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

      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.

  • Rhonda M. Schmidt

    Why isn’t this picture used anymore? It more accurately portrays what he looked like after he killed two unarmed teens.

    • 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.


    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.