Cordell Smith v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-CO-363
CORDELL SMITH, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF1-8380-07)
(Hon. Geoffrey M. Alprin, Trial Judge;
Hon. Michael Ryan, Motion Judge)
(Submitted March 6, 2017 Decided March 14, 2019)
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.
GLICKMAN, Associate Judge: 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This court affirmed appellant’s convictions on direct appeal in an unpublished
2
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
1
Smith v. United States, No. 10-CF-342, Mem. Op. & J. (D.C. Feb. 7,
2012).
3
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
2
Approximately a year-and-a-half before trial, the government moved in
limine to require appellant to make a pretrial proffer of evidence supporting a
claim of self-defense before he raised such a claim at trial or elicited any evidence
at trial of Austin’s prior violent acts. (In a discovery letter, the government had
informed the defense that Tammy Brown had implicated Austin in a murder.) The
government asserted that no evidence existed of any act of aggression by Austin
toward appellant, and that even if there were such evidence, appellant’s response to
it was excessive. When this motion was taken up at a status hearing, appellant’s
counsel (who did not represent appellant at trial) stated in an ex parte proffer to the
court that he intended to put on an alibi defense, but that he did not want to
preclude the possibility of pursuing a theory of self-defense because he had learned
through his investigation that Austin was armed with knives when he was killed
and that Tammy Brown might say Austin was going to attack appellant. The court
granted in part and denied in part the government’s motion, ruling that the defense
would not be required to make a proffer before presenting argument or evidence at
trial that Austin was the initial aggressor, but that the defense would be required to
make a proffer outside the presence of the jury before it would be allowed to bring
up Austin’s prior acts of violence or his reputation or character for violence. No
proffer in support of a claim of self-defense was ever made. Neither an alibi
defense nor a claim of self-defense was pursued at trial.
4
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.
5
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
6
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
7
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
3
There was no evidence that Brown’s DNA or fingerprints were on the
knife.
4
If Austin was wielding the knife when he was shot (which might be
inferred from the location of the broken blade tip under his body), that does not
necessarily mean he was the initial aggressor. He could have been trying to defend
himself. Under either hypothesis, the blade might have broken when Austin was
felled and the knife struck the ground (either while Austin was still gripping it or
because he dropped it). No other explanation has been offered for the broken knife
blade.
8
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 defense of Self Defense would have
provided the necessary doubt for the jurors to render a just verdict of not guilty
(acquittal).”
Appellant provided an affidavit in support of his motion.6 Appellant averred
that he saw Austin holding “something that looked like a gun or knife” when
Austin “came at” him, and that he knew Austin to be “a bad and dangerous guy”
who had “killed and shot a few people” and “was wanted in two separate murder
investigations.” But when appellant told Hecht he was interested in testifying and
5
One of appellant’s claims on direct appeal was that the trial court plainly
erred in failing to instruct the jury sua sponte on self-defense. Recognizing the
testimony regarding Austin’s pocketknife, this court nonetheless held that “there
was no evidence to support a self-defense instruction.” Smith v. United States, No.
10-CF-342, Mem. Op. & J. at 1 (D.C. Feb. 7, 2012).
6
Appellant’s counsel submitted this affidavit as an exhibit to an
“Addendum” to the motion. The Addendum itself essentially repeated verbatim
the contents of the original motion and asserted that in a new trial the evidence of
self-defense “would likely result in an acquittal.”
9
“wanted to go with self-defense,” Hecht allegedly “kept blowing [him] off” and
told him “self-defense did not exist” in the District of Columbia.
In opposition, the government argued that appellant’s self-defense claim was
bereft of factual support. There was, the government asserted, “nothing in the
record” suggesting that appellant faced an unlawful and immediate threat from
Austin and “honestly and reasonably believed” himself to be in imminent danger
of death or serious bodily harm such that his use of deadly force was necessary.
Moreover, even assuming that Austin displayed the pocketknife and that appellant
might have been justified in using some force to protect himself, “shooting Austin
three times and mortally wounding him was clearly excessive” as a matter of law.
And in any event, the government argued, appellant forfeited “a legitimate claim of
self-defense” by leaving to retrieve a gun from Butler’s basement apartment and
then returning upstairs to confront Austin instead of taking the opportunity to avoid
a violent encounter with him. Given that the record thus conclusively refuted
appellant’s ineffective assistance claim by showing that appellant “would not have
been entitled to pursue self-defense,” the government argued that the court should
deny appellant’s § 23-110 motion without a hearing.
10
In reply, appellant reiterated his claim that he had not received a fair trial
because of the “fundamental failure on the part of trial counsel to communicate
with [him] and investigate this case.” Appellant’s only rejoinder to the argument
that he did not have a legitimate self-defense claim was to re-assert that the
“testimony, evidence, and argument of self-defense needed to be heard and
considered by the jury,” and that “[t]he defense of Self Defense would have
provided the necessary doubt for the jurors to render a just verdict of not guilty
(acquittal).”
The motion judge denied appellant’s § 23-110 motion without an evidentiary
hearing. Even if appellant’s factual assertions were true, the judge ruled, the
record demonstrated that he was not prejudiced by his trial counsel’s alleged
deficiencies. As the judge succinctly explained, appellant’s evidentiary proffer fell
“far short of raising a reasonable probability of acquittal on a self-defense theory,”
because – in a nutshell – appellant “left the scene and had a chance to mitigate the
danger but instead returned with a gun and shot three times a person who witnesses
testified did not show a weapon.” 7
7
The judge thus found it unnecessary to decide (or conduct an evidentiary
hearing to determine) whether Hecht performed deficiently by failing to consider,
investigate, and confer with appellant about a possible claim of self-defense.
However, based on his assessment that a self-defense claim would not have
(continued…)
11
II.
A Sixth Amendment ineffective assistance claim is evaluated under the two-
part test of Strickland v. Washington.8 The defendant’s “burden [is] to plead with
requisite particularity, in light of the full record before the court, [1] that his trial
counsel’s performance was deficient . . . and [2] that the deficient performance
prejudiced his defense.” 9 Failure to satisfy either prong defeats the claim; the court
is not required “to address both components of the inquiry if the defendant makes
an insufficient showing on one. In particular, a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies.”10
(…continued)
succeeded, the judge opined that the choice of a different theory of defense was
reasonable.
8
466 U.S. 668 (1984); see also Cosio v. United States, 927 A.2d 1106 (D.C.
2007) (en banc).
9
Long v. United States, 910 A.2d 298, 309 (D.C. 2006); see Strickland, 466
U.S. at 687; Cosio, 927 A.2d at 1122.
10
Strickland, 466 U.S. at 697. Indeed, the Court added, “[i]f it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” Id.12
The prejudice prong requires the defendant to make a showing that
“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.”11 In this case, that means appellant needed to
demonstrate “a reasonable probability” that but for counsel’s putative errors, the
jury “would have had a reasonable doubt respecting [his] guilt.” 12 The motion
judge concluded that even assuming the truth of his factual averments, appellant’s
proffered showing of prejudice was insufficient as a matter of law. 13 Our review of
that determination is de novo. 14
“[W]here the alleged error of counsel is a failure to advise the defendant of
a potential affirmative defense to the crime charged, the resolution of the
‘prejudice’ inquiry will depend largely on whether the affirmative defense would
11
Id.12
Id. at 695; see also Cosio, 927 A.2d at 1132.
13
A § 23-110 motion may be denied without an evidentiary hearing where
the claims presented would not entitle the defendant to relief even if they are
factually true; “if no genuine doubt exists about the facts that are material to the
motion, the court may conclude that no evidentiary hearing is necessary.”
Bellinger v. United States, 127 A.3d 505, 515 (D.C. 2015) (emphasis added)
(internal quotation marks omitted); see also D.C. Code § 23-110 (c) (2012 Repl.).
14
See Cosio, 927 A.2d at 1123.
13
have succeeded at trial.”15 Appellant contended below that he had a claim of self-
defense that reasonably might have persuaded the jury to acquit him of Austin’s
murder had it not been foreclosed by his counsel’s errors. This would have
required him to show that:
(1) [he was faced with] an actual or apparent threat; (2)
the threat was unlawful and immediate; (3) [he] honestly
and reasonably believed that he was in imminent danger
of death or serious bodily harm; and (4) [his] response
was necessary to save himself from the danger.[16]
To demonstrate he could have made such a showing, appellant claimed he would
have testified that Austin threatened him with a knife – which would have been
corroborated by the broken knife blade found under Austin’s body and the
pocketknife in his pocket – and that the threat to his life was all the more
frightening given his knowledge of Austin’s murderous reputation.
Whether there is a reasonable probability that the jury would have credited
that testimony may be doubted. Appellant’s account was contradicted by Brown
and Morant, each of whom denied seeing Austin threaten appellant or have a
weapon in his hands. Moreover, the evidence suggested Austin was too
15
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
16
Brown v. United States, 619 A.2d 1180, 1182 (D.C. 1992).
14
intoxicated to pose a serious danger to appellant, strengthening the government’s
argument that appellant’s employment of lethal force was excessive.17
More important, even assuming the jury would have credited appellant’s
account, his claim of self-defense was precluded as a matter of law because he
deliberately chose to risk the fatal encounter with Austin by arming himself with a
deadly weapon and going to confront him. Appellant does not dispute the
testimony that he ran from the second floor to Butler’s basement apartment,
retrieved a gun there, and then returned upstairs to confront Austin. Appellant
likewise does not deny that he could have avoided the confrontation by remaining
in Butler’s apartment or leaving the building. “A legitimate claim of self-defense
is not available to a defendant who voluntarily – knowingly and unnecessarily –
placed himself in a position where he had reason to believe his presence would
provoke the violence from which he then found it necessary to use deadly force to
save himself.” 18 Still less is such a claim available to a defendant who quit the
17
See Gay v. United States, 12 A.3d 643, 648 (D.C. 2011) (noting that jury
is instructed that “[e]ven where self-defense is justified, a defendant may not use
any greater force than he actually and reasonably believes to be necessary under
the circumstances” (internal punctuation omitted) (citing cases)).
18
Andrews v. United States, 125 A.3d 316, 321 (D.C. 2015).
15
scene of the danger for the sole purpose of arming himself and then “left an
apparently safe haven . . . [to] return to the scene.”19
In short, viewing the proffered evidence in the light most favorable to
appellant, it would not have entitled him to an instruction on self-defense. 20 As the
defense would not have been available to him and could not have resulted in his
acquittal, appellant did not demonstrate Strickland prejudice based on counsel’s
failure to raise it.21
Appellant argues, however, that the evidence he proffered would have
entitled him to an instruction on the doctrine of “imperfect” self-defense that might
have led the jury to find him guilty of voluntary manslaughter instead of second-
19
Brown, 619 A.2d at 1182 (quoting Rowe v. United States, 370 F.2d 240,
241 (D.C. Cir. 1966)); see also Outlaw v. United States, 806 A.2d 1192, 1200
(D.C. 2002) (holding that defendant was not entitled to a self-defense instruction
where he “walked away from a confrontation with [the victim], went to a truck,
retrieved a gun, and returned to shoot [the victim]”).
20
See Brown, 619 A.2d at 1182 (“In determining whether a self-defense
instruction was properly denied, the evidence must be reviewed in the light most
favorable to the defendant.”).
21
See Washington v. United States, 689 A.2d 568, 573 (D.C. 1997) (holding
that where the evidence at trial does not support instruction on a defense, counsel’s
failure to ask for the instruction is not deficient performance, “[n]or can [the
defendant] show he was prejudiced by this failure”).
16
degree murder. The motion judge did not address this argument because appellant
never made it in the proceedings below. Indeed, he did not mention imperfect self-
defense at all in those proceedings. The government argues that appellant thereby
waived the claim. Appellant responds that, by asserting he acted in self-defense,
he implicitly invoked both varieties of self-defense, perfect and imperfect. This
rejoinder misses the mark, however, for Strickland places the burden on appellant
to explain how he was prejudiced, not on the court to intuit the answer to that
question. 22
As this court often has said, “while an appellant is ‘not limited to the precise
arguments made below’ in support of any claim he properly made there,
‘[q]uestions not properly raised and preserved during the proceedings under
examination, and points not asserted with sufficient precision to indicate distinctly
the party’s thesis, will normally be spurned on appeal.’” 23 Even if appellant’s
22
Cf. Johnson v. United States, 960 A.2d 281, 299 n.18 (D.C. 2008)
(rejecting murder defendant’s claim that trial court erred in excluding testimony
about his fearful state of mind that would have been supportive of imperfect self-
defense where “appellant never argued to the court that he sought to introduce the
evidence as part of any claim for mitigation under an imperfect self defense
theory”).
23
Comford v. United States, 947 A.2d 1181, 1186 (D.C. 2008) (quoting Yee
v. Escondido, 503 U.S. 519, 534 (1992), and Miller v. Avirom, 384 F.2d 319, 321-
22 (D.C. Cir. 1967)).
17
imperfect self-defense claim has not irrevocably been waived, appellant’s failure to
preserve it below means the claim is “subject to the strictures of ‘plain error’
review.” 24 The claim does not survive that scrutiny.
Appellant was convicted of murder in the second degree. Murder is a
homicide committed with “malice aforethought,” or malice for short. A killing is
malicious if the perpetrator acts with the specific intent to kill or inflict serious
bodily harm, or in conscious disregard of an extreme risk of death or serious bodily
24
Id. (quoting Thomas v. United States, 914 A.2d 1, 8 (D.C. 2006)). Those
“strictures” are demanding:
Under the established four-part test for plain error, an
appellant must demonstrate not merely that there was an
error, but also that the error was “clear” or “obvious” –
“so egregious and obvious as to make the trial judge and
prosecutor derelict in permitting it, despite the
defendant’s failure to object.” In addition, the appellant
must demonstrate that the error affected his substantial
rights by showing a reasonable probability that it had a
prejudicial effect on the outcome of his trial. Lastly,
even if the appellant succeeds in those demonstrations, he
also must show that the error seriously affected the
fairness, integrity or public reputation of the judicial
proceeding. Our cases frequently “have phrased the test
as ‘manifest injustice,’ or a showing that the error
resulted in a clear miscarriage of justice.’”
Id. at 1189-90 (footnotes omitted).
18
injury, and does so without justification, excuse, or mitigating circumstances.25 If
there are mitigating circumstances, the finder of fact might decide the killing was
not malicious. But mitigating circumstances are not completely exculpating; they
only serve to reduce the degree of the perpetrator’s culpability. “In this
jurisdiction, a homicide constitutes voluntary manslaughter where the perpetrator
kills with a state of mind which, but for the presence of legally recognized
mitigating circumstances, would render the killing murder.”26
We have recognized that “[m]itigating circumstances sufficient to reduce the
homicide from murder to voluntary manslaughter exist when a defendant acted in
so-called ‘imperfect’ self-defense – typically when the defendant honestly believed
she needed to use lethal force to protect herself, but the belief was not objectively
reasonable or the defendant was responsible for starting or triggering the
25
See Comber v. United States, 584 A.2d 26, 38-41 (D.C. 1990) (en banc).
Malice may be implied when the homicide occurs in the course of the intentional
commission of certain felonies. Id. at 39-40.
26
Id. at 42. In other words, “killings classified as voluntary manslaughter
would in fact be second degree murder but for the existence of circumstances that
in some way mitigate malice.” Id. (quoting United States v. Bradford, 344 A.2d
208, 215 (D.C. 1975). The requisite mens rea for murder and voluntary
manslaughter is otherwise identical.
19
violence.”27 The defendant’s good faith belief in the necessity of using deadly
force is the essential “mitigating factor on the malice element of murder” that
justifies reducing the offense to manslaughter.28 Consequently, a defendant has not
necessarily “forfeited his right to any imperfect self-defense claim because he
voluntarily placed himself in a position likely to provoke trouble.” 29 However, that
is so only up to a point. The mitigation rationale is inapplicable if the defendant
had the intention of killing the victim when he went to the fatal encounter, i.e.,
before the perceived need to defend himself from the victim arose. The killing was
still with malice aforethought in that case. We thus agree with the conclusion other
courts have reached, that “a defendant is not entitled to invoke the doctrine of
imperfect self-defense if he or she initiated the confrontation between the victim
and himself or herself with the intent to kill or do great bodily harm, even if, at the
27
Bassil v. United States, 147 A.3d 303, 307 n.7 (D.C. 2016) (citing Swann
v. United States, 648 A.2d 928, 930-33 (D.C. 1994) and Richardson v. United
States, 98 A.3d 178, 187 n.11 (D.C. 2014)). See also Williams v. United States,
858 A.2d 984, 993 n.13 (D.C. 2004); Criminal Jury Instructions for the District of
Columbia, No. 4.202 (5th Ed. 2018).
28
Swann, 648 A.2d at 933.
29
Id. (“[O]ne of the recognized circumstances in which imperfect self-
defense may be asserted is where the defendant plays such a part in bringing on the
difficulty.”)
20
time he or she shot the victim, the defendant honestly and reasonably believed that
his or her life was in danger.” 30
In the present case, this limiting principle disposes of appellant’s argument.
It is undisputed that before any mitigating circumstances arose, appellant went
down to a basement apartment to retrieve a firearm in order to bring it to a
confrontation with Austin. Given that appellant could have avoided the
confrontation altogether, his conduct strongly suggests that he had the intention of
killing Austin well before Austin gave him any reason to fear for his life and use
30
Johnson v. Hofbauer, 159 F. Supp. 2d 582, 604 (E.D. Mich. 2001); see
also People v. Kemp, 508 N.W.2d 184, 187 (Mich. Ct. App. 1993) (“[I]f one takes
life, though in defense of his own life, in a quarrel which he himself has
commenced with the intent to take life or inflict grievous bodily harm, the jeopardy
in which he has been placed by the act of his antagonist constitutes no defense,
whatever, but he is guilty of murder. But if he commenced the quarrel with no
intent to take life or inflict grievous bodily harm, then he is not acquitted of all
responsibility for the affray which arose from his own act, but his offense is
reduced from murder to manslaughter. . . . [A defendant] is not entitled to invoke
the doctrine of imperfect self-defense to mitigate his crime to manslaughter if the
circumstances surrounding the incident indicate that he initiated the confrontation
between himself and the victim with the intent to kill or do great bodily harm.”
(Internal quotation marks and citations omitted.)); Wallace v. United States, 162
U.S. 466, 471 (1896) (“Where a difficulty is intentionally brought on for the
purpose of killing the deceased, the fact of imminent danger to the accused
constitutes no defence; but where the accused embarks in a quarrel with no
felonious intent, or malice, or premeditated purpose of doing bodily harm or
killing, and under reasonable belief of imminent danger he inflicts a fatal wound, it
is not murder.”).
21
lethal force to defend himself. In presenting his ineffective assistance claim,
appellant did nothing to dispel that implication of malice aforethought; he offered
no other explanation for his behavior.
In sum, even assuming the evidence would have permitted a jury to find that
Austin brandished a knife, and that appellant perceived himself at that moment to
be in imminent danger, appellant failed to proffer facts showing that he would have
had a meritorious claim of imperfect self-defense. It certainly was far from
obvious. Appellant therefore did not make the showing of prejudice required by
Strickland (and for a finding of plain error), a reasonable probability that, had he
received the effective assistance of counsel, a jury instructed on imperfect self-
defense would not have found him guilty of murder. Accordingly, we hold that the
motion judge did not plainly err by denying his ineffective assistance claim
without sua sponte entertaining the possibility, a speculative one at best, that
appellant might have been able to raise a defense of imperfect self-defense.
For the foregoing reasons, we affirm the denial of appellant’s motion for
relief from his convictions.