Appellate court denies Smith’s request for discretionary review

By Terry LehrkeNews Editor

Byron Smith
Byron Smith

The Minnesota Court of Appeals denied a request by Byron Smith’s defense for a discretionary review of a Nov. 22, 2013 decision by Morrison County Judge Douglas Anderson. Anderson denied dismissal of the first-degree murder charges against Smith.

Smith, initially charged with second degree murder following the shooting deaths of Haile Kifer, 18, and Nick Brady, 17, while they were allegedly breaking into his Little Falls home Nov. 22, 2012, was indicted on first-degree murder charges by a grand jury in April 2013.

In December 2013, Steven Meshbesher, defense counsel for Smith, filed a petition for the discretionary review by the Minnesota Court of Appeals. A week later, a hearing was set in Morrison County to determine whether the proceedings should be stayed, pending a decision by the Court of Appeals.

Anderson denied that request from the defense as well, after Prosecuting Attorney Peter Orput argued that a decision from the appellate court could be expected within three weeks and that a possible trial date may be in April, allowing plenty of time.

Anderson noted at the hearing that it would be 75 days before a pretrial settlement hearing would take place and if the need arose, a continuance would be granted at that time.

The defense argued for the indictment to be dismissed due to errors made during the grand jury proceedings and insufficient evidence to support the indictment, as well as other flaws.

The criminal complaint in the case indicates Smith told authorities he shot Kifer and Brady multiple times and kept their bodies in his home for a day. Authorities were notified the following day and he was arrested.

The defense argues that Smith shot the teens in self-defense, protecting his home from burglary.

The justices named on the denial for a discretionary review, Edward J. Cleary, Margaret H. Chutich and Carol Hooten, found that while some errors occurred during the grand jury proceedings, the grand jury heard “ample evidence to find probable cause” and any errors did not unfairly influence the grand jury’s decision to indict.

The decision further said that the appellate court would grant discretionary review of an order denying a motion to dismiss an indictment only in “extraordinary circumstances.”

The justices determined that the petition did not show that there were extraordinary circumstances that would warrant a pretrial discretionary review.

A plea hearing in Smith’s case is set for Thursday, Jan. 23, at 11 a.m., in Morrison County District Court.

Meshbesher is being assisted by Attorney Adam Johnson on the defense.

Orput, the Washington County attorney, is being assisted by Brent Wartner in the prosecution. Both were named as Morrison County special assistant attorneys.

  • tmac

    I wonder just how much longer the defense will try detain this trial.

    • WJAMES

      If a man steps up to the plate look what happens.

    • WJAMES

      Are we suposed to let them kill us.

    • CodeBreaker

      The average felony case goes from first court appearance to sentencing within 8 – 12 months, excluding those involving deaths.

  • WJAMES

    If a man steps up to the plate look what happens.

    • WJAMES

      He did not break into their home. Just think of it on Thanksgiving Day.

  • WJAMES

    If they didn’t get him with one of his guns he would have had a knife in him. What if he had been a handicaped person. After what they put him through i am surprised he looked as well as the picture you have posted.
    .

    • WJAMES

      He had no idea how many more were waiting to come in on him.

  • WJAMES

    Most older people would not have stood a chance against them.

  • WJAMES

    y can not tell me there were not any knives in that home.

  • WJAMES

    Most people of his age would be dead. The picture would be of a dead person.

  • CodeBreaker

    The PreTrial is set on Tuesday, March 25th at 1:00PM

  • LazyFair

    Not once have I read that Mr. Smith’s fear led to a mental breakdown — some of the (brief) recordings played on ‘Dateline’ (youtube), sound like that of a crazy person…. temporary insanity? pushed to his limit of mental derangement?……. this may be what some of his appeal may include, along with all the evidence (the previous criminal acts by the teens) that was withheld from the jury (during the trial). It is clear to me, the two thieves were not invited onto his property… even crossing several ‘no-trespassing’ signs — which were their warning – which they ignored. They continued on – damaging his property – in order to get into his home…. & I also find it interesting that they headed straight downstairs… how did they know what was down those stairs?

    Clearly, this man was a target…..and clearly 18 & 19 yrs of age can’t be considered ‘kids’ – they really are adults…knowing breaking into this man’s home was wrong…. The young man was described as a bully, had stolen items in his car and had a previous history of theft. (An interesting fact is that the family of the teens… never acknowledged their wrongdoing – in the Dateline video— never said – if only they had not broken into Mr. Smith’s home). I get the feeling the teen’s previous criminal doing’s was also ignored by the Mother – he was enabled to continue on this path — the Mother should acknowledge her part in this, as well.