Defense: Man who shot teens 'scared in own home'

[240B]

Again people, he was not rational. That gasp he heard is something I regret to say that I have heard myself. What he heard was what is called the 'death rattle'. It is the final stage of death. He is in no way qualified to judge what he heard.
 
All that is described here is what he may of may not have intended to do. Not what he actually did. Furthermore, he was not in a sane state of mind to know what he was doing, or to describe to the police what happened. What he thought was muder was not what he thought it was.
 
Also, why would anyone say that they did something like this unless they are impaired. After being abused by these people, he was only trying to gain some kind of macho points. He may have done this, but she was already dead.

[Oceander]

Again people, he was not rational. That gasp he heard is something I regret to say that I have heard myself. What he heard was what is called the 'death rattle'. It is the final stage of death. He is in no way qualified to judge what he heard.
 
All that is described here is what he may of may not have intended to do. Not what he actually did. Furthermore, he was not in a sane state of mind to know what he was doing, or to describe to the police what happened. What he thought was muder was not what he thought it was.
 
Also, why would anyone say that they did something like this unless they are impaired. After being abused by these people, he was only trying to gain some kind of macho points. He may have done this, but she was already dead.

In this case I have to disagree.  It doesn't matter whether it was a death rattle or an actual gasp - he thought it was a gasp and he intentionally fired a killing shot.  If she was already dead, then he is still guilty of attempt, even if he couldn't actually complete the crime because of a factual impossibility.

[240B]

The 'rattle' does really sound like a deep gasp. And it will freak you out. He thought she was going to wake up, freaked out, because he was scared out of his mind, and reacted in a way which was not optimal. If he even did it at all.
 
Again, at least some of his description has to be fake bravado to the police about what a 'bad ass' he is. I take his version with a grain of salt. I doubt it. I think he was reacting out of fear, and nothing more. Of course he will not say this to the police.
 
It may very well be that these punks may have found the wrong person the screw with, as I said. But, even so, they came to him. They were in HIS house. He did not asked them there or invite them in. They did it to themselves. I cannot see how any of this is his fault.
 
It is absurd to think that I would find an intruder in my house, and shoot him, and then apply first aid to the guy I just shot. My world does not work that way.

[EC]

In this case I have to disagree.  It doesn't matter whether it was a death rattle or an actual gasp - he thought it was a gasp and he intentionally fired a killing shot.  If she was already dead, then he is still guilty of attempt, even if he couldn't actually complete the crime because of a factual impossibility.

I'm going with 240b on this. Got a guy already nervous and frightened, he's shot intruders, then a death rattle? They sound like a tractor starting up. Loud as bleep and completely unexpected. Not going to say the guy was right - he wasn't. But I'm not going to blame him for a perfectly natural response.

[Lando Lincoln]

I suspect - in Minnesota no less - his state of mind after he dragged and stacked the bodies will matter nil. He fired an intended execution shot. He will spend time in prison.

[Lando Lincoln]

Minnesota man convicted of premeditated murder
By AMY FORLITI   of Associated Press
April 29, 2014

LITTLE FALLS, Minn. (AP) — A Minnesota homeowner who shot and killed two teenagers during a break-in was convicted Tuesday of premeditated murder.

Byron Smith had claimed he was simply defending himself during the break-in at his home in the small city of Little Falls on Thanksgiving Day 2012. Smith's attorney said the 65-year-old was fearful after previous burglaries.

But prosecutors argued that Smith waited in his basement and intended to kill the teens. A total of nine shots were fired at 17-year-old Nick Brady and 18-year-old Haile Kifer.

Jurors began deliberating Tuesday morning and within three hours had a verdict: Guilty on two counts each of first-degree and second-degree murder. Mothers of the teens cried as the verdicts were read, while Smith showed no emotion. Defense attorney Steve Meshbesher said he would appeal.

The teens' killings stirred debate around the state and in Little Falls — a Mississippi River city of 8,000 about 100 miles northwest of Minneapolis — about how far a homeowner can go in responding to a threat. Minnesota law allows deadly force to prevent a felony from taking place in one's home or dwelling, but one's actions must be considered reasonable under the circumstances.

More ------> http://news.msn.com/crime-justice/minnesota-man-convicted-of-premeditated-murder

[Lando Lincoln]

http://news.msn.com/crime-justice/minnesota-man-convicted-of-premeditated-murder

[Luis Gonzalez]

Minnesota law allows deadly force to prevent a felony from taking place in one's home or dwelling, but one's actions must be considered reasonable under the circumstances.

He gave them the entire house and retreated into the basement.

They came into the basement.

Where does one retreat to from a basement?

I have to be missing something here.

[sinkspur]

He gave them the entire house and retreated into the basement.

They came into the basement.

Where does one retreat to from a basement?

I have to be missing something here.

The teens were not armed. 

I'm guessing what convinced the jury were the multiple shots fired at each teenager, including a "finishing shot" on the girl as she struggled for life.

Making sure each teen was dead was his objective, which is not "reasonable under the circumstances."

[Fishrrman]

I'm wondering if he doesn't have a good chance at winning on appeal.

My reasoning: he was convicted of "premeditated" murder, when [I think] the indictment should have been for second degree murder, manslaughter or negligent homicide.

Might be worth a try by a good criminal defense lawyer.

Get the right appellate judge or judges, and I think he has a chance.

Not to escape prosecution, mind you -- but to get the existing conviction thrown out, a new trial ordered, and perhaps conviction on lesser charges. Or perhaps even a "plea"...

[sinkspur]

I'm wondering if he doesn't have a good chance at winning on appeal.

My reasoning: he was convicted of "premeditated" murder, when [I think] the indictment should have been for second degree murder, manslaughter or negligent homicide.

Might be worth a try by a good criminal defense lawyer.

Get the right appellate judge or judges, and I think he has a chance.

Not to escape prosecution, mind you -- but to get the existing conviction thrown out, a new trial ordered, and perhaps conviction on lesser charges. Or perhaps even a "plea"...

Doubtful.  Laying in wait for someone is premeditation. 

He could have pled this case.  He doesn't think he did anything wrong.

[Lando Lincoln]

The evidence must be compelling, it seems to me.  He moved his vehicle to make it appear he was gone.  The teens broke the law, but he set a trap and waited with lethal force available.  Then, the coup de grace shot.  He did not testify.  Compelling to a jury and an easy story to weave by a capable prosecutor.

[240B]

I'm wondering if he doesn't have a good chance at winning on appeal.

My reasoning: he was convicted of "premeditated" murder, when [I think] the indictment should have been for second degree murder, manslaughter or negligent homicide.

Might be worth a try by a good criminal defense lawyer.

Get the right appellate judge or judges, and I think he has a chance.

Not to escape prosecution, mind you -- but to get the existing conviction thrown out, a new trial ordered, and perhaps conviction on lesser charges. Or perhaps even a "plea"...

I agree 100%. If I were the defense, I would not be completely unhappy with the verdict. Premeditated murder is way out of bounds for the circumstances of this case. Premeditated would be if he invited them into his home and then shot them. Premeditated would be if he stalked them or hired a hit-man to kill them. That is premeditated.
 
What he did was done out of blind fear, combined with defense of his home. From his point of view, because they had robbed him once or several times before, he felt violated, and he thought that they would keep coming back until he put a stop to it. Unfortunately his method of choice to 'stop it', was in fact over the top. But how can it be 'premeditated' if his entire so called plan depended entirely on the actions of the punks?
 
Someone keeps stealing my bread. If I poision my bread, for example, leave for work and someone breaks into my home and eats my bread, did I kill that guy? Premeditated?
 
I think it is not over and that he will come out better on appeal. Furthermore, the judge withheld critical details from the jury including that these punks were known criminals and had broken into his house and the homes of other neighbors before this incident. It is the punk perps who were menacing their community, not this guy, who worked with kids at the local high-school. He was defending his home and property.
 
Regardless of all the custie pictures and testimonials, these were two drug obessed burglars and juvenile delinquents with a talent for B&E. They happen to pick on the wrong guy, in the wrong place, at the wrong time. But it would have happened to them somehow some way anyway. It was the life path they themselves chose.

[Oceander]

He gave them the entire house and retreated into the basement.

They came into the basement.

Where does one retreat to from a basement?

I have to be missing something here.

I think that what sank him was the fact that he, as he put it in his own words, put his gun under the girl's head while she was unconscious and gave her a "clean killing shot."  That is premeditated murder and wholly unreasonable to boot.

[MACVSOG68]

The teens were not armed. 

I'm guessing what convinced the jury were the multiple shots fired at each teenager, including a "finishing shot" on the girl as she struggled for life.

Making sure each teen was dead was his objective, which is not "reasonable under the circumstances."

Yeah, based on what I've seen, that's how I see it.  It will likely be appealed, but I don't think any state law would permit an execution by a private citizen, which is what appears to have happened.

[Oceander]

Re: premeditated murder

A snippet from the original news item:

*   *   *

A few minutes later, Kifer walked down the stairs and Smith shot her, Wartner said. He tried another shot, but his rifle jammed, Wartner said, and Smith told police he believed Kifer laughed at him.

"He was angry," Wartner said. He said that Smith then pulled out his revolver and he shot her twice in the head, once in the left eye and once behind the left ear.

Smith dragged Kifer's body into the workshop and laid it on top of Brady's, Wartner said. Smith told investigators he thought he heard Kifer gasping, so he placed his revolver under her chin and fired what he told police was a "good clean finishing shot to the head," the assistant prosecutor said.

*   *   *

The part in bold is, in my view, the damning event.

Under Minnesota law, first degree murder includes

609.185 MURDER IN THE FIRST DEGREE.

(a) Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life:

(1) causes the death of a human being with premeditation and with intent to effect the death of the person or of another;

*  *  *

second degree murder includes

609.19 MURDER IN THE SECOND DEGREE.
Subdivision 1.Intentional murder; drive-by shootings.

Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:

(1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation; or

*  *  *

If his actions weren't premeditated, then he still faces at least 40 years in prison because his actions were definitely second-degree murder.


Minnesota law defines premeditation thusly:

609.18 DEFINITION.

For the purposes of sections 609.185, 609.19, 609.2661, and 609.2662, "premeditation" means to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.

*  *  *

Further, under Minnesota caselaw, premeditation can take place within moments - i.e., the heat of the moment - and in no wise requires calm reflection on the matter.  From a 1978 Minn. case, State v. Marsyla:

The question of intent and premeditation is stated well in 9 McCarr, Minnesota Practice, Criminal Law and Procedure, § 1521, p. 187:

"All the time needed for premeditation or deliberation is that required to form the intent to kill. Thus, the following instruction was sustained in State v. Prolow [98 Minn. 459, 461, 108 N.W. 873, 874 (1906)]:  "The `premeditation may be formed at any time, moment or instant before the killing.  Premeditation means thought of beforehand for any length of time, no matter how short.  There need be no appreciable space of time between the intention of killing and the act of killing. They may be as instantaneous as the successive thoughts of the mind.'

(emphasis mine)

This poor guy thought of giving the girl a "good clean finishing shot to the head" and then did so.  Under Minnesota law he committed premeditated murder.

[Lando Lincoln]

Thank you O.

[Oceander]

Yeah, based on what I've seen, that's how I see it.  It will likely be appealed, but I don't think any state law would permit an execution by a private citizen, which is what appears to have happened.

I'm quite sure there will be an appeal.  For example, the trial judge excluded documentary evidence that the guy had broken into this man's house before; I would think one basis for appeal would be to claim that was reversible error because the fact that this particular guy had broken into the house before would reasonably affect how this man saw the situation - it would be quite reasonable for him to assume that the guy was there to do it again - and so the info should have come in.  I don't think it's a winning argument but it's certainly a non-laughable argument.

At the end of the day, though, I agree that it was the last shot, the "good clean killing shot", that sank this man; there is simply no way to shoe horn that into self-defense.  It seems to me that the right to use lethal force in self-defense with respect to a particular person ends at the point that the person is incapacitated or no longer capable of posing an immediate threat to the person defending themselves.  Here, this man already knew they were incapacitated and no longer a threat to him - he dragged them around like sacks of potatoes - and there is simply no rational way he could have legitimately perceived them as a continuing threat to him.

[240B]

This whole case is based on his 'state of mind'. Was he reasonable or rational? His own words and deeds prove that he was not. He was not in a rational normal state of mind. His own recording proves that. He was in every respect 'out of his mind'. He was not insane, but it could be viewed as a 'crime of passion' in the sense that he was not thinking clearly.
 
He is not a menace to society, who needs to be locked-up for public safety. Quite the opposite, the drug addled punks he killed were the ones menacing society.

[Luis Gonzalez]

Thanks for clearing this up for me guys.

I didn't pay a whole lot of attention to the case.

[sinkspur]

This whole case is based on his 'state of mind'. Was he reasonable or rational? His own words and deeds prove that he was not. He was not in a rational normal state of mind. His own recording proves that. He was in every respect 'out of his mind'. He was not insane, but it could be viewed as a 'crime of passion' in the sense that he was not thinking clearly.
 
He is not a menace to society, who needs to be locked-up for public safety. Quite the opposite, the drug addled punks he killed were the ones menacing society.

You're kidding, right?

A "crime of passion"?  He sat in his basement, waiting.  When the male came down the stairs, he shot him, several times, the rolled his body up in a tarp and dragged him to the side.

The female came down, he shot her several times, but she wasn't dead.  In fact, she was begging for her life.  So, he puts down the rifle and picks up a handgun and administers the "finishing shot" under the chin.

The fact that he recorded the whole thing means that he WANTED others to hear what he had done, or, maybe he thought he'd get a thrill out of listening to his killings later.  No, he was of clear mind.  He wanted to kill two teenagers that night, and he did it.

Defending this idiot ought to make those who do cringe, but obviously it doesn't.  He'll get what he deserves when he's sentenced.

[240B]

I agree. The recording of the whole thing only proves to me that he is a 'crazy old man', in the classic sense. What kind of 'premeditated' criminal would do that?
 
In saying, crime of passion, I was only pointing out that he was irrational and reacting to the moment and not according to anything he had thought out.
 
In the end, these were obviously two hoodlums who were picking on an unstable guy. It is their actions that ruined his life. He did nothing, nothing at all, 'active', to interfere with their life. All of his involvement is completely passive. They came to him. They were the bullies.
 
He wanted nothing to do with them, at all, until they shattered a window, entered his home, and then headed for the basement presumably to look for more weapons like the ones they stole the first time they broke in.
 
They ruined his life by what 'they' did. He was not seeking to interject anything into their life. He just wanted to be left alone. They would not give him that peace.
 
This whole incident is not in any way his fault. It was brought to him. He did not seek it out. The two perps brought it to him. And now his life is ruined because of decisions that they made.

[Oceander]

This whole case is based on his 'state of mind'. Was he reasonable or rational? His own words and deeds prove that he was not. He was not in a rational normal state of mind. His own recording proves that. He was in every respect 'out of his mind'. He was not insane, but it could be viewed as a 'crime of passion' in the sense that he was not thinking clearly.
 
He is not a menace to society, who needs to be locked-up for public safety. Quite the opposite, the drug addled punks he killed were the ones menacing society.

His state of mind was this:  he shot two people whom he was afraid of; he dragged their bodies into the cellar; he believed he heard the girl still breathing so he gave her a "good clean killing shot".  That was premeditated; premeditation has nothing to do with how wound up you are, it has to do with whether you took the time to think about doing something - and that does not mean you sat and reflected on the philosophical issues, it merely means that you decided you were going to kill someone, and then you went and did it.

A "good clean killing shot" takes some skill; I doubt if I could administer one of those without bollixing everything up, even when I'm calm as a cucumber.

He thought through what he was going to do when he administered that coup de grace and he cannot justify that action as self-defense because no rational person - and that is what you are tested against, the hypothetical rational person - could have believed that the girl was a threat to him any longer.  Absolutely no one.

Whether the rest of his actions were justified or not, executing the girl cannot ever be justified.  He committed premeditated murder when he executed her.

[Fishrrman]

Oceander quotes Minnesota law above:
[[ "All the time needed for premeditation or deliberation is that required to form the intent to kill. Thus, the following instruction was sustained in State v. Prolow [98 Minn. 459, 461, 108 N.W. 873, 874 (1906)]:  "The `premeditation may be formed at any time, moment or instant before the killing.  Premeditation means thought of beforehand for any length of time, no matter how short.  There need be no appreciable space of time between the intention of killing and the act of killing. They may be as instantaneous as the successive thoughts of the mind.' ]]

"An instant before the killing" seems to try to blur the distinction between "premeditated" and a "spontaneous crime of passion".

I see a challenge here in the federal courts -- the law is simply too vague.

[flowers]

bkmk