By Terry Lehrke, News Editor
Accused murderer Byron Smith was not given his Miranda warning until after being transported to the Morrison County Sheriff’s Office, more than an hour after first being confronted by law enforcement officers.
Law enforcement officers were questioned closely during the Aug. 30 omnibus hearing about when they read Smith his rights.
Smith. now 65, was first charged in November 2012 with two counts of second degree murder for shooting teen cousins Nick Brady and Haile Kifer, who were allegedly burglarizing his home Thanksgiving Day.
In April, a grand jury indicted Smith on two counts of first-degree premeditated murder.
During the Aug. 30 hearing, Smith’s defense attorney Steven Meshbesher, assisted by attorney Adam Johnson, questioned Morrison County Deputy David Scherping, Sgt. Jeremy Luberts and Bureau of Criminal Apprehension (BCA) Special Agent Chad Museus. Each had testified before the grand jury.
When Scherping and Luberts were questioned, the defense went over the events of Nov. 23, 2012, the day after the alleged shootings.
It was that day, about 1 p.m., that Smith’s neighbor Bill Anderson called law enforcement asking them to go to Smith’s residence.
Scherping took the initial call from dispatch, spoke with Anderson on the phone, and contacted Luberts.
In answer to the defense’s questions, the officers said they responded in full uniform, in squad cars, without lights flashing.
Both officers testified that they did not know that they would be responding to a shooting or murder, that they weren’t sure what had happened.
The defense asked about questions officers asked Smith once they arrived at his home. Officers said Smith answered his door with his hands raised in the air and stood in his doorway.
Meshbesher questioned whether the officers had asked Smith if he wanted an attorney, or whether they told him he did not have to speak with law enforcement. Neither had.
When officers asked to speak with him, Smith invited them inside his home, showing them where a bedroom window had been broken during what Smith told them was a burglary.
Scherping said he didn’t ask questions of Smith, that Luberts had the conversation with Smith.
Luberts said Smith told the officers he had shot two people he said had broken into his home, from a chair in his basement at the bottom of the stairs.
The officers said Smith took them into an adjoining room and showed them two bodies on a tarp.
Smith was handcuffed and taken into custody about 1:43 p.m., escorted to a police squad, where he stayed for 45 minutes, before being taken to the Morrison County Sheriff’s Office.
When asked by the defense, both officers said they had not issued a Miranda warning to Smith at that time.
When the formal recorded interview of Smith began about 2:59 p.m. at the Sheriff’s Department, Luberts said he read Smith the Miranda warning, but didn’t ask Smith to waive his rights in writing.
Luberts said he asked Smith to speak with him and Smith agreed.
The first interview with Smith ended about 4:01 p.m. Luberts said he left with Smith still in handcuffs and returned about 4:20 for a second interview. Luberts said he wasn’t sure how long the second interview lasted.
Defense assistant attorney Adam Johnson questioned whether interview questions included those that had already been asked at the residence.
After the second interview, Luberts said Smith was booked into the jail.
Luberts said a third statement was obtained from Smith at 1 a.m., Nov. 24, 2012, in a room at the jail, with no other officer present. Smith was brought to the room, but was not in handcuffs. Luberts said new questions were asked and that he made reference to Miranda, but did not re-read it.
At that time, Luberts said he asked Smith whether he had a chance to speak with an attorney and Smith indicated he had contacted attorney Greg Larson.
Luberts said he didn’t know if Larson had been retained by Smith, if Smith had received correspondence from Larson or whether Larson had visited Smith. Luberts said he did not contact Larson to see if he represented Smith.
Museus, who was on call for the BCA over Thanksgiving weekend, beginning Nov. 22, 2012, said he had not been the lead investigator. He did, however, assist in obtaining search warrants and Meshbesher asked him about his grand jury testimony regarding data analysis of phone and Internet use at Smith’s home during grand jury testimony.
Meshbesher said Museus’ testimony at the grand jury hearing was incorrect. Museus said he testified about analysis of Internet usage at Smith’s home the day of the shootings, put together by another agent.
Meshbesher said Museus reviewed the analysis and testified to something different than that analysis. Meshbesher also questioned whether a 911 call was actually made by officers to check whether Smith’s landline in the basement where the shootings allegedly occurred, worked.
Prosecutor Peter Orput invited the defense to bring the issue before a jury if it wanted to impeach Museus’ grand jury testimony. Orput objected to the questioning and said the defense was trying to “get a Florence hearing out of this” calling the questioning “a fishing expedition.” (A Florence hearing is a hearing on probable cause.)
Meshbesher contended that even before a grand jury was convened, the prosecution did not have sufficient evidence to establish premeditation.
The distinction had been blurred between first and second degree murder, Meshbesher said, instead of on defense of dwelling and had wrongly included elements of self-defense. These two, he said are separate.
He said in Minnesota people have a duty to retreat in a self-defense situation. But, he said, people don’t have the duty to retreat in their own home.
Meshbesher also cautioned that the state had elicited testimony from one of the mothers of the deceased during the grand jury hearing, which had nothing to do with the charges or about whether to indict for first degree murder.
The defense also questioned officers about the timing of the six search warrants, when they were obtained, what they were for and when they were executed.
Orput offered as exhibits the search warrants for the Smith’s home, garage and vehicles, audiotapes of the three interviews as well as the transcribed interviews.
The defense was granted 30 days to review the transcripts of the court before offering evidence to support its motion to dismiss the charges.
The prosecutor was granted an additional 30 days following that motion to submit one of its own.
The defense will have until Oct. 15 to file and the prosecution until Nov. 14, for review by Judge Douglas Anderson.