Minnesota: Man Charged in Deaths of Intruders

[Madcap_Magician]

MN Law says that Killing may be justified in the Prevention of a Felony In one's abode. He did not need to defend himself or feel his life was in danger. MN laws says the Felony Burglary is cause for killing.

I think you're still stuck on your interpretation of the statute as written without the benefit of case law context. Again, look at the three-prong test established by State v. Carothers in regard to defense of dwelling claims.

(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?

Smith only meets the first two standards, but he must make all three in order to mount a defense of dwelling claim successfully. The prosecution is not arguing that Smith was not justified in shooting the burglars as they came down the stairs. The prosecution is arguing that his continued use of force in light of the relative danger he was in was not reasonable.

 

[Oysterboy]

I have a feeling that Smith knows something about the law or he is really whacko. Why would he record the events that could be damning to him?

He worked for the State Department and could've got good advice pertaining to the law concerning his situation and he carried it out (to his satisfaction).

It'd be interesting what the outcome is on the case.

 

[Double Naught Spy]

Bad guys record themselves doing things that could be damning to them with some regularity. Ersland had a new video surveillance system installed in his pharmacy that documented his crime. Some like to keep a record of what they have done, as a sort of visual trophy just like many law abiding citizens do. That it may be damning doesn't always come into consideration when creating the trophy.

 

[johnwilliamson062]

Lets say for a moment the laws is written very poorly and by legal standards Mr. Smith is in the clear. Having read through most of the citations in this thread I do not believe that is the case, but lets assume it is for a moment.

A jury can "nullify" a law finding a person not guilty when they technically meet the qualifications of guilt by the law. This is the basic reasoning behind of "jury of ones peers." There are several recent incidences involving criminal drug possession statutes. Could a jury likewise find a presumption of reasonableness to be constitutionally invalid? On the face of it I would think not, but logically it isn't all that much different.

 

[sfwusc]

If they did break into his home then if I was on the jury.... I would be giving him a lot of benefits of the doubt.

The state asks why did you move her. He say she was crawling for the door.

The state asks why did you shoot them again. They reached into they pocket.

I would need a lot from the state before I found a man guilty of killing someone that broke into his home and was still inside.

That pharmacist in OK killed a unarmed man inside a place of business. That is totally different than killing someone that broke into your house.

 

[Frank Ettin]

...A jury can "nullify" a law finding a person not guilty when they technically meet the qualifications of guilt by the law....

Yes, a jury may acquit of a criminal charge even if under the facts and law the defendant is guilty. That's why at times in our history it was pretty much impossible in many parts of the country to convict a white man of murdering a black man, even when guilt was clear.

...This is the basic reasoning behind of "jury of ones peers."...

But it has nothing whatsoever to do with a "jury of one's peers."

The ability of a jury to "nullify" the law arises from the Fifth Amendment prohibition of double jeopardy:

...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;...

So a jury verdict of acquittal can not be appealed by the prosecution.

BTW, there is nothing in our laws that entitles anyone to a jury of his peers. One is entitled to an impartial jury (Constitution, Sixth Amendment); but you have no grounds upon which to insist that members of your jury be "your peers", i. e., from the of the same societal group, age, status, background or education, etc., as you.

(The notion of a "jury of one's peers" comes from Magna Carta and was indeed intended to refer to being judged by one's equals. Magna Carta was forced on King John by the feudal barons to protect their interests. Their first concern was that they be judged only by nobles of similar rank. And indeed until relatively recently, a British noble charged with a crime was entitled to be tried in the House of Lords. The last trial in the House of Lords was in 1935, and the trial jurisdiction of the House of Lords was abolished in 1948.)

 

[Madcap_Magician]

If they did break into his home then if I was on the jury.... I would be giving him a lot of benefits of the doubt.

The state asks why did you move her. He say she was crawling for the door.

The state asks why did you shoot them again. They reached into they pocket.

I would need a lot from the state before I found a man guilty of killing someone that broke into his home and was still inside.

That pharmacist in OK killed a unarmed man inside a place of business. That is totally different than killing someone that broke into your house.

I think it would go this way.

The state asks "When you first noticed people approaching your house, given the past history of burglaries, why didn't you call the police?"

Smith tells them "... because I didn't want to bother them on Thanksgiving?"

The state asks "After you shot the first burglar twice and he fell down the stairs, why did you then yell "YOU'RE DEAD!" and fatally shoot him in the face?"

Smith says "Well, he might have had a weapon."

The state asks "Well, what made you think he had a weapon?"

Smith says "Well, nothing, really, but he might have had a weapon."

The state asks "Did he reach for a weapon or make a threatening gesture, or do anything other than lie on the ground bleeding?"

Smith says "Well, no, but he might have had a weapon somewhere."

The state asks "After you killed the first burglar, why did you put his body on a tarp and drag it into a different room?"

Smith says "He might have had a weapon."

The state asks "After you shot the second burglar, and she fell down the steps, your rifle jammed. As she was lying there on the ground bleeding, why did you then take out a revolver and shoot her six more times?"

Smith says "I think she laughed at me. If you shoot somebody and they laugh at you, you should shoot them again."

The state says "I don't know how to respond to that. Can you show me where in the Minnesota Criminal Code it says you can shoot somebody for laughing at you?"

Smith says "She might have had a weapon. Sure, I fired more times than I needed to, but she might have had a weapon."

The state asks "What made you think she had a weapon?"

Smith says "She might have had a weapon."

The state says "Please answer the question."

Smith says "She might have had a weapon, so obviously I needed to shoot her."

The state asks "If you were afraid she had a weapon, why did you then approach her, move her body onto a tarp, and drag her into the other room? It seems like that would be dangerous if you thought she had a weapon."

Smith says "She might have had a weapon. That's why I moved her."

The state asks "So after you moved her, you said you heard her still breathing, so you put your gun under her chin and fired a shot into her brain. Wouldn't someone who had a weapon and the intent to harm you have tried to attack you when your hands were occupied dragging her body?"

Smith says "She might have had a weapon."

The state asks "So why did you put your weapon away and get close enough to her to move her body?"

Smith says "Because she might have had a weapon."

The state says "Let's go back to that bit where you shot her in the brain. Why did you do that?"

Smith says "Because she might have had a weapon. I wanted to put her out of her misery with a good clean finishing shot."

The state asks "Why didn't you call the police after you shot both burglars?"

Smith says "Because it was Thanksgiving! Everyone knows the police will get really mad if you call them about something as dumb as two dead bodies!"

I am having trouble seeing a single statement of Smith's here that is reasonable.

 

[Aguila Blanca]

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.

Case law is the combined "wisdom" of what judges have said the law means ... which may or may not coincide with what the law says.

An extreme example would be the SCOTUS case of Miller, which for decades (until Heller) "established" that the 2nd Amendment RKBA was dependent on whether or not a firearm had a suitable military use. Then along came Heller and the militia/military nexus went out the window.

If the Chief Justice said that the jury shall be the triers of the facts and of the law, and no Supreme Court has reversed that in over 200 years, I will conduct myself accordingly. I was one credit short of a minor in English in college, and I have been a writer (technical and creative) for over fifty years. I'll put my ability to read English up against any judge in the country. (Which is probably why they don't want me on juries.)

 

[Evan Thomas]

The problem with the entire exchange posited by M_M is that Mr. Smith has already told the police his version of events, and that account is the source of much of the state's case against him. If he now contradicts what he told the police, either (1) his earlier account was correct and he's now perjuring himself, or (2) he lied to the police when he confessed to (for just one example) believing that Ms. Kifer was dead, moving her body, then hearing her make some sort of sound and firing that "a good clean finishing shot" into her head. I doubt that the best defense attorney in the world (which Mr. Meshbesher is not) could argue convincingly that the police elicited all of that by way of a false confession, and it strains credulity to think that Mr. Smith would have made up a version of events that's so damning.

 

[Aguila Blanca]

Here's where case law may conflict with the ability of the jury to read and interpret the law for themselves. Laws, unfortunately, are far too often not written with a lot of regard to clarity of grammatical construction. (Just look at all the confusion created over one errant comma depending on which version of the 2nd Amendment you're looking at.)

Someone quoted the applicable law in this case as:

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.

Then someone cited case law in which a judge determined that, although within one's own house fear of death isn't a requirement, use of force must still be "reasonable." But ... is that what the law says? Let's look at the two ways the same law can be read. Paraphrased, the court (case law) would tell us that what the law actually says is (according to the court):

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 when the actor reasonably believes the taking of life is necessary in preventing the commission of a felony in the actor's place of abode.​

But the same law can also be read (and, in fact, 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.​

In other words, read as written the "reasonable" part of the statute applies only to the first situation. It does not apply to the second situation. That's actually very clear based on the placement of the comma and the placement of the words "reasonably believes," which modify only the first action but not the second. Looking at the construction of the law grammatically, there is really no way you can honestly twist the construction to force "reasonably believes" to also apply to preventing a felony in the actor's place of abode.

Reason number 5,427 why laws should be written by grammarians rather than by lawyers.

 

[steve4102]

In other words, read as written the "reasonable" part of the statute applies only to the first situation. It does not apply to the second situation. That's actually very clear based on the placement of the comma and the placement of the words "reasonably believes," which modify only the first action but not the second. Looking at the construction of the law grammatically, there is really no way you can honestly twist the construction to force "reasonably believes" to also apply to preventing a felony in the actor's place of abode.

...and that brings us back to this.

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?

It appears to me that this whole case hinges on a comma and the word "Reasonable".

 

[OldMarksman]

Posted by Aquila Blanca: In other words, read as written the "reasonable" part of the statute applies only to the first situation. It does not apply to the second situation. That's actually very clear...

"Read as written"would seem to mean very little indeed, in light of Post #158.

 

[Tom Servo]

That pharmacist in OK killed a unarmed man inside a place of business. That is totally different than killing someone that broke into your house.

Actually, Ersland might have been on better footing. That whole exchange took less than 30 seconds. He might have been able to make the argument that he was still high on adrenaline when he retrieved the second gun and shot the robber in the stomach.

That's not so for Mr. Smith, who showed motivation, planning, and presence of mind in and following the altercation.

 

[Aguila Blanca]

"Read as written"would seem to mean very little indeed, in light of Post #158.

Yep.

Which is why we have become a nation of lawyers, rather than a nation of laws. And which is why judges (and most attorneys) DON'T want us to know that we have the right as jurors to judge the law as well as the facts of a case. And which is why my state doesn't want me sitting on juries.

I understand what the appellate court ruled (post #158). I just happen to believe that they were wrong; there is no way the language of the law as written allows them to get where they got. Ergo, if I were sitting on a jury and charged with judging a case based on this law, I would have to look at the case law precedent and ... ignore it. I would have to. Morally, I would have no other choice, because the law does not support the ruling.

For those who don't know what I'm blathering about: http://fija.org/

 

[Madcap_Magician]

The problem with the entire exchange posited by M_M is that Mr. Smith has already told the police his version of events, and that account is the source of much of the state's case against him. If he now contradicts what he told the police, either (1) his earlier account was correct and he's now perjuring himself, or (2) he lied to the police when he confessed to (for just one example) believing that Ms. Kifer was dead, moving her body, then hearing her make some sort of sound and firing that "a good clean finishing shot" into her head. I doubt that the best defense attorney in the world (which Mr. Meshbesher is not) could argue convincingly that the police elicited all of that by way of a false confession, and it strains credulity to think that Mr. Smith would have made up a version of events that's so damning.

I was attempting to point out in a slightly facetious manner the difficulty Smith is going to have justifying the reasonableness of his actions.

Regardless of what Smith told police at first compared to what he tells the court now, we also have the double 'confession' of an audio recording of the entire thing courtesy of Smith, so it seems even if he could slip out of one noose he'd still be hoist by his own petard.

 

[Evan Thomas]

Yep... got that, Madcap. I just wanted to belabor the obvious, for the benefit of folks like sfwusc, who don't seem too familiar with the facts of the case.

... even if he could slip out of one noose he'd still be hoist by his own petard.

While shooting himself in the foot.

 

[Sure Shot Mc Gee]

Since this trial wasn't moved to begin with to a different county. Perhaps one or some of the jurists know exactly what was going on in Little Falls concerning burglary's and break-in's. After all it is a vacationing area. Lots of cabins and visitor's all Summer long. And being a tight knit little 8300 person community/ town. Everybody personally knows or hears about everybody and their kids too. So Reputation/s perhaps may play or have some small roll in influencing this jury's decision. {Can't loose focus who the victim is and the perpetrators were.} If by chance this trials jury finds Smith guilty. Knowing of Meshbesher's and his Associates Law talents. I highly suspect there will be a Appeal filed.

Reported by:
Associated Press

Meshbesher told Judge Douglas Anderson that the judge's pretrial rulings about what jurors can't hear about the teens have severely restricted his case.

 

[OldMarksman]

Posted by Acquila Blanca: If the Chief Justice said that the jury shall be the triers of the facts and of the law, and no Supreme Court has reversed that in over 200 years, I will conduct myself accordingly.

It is true that juries can decide upon matters of law, though only through nullification, which means that they can refuse to convict a defendant even when the facts indicate that the defendant's acts contravened the law, that does not mean that they should necessarily do so. In the words of John Jay,

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.

(Emphasis added.)

Case law is the combined "wisdom" of what judges have said the law means ... which may or may not coincide with what the law says.

"What the law says" is a combination of what a statute says (if indeed there is a statute in the first place) and legal precedence established by rulings of superior court judges on questions of law raised during appeals of trial court decisions .

Going back to the days before Geoffrey Chaucer penned "The Lawyer's Tale", "the law" was the Common Law. All laws in England, except the Magna Carta, were based on "the combined wisdom" of learned judges. And when it comes to most matters of use of force law, that remains true in the Commonwealth of Virginia today.

And in most other states, "what the law says" is a combination of relevant statutes--there may well e more than one to consider-- and precedential judicial rulings.

...there is no way the language of the law as written allows them to get where they got.

In our system of government, and in many others, the (superior) courts interpret the law. They may establish legal precedent, which would establish the law as it is to be applied to cases involving similar questions of law within the jurisdiction of the court. The law "as written" is just part of the overall fabric of established law, and if a law has been declared unconstitutional or inconsistent with laws that have higher precedence, the law "as written" says nothing at all.

And again, in the Commonwealth of Virginia, the law in a case such as this one would be defined only by legal precedent.

Ergo, if I were sitting on a jury and charged with judging a case based on this law, I would have to look at the case law precedent and ... ignore it. I would have to.

Morally, I would have no other choice, because the law does not support the ruling.

The wording of the original statute may not seem in your mind to "support the ruling." So what? How would you have conducted yourself on a jury in one of the jurisdictions in which state law was based on the English Common Law as it existed at the time the states was admitted to the Union? There were no statutes at the time. There was nothing other than prior rulings to "support the rulings" that made up the law at the time. The law was "the ruling."

Yes, you could vote to acquit; would that be a "moral" thing to do? But that is the only thing that you could do to object to the established law as it exists today. And while a jury decision along those lines would result in failure to convict the accused, it would have absolutely no precedential authority in other cases.

Personally, I cannot understand why anyone in his right mind would conclude that it should be lawful for a citizen to employ deadly force in a manner that is not reasonable.

 

[tipoc]

The fella who did the killings may get off. The trial is taking place in the same area he lives in and sentiment may run high against folks breaking into and robbing other folks homes. His neighbors may hold a high opinion of him, maybe. That does not make what he did right or even legal.

There is a long record of juries and courts letting some folks off due to sentiment. Or of convicting them due to the same. Legal lynchings aren't uncommon neither is vigilantism.

There is also a record of folks killing another and walking on what was an avoidable killing pleading self defense.

In this case a man decided that the penalty for breaking into his home was death. Society and the law doesn't call for that but he did and he set it up for that.

tipoc

 

[OldMarksman]

The defense has rested its case. Smith did not testify. Closing arguments are scheduled for tomorrow.

If anti-gun groups and opponents of castle doctrine laws ever wanted publicity favorable to their causes, Byron Smith has given them more than they could reasonably hoped for.