Attorneys representing an accused drive-by shooter in an impending murder trial in Hennepin County District Court are asking that some charges be dropped while jury selection continues.
Jamal Lindsey Smith, 34, is charged with first- and second-degree murder in the shooting last July that killed youth baseball coach Jay Boughton, 56, who was driving on Hwy. 169 in Plymouth with his teenage son when he was shot in the head during what experts called a clear case of road rage.
Smith's attorneys, Emmett Donnelly and Kellen Dotson, renewed their argument for the dismissal of an aiding and abetting count, saying that the prosecution's theory is that Smith fired the lethal shot from the vehicle. But there were two other occupants and the defense argues Smith was not the shooter. In the motion sent to Judge Nicole Engisch on Tuesday, the defense said the other two occupants "possessed guns before, during and after the shooting."
One of the occupants, Brandon Miguel Smothers of Griffith, Ind., is on the prosecution's witness list, but state attorney Daniel Allard said before jury selection Wednesday morning that Smothers may not show up. Allard said that a warrant may be issued for Smothers if he misses a third consecutive court date in Indiana.
Donnelly said Smith has a right to confront Smothers, otherwise he will be deprived of his right to cross examine and confront his accusers in open court. Smothers testified last fall during the grand jury trial, when the jury indicted Smith on first-degree murder.
"A witness cannot take the stand and accuse the other of committing acts," he told Engisch.
The defense says if there is an alternative perpetrator, the aiding and abetting count against Smith should be dismissed.
A separate defense motion filed Monday to dismiss the indictment touches on several issues, such as the fact that Smothers is shown in a video the night after the shooting with a firearm matching the one used in the drive-by, but the court said it could not be properly authenticated despite a Plymouth detective saying it matches the murder weapon. Donnelly argues this video evidence cannot be excluded.
In the same motion, Smith's defense continued to argue that he would not get a fair trial because "a real danger exists that Mr. Smith will be forced to endure an all-white jury," Donnelly wrote.
As of Wednesday, six jurors have been seated and half are people of color. Twelve need to be seated, plus alternates, before the trial can begin.
Engisch said jury selection may carry over into early next week, though initially expected the process to wrap up by Friday with opening statements on Tuesday after the long holiday weekend.