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Smith v. United States

Court of Appeals of The District of Columbia

March 14, 2019

Cordell Smith, Appellant,
United States, Appellee.

          Submitted March 6, 2017

          Appeal from the Superior Court of the District of Columbia (CF1-8380-07) (Hon. Geoffrey M. Alprin, Trial Judge; Hon. Michael Ryan, Motion Judge)

          David Benowitz was on the brief for appellant.

          Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Bernard Delia, and Jennifer B. Loeb, Assistant United States Attorneys, were on the brief for appellee.

          Before Glickman, Fisher, and Thompson, Associate Judges.


         Appellant Cordell Smith was convicted after a jury trial of second-degree murder while armed and associated firearms offenses. This court affirmed appellant's convictions on direct appeal in an unpublished opinion.[1] While that appeal was pending, appellant moved for a new trial pursuant to D.C. Code § 23-110 (2012 Repl.), asserting that his trial counsel's ineffectiveness had deprived him of a meritorious defense - namely, that he had committed the homicide in self-defense. The motion judge denied this motion without affording appellant an evidentiary hearing. Before us now is the appeal from that denial. For the reasons that follow, we affirm.


         A. The Evidence at Trial

         Appellant was tried for the fatal shooting of Rayshard Austin. The government's main witnesses were Monica Foster, who witnessed the events that precipitated appellant's encounter with Austin; Sheri Butler, who saw appellant retrieve a gun moments before the two men confronted each other; and Tammy Brown and Tremayne Morant, each of whom saw appellant shoot Austin. The defense called no witnesses to the shooting, and appellant did not take the stand. Through cross-examination and argument, however, the defense tried to discredit the government's witnesses. The theory of the defense was that appellant was not present at the shooting and that it was Tammy Brown who shot and killed Austin.[2]

         According to the government's evidence, the shooting took place at about 1:30 a.m. on March 28, 2007, in the stairwell of the Ivy City Apartments building at 1060 Mount Olivet Road in Northeast, D.C. Monica Foster was on the street outside the building that morning, smoking marijuana, when her "godbrother," Rayshard Austin, came by to talk with her. Austin was accompanied by his friends Tammy Brown and Delonte Pearson. The three had been drinking and both Austin and Brown were drunk; Foster testified that Austin "reeked of liquor."

         At this time, appellant was with Tremayne Morant and a man identified at trial as Daewoo in a laundry room located on the second floor of the Ivy City Apartments building. The laundry room window overlooked the spot where Foster and Austin were chatting. Upon seeing appellant at the window, Brown went into the building to go "chill" with appellant.

         From the laundry room window, appellant attempted to flirt with Foster. Austin became annoyed at the interruption, told appellant to stop bothering Foster, and declared in an angry tone of voice that he was going up to the laundry room. Foster tried to restrain him, but Austin climbed over a gate and entered the apartment building.

         Upon hearing Austin say he was coming up, appellant, Morant, and Daewoo ran out of the laundry room and down the stairs. Brown also left the laundry room and went to smoke a cigarette in the stairwell. On his way up, Austin stopped to talk with her there.

         Meanwhile, appellant ran down to the basement apartment of Sheri Butler and knocked loudly on the door. Butler opened it and appellant told her "he wanted to come get his charger." Appellant walked into the kitchen, where Butler saw him open a drawer and take out a gun. He then left her apartment. Butler locked the door behind him. As she walked back to her bedroom, she heard three gunshots coming from upstairs. Looking out her window, Butler saw appellant, Morant, and a third person get into appellant's car and drive away.

         Brown testified that as she was talking with Austin in the stairwell, appellant and his friends came up the steps. Appellant approached Austin, said "what's up," and then shot him three times at close range. Brown did not hear Austin say anything, nor did she see him holding any weapon or making any aggressive movement in appellant's direction. Brown saw Austin stumble towards appellant after the first shot and then step back and "hit the steps" after being shot twice more.

         When called to the stand at trial by the prosecution, Morant denied having seen appellant shoot Austin. He claimed not to have been at the Ivy City Apartments on the night of the shooting. His contrary grand jury testimony was thereupon admitted as substantive evidence. Morant told the grand jury that he was with appellant in the laundry room; that appellant, from the window, got into an argument with Austin in the street below; that Austin said he was "coming around there," entered the building, and went up the stairs; and that appellant meanwhile went downstairs and came back up. Morant witnessed the meeting of the two men. He described Austin as being so intoxicated he could not "even get his words out straight." Morant saw Austin "lift his pants up," and then he saw appellant shoot Austin. He heard three gunshots. Morant did not see anything in Austin's hands.

         Immediately after the shooting, appellant ran out of the building with Morant and Daewoo, and Brown started screaming. Foster, who had remained outside, heard the gunshots and then heard Brown shouting, "son, son get up!" Foster and Pearson ran to the stairwell and found Brown alone with Austin's body.

         An autopsy determined that Austin received three gunshot wounds to the front of his body - one to the left side of his chest, the second near the midline of his torso, and the third to his right thigh. The toxicology report disclosed that Austin had a blood alcohol level of .2 (indicative of impairment).

         The defense called one witness, Metropolitan Police Department Officer Richard Griffin, who identified the physical evidence recovered at the scene of the shooting. On the floor under Austin's body, Officer Griffin found the broken-off tip of a knife. The knife tip fit the broken blade of a folded pocketknife that Griffin found in Austin's right front pants pocket. Defense counsel argued at trial that Brown, the only person who remained with Austin after the shooting, must have picked up the knife and planted it on Austin after she, not appellant, shot him.[3] Defense counsel did not contend, however, that the knife indicated Austin was the aggressor in the confrontation in which he was killed.[4]

         B. The § 23-110 Motion

         Appellant's § 23-110 motion for relief from his conviction was filed by new counsel during the pendency of his direct appeal. Appellant charged that his trial counsel, Ross Hecht, was ineffective in failing to investigate, confer with him, and pursue at trial a "viable" claim that he shot Austin in self-defense.[5] The motion asserted that Austin had threatened appellant and "was taking steps to carry out his threat" when appellant shot him; that Austin "was known to carry a pistol and [was] not afraid to use it;" and that appellant was aware of his reputation for violence. The motion claimed that "[t]he ...

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