when self defense/home invasion turns into 1st degree murder

There's more to this story than the current press provides.

Being a Minnesota boy (so to speak), I have followed this story closely. It is, a lot more complex than what the current coverage includes.

First of all, it was an explosive story when it broke a year-plus ago. Little Falls is a quiet small city in Central MN, on the Mississippi River. Two violent deaths there, of two kids well-known in school, athletes, etc., while apparently doing a burglary was shocking. Then, in come the arrests and charges against the homeowner--and that information blew the story up to a state-wide discussion, for exactly the reasons noted here.

In the bigger picture of state discussions, it was one more drumbeat to Minnesota-nice discussions about the issues of firearms as self-defense tools. [IOW--The notions out of Fargo (the movie; haven't seen the TV show yet, but my friends who have are saying that it is both 'good' and 'right') about the character of Minnesotans is accurate. The story became part of the ongoing political discussions, IOW, and Minnesota is a reliably-liberal state if not 'liberal' in the Northeast sense of the word (NY, NJ)]

However, what is missing from the current press coverage is the information developed about these two dead teens as police investigation continued. They were apparently two prescription drug users taken to supplying their cadre of like-minded teens and twenty-somethings by routine burglaries throughout the area.

They'd burglarized this guy at least twice before and, IIRC, on one of those burglaries (robbery?) taunted him about being 'helpless.'

BTW, it was their car, not Smith's that was parked 'down the street' and discovered a few days later (along with loot from other burglaries that same day, and a search warrant on one of the perp's homes later turned up more of Smith possessions--including a firearm or two, IIRC.

That information about these teens was equally shocking, and is what drives the story now--at least below the surface. Their previous criminality has been excluded from the trial by the judge. A request for a mistrial, at least partially based on this exclusion, has been denied.

Neither the Prosecution or the Defense requested a change of venue; the facts were too well known. And, although not currently identified in the current reporting, there is an undercurrent in Little Falls about the rightness of his response (and elsewhere in the State)--or so suggested in an MPR story.

Smith's lawyer is Ron Meshbesher--the best-known criminal defense lawyer in MN, and certainly one of the best. If he's signed on, at least Smith is being adequately defended. Meshbesher has to be praying for just one holdout on the jury--and I suspect he might get it.

I think there is also another subtext about this guy--unmarried, apparently working overseas most of his life as a State Department 'security consultant.'--I tend to see him as undersocialized for this point in time.

Carl N. Brown's post further up the discussion provides the important links--read it.

I think it's important to point out why information about the kids' past histories and activities could be excluded from being presented as evidence. And that is because such information is lawfully immaterial to the crime at issue in this trial.

Maybe they were the scum of the earth, and you suspect them of everything from smuggling untaxed cigarettes across state lines to plotting the overthrow of the US government. And you suspect them of breaking into your home before. That does not change the circumstances under which you as a private citizen may use lethal force, and does not extend your justification for violent action one inch beyond stopping a presumed lethal attack on you.

The jury is not being asked, and should not attempt to decide, if the accused rid the world of some bad people, or gave some obnoxious petty thieves just what they had coming. They must judge ONLY whether the accused acted in SELF DEFENSE in accordance with the laws of the state.

Introducing the idea that "well, these were pretty rotten kids selling drugs and stealing a lot," might indeed sway some jurors to want to say, "good riddance" -- and that would be a miscarriage of their sworn duty as jurors to decide the question of law presented.



EDIT: Another idea to ponder...
The sheer fact that these kids had broken into many homes, including the accused's, and had never hurt or killed anyone -- and even that the accused probably knew that fact -- could very well put even another nail in his coffin as the usual "Castle Doctrine" laws are rebuttable, ESPECIALLY if the prosecution can show he had any reason at all to know he was not likely facing any lethal threat. If the accused knew that these were a couple of petty thieving high school kids and he set a trap for them, expecting them to be unarmed and/or unlikely to be willing and able to harm him, his entire premise for an act of self-defense crumbles.

hso said:

This stopped being a self defense or home defense case and became a murder case the moment the shots to finish the intruders off were fired.

Click to expand...

My thoughts exactly.

According to various reports;

Smith was in his basement when the break in occurred.

He was sitting in chair in the basement with a Mini-14, 22 Caliber handgun and had snacks to eat on.

At this point I don’t have any issues with his actions. He can claim he was merely on a stake-out like police do. He can claim he was hiding because he had been the victim of previous break-ins (he did file police reports each time didn't he...or maybe not).

Smith removed light bulbs from sockets and sat by a tall bookcase so the teens couldn't see him as they came downstairs.

Hum, can he claim he was doing basement repairs? Or proof he was setting up a ambush?

He waited until he saw Brady (first teenager) coming down the basement stairwell, then shot him. Brady fell. And as Brady was looking up at Smith, Smith shot him the face, the complaint said.

Maybe a threat at least for the first shot. Distance? Threats by Brady? Weapons by Brady?

Second shot? What was Brady doing or trying to do?

Smith said he dragged Brady's body into his workshop, then sat in a chair. When Kifer came down the stairs, he shot her too. After she fell, he tried to shoot her again but his gun jammed, and she laughed, the complaint said. Smith pulled out another gun and shot her several times in the chest, acknowledging he fired "more shots than I needed to," the complaint said.

Kifer was down and no longer a threat (if she ever was to begin with). Multiple shots result of extreme fear for his life or to make sure she doesn’t get off in court?

He allegedly dragged her into the room with Brady. Kifer was still gasping for air, so he fired what he called a "good, clean finishing shot" under her chin "up into the cranium," the complaint said.

MY GOD! Bullet in the head…think of Nazis, Communists, other Dictators.

He claimed that he waited until the next day to call a neighbor — who then called police — because he was still afraid of another intruder.

How could he be in fear of another break in with a houseful of cops. More like he couldn’t figure out what to do with the dead bodies to hide what he did.

I'm in AZ. Media giving a lot of attention to this one.

The guy was in the wrong, period. Parked his car down the road instead of his home to make it look open for a robber. He wanted people to come in. He had been robbed before, so he felt entitled to lay in wait.

BSA had the timeline, only missing also he had a tarp ready for the first intruder (Brady). Why have a fricking tarp? Because he said he didn't want the carpet to get blood on it.

Ridiculous, and anyone supporting this guy is putting our true right for self defense at risk. Anyone who says they would do the same as this guy also should not own a gun.

After reading the criminal complaint I think he's SOL. The defendant's own statements are pretty damning. His description of how he went to the female burglar, who by his description had suffered multiple gunshot wounds to the chest and was barely breathing, and gave her a "good clean finishing shot" up under the chin into the cranium is just chilling. If what he says is true this isn't self defense, it's an execution plain and simple.

Click to expand...

If these are factual statements of his to the authorities, then he has confessed to the crime he is charged with. Not much to debate IMO; he executed this girl, and clearly acknowledged this fact. His later actions of concealing the bodies cement his fate. He's done. And he should be. The girl, if she was in fact still breathing from the chest wounds, needed an ambulance. Not a kill shot. She was no threat to him at that point.

BSA had the timeline, only missing also he had a tarp ready for the first intruder (Brady). Why have a fricking tarp? Because he said he didn't want the carpet to get blood on it.

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Yep. And I didn't mention about him denying medical aid to the teenagers. (More proof he wanted them dead?)

I very much understand the anger and sense of vulnerability from having your home broken into and personal items stolen.

I find it really hard to imagine that anyone who read the criminal complaint would defend Smith.

Whether he was lying in ambush for the burglars is arguable. What's not arguable is that by evidence and by his own admission, he shot the second intruder with his rifle. When she fell down the stairs, she was still breathing and made "laughing" noises, which prompted Smith to empty his .22 revolver into her chest as she was lying there. No mention is made of any threatening motions she made, just that Smith "thought she might have a gun," so he shot her nine times in the chest as she was lying there.

Does anyone here actually think he can qualify for a self-defense claim here?

If you do, how about the part where he's got two tarps ready on which to drag their corpses around without messing up his carpet?

And when he drags her body into another room and realizes she's still breathing, so he jams a gun up under her chin and fires "a good clean finishing shot"?

If you STILL think he can claim self defense, I recommend you immediately stop carrying a gun and spend some time studying the laws regarding the use of deadly force in your state. Prepare to be disappointed.

I hope he ends up in a cell with a life sentence, the moment he decided to pull the trigger on the "kill shots" he became more vicious then these teenagers had ever been.

You have the right to defend yourself, if your attacker happens to die thats unfortunate. You do NOT have the right to kill someone.

The story made me sick at my stomach, someone had been watching too much clint eastwood.

After reading this a bit more...I decided to remove my post. I don't want to defend this guy in any way.

Mark

I guess I'm in the minority. This reminds me to be proficient in my shooting. For me the blame lies with the people breaking and entering, and him not keeping his mouth shut. To me he's the victim, until people start getting scared of the consequences of their actions they will not stop their behavior. Maybe this stops someone thinking that burglary and stops them from this path. I hope it turns even one person.

GBExpat - totally agree re: your last resort comment, but how do you know? The "seconds count" argument still holds water here - how do you know whether or not they are armed and if they have/lack trigger discipline? IMHO, I'm not taking that chance - while you're talking they may be shooting. To hso's point (and #1 in my original post/#5), the kill shots changed the game. I wouldn't have done that, but I'm not yelling "freeze" either (when my PDW light goes on it's plenty of warning). Even if I know they're coming, my heart's still pounding like it did the first time I looked through a scope at a nice buck, I'm scared, excited, etc. and I have family I am defending. This is cold, but you break into my house you are risking your life. I'll take my chances with the jury, but I'm also not finishing people off, moving bodies, recording my psychosis (like this moron did). Shoot and render aid if possible/necessary. THAT's the difference between a defender and a killer.

To my fellow THR brethren who think some of us are defending him, I can only speak for myself and say I AM NOT. Having said that, he walks on the first shots - for everything after that he goes to a padded cell. Dude has some serious issues.

jfh said:

Being a Minnesota boy (so to speak), I have followed this story closely. It is, a lot more complex than what the current coverage includes.

First of all, it was an explosive story when it broke a year-plus ago. Little Falls is a quiet small city in Central MN, on the Mississippi River. Two violent deaths there, of two kids well-known in school, athletes, etc., while apparently doing a burglary was shocking. Then, in come the arrests and charges against the homeowner--and that information blew the story up to a state-wide discussion, for exactly the reasons noted here.

In the bigger picture of state discussions, it was one more drumbeat to Minnesota-nice discussions about the issues of firearms as self-defense tools. [IOW--The notions out of Fargo (the movie; haven't seen the TV show yet, but my friends who have are saying that it is both 'good' and 'right') about the character of Minnesotans is accurate. The story became part of the ongoing political discussions, IOW, and Minnesota is a reliably-liberal state if not 'liberal' in the Northeast sense of the word (NY, NJ)]

However, what is missing from the current press coverage is the information developed about these two dead teens as police investigation continued. They were apparently two prescription drug users taken to supplying their cadre of like-minded teens and twenty-somethings by routine burglaries throughout the area.

They'd burglarized this guy at least twice before and, IIRC, on one of those burglaries (robbery?) taunted him about being 'helpless.'

BTW, it was their car, not Smith's that was parked 'down the street' and discovered a few days later (along with loot from other burglaries that same day, and a search warrant on one of the perp's homes later turned up more of Smith possessions--including a firearm or two, IIRC.

That information about these teens was equally shocking, and is what drives the story now--at least below the surface. Their previous criminality has been excluded from the trial by the judge. A request for a mistrial, at least partially based on this exclusion, has been denied.

Neither the Prosecution or the Defense requested a change of venue; the facts were too well known. And, although not currently identified in the current reporting, there is an undercurrent in Little Falls about the rightness of his response (and elsewhere in the State)--or so suggested in an MPR story.

Smith's lawyer is Ron Meshbesher--the best-known criminal defense lawyer in MN, and certainly one of the best. If he's signed on, at least Smith is being adequately defended. Meshbesher has to be praying for just one holdout on the jury--and I suspect he might get it.

I think there is also another subtext about this guy--unmarried, apparently working overseas most of his life as a State Department 'security consultant.'--I tend to see him as undersocialized for this point in time.

Carl N. Brown's post further up the discussion provides the important links--read it.

Click to expand...

Great post - thanks for the info

Akita1,

It is very obvious that you have never been cross-examined in a criminal trial. Those decisions you made maybe in span of seconds are going to be broke down mini-second by mini-second as the D.A. . Every action and action you didn't take is going to be ripped apart in a calm courtroom. You will likely be on the stand for hours even days as your story is repeated and examined over and over and if it matches the evidence at the scene. By the time it is over you are going to deeply regret not yelling "stop" or "freeze" or some other warning.

For a small example of what you may be in for look at Oscar Pistorius ongoing murder trial.

This guys actions are ugly. I think he had the right to defend his home but he went completely overboard when shot both of them in the head to 'end their suffering', that's just wrong and waiting to call the police certainly isn't going to help this guy in court and he will have a difficult time in court. The amount of force this man used on those two burglars was completely disproportionate and unnecessary, but I guess hindsight is 20/20 and we'll also never know what this guy was actually thinking when he pulled the trigger.

I agree that this man needs all the prayers he can get and I also think we should pray for the two burglars and their families, any loss of life is a tragedy whether they were criminals or not, and I firmly believe they didn't deserve the fate they suffered. Sad deal all around.

Thank you, Akita1

Given the general drift of this thread--it probably is important to add a few more comments.

Just because this case has (to me, at least) nuances about various factors in the incident, those nuances in no way color the legality / illegality of the self-defense actions of the defendant. The things he did clearly show that he did not merely defend himself or his home, and the trial is all about the illegality of those actions.

Keep in mind that self-defense is just that--immediate defense of yourself and possibly those in your immediate vicinity, and possibly that defense is allowed for property as well. (In MN, it arguably is--and, in today's political climate, I would NOT want to count on not being prosecuted for shooting a car thief.) Here is is obvious that much of what he did does not fit those definitions, particularly when issues of lethality are factored in.

So, perhaps the best thing we can take from this story so far is the price of not knowing what to do if we have elected to use firearms for self-defense. I imagine its immediate cost is $100,000 (perhaps less) for Meshbesher, et.al., the legal burden of the crimes he is charged with, the scorn of members of his community--and, if the descriptions of his own behavior when the tape was played in court are to be taken at face value--his own personal regret.

We'll see how it plays out--both in the short term (the jury verdict in this trial) and in the long term for him.

Enjoy prison, you're going away for a long time.

This is the kind of stuff the anti's dream of -- "responsible gun owners" committing murder with their firearms.

Everyone needs to know the rules of justifiable use of force, ESPECIALLY FIREARMS OWNERS.

That is a pretty big story here in MN.

Sadly he failed to let the perps follow through a little more. Better self-control on his part would have made this a clean case for the Castle Doctrine, which we desperately need. The Honorable Governor Dayton is too busy being uber rich to care about such people who do not have their own 24 hour taxpayer funded armed security. He vetoed the bill when it came up two years ago because he said it was too dangerous to responding law enforcement.

Possible deconstruction of the scenario: Let them in, "suddenly" awake from a deep sleep, TCB, and then call the authorities. Even if one of them was running away wounded, the message would be very clear to their gang of country hick thugs.

A man's home should be his castle indeed. It is unfortunate we cannot have a clearer argument in the media without having to deal with incriminating personal mistakes like the comments and other errors in judgement he made during this unfortunate situation.

Enjoy prison, you're going away for a long time.

Click to expand...

Actually most likely not. He is going to prison for the rest of his life which in most likely will be greatly shorten. He is under tremendous stress right now. By the time the trial is over he will be bankrupt and lost everything on any value he owns (lawyers are not cheap, good lawyer even less so, great lawyers are $$$$$$.00).

He is going into a dysfunctional world that is totally unlike anything he has ever know. The stress of adjusting to prison life, being told what and what not do, adjusting to prison rules and the adjusting to the inmate rules, cut off from family, no friends. He will have to learn fast out to survive and protect himself. As he is elderly he is going to find out medical care is not going to be all that easy. Heart attacks and strokes are often common when people are under a high degree of stress for a long time.

I would expect him to live about 5 years in prison. All of the above factors take a heavy toll on the human mind and body. When it gets to be to much of a challenge for the mind to deal with physical health quickly declines.

This is the kind of stuff the anti's dream of -- "responsible gun owners" committing murder with their firearms.

Everyone needs to know the rules of justifiable use of force, ESPECIALLY FIREARMS OWNERS.

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THR is a great forum for discussions of use of force. Some of the comments show that some folks don't understand the legal elements required for use of force. Hopefully these folks will stay on THR and learn.

So, you're saying he is to be slowly executed in a cruel and unusual manner hidden away from public view?

TCB

This is a sad story all around. Lots of speculation and fog factor added by the media. One thing for sure is, they won't do that again. The crime wave is over and that community is better off for it.

OK vs England.....

I didn't review the media article but the forum posts/details reminds me of the OK City Egland(check correct spelling) event several years ago.
Egland, a reported USAF veteran & small business owner, shot at 2 young stick up guys. The teens ran into Egland's pharmacy in the metro Oklahoma City OK area with guns & ski masks.
Egland's CCTV system recorded part of the lethal force incident.
He returned to the wounded subject & pumped a few more rounds into him.
The firearm & caliber Egland used are unknown.
He was charged with several felony offenses & was convicted. To my knowledge, Egland is incarcerated in a OK state prison. He's in his late 60s/early 70s so he may stay there until his death.

Rusty

Sadly he failed to let the perps follow through a little more. Better self-control on his part would have made this a clean case for the Castle Doctrine, which we desperately need. ...

Possible deconstruction of the scenario: Let them in, "suddenly" awake from a deep sleep, TCB, and then call the authorities. Even if one of them was running away wounded, the message would be very clear to their gang of country hick thugs.

Click to expand...

Not sure exactly what you're thinking here, but I see this as about the WORST case for "Castle Doctrine" issues. Someone killed breaking into a house who is expected and known to be a non-violent petty thief/burglar would actually damage the C.D. argument.

The reason CD exists is so that defenders don't have to go to great lengths to PROVE that someone breaking into their home intended to kill them. However, the justification for using lethal force still rests on that belief -- that death was imminent. (Not that they might steel your Oxycontin.)

But that is a rebuttable condition. If the prosecutor can introduce information that indicates that you had reasonable belief that the intruder was not a lethal threat to you, then your CD protection evaporates, and so does your justification for using lethal force.

So this is an especially bad case for Castle Doctrine all around. It sort of gives credence to the OPPOSITE of our arguments in support.

...

And "better self-control?" Yeah, that's a bit of an understatement. By that standard, Charles Manson's problem was lack of self-control, too. Better self control in this case would have been dealing with the issue in any of a variety of different ways. Not shooting and then executing two annoying petty thieves to stop them from stealing your prescription drugs and taunting you.


Self-Defense has NOTHING to do with "sending a message" to gang members and other criminals.

BSA1 said:

Akita1,

It is very obvious that you have never been cross-examined in a criminal trial. Those decisions you made maybe in span of seconds are going to be broke down mini-second by mini-second as the D.A. . Every action and action you didn't take is going to be ripped apart in a calm courtroom. You will likely be on the stand for hours even days as your story is repeated and examined over and over and if it matches the evidence at the scene. By the time it is over you are going to deeply regret not yelling "stop" or "freeze" or some other warning.

For a small example of what you may be in for look at Oscar Pistorius ongoing murder trial.

Click to expand...

BSA1,

Your assumption is partially false. I have been deposed, cross-examined, grilled and filleted for several hours on multiple occasions in business suits, sometimes as plaintiff and sometimes as defendant (I used to work in a highly-litigious industry). To your point, never in a criminal trial because I am not, to this point in my life, a criminal.

So I'll meet you half way from the laity (non-atty) perspective - I'll do my best to put one in the perp's kneecap while my hands are shaking and my family is terrified behind me while we uselessly hope the police arrive in time to save us from impending doom...and will take my chances with the jury IF someone decides to prosecute me for protecting my family. I'm not talking about ambushing anyone like crazy man did, I'm talking about defending family and home/hearth. We actually get to do that here in FL. If someone breaks into my house, I feel threatened your honor.

Akita1 said:

GBExpat - totally agree re: your last resort comment, but how do you know? The "seconds count" argument still holds water here - how do you know whether or not they are armed and if they have/lack trigger discipline? IMHO, I'm not taking that chance - while you're talking they may be shooting.

Click to expand...

So if you were sitting in that chair in the dark corner you had prepared, hearing the footsteps upstairs that you were hoping for, you, also, would simply shoot them on-sight as they descended the stair ... just to be safe.

Wow!