Category Archives: Criminal Defense

Little Falls

Little Falls Murderer Must Pay $21,000 To Victims’ Families

Byron David Smith, the 66-year-old Little Falls man who was found guilty on two counts of premeditated murder in the first and second degree after he killed two teenage intruders during a home invasion has been ordered to pay over $21,000 in restitution to the victims’ families.

The Little Falls saga began nearly two years ago when Nicholas Brady, 17, and Haile Kifer, 18, broke into Smith’s home on Thanksgiving Day 2012. Smith’s home had been frequently burgled, so when he heard people breaking into his house, he waited in the basement with a shotgun. Brady was the first to enter the basement, and Smith shot him as he descended the stairs. Smith then walked up to an injured Brady mortally wounded him with a shot to the face.

Kifer descended the stairs a short while later. Smith again shot the teen as she was coming down the stairs, but when he went to shoot her again, his gun jammed. Smith then retrieved a handgun, and as he stated during his testimony, delivered “a kill shot.”

The case made national news as pundits discussed how far a homeowner could go to protect his or her dwelling. Ultimately the jury decided that Smith’s actions went above and beyond “reasonable measures” in protecting his home, and he was sentenced to life in prison.

Court Costs

After the guilty verdict was read, Brady and Kifer’s families submitted a restitution request. They hoped to to recoup $42,000 in restitution costs for expenses like funeral costs, transportation costs during trial, and loss of wages by the parents.

Ultimately the Morrison County District Court met the families half way, awarding them a total of $21,421 in restitution. Brady’s family was awarded $9,577, while Kifer’s family received $11,844.

Related source: Pioneer Press

Deer DUI

Deer Season: DUIs and Distracted Driving

Deer season is currently underway in Minnesota, and with gun season opening up in Wisconsin this weekend, odds are you’ll see plenty of blaze orange out and about in the coming weeks. As hunters head to deer camp in hopes of finding that thirty point buck, there’s two things you should be mindful of this time of year: DUIs and Distracted Driving.

Deer Camp DUI

The last weeks of November are prime times for DUIs. Many hunters like to drink after a day of hunting, but getting behind the wheel after you’ve had a few too many is a real problem. If you’re going to celebrate your buck with a few beers, make sure you give your keys to a friend.

The end of November is also a time when we see extra DUI patrols because of the upcoming Thanksgiving holiday. Some reports suggest that the night before Thanksgiving is actually the day with the most drunk drivers. Oftentimes college students or recent graduates are back in their hometown to attend a family Thanksgiving the following day, and they want to catch up with pals at the local watering hole the night before the holiday.

Minnesota police conducted extra DUI patrols from the Wednesday before Thanksgiving through the holiday weekend in 2013, and you can expect similar patrols this year. If you plan on drinking, make sure you have a sober ride home, because cops will be on the lookout.

Distracted Driving

Distracted driving is another issue this time of year. Even though Minnesota received snow a little earlier than expected, drivers are still getting used to the slick conditions. You may have been able to take your eyes off the road for a few seconds to change the radio station in the summer, but that could lead to an accident if you’re not careful in the winter. Always stay alert while behind the wheel, especially in less than ideal conditions.

Deer are another reason to keep your eyes on the road. Deer are more active during gun season as they can be spooked easily by an approaching hunter or a gunshot. On average, roughly 2,300 Minnesotans will hit a deer with their car this season. 68 individuals have been injured when their car struck a deer and 18 have died as a result of a crash since 2011, so not only should you be monitoring the road, but also keep an eye on roadside ditches. In the event a deer crosses your path, try to slow down quickly and safely. Avoid swerving, as that can cause the car to roll.

In the event you end up with a drunk driving ticket or a distracted driving violation, give us a call. We’ve helped numerous hunters in the past, and we can help you too.

Cake Boss

Cake Boss Star Arrested For DUI

He works with frosting, but it was the sauce that got him in trouble early Thursday morning.

Bartolo “Buddy” Valastro, star of the TLC reality TV show Cake Boss was arrested early this morning on charges of driving under the influence. According to the police report, officers spotted a yellow corvette swerving erratically through traffic between 20th and 32nd street in Lower Manhattan around 1 a.m.

Officers stopped Valastro and observed that he had blood shot, watery eyes and he smelled of alcohol. Valastro was then asked to step out of the vehicle to preform a field sobriety test. The police report notes that Valastro appeared unsteady on his feet prior to failing the roadside test. He also failed a subsequent Breathalyzer test.

Valastro was officially charged with driving under the influence (DUI) and driving while ability impaired (DWAI). According to New York law, a DUI is considered a misdemeanor offense that carries the potential of moderate jail time while DWAI is only considered a traffic violation. A closer look at the law reveals that  in New York:

A First Conviction DWAI is punishable by:

  • A fine between $300-$500.
  • Up to 15 days in jail.
  • A mandatory 90-day driver’s license suspension.

A First Conviction DUI is punishable by:

  • A fine between $500-$1,000.
  • Up to 1 year in jail.
  • A mandatory driver’s license suspension of at least six months.

One of the biggest factors in DUI cases is a person’s blood alcohol content. A person can be charged with DWAI even if their blood alcohol content is below the 0.08 legal limit (between 0.05 and 0.08). In addition, a person can be charged with both DWAI and DUI stemming from a single instance.

Buddy’s blood-alcohol content wasn’t released, but it seems likely that it was above 0.08. It stand to reason that if he was below 0.08, he would have only faced a DWAI charge, but we’ll know more once police release more details about the case.

Related source: E Online, Ithaca DUI


Wisconsin DUI

Wisconsin Judges Lenient on Chronic Drunk Drivers

A review of drunk driving cases by a Wisconsin media company found that many chronic offenders throughout the state receive lenient sentences.

Moreover, in at least a dozen cases, judges imposed sentences below the mandatory minimum. Sometimes this was done by negotiating around vaguely worded statutes, while other times judges blatantly disregarded mandatory minimum sentencing guidelines.

Ben Kempinen, a Law School professor at the University of Wisconsin, said it’s strange that judges who are tasked with upholding a law are blatantly overlooking current statutes.

“If (legislators) say you have to give the guy at least a year and (judges) are not doing it, then they’re not complying with the limits on their power,” Kempinen said.

More From The Review

The analysis of over 900 DUI cases across the state uncovered:

  • Some judges failed to institute probation upon an offender’s release from jail, while others let offenders serve some sentences simultaneously.
  • A Green Bay man convicted of seven drunk driving offenses should have been sentenced to three years in jail based on mandatory minimum laws, but he received a two-year sentence and ultimately only served nine months in jail.
  • The same judge handed down a similar sentence in another case. When the mandatory minimum called for three years, he sentenced the offender to two.

Avery Appelman comments

On the surface level the report might seem concerning that judges aren’t following the law to the letter, but there’s more to it than that. For example, the judge in the case above said he only went below the mandatory guidelines based on recommendations of prosecutors. He also said it’s his job to interpret the law and apply it on a case-by-case basis.

“I think the Legislature has a right to express their opinion that these are mandatory, in their opinion this is the sentence that should be imposed, but I don’t think I’m a computer. I don’t think I’m a robot. I try to listen to what everybody has to tell me,” said Judge Donald Zuidmulder. “I do respect that and probably follow it 99 percent of the time or 98 percent of the time.”

I think Judge Zuidmulder’s take is a good one. No two cases are the same, so a one-size-fits-all law isn’t going to be perfect 100 percent of the time. I’d much rather have a judge like Zuidmulder than one who doesn’t consider all the factors in the case and rules, as the judge referenced, as a robot.

Related source: Gannett News Media, Pioneer Press

Daylight Savings Crime

Daylight Savings Crime

November has brought plenty of changes here in Minnesota. We turned the clocks back to get an extra hour of light in the morning, and Mother Nature dropped a few inches of snow on our heads. So while you may be better able to see the snow on your car windshield when you scrap your car off in the morning before heading to work, today we want to focus on how daylight savings time impacts crime rates.

A study out of the University of Virginia found that daylight savings time has a large impact on the number and types of crimes committed. As you might guess, the earlier it gets dark, the more crimes occur. This happens for three main reasons:

  • It gets dark earlier.
  • It stays dark longer.
  • Less witnesses are outside due to decreasing temperatures.

The cover of darkness and the fact that their are less potential witnesses outside to observe crime are prime reasons why criminal activity increases in the late fall and winter.

What Crimes Increase?

Not all crimes increase in the cold months. For example, disorderly conduct and DUIs tend to drop as people aren’t typically outside as much in the cold winter months. The crime that increases the most is robbery.

Jennifer Doleac, co-author of the study, said robberies increase 7 percent overall, and 27 percent during the sunset hour. She says the cover of darkness provides thieves and other criminals with the discretion they need, and discussed the drop in crime when we turn the clocks forward in the spring.

“We find an increase in light during the hour of sunset impacts a number of socially damaging crimes, including robbery, murder, and rape, with a total estimate social cost avoidance of over $550 million per year,” Doleac wrote. “We also find suggestive evidence that much of the avoided crime comes through criminal deterrence, which means not only fewer victims but also a lesser need for the expensive and potentially damaging incarceration process.”

Nicholas Sanders, an economics professor at the University of Virginia who co-authored the study with Doleac, added that the increase in crime in the fall is most noticeable during the hour of sunset.

“The majority of those effects are really concentrated in the hour of sunset which is to say 6,  7 o’clock in most areas, the hour that sees the biggest change in the amount of light that’s present is the hour that sees the largest change in crime,” said Sanders.

However, he says the morning hours are a different story.

“In the morning the criminals still haven’t had their coffee, they haven’t gotten up and gotten their day started.”

This blog isn’t meant to keep you indoors every night after 5pm, but it should serve as a warning to stay alert to suspicious activity. Always lock your car doors if parking on the street, and make sure other areas, like garages and storage sheds are also secured once night falls.

Related source:

minneapolis police

Minneapolis Police Launch Body Camera Program

If you’re stopped by a Minneapolis police officer in the near future, you’ll want to smile, because you might be on camera.

The Minneapolis Police Department has equipped 36 officers with body cameras as part of a pilot program aimed at preventing police brutality and citizen complaints. The officers will wear the cameras for six to nine months in order for the city to fully evaluate their effectiveness. If the pilot program is successful, the city hopes to outfit all of its officers by late 2015.

Minneapolis Police Chief Janee Harteau said the cameras have the potential to pay for themselves by preventing claims against officers.

“This technology will protect our officers from false and frivolous claims, saving time and money in the process,” Harteau said.

Mayor Betsy Hodges added that the cameras will also help keep officers accountable for their actions.

“It brings increased accountability and transparency for both the police officers and for the public moving forward, which is a benefit to everybody, and a benefit to public safety,” Hodges said at a press conference.

Minneapolis is the latest Minnesota city to adopt police body cameras. Departments in Burnsville, Farmington and Duluth have already equipped their officers with body cameras, and early reports suggest they have been successful.

The only real issue that some people have with the cameras is that they don’t record all the time. The recorder can be turned on and off at the officer’s discretion, which has led to some concerns about hiding the true nature of encounter. Harteau said they are training their officers to turn their cameras on during every public encounter. They believe this process will make it easier to review the tapes.

Related source: Star-Tribune, Kare 11

U of M Police

U of M Students Standing Up To Police Brutality

Inspired by a Twin Cities-based Communities United Against Police Brutality meeting, students at the University of Minnesota are speaking up about police brutality and misconduct.

If you drove over the Washington Avenue Bridge last month, you may have noticed the group’s handywork. Rows and rows of shoes lined the bridge, each pair a representation of a life lost since 2000 to police brutality.

Eric Schiltz founded the student group after attending the community meeting, and he said many students have been directly or indirectly affected by police brutality.

“I was really moved by a lot of the stories I heard regarding police misconduct, and it was an education for me as someone who had never experienced police brutality,” he said. “I felt like it would be a good outlet for students to have a campus chapter.”

In addition to raising awareness about police brutality, the student group is also monitoring complaints against the U of M police department and any instances of misconduct. The group hopes to use the information to identify any possible demographic trends.

They also noted that they aren’t anti-police, they just want to make sure everyone is held accountable.

“We want to make it very clear who our group is and that we are not against police or anti-police,” said group President Eric Bauer. “And that quite frankly, UMPD, while there may be some concerns, is almost certainly much better than other police forces.”

Another aspect of the group is student education. Similar to what we preach at Appelman Law Firm, educating yourself about your rights is critical to avoiding police misconduct. Natalie Goodwin, a University freshman who joined the group earlier this year, said she’s been surprised about how much she’s learned about her rights and how prevalent police brutality is across the US.

“I learned how deep and widespread the issues are, but also how invisible they had been to me,” Goodwin said. “I realized I couldn’t continue to be blissfully unaware as I had been, and I had to help any way I could.”

Related source: MN Daily

Peterson case

Report: Peterson To Plead No Contest To Misdemeanor

Adrian Peterson is expected to plead no contest to one count of misdemeanor reckless assault at his hearing this afternoon.

The deal would still need to be accepted by the presiding judge, but it seems unlikely the judge would deny the two sides their agreed resolution. Under the proposed deal, Peterson would:

  • Pay a $2,00 fine.
  • Be placed on probation.
  • Ordered to preform 80 hours of community service.
  • Have his adjudication deferred two years, meaning the plea deal could be thrown out if he violates any probation guidelines set forth in the next two years.

As for Peterson, the agreement means the felony charge would be reduced to a misdemeanor, and the amended charge would make no reference to family violence or violence against a minor. Previously, Peterson faced the possibility of up to two years in prison and a $10,000 fine under the felony charge.

What’s Next?

As we mentioned yesterday, Peterson isn’t out of the woods yet. Although his legal issues may soon be resolved, Peterson still has be reinstated by Commissioner Roger Goodell and welcomed back by the Vikings.

There was also the issue of Peterson admitting to smoking pot, but according to ESPN it’s going to be difficult to prove whether he smoked marijuana before or after he was given his bond conditions.

Even though his legal issues appear to be coming to an end, we stand by yesterday’s prediction that Peterson will not suit up for the Vikings the rest of the way. The team is on a bye this week before they enter the final seven-game stretch to end the year. Peterson is probably still near game shape and certainly still has knowledge of the offense, but the biggest thing working against him is the Ray Rice situation and the public perception of domestic and child abuse.

Ray Rice was suspended for the remainder of the year and cut by the Ravens after video surfaced of him punching his now-wife Janay Parker. Many voiced their displeasure in Roger Goodell after the commissioner only initially suspended Rice for two games, and the Ravens only released Rice after mounting backlash from the video. Rice’s incident has led to two common themes:

1. The NFL has decided to take a harsher stance against violent offenders, as they instituted a six-game suspension for incidents of domestic violence. They also don’t want the public perception of being lenient on crime.

2. Teams need walk a tight line between distancing themselves from violent offenders and wanting to win. Nobody doubts that Peterson gives the team the best chance to win, but at 4-5, the team may decide distancing themselves from Peterson will do more good than hoping he can guide them to a 6-1 or 5-2 record in the final seven games. The last thing the team wants is to hurt its public image and miss the playoffs.

Final verdict – We still think it’s a long shot that Peterson will play this season.


Zombie DUI

Zombie Earns Two DUIs in Three Hours

You may be fond of your Halloween costume, but odds are you don’t want it immortalized forever as a standout DUI mugshot.

That luxury likely won’t be afforded to 26-year-old Catherine Butler, whose mugshot has gone viral after receiving two DUIs in a span of three hours after a night of Halloween debauchery.

Butler and friends decided to celebrate the Halloween holiday last Saturday, but she made a poor decision at the end of the night by deciding to drive home. An officer noticed that Butler was driving without her headlights on, and he quickly pulled her over. When asked to submit to a Breathalyzer, Butler blew a 0.11, nearly 1.5 times the legal driving limit.

As you can see from the above mugshot, she was still rocking her zombie costume at the time of her DUI arrest. Unfortunately for Butler, her troubles didn’t end there. A friend stopped by the station and picked up her zombie buddy, but just three hours later Butler was back on the road. An officer noticed a car driving erratically around 5 a.m. and conducted a traffic stop. Sensing that Butler was still affected by the alcohol in her system, the officer asked her to again submit to a Breathalyzer test. This time she blew a 0.09, just barely over the 0.08 legal limit.

Butler was again arrested for driving under the influence, but as you can see in the photo on the right, in the short time between arrests she decided to ditch the zombie costume.

The two arrests marked the third and fourth instances where Butler was arrested for drunk diving. Gates Police Chief James Vanbrederode said the message clearly hasn’t gotten through to this young woman.

“Two prior driving while impaired convictions and 26 years old and she’s still out driving drunk. It’s just hard to understand why people continue to do that and the consequences of continuing to do that,” Vanbrederode said.

Butler is due to appear in court next month.

Related source: Huffington Post,,

Halloween DUI Minnesota

Extra DUI Patrols Likely on Halloween Weekend in Minnesota

Although there has yet to be an official announcement from the Sheriff’s Office or the Minnesota Department of Public Safety Office of Traffic Safety, it’s well speculated that Minnesota troopers will once again be conducting extra DUI patrols throughout the holiday weekend.

This year’s Halloween celebration is unique in that the holiday falls on a Friday, meaning more adults will take part in the festivities on the holiday night. More adults are likely to celebrate Halloween with cocktails on the actual holiday since many won’t have to work the next day, but you can see how partying adults and hordes of Trick or Treaters can be a recipe for disaster.

As you’re probably well aware, alcohol slows your reaction time behind the wheel. That extra half second of recognition could be the difference between life and death if a child decides to run across the street at the wrong moment. Even if the child “came out of nowhere” or “dashed right in front of you,” you’re still going to spend time in jail if you’re over the legal limit.

Although many adults won’t hit the town until the vast majority of Trick or Treaters are back from their spooky excursion, there’s simply no reason to drink and drive on Halloween. Even without the presence of drunk drivers, more children are killed by vehicles on Halloween than any other day of the year.

So while MNDoT and authorities have yet to announce an official statement regarding extra DUI patrols on Halloween, you can bet they’ll be out there, especially since they added similar patrols in 2013. Over the last six years authorities have arrested roughly 3,000 drunk drivers during the Halloween weekend.

As always when we discuss heightened patrols during holiday weekends, here are some ways to get to and from the party with a sober driver.

  • Uber has a special deal for Twin Cities travelers this Halloween. All you have to do is visit their site and request a personalized party code. Uber will email you a code within 24 hours that gives you a free ride, and you can share that code with friends and they’ll get the same deal. If you go with a friend to a Halloween bash, you can get there and back for free by simply each requesting a code!
  • Bus/Taxi.
  • Have a designated driver.
  • Crash at a friend’s house and drive home in the morning.
  • Walk home with friends.

If you do end up in trouble this weekend, be it DUI or other violation, don’t hesitate to give us a call at (952) 224-2277.