Self defense or murder?

[mmhmm]

In my hypothetical I'm suggesting he specifically went out and bought a .45 to make sure one shot would do the job if/when intruders next broke into his house.

It's premeditation on a contingent basis. As in: "If these kids try to break into my house again, I will surely kill them."

You're saying you would still convict him under those circumstances?

All other factors being the same (truck parked where it can't be seen, tarp at the ready, etc.), yes.

[mmhmm]

Apr 22, 2014 20:20:50 GMT -5 Green Eyed Lady said:

Yes.  I saw your post.  But this article (and I'll try my hardest to find it - so sorry about not having the link) states court documents show Brady burglarized Smith's property at least twice.  It had to have been reported for it to be included in court documents.  These were documents from another case - not this current one.  Evidently they were reported.  Again, tho, I don't know how reliable the article was.

I know the rules about links.  I really will try to find it, but I'm in the middle of about nine things right now.  I don't mean to break the rules.

Not a problem.  I haven't linked, either.  I'm just repeating what I've read.  I've read so many articles from so many different sources concerning this case I'd be hard-pressed to find a specific one at this point!

[Virgil Showlion]

All other factors being the same (truck parked where it can't be seen, tarp at the ready, etc.), yes.

And if those weren't factors? If the only thing he'd done was go out and buy a weapon he knew would kill an intruder with a single shot? What then?

Assuming it isn't proven that he planned this out and was lying in wait- the exact opposite of being in fear for your life and reasonably needing to use deadly force- one or even several shots at them I would not consider it murder.

But if it is shown shots were fired at people that were injured and down and no longer a threat- it's murder. Not calling 911 after shooting people and they end up dying of a survivable wound would also be worth some time- although obvious in this case no one was going to be left alive.

It's neither of these cases. The hypothetical is that he's lying in wait, he shoots and instantly kills the first intruder in the stairwell, leaves the body where it falls, stays lying in wait, shoots and instantly kills the second intruder a few minutes later, and then calls the police.

Lying in wait. No survivable wounds. No multiple shots.

[EVT1]

OK misunderstood you-  I would call that murder.  But I need to qualify that- say I hear noises in the middle of the night, grab my gun and take up a defensive position in the house and blast someone after they threw a brick through my patio door and entered- that's a legitimate act in most places. 

It is the lying in wait thing that bugs me- if he heard some noises or saw some people in his yard-well OK.  I hate thieves and I think it needs to be made clear that breaking into a house can get you killed- but there are limits to self defense.

To add a legal point- it is a rebuttable presumption that a homeowner that shoots an intruder was in fear for their life- for example some 8yo kid finds their way into your home you don't get to blast them with a shotgun without being able to articulate your fear of death or great bodily harm. This is where the facts are going to sink this guy- the prosecutor has a great shot at showing the jury that he was not in fear- just angry.  The defense has an uphill battle- it would take the Zimmerman prosecutors to fuck this one up.

So to the gun owners- beware and know your state law- there is no automatic license to kill a burglar just because they are in your house- at least in the states I am familiar with.  You kill an unarmed person with a shotgun blast in the back from 20 feet away carrying a TV and your ass might be in trouble. 

[Virgil Showlion]

You kill an unarmed person with a shotgun blast in the back from 20 feet away carrying a TV and your ass might be in trouble.

Sure... I guess so. If it got in the way.

But they're pretty big and they bray pretty loudly.

[EVT1]

Apr 22, 2014 20:49:04 GMT -5 Green Eyed Lady said:

I'm not convinced the quickness of getting a tarp is an important factor.  I can lay my hands on one in a second here in my own home, depending on where I am.  And I'm sure not planning to shoot anybody.

Within seconds while dealing with the trauma of a break in where you feel for you life?  Really?   Would the carpet stains be a concern to you that fast?


BTW reported again as you said:

     Court documents from another case show Brady had burglarized Smith's property at least twice in the months before he was killed

No details.  But three points- 1)evidently the cops and the courts knew who was doing it, 2) never mind the lawyer- violence does not have anything at all to do with a break in, 3) and worse this shows a history of break-ins and theft without a threat to life.  It really illustrates a pissed off homeowner, not one in fear for their life.  I hope he enjoyed those kill shots- I repeat my assertion SICK FUCK.

[EVT1]

 

Doesn't look like a psychopath at all Has that same murderous look in his eyes that Michael Dunn had- that unloaded on a carload of black kids.

[EVT1]

More trouble:

     Chad Museus, a senior special agent with the Minnesota Bureau of Criminal Apprehension, testified that he saw a landline phone near the bodies of the two teenagers when he first investigated the crime scene the day after the shootings.

     The phone was working, Museus testified.

     Nate Pearlson, a forensic scientist with the BCA lab, testified that a rug and two pieces of carpet "seemed out of place" at the bottom of the stairs when his team collected evidence.

     Once the carpets were removed, bloodstains were revealed. One of the more saturated stains appeared to contain brain matter, he said.

     A red chair, located against the wall facing the stairs, had a jug of water and snack bars nearby, as well as a tape recorder sitting on a shelf, a photo showed.

     Light bulbs were missing from the three main light fixtures in the basement. The bulbs were in a pile near Smith's red chair.

     A photo of the teens' bodies showed them both partially wrapped in the same camouflage tarp. The bodies were moved right after the shooting, to the front of the workroom, just inside the door.

      Pearlson said he was able to determine the two bullet holes in the hood of Kifer's sweatshirt were likely made at the distance of about 6 inches and 12 inches. Another shot found on the right sleeve was made a foot away, he said.

Heard enough- this is 100% NOT how a homeowner in fear for their life acts- too bad I don't believe in the death penalty.  This in one case where DNA isn't going to clear this murderer. Lock his ass up for life- have nothing to add.  But there is always his 'hero' page on Facebook if anyone wants to support him

[truthbound]

It is always clear in these threads who are the gun nuts and who are the gun grabbers.

[EVT1]

Really- explain that.  What am I?

Only thing clear is that his little murder scheme just fell apart.  He took bulbs out to improve his plan and shot people at distances that plainly show he was killing them and not protecting himself.

This has not a single fucking thing to do with gun rights so before you call me a gun grabber be sure I probably have more than you.  But you have a point- it is always clear in these thread when someone has no freaking idea what is being discussed.  Want to argue gun rights start a thread on it- this has exactly NOTHING to do with it.

So do that please and I won't out you as some third grader.

[mmhmm]

And if those weren't factors? If the only thing he'd done was go out and buy a weapon he knew would kill an intruder with a single shot? What then?

I've already said, if the .45 was what he had when an intruder broke into his home I wouldn't consider it first degree murder.  When we start changing the scenario the reaction will change, too.  First degree murder requires premeditation and planning. From what I've read, if it's factual, that element was present in this case.  In your hypothetical, that element is not present until we come to this:

It's neither of these cases. The hypothetical is that he's lying in wait, he shoots and instantly kills the first intruder in the stairwell, leaves the body where it falls, stays lying in wait, shoots and instantly kills the second intruder a few minutes later, and then calls the police.

Why is he lying in wait?  While this scenario is edgy, I'd consider it second degree murder, not first degree murder, if he hid when he heard the sound of the window breaking rather than taking up a watch and waiting for somebody to kill.

I have a gun, Virgil.  If someone breaks into my home I will use it; however, I won't be lying in wait for them ahead of the incident.  I'll shoot to stop them.  If they die, I'll be sorry it had to happen. You can bet, if I hear footsteps on the deck and a window breaking, I'll be calling 911 before I take any action against anybody if there's any way I can do so.

As you know, I'm not fond of hypotheticals developed to change a real situation like this into something else.  This happened.  Two people are dead.  There's nothing hypothetical about that and, to my mind, it's nothing to play with.  Families have lost loved ones.  This is real, not a game.

[mmhmm]

Apr 23, 2014 0:43:00 GMT -5 truthbound said:

It is always clear in these threadswho are the gun nuts and who are the gun grabbers.

No.  It isn't clear, at all.

[zibazinski]

Well, if they hadn't been breaking into his home, all of his "entrapment" would have been for nothing. Too bad, so sad.

[whoisjohngalt]

If anyone breaks into  my house, I am going to assume the worse.

this is not the time to start giving people benefit of the doubt

[zibazinski]

For sure. My neighbor may be lying in wait for me to break into his home and steal his wine collection. Although I'd like to have his wine collection, I think if  I don't break into his home, I'm all good.

[whoisjohngalt]

When I lived in MD, I had my car broken into 3 times.  The last two cops didn't even show up.  It was pretty much understood there was nothing they could do.  Car was parked in a driveway

A few years later, I was back there visiting and our car and a few neighbors' cars got broken into again.  Same result.

The area is semi-affluent (a 1200sq townhouse sells for ~$350K), people who live there are professionals or military.   I wonder what would have happened if those break-ins ever crossed the line into entering someone's house.

The problem is that MD is very anti-gun, so the home owner would probably be doomed.

Thank G-d I live in a much more gun friendly state now

[Deleted]

Apr 23, 2014 1:05:29 GMT -5 EVT1 said:

Really- explain that.  What am I?

Only thing clear is that his little murder scheme just fell apart.  He took bulbs out to improve his plan and shot people at distances that plainly show he was killing them and not protecting himself.

This has not a single thing to do with gun rights so before you call me a gun grabber be sure I probably have more than you.  But you have a point- it is always clear in these thread when someone has no freaking idea what is being discussed.  Want to argue gun rights start a thread on it- this has exactly NOTHING to do with it.

So do that please and I won't out you as some third grader.

And I am a gun grabber lol

[zibazinski]

You don't want guns, don't have guns. We still BARELY live in a free country. But no way in hell is anyone coming into my home for any reason uninvited and not leaving in a body bag. I consider that a gift to humanity.

[EVT1]

Yes- such an oppressive and 'barely free' country we live in. How dare the law interfere with the rights of a few bloodthirsty gun nuts to kill at will.

Nice of you to state that you would make sure anyone that ends up in your home is dead at your hands- I consider that a gift for a future prosecutor.  You and shithead will be great bunkmates in prison- you can reminisce about how you murdered the bad people and how the country is going to shit because of laws against such things.

[Deleted]

I don't believe in killing at will. But I also don't believe in breaking and entering, stealing and intimidating at will. I agree that this guy is sick and seemed to enjoy it too much but he did stay in his own home and he did not invite them into his house. They did not have good intentions when they entered the house. They were targeting people they perceived as weak.

[jkapp]

Apr 23, 2014 8:35:09 GMT -5 EVT1 said:

Yes- such an oppressive and 'barely free' country we live in. How dare the law interfere with the rights of a few bloodthirsty gun nuts to kill at will.

Nice of you to state that you would make sure anyone that ends up in your home is dead at your hands- I consider that a gift for a future prosecutor.  You and shithead will be great bunkmates in prison- you can reminisce about how you murdered the bad people and how the country is going to shit because of laws against such things.

How about this question: why didn't the police do anything about the previous break-ins?  The homeowner knew who was breaking in, he most likely told the police, yet they did nothing.  At what point can we actually trust that the people supposedly enforcing our laws are doing their jobs? Yeah, they're great at handing out speeding tickets and busting liquor stores for selling to minors, but when it comes to actually providing us PROTECTION and SAFETY, where the hell are they?  No where, in this situation...so how many times would these two kids have been allowed to break into this man's house?  How many windows would he need to replace? How many expensive drug prescriptions would he need to refill?  How many times would he need to feel violated before the police did their fucking JOBS? 

And you wonder why he was angry??

[Spellbound454]

I still don't get why anyone thinks this is OK

If they were coming at him intending harm..... then I could see why someone would shoot...... I'd probably do it myself.

but that isn't what happened.

This man elected himself judge and jury over two human kids...and executed them with great relish.

He wasn't hunting deer...or whatever else he uses his guns for.

There isn't a civilised country on this planet who would allow this. Its outside of any jurisdiction you can think of.

[jkapp]

Apr 23, 2014 8:54:30 GMT -5 Spellbound454 said:

I still don't get why anyone thinks this is OK

If they were coming at him intending harm..... then I could see why someone would shoot...... I'd probably do it myself.

but that isn't what happened.

This man elected himself judge and jury over two human kids...and executed them with great relish.

He wasn't hunting deer...or whatever else he uses his guns for.

There isn't a civilised country on this planet who would allow this. Its outside of any jurisdiction you can think of.

I don't think its ok, but I understand why it happened...its the consequences of having law enforcement that doesn't give a shit.

[Deleted]

Apr 23, 2014 9:11:33 GMT -5 jkapp said:

Apr 23, 2014 8:54:30 GMT -5 Spellbound454 said:

I still don't get why anyone thinks this is OK

If they were coming at him intending harm..... then I could see why someone would shoot...... I'd probably do it myself.

but that isn't what happened.

This man elected himself judge and jury over two human kids...and executed them with great relish.

He wasn't hunting deer...or whatever else he uses his guns for.

There isn't a civilised country on this planet who would allow this. Its outside of any jurisdiction you can think of.

I don't think its ok, but I understand why it happened...its the consequences of having law enforcement that doesn't give a shit.

It's not the law enforcement that doesn't give a shit. We have allowed lawyers to make such a game out of it that police officers are restricted in a myriad of ridiculous ways from how they gather evidence to how they arrest someone to how they charge them to how long the criminals are still on the streets before trial.

[NomoreDramaQ1015]

I think whether or not he gets convicted is going to lie in if they can prove he set a trap.

If he deliberately set things up so there'd be a good chance of a thief breaking and the whole point of the exercise was to blow their brains out in revenge then I think you can argue this is pre-meditated murder.

I think that would be pretty hard to prove unless they have overwhelming evidence to support the claim.

If he was an old man who happened to be in the basement when two thieves broke in and took him by surprise, then you're not going to get him on murder.

Since the other two people are dead, I think it's going to be hard to get murder charges to stick. Anymore than they did with Zimmerman. We can argue all day but the evidence needs to support first degree murder charges. If it doesn't people aren't going to convict. A lesser charge may be a smarter option in if they want something to stick.

A lot of the facts, granted as presented by the media, don't sit well with me in this case. I don't know if there is enough to argue murder, but I am not buying he was an innocent old man taken by surprise either.

[Tennesseer]

Here are the issues I have with this case:

• The two intruders were unarmed.  Byron Smith did not know this so it was reasonable for Smith to assume anyone breaking into his home may be and probably were armed. 

 

• Smith shot Nicholas Brady once, if not twice, in the stairwell or while Brady was on the basement floor.  Once Brady was shot and down, Smith was able to determine Brady had no weapon in hand.  Brady was dying if not already dead, at the time Smith dragged him into another room.

• Smith then shot at Haile Kifer one or more times as she was about to (or was) descending the basement stairs. The tape recording catches the sound of Kifer tumbling down the stairs to the basement floor after she was shot one or more additional times.  Once on the basement floor, or on the final steps of the basement stairwell, Smith is heard in the tape recording firing more guns shots.  Smith can now physically determine Kifer was not carrying a weapon in her hand and she is down with one or more debilitating bullet wounds.

• Smith calls her a few names and then fires a final shot that may have caused her death based upon where the bullet entered her body even though she is down and more than likely severely injured by the previous shots and fall.

• Instead of firing the last shot into Kifer's head, why didn't Smith leave the basement, go upstairs and call the police?  He knew both Brady and Kifer were injured, if not dead, and posed no further immediate risk to his safety.  Once upstairs, lock or block the basement door from opening from downstairs if you are still worried for your safety.

• If planning on being away, any reasonable homeowner would like their home to appear occupied while gone, especially during a holiday season.  A car in the driveway, lit rooms in front and back rooms of the home, a radio or TV on, are good indicators someone may be home.

• A reasonable person would get out of the house ASAP.  A reasonable person would not wait until the following day to report a break-in along with the deaths of the intruders.  A reasonable person would not state his reason for not calling the police was because he did not want to ruin their Thanksgiving plans.

[Spellbound454]

The only way he could get a reduced sentence.... would be to plead manslaughter on the grounds of diminished responsibility (insanity)
or whatever your equivalent charge would be.

and say the harassment drove him to a break down.

As for the police.....these two should have been caught and charged a long time ago.
They were doing it because they thought they could get away with it and their behaviour had not been stopped.
Even druggie kids can come out of the other side and lead a normal life....but they need intervention... or it just gets worse.
They need the authorities to stop them. 

[Tennesseer]

Apr 23, 2014 8:10:29 GMT -5 zibazinski said:

You don't want guns, don't have guns. We still BARELY live in a free country. But no way in hell is anyone coming into my home for any reason uninvited and not leaving in a body bag. I consider that a gift to humanity.

Among many other things, you are posting on a free message board and speaking your mind.  You live in a country where you can freely move around the country without having to show papers.  You are free to start your own business and reap all the rewards.  You are free to work in any business that interests you.  You are free to travel and live abroad if you so choose.

People who live in government-controlled countries cannot do that. 

[Deleted]

I don't think this guy resembles anything reasonable. But I don't see any reason that I am obligated to make my house look occupied while gone to ensure people don't rob me. Nothing he did should have enticed anyone to enter his home. However...if they only entered unoccupied homes they had no intent to harm anyone.

[Tennesseer]

Apr 23, 2014 9:30:50 GMT -5 laterbloomer said:

I don't think this guy resembles anything reasonable. But I don't see any reason that I am obligated to make my house look occupied while gone to ensure people don't rob me. Nothing he did should have enticed anyone to enter his home. However...if they only entered unoccupied homes they had no intent to harm anyone.

For years upon end, homeowners and renters have been warned by the police and insurance companies to make their homes look occupied if they are away. It has been a fact of life (at least here in the U.S.) for years.

It would be nice if we didn't have to make our homes look occupied if we are away but residences have been burgled for hundreds of years whey they appear to be no one home.  Home burglaries are not some new crime.