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Smith v. United States

Court of Appeals of The District of Columbia

March 14, 2019

Cordell SMITH, Appellant,
v.
UNITED STATES, Appellee.

         Submitted March 6, 2017

Page 791

[Copyrighted Material Omitted]

Page 792

          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, Washington, was on the brief for appellant.

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

         Before Glickman, Fisher, and Thompson, Associate Judges.

          OPINION

         Glickman, Associate Judge:

Page 793

          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 This court affirmed appellant’s convictions on direct appeal in an unpublished opinion.[1] While that appeal was pending, appellant moved for a new trial pursuant to D.C. Code § 23-110 (2012 Repl.), asserting that his trial counsel’s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.

          I.

          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 ...


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