State v. Smith, s. A14–0941

• Citation: 876 N.W.2d 310
• Decision Date: 09 March 2016
• Docket Number: Nos. A14–0941,A15–0300.,s. A14–0941
• Parties: STATE of Minnesota, Respondent, Appellant, v. Byron David SMITH, Appellant, Respondent.
• Court: Supreme Court of Minnesota (US)

876 N.W.2d 310

STATE of Minnesota, Respondent, Appellant,
v.
Byron David SMITH, Appellant, Respondent.

Nos. A14–0941
A15–0300.

Supreme Court of Minnesota.

March 9, 2016.

Lori Swanson, Attorney General, Saint Paul, MN; and Brian Middendorf, Morrison County Attorney, Peter J. Orput and Brent D. Wartner, Special Assistant Morrison County Attorneys, Stillwater, MN, for respondent/appellant State of Minnesota.

Steven J. Meshbesher, Adam T. Johnson, Meshbesher & Associates, P.A., Minneapolis, MN, for appellant/respondent Byron David Smith.

John P. Borger, Leita Walker, Faegre Baker Daniels LLP, Minneapolis, MN; and Randy M. Lebedoff, Minneapolis, MN, for amicus curiae Star Tribune Media Company, LLC.

OPINION

LILLEHAUG, Justice.

Byron David Smith was convicted of two counts of first-degree premeditated murder related to the shooting deaths of two people. On direct appeal, Smith argues that the district court committed four types of error. The State, in turn, argues that the district court committed error in determining the appropriate restitution for the victims' families. We affirm the convictions

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and reverse the district court on the issue of restitution.

I.

This murder case arises out of the deaths of Nicholas Brady and Haile Kifer, who Smith killed in his home on Thanksgiving Day 2012. Smith, who lived in Little Falls, was the victim of a series of burglaries at his home. During a burglary on October 27, 2012, valuable items were taken, including a shotgun and a rifle. Smith notified the police, who investigated the crime. The intruder left a shoe print on the panel of the basement door when kicking it in. The police were unable to determine who was responsible for the break-in.

Smith was having trouble sleeping and was unhappy because of the break-ins. Smith suspected that his female neighbor, A.W., and her parents might be responsible for the break-ins. Smith's neighbor, W.A., told Smith that he believed A.W. and her parents were watching Smith's house to see when he came and went. Worried that the burglar would return, Smith started to carry his gun in the house.

Around 10:30 a.m. on Thanksgiving morning, November 22, 2012, Smith and W.A. were talking outside of W.A.'s residence when they saw A.W. drive by. Less than an hour later, Smith moved his vehicle from his garage, which faced the street, and parked it several blocks away, outside of the home of two state troopers. Smith later told investigators that he had moved his car because he wanted to clean his garage and protect his car from vandalism. Smith then walked back to his residence, returning at 11:45 a.m. He walked through his backyard, which faced the river, instead of approaching the main entry of his house from the street.

Around noon, Smith went down to his basement and turned on a digital audio recorder. He sat down in an upholstered reading chair facing the side of the basement stairwell. Smith had a novel, a water bottle, and some snack bars. On his belt clip was a nine-shot revolver. Steps away from the reading chair was Smith's loaded mini–14 rifle. Smith's outdoor video surveillance system was running. In the adjacent basement workroom was a screen showing pictures from four security cameras placed around the exterior of Smith's home.

The events that followed were captured on Smith's audio recorder. About 11 minutes after turning on the recorder, Smith said, "In your left eye."¹ A little over 17 minutes into the recording, Smith said, "[B.], uh stop by tomorrow morning. No rush but as soon as convenient. Can you do that? Yea. Uh, park to the north, 100 feet nor ... 100 yards north of the corner and walk from the west."² Almost 23 minutes into the audio recording, Smith said, "I realize I don't have an appointment but I would like to see one of the lawyers here."

At 12:33 p.m., Nicholas Brady approached Smith's house, looked into the windows, and tried the doorknobs. Smith heard the doorknobs rattling, saw a shadow in front of the picture window in the basement, and listened as Brady walked across the deck. Then glass broke upstairs, which was the sound of Brady breaking and entering through Smith's bedroom window. Brady approached the

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basement stairs. Below, Smith sat waiting.

As Brady descended the stairs, Smith saw Brady's feet, his knees, and then his hip. Smith shot Brady in the chest with the rifle. Smith later told investigators that he had not seen Brady's hands when he fired.

Smith shot Brady a second time. Brady tumbled down to the basement floor, face up. Three seconds later, at close range, Smith shot the groaning Brady. The bullet went through Brady's hand and then through the side of his head. Smith said to Brady, "You're dead."

Smith retrieved Brady's shoes, which had fallen off when Brady fell down the stairs, and put them under his reading chair. Grabbing a tarp from near the basement fireplace, Smith put Brady on the tarp and dragged him to the adjoining workroom. Smith reloaded his rifle.

About 10 minutes after Brady entered and about 8 minutes after the shooting, Haile Kifer entered Smith's house. Kifer quietly called out, "Nick." Hearing no response, she started down the basement stairs. She again said, "Nick." Just as he had with Brady, Smith fired when he saw Kifer's hips, but before he saw her hands. Smith later told the police that his first shot was at "what [he] would consider point blank range."

Kifer tumbled down the steps. Smith tried to shoot her again, but his rifle jammed. Smith commented, "Oh, sorry about that." Kifer exclaimed, "Oh my God!" Smith pulled out his revolver and shot her. Amidst Kifer's screams, Smith shot her a third time and a fourth time.³ Smith said, "You're dying!" Kifer screamed. Smith shot her a fifth time. Calling her "bitch," Smith dragged Kifer into the workroom and placed her on the tarp on top of Brady's body. But Kifer was not yet dead, so Smith shot her a sixth and final time.

For the next 5 hours after the shootings, Smith stayed in his house. The audio recorder captured Smith talking to himself. His statements included:

"I left my house at 11:30. They were both dead by 1."

"Of course. I'm safe now."

"Cute. I'm sure she thought she was a real pro."

"You're dead."

"I am not a bleeding heart liberal. I felt like I was cleaning up a mess. Not like spilled food. Not like vomit. Not even like ... not even like diarrhea. The worst mess possible. And I was stuck with it."

"In some tiny little respect ... in some tiny little respect ... I was doing my civic duty. If the law enforcement system couldn't handle it, I had to do it. I had to do it."

"The law system couldn't handle her and if it fell into my lap and she dropped her problem in my lap ..."

"And she threw her problem in my face. And I had to clean it up."

"They weren't human. I don't see them as human. I see them as vermin. Social mistakes. Social problems. I don't see them as ... human. This bitch was going to go through her life, destroying things for other people. Thieving, robbing, drug use."

"It's all fun. Cool. Exciting. Highly profitable. Until somebody kills you."

"It's a sucker shot. People going down strange stairs naturally watch the steps."

876 N.W.2d 319

"Like I give a damn who she is."

"It's not a mess like spilled food. It's not a mess like vomit. It's not even a mess like diarrhea. It's far worse. Then they take slice after slice out of me."

"Five thousand. Five thousand dollar slice. Ten thousand dollar slice. And if I gather enough evidence, they might be prosecuted. If they're prosecuted it might go to court. If it goes to court, they might be found guilty."

"If they're found guilty they might spend ... 6 months, 2 years in jail and then they're out, and they need money worse than ever and they're filled with revenge. I cannot live a life like that."

"I cannot have that chewing on me for the rest of my life. I cannot ... I refuse to live with that level of fear in my life. I refuse to live with that level of fear in my life."

"She's tough. She's eye candy. It's [inaudible] games. It's exciting. It's highly profitable. Until somebody kills you. Until you go too far and somebody kills you. Until you take advantage of somebody who's not a sucker."

"Mother and father are semi-psychotic, are both semi-psychotic. I put even odds that one or the other will come over here with a gun."

Smith did not call law enforcement on November 22. As he later explained, "I was sitting [there] afraid that most likely the brass plated bitch would nag [him] into it and he would come over with a gun to see what had gone wrong. I was sitting there afraid."⁴ Smith also said that he did not want to ruin the Thanksgiving holiday for law enforcement.

The next day, November 23, Smith spoke to W.A. on the telephone and asked W.A. to find him a lawyer. Later, Smith asked W.A. to contact the sheriff's office. Smith advised W.A. that he had solved the break-ins in the neighborhood.

W.A. called the sheriff's department. Over the course of several conversations with dispatch and department personnel, W.A. asked that Sergeant Luberts, who had investigated the burglaries at Smith's residence, respond to Smith's residence as soon as he was available. A short time later, Sergeant Luberts...