Jury hears more on shooting tape; Smith terms his acts ‘my civic duty’

Tuesday, during the second day of the Byron Smith murder trial, jurors, members of the media, members of the public and the families of Nick Brady and Haile Kifer, heard an 11-minute audio clip of the moments Byron Smith shot and killed the two after they broke into his home, around noon Nov. 22, 2012.

That audio started with the sound of breaking glass as Brady entered Smith’s home through a bedroom window, continued with his footsteps and eventually the three shots that killed him. It ended with Kifer calling for her cousin, descending the stairs and being shot multiple times.

Wednesday, everyone in the courtroom heard 29 minutes of audio that replayed not only the shootings, but of Smith speaking after the shootings.

Moments after the final shot, Smith could be heard saying, “I’m safe now. … I feel a little bit safer, not totally safe, still shaking a bit, but a little bit safer.

“I left my house at 11:30 — they were both dead by 1. … I refuse to live in fear.”

He went on to say, “Cute, I’m sure she thought she was a real pro.”

A little later, “I felt like I was cleaning up a mess, worse than spilled milk, worse than vomit, worse than diarrhea, cleaning up a mess — you’re dead.”

As if holding a conversation, he said, “It was a major complication in life, but you really don’t want to know, believe me you don’t want to know. … I am not a bleeding heart liberal. … I felt like I was cleaning up a mess … worse mess possible. I was stuck with it.”

Smith said he was doing “my civic duty.” He said in the recording, “If the law enforcement system can’t, I have to do it. I had to do it. The law system didn’t work, and it fell in my lap; she drove it into my lap.

“They were together, I see them as vermin; social mistakes, social problems,” he said. “I don’t see them as human, I see them as social defects. … Spend their life spoiling life for other people, stealing, robbing, using drugs.”

Smith can be heard mumbling, “The gravel driveway is blocked, have to go north to next one north of that, then park 100 yards toward corner and walk in from the west.

“It’s all fun, cool, exciting, highly profitable, until somebody kills you,” he said. “Yup, you can see the rugs on the basement floor — it’s a sucker shot, people going down strange stairs and don’t watch steps.”

A little later, he’s heard saying, “I’m sorry, so much regret. I tried to be a good person. I do what I should, be friendly to other people, help them when I can. I try to be a good citizen, be fair. … Because I try to be a decent person, and I’m a sucker. They think I’m here for them to take advantage of, that’s not the reward for being a good person — and they dump this mess on me. It’s not a mess like spilled food, not even like diarrhea,” he repeated. “It’s far worse. They take slice after slice out of me — a $5,000 slice, $10,000 slice. And if I gather enough evidence that they might be prosecuted, if they are prosecuted, they might go to court. If they go to court they might be found guilty. If found guilty, they might spend six months and two months in jail, and then they’re out, and they need money worse than ever and filled with revenge.

“I cannot live my life like that — cannot have that chewing on me the rest of my life. … I refuse to live with that level of fear in my life,” he said. “It’s a game, it’s exciting, highly profitable, until somebody kills you; until you go too far and somebody kills you; until you take advantage of somebody who’s not a sucker; until you try to take advantage of somebody who’s not a sucker, a patsy.”

Smith appears to be talking to someone when he says, “Hello, Bruce, ah, oh hey, can you stop by? There’s no particular rush, but earlier would be better.”

He again gives directions not to take the dirt driveway, but to go north and then park 100 yards past the corner toward the west.

“Don’t worry about me,” he says. “Just come as soon as you may. … OK, see you then, OK, bye.”

The audio was played during the testimony of Bureau of Criminal Apprehension (BCA) Agent Janet Nelson, a witness for the prosecution. Nelson processes digital evidence of crime scenes, as well as forensic video analysis of surveillance video. She trains law enforcement and firefighters in photography and video of scenes.

Nelson was provided the six hours and 24 minutes of audio recorded on a Zoom digital audio recorder found tucked into one of two bookcases, placed on either side of a rust-colored easy chair, in close proximity to where the shootings took place at the bottom of the stairs in the basement of his Little Falls home.

Using computer software, Nelson listened to and isolated the portions of the audio surrounding the shootings. That software enabled her, she said, to increase volume in places where the audio was soft, and to decrease volume in places where the audio was loud, such as when the gunfire could be heard. The clips were put together and provided with a transcript prepared by Nelson. Jurors received copies of the transcript, but were told by Judge Douglas Anderson that if they felt they heard something different on the audio than what Nelson had written in the transcript, they were to ignore Nelson’s transcript and rely on what they felt they heard.

Nelson also narrated a portion of surveillance video taken by four different surveillance cameras Smith had set up at his home. Surveillance cameras were positioned in four areas around Smith’s home offering views of both the front and back of the residence. The video shown was taken off recordings captured from Nov. 22, 2012, at 11:25 a.m. through 12:53 p.m.

Jurors saw Smith exit his front door, enter his vehicle, back it out and leave about 11:25 a.m. Nelson said when she turned on the DVR recorder, it was time stamped with the time and date of each video. She said she verified the accuracy by checking the time with her own cellphone. “They were within seconds” she said.

Smith would return to his home on foot 20 minutes later, about 11:45 a.m.

At 12:33 p.m., Brady is seen running up the stairs of the deck in the back of the residence. He begins looking in windows and tries a door. About 12:35 p.m. he spots a camera positioned in a wood pile and turns it upside down and on another camera, he can be seen holding his hands over his face. He’s seen walking around the front of the house about 12:37 p.m., goes around the back of he house about 12:38 p.m., and at 12:39 p.m., he’s seen for the last time on the surveillance video on the upper deck in the back of the house.

Nick Brady

It’s not until 12:51 p.m. that Kifer can be seen running across the driveway in the front yard, to the upper deck. She’s carrying a large pink purse, with a cellphone to her ear. She walks out of camera range and walks into another camera range at 12:53 p.m.

“That’s the last either is seen on camera,” Nelson said.

Prior to Nelson’s testimony, BCA Forensics Specialist Nathaniel Pearlson was questioned by the defense. Pearlson a forensic scientist, testified Tuesday, regarding the layout of Smith’s home, blood evidence found in Smith’s home, as well as gun and shell casing evidence and holes and gun residue found on the clothing of Brady and Kifer.

Meshbesher questioned whether Pearlson had tested a metal bar found outside standing against the wall beneath the broken window of Smith’s bedroom, where Brady gained entrance to the home. Pearlson said the pipe had been taken into evidence, he had worn gloves to preserve any evidence, but it had not been tested, a decision that was not his to make, he said.

Meshbesher asked Pearlson about a glass pipe found in Kifer’s purse. Ir had not been tested for any sort of residue.

Meshbesher went over the shell casings found at the foot of the stairs as well as in the workshop.

Tuesday, Pearlson had testified about holes found in the hooded sweatshirt Kifer was wearing, noting that his conclusion on gun residue testing was that one of the shots had been taken within six inches.

Meshbesher questioned him about the patterns of residue found that would indicate how close a shot might be and Pearlson explained he could determine a range from which the gun was fired and only about the holes found in the clothing.

As Meshbesher continued questioning Pearlson’s report, Pearlson told him the report for the court contained the conclusions Pearlson had made while processing the evidence, and that the basis for the conclusions were in his notes.

Assistant Defense Attorney Adam Johnson called for a mistrial at the morning’s first break, saying the defense had not been provided with Pearlson’s notes during discovery.

Assistant Prosecutor Brent Wartner objected to the mistrial, saying the state had provided all the evidence and had even made available to the defense the opportunity to view evidence not in the state’s possession, but available through other agencies. The state was not required “to carry it to them” he said.

Pearlson had his roughly 100 pages of notes at the courthouse, he said.

Judge Douglas Anderson denied the motion for a mistrial, but offered to have copies of Pearlson’s notes, as well as time to talk to Pearlson about the notes, before the jury was reconvened.

Tuesday, the defense had called for a mistrial because of Judge Anderson’s prior ruling that cellphone calls on the teens’ phones were inadmissible and for comments the prosecutor made to the media about convicting Smith.

As court adjourned for the day, with media present from television and radio stations and newspapers, Judge Anderson admonished the jurors once again not to read about the case, listen to the case or view social media about the case. Their job is to decide the case solely on the evidence being presented, he said.

“The only folks who are hearing the entire story are you folks,” he said. “Readers and listeners and radio and bloggers are not getting the whole story, only excerpts and the author’s impressions of the case.”

The trial will resume Thursday, April 24, at 9 a.m.

 

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