my body language and expressions, and I can tell the truth without disqualifying myself. What do you think they are going to ask me (that they CAN ask me) that I cannot answer without disqualifying myself?

    I personally own hand guns, and I believe using lethal force against a home invader can be justifiable. The problem is not my beliefs, the problem is the specifics of this case; Smith was not acting in self defense or defense of his property, in my opinion he was engaged in opportunistic thrill killings because he thinks he can get away with it.

  81. Nick: No, it is thoroughly inconsequential, because it doesn’t change my argument in the least, which is that the evidence already on the table is overwhelming and I doubt jury deliberations will take long at all; if they happen at all.

  82. Given the fact that they attacked his home at night. His car was still there Those things lead ME and Smith to conclude that they knew somebody was home. Thus they were going to attack him if they ran into him or possibly run away, but with two against one old man, I have a good idea how that was going to go. Smith has to assume the worst for self defense which is why the law is written to allow deadly force.

    This is like saying that all that they wanted to do was to steal all his money, high priced objects, and knew he would be there, and if he resisted they would beat him. So why did they deserve to get shot and killed?

  83. Tony C. Glad to hear that as a juror with experience there is no need for deliberations. It is really disturbing to hear that you would not quite tell the whole truth to get on a jury with prejudice against the defendent.

  84. randyjet: I am a juror with experience as well; I have been selected multiple times. I would not lie, I would answer any questions they have truthfully. It is the truth that I own guns, and believe it can be justifiable to use lethal force against a home invasion. What gives you the impression I would not tell the whole truth?

  85. Since you say it would not take any deliberations at all, and you would like to serve on that jury, it would take some prevarication for you to make it on the jury.

  86. It is quite consequential to the defendant on which you have been hating the last couple days! Are you having problems w/ abstract and reality? You seem to be jumping around those two spheres. And although I would never call you a liar about being able to con a good defense attorney during voir dire, you are quite full of yourself and I would bet that comes shining through w/ your words and body language. You have admitted being arrogant. That’s a real tough one to hide, although the best sociopaths can.

  87. randy, Our professional juror thinks it’s all about the answers, which shows how little he knows about the craft of selecting a jury.

  88. randy, I think you, I, and probably others know he would be the first peremptory challenge. “Thank you for your time, sir.”

  89. “So why did they deserve to get shot and killed?”

    That is a good question. A person like myself might agree the shot when she was at the top of the stairs was reasonable.

    But the close approach to fire into the head would seem to require some explanation. And the coup de grace under the chin yet more explanation.

    I realize that the reports we have read regarding this incident are many layers removed from the reality faced by Smith.

    But if you are going to try to hang those final shots on threat or Smith’s perception of threat, then you are going to have to show me more.

    In fact, the last thing that would have occurred to me is that Smith fired those last shots out of fear of the intruder. Based on what we have here I am not buying into that.

    I am just not seeing it.

  90. I have to agree with you bfm on the reality of the situation. If I were on the jury, though I would have to vote not guilty since it was done in the heat of passion. He did not wait an hour or a longer period which would let him cool off and reflect. Thus I think that one could say that he was not in his right mind in terms of being rational and making sound decisions.

    Using the Goetz jury precedent in which he shot unarmed kids in a public place who posed no threat, I DO fear for our society in letting Goetz get off since he is clearly a danger to all minorities in public, especially young ones. This guy is NO danger whatsoever to the rest of us. I would think twice before I accepted an invitation to come over for some drinks though. I also fear that it will send a bad message to other crooks who will look upon a guilty verdict as free pass to do the same as those crooks.

  91. Jesting about “actors” aside, section 609.065 gives Smith the loophole that he needs. The law allows Him to justify killing the two individuals on the basis that he was “Preventing the commission of a felony in the actor’s place of abode.” That’s pretty much the long and short of it.

    I believe that this law came about as a result of a case that was famous decades ago. That case involved a man whose home was repeatedly robbed, often More than once within a month. The thieves use the same means of access to the house virtually every time. The man tried traditional security measures, but to no avail. Ultimately, The man created a special trap for the Thieves. He wired the specic passage that they used to access his home in such a way that it would cause the person entering to get electrocuted. And the next time the robber try to get into his house he was in fact trapped and electrocuted. The man was convicted of murder. Section 609.065 Seems to specifically address circumstances just like that case.

  92. randy: it would take some prevarication for you to make it on the jury.

    No, it wouldn’t. And apparently I do not have the face for peremptory challenge; or do not wear my emotions on my sleeve or in my voice, or dress unusually or whatever it is that causes peremptory rejection.

    My profession did not deter any attorneys, I do not know the defendant, I was in the military.

    You seem incapable of answering my question: What can they ask me that I cannot answer truthfully?

    The only thing I can think of is that I have read about this case before; which might exclude me from being on this jury in reality. But not being a resident of Minnesota does that already; so obviously my hypothetical does not include such details. I will repeat the preface of my hypothetical: Were I on the jury, I expect I would find him guilty.

    To be on the jury, I would have to survive voir dire. If I had never heard of this case before, the evidence that is going to be presented, the video and transcript, would be sufficient to prove to me 100% this man committed murders. To my mind the “escape clause” of Minnesota law, 609.065, would not apply: Neither the killing of the boy or killing of the girl was done with the intent of preventing a felony in Smith’s home; both were disabled by the first gunshots. They were on the ground, not getting up, and the felony was already prevented.

    The impulse of the moment is not a defense against murder; if a man has time to walk over to somebody, taunt them that “they are dying,” and still pull the trigger, they are committing murder. It is also not a fact that the teens would have died anyway, and imminent death is not an excuse for murder; you will still be charged with murder if you kill a cancer patient circling the drain. The “heat of the moment” is not an excuse, as we have discussed at length on this blog under different topics. A crime committed on impulse or under emotional duress is still a crime; ask anybody in prison for killing somebody over an insult in a bar.

    Were I on the jury, then hearing the evidence presented so far would convince me Smith committed intentional, premeditated murder, and I would vote that way until everybody agreed with me or the jury was hung, even if that took a month. Whatever is within my rights and power as a juror to do to have him found guilty, I would do.

    I hope the actual jurors feel the same, IMO this man is a cold-blooded sadistic murderer. Defending one’s home does not extend to sadistic torture and thrill killing, which is what I think happened.

  93. “What can they ask me that I cannot answer truthfully?” -Tony C.

    “Have you already formed an opinion about the case?”

  94. AP: You fail to understand the hypothetical. I have already addressed this issue above. If I had never heard anything about this case, and I was selected for this jury, then upon hearing the evidence that is presented above I cannot see any extenuating circumstances that would prevent me from insisting this man is guilty of two premeditated murders; that he has crossed the line from home defense or self defense into setting a trap to murder two people because he thought he could get away with it.

    I am not talking about reality; I am talking about a hypothetical situation in which I am a resident of Minnesota and ignorant of the details of the case. In such a situation I might be sympathetic to Smith, I believe people do have the right to defend themselves with lethal force, I do believe an intruder in the home presents a threat, I have handguns in my home for precisely that reason (and my life has been threatened by people I have helped put in prison). To my knowledge nothing in my background or belief system would invite rejection. But if the above details of this case became known to me during the course of the trial, then guilty would be a slam dunk. In my mind “defense” does not permit deliberate execution of the helpless, any more than it would have permitted Smith to rape the girl (or boy) and then kill them. His defense was accomplished for some time before he shot either of them in the head, long enough for him to taunt both of them, which demonstrates to me he was not fearful of them in the least. They were already prevented from committing any further crime against him, he clearly knew that, and to me that makes his further injurious actions sadistic cruelty and deliberate murder.

  95. Let me rephrase the question:

    “Have you already formed an opinion about the case… or this type of case?”

  96. AP: My answer in the hypothetical situation of being ignorant of the details would be, “I have not formed an opinion about this case. For this TYPE of case, I believe lethal force can be justified in cases of home invasion.”

    That would be a truthful statement; as I said before, I do believe that.

  97. http://minnesota.publicradio.org/display/web/2013/04/25/news/little-falls-shooter-byron-smith-charged

    “”A lot of the evidence we presented has to remain secret at this point. But it’ll all get presented in trial,” Orput (Smith’s attorney) said. “I’d just ask folks to not make up their minds. Wait and listen to the evidence as it gets presented.””

    Tony C.,

    Is there anything that you might hear that might make you change your mind?

    ——————————-

    “AP: You fail to understand the hypothetical.” -Tony C.

    No. But what I do understand is the face of a man who’s already made up his mind. Without knowing all the facts.

  98. Tony C.,

    “As you’ve read and listened to the news, have you ever reached a determination about guilt or innocence, based on what you’ve read and heard, without knowing all the facts?” If so, could you please give an example?

  99. AP: Well, I have seen news video of a man robbing a store at gunpoint and shooting the clerk behind the counter. I think that man was guilty. I am not sure what “all the facts” may mean in this case, but at some point in any case there are enough facts presented that I doubt any new information could change my decision. Isn’t that true for everybody?

    If that disqualifies me, I think it disqualifies all jurors. In the present case, I am assuming the video content and transcript of the voice recordings are as described by the official sources, and that is what I would see as a juror.

    If that is all a fabrication, then in my hypothetical I would not see or hear those recordings, and my opinion would be different. I sincerely doubt that is true, however. As I have always said, in this hypothetical, if I were on the jury and the evidence as described above was presented to me, THEN guilty would be a slam dunk. To the extent that description of the evidence is accurate, my opinion is that Smith committed torture and murder.

  100. ” They opened the door to the basement while in the course of a property crime, and got shot by somebody they did not even see, because Smith had purposely turned out the lights and was sitting in the dark to ambush them.” (Tony C)

    Which, I suggest, was the reason for dragging the first body away from where it had fallen at the base of the stairs and putting it out of sight in the workroom. He didn’t want anyone else who might be coming down the stairs to see it and retreat.

    I keep wondering why he kept the tapes as they certainly seem to contradict his rendition of what happened. I’d be interested to know where they were found.

  101. “…at some point in any case there are enough facts presented that I doubt any new information could change my decision.” -Tony C

    At what point in a hypothetical trial might that occur?

  102. Blouise: Excellent point.

    AP: That is up to the individual jurors; it is their civic duty to decide with whatever evidence is presented, and it is up to them to sort any contradictory evidence and decide what they think is most credible and what events were most plausible. That is why we have juries instead of computers; I believe it takes humans to interpret human actions and motivations and testimony. Ultimately it is a human decision, whether or not “all” the facts are in evidence, in this case to decide beyond their own definition of what constitutes a “reasonable doubt.”

    Presented with the evidence as described, I would not have a problem making that decision. The fact that he can get close enough to the girl to put the gun under her chin and pull the trigger, without her harming him in any way, would be proof enough to me that she presented no further danger. The same for the boy; if he can stand over him and shoot him in the face with a rifle, as described, and the boy cannot escape or defend himself from that in any way, he could also not do any harm to Smith. Smith was not in danger, and knew it. If the boy cannot defend himself from that act, he also could not commit any further crime.

  103. Perhaps not “their own definition,” but their own personal understanding of the court’s definition. For me, at least, that was given by the judge in rather vague terms wide open to interpretation.

  104. 1) anonymously posted 1, April 29, 2013 at 1:04 pm

    “…at some point in any case there are enough facts presented that I doubt any new information could change my decision.” -Tony C

    At what point in a hypothetical trial might that occur?

    2) Answer:

    “AP: That is up to the individual jurors”…

    =======

    Is it?

    https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-584.aspx

    “The judge also will instruct the jurors … that they must wait until all the evidence has been presented and the case is submitted to them for their group deliberation before they determine guilt or innocence.”

    While what we’ve seen and heard, to date, may be compelling, the jury is still out. So to speak.

  105. AP: So the judge instructs the jurors. And of course, by the time the jury determines guilt or innocence, all the evidence that is going to be presented has been presented (but that is not necessarily ALL the evidence that possibly exists; for example some people are exonerated by DNA evidence that was not presented at their trial, therefore their jury convicted them without knowing ALL the evidence available).

    I agree with that; I will withhold final judgment on guilt or innocence until the last word has been said; but that does not mean that within the first day I won’t be certain beyond what I privately consider a reasonable doubt of what that final judgment will be.

    The judge’s warning is an unenforceable and unrealistic restriction, the law cannot know or control what has happened inside my head or what level of certainty I have reached. I do not think it is a reasonable demand of a human to have them withhold judgment after watching a videotape of one man shooting and killing a defenseless person in cold blood; the court might as well demand that they fly. Human brains do not work that way, they process information and arrive at conclusions whether we will them to or not.

    On one of the juries I served on; all twelve jurors, upon entering the deliberation room, spontaneously declared “That woman is a liar,” or words to that effect. All twelve. They did not suddenly come to that conclusion after closing arguments; their determination, like mine, was arrived at during her laughably implausible testimony on the stand, two days before, the reason it burst out was because it had been stewing and the pressure to declare that certainty had been building for two days. But (I think) the jurors were honorable and had not discussed it with each other. It is not a reasonable demand of the human brain to hold days or weeks worth of testimony in mental limbo without processing it and consolidating it and coming to interim conclusions. Neurons don’t do that; they fire whether you like it or not.

    So if you want to talk about a fantasy, I won’t argue. If you want to discuss the real world, the evidence described above would reach a tipping point for me well before all the evidence had been presented. I think if some final bombshell were available to tip it back, that would have been disclosed above, too. In my opinion, the right to shoot an intruder is not a right to disable them and then torture them and execute them.

  106. http://www.startribune.com/local/189944661.html?refer=y

    Teen charged in break-ins before Little Falls killings

    Article by: RICHARD MERYHEW , Star Tribune

    Updated: February 5, 2013 – 9:22 PM

    A Little Falls teenager who once worked odd jobs for Byron David Smith was charged Tuesday in connection with two felony burglaries at Smith’s home in the months before the homeowner shot and killed two teenage intruders.

    Cody M. Kasper, 17, worked on Smith’s property last summer with 17-year-old Nick Brady, one of the shooting victims, according to Twin Cities defense attorney Steve Meshbesher, who represents Smith and who attended Tuesday’s hearing in Little Falls on behalf of his client.

    =====

    “Two felony burglaries”, but only one report was filed?

  107. http://www.startribune.com/local/204902571.html?refer=y

    Friend of slain Little Falls teen pleads guilty to break-in charges

    Article by: RICHARD MERYHEW , Star Tribune
    Updated: April 26, 2013 – 7:50 PM

    LITTLE FALLS, MINN. – A friend of the teenage boy who was shot to death after breaking into the home of Byron Smith last Thanksgiving Day pleaded guilty Friday to charges that he twice helped his friend steal items from the home.

    Cody M. Kasper, 17, entered the pleas a day after a Morrison County grand jury indicted Smith on charges of first-degree, premeditated murder in the shooting and killing of Kasper’s friend, Nick Brady, 17, and Brady’s cousin, Haile Kifer, 18, after the two broke into Smith’s home.

    Prosecutors have said that Smith, a 64-year-old retired U.S. State Department employee, shot Brady and Kifer, who were unarmed, multiple times after initially wounding them as they walked down the stairs to his basement Thanksgiving Day. Prosecutors said an audio recording of the shootings indicated Smith taunted the teens while firing shot after shot, then dragged the bodies to a workroom and left them there until police were called to the home the next day.

    But friends and relatives have said that Smith was scared and acting to protect himself and his property after a series of burglaries in the months before the shootings.

    “Nicholas Brady and Haile Kifer broke into Mr. Smith’s home by shattering a bedroom window with a metal pipe,” Smith’s attorney, Steve Meshbesher, said in a news release after the grand jury indictment. “Mr. Smith did not seek Brady and Kifer out. They sought him by violently breaking into his home on Thanksgiving.”

    During a half-hour hearing before District Judge Douglas Anderson at the Morrison County courthouse Friday, Kasper, sitting between his father and his attorney, said that he served as a lookout for Brady last summer and again in October as Brady stole several items, including cash and a chain saw, from Smith’s house and detached garage.

    Kasper, who once did yard work for Smith, said that in both instances, he never entered the house or garage, but stood in a nearby grove of pines with his cellphone in hand to call and warn Brady if someone approached.

    According to two criminal complaints filed against Kasper in February, Brady kicked in a basement door during the first burglary and returned with cash and a video camcorder. Brady later rewarded Kasper by buying him clothes and shoes with the stolen cash and giving him an ATV.

    During the October burglary, Brady, who also had worked for Smith at one time, forced his way into Smith’s detached garage and stole a chain saw, gas siphoning kit and rolls of copper wire. The boys hid the items in the woods, returning later to pick them up.

    Under terms of an agreement reached Friday, Kasper would be sentenced to 90 days of electronic home monitoring and serve 200 hours of community work service in exchange for pleading guilty to aiding and abetting the burglaries.

    Anderson is expected to rule on the agreement at a sentencing hearing June 7.

  108. How would people look at this if an unidentified aircraft was approaching the East Coast. Had challenged air defenses before. Looks like a bogey because this time it would not veer off, and in fact began to accelerate towards populated areas.

    How far should U.S. jets retreat into the home land to avoid a confrontation?

    Is it lost? Is the pilot dead? Or is it carrying missles, bombs, and/or gas canisters?

    Would you suggest “staying in the basement” ?

  109. So these 2 scum break into someone’s house..he smokes them and he gos to jail????…. what a country..guess he should have gave them a hug and had them sent to rehabilitation… it is too bad america is pretty much a joke now

  110. So….. In my opinion, he had every right to Shoot those kids!! What would you do if someone had been breaking in your house and taking your things? Things you worked so hard for!! If someone did that to I would be beyond angry just like this old man. I would want justice and revenge!! I would be scared out of my mind if I heard glass breaking, I would probably grab a firearm and hide. If I thought I was in danger and the intruder was heading toward me, I might even fire. Being that frightened, I probably would. I mean, how dare they?! So let’s say I fired and they are lying wounded on the floor.. the next logical thing to do is to get help. I might run to the neighbors or if I am brave enough, stay in the house hold the intruder at gunpoint and call police myself. Now the best part is that they will be arrested, punished, hospitalized and everyone will know!! They will be shamed by the public, neighbors and their own family! Justice (and revenge) served! Am I right? i was just defending myself and my home, the intruder came into my house. Perfectly justified. Sadly that is not the case here. When you shoot someone in the face when they are already down, IN THE FACE, it is murder. Plain and simple. Remember he did this twice. Taunted these two KIDS while shooting them, shooting to kill. If he wanted justice and revenge shouldn’t the shame (and hospitalization) be enough? They were going to be caught for sure, they were on film (and audio) and you got to shoot them. What he did, was not self defense, he crossed the line! I am very interested to learn what happens in this case. I believe the old man already got his “justice”. I am curious to see if the families of the children will get justice also. This is all just so tragic. Blessings to all suffering through this.

  111. “Would you suggest “staying in the basement” ?”

    It is not clear to me that air defense is a good analogy for personal defense.

    But if we accept the analogy, we should recognize there is a standard way to engage the intruder. I am pretty sure that includes trying to hail the intruder on standard communication channels, trying to hail the intruder on emergency channel which used to be 121.5 mhz, trying to visually communicate with the intruder and if communication is established to direct the intruder to a safe landing for further investigation.

    I don’t see that anything like that happened in the burglary.

    It is also not clear to me that the burglars were a physical threat to the home owner.

    I definitely do not agree that it is appropriate to use lethal force to protect property.

  112. “Jurors hear teens’ last moments”

    http://www.sctimes.com/story/news/local/2014/04/22/lawyer-little-falls-man-trial-murder-ask-judge-mistrial/8011595/

    Excerpt:

    Smith’s attorney later on Tuesday tried to ask questions of an investigator about what was later found in the vehicle Brady drove to Smith’s house. Steven Meshbesher also wanted to ask the investigator about text messages found on Kifer’s phone about burglaries and possibly burglarizing Smith’s house.

    But Morrison County District Court Judge Douglas Anderson already had ruled that type of information inadmissible.

    Right before the noon break, Meshbesher asked Anderson for a mistrial, citing Anderson’s pretrial rulings about what jurors can’t hear about Kifer and Brady. The judge’s rulings have severely restricted his case, Meshbesher said.

    Meshbesher also asked Anderson for a mistrial because of a comment prosecutor Peter Orput made to the media that he could have a jury of 12 National Rifle Association members and still get a conviction of Smith.

    Anderson denied both mistrial motions but cautioned attorneys to not discuss their opinions with reporters.

    Trial testimony is expected to resume Wednesday morning with more questioning of a forensic scientist who was in charge of gathering evidence from Smith’s home after the shooting.

  113. This is the way all wars begin – anger, retaliation – mass killing. The real criminals here are those who knew of these teens propensity & failed to notify authorities. What was it that Robert Kennedy once said quoting Dante Alighieri
    regarding the hottest place in hell ?

  114. http://www.sctimes.com/story/news/local/2014/04/25/sheriff-investigated-earlier-burglary-smiths-residence/8149751/

    Excerpt:

    LITTLE FALLS – Morrison County Sheriff Michel Wetzel testified Friday in the Byron Smith murder trial about recovering a shotgun taken from the Smith residence in a burglary about a month before Smith killed two teenage intruders.

    Wetzel told jurors that he met with a person who told him where they could find the shotgun and drove with Wetzel to a remote part of Bellevue Township, then walked Wetzel to a grassy area where the shotgun was. Wetzel recovered the shotgun Nov. 29, 2012, seven days after Smith killed two teenagers who broke into his house.

    Outside of court after Wetzel’s testimony, defense attorney Steven Meshbesher said the unidentified person was “directly connected” to Haile Kifer, 18, and Nick Brady, 17, the teenagers killed by Smith after they broke into his house on Thanksgiving 2012.

    Meshbesher said he called Wetzel to the stand to show jurors that the gun had been taken and that Smith feared the person who took it might come back to the Smith residence and use it on him. Meshbesher has yet to connect any of the prior burglaries at Smith’s house to Kifer and Brady, but he has said that Smith feared that the people who burglarized his house would return and might bring his stolen guns to use against him.

    Meshbesher had hoped to call a witness late Friday morning to talk about use of force and how it can impact the person who uses lethal force. But Morrison County District Court Judge Douglas Anderson ruled that the witness could not testify, and court broke for several hours because the defense didn’t have its next witness available.

    Meshbesher has not said whether Smith will testify or how many more witnesses he hopes to call.

    Smith’s defense began its case Thursday afternoon by calling a Morrison County deputy who investigated a burglary Oct. 27, 2012, at Smith’s residence.

    That witness testified that someone had kicked in a basement door panel at Smith’s house, unlocked a deadbolt lock and rummaged through the house, taking firearms, camera equipment and gold coins, among other things. That burglary was the only one Smith reported to Morrison County sheriff’s officials, although he later told investigators that there were more break-ins.

    That string of burglaries and thefts at his residence is expected to be the heart of Smith’s defense that he was a man in fear of repeat crimes at his house when Kifer and Brady broke in just less than a month after the October burglary. Smith is charged with murder for shooting and killing Kifer and Brady in the basement of his house north of Little Falls. …

  115. A jurror in the case has said the recordings of the crime was a key piece of evidence in the case that resulted in conviction on all counts. Under Minnesota law there was no date set for sentencing as this crime carries a mandatory life sentence. The case will be appealed and even if the defense lawyer did not want to appeal it would be as under Minnesota law ALL 1st degree murder convictions are automatically appealed directly to the state supreme court bypassing the court of appeals so state appeals in this case will go a little quicker than in some other cases.

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