Prosecution rests after jury sees graphic autopsy photos and on fourth day of Smith murder trial

The state rested its case late Thursday, after testimony by several witnesses, including  Dr. Kelly Mills, medical examiner with the Ramsey County Medical Examiner’s Office. Mills performed the autopsies on Nick Brady and Haile Kifer, the teens shot by Byron David Smith after they broke into his home Thanksgiving Day, Nov. 22, 2012.

Haile Kifer

Haile Kifer

As Mills testified about the wounds found on Brady’s and Kifer’s bodies during the initial autopsy Nov. 24, 2012, the prosecution projected large, graphic photos of the wounds taken during the autopsy.

Before pointing out wounds on the body of Brady, Mills told how she received the body — it came to her in a sealed bag. Once opened, she found Brady fully clothed in jeans, T-shirt and camouflage jacket and wrapped in a tarp. A photo of Brady’s body in the tarp flashed on the screen. His hands had been wrapped in bags and secured with duct tape to preserve evidence. She pointed out blood on his face and on the left side of his neck.

Mills said she first removed the bags, documented (photographed) the hand wounds and collected forensic evidence from them. First gun residue was collected. Mills said Brady had gloves on both hands and using a tube with high adhesive on one end, dabbed the hands and palms to collect minute traces of gunshot residue from both the right and left hands. She repeated the procedure on his bare hands once the gloves were removed.

Nick Brady

Nick Brady

Mills explained in cases of trying to figure out the proximity (how close) of the gun going off, gun residue is  tested. She said Brady had gunshots to both hands. His right hand had gunpowder “stippling,” unburned gunpowder flakes that come out of the muzzle of a gun with the bullet, she said.

Mills pointed out entry and exit wounds of the three gunshots to Brady first on a sketched diagram of a human figure.

After the sketches, the photos she had taken during autopsy were again flashed on the screen as she described each wound.

A wound on the right side of his head was a re-entry wound from a gunshot through the back of his right hand, which exited through his palm. As it did so, it went through bones and soft tissue in his hand before exiting and entering his head.

Brady’s head showed what she called pseudo-stippling, “abnormal injuries you get with shrapnel,” she said, likely from the bones in his hands. She pointed out the gunpowder stippling on his hand. Mills said when determining whether the barrel of the gun is close to skin, she looks for “soot,” a gunpowder that’s been fully consumed in expulsion of the deposit. It creates a deposit like soot from fires, a black powdery material. She also looks for gunpowder flakes unburned on the skin and the stippling. Either or both of those, decreases the range and brings the barrel closer to the target. She said in this instance, it appeared as though the barrel was from up against the skin to within six inches.

Byron Smith

Byron Smith

More than six inches away, she said soot won’t be seen anymore, but stippling can be present from 2 1/2 – 3 feet away, depending upon the gun.

The bullet passed through his hand went through his head and skull and into his brain. A close-up of the wound on the right side of his face was projected, as she explained the wound was large and irregular, typical of a re-entry wound. Mills said she recovered a bullet from his brain.

The large exit wound on Brady’s palm, she said, was typical of a high velocity gun. The trajectory of that shot she described as from front to back, and went straight, not upward or downward in his head.

The second of Brady’s gunshot wounds catalogued was a grazing gunshot wound on his left thumb, what she described as an open kind of wound, with no indication of soot. She said that gunshot would re-enter Brady’s body in the left region of his abdomen. The projected photo showed the area, discolored with an abrasion, and two bumps where small bullet fragments were in the wound tract. Other fragments were in the left side of the abdomen. The bullet she said continued on into the liver and went through the right side of the chest wall. She recovered that bullet as well.

A photo depicted the exit wound of this gunshot on Brady’s right side. The trajectory of that bullet, Mills described as front to back, left to right and slightly upward.

A third gunshot entry wound was shown on the back of Brady’s left shoulder near his armpit. That gunshot would exit on his upper right back. She said no stippling was found on the entrance wound of this shot and that the exit wound, a larger wound, was typical for a high velocity weapon. The trajectory was determined to be through the internal thorax cavity, it damaged the lung, going from front to back, left to right and slightly downward. No bullets or fragments were recovered.

Mills said that any one of the three shots to Brady could have been fatal after a certain amount of time, but that the  gunshot that entered his brain was the one to cause his death first.

Mills indicated that she used reports on the clothing of the deceased from the Bureau of Criminal Apprehension (BCA), but to determine sequence of the gun firing, she listened to the audio to determine when Brady stopped making vocal patterns.

Based on that, Mills determined the gunshot that went into his brain was the final shot.

The toxicology reports on Brady came back as negative for both drugs and alcohol.

In describing Kifer’s wounds, Mills first explained how she first saw the body after opening the bag. Kifer was fully dressed, wearing a sweatshirt and jeans, with blood visible on her hip and face. Although the intake photo was taken straight on, Mills explained Kifer’s head was going off to one side. Kifer’s face has injuries and a  black mark indicating a gunshot to her neck and jaw.

Mills started with Kifer’s head, and identified a gunshot wound by her left eye as it was projected onto the screen. Mills indicated there was no black material around the wound and no gunpowder stippling as seen on Brady. The path of this gunshot, Mills said was beyond the left eye, it went through the soft tissue of the face, the bony ridge of the left eye and into the internal bony structure of the face. The direction of the wound was from front to back, left to right and slightly downward with no exit wound.

Another gunshot behind Kifer’s left ear, showed a dark flaky material, which Mills said was actual charring of the skin, but no soot or stippling.

Mills had examined Kifer’s hooded jacket and saw the gunshot hole on the hood, with possible soot material on the hood. She said she found it hard to see on the black material of the hood. The BCA report of the processing of the hood showed positive for gunshot residue.

Mills’ conclusion was that the gunshot was from close range, since charring occurs when a gun is very close to the skin surface. “If something is close to the skin, that absorbs other elements, like soot and gun residue,” she said.  That bullet traveled through the soft tissue of Kifer’s neck,  a portion of the left tonsil and into the skull, it damaged the brain stem and went into various portions of the brain, where Mills recovered multiple minute fragments. “This is the fatal shot,” said Mills.

A third gunshot wound found on Kifer’s body was on the right side of the neck, with soot around the wound. This shot went in through the soft tissue of the neck, behind the voice box, into the right portion of the cervical column where it fragmented, Mills said.

A fourth gunshot wound, with stippling, was found on the front left of Kifer’s abdomen. Mills pointed out little black dots consistent with unburned gunpowder flakes, some red flakes and gunpowder stippling just above her bellybutton. This shot traveled through the soft tissues of the abdomen, the left lobe of the liver, and through the right side of the diaphragm and lodged in the back area where the diaphragm is attached.

A fifth gunshot wound is seen on the back of Kifer’s left forearm, which exited the other side and entered Kifer’s left side, damaging the lower left lung and into the rib region next to the spinal column, where a bullet was recovered. This bullet traveled slightly front to back, left to right and slightly upward, Mills said.

A sixth gunshot grazed the web of skin on Kifer’s right hand between her thumb and index finger. This wound had soot on the skin indicating the end of the muzzle was close.  The bullet making this wound was not recovered in Kifer’s body. Kifer had a black glove on her left hand. Mills said gun residue was visible on the glove.

Mills testified that in her opinion, two different types of ammunition were used in the shots fired at Kifer.

Toxicology reports on Kifer came back negative for alcohol, but a urine screen tested positive for dextrometharpan and marijuana metabolite (an inactive component, not THC). She said the dextrometharpan is an anti suppressant found in over-the-counter cough syrup, which could be a toxin if used in above-recommended doses.

Mills said the cause of death in both instances was “multiple gunshot wounds, homicide.”

Defense attorney Steve Meshbesher questioned Mills about what the word “homicide” meant when used in a cause of death report. Mills said in her line of work, the word “homicide” is made in reference to one human being killing another human being, not necessarily murder; it does not include intent, she said.

Meshbesher verified Mills was aided during her autopsy by the audio recording, had been apprised of the layout of the stairway in the house and was aware of the findings that two firearms had been used — a rifle and a .22 caliber pistol.

He questioned Mills about determining whether a wound would have been fatal or non-fatal, whether a wound would incapacitate or fatally wound a person, and if it could be determined where on the stairs the person was when a certain shot was fired.

Mills said she could determine three shots were fired during the audio when Brady could be heard.

Meshbesher asked whether a person who had sustained the first two of the gunshot wounds would have still been able to move. Mills said the two first gunshot wounds would not have disabled Brady to such a degree that he could not stand.

“Theoretically Mr. Brady would have the ability to stand,” she said, although he would not be able to use his right hand.

Meshbesher asked whether, if Brady had a gun in his sweatshirt, could he have used a gun. Mills said theoretically he could have used his left hand.

Meshbesher further questioned if, after sustaining the first gunshot wounds, if that person could still be violent and whether that violence could be deadly, beyond control of the shooter. “There is that possibility,” said Mills.

Mills agreed when Meshbesher asked if the final gunshot sustained by Brady was the shot immediately fatal.

Mills confirmed Brady could have been moving around before the final gunshot and possibly in a violent way.

As for Kifer, Meshbesher asked about the six shots heard in the audio when she was shot.

Mills said she heard six shots fired in the audio, and had to separate them. Meshbesher asked whether the sixth shot heard could have missed. “That’s possible, but six shots were fired,” said Mills, adding that Kifer sustained six gunshot wounds. Mills found evidence of two different guns being used in the shooting of Kifer.

Meshbesher asked whether the first gunshot wound sustained by Kifer incapacitated her and whether she would have still been able to move. Mills agreed Kifer would have been able to use three out of four of her limbs.

Meshbesher asked Mills if she knew of the purse Kifer had with her, Mills didn’t recall the bag and couldn’t speak to the size of the bag.

Mills was unable to verify the time lapse between the shots fired at Kifer, but admitted she did recall that she was aware that Smith had said he shot Kifer under the chin. That wound determined to be the final wound, had soot said Mills.

Mills agreed that the gunshot that entered the brainstem and brain would have been immediately fatal, the person would be on the ground immediately, but that it was a matter of opinion how quickly a person would die.

Kifer was heard making sounds on the audio recording. Meshbesher asked whether a deceased body can continue to make sounds. Mills sounds could be from air coming from the body. She also testified that when a body is moved from side to side, a moaning sound could be heard, and that she had heard such sounds.

Meshbesher asked whether it was possible that Mr. Smith heard a post mortem sound when he told law enforcement he heard noise from Kifer after the fifth shot. “If he was moving her,” Mills said.

Once again, Meshbesher clarified the word “homicide” as being used whenever one human being killed another human being.

Mills agreed that if a person had acted in self defense, or in defense of home when shooting another, that manner of death would still be called “multiple gunshot wounds, homicide.”

Other marks on Kifer’s body Mills was asked about included 66 cut marks on her arms.

Mills said the cuts were in different stages of healing, with three on Kifer’s right forearms; seven on the back of her right forearm; 32 on the front of her left forearm and 14 on the back of her left forearm.

Mills could not determine when the cuts were inflicted, but said when asked if she had formed an opinion, that the cut wounds were self-inflicted.

“Are those marks evidence of attempted suicide?” Meshbesher asked.

“No,” said Mills.

“Could they have been?” asked Meshbesher.

“Possibly,” Mills said.

Meshbesher brought up other scars on Kifer’s body, two circular scars on her left thigh. Mills said she didn’t know how large or how the scars were created or when, but they could have been self-inflicted, but she didn’t know what kind of instrument would have created the scars.

Meshbesher asked Mills about the toxicology report on Kifer. Mills was not able to determine how the marijuana metabolite was ingested or how recently.

As far as the other drug, dextromethorpan found in Kifer’s system, Mills answered yes to Meshbesher’s question about whether someone could die from abusing the drug.

He went on to ask if she knew the term “robo-tripping” and although she had heard the term, she didn’t know where the term came from.

Mills agreed that Kifer would have been considered intoxicated by the amount of the drug in her system and that Kifer was intoxicated at the time of her death.

Meshbesher asked whether the drug could cause hallucinations and Mills said yes, in chronic abusers.

Mills said the drug could also alter perception, giving a feeling like floating and in chronic abusers could cause a psychotic affect.

Mills said Kifer had been tested with the same drug panel as Brady, but that since the drug had not been found in Brady’s urine, it was not tested for in his blood.

Other testimony

In other testimony Thursday, April 24, Smith’s neighbor William Anderson was questioned about a visit he had with Smith the morning of Nov. 22, 2012. Prosecutor Brent Wartner asked him if he recalled what Smith said at 10:30 a.m., when a female neighbor drove by. Anderson said the neighbor had been in and out of the nearby residence so many times, starting at 7:30 a.m. driving a yellow car he’d never seen. But, Anderson said he did not recall what Smith said as she drove by.

In a statement given to law enforcement following the shootings, Anderson had said he didn’t remember exactly what Smith had said, but it was like, “There goes the bitch.”

During testimony, Anderson said he couldn’t recall then and he didn’t recall now, 17 months later.

Brent Matzke, a BCA forensic scientist, provided information on DNA collected from items taken from the crime scene.

The state recalled BCA Agent Nathaniel Pearlson, another forensic scientist to clarify his testimony on the distance determined from gunshot residue on the sleeve of Kifer’s sweatshirt and then rested its case, about 3:10 p.m.

 

Meshbesher’s motion for acquittal denied

The jury was asked to leave the courtroom Thursday, before Meshbesher moved for acquittal and asked the court to find the defendant not guilty and to dismiss the state’s case.

The state asked the court to deny the motion.

Judge Douglas Anderson denied the motion immediately, and asked whether the defense wanted to make any other motions.

 

Defense begins with deputy sheriff

The defense began its case in cross examination of Morrison County Deputy Jamie Luberts regarding his investigation of an Oct. 27, 2012, burglary of Smith’s home.

Deputy Luberts said he was shown that the bottom panel of a basement walkout door had been kicked out and shown areas of the home that someone had ransacked, including a dresser in Smith’s bedroom.

Luberts said he had determined someone had kicked in the panel and reached in and unlocked the door. Luberts had documented the damage with photographs, which showed the kicked in panel and splintered wood around the edge where the panel had been.

Luberts testified he did not collect fingerprints from the handle of the door, doorknobs or deadbolt. Neither did he collect fingerprints from the outside screen door or the interior wooden door.

Luberts testified he wrote a report in the Oct. 27 burglary of Smith’s home, and that it appeared that Smith’s things had been gone through in the house, with evidence that a person or persons who broke in were in several rooms of the house, both downstairs and upstairs.

In Smith’s bedroom, Luberts said he removed a fingerprint from the top of the night stand, that he later learned was not of sufficient quality to get a good print, but that it was still in evidence.

When a photo of a handprint on top of a wooden box in Smith’s room was shown, Luberts said that while he had observed the handprint, it looked more like a smudge than a regular hand-down handprint and he believed he didn’t see enough detail to lift a print off  of it. He said he didn’t make a judgement of whether it was a print from a bare hand or a gloved hand.

Meshbesher asked Luberts  whether Smith had a suspect in mind and Luberts said Smith suspected a neighbor, who lived just to the left of the entrance to Smith’s driveway. Smith also suspected another neighbor and his son, but not Brady or Kifer or a group of teenagers.

Luberts also testified that he had not collected a shoeprint from the broken panel of the door, but that it was brought in by Smith Oct. 29, 2012. Smith had come in to have his own fingerprints taken. Luberts said he didn’t recall if he had seen the shoeprint on the door panel Oct. 27.

Luberts testified that he met with Smith in early November, when Smith gave him paperwork and a request for investigation pertaining to the items taken during the Oct. 27 burglary. Those papers, said Luberts, were scanned into the file at the Morrison County Sheriff’s office.

A Remington rifle and a stainless steel .22 caliber gun were listed among the items taken from Smith’s home Oct. 27, 2012.

Luberts will continue testimony Friday, April 25.

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