Minnesota: Man Charged in Deaths of Intruders

[Sure Shot Mc Gee]

As of this AM's paper. Young lady was intoxicated on cough medicine at the time of the burglary. Young mans blood test came out clean. Young man was shot three times. Under cross examination medical examiner admitted maybe two of the three shots the young man received wouldn't have incapacitated. To me it appears the shot to the head was indeed the killing wound.

[Mike Irwin]

You have a link to the article?

[Madcap_Magician]

Originally Posted by oysterboy

I can't blame the guy because of the past burglaries but why the hell don't he put up a security surveillance system?

Um, he did put in a surveillance system. Apparently his old job was in fact designing and installing such systems for the State Department. He had cameras and sound wired all over his property, and was apparently monitoring the burglars as they approached his house from the camera feeds going into his basement, which also plays into the premeditation issue.

The audio recordings he took record the entire confrontation and both shootings, and they are not looking good for him in court.

[Oysterboy]

Ah, so he did.

[markj]

Only a crazed person could think this up. Too bad for them kids but I must say dont do the crime if you cant do the time. A high price to pay for some trinkets to buy meth with. I for one sure could not do what this man did.

[Sure Shot Mc Gee]

Mr. Smith wasn't in his basement at the time the Two were circling his house looking for an unlocked door or window for their entrance point. As stated Smith seen the boys/girls silhouette in his window shades going from window to window prior to the boys breaking in via the bedroom window in broad daylight. Apparently Smith upon seeing that outside behavior immediately headed for the basement and seen the teen on video and also seen the teen walk up and purposely turn his cameras to a neutral direction upon there discovery. So these two burglar's knew there were outside video cameras watching the yard prior. But chose to break in anyway.
I'm amazed at what nice pictures our news paper chose to show the perpetrators likeness to their customers.


http://www.startribune.com/local/

Scroll down a little on the (link) page for the Smith article.

[Aguila Blanca]

Mr. Smith wasn't in his basement at the time the Two were circling his house looking for an unlocked door or window for their entrance point. As stated Smith seen the boys/girls silhouette in his window shades going from window to window prior to the boys breaking in via the bedroom window in broad daylight.

I just don't see much to support the notion that he was "terrified."

[Brian Pfleuger]

This is really a very simple thing.

There was a bright, clear line when he crossed from legal to illegal.

It is at least arguable, without question, that defending his home from a threat by using deadly force was legal under Minnesota law. It is at least arguable that the initial shots on both actors were legal. Ill advised, stupid, poorly considered, I would even say immoral, but legal.

The problem is the execution. The young lady was alive, no threat to him, and he killed her in cold blood. It's really not even debatable.

Nothing prior to that moment matters. He murdered her, with malice aforethought and admitted to it. He is a murderer.

[steve4102]

Originally Posted by Madcap_Magician

You think it's "a bit bizarre" to shoot a home invader, then walk up to her, shoot her nine times in the chest because she's still breathing,

Maybe, but that's not what happened. She was shot 6 times and not all in the chest.

Originally Posted by Madcap_Magician

Smith then empties a nine-shot .22 LR revolver into the second burglar as she is lying on the ground, again, like in the first case, posing no reasonable articulated threat to him.

Are you kidding me? I am hoping that people here posting in Smith's defense are simply talking about this case without actually having read anything about it, because it seriously concerns me that someone could have read all this information and still think he was justified.

Totally frickin' unreasonable.

And if that wasn't enough, he then rolls the second burglar's body into a tarp and drags her back to his workshop by the first burglar, again tampering with a crime scene.

And then, if THAT wasn't enough, he notices the second burglar is still breathing, so he reloads his .22, tucks the barrel under her chin, and executes her with what he later told police was "a good clean finishing shot."

Again these are not the facts, may your opinion, but not the facts.

Here is what the ME testified to as reported by the Media. Take this with a big a grain of Salt as you wish.

Brady was shot three times,

Mills said the final shot to Brady, which went through his right hand and into his right temple, was the "most immediately fatal." She described it as a close-range shot, fired from between 6 inches and 3 feet away, that went through his skull and into his brain.

Brady was also shot in the abdomen and in the back of his left shoulder as he descended the stairs into Smith's basement. Mills testified these first two gunshots caused serious internal injuries that would have been fatal had enough time passed but would not have been incapacitating.

I appears to me that the ME may have handed Smith a "Get Out of Jail Free Card" as far as Brady is concerned. The threat had not been neutralized by shots one and two, so Smith may have been justified in shot #3.

Mills testified that Kifer had six gunshot wounds, including two to the head at close range. She said the shot that killed Kifer, the fifth fired by Smith, was a close-range shot behind her left ear, striking her brainstem.

"This is a fatal shot," Mills testified. According to the criminal complaint, Smith fired another shot after that, under Kifer's chin, which he called a "finishing shot."

On cross-examination, defense attorney Steven Meshbesher pointed out that before the fatal shots, both Kifer and Brady would have been able to move and could have been perceived as threats. He said Brady could have grabbed a weapon if he had one.

She was already dead when the shot was delivered under the chin.

This may or may not mean that the ME actually said that Kifer would have still been a threat. It says that Defense Attorney Pointed this out to her. She may or may not have agree, doesn't say.

http://www.twincities.com/localnews/...n-murder-trial

[Tom Servo]

She was already dead when the shot was delivered under the chin

Perhaps, but when this goes before a jury, it won't be a dry litany of facts. Intent will be brought up, and it will matter.

[steve4102]

Perhaps, but when this goes before a jury, it won't be a dry litany of facts. Intent will be brought up, and it will matter.

True, but there have been a few comments on here that she was still breathing so Smith shot her again under the chin. This is not factual, as she was already dead and not breathing.

[steve4102]

As much as we would like to distance ourselves from the likes of Mr Smith, it may be harder than we think.

The Media is already reporting that one Member of the Jury is an NRA Member. I can't imagine the fallout that will occur if there is a hung jury and the lone holdout is a member of the NRA.

http://www.myfoxtwincities.com/story...alls-homeowner

[kilimanjaro]

I kinda miss the old days of yellow journalism when the public would just burn out the newspaper building and ride tarred-and-feathered 'reporters' out of town when they printed the kind of rabble-rousing drivel they seem to be returning to.

[JimDandy]

I don't even know why they need a trial. Go right to sentencing.

Because the defendant has a right to one. It may not have to be a long one, but he gets to have one.

My point is, I think I could run off two unarmed teenagers with a Mini 14, without shooting them.

Many probably could. Especially with the benefit of 20/20 hindsight on behalf of everyone. The kids will know they're die if they don't follow the orders of the gun-waving man, you'd know you're going to jail if you shoot them. Of course, some could go to trial for waving a Mini-14 around at a couple kids who never broke into a house and can't be proven to have planned to. God help the person who fires a warning shot as well.

I still think that if you are serious about SD you need to be educated on more than punching holes at the square range. Sure, some can't afford it, etc. But it's a good idea.

All the education in the world won't teach anything to a guy who thinks a good clean finishing shot on another human being is a good thing. That's where he does the rest of us so much harm. He's the poster-boy for "Concealed Carry/Stand Your Ground/Castle Doctrine is just a license to kill".

It may take a hundred self defense shootings to have it actually get reported that the shooter than called 911, provided medical aid to stop the bleeding and save the life of the violent criminal he shot. We can blame the one sided news media, and there is some of that. But it's also the nature of news. That sort of story doesn't sell the ad space like "nice clean finishing shot".

I don't mean to make light of this situation, but I always wondered what kind of person would buy/put up one of those signs that reads: WARNING: Tresspassers will be shot; Survivors will be shot again.

Either the ones who never expect to have to shoot someone, or the ones who have no clue on Earth how bad it will be when they do. Or both.

[WyMark]

One of the three jurors selected Monday admitted to being an NRA member who wouldn't hesitate to shoot someone who broke into his home, a move Washington County Attorney Pete Orput -- lead prosecutor on the case -- didn't block.

"I would try this case in front of 12 NRA board members," he said.

How is reporting facts "yellow journalism"? Blaming the messenger is always weak. If the prosecutor had a problem with this person he could have excluded him.

[steve4102]

Most if not all the posts and comments refer to the Mr Smith shooting as "Self Defense" and in fear for his life.

I have not seen any comments on MN Statute 609.065 Justifiable Taking Of a Life.

609.065 JUSTIFIABLE TAKING OF LIFE.
The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.

These two thieves were without a doubt in "The Commission of a Felony" and from where I sit Mr Smith was Justified to "Take Their Lives" under MN law 609.065.
Questions.
Does this statute follow the same rules and "Self Defense" in that Deadly Force must end when the "Commission" of the Felony has ended? That is, once these two were down, has the Commission of a Felony Act ended and deadly force may no longer be applied, or is MR Smith Justified in "Taking A Life" based on the Felony Burglary itself?

I have also Read that some use the term "Continuing" instead of "Commission". If "Continuing" is acceptable language then I would have to believe that once the Burglars are no longer able to "Continue" stealing then the use of Deadly Force must also end?

[Aguila Blanca]

Originally Posted by Steve4102

True, but there have been a few comments on here that she was still breathing so Smith shot her again under the chin. This is not factual, as she was already dead and not breathing.

I believe it was the homeowner's statement to the police that she was still breathing before he fired the "finishing" shot. The shot to her brain might have resulted in the cessation of brain activity, which a medical examiner would classify as "dead," but it is nonetheless possible that there were involuntary muscles moving which could have been perceived by the shooter as indicative that she was still alive.

Your statement above mischaracterizes the testimony you cited from the medical examiner. The ME (according to your quotation) testified that the fifth shot was the fatal shot, but there's nothing in that statement to the effect that chest movement ceased instantaneously.

[steve4102]

Originally Posted by Aguila Blanca

Your statement above mischaracterizes the testimony you cited from the medical examiner. The ME (according to your quotation) testified that the fifth shot was the fatal shot, but there's nothing in that statement to the effect that chest movement ceased instantaneously.

True, but these were the ME's words.

Mills testified that Kifer had six gunshot wounds, including two to the head at close range. She said the shot that killed Kifer, the fifth fired by Smith, was a close-range shot behind her left ear, striking her brainstem

Without the Brainstem, all bodily functions cease, even Breathing.

Edit:

Mills testified under cross-examination that the respiratory system in a body can make sounds after death if it is being moved.

Sounds, did not say Breathing.

http://www.startribune.com/local/256559651.html

[Evan Thomas]

Whether Ms. Kifer was killed by the fifth or sixth shot is irrelevant; both shots were fired after she was down and no longer posed any sort of threat. Mr. Smith's statement about the sixth shot -- that he fired "a good clean finishing shot" into Kifer's head -- does speak to his intent, which clearly was to kill someone who was no longer a threat.

Whether Mr. Smith is convicted of first-degree murder or a lesser crime will probably depend heavily on whether the jury believes the prosecution's contention that he deliberately set up an ambush in his basement, sitting in a chair and waiting for Ms. Kifer and Mr. Brady to come down the stairs. There seems to be a good bit of evidence for this, including the fact that he unscrewed three of the basement light bulbs (they were piled next to the chair he was sitting in).

[JimDandy]

And intent changes, colors, and and taints everything else.

What he did, with different intent is, at least I would think, legal and noble. If I retreat to my basement - deciding my stereo isn't worth their lives, remove a few light bulbs for my safety, and call police telling them I'm hunkered down down there using my basement as a panic room, all of that becomes a decent human being thing to do.

[manta49]

It takes a certain sort of cold blooded individual to put a gun to the head of someone who is injured and pull the trigger, not the type of person I would be trying to defend their actions in any way like some seem to be trying to do.

[steve4102]

Originally Posted by steve4102

These two thieves were without a doubt in "The Commission of a Felony" and from where I sit Mr Smith was Justified to "Take Their Lives" under MN law 609.065.
Questions.
Does this statute follow the same rules and "Self Defense" in that Deadly Force must end when the "Commission" of the Felony has ended? That is, once these two were down, has the Commission of a Felony Act ended and deadly force may no longer be applied, or is MR Smith Justified in "Taking A Life" based on the Felony Burglary itself?

I kinda sorta found and answer to my own question from the MN Court of Appeals.

http://mn.gov/lawlib/archive/supct/9708/c6952162.htm

1. Fear of death or great bodily harm is not an element of a "defense of dwelling" claim. Minn. Stat. § 609.065.

2. Jury instructions that required the jury to find that the defendant feared great bodily harm or death to justify his use of deadly force in preventing the commission of a felony in his place of abode were in error, and the error was not harmless.

So, if Smith did not have to Fear for His Life to justify Deadly Force, does he have to stop shooting when the threat is over? He didn't need it to start shooting so why and when would the Law require him to stop?

[Madcap_Magician]

Originally Posted by Steve4102

Again these are not the facts, may your opinion, but not the facts.

You are correct about the number of shots and their placement, I don't believe the coroner's report was out when I originally posted. My original post was based on the information from the early media reports combined with the criminal complaint.

Originally Posted by Steve4102

So, if Smith did not have to Fear for His Life to justify Deadly Force, does he have to stop shooting when the threat is over? He didn't need it to start shooting so why and when would the Law require him to stop?

I would think you are going to run up against the reasonableness issue very rapidly. While you could make a weak argument that the part of MS 609.065 that refers to "... or preventing the commission of a felony in the actor's place of abode" does not specifically contain the term "reasonable," the intent of the statute given the rest of 609.065 specifically and 609.06 in general is quite arguably that all use of force must be reasonable in the light of the circumstances. Indeed, Minnesota v. Carothers, which is the case that judicially determined the defense of dwelling exception to Minnesota's duty to retreat obligation also stated the following:

We emphasize that a person claiming defense of dwelling is still subject to strictures insuring the reasonableness of his or her behavior.   Defense of dwelling and self-defense within the dwelling serve a defensive and not offensive purpose, and do not confer a license to kill or to inflict great bodily harm merely because the offense occurs within the home.

And also:

...When faced with a defense of dwelling claim, the jury must determine (1) whether the killing was done to prevent the commission of a felony in the dwelling, (2) whether the defendant’s judgment as to the gravity of the situation was reasonable under the circumstances, and (3) whether the defendant’s election to defend his or her dwelling was such as a reasonable person would have made in light of the danger to be apprehended.

I think Smith can slam-dunk argue (1), and probably (2) for the first shots, at least, but then he fails both (2) and (3) for the follow-up shots, particularly the executing shots on both victims.

I am unsure of what effect the fact that Kifer was most likely dead when Smith fired the last shot will have.

[Gbro]

True, but these were the ME's words.

Mills testified that Kifer had six gunshot wounds, including two to the head at close range. She said the shot that killed Kifer, the fifth fired by Smith, was a close-range shot behind her left ear, striking her brainstem

Without the Brainstem, all bodily functions cease, even Breathing.

Edit:

Mills testified under cross-examination that the respiratory system in a body can make sounds after death if it is being moved.

Sounds, did not say Breathing.

Agonal Respiration's or Death Rattle could be what Mr. Smith heard. I have heard that on several occasions with gun shot wounds to the head. We would certainly follow all resuscitation protocols, but would not be very hopeful. These two links list them as not the same and I would define the Agonal respiration as short duration of the last efforts of a pulse-less body, and Death Rattle as similar but with a heart beat and could last a considerable time. (Just my $0.02)
Of course this is all moot for the purpose of this case because from what i see his intentions are to totally neutralize each threat just like some of us have trained in a double or triple tap exercise, like one to the body and one to the head, or two and one.
I am still looking for the defense to bring in his State Department background.
The one thing that i feel certain of is there is no need in playing by someone Else's rules when defending yourself in your own home. Like Phil Robertson say's "Out Here I Am 911" and Mr. Smith already experienced 911 responce.

[Aguila Blanca]

Originally Posted by Gbro

Of course this is all moot for the purpose of this case because from what i see his intentions are to totally neutralize each threat just like some of us have trained in a double or triple tap exercise, like one to the body and one to the head, or two and one.
I am still looking for the defense to bring in his State Department background.
The one thing that i feel certain of is there is no need in playing by someone Else's rules when defending yourself in your own home.

A triple tap (or "Mozambique") is executed very rapidly, all three shots in immediate succession. A triple tap is a completely different scenario than shooting someone multiple times, stopping to drag the body onto a tarp to keep the blood off the floor, and then firing two more shots to finish the person off.

Based on the criteria cited in Madcap_Magician's post, it would seem that there IS a need to "play by someone else's rules" even when defending yourself in your own home. Specifically, there IS a need for your actions to be reasonable. Firing a triple tap could easily be deemed reasonable, especially if you had prior training that emphasized that as a response. Moving the body and then administering a coup de grace is probably a lot less likely to be deemed reasonable.

Here's an example: http://www.youtube.com/watch?v=UiqwF_Y9S5Q

Cruise fires two shots (double tap) at the first bad guy, then three (triple tap) at the second bad guy. So far, so good.

Then he fires a "clean finishing shot" at the first guy after he picks up the briefcase. Makes for good Hollywood, but ... justified? I think not.