Jurors begin deliberation in Smith murder trial

Jurors once again heard Byron Smith’s audio recording of the day he shot and killed Nick Brady and Haile Kifer, after they broke into his home Thanksgiving Day, Nov. 22, 2012.

Smith is charged with two counts each of first-degree premeditated murder and second degree murder for the shootings.

In his closing arguments, Prosecutor Peter Orput  said, “This is a very serious, but very sad case” and asked that jurors take their time to reach four just verdicts.

Orput outlined for the jurors how he said Smith pre-planned, prepared and premeditated the killings. Orput said the planning began after he visited with his neighbor at 10:30 a.m. the morning of Nov. 22, 2012, when the two observed another neighbor driving by.

At 11:30 a.m., he moved his truck, Orput pointed. He reminded jurors that Smith told Sgt. Jeremy Luberts during an interview the next day, that he moved it to clean his garage. “Does that make sense?” he asked. Was moving his vehicle to clean his garage, or part of the plan? he asked. “He made sure he got set up.”

Orput said Smith made sure a tarp was nearby in the basement, because he didn’t want blood on the carpet, activated his digital recorder — adding the prosecution was grateful for that because it recorded all that happened. He went on saying Smith loaded his .223 rifle and loaded his .22 revolver. “That was planning; that was preparation,” said Orput.

Smith had a bottle of water and snack bars ready for a long wait and a novel to read, said Orput. “He was in it for the long haul,” said the prosecutor. Smith had extra ammunition on the shelf and was going to wait it out, because, said Orput, Smith was convinced the neighbor who had driven by earlier was burglarizing his home and he was going to get her.

Orput asked whether shooting Nick Brady, the first to come down the stairs, was reasonable. “Was that necessary? That’s for you to decide,” he told jurors.

Orput said with both victims the jurors heard testimony about shooting the two at close range, including a bullet behind Haile Kifer’s ear and one under her left eye. “And the coupe de gras, a good clean finishing shot under her chin,” said Orput. “After he shoots Nick Brady, he says, ‘You’re dead.’ While he’s shooting Haile Kifer, he says, ‘You’re dying. … I wanted him dead. …. I shot him in the face. … It all goes to intent,” said Orput. “Every time the defendant pulled that trigger, he considered, he had an opportunity to consider every time he pulled the trigger. … He made a choice, considered his options.”

After playing the 29-minute audio, which included the 11-minute clip of the shooting of the two and clips of Smith talking to himself, from nearly two hours to five hours later, Orput pointed out specifics to the jurors of what Smith had been captured saying on the audio.

Orput told the jurors from the audio, they knew what Smith’s state of mind was and asked again that they bring back a just verdict.

In his closing argument, Meshbesher told the jurors that it was the choices that Brady and Kifer made, to drive to Smith’s residence, walk on his private property uninvited with hoods on their heads and gloves on their hands. It was Brady’s choice to smash the window in Smith’s home to gain entry.

The window was broken in Smith’s bedroom, when Smith was downstairs, alone on Thanksgiving.

“They drove the car, they got out of the car, they had hoods on covering their faces and they had gloves on their hands — a metal rod was used to strike that glass,” which Meshbesher said was a strong window of glass, a double pane window. “It’s a home, homes are where we live; homes are where we live to feel safe and it’s our castle in this country,” he said. “We all relish the idea of having a home, even if we rent one – we don’t have to own it – that is our castle.”

Meshbesher said when Brady climbed in that window a few minutes later, “reasonably, after hearing three gunshots,” Kifer crawled in the same window. “Now the reasonable inference is if she heard three gunshots, she thought Nick had shot the homeowner, not the other way around,” said Meshbesher. “Maybe they got into a fight. But she came in anyway and maybe it’s because of the Triple C and the intoxcation and having an out of body experience, as already testified to. But if they hadn’t done that on Nov. 22, we wouldn’t be here today.”

“Byron Smith didn’t call them and ask them to come on over and set a trap — he didn’t even know who they were,” said Meshbesher. “He didn’t ask them to come over to his house with a trap to kill them.

“He was in his basement, reading a book on Thanksgiving, and like some people I know, he likes a clean  garage. But he didn’t want to leave the car out in the driveway, so he parked it by a home where he saw visibly two state patrol vehicles, where he thought it would be safe and walked home,” said Meshbesher.

“Had Mr. Brady and Ms. Kifer not gotten into that car and chose to drive it in a hidden spot which was later inventoried with a search warrant, got out of the car, walked onto private property, struck and shattered a window that size, crawled in that window, walked through the hallway of that home, chose to walk downstairs after walking down the hallway, we would not be here today,” said the defense.

“It is a traumatic experience for all of us,” he said. “I don’t care who they are, they didn’t deserve to die, but they were not murdered. This is not a murder case. This is about taking responsibility, sad responsibility, but it’s about taking responsibility for how this thing even occurred.”

“We have to quit blaming the victims,” he said. “Make no mistake about it, Byron Smith is a victim. He was confused, he was scared, but he was the victim of burglary – the state doesn’t want to talk too much about that – and I don’t want you to think that I think they deserved what they got – because nobody deserves to die – that’s a sad thing. We all believe in life and love and caring, but it’s hard to control things when people are doing Triple C and having a psychotic effect, an out of body experience,” he said.

He went through a list of things that jury would have to consider as “not guilty.”

He listed evidence in the courtroom that proves Smith is guilty beyond a reasonable doubt. “If they make an emotional argument that you think he might be or is highly guilty, that’s ‘not guilty’ in this country,” he said. “If guilty is likely, that’s’ not guilty.’ If he’s probably guilty, that’s ‘not guilty.’ If you suspect he might be guilty, that’s ‘not guilty.’ If perhaps you think he might be guilty, that’s ‘not guilty;’ if he may not be innocent, that’s ‘not guilty;’ that he possibly did not act with intent or premeditation, he’s ‘not guilty’. If it’s unlikely that you believe his story or the state’s, he’s ‘not guilty.’ If he’s probably not innocent, he’s ‘not guilty.’ If it’s less than likely he’s innocent, he’s ‘not guilty.’”

The jury was sent to deliberate at about noon and will be sequestered until they have reached a verdict. Should they need more than this afternoon to deliberate, the jurors will be put up in a hotel and begin deliberations again tomorrow.

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