Byron Smith should be convicted of premeditated murder

April 30, 2014

Cross posted from Frederick Leatherman Law Blog

BY: Crane-Station and Frederick Leatherman

Tuesday, April 30, 2014

Good morning:

Closing arguments today in Byron Smith murder trial.

Police found a cell phone jammer on the kitchen table in Byron Smith’s house. Crane and I wondered what it was and why it was there. We looked it up and we believe its presence in his house constitutes powerful evidence of premeditation.
Its presence was unusual and unlawful.

Federal law prohibits the sale and/or possession of cell phone jammers. The only exception is federal law enforcement officials, which he isn’t. The reason for banning them is to prevent people from interfering with or blocking 911 communications.

Byron Smith violated federal law when he acquired and possessed his jammer. Since businesses cannot sell them, people have to jump through some hoops to obtain one. Why would he have gone to all that trouble to acquire a jammer that is illegal to posess unless he had murder in mind.

Premeditation to kill began with his effort to acquire a jammer.

A jammer is certainly an odd thing for a homeowner to acquire because they typically want to call 911, if an emergency happens. Since he obviously did not want to contact 911, we can infer that he did not want the kids to call each other or 911. He did not want anyone interfering with or stopping his little party in the basement and that means he had it planned before they arrived.

Back in the day, I represented many kids who were charged with burglary and I’ve also been a victim of residential burglary. This one appears typical.

Enter the home when the owners are gone, or wait until they leave. One or more go inside while one or more remain outside to warn the kids inside, if someone comes home.

Run like hell if they do.

Kids generally commit residential burglaries for the adrenaline rush and for instant gratification. In addition to money and loose change, they look for booze, pot, pills and porn that they can share with their friends. Electronics are also popular.

Since kids are not sophisticated, they may steal a firearm or several of them, if they find them. They may wind up throwing them away once they realize their friends can’t afford them and no one will buy them. This may be why someone threw Smith’s shotgun in a swamp, assuming that happened.

Kids also raid the refrigerator and generally leave a mess, including some fingerprints, and they almost always confess when the cops arrest them.

They usually only steal what they can conceal and carry away in a backpack.

Their crimes are annoying but seldom cause serious harm. I consider them part of the price of living in an urban environment or residential neighborhood and never got very upset. Residential burglaries are ubiquitous to urban living and one of the reasons we have insurance.

Bored neighborhood kids with sticky fingers can be easily controlled by remembering to lock your doors and windows before you leave your house and getting a dog.

Any professional burglar will tell you that burglar alarms are useless and you would be better off spending your money on a dog. They won’t go near a house with a barking dog.

Along with hating minorities, smart people, liberals, teachers and just about everybody else and everything else you can think of the right wing hate machine hates kids who steal stuff out of homes.

Applying the one-size-fits-all solution, which is the limit to the nuance they can muster to solve any problem, they declare a war on kids and claim we should kill them.

I suspect that more than a few judges, prosecutors, defense lawyers, doctors, public officials and police entered residences without permission and stole stuff when they were kids. I’ll bet a lot of members of the right wing hate machine did too.

Executing kids who entered a house without permission is never justified unless the shooter believed he was about to be killed or seriously injured or he believed he had to kill the kid to prevent the kid from committing a felony in the house.

Don’t stop reading there because the most important part of the test is whether a reasonable person would have done the same thing.

Nick and Hailey were kids.

They were unarmed and unable to move or speak, much less harm him, when he finished them off with shots to the head at close range.

Only one thing prevented him from calling 911 for police and medical assistance.

He did not want to because he considered them vermin and he wanted to continue to record and savor his murderous fantasy and provide a running commentary of his acts for future reference.

A lot of words come to mind to describe what he did.

Reasonable is not one of them.

  • Byron Smith and the jury began hearing portions of recornings and here are some additions, captured on the same take.

    Fred to return soon.

    We extend out deepest sadness regarding the devstation. in Arkasas, Kansas, Missiouri, Kentuky, Tennessee, Oklohoma

    Wikipedia Cell Phone Jammers.

    ‘Internet Explorer’ Bug Affects EVERY Version Ever Released
    The Huffington Post UK | Posted: 28/04/2014 10:41 BST | Updated: 28/04/2014 12:59 BST

    ‘Internet Explorer’ Bug Affects EVERY Version Ever Released
    The Huffington Post UK | Posted: 28/04/2014 10:41 BST | Updated: 28/04/2014 12:59 BST

    Byron Smith will not testify: Closing arguments today

    April 28, 2014

    Monday, April 28, 2014

    Good morning:

    The Byron Smith trial resumes this morning. He has decided not to testify. Closing arguments will start soon.

    Smith’s soliloquy during the lengthy audio recording of the shootings and their aftermath does not serve him well because he does not appear to be in any distress. Instead, he seems to be narrating an execution with about as much passion as a medical examiner describing an autopsy that he is conducting.

    The legal test for self-defense is whether he believed that he was in imminent danger of being killed or suffering great bodily harm and whether his belief was reasonable. That is, whether a reasonable person in the same situation would have believed that he had to use deadly force to prevent being killed or suffering great bodily harm.

    Since the incident happened inside his home, the law also permitted him to use deadly force, if reasonably necessary to prevent the intruders from committing a felony in his home. Again, the word reasonable means that his decision to use deadly force must be judged by what a reasonable person would have done in the same situation.

    Would a reasonable person set an ambush and record it starring himself as the executioner-narrator?

    Even if jurors conclude that his initial disabling shots were reasonably necessary, will they conclude that the kill shots to the head from close range were reasonably necessary to prevent them from killing him or seriously injuring him or committing a felony in his home?

    He knew they were not armed and he never called 911.

    There are two counts and the jury will be instructed to consider each separately. Therefore, it is possible that the jury might find him not guilty of murdering the boy, but guilty of murdering the girl.

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    Byron Smith Murder Trial Discussion 4/25/2014

    April 25, 2014

    Friday, April 25, 2014

    Good morning:

    The prosecution rested its case yesterday in the Byron Smith murder trial. He is accused of ambushing two teenagers in his basement around noon and shooting them to death on Thanksgiving Day, 2012.

    He claims he shot them in self-defense and to prevent them from committing a felony in his residence. Minnesota law permits a person to use deadly force under those circumstances if reasonably necessary to prevent them from killing him or inflicting grievous bodily harm or committing some other felony in his residence.

    The key word is reasonable. Whenever you see that word in a legal setting, you should realize that it is referring to an objective test. That is, whether the totality of the objective facts and circumstances, as opposed to his subjective perception of them, were such that a reasonable person would have decided that it was necessary to use deadly force to prevent being killed, or suffering grievous bodily harm (i.e., serious injury), or to prevent the commission of another felony in his residence.

    He must also have actually believed that he was in danger of being killed or seriously injured by the intruders or that they were going to commit a felony in his residence unless he used deadly force to prevent it.

    A residential burglary cannot be the felony because it had already been committed. That is, the elements of a residential burglary are: (1) entry into a residence without permission (2) with intent to commit a crime inside, regardless whether that crime is committed. Under these circumstances, the residential burglary was completed when the kids entered Smith’s residence, if they intended to steal something.

    That is the test that the jury will be instructed to apply.

    If you are not familiar with this case, you can get up to date by reading my article yesterday titled, The Murder Trial of Byron Smith.

    Here is a narrative description of portions of the defendant’s audio recording of the shootings. Yes, indeed. He did record what happened in the basement and even provided a running commentary of what he was doing.

    The narrative description was provided by Pam Louwagie, a reporter for the Star Tribune. She tweeted as she listened to the recording being played in the courtroom on Wednesday.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Audio of time before, during and after break-in played for jury in Byron Smith trial.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I realize I don’t have an appointment but I would like to see one of the lawyers here,” he says calmly before break-ins, talking to self.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Haile’s mom puts face in hands during re-playing of audio of shootings.

    Pam Louwagie ‏@pamlouwagie Apr 23
    After shootings, Smith talks to himself, according to compressed audio played for jury.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I’m safe now,” he says. “Cute. I’m sure she thought she was a real pro.”

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I feel a little bit safer. Not totally safe, I’m still shaking a bit,” he says after the shootings.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I left my house at 11:30. They were both dead by 1,” Smith says on audio recording after the shootings.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I refuse to live in fear,” Smith is heard saying. Then later, “I felt like I was cleaning up a mess.”

    Pam Louwagie ‏@pamlouwagie Apr 23
    Many of his utterances are in a whispery voice: “Not even like diarrhea, the worst possible mess and I was stuck in it.”

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I was doing my civic duty,” he says later.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I don’t see them as human. I see them as vermin,” Smith is heard saying.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “fun, cool, exciting and highly profitable until somebody kills you,” he is heard saying.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Later, he says: “I’m sorry. So much regret. I try to be a good person. I try to do what I should.”

    Pam Louwagie ‏@pamlouwagie Apr 23
    And even later: “I’m a sucker. They think I’m there to take advantage of. Is that the reward for being a good person?”

    Pam Louwagie ‏@pamlouwagie Apr 23
    Jury also saw Smith’s surveillance video of him moving his truck at 11:25 a.m., walking back to his house at 11:45.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Brady approaches the house at 12:33 p.m., according to surveillance video shown to jury.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Brady is wearing camouflage, has a hood and is seen looking into windows, trying doors.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Brady spotted one of the surveillance cameras — hidden in a wood pile — and moved it.

    If you were a juror, would you vote guilty or not guilty and why?

    Feel free to go off topic if you desire.

    I am not certain if the trial will continue today or resume Monday because judges often reserve Fridays to handle other business, including sentencings and hearings in other cases.

    We will be following Ms. Louwagie on twitter, which you can also do.

    Finally, if you appreciate what we do and have not already made a donation, please do so today.

    Thank you,


    The Murder Trial of Byron Smith

    April 24, 2014

    Thursday, April 24, 2014

    Good afternoon:

    We are going to take a look at the Byron Smith trial, which is underway in Little Falls, Minnesota. Smith is charged with two counts of premeditated murder for shooting two teenagers to death in the basement of his home on Thanksgiving Day in November 2012. The prosecution claims he ambushed and killed them.

    The two teenagers were Nick Brady, 17, and Haile Kifer, 18. They were unarmed.

    Smith claims that he feared for his life and was defending himself.

    This case is unusual because Smith sat in the basement next to a table with a shotgun rifle and a handgun at the ready and he audio recorded the shootings. He waited until the next day to call a neighbor. The neighbor notified police.

    Pam Louwagie of the Minneapolis Star Tribune describes the content of the audio tape played in court on Tuesday.

    The Morrison County jury heard glass break, movement, then two shots as Brady groaned “Oh.” Smith responded with another gunshot, saying, “you’re dead.”

    Almost immediately after Brady was shot, rustling of the tarp was heard, then a dragging sound, then heavy breathing. Smith had moved Brady’s body to a workshop in his basement to keep blood from staining the basement carpet, he later told authorities.

    The audio continued with the sound of a gun reloading, then more deep breaths and the sound of footsteps — first getting fainter and then becoming louder again. A few minutes later, in a quiet, low voice, a female mumbled “Nick.”

    Soon, there was another booming gunshot and the sound of Kifer falling down the stairs. Smith quickly said, “Oh, sorry about that.”

    “Oh, my god!,” Kifer said, and screamed.

    “You’re dying,” Smith responded amid more gunshots. “Bitch.”

    After more heavy breathing and a dragging sound, Smith said “bitch” once more. Jurors heard more movement, and the crack of a gun.


    Testimony on Tuesday afternoon focused on the crime scene investigation, with Bureau of Criminal Apprehension investigators detailing the evidence they gathered at Smith’s home, including photographs of the teens’ bodies: Brady’s lay tangled in a camouflage tarp, Kifer’s lay with her bloody midriff exposed, knees bent, a black hoodie tied tightly around her face.

    TOMO News prepared this animation:

    Under Minnesota law, a person can use deadly force in self-defense under the following circumstances:


    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.

    In other words, the use of deadly force must be reasonably necessary to prevent the commission of a felony in his house.

    Since he apparently ambushed them, they were unarmed, and he finished both of them off with kill shots to the head after he had disabled them, there appears to be no doubt that it was not reasonably necessary for him to use deadly force to finish them off.

    Crane and I find it very troubling that Hailey Kifer was found “with her bloody midriff exposed, knees bent, a black hoodie tied tightly around her face.”

    This suggests a sexual assault post mortem with her hoodie tied to conceal her face so that he would not have to look at her.

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