A 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
I’m with you, Mike A.
I never understood the need to “expand” common law self-defense.
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.”
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.
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.
Mea culpa, I forgot to take my dyslexia meds.
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.
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….
Tony C. Ah, so anyone who disagrees with you, in this particular case, is a moron or a sociopath? Good to know.
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.
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…
Tony C.,
Unfortunately, a 17-year-old can be sentenced as an adult and most states, Unless they have a statute for designation of minors then at any age…. This is one I am very familiar with…
http://www.nowpublic.com/world/murder-11-drug-dealer-22-nathaniel-abraham-falls-through-cracks
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.
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?
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.
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.
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.
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.
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.
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.
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.
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
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Points taken, quite sound.
I looked up 2nd degree in MN:
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:
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.