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:

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. 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.

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


    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. …

  3. 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 ?

  4. “Jurors hear teens’ last moments”



    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.

  5. “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.

  6. 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.

  7. 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

  8. 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” ?

  9. 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.

  10. 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?

  11. 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.

  12. 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?


    “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.

  13. 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.

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