State v. Smith

          Hennepin County Office of Appellate Courts

          Keith Ellison, Attorney General, Saint Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant Hennepin County Attorney, Minneapolis, Minnesota, for respondent.

          Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

         SYLLABUS

         1. The testimony of appellant's accomplice was sufficiently corroborated.

         2. The district court's admission of Spreigl evidence was not an abuse of discretion.

         3. The district court's denial of a motion for continuance was not an abuse of discretion.

         4. The district court abused its discretion when it sustained a relevance objection by the State, but the error was harmless.

         5. Appellant's pro se arguments are without merit. Affirmed.

          OPINION

          LILLEHAUG, Justice.

         Derrick 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 conviction.

         FACTS

         Richard 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.

         The 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 murder.

         Because 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.

         Thereafter, 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.

         As part 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.

         Ambers 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.

         Around 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.

         Wahab 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.

         Shortly 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.

         The 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.

         As 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.

         Cell 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.

         On 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.

         During 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.

         Smith's 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 release.

         This ...