Smith found guilty; convicted on all counts, will appeal

By Terry LehrkeNews Editor

Following the verdict, a press conference was held at the Morrison County Government Center. During that time, members of Nick Brady and Haile Kifer’s family were present, including those pictured (from left): Kim Brady, Steve Schaeffel, Jenny Kifer and Bonnie Schaeffel. Laurie Skipper can be seen in the back.

Following the verdict, a press conference was held at the Morrison County Government Center. During that time, members of Nick Brady and Haile Kifer’s family were present, including those pictured (from left): Kim Brady, Steve Schaeffel, Jenny Kifer and Bonnie Schaeffel. Laurie Skipper can be seen in the back.

A year and a half after the shooting deaths of Nick Brady, 17, and Haile Kifer, 18, Byron Smith was found guilty of two counts of first-degree premeditated murder and two counts of second-degree murder.

Smith, 65, shot the teens multiple times after they broke into his Little Falls home Thanksgiving Day, Nov. 22, 2012.

After 6 1/2 days of testimony and closing arguments, jurors were sent to the deliberation room at noon, Tuesday. They were told the day before to “pack a bag” as they would be sequestered until they reached a unanimous verdict.

It turned out they wouldn’t need a bag, as it took just three hours to reach the verdict. Jurors agreed that the prosecution had met its burden of proof beyond a reasonable doubt.

Sentencing to life in prison without the possibility of parole was immediate. The law offers a judge no discretion over the sentence in the case of first-degree murder.

Prosecutor Pete Orput asked Judge Douglas Anderson to order the sentences be served consecutively.

“It may seem superfluous, but to the families, it’s not,” he said.

Byron Smith, left, left the courtroom with his defense attorney, Steve Meshbesher, after the jury was left to deliberate Tuesday, April 29. He was convicted on four counts of murder. Meshbesher has been retained for an appeal.

Byron Smith, left, left the courtroom with his defense attorney, Steve Meshbesher, after the jury was left to deliberate Tuesday, April 29. He was convicted on four counts of murder. Meshbesher has been retained for an appeal.

“One life sentence doesn’t do anything less or more than two life sentences,” said Anderson. “It’s a 1,000 years plus a day. A life sentence is, indeed, just that,” and ordered the sentences be served concurrently. Smith was remanded into custody.

Final arguments
Jurors heard for the third time the audio recording Smith made the day he shot and killed Brady and Kifer.

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

At 11:30 a.m., Smith moved his truck, Orput pointed out. 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 he moving his vehicle to clean his garage, or was it part of the plan? he asked. “He made sure he got set up.”

Orput said Smith had a tarp nearby in the basement, because he didn’t want blood on the carpet and recorded all that happened. Orput went on to say that Smith loaded his .223 rifle and his .22 revolver. “That was planning; that was preparation,” he said.

Smith had a bottle of water and snack bars ready and a novel to read. “He was in it for the long haul,” said Orput.

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

Orput reminded jurors of testimony about the two being shot at close range, including a bullet behind Kifer’s ear and one under her left eye.

“And the coup 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 points nearly two hours to five hours later, Orput pointed out specifics to the jurors of what Smith had been captured saying on the audio.

He told jurors from the audio they knew what Smith’s state of mind was and asked 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 bedroom to gain entry, while he 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 double paned 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 intoxication and having an out-of-body experience, as already testified to. But if they hadn’t done that on Nov. 22, 2012, we wouldn’t be here today.

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

“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 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 to 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, 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 Meshbesher.

“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, 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 the jury would have to consider as “not guilty.”

“If they make an emotional argument that you think he might be or is highly guilty, that’s ‘not guilty’ in this country,” Meshbesher said. “If guilt 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.’”

Victim impact statements
Before sentencing, Laurie Skipper, Kifer’s aunt, spoke on behalf of her parents, Jay and Jenny.

“Byron Smith made a conscious choice to kill. You cannot imagine the physical and emotional pain that we will have to face the rest of our lives. … To hear Haile cry out for help on the audio and not be able to be there, will forever haunt us. We will not be able to see her beautiful smile or hear her beautiful laugh.

“We will never see Haile this side of heaven. Byron Smith has caused immeasurable mental anguish to our families,” she said.

Kimberly Brady, Brady’s mother, said her son “Had a magnetic personality. … His smile could literally light up a room and not seeing it any more is a great tragedy. … This has filled our lives with a tremendous sadness that doesn’t seem to go away. … He is loved and missed by us all.”

Brady’s grandmother, Bonnie Schaeffel, said it was difficult to put into words “the horrors and pain” of the last year and a half. “Nicholas was such an integral part of our family and an extremely special young man, with a wonderful smile. He never left room without saying ‘love you, grandma.’ I don’t know and will never know the wonderful things he could achieve. … He (Smith) showed no compassion or humanity … he chose to be cop, judge, juror and executioner. He executed kids for a foolish mistake. … I am sorry his house was broken into. Nick and Haile should have had consequences so they could grow into the young adults God meant them to be.”

Brady’s grandfather, Steve Schaeffel, who during the course of the trial called the experience “brutal,” didn’t give a victim impact statement. Later during a press conference, he thanked those involved in the investigation, the prosecution team and victim advocates from Hands of Hope.

“Those friends and family members who have been supportive all the way through, the people worldwide that have been praying for our family, that has been what has got us through this horrible, horrible, tragedy,” he said. “There are no winners in this. My family is out Nick, the Kifers are out Haile, one set of grandparents is out two kids — that’s horrible. These kids made a dumb mistake … justice was served today in the verdict.”

Friends, family, acquaintances testify for Smith
Several acquaintances, friends and his brother, Bruce, testified on Smith’s behalf and on his state of mind.

Acquaintance Brian-Paul Crowder testified Friday, April 25, that the week prior to the shootings, when he and his mother stopped at his home, Smith appeared afraid and concerned, because of burglaries, especially the burglary in October 2012.

Bill and Georgia Anderson, who have lived near Smith’s home for more than 40 years, testified that Smith hadn’t been sleeping on the days before the shootings, after his home was burglarized Oct. 27, 2012. Georgia said when he showed up at their home the next day, “He didn’t look like the Byron I knew.”

Smith’s brother, Bruce, a California resident, testified the two had grown up in Little Falls, with their parents Ida and Edwin, and two sisters. They graduated from Little Falls High School.

Bruce, 67, testified that his brother’s character for honesty “is a very strong one. He has been very instrumental in assisting three generation of Eagle Scouts,” Bruce said. “He’s highly regarded by everyone who has known our family.”

When questioned about whether he’d ever known anyone to act out of character, Bruce said, “No.”

Neighbor Kathleen Lange, married to John Lange, and their son, also testified to Smith’s honesty.

While the jury was deliberating, John Lange talked about how difficult it was for Smith to move out of his home and into theirs.

“Me and my wife were kind of in between a rock and hard spot and decided to take him in, because he had no place to go, no family around here,” he said.

Lange choked up when he said that for months he’d hear Smith at 3 a.m., saying, “I’m so sorry; I’m so sorry. I didn’t mean for this to happen.”

“The first two months were really hard; he didn’t sleep at all. I think he was in shock,” said Lange.

“He’s so remorseful and so sad it came down to this. He didn’t want to hurt nobody,” Lange said. “He’s such a nice guy, such a nice person. It’s hard; we went through a lot. People don’t realize it.”

Smith exercised his Constitutional right not to testify on his own behalf.

Press conference
Following the verdict and sentencing, Morrison County Sheriff Michel Wetzel met with the media. “Those that were in this very room a year and a half ago, at that time I told you this isn’t a case about protecting your home. … I told you very clearly, that rather this was a case about where the limits are before and after a threat to you or your home occurs.. In this case, the jury has decided there are limits and decided where they are.”

Orput said, “It’s about seeking justice and justice was sought and we got it and we’re grateful. However at the same time, I don’t feel a sense of gloating, I just feel a sense of great sadness. You got two dead kids over nothing … stuff, property — and now they’re dead. We got enough of these kinds of cases, but this one in particular is just really sad.”

Orput said efforts were made to turn the case into being some type of referendum on be able to protect one’s home. “That’s not what this case was, not from the very beginning. This was like a number of cases I’ve done before, just a senseless, sad, premeditated murder of two young kids.

Orput thanked in particular Sgt. Jeremy Luberts. “You all heard his interview of the defendant and in my view, and in 28 years of prosecuting, I’ve handled a number of cases, but I’ve never handled one that was so impressive to me as the way Jeremy Luberts handled the case. From going out to the house not knowing what he was walking into, discovering two young people murdered and having the sense to follow through. He did just an outstanding interview with the defendant and what Jeremy recovered I think had a great impact on the jury and how they heard the defendant’s own voice.”

A juror explains the verdict
Juror Wes Hatlestad said the audio of the shooting played the first day, set the tone.

“We heard that on the first day,” he said. “The ugliest portion of that audio recording was played for the jury and for the court on Monday, starting at the point of the break-in — breaking glass and ending pretty much with the sixth shot into the lifeless form of Haile.”

He said he will have difficulty putting those sounds out of his mind, along with the autopsy photos.

“I feel that audio recording, paired with the audio recording of Sgt. Luberts’ interview with Mr. Smith 24 hours later, also presented the first day, pretty much set the scene for my own opinion,” he said. “I stayed very open, interested and attentive, but pretty much set the scene in my mind that we were dealing with a deranged man.”

At that point, he said the jury hadn’t heard “an awful lot of testimony regarding indications of premeditation or anything like that.”

Hatlestad said he didn’t think the jury’s decision was made quickly.

“Rather than taking a straw poll first to see where we were as far as profile, we had decided to go through each of the detailed points that Judge Anderson had given to us,” he said. “The most significant seemed to be the two Minnesota statutes — self defense and defense of dwelling — they’re very closely and similarly worded, but they’re very critical in that if that’s a valid reason for taking a life, it cannot be murder.”

He said the jurors spent the first part of their deliberation carefully review the substance of those two laws.

“We unanimously ended up determining that all of the provisions of those two laws — at least one of the provisions of those two laws was not met. It had to be the act any rational human being would have taken. In both laws, that is part of the requirement. We all felt that this was not the action that a rational, reasonable person would take under the circumstances,” he said.

Once the jurors determined it was not self-defense or defense of dwelling, they had to consider the counts of first-degree and second-degree murder.

“The only difference is first-degree is the premeditation; the other four points of murder are the same,” he said. “In this case they were all very intuitively obvious — a death had occurred, the death was caused by Byron Smith and it happened in Morrison County on Nov. 22, 2012 — so the only point we had to discuss and consider was the premeditation piece.”

“We all pretty much felt that this had to be a planned and prepared-for thing, with the car having been first of all parked in the driveway that morning and then moved four blocks away — so he could clean the garage? That’s pretty silly.”

“The preparation of his hidey-hold, with a tarp laid out at the bottom of the stairs was very obviously preparation, premeditation, we thought,” Hatlestad said.

“There was one of the jurors who was very, very mindful that we think through everything very carefully so we did discuss and reaffirm that this was premeditated. We all reached a unanimous opinion,” he said.

“It’s been said by people far wiser in this whole thing, that there are no absolutely no winners in this thing,” said Hatlestad. “I will pray for the families of the teenagers and I’ll pray for Byron Smith as well. It’s just tragic.”

Hatlestad said he felt the jury did a good and adequate job. “I really want to say, especially in this part of the state and world, the jury — to a person — strongly defends and believes in those two laws, the Minnesota statutes on defense of dwelling and self-defense,” he said. “There were no anti-gun ownership thoughts whatsoever. The jury fully supported those two laws. We thought we were correct in our determination that they were not adequately applied to the defense of his actions, that is plain and simple. He was within his right to defend his property and his life, none of us argued that. But the way he did it exceeded the bounds of those laws. That’s very important to be said on behalf of the jury. I think I can speak for them all on those points.

“I think Mr. Meshbesher had a nigh on to impossible task,” said Hatlestad.

Public divided on conviction
Although many were reluctant to speak publicly about their feelings on the case, Charlie Bye of Little Falls felt the verdict was wrong.

“I think it’s sad that this fella has to serve time in prison. He was really a patriot and I think these kids just drove him crazy,” he said.

“I think he’d been broken into so many times and he went to the police for help and like he said, they come and check it out and the kids might get six months or, like he said in his statement, in his mind, he’s the one to clean up this mess. I think that was his downfall. I don’t think he should have got such a severe penalty.”

Bye said he was not fearful in his own home, but said it seemed strange that these kids kept breaking in. “I suppose that was his fault too for opening up his house and garage to these kids, poor judgment on his part. I just felt sorry for him.

“He tried to be a good citizen and neighbor and likes people. … It just seemed like they wore him down until he did irrational things,” said Bye.

“I think it will be a good deterrent for these young kids that are so bold to go into people’s homes and rob,” he said. “I think there will be more and more people who are going to have their weapons ready.”

Sheila Gardner, who attended three days of the trial, said she felt it was clear to the jury that the state had met its burden of proof and agreed with their verdict. “I respect other people’s opinion that it wasn’t murder, and I hope they respect my opinion on it.”

She said when the jury began to deliberate, she and a friend said a prayer that whatever the verdict would be, there would be no retaliation, and that the media would leave both of the families involved alone. “Give them some quiet time and peace for them to absorb everything that has happened,” she said.

Appeal in the works
Meshbesher said Thursday, May 1, he had spoken with Smith, who he said wasn’t “doing very well.” Meshbesher said he has been retained and had begun preparing a notice of appeal.

“The judge did not let a lot of evidence in that he should have,” Meshbesher said.

A number of defense witnesses who Meshbesher said were directly involved with the burglaries at Smith’s home, knew where items, including guns were stored, were not allowed to testify. Some, he said, were teenagers who had helped clean up Smith’s yard.

Meshbesher said he felt it was very relevant for the jury to hear about burglaries at other people’s homes and that some of the witnesses knew where items that belonged to Smith were hidden.

Smith said he had two expert witnesses who were not permitted to testify, including a psychologist who had interviewed Smith.

Meshbesher said the psychologist would have testified about the psychological effects “of a confrontation like that — shaking, fear, utter fear. The fear that the judge allowed me to talk about is not the kind of fear this psychologist was going to talk about. It’s a very different form of fear. This is extreme, extreme fear; fear that you get in confrontations in war, which causes PTSD.”

Another was an expert with guns, a retired police officer who teaches gun safety and the effect that guns have on a person who shoots them, such as echoes in the ears, the inability to hear for a time and how a person can lose track of shots fired. “You can’t really control that. He trains police officers to be careful of that, because your adrenaline gets going so fast and so high, you can’t control yourself,” said Meshbesher.

He also had issues with the prosecutor doing things that “I thought were inappropriate — his conduct — and that will be brought before the Supreme Court,” he said.

  • 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.

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