Hennepin County Office of Appellate Courts
Ellison, Attorney General, Saint Paul, Minnesota; and Michael
O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant
Hennepin County Attorney, Minneapolis, Minnesota, for
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L.
Martin, Assistant State Public Defender, Saint Paul,
Minnesota, for appellant.
testimony of appellant's accomplice was sufficiently
district court's admission of Spreigl evidence
was not an abuse of discretion.
district court's denial of a motion for continuance was
not an abuse of discretion.
district court abused its discretion when it sustained a
relevance objection by the State, but the error was harmless.
Appellant's pro se arguments are without merit. Affirmed.
Zechariah Smith was convicted of aiding and abetting
first-degree murder and sentenced to life in prison with the
possibility of release. On direct appeal, Smith, through
counsel, raises four issues. First, he argues that his
conviction was based on accomplice testimony that was
insufficiently corroborated in violation of Minn. Stat.
§ 634.04 (2018). Second, he argues that the district
court abused its discretion when it admitted evidence of
three other-crimes incidents. Third, he argues that the court
abused its discretion when it twice denied his motion for a
continuance to review newly produced evidence. Fourth, he
argues that the court abused its discretion by sustaining the
State's relevance objection to a question during the
cross examination of a police investigator. Additionally,
Smith raises several pro se claims. We affirm the judgment of
Ambers was shot and killed in Minneapolis while sitting in
his car in the early morning hours of October 29, 2016. A
person delivering newspapers noticed a slumped body inside a
car that was parked on the 4800 block of Bryant Avenue North
and called 911 at 4:43 a.m. While he spoke to the 911
operator, the delivery person saw two people approach the car
and reach inside it. When police arrived, they discovered
Ambers had been shot twice at close range. No bullet casings
or other physical evidence were found at the scene.
evening before he was murdered, Ambers had attended a
Halloween party with his wife, K.A. After the party, Ambers
drove K.A. home, arriving around 2:00 a.m. When Ambers failed
to follow her into the house, K.A. called his cell phone.
Ambers told her he was going to a relative's house and
that he would return shortly. According to K.A., Ambers sold
marijuana; he kept the drugs in a glass jar and carried
hundreds of dollars with him. No glass jar of marijuana or
large amounts of money were located in the car after the
of the lack of physical evidence and absence of witnesses at
the crime scene, police investigators began to reconstruct
Ambers' movements from the 2:00 a.m. call with his wife
until the 911 call at 4:43 a.m. Using Ambers' phone
records, police contacted R.D., who said that he and Ambers
had met at a Super America (SA) gas station in Brooklyn
Center. Surveillance video from the SA shows Ambers meeting
with R.D. around 3:15 a.m.
the video shows Ambers talking with appellant Derrick Smith.
Smith had arrived at the SA with Tyrel Patterson, Brandy
Jaques, and Ayan Wahab. The video then shows Ambers leaving
with Wahab in his car.
of a plea agreement, Wahab provided police with details of
what took place between the time they left the gas station
and the murder of Ambers. Wahab was working as a prostitute;
Smith was her pimp, and both Patterson and Jaques were her
drivers. After the group met Ambers at the SA, they realized
that he had drugs and cash and decided to rob him. The
initial plan was that Ambers and Wahab would go to a hotel
and then the others would carry out the robbery.
and Wahab, however, did not go to a hotel. Instead, Ambers
drove to the home of a close friend, J.H, who came outside
and spoke with Ambers. While waiting, Wahab observed drugs in
a glass jar located in the car's center console, but she
did not see any cash. J.H. testified that Wahab seemed
agitated, kept checking her phone, and did not want to be
there. Wahab testified that she was anxious because she
believed that Smith, Patterson, and Jaques had failed to
follow her and Ambers.
4:15 a.m., Ambers and Wahab left J.H.'s house. Ambers
drove Wahab to Jaques' house-located on the 4800 block of
Bryant Avenue North-where Wahab was then living. Wahab went
inside the house, where Smith and Jaques were waiting. Wahab
testified that Smith was angry with her for returning without
any drugs or money. Smith then attempted to call Ambers from
Wahab's phone. At the same time, Jaques noticed that
Ambers was still in his car in front of the house, and Smith
told Wahab to go back outside.
got back in the car with Ambers. A portion of their
conversation was inadvertently recorded in the form of a
voicemail to R.D. from Ambers' phone. Ambers and Wahab
can be heard talking, followed by a dinging sound of the car
door opening. The voicemail ends there. Wahab testified that
Patterson appeared, opened the passenger door of Ambers'
car, and pulled her out. As Wahab walked back to Jaques'
house, she heard three gunshots. She did not look back and
went into the house. Based on the timing of the recording of
the voicemail and the 911 call, the shooting apparently took
place between 4:39 and 4:43 a.m.
after the shooting, Patterson and Wahab left in
Patterson's van. Smith called Wahab, and Wahab handed her
phone to Patterson, who was driving. Wahab heard Smith ask if
Patterson "took care of that," and heard Patterson
reply, "yes." While crossing a bridge over the
Mississippi River, Patterson handed Wahab something wrapped
in a towel and told her to throw it in the river. She did so.
Based on the weight and shape of the object, Wahab believed
it to be a gun.
next day, Wahab overheard Smith and Jaques talking while they
thought she was asleep. Smith said that Wahab knew too much
and that they should kill her. Wahab jumped out of a window,
leaving all her possessions behind, and ran away.
police continued their investigation, cell phone records led
them to Wahab. She turned herself in voluntarily, and, after
initially not accurately identifying Ambers, told officers
what had happened. Wahab's statements to police were
substantially the same as her trial testimony.
phone records confirmed the calls described by Wahab: one
between Smith's phone and Ambers' phone at the SA,
and one between Wahab's phone-with Smith dialing,
according to Wahab-and Ambers' phone just before the
murder. Cell-site location information (CSLI) for both
Smith's and Wahab's phones was obtained by the
police. CSLI showed Wahab's phone traveling from the SA,
to the area around J.H.'s home, to the area around
Jaques' home, to the bridge where Wahab says she threw
away the object in the towel. CSLI also showed Smith's
phone in the area of the 4800 block of Bryant Avenue North at
the time of the murder.
December 29, 2016, Smith was charged by complaint with aiding
and abetting second-degree murder. In April 2017, a grand
jury indicted him on one count of first-degree felony murder
and one count of second-degree murder.
discovery, Smith's attorneys became aware of police
reports that referenced phone calls made between December 5,
2016 and January 23, 2017, by Smith, Patterson, and Jaques,
from the Scott County jail, where they were being held in
connection with another murder. Counsel requested the calls
on June 29, 2017. Prosecutors from the Hennepin County
Attorney's Office did not produce recordings of the calls
until sometime in mid-December 2017; counsel for Smith first
learned the calls were available on December 27, 2017. The
approximately 75 hours of recordings included calls both
within and outside the period requested.
trial was scheduled to begin on January 2, 2018. That day,
Smith moved for a continuance to review the jail-call
recordings. The district court denied the motion. After the
jury was selected and seated, Smith renewed his continuance
motion, which was again denied. The jury found Smith guilty
of aiding and abetting first- and second-degree murder. The
district convicted him of the first-degree charge, and
sentenced him to life in prison with the possibility of