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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Fred


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,

Fred


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