Smith out on bail; next court date set for January
By Terry Lehrke, News Editor
Byron David Smith posted bail Tuesday morning and was freed from the Morrison County Jail.
Smith is the Little Falls man charged with second-degree murder in the shooting deaths of Haile Kifer and Nick Brady during an alleged burglary of his home Thanksgiving Day.
Having caught statewide attention, camera crews had been in place inside the Morrison County Government Center and then outside the Morrison County Jail since Smith’s bail hearing Monday afternoon.
Smith was released without being caught on camera.
“We didn’t take any extraordinary steps to conceal his release,” said Morrison County Sheriff Michel Wetzel.
“We were, however, mindful of the fact that repercussion might be more likely if folks tracked him to where he’s staying. We tried to avoid any sort of future problems for anyone,” the sheriff said.
During Monday’s bail hearing, Judge Douglas P. Anderson reduced conditional bail to $500,000 bond ($50,000 cash); neither reducing bail as much as the defense had asked, nor doubling it, as the prosecution suggested.
Anderson did not lower the $2 million unconditional bail amount.
Steven Meshbesher, Smith’s attorney, requested bail be lowered to what he termed a “reasonable amount” — 10 percent of what was originally set — $200,000 bond without conditions or $100,000 bond with conditions.
Argument for reduced bail includes the presumption of innocence
Meshbesher argued that a presumption of innocence existed and that Smith, 64, had no criminal record and minimal financial resources.
Meshbesher didn’t dispute that the charges were serious, but pointed out that they were at this point, only charges.
“He is not a threat to the public; never has been or ever will be,” said Meshbesher.
“This is not a case where my client stormed a school and shot people, … ” he said. “My client was at his home; the home of his family.”
Meshbesher described Smith as a good citizen, a lifelong resident of Little Falls, who had asked guidance from the Morrison County Sheriff’s office following an October burglary at his home.
A memo to the Sheriff’s Office, Meshbesher said, included the fact that Smith’s basement door had been kicked in, and that items in his home had been searched and flipped over.
“The Morrison County Sheriff knew about it because my client is a good citizen, a concerned citizen and he wanted to notify them and get their advice,” Meshbesher told the court.
Smith installed a security system, said Meshbesher, in case the sheriff couldn’t get there. “Not thinking his home would be burglarized when he was there,” the attorney said.
“The emotion of the case cannot guide bail,” said Meshbesher. “This is a serious case. The case should be presented in a courtroom.”
Meshbesher contended Smith was not a flight risk and only had a passport because he worked with computers for Homeland Security for 16 years. After 9-11, he said, the agency sent Smith around the world.
Now retired and living in his family home, “He’s not going anywhere,” said Meshbesher, indicating Smith was willing to surrender his passport.
County attorney recounts audio of shooting; calls it an ambush
Morrison County Assistant Attorney Todd Kosovich recounted a portion of the audio recording Smith made of the shootings, during his plea not to reduce bail.
Initially Smith’s actions were thought to be self-defense, said Kosovich, but additional evidence demonstrated Smith went far beyond that.
An audio recording, a recording Kosovich listened to repeatedly to get the timing down, was made by Smith.
“Within 18 seconds, he had 18 seconds, to roll out a tarp,” said Kosovich. “That’s how well-equipped he was to deal with Nick Brady.”
Kosovich said it was 10 minutes plus six seconds after Brady, 17, was shot that Kifer, 18, can be heard calling out her cousin’s name, “Nick?” before descending the stairs 12 seconds later.
The second shot could be heard, as well as Kifer hitting the bottom of the steps, Kosovich said.
“Oh, sorry about that,” Kosovich said Smith could be heard saying on the recording, followed by a moan from Kifer.
By that time, Kosovich said, Kifer was seriously injured; he didn’t hear her chuckling as Smith had told investigators she had done when his gun jammed.
Kosovich said after a second shot, Kifer could be heard to say “My God; my God,” and again, “My God,” after the third shot.
After shot 4, Smith could be heard saying, “You’re dying.”
Kosovich said Smith called Kifer a “bitch” and could be heard dragging her to the shop where Brady was, where he would shoot her again.
Kosovich said Kifer was shot three times in the head.
“No way it was self defense,” said Kosovich.
Smith, Kosovich told the judge, had set up bookshelves in such a way as to make it difficult to see him, and but for one under the stairs, had taken out all the light bulbs.
“This was an ambush and murder,” said Kosovich.
Kosovich said Smith had six or seven minutes after the window broke to call police, or to leave; but instead sat in his chair, then disabled Nick Brady and shot him in the face.
“He told deputies, ‘I wanted him dead,’” said Kosovich.
Smith would be a danger to anyone who crossed him, said Kosovich.
That this was Smith’s first offense was no surprise, said Kosovich. Over the past 20 years, he said he has encountered the same from others.
“When he misses his stuff, he calls police,” said Kosovich. But, indicative of his character, said Kosovich, is that Smith sat with the bodies for 24 hours.
“Bail should be doubled. He is a danger to society,” Kosovich argued.
Argument against bail reduction called drama
Meshbesher called Kosovich’s argument “very good drama.”
“This is not supposed to be a drama. This is not theater; this is a courtroom,” said Meshbesher, who said the prosecutor was testifying as if he were a witness.
“There is a presumption of innocence in the courtroom, until there’s proof beyond a reasonable doubt,” said Meshbesher.
He said Kosovich was being dramatic because he wanted to see his name in the newspaper.
The facts, said Meshbesher, need to be looked at objectively.
“The facts are they broke into a home occupied by a person,” he said.
The facts, he said, were that the teens were doing drugs and burglarizing other homes, stealing pharmaceuticals and non-pharmaceuticals.
“Two people were in his home who shouldn’t be there,” said Meshbesher. “They were not invited, they broke a window.”
They used a lead pipe to break the window, he said.
“They didn’t live there; he didn’t attack them,” said Meshbesher. “He was hiding in his own basement. Let’s stick to the facts.”
Kosovich said he was dramatic only because he was passionate about the case.
Considerations in setting bail
When setting bail, the court considers a person’s safety, both the public’s and defendant’s safety, said Anderson. Also considered are a defendant’s financial resources.
Also to be considered, said the judge, was the audio and videotape and other details.
Anderson noted that Smith had a retirement pension, and a home that was a gift, “free of encumbrance,” when he reduced the bail with conditions.
The conditions include that Smith surrender his passport; sign a waiver of extradition; surrender all firearms; not leave Minnesota without permission from the court; keep in touch with his attorney and have no contact with the victims’ families.
Smith’s brother, Bruce, in possession of the passport, surrendered it; Kosovich had the waiver of extradition prepared and ready to sign before the judge that day and Smith waived his right to a speedy trial, under advice of his attorney.
Anderson asked that it be ascertained that all of Smith’s firearms had been removed.
Next hearing for Smith
An omnibus waiver hearing for Smith will be held Tuesday, Jan. 22, at 1 p.m. at the Morrison County Courthouse.
Kosovich said that as of the middle of the week, the defense had received well over 300 pages of documents on the case and recordings, including the recording of the shooting.
Information on the case continues to come in, such as the toxicology reports which take about six weeks — none of which is public information, said Kosovich.