Submitted March 6, 2017
from the Superior Court of the District of Columbia
(CF1-8380-07) (Hon. Geoffrey M. Alprin, Trial Judge; Hon.
Michael Ryan, Motion Judge)
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.
Glickman, Fisher, and Thompson, Associate Judges.
GLICKMAN, ASSOCIATE JUDGE
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direct appeal in an unpublished opinion. 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.
The Evidence at Trial
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
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."
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.
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.
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
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
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.
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.
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
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).
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. Defense counsel
did not contend, however, that the knife indicated Austin was
the aggressor in the confrontation in which he was
The § 23-110 Motion
§ 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. 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 ...