Byron Smith's second-degree murder charges consolidated with grand jury indictment | | Brainerd, Minnesota

Byron Smith's second-degree murder charges consolidated with grand jury indictment

Defense questions search warrants and miranda advisement

Posted: August 30, 2013 - 8:26pm
Byron Smith was indicted on two counts of first-degree pre-meditated murder in the Nov. 22, 2012, shooting deaths of teens Nick Brady and Haile Kifer. Smith is accused of shooting Brady and Kifer when the pair attempted to burglarize his home Thanksgiving Day.
Byron Smith was indicted on two counts of first-degree pre-meditated murder in the Nov. 22, 2012, shooting deaths of teens Nick Brady and Haile Kifer. Smith is accused of shooting Brady and Kifer when the pair attempted to burglarize his home Thanksgiving Day.

LITTLE FALLS — Proper collection of evidence and questions about Miranda rights were the topics of debate at Byron Smith’s contested omnibus hearing Friday in Morrison County.

Smith was indicted on two counts of first-degree pre-meditated murder in the Nov. 22, 2012, shooting deaths of teens Nick Brady and Haile Kifer. Smith is accused of shooting Brady and Kifer when the pair attempted to burglarize his home Thanksgiving Day.

Smith was originally charged with two counts of second-degree murder. The state motioned Friday that the court consolidate those charges with the indictment without any objection from the defense.

The defense, however, did take issue with Smith’s grand jury indictment. The indictment was handed down in April, five months after the initial charges were filed.

According the defense’s motion for the contested omnibus hearing, there were several issues with evidence presented to the grand jury that indicted Smith.

“The prosecution’s statement to the grand jury was incorrect,” Smith’s attorney Steven Meshbesher told the court Friday, adding the statements made caused harm to the defendant’s case.

In the motion presented to the court Aug. 6, the defense said the indictment against Smith should be dismissed with prejudice for lack of probable cause. Meshbesher cited errors before the court Friday in the grand jury process. Meshbesher also contended there were violations of the defendant’s constitutional rights in regard to statements taken by law enforcement from Smith at his home, and the adherence to stipulations in search warrants issued. The motions asked the statements made and evidence collected in the search warrants be suppressed.

Meshbesher brought up the debated issue of self-defense and defense of dwelling, and what applies in a situation where a person is forced to defend their home. “You don’t have a duty to retreat in your own home,” Meshbesher said. “You can use deadly force in your own home.”

According to the initial criminal complaint filed in November 2012, Smith stated he shot Brady and Kifer as they descended the stairs to his basement in an alleged attempt to burglarize Smith’s home.

Meshbesher also accused the state of eliciting irrelevant testimony from Brady’s and Kifer’s mothers in an effort to “impassion the grand jury to indict.”

“The testimony given by the mothers had nothing to do with the charges,” Meshbesher said.

Other issues the defense found with the indictment had to do with statements taken from Smith by law enforcement officials who responded to him the day after the shooting occurred. Meshbesher said he believed the questioning was suppressible because they violated the Fifth and Sixth Amendments. Meshbesher also said the defense believed the search warrants conducted at Smith’s residence were done so before search warrants were drafted, making them illegal, in violation of the Fourth Amendment, and subject to exclusionary rule. “When evidence is obtained improperly, the remedy is to exclude the evidence from the court,” Meshbesher said, citing a U.S. vs. Weeks (1914).

Washington County First Assistant Attorney Brent Wartner spoke for the state, saying the transcripts from the grand jury was submitted to the court and shows all interrogation of Smith and collection of evidence were done properly and according to all relevant rule.

“Without a doubt, the process was careful, it was deliberate, it was thorough and it was proper,” he said. “The record reflects all that information that it was carefully and properly done.”

Judge Douglas Anderson said the court would make a ruling on the issues of relevancy of the motions against the grand jury indictment soon, but did not give any indication of when that would happen.

Washington County Attorney Pete Orput and Wartner took over prosecution for Morrison County in April because of a conflict of interest in the case.

The majority of Friday’s hearing, presided by Judge Douglas Anderson, was devoted to the questioning of three subpoenaed witnesses — Agent Chad Museus of the Minnesota Bureau of Criminal Apprehension, and Deputy David Scheping and Sgt. Jeremy Luberts of the Morrison County Sheriff’s Department.

All three witnesses, called by the defense, were questioned on their roles in the response to Smith’s home the day after the shooting occurred, their involvement in questioning Smith before and after his arrest, and their roles in collecting and processing evidence according to the search warrants issued.

Orput told the court the state did not call witnesses for the hearing because the issues raised by the defense were so broad. “We had a hard time knowing how to even prepare for this,” Orput said.

Orput said he took issue with Museus being subpoenaed because his testimony was irrelevant to the defense’s complaints and asked that Museus be allowed to leave. “He wasn’t there when the defendant was arrested,” he said, adding Museus didn’t question Smith at any time. “I’m not sure calling witnesses would help the court in anyway.”

Meshbesher countered Museus testified before the grand jury and his testimony was subject to question. “I wanted to ask him specific questions and make a record of the answers that he gives,” he said.

The court allowed Museus to testify at the hearing. Museus, whose normal duties involve narcotics cases, was involved in the search warrant execution and was on-call to respond to death investigations the day after the shooting occurred. Museus assisted in the body recovery at Smith’s home and collected electronic data evidence.

Museus was questioned on his knowledge of electronic evidence taken from Smith’s home that would have indicated Smith used the Internet the night of the shooting. Museus testified before the grand jury there was evidence Smith did access the Internet. That testimony was later disputed and evidence found did not support the idea Smith accessed the Internet, something Anderson said the court was already aware of. “The court acknowledges he was wrong,” Anderson said. “That will be the fact presented to the jury.”

Museus was also questioned on his attempt to dial 911 from a land-line phone found in Smith’s basement in the same room where the bodies of Brady and Kifer were kept until officers arrived the day after the shooting. The prosecution questioned whether Smith had a phone available to him at the time of the break-in and if he could have had the opportunity to call 911. The phone in question was not taken as evidence.

Meshbesher also questioned Museus on an interview he conducted with Cody Kasper on Nov. 28. Kasper was charged and later convicted by plea agreement of aiding and abetting Nick Brady in a burglary at Smith’s home. Meshbesher said the SIM card was seized from Kasper’s phone and showed evidence of text messages exchanged between Kasper and Brady that discussed burglarizing Smith’s home. Orput objected saying the texts suggested burglaries but not specifically Smith’s home and the issues were all recorded in transcripts from the grand jury.

Anderson said the texts were irrelevant to the hearing, to which Meshbesher responded the texts showed probable cause. “Nick Brady was committing felony burglary,” Meshbesher said.

The court maintained the texts were irrelevant to the hearing and sustained Orput’s objection.

Following Museus’s testimony, Scherping and Luberts were called the stand individually and asked respectively about their involvement in responding to Smith’s home following a call to the Morrison County Sheriff’s department from Smith’s neighbor William Anderson. Anderson contacted the sheriff’s department the day after the shooting indicating something had occurred at Smith’s home that might warrant law enforcement response.

Both officers testified they entered Smith’s home with his permission and were shown, by Smith, a broken window in his bedroom, indicating a break-in. Luberts said he asked Smith questions trying to determine what exactly had occurred.

“At that point we didn’t know what we were dealing with,” Luberts told the court.

The defense asked both deputies if they had their hands on their weapons in Smith’s home. Neither recalled exactly, but acknowledged they were watching for their own safety.

“That’s standard,” Luberts said.

Luberts and Scherping followed Smith into the basement when Smith told them he had something to show them downstairs. Luberts maintained at that point they were still uncertain if or what kind of crime had been committed. Luberts said Smith told them he had shot two people who had broken into his home. The officers discovered the bodies of Brady and Kifer in a the back room of Smith’s basement. Luberts said he advised Smith he was under arrest and Smith was transported to the Morrison County Sheriff’s office where he was questioned and eventually booked in the Morrison County jail.

Meshbesher and associate attorney Adam Johnson questioned the officers as to when they read Smith his Miranda rights, verifying he had the right to remain silent and the right to an attorney. Scherping and Luberts confirmed Smith was not read his Miranda rights at his home at the time of the deputies’ initial response, during the initial investigation into the events called in at Smith’s home or at the time of his arrest.

According to Scherping and Luberts, Luberts didn’t read Smith his rights until his questioning with Luberts at the sheriff’s office. Scherping told the court he never questioned Smith — at his residence or otherwise. Luberts confirmed that “he did most of the talking.”

Luberts said the extent of the questioning that occurred in Smith’s home was to better understand what had happened the day before. “It was unknown what were dealing with at the point,” Luberts said. Luberts testified the only other questioning was to confirm the location of the firearms used. “It was an issue of officer safety,” Luberts said. “I still had officers in the house.”

Smith told the officers previously guns were in the closet.

The defense argued that when Smith contacted his neighbor, William Anderson, the day after the shooting, he asked Anderson if he knew of a lawyer, information Anderson shared with the sheriff’s deputies. The defense asked the deputies several times if they ever contacted a attorney for Smith or asked if he had spoken with an attorney. Luberts said he asked Smith during his third statement if he had spoken to an attorney. Smith had contacted attorney Greg Larson, but Luberts did not recall if Smith had retained the attorney at the point.

The defense also questioned the timeline in which the search and seizure of items in Smith’s home occurred and if it was consistent with the restraints given by the search warrants issued. According to the defense, the warrants issued allowed a search from 7 a.m. to 8 p.m. Luberts said he did not recall the exact time the search ended, but acknowledged the search extended past 8 p.m. However, Luberts did not affirm the defense’s question of whether the majority of the search and seizure occurred after 8 p.m.

Orput submitted transcripts and recordings of the interviews and copies of search warrants to the court for review.

Anderson did not make a ruling on the hearing, but granted the defense 30 days after receiving the court’s transcripts to reply and an additional 30 days to the prosecution to the defense to respond, at which time the court will schedule the next hearing in the case.

SARAH NELSON KATZENBERGER may be reached at or 855-5879.