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. 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.

  2. “…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?

  3. ” 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.

  4. 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.

  5. 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?

  6. 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.

  7. 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.

  8. Let me rephrase the question:

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

  9. 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.

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

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

  11. 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.

  12. 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.

  13. “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.

    1. 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.

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

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

  16. 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.

  17. 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?

    1. 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.

  18. 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.

    1. 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.

  19. 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.

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