Smith v. US

Decision Date27 November 1996
Docket Number94-CO-1672.,94-CO-1133,No. 93-CF-1359,93-CF-1359
Citation686 A.2d 537
PartiesKevin SMITH, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Jody Goodman, appointed by the court, Washington, DC, for appellant.

E. Vaughn Dunnigan, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Joan Draper, were on the brief, for appellee.

Before WAGNER, Chief Judge, and TERRY, Associate Judge, and BELSON, Senior Judge.

WAGNER, Chief Judge:

Appellant, Kevin Smith, was indicted for second-degree murder while armed (D.C.Code §§ 22-2403, -3202 (1996)). Following a jury trial, Smith was convicted of voluntary manslaughter while armed, the lesser-included offense of the offense charged in the indictment. The trial court (Judge Peter Wolf) sentenced Smith to a term of incarceration of fourteen years to life, and Smith noted an appeal. He filed post-trial motions to vacate conviction and sentence pursuant to D.C.Code § 23-110 (1996), for investigator fees, and for the appointment of a psychological expert. The trial court (Judge Wolf) denied the motions without a hearing on July 27, 1994, and Smith noted a timely appeal. On August 10, 1994, Smith filed a motion for reconsideration of the order denying his motion to vacate sentence. The court (Judge Geoffrey Alprin)1 denied the motion, and Smith appealed. In his direct appeal, Smith argues for reversal on the grounds that the trial court abused its discretion in limiting his testimony about his prior contacts with the decedent and committed plain error in responding to a jury note on the issue of self-defense and in failing to give an instruction on involuntary manslaughter. He also contends that the combination of trial errors deprived him of due process. In his appeals from the denial of his post-trial motions, Smith contends that he was denied effective assistance of counsel in that counsel: (1) misinformed him of the applicable penalties which resulted in his rejection of a plea offer;2 (2) failed to request a forensic examination by a psychologist; (3) failed to investigate the decedent's prior violent conduct; (4) failed to request instructions for involuntary manslaughter and to explain the "castle doctrine";3 and (5) failed to prepare for and allocute at his sentencing. Smith also argues that the trial court erred in denying his post-trial motions for appointment of a psychologist and an investigator. We affirm.

I.

On January 23, 1993, Smith killed Edward Atkins in Smith's apartment on Macomb Street, Northwest, in the District. At about 12:45 a.m. that morning, Kathy Fuller, Smith's neighbor on the floor above his apartment, was awakened by sounds from Smith's apartment. She heard a man crying, "Don't do this to me, man," and then "Help me." Fuller called the police and reported the disturbance. Smith's next door neighbor, Carmencita Vicncio, testified that at about that same time, she heard against the wall in Smith's apartment, sounds like people "pushing each other in the wall," and then a man's voice crying out, "Stop it. Stop it. I'm sorry, Kevin. I'm sorry. Help. Help." Vicncio knew that it was not Smith's voice that she heard. Vicncio also called the police.

About three minutes later, Sergeant Michael Vincent and Officer Florena Osborne arrived at the apartment and knocked at Smith's door. Smith asked who was there, and one of the officers responded, "police." Smith asked them to wait a minute because he had no clothes on. About a minute later, Smith opened the door and told the officers that he was busy. According to the officers, Smith had a blanket wrapped around his shoulders and blood on his torso. They also observed blood splattered and smeared all over the walls and floor of the apartment. They found Atkins in the bathroom covered with blood. Atkins had puncture wounds on his face and head, and his left eye was hanging out of its socket. Sergeant Vincent asked Atkins who did this to him, to which Atkins replied, "Kevin ... Dreadlocks." The sergeant repeated the question, and Atkins repeated the answer. The officer asked Atkins if he knew Kevin and whether he was in the apartment. Atkins responded "yes" to both questions.

The sergeant asked Smith his name to which Smith responded, "Kevin Smith." One of the officers asked him what happened, and Smith replied calmly that he "stabbed Atkins with the scissors in self-defense." Smith also claimed that Atkins had punched him in the mouth. Sergeant Vincent testified that he looked for injuries to Smith's mouth, but he saw no blood, bruises or lacerations.4 Officer Osborne, who administered first aid to Atkins, asked him why this had happened, and Atkins responded that he did not know. Atkins grabbed the officer's pant leg and pleaded, "Please don't let me die." The paramedics arrived, but it was too late to revive Atkins. The police found in the apartment scissors and a screwdriver or awl, the blade of which was covered with blood.

At the police station, Smith told Detective Rita McCoy that his face was swollen. She noticed superficial scratch marks on Smith's cheek and forearm, and she took Smith's photograph. Smith gave the police a signed written statement in which he described the events surrounding Atkins' death as follows:

This is a guy that I had met just recently. He knocked on my door early this evening, I don't know what time. He came in briefly. He said that he would come back. He came back and brought some wild Irish Rose with him. He seemed to be drunk or high on something. The bottle was not full, it was almost empty. He came in and I was on the couch and he was at my little table. He just started disrespecting me in my own apartment. I told him he had to go. Things got loud and we started to fight. He picked up the scissors, I wrestled them from him and I just swung at him. In the thick of things I wanted to hurt him because he wanted to hurt me. At some point I lost it. I don't know what else.

Detective Mary Lanauze, who took the statement, asked Smith whether he recalled striking Atkins with the scissors that night, and he responded, "yes, yes, I recall."

Dr. Marie-Lydie Pierre-Louis, Deputy Medical Examiner, testified that she and other personnel counted over seventy wounds to Atkins' head before they stopped counting. There were also stab wounds on the left side of the decedent's neck and on his back.5 Most of the wounds were paired. Dr. Pierre-Louis testified that the cutting wounds around Atkins' eyelids would have hindered his ability to defend himself due to the extensive blood flow. She also testified that there were paired wounds to the back and palm of Atkins' hands and wrists which were too numerous to count.

Smith's theory of the case was that he was not a violent person, but killed Atkins, a drug dealer who was pressing him for money he owed, in self-defense. A co-worker and close friend, Gail Maynard, testified that during the week of January 23, 1993, Smith had borrowed approximately $20-$30 and stopped by her office on the Friday before Atkins' death to repay the debt. At that time, they planned for Smith to return for Maynard after she finished her shift, but Smith never came back. Maynard testified that she was aware of Smith's drug problem.

Sherry Edmonds, who had known Smith since college, described Smith as soft-spoken and easygoing. She testified that she had seen Smith angry, but that he never became violent. She testified that she knew that Smith had a drug problem, and for a brief period, she managed his money for him. Jesse Frierson, Smith's fraternity brother and college roommate for two and one-half to three years, also testified that he had never seen Smith angry, but that Smith was a person who tried to remain cool.

Lorraine Hurd testified that she met Smith in October 1992 and visited Smith's apartment approximately five times between October and January 1993. She said that during her last visit, she heard a loud banging at Smith's door and that Smith became angry and did not answer it. A few minutes later, someone slid a note under the door, which read, "Call me." Thereafter, the telephone rang twice, but Smith refused to answer it. Hurd testified that she met Atkins one evening at Smith's apartment and that he left after Smith introduced them.

Smith testified that he grew up in foster homes in New Jersey and graduated from college and that he was employed as a data quality analyst in January 1993. He testified that he met Atkins in late 1991 or early 1992 through a maintenance worker in his apartment building who introduced Atkins as a source of drugs. Smith said that he and Atkins had used drugs in his apartment approximately five times and that he sometimes purchased drugs from Atkins on credit. He testified that he and Atkins had numerous arguments about payments for the drugs. Smith described an argument which they had during a telephone conversation in which Smith detected that Atkins was very angry. Smith also testified that Atkins had stopped by his apartment without being invited and surprised him outside of the building. Smith said that the incident made him angry and fearful.

Smith testified that on the night of Atkins' death, Atkins showed up at his apartment unannounced between 8:00 p.m. and 9:00 p.m. Without opening the door, Smith told Atkins that he was busy. Atkins returned to the apartment about an hour later and walked in when he found that the door was open. Smith testified that he was lapsing in and out of sleep at the time, but he agreed to allow Atkins to use his telephone. Smith said he later became aware of movements in the apartment, and realized that Atkins was still there at his table.

Smith testified that he asked Atkins to leave, but he refused. An argument ensued, which escalated into pushing and fighting. According to Smith, Atkins grabbed a pair of scissors, and he tried to...

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