Minnesota: Man Charged in Deaths of Intruders

[OldMarksman]

Posted by steve4102: Doesn't really matter what you or I think,it matters what the Law says.

What matters is what the law means, which is a matter for the courts, and what Smith did.

[(Quoting from the statute)]"....when necessary in...preventing the commission of a felony in the actor's place of abode."

The laws in quite a number of states provide for the use of force, and in some cases, deadly force, to prevent felonies. Not all of them limit that provision to a domicile or "place of abode." Some of them specify what kinds of felonies fall under that provision.

I am not aware of any other state in which the law justifies the "intentional taking of life" by a private citizen under any circumstance. Minnesota appears to be an outlier in that regard. One has to wonder what the legislators thought they were doing.

The key words in the statute are "necessary" and "preventing."

Smith could have argued, probably successfully, that he had been justified in shooting, to the extent that it had been necessary, to prevent a felony after the two persons had entered his home uninvited. But surely any reasonable person would conclude that, once he had stopped them, he had effectively prevented them from committing any felonies in the house. Thus, he was not justified in the further use of force of any kind.

There is, of course, some possibility that the jury, or another jury in the event that this one is unable to reach a verdict, will decide otherwise. But it is more likely that he will ultimately be convicted.

If he is, I suppose he might appeal, probably on the basis that the unusually clumsy wording in the statute somehow permitted his deliberate action. The appellate court could rule against him. That would establish case law that would clarify the meaning of the law.

Or it could rule in his favor (I am not aware whether Minnesota is one of those states in which the courts must abide by the wording in the law if the wording is reasonably clear). Should that happen, I think we can reasonably expect the legislature to amend the law to address the use of force rather than the "intentional taking of life." That has happened in at least one other state in which the highest court was forced to rule on the basis of the wording in the code.

If I were a betting man, my money would not be on Mr. Smith. His future looks very dim indeed.

 

[Evan Thomas]

Doesn't really matter what you or I think,it matters what the Law says.

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.

Keep in mind that case law (how the law has been interpreted in the past) matters as much as the law as it's written in the statute. The Minnesota Supreme Court has ruled the use of deadly force under section 609.065 must be reasonable:

"There is no duty to retreat from one's own home when acting in self defense in the home, regardless of whether the aggressor is a co-resident. But the lack of a duty to retreat does not abrogate the obligation to act reasonably when using force in self-defense. Therefore, in all situations in which a party claims self-defense, even absent a duty to retreat, the key inquiry will still be into the reasonableness of the use of force and the level of force under the specific circumstances of each case." State v. Glowacki, 630 N.W.2d 392, 402 (Minn. 1991).

To justify the taking of a life, the "killing must have been done in the belief that it was necessary to avert death or grievous bodily harm"; the 'judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances"; the "defendant's election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended." State v. Richardson, 670 N.W.2d 267, 277-78 (Minn. 2003).

http://www.leg.state.mn.us/archive/vetoes/2012veto_ch126.pdf​

The wording you quote matters a lot less than how the courts have interpreted it, and it's hard to see how Mr. Smith's actions meet any standard of reasonableness.

The jury will be instructed to rule on the evidence as it's presented, and only the evidence before them, and within the context of MN law. So there's probably a better than even chance that Steve is right and Smith will walk.

The prosecuting attorneys in this case can fairly be assumed to understand Minnesota law (both statutes and case law) better than we do. Prosecutors very seldom bring charges in cases they don't think they'll win.

 

[steve4102]

"There is no duty to retreat from one's own home when acting in self defense in the home, regardless of whether the aggressor is a co-resident. But the lack of a duty to retreat does not abrogate the obligation to act reasonably when using force in self-defense. Therefore, in all situations in which a party claims self-defense, even absent a duty to retreat, the key inquiry will still be into the reasonableness of the use of force and the level of force under the specific circumstances of each case." State v. Glowacki, 630 N.W.2d 392, 402 (Minn. 1991).

To justify the taking of a life, the "killing must have been done in the belief that it was necessary to avert death or grievous bodily harm"; the 'judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances"; the "defendant's election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended." State v. Richardson, 670 N.W.2d 267, 277-78 (Minn. 2003).

This pertains to MN 609.065 as to Self Defense, yes?

According to MN Appeals Court, SD and Fear for one's life is NOT a requirement for Taking of a Life to Prevent the Commission of a Felony. So, I do not see how this applies.

According to MN case Law Smith did not have to fear for his life and he did not have claim Self Defense". The simple Felony act of the two teen was justification enough, No self defense required.

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

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

 

[DubbytheGreat]

While I do believe he went over the line when he finished off the intruders. I can see the defense emphasizing the age of the homeowner and the threat of multiple attackers. If the first intruder wasnt as injured as he thought he could be dealing with a 2 on 1 situation. Not to mention he had been burglarized multiple times leading up to the shooting and guns were stolen from his home. I could see how he would be extremely fearful. I wouldn't want to be on that jury. I want more facts

 

[OldMarksman]

Posted by steve4102: The simple Felony act of the two teen was justification enough,...

No, no, no.

One more time----The defender must have reason to believe that his action is necessary to prevent a felony in the home. NECESSARY. PREVENT.

The decedents had been disabled and could not have committed a felony.

Whether they had already committed a felony or felonies is completely irrelevant. A private citizen may not judge guilt, or establish or execute a sentence, or exact revenge.

By the way, reasonableness is a key aspect of justification in use of force law. It makes no difference on which particular section of the use of force statutes on which the appellate court ruled. The ruling in the case of an appeal under one section would almost certainly establish precedent under any other. Do you honestly believe that the courts would require the exercise of reason in acting in the fundamental human right of self defense, but not in the prevention of a felony?

One cannot rely on the wording of a single statute, taken out of context, to interpret the law. There is the entire fabric of the law; there are long standing legal principles.

Sometimes, state codes clearly set forth some of the relevant factors, and sometimes they do not. In Texas, for example, the code clearly states that verbal threats alone do not justify the use of force, deadly or otherwise; in many other states, those words are not contained in the code, and a defendant who acts otherwise will find that out the hard way.

 

[steve4102]

One more time----The defender must have reason to believe that his action is necessary to prevent a felony in the home. NECESSARY. PREVENT.

The decedents had been disabled and could not have committed a felony.

The ME has testified that Brady was not Incapacitated after shots one and two and could still be a threat.

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.

http://www.twincities.com/localnews/ci_25629731/little-falls-teens-autopsy-photos-shown-murder-trial

So, whether these to were actually disabled or not is still not clear. According to the ME, prolly not.

 

[Tom Servo]

That said, I suspect the reason some Minnesotans think Mr. Smith's actions may have been justified is that the Minnesota laws are poorly worded

I also suspect that part of it is a "they got what they deserved" bit of confirmation bias. We're certainly seeing no shortage of it in this thread.

The problem is, what they did or didn't deserve wasn't Smith's call to make. If it were, I'd truly fear for us as a society. If I'm reading the Minnesota statutes correctly, Smith may have a defense.

In any case, expect calls to change that law if he walks.

 

[Evan Thomas]

According to MN Appeals Court, SD and Fear for one's life is NOT a requirement for Taking of a Life to Prevent the Commission of a Felony. So, I do not see how this applies.

According to MN case Law Smith did not have to fear for his life and he did not have claim Self Defense". The simple Felony act of the two teen was justification enough

Please to cite the case (not the statute) on which you're basing this claim.

If I'm reading the Minnesota statutes correctly, Smith may have a defense.

The case law does stress that even under MN 609.065, the force used by a defender must meet the "reasonable man" test relative to the danger the defender faces; I don't think executing an injured person meets that test anywhere, and Minnesotans, by and large, are a pretty reasonable lot.

 

[OldMarksman]

Posted by steve4102: 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.

And a statement by an attorney advocating for the defendant tells us what?

 

[steve4102]

^^^

Sorry, does not the link to MN Appeals court provided in my post suffice?

Here it is again.

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

S Y L L A B U S

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.

Reversed and remanded for a new trial.

Heard, considered and decided by the court en banc.

O P I N I O N

GARDEBRING, Justice.

This case presents the issue of whether the standard jury instructions for "defense of dwelling," given in this case, improperly require that the defendant must have feared great bodily harm or death to justify his use of deadly force in defending his home.

Akeem Pendleton was charged with attempted second-degree murder, Minn. Stat. § 609.17 (1996), Minn. Stat. § 609.19(1) (1992) and first- and second-degree assault, Minn. Stat. §§ 609.221 and 609.222, subd. 2 (1996), in the December 10, 1994 shooting of Tony Caine. At trial, Pendleton claimed the shooting was in self defense, or in the alternative, in defense of his home. He requested that the standard jury instructions on self defense be modified to make clear that the fear of great bodily harm or death required for a self defense claim was not an element of a claim of "defense of dwelling." The trial court refused, and gave the standard jury instructions, which include the fear of great bodily harm or death element for both "defense of dwelling" and self defense. The jury returned a verdict of guilty on the first- and second-degree assault charges and not guilty on the attempted second-degree murder charge.

 

[steve4102]

And a statement by an attorney advocating for the defendant tells us what?

Not much, but the ME testimony does tell us this.

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.

http://www.twincities.com/localnews/ci_25629731/little-falls-teens-autopsy-photos-shown-murder-trial

That is for Brady, whether the ME admitted Kifer was still a treat is unclear. The Defense did however tie the two together and plant that seed in the Jury.

 

[Tom Servo]

The case law does stress that even under MN 609.065, the force used by a defender must meet the "reasonable man" test relative to the danger the defender faces; I don't think executing an injured person meets that test anywhere, and Minnesotans, by and large, are a pretty reasonable lot.

The defense may try to rely on statute and argue that the case law is deficient. This really isn't the test case I'd like to see for that.

And yes, Minnesota seems a pretty reasonable place, given Garrison Keillor and MST3K. Winters can be a bit troublesome, though.

 

[OldMarksman]

Posted by steve4102: ...whether the ME admitted Kifer was still a treat is unclear.

The defendant tells us enough:

• He said "I fired more shots than I needed to." [Damages any claim of necessity or reasonableness]
• "He dragged her body", "still gasping for air." [A threat? Seriously?]
• "A good clean finishing shot." [Necessity and reasonableness--again]
• He left the bodies and went to celebrate Thanksgiving. [Flight, an indication of guilt]

 

[manta49]

I also suspect that part of it is a "they got what they deserved" bit of confirmation bias. We're certainly seeing no shortage of it in this thread.

The problem is, what they did or didn't deserve wasn't Smith's call to make. If it were, I'd truly fear for us as a society. If I'm reading the Minnesota statutes correctly, Smith may have a defense.

Time will tell if Smith gets off with it or not, what would concern me more is some peoples attitudes that they got what they deserved. But people that think that its ok to shoot someone that breaks into their house wounding them and deciding that instead of the courts dealing with the perpetrators they will save them the trouble and execute them. I find disturbing and strange that they think a burglar deserves to die but the person that many will see as a murder should not be found guilty and what he did is fine.

 

[OldMarksman]

Posted by Tom Servo: The defense may try to rely on statute and argue that the case law is deficient.

I suppose the defense could try to argue that reasonableness is only required when an actor is defending his life and not when he is preventing a felony....

I wouldn't, and if they did, I doubt that it would go anywhere.

 

[Aguila Blanca]

What matters is what the law means, which is a matter for the courts, and what Smith did.

I respectfully disagree. What matters very much IS what the law says. If the citizens cannot be guided by what the laws say, then we are not a nation of laws, we are a nation of lawyers.

As for what the law means being a matter for the courts, I again disagree. The very first Chief Justice of the U.S. Supreme Court once ruled that "the jury shall be the trier of the facts and of the law." Since we have no higher legal authority than that in this country, I'll go with that. If John Jay said the jury decides on the law, and the Supreme Court has not seen fit to reverse that in more than 200 years since Chief Justice Jay made that declaration, who am I to dispute it? The jury decides the law.

That said, in the interest of full disclosure I should note that I have been removed from jury duty because I once declined to kow-tow to a judge and promise to blindly follow the judge's instructions on what a law might mean even if I disagreed with said judge's instructions. (The system doesn't like uppity serfs.)

 

[OldMarksman]

Posted by Aquila Blanca: What matters very much IS what the law says.

But--the law is not a single statute, taken out of context. "What the law says" includes the relevant parts of all relevant statutes, and it includes case law, which is handed down by superior courts.

 

[Evan Thomas]

I suppose the defense could try to argue that reasonableness is only required when an actor is defending his life and not when he is preventing a felony....

If the defense so argued, they'd be out of luck.

As recently as 2012, the MN court of Appeals noted that:

Unlike self-defense, which only permits the use of lethal force when the person is reasonably in fear of great bodily harm or death, a person who acts in defense of dwelling may use lethal force to prevent the commission of a felony in the home, and need not be in fear of great bodily harm or death. State v. Pendleton, 567 N.W.2d 265, 268-69 (Minn. 1997). But the party claiming defense of dwelling must nevertheless act reasonably and use the level of force appropriate under the specific circumstances. Glowacki, 630 N.W.2d at 402.
The elements of a defense-of-dwelling claim are:
(1) At the time the defendant used deadly force against the victim, was the defendant preventing the commission of a felony in his or her home?
(2) Was the belief reasonable under the circumstances?
(3) Was the use of deadly force reasonable under the circumstances in light of the danger then to be apprehended?
State of Minnesota vs. Anderson, 2012​

Mr. Smith does appear to have satisfied (1) and (2), with respect to his initial shooting of the two intruders. But in light of (3), his use of deadly force was hardly reasonable once they were down and injured. It's rather difficult to see what "danger" he "apprehended" when he shot Ms. Kifer after moving her body.

 

[manta49]

It's rather difficult to see what "danger" he "apprehended" when he shot Ms. Kifer after moving her body

True if I thought someone was still a threat the last thing would do is get close enough to move them and then finish the off.

 

[tipoc]

I haven't read everything on this case that is available so I have a couple of questions:

1) It was said earlier that the defendant saw the shadows of someone walking on his porch, or around his house, before he went into his basement and viewed them through the cameras. Did he make an effort to identify them? To find out their intentions? To make them know he was home and the house occupied? How did they get into the house with him home and armed?

2) Did they break into the locked basement? Did they walk into a dark basement knowing he was there armed and sitting in the dark waiting for them?

tipoc