State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A19-0695

Scott County Chutich, J.

State of Minnesota,

Respondent,

vs. Filed: March 18, 2020
Office of Appellate Courts
Derrick Zechariah Smith,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Ronald B. Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota, for respondent.

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

________________________
S Y L L A B U S
1. The district court did not abuse its discretion by concluding that the risk of
unfair prejudice did not outweigh the probative value of the Spreigl evidence.
2. Assuming without deciding that the admission of business records and
photos from appellant’s Facebook account was error, it was harmless because no
reasonable possibility exists that the evidence significantly affected the verdict.
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3. The district court did not abuse its discretion in determining that appellant
did not provide sufficient evidence of duress to raise a defense of duress at trial.
4. The district court erred by sentencing appellant for both first-degree murder
while committing an aggravated robbery and first-degree aggravated robbery of the same
victim.
Affirmed in part, reversed in part, and remanded.
O P I N I O N
CHUTICH, Justice.
Derrick Zechariah Smith and three others broke into James Herron’s home, robbed
him and his guests, and murdered him. A grand jury indicted Smith on eight crimes relating
to these acts, and, after a bench trial, the district court found him guilty on all counts.
Smith argues on appeal that the district court abused its discretion in several
instances. Specifically, Smith challenges the district court’s determination that the risk of
unfair prejudice did not outweigh the probative value of the Spreigl evidence admitted at
trial. He also asserts that the district court denied him a fair trial by admitting evidence
from his Facebook account, including business records and photos. Smith further contends
that the district court abused its discretion by finding that he presented insufficient evidence
for a duress defense. Finally, he asserts that the district court erred by sentencing him for
both first-degree murder while committing an aggravated robbery and first-degree
aggravated robbery because Herron was the victim of both crimes.
We conclude that the district court properly admitted the Spreigl evidence and acted
well within its discretion in denying Smith’s proposed defense of duress. Concerning the
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introduction of the Facebook evidence, even assuming without deciding that error
occurred, it was harmless. But because the first-degree murder while committing an
aggravated robbery and first-degree aggravated robbery offenses were committed against
the same victim, Smith could not properly be sentenced for both offenses. Accordingly,
we affirm the judgment of convictions, reverse the sentence imposed on Smith for the
first-degree aggravated robbery of Herron, and remand to the district court to vacate that
sentence.
FACTS
In November 2016, Smith along with his co-conspirators Brandy Jaques, T yrel
Patterson, and Jonte Robinson, broke into James Herron’s home wearing dark clothing and
masks. Smith had handed out the face masks and gloves before the group broke in. The
group then encountered three guests and Herron’s roommate and girlfriend, S.W. Smith
and the co -conspirators forced S.W. and the three guests to lie face-down on the living
room floor, and then searched and robbed each guest. Patterson found Herron asleep in his
bed. After what the victims described as “a scuffle and yelling from the bedroom,”
Patterson shot Herron in the wrist, dragged him down the hallway, and forced him to his
knees in his living room. There, Patterson demanded to know where they could find drugs
and money. When Herron failed to answer quickly enough, Patterson first shot him in the
kneecap and then fatally shot him in the head at close range.
Robinson fled without his co-conspirators’ knowledge and called 911. Police
officers began tracking Smith, Patterson, and Jaques as soon as they left Herron’s home,
which resulted in a lengthy high-speed chase. After the officers stopped their car, Smith
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ran in a separate direction from the others. An officer chased him and ordered him to stop
running. Smith did not comply and instead shot at the officer, who returned fire and
wounded Smith. When searched, Smith had in his possession a pink handgun taken from
one of Herron’s guests, another handgun, Herron’s cell phone, and four large bags of
marijuana. Upon arresting all of the co-conspirators, the officers also recovered the murder
weapon, rubber gloves, masks, cash, drugs, and various possessions belonging to Herron
and his guests.
The State charged Smith with eight crimes related to the break -in, robbery, and
murder at Herron’s home.1 Smith waived his right to a jury trial and proceeded to a bench
trial in Scott County . The State offered testimony from two of Smith’s co-conspirators,
the victims, police officers, and several experts. The testimony showed Smith to be an
active co-conspirator in the crimes.
The State planned to introduce Smith’s prior convictions for first-degree murder and
aggravated robbery as Spreigl evidence, to show, among other things, that Smith was a

1 Specifically, these charges—all alleging aiding and abetting liability—were:

• Count I: Murder in the First Degree— With Intent— While Committing
Aggravated Robbery
• Count II: Murder in the First Degree—While Committing Burglary
• Count III: Murder in the Second Degree—With Intent—Not Premeditated
• Count IV: First Degree Aggravated Robbery (Herron)
• Count V: First Degree Aggravated Robbery (M.H.)
• Count VI: First Degree Aggravated Robbery (J.R.)
• Count VII: First Degree Aggravated Robbery (M.R.)
• Count VIII: First Degree Burglary of a Dwelling—Occupied —Non-Accomplice
Present
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willing participant in the Herron burglary-robbery-murder. The Hennepin County District
Court had previously convicted Smith of first-degree murder after he, along with Jaques
and Patterson, participated in a robbery -murder less than one month before they robbed
and killed Herron. Both crimes involved armed robberies of persons that these three knew
to be in possession of drugs, and in both instances, the victims were shot in the head in the
early morning. The State also sought to introduce evidence of Smith’s convictions that
resulted from an armed robbery of a Burger King restaurant that he and a co-conspirator
committed in December 2007.2
The State also introduced evidence from Smith’s Facebook account, including
photos (depicting marijuana and a “hand holding a black handgun”) and business records
(documenting basic subscriber information, such as a phone number, messages, and IP
logs).
The district court admitted the Facebook evidence during the State’s case; it
deferred its rulings on the Spreigl evidence until the close of the State’s case. At that time,
it admitted the evidence of Smith’s prior first-degree murder conviction and his Burger
King robbery convictions.
Smith notified the district court before trial that he planned to present a duress
defense to establish that he had acted “at the direction of Brandy Jaques in fear that [she]
or Mr. Patterson would kill him” if he failed to cooperate. The district court deferred its
ruling on Smith’s motion to present a duress defense until the close of evidence. It

2 Smith pleaded guilty to four counts of aggravated first-degree robbery in connection
with the 2007 robbery.
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ultimately denied Smith’s motion, finding that he failed to meet his burden of production
to establish the elements of duress.
In its thorough and well-reasoned findings of fact, conclusions of law, and order,
the district court explicitly found that the testimony of each of the victims a nd Smith’s
co-conspirators was credible. The district court relied on DNA evidence and witness
testimony to determine that Jaques wore a pink mask during the robbery, Robinson wore a
green mask, Patterson wore a black half mask, and Smith wore a black full mask. The
district court found that Smith planned the robbery through text messages with Patterson,
provided transportation to Herron’s home, and supplied the “robbery kit,” (a backpack with
extra shoes, zip ties, gloves, and masks) before breaking into the home. In addition to
explicitly finding that nobody had threatened Smith, the district court found that, shortly
before the robbery, Smith threatened Jaques and Robinson by telling them that if they failed
to cooperate, “they [could] get shot too.”
The district court foun d Smith guilty on all charges. It sentenced him to life with
the possibility of release after 360 months for the first-degree aggravated murder
conviction, four 57- month sentences for first-degree aggravated robbery (one count for
each victim), and 71 months for burglary in the first-degree. The district court imposed
these sentences consecutively.
Smith appealed his convictions and sentences.
ANALYSIS
Smith challenges four of the district court’s decisions: (1) admitting Spreigl
evidence, (2) admitting Facebook evidence, (3) denying his motion to assert a duress
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defense, and (4) sentencing him for two crimes against the same victim (aggravated
robbery and first-degree murder while committing aggravated robbery of Herron). We
address each issue in turn.
I.
We review a district court’s admission of Spreigl evidence for an abuse of
discretion. State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006). Courts generally exclude
evidence “connecting a defendant with other crimes.” State v. Spreigl, 139 N.W.2d 167,
169 (Minn. 1965). The general prohibition against Spreigl evidence protects defendants
from the possibility that the fact-finder will use this evidence “for an improper purpose,
such as suggesting that the defendant has a propensity to commit the crime.” Ness,
707 N.W.2d at 685. Spreigl evidence may still be admitted for limited, specific purposes,
such as “showing motive, intent, knowledge, identity, absence of mistake or accident, or a
common scheme or plan.” Id. To introduce Spreigl evidence:
(1) the state must give notice of its intent to admit the evidence; (2) the state must
clearly indicate what the evidence will be offered to prove; (3) there must be clear
and convincing evidence that the defendant participated in the prior act; (4) the
evidence must be relevant and material to the state’s case; and (5) the probative
value of the evidence must not be outweighed by its potential prejudice to the
defendant.
Id. at 685–86 (emphasis added). A court should exclude Spreigl evidence if the balance
between probative value and the risk of unfair prejudice is a close call. Id. at 685. Finally,
even if we conclude that the district court erroneously admitted Spreigl evidence, we will
only reverse if there “is a reasonable possibility that the wrongfully admitted evidence
significantly affected the verdict.” Id. at 691.
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Here, the district court admitted evidence of Smith’s prior first-degree murder and
Burger King robbery convictions because they were probative of a common scheme, intent,
and knowledge.3 Smith concedes that the State met the first three Spreigl requirements.
He asserts, however, that the Burger King robbery convictions were irrelevant under the
fourth prong, and that the risk of unfair prejudice from each of the admitted Spreigl
convictions outweighed their probative value under the fifth prong.
Concerning the fourth Spreigl prong, the district court properly concluded that the
Burger King robbery convictions were relevant. Smith’s voluntary participation in the
Burger King robbery was relevant to his contention that he was an unwilling participant in
the Herron burglary-robbery-murder. See State v. Hudspeth, 535 N.W.2d 292, 295
(Minn. 1995) (concluding that evidence of a defendant’s intentional participation in a
“somewhat similar” crime about two weeks before is “highly relevant” to rebut claims of
passive involvement in the current crime).
Turning to the fifth Spreigl prong, we f irst consider the probative value of the
admitted evidence. The district court properly concluded that each of Smith’s prior
convictions were probative of knowledge and intent in light of Smith’s assertion of a duress
defense.4 The prior first-degree murder conviction arose from a robbery -murder that he
committed with Patterson and Jaques —the same core group of co-conspirators before us

3 The district court denied the State’s motion to admit Spreigl evidence concerning
two other crimes or bad acts: Smith’s 2007 conviction of aggravated robbery in the first
degree and an alleged 2016 second-degree assault.

4 As an alternative to his duress defense, Smith contended that he did not reasonably
foresee that someone would be killed during the burglary and robbery of Herron’s home
and its occupants.
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now. See State v. Smith, 932 N.W.2d 257, 262–63 (Minn. 2019). Beyond the district
court’s observation that armed robbery is generally the type of crime that can turn violent,
the prior first-degree murder conviction was probative of whether Smith knew that
robberies with this particular group of people might be deadly. And, as previously
described, the Burger King robbery convictions are probative because his voluntary
participation in this crime was relevant to his contention that he was an unwilling
participant in the Herron burglary-robbery-murder.
Next, we consider whether the risk of unfair prejudice outweighs the established
probative value of the admitted Spreigl evidence. Here, the specific risk is that the
fact-finder could use these convictions as propensity evidence— namely, that Smith
committed these eight crimes because he has committed crimes in the past—instead of
using the evidence in a more limited way to prove Smith’s intent or knowledge. This risk
is reduced because Smith had a bench trial on these offenses. Although district court judges
are not “immune from emotional appeals or the temptation to misuse evidence,” they have
“experience and familiarity with the operation of the rules of evidence” that reduce the risk
of unfair prejudice. State v. Burrell, 772 N.W.2d 459, 467 (Minn. 2009). “After all, it is
the district court judge who is called upon in the first instance to rule on the admissibility
of the evidence.” Id.
We applied this distinction between a bench trial and a jury trial concerning the risk
of unfair prejudice in Burrell, 772 N.W.2d at 465–67. There, we concluded that evidence
of four Spreigl incidents—alleged shootings—were relevant to the defendant’s motive of
“gang retaliation. ” Id. at 466. We also concluded that the Spreigl evidence, though
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probative of motive, was prejudicial and “could distort the integrity of the fact-finding
process.” Id. at 466–67. But ultimately we affirmed the district court’s admission because
“the evidence was presented to a [district court judge], and not to a jury.” Id. at 477. We
made this distinction because “there is comparatively less risk that the district court judge,
as compared to a jury of laypersons, would use the evidence for an improper purpose” or
allow emotion to overcome reason. Id.
Here, Smith’s first-degree murder conviction involves some of the same core group
of co-conspirators engaging in a similar crime less than a month before the crimes at issue
in this appeal. Because this conviction has a higher probative value than the conviction in
Burrell, and a similarly reduced risk of unfair prejudice because both cases involved bench
trials, the district court did not abuse its discretion in admitting this evidence. Further, we
have previously concluded that Smith’s current convictions were not unduly prejudicial
when introduced as Spreigl evidence in his Hennepin County jury trial for first-degree
murder. Smith, 932 N.W.2d at 267–68. Accordingly, his Hennepin County first- degree
murder conviction was not unduly prejudicial when introduced at the bench trial here.
Similarly, concerning the Burger King robbery convictions, the risk of unfair
prejudice is so low that it does not outweigh the probative value of those convictions. The
district court, therefore, did not abuse its discretion in admitting Smith’s prior first-degree
murder conviction and his Burger King robbery convictions.
II.
We turn next to the district court’s admission of the evidence from Smith’s
Facebook account, which included photos depicting marijuana and a “hand holding a black
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handgun,” as well as business records documenting basic subscriber information. Smith
argues that this evidence is inadmissible hearsay because the State failed to meet the
exception for business records under Minnesota Rule of Evidence 803(6). 5 We need not
decide here whether any error occurred because any alleged error was harmless beyond a
reasonable doubt. See State v. Lilienthal, 889 N.W.2d 780, 787 (Minn. 2017) (concluding
that “we need not determine whether the district court violated [appellant’s] Fifth
Amendment rights . . . because we conclude that the alleged error was harmless beyond a
reasonable doubt”).
We review a district court’s evidentiary determinations for an abuse of discretion,
Ness, 707 N.W.2d at 685, governed by the harmless error standard, State v. Matthews,
800 N.W.2d 629, 633 (Minn. 2011). “Under the harmless error standard, a defendant who
alleges an error that does not implicate a constitutional right must prove there is a
‘reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.’ ” Id. (quoting State v. Holliday, 745 N.W.2d 556, 568 (Minn. 2008)).
Some of the factors that help us determine whether this reasonable possibility exists
include: (1) the manner in which the party presented the evidence, (2) whether the
evidence was highly persuasive, (3) whether the party who offered the evidence used it in

5 Although Smith now asserts that the Facebook photos are unduly prejudicial, he
neither raised this argument at trial nor objected under Minnesota Rule of Evidence 403.
Ordinarily, we would review his new Rule 403 objection for plain error. State v. Ramey,
721 N.W.2d 294, 297 (Minn. 2006). Because Smith is unable to establish prejudice under
the more favorable harmless error standard, we apply that standard to all of his Facebook
claims in an effort to simplify our analysis. See State v. Matthews, 800 N.W.2d 629, 634
(Minn. 2011) (noting that “the third prong of the plain error test is the equivalent of . . .
harmless error analysis”).
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closing argument, and (4) whether the defense effectively countered the evidence. State v.
Ferguson, 581 N.W.2d 824, 833 (Minn. 1998). Strong evidence of guilt undermines the
persuasive value of wrongly admitted evidence. See Matthews, 800 N.W.2d at 634 (noting
that the wrongfully admitted testimony was brief, was not persuasive on the question of
the defendant’s guilt, and other strong evidence of guilt overshadowed that testimony).
Applying these principles here, we conclude that no reasonable possibility exists
that the Facebook evidence significantly affected the district court ’s verdict. First, the
Facebook evidence was only a small part of the State’s presentation. The records were
introduced through an expert witness—one of thirty -five witnesses—whose testimony
accounts for just 35 pages of the 1,380 page trial transcript. Second, the evidence was
relevant in part because it included subscriber information that linked Smith to a particular
phone number and Facebook page, and it showed connections among the co-conspirators.
But Jaques, who the district court expressly found to be credible, independently testified to
Smith’s phone number, making the records evidence less important. Concerning the third
and fourth factors, the State did not mention the Facebook evidence in its closing argument,
and Smith had the opportunity to cross-examine the expert witness who testified about that
evidence.
Finally, even if wrongly admitted, any persuasive impact of the Facebook evidence
is dwarfed by the overwhelming evidence of Smith’s guilt. The State presented witness
testimony from victims and co-conspirators that characterized Smith as an active planner
and participant in the crimes, and the district court specifically found that these witnesses
were credible. The State presented expert testimony involving DNA evidence that
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connected Smith to one of the masks worn by an active participant, as described by the
witnesses. And after the police chase ended and the officers captured Smith, an officer
found belongings of the victims—a gun, Herron’s cellphone, and four large bags of
marijuana—on Smith.
In sum, even assuming without deciding that the Facebook evidence was
erroneously admitted, no reasonable possibility exists that it significantly affected the
district court’s verdict.
III.
Turning next to Smith’s request to present a duress defense at trial, we review the
district court’s denial of this motion for an abuse of discretion. State v. Yang, 644 N.W.2d
808, 818 (Minn. 2002). To raise a duress defense, a defendant bears the burden of
production. Id. Specifically, a defendant must produce evidence showing that “(1) he was
under a present reasonable apprehension of instant death, due to threats, should he refuse
to participate in the crime; (2) fear o f instant death continued throughout the commission
of the crime; and (3) he could not safely withdraw.” Id. Threats made to the defendant
“must be of immediate death for noncooperation.” Id.
Smith asserts that he met his burden of production because his co-conspirators’
testimony supports an inference that Patterson was their leader and was someone to be
feared.6 We disagree.

6 At oral argument, Smith’s counsel also suggested that the district court did not
consider Smith’s duress defense. But as the State’s counsel noted, the district court
concluded—after reviewing the evidence —that Smith had not met the burden of
production required to warrant this defense. Only after this review of the evidence and the
proposed defense, did the district court reject Smith’s proposed defense.
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Even taken as true, Smith’s theory does not meet the elements of a duress defense.
No evidence presented at trial showed that Sm ith—because of threats—was under a
reasonable apprehension of instant death should he refuse to participate in the break-in and
robbery. Neither the co-conspirators nor the victim witnesses testified that they heard
Patterson or Jaques threaten Smith. And the district court specifically found that Smith did
not receive any threats. Certainly, nothing in the record suggested that Smith participated
in the offense under a fear of imminent death. Yang, 644 N.W.2d at 819 (concluding that
defendant did not succeed on a duress defense after testifying that he feared retaliatory
gang violence if he failed to cooperate because the threat was not “imminent . . . at the time
of the shooting itself”). Moreover, no evidence suggested that Smith could not withdraw
from the crime—particularly when Robinson did so.7 The district court, therefore, did not
abuse its discretion by denying Smith’s request to present a duress defense.
IV.
Finally, we consider whether the district court erred in sentencing Smith for
first-degree murder while committing an aggravated robbery and first-degree aggravated
robbery when Herron was the victim of both crimes. Whether Minnesota Statutes
section 609.035 prevents imposing two sentences under these circumstances is a question
of law that we review de novo. In re Custody of M.J.H., 913 N.W.2d 437, 440

7 After the car chase ended and Smith was fleeing separately from his co-conspirators,
he chose to shoot at the police officer who was pursuing him. Although we affirm the
district court’s denial of Smith’s duress defense because Smith failed to meet his burden
of production, we note that Smith’s decision to fire his gun appears inconsistent with a
duress defense.
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(Minn. 2018) (“Determination of the applicable statutory standard and the interpretation of
statutes are questions of law that we review de novo.”).
A burglary conviction “is not a bar to conviction of or punishment for any other
crime committed on entering or while in the building entered.” Minn. Stat. § 609.585
(2018). But if a defendant commits multiple crimes during the burglary against the same
victim, the district court can only sentence the defendant for one additional crime. State v.
Hodges, 386 N.W.2d 709, 710–11 (Minn. 1986).
We conclude that, under Hodges, the district court erred by sentencing Smith for
more than one of the additional crimes committed against Herron after the initial burglary
(aggravated robbery and first-degree murder when committing aggravated robbery). We
therefore reverse the sentence imposed for the first-degree aggravated robbery of Herron
and remand to the district court to vacate that sentence.
CONCLUSION
For the foregoing reasons, we affirm the judg ment of convictions, reverse the
sentence imposed for the first-degree aggravated robbery of Herron, and remand to the
district court to vacate that sentence.
Affirmed in part, reversed in part, and remanded.