Smith v. Bosch

Background

Derrick Z. Smith was convicted of aiding and abetting first- and second-degree murder in connection with the killing of Richard Ambers. He was sentenced to life imprisonment with the possibility of release. The prosecution’s case relied in part on testimony from Ayan Wahab, one of Smith’s co-conspirators. Wahab testified about events surrounding the planned robbery and murder, including Smith’s alleged role as the person directing the operation.

Smith’s lawyer requested recordings of several jail calls made in December 2016 and January 2017. Prosecutors disclosed the recordings in mid-December 2017, and Smith’s lawyer learned they were available six days before trial. The disclosure contained about 75 hours of recordings. The state trial court denied Smith’s request for a continuance to review them and later denied a renewed request. Smith was convicted.

The Minnesota Supreme Court affirmed the trial court’s denial of the continuance. Smith then petitioned the federal court for habeas relief, which is a request to set aside unlawful custody. He argued that the late disclosure violated the rule from Brady v. Maryland, which requires prosecutors to disclose evidence favorable to the accused when that evidence is important to guilt or punishment.

Magistrate Judge’s Recommendation and Objection

The magistrate judge determined that the prosecution had suppressed evidence favorable to Smith and that the evidence was covered by the Brady rule. The magistrate judge nevertheless recommended denying the petition because the evidence was not material—that is, it was not sufficiently important to create a reasonable likelihood that it affected the jury’s decision.

Smith objected only to the finding that he was not prejudiced by the suppression. He argued that Wahab’s testimony was central to the prosecution’s case and that the recordings could have impeached, or weakened the credibility of, the accomplice witnesses. The State opposed Smith’s objection and did not challenge the magistrate judge’s other findings.

Court’s Analysis

Judge Tunheim reviewed the challenged portion of the recommendation from the beginning because Smith had made a specific objection. The court explained that a Brady claim requires proof that the prosecution suppressed evidence, that the evidence was favorable to the accused, and that it was material to guilt or punishment. The court focused on materiality because Smith challenged only that issue.

The court held that the recordings were not material. None of the four recordings involved Wahab. Two recorded conversations involving Brandy Jaques and another person, and two involved statements by Patterson’s girlfriend. The court considered the recordings’ possible impeachment value but found it low.

One recording included statements that Wahab would not have entered the house because she had previously been beaten there, and that Smith was inside when Wahab heard gunshots. It also included a statement from a woman who said she did not remember seeing Wahab inside the house. The court found that the first statement was speculation and that the second was consistent with Wahab’s testimony that she did not see anyone inside the house.

Another recording included Jaques’s statement that Tyler Patterson, rather than Smith, was leading the group. The court said that, even assuming this conflicted with Wahab’s testimony, it was not reasonable to conclude that the jury would have rejected all of Wahab’s testimony because another person made a conflicting statement. A fourth recording concerned whether a van belonged to Patterson. The court found that this did not meaningfully call into question Wahab’s testimony about Smith’s involvement.

The court distinguished cases in which undisclosed evidence seriously undermined a key witness through inconsistent statements, bias, or an improper motive. The court found that the recordings did not show that Wahab had made inconsistent statements, had a reason to lie, or had a motive or bias. The court also noted that other evidence corroborated substantial portions of Wahab’s testimony, including cell-site location information and testimony from two other witnesses.

The court further found that Smith’s argument that additional investigation might have changed the verdict was speculative. Considering the entire record, the court concluded that the suppressed evidence did not create a reasonable likelihood that the jury would have reached a different result or undermine confidence in the verdict. The court therefore concluded that the denial of a trial continuance was not constitutionally erroneous.

Disposition

The court overruled Smith’s objection, adopted the magistrate judge’s report and recommendation, denied Smith’s petition for a writ of habeas corpus, and dismissed the action. The court also declined to grant a certificate of appealability, finding that Smith had not made the required substantial showing that a constitutional right had been denied and that reasonable judges could not debate the proper resolution of the petition.