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State v. Smith

Superior Court of Delaware

March 6, 2017

State of Delaware
v.
Tiera Smith

          Natalie S. Woloshin, Esquire Woloshin, Lynch & Natalie, P.A.

          Kathryn J. Garrison, Esquire Deputy Attorney General Department of Justice

          MEMORANDUM OPINION- MOTION FOR POSTCONVICTION RELIEF

         Dear Counsel:

         This is my decision on Tiera Smith's ("Smith") Motion for Postconviction Relief. Smith shot and killed Charles Smith (the "Victim") while he was sitting in his car with his girlfriend and two other friends in the parking lot of an apartment complex in Seaford, Delaware. Smith also shot and injured the Victim's girlfriend. Smith then fled the scene in her car. Smith was arrested two days later in Georgia and extradited to Delaware. The Grand Jury indicted Smith on one count of Murder in the First Degree, Assault in the First Degree, and Possession of a Deadly Weapon by a Person Prohibited, two counts of Reckless Endangering in the First Degree, and four counts of Possession of a Firearm During the Commission of a Felony. Smith was represented by an attorney with the Office of the Public Defender ("Trial Counsel").

         Smith pled guilty before me to Murder in the Second Degree, Assault in the First Degree, and two counts of Possession of a Firearm During the Commission of a Felony on August 22, 2008. I ordered a presentence investigation. I sentenced Smith to life in prison on the Murder in the Second Degree count, 25 years in prison on the Assault in the First Degree count, and 25 years in prison for each count of Possession of a Firearm During the Commission of a Felony on December 5, 2008. In total, Smith received a sentence of life plus 75 years in prison.

         Smith filed a pro se appeal with the Delaware Supreme Court on January 6, 2009, but soon thereafter, based upon the advice of Trial Counsel, withdrew her appeal. Trial Counsel then filed a motion for modification of sentence on February 27, 2009. I denied it on March 30, 2009. Smith then filed a pro se Motion for Postconviction Relief consisting of six claims on March 24, 2014. I assigned counsel to represent Smith on April 1, 2014. Smith filed an amended Motion for Postconviction Relief on June 15, 2015. I held evidentiary hearings on June 1, 2, and 13, 2016. Trial Counsel, Beth Cahill, Cintoria Jacobs, Smith, and Josefina McGinley testified at the evidentiary hearings. Beth Cahill is a mitigation specialist retained by Smith for her postconviction efforts. Cintoria Jacobs is Smith's significant other. Josefina McGinley is an investigator in Trial Counsel's office. The parties then submitted additional briefing.

         Discussion

         Smith alleges that Trial Counsel was ineffective in his representation of her. Procedurally, Smith's Motion for Postconviction Relief must comply with Superior Court Criminal Rule 61. Rule 61(i)(1) provides that a "motion for postconviction relief may not be filed more than one year after the judgment of conviction is final..." Smith was sentenced on December 5, 2008. Smith originally filed a pro se appeal but withdrew it based upon the advice of Trial Counsel. Smith's judgment of conviction became final on January 5, 2009. The deadline for filing a postconviction relief motion was January 5, 2010. Smith filed her pro se Motion for Postconviction Relief on March 24, 2014, or slightly over four years after the cut-off date. Therefore, Smith's Motion for Postconviction Relief is barred by Rule 61(i)(1) unless there is an exception to the procedural bar.

         The bar to relief under Rule 61(i)(1) does not apply to a claim that "the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, or fairness of the proceedings leading to the judgment of conviction."[1]There is no allegation that the Court lacked jurisdiction. "Colorable" claims encompass any constitutional violations that, if proven, would arguably require vacating the judgment of conviction or sentence.[2] The "miscarriage of justice" or "fundamental fairness" exception is a narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal.[3] This exception may also apply to a claim that there has been a mistaken waiver of fundamental constitutional rights.[4] Smith alleges that Trial Counsel's performance, or lack thereof, amounts to a colorable claim that there was a miscarriage of justice because, but for Trial Counsel's errors, she would have 1) not pled guilty and gone to trial where her self-defense claim would have had a strong likelihood of success, and/or 2) pled guilty to manslaughter and gotten a shorter sentence. Smith has alleged enough facts, if true, to make procedural dismissal inappropriate under Rule 61(i)(1).

         Ineffective Assistance of Counsel Allegations

         Smith's Amended Motion for Postconviction Relief alleges that Trial Counsel was ineffective because he failed to 1) investigate her self-defense claim, 2) investigate and present mitigating evidence at her sentencing, 3) file an appeal of her sentence, 4) effectively present her motion for modification of sentence, and 5) promised her that she would only receive a 23-year sentence. Smith's pro se Motion for Postconviction Relief alleges that Trial Counsel 1) coerced her into accepting the plea agreement, 2) failed to argue distress so that she would have only been charged with Manslaughter, 3) allowed her to plead guilty to Murder in the Second Degree and Assault in the First Degree and two related counts of Possession of a Firearm During the Commission of a Felony when her conduct did not fall within those offenses, 4) failed to raise double jeopardy and merger, 5) should have filed an appeal of her sentence instead of seeking a modification of it, and 6) should have allowed her to proceed with her pro se appeal so that she could have raised claims of ineffective assistance of counsel.

         The Applicable Law - Generally

         The United States Supreme Court has established the proper inquiry to be made by courts when deciding a motion for postconviction relief.[5] In order to prevail on a claim of ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, the defendant must show: "1) counsel's representation fell below an objective standard of reasonableness; and 2) counsel's actions were so prejudicial that, but for counsel's error[s], the defendant would not have pled guilty and would have insisted on going to trial."[6] Further, a defendant "must make and substantiate concrete allegations of actual prejudice or risk summary dismissal."[7] It is also necessary that the defendant "rebut a 'strong presumption' that trial counsel's representation fell within the 'wide range of reasonable professional assistance, ' and this Court must eliminate from its consideration the 'distorting effects of hindsight when viewing that representation.'"[8] There is no procedural bar to claims of ineffective assistance of counsel.[9]

         The Applicable Law on Plea Negotiations

         The United States Supreme Court has held that the Sixth Amendment entitles defendants to effective assistance of competent counsel during plea negotiations.[10] The two-part Strickland[11] test applies to challenges to guilty pleas based on ineffective assistance of counsel.[12] As with challenges to trial performance, the performance prong of Strickland requires a defendant to show that "counsel's representation fell below an objective standard of reasonableness."[13] In the context of pleas, however, the prejudice prong requires a defendant to "show the outcome of the plea process would have been different with competent advice."[14] "In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial."[15]

         The Supreme Court has elaborated on what is required to make such a showing in different contexts, noting:

Where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where 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 likely would have succeeded at trial.[16]

         Smith claims that Trial Counsel was ineffective for failing to adequately investigate her self-defense claim.[17] She asserts that because Trial Counsel was unprepared to try her case, she was forced to take whatever plea the State offered. The relevant questions to ask, however, are:

1) whether Trial Counsel's recommendation that Smith plead guilty to Murder in the Second Degree was objectively reasonable; and
2) whether further investigation into Smith's self-defense claim would have led Trial Counsel to change his recommendation as to the plea.

         The answer to both questions depends upon whether Smith's self-defense claim would likely have succeeded at trial.

         I have concluded that Smith's self-defense claim would not have likely succeeded at trial. Trial Counsel did a good job when he persuaded the Prosecutor to offer Smith a plea to Murder in the Second Degree. If Smith had gone to trial and lost, which was most likely, she would have gotten a mandatory life sentence. Through Trial Counsel's efforts, Smith only faced a mandatory sentence of 23 years.

         Argument I

         Trial Counsel Failed to Investigate Smith's Self-Defense Claim

         Smith alleges that Trial Counsel failed to investigate her self-defense claim. Specifically, Smith alleges that Trial Counsel did not 1) interview witnesses at the scene of the shooting who would support her self-defense claim, 2) interview witnesses who could provide information about Smith's state of mind at the time of the shooting because of various threats against her life, 3) use psychological information to show Smith's state of mind at the time of the shooting, and 4) interview witnesses who Smith had told that she had shot the Victim but that it was in self-defense.

         Prejudice

         Smith argues that if only Trial Counsel had done his job then:

1)her self-defense claim would have had a strong likelihood of success at trial;
2) the State would have been inclined to let her plead guilty to manslaughter; and
3)she would have gotten a shorter sentence.

         Self-Defense

         11 Del. C. §464(a) reads:

The use of force upon or toward another person is justifiable when the defendant believes that such force is immediately necessary forthe purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion.

         11 Del. C. §464(c) reads:

The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.

         11 Del. C. §464(e) reads:

The use of deadly force is not justifiable under this section if:
(1)The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter; or
(2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform...

         In order to prevail on a claim of self-defense, the defendant must show that "force was necessary and that [her] response was an immediate reaction to a present necessity."[18] A reasonable belief is not required; rather, "[a]ll that is relevant to the actor's guilt is that [s]he did honestly believe it necessary to use force in [her] own defense."[19] It is the law that one who is assaulted may take reasonable steps, including the use of reasonable force, to repel or resist the assault."[20] "In repelling or resisting an assault, no more force may be used than is necessary for the purpose, and if a person is assailed and uses in [her] defense more force than is necessary for that purpose, [s]he becomes the aggressor."[21]

         Under 11 Del. C. §303, before a defense may be considered by the jury, the court must first be satisfied that the defendant has presented some credible evidence supporting it. "Evidence supports a defense when it tends to establish the existence of each element of the defense."[22]

         Delaware applies a subjective test to determine whether the defendant believed the use of force was necessary for protection.[23] But, "the 'reasonable man' test is retained as a factor to be considered with all the others in the determination of the issue of justification.'"[24]

         Typically, a defendant satisfies the credible evidence threshold "if the defendant's rendition of events, if taken as true, would entitle [her] to the [self-defense] instruction.'"[25] Credible is defined as "capable of being believed.'"[26]

         As the Delaware Supreme Court noted in 1944 (and as is provided in section 464), deadly force cannot be justified when a defendant can safely retreat:

Ordinarily, one who is attacked, even if the attack is of such character as to create in his mind a reasonable belief[27] that he is in danger of death or great bodily harm, is under the duty to retreat, if he can safely do so, or to use such other reasonable means as are within his power to avoid killing his assailant; for no one may take the life of another, even in the exercise of the right of self-defense, unless there are no other reasonably available means of escape from death or great bodily harm.[28]

         Background

         The events that gave rise to Smith shooting the Victim got started with gunfire at a different apartment complex the night before.

         Carvel Gardens

         The Victim was hanging out in his car in a parking lot at Carvel Gardens, an apartment complex in Laurel, Delaware. There were a number of other people doing the same thing there. Smith was hanging out with several friends in a parking lot at Hollybrook, an apartment complex also in Laurel, Delaware. They were drinking and smoking weed. Smith drove to the parking lot where everyone was hanging out at Carvel Gardens. Smith got out of her car, screamed "I ain't never scared" and "You don't want it with me, " and then shot a gun into the air. Smith then got back in her car and drove away. Smith spent the rest of the night drinking and using drugs.

         Seaford Meadows

         The next day Smith drove over to Seaford Meadows to hang out. The Victim, his girlfriend and two of their friends drove over there to drop off the two friends. As Smith was driving out of Seaford Meadows, the Victim was driving into Seaford Meadows. Smith and the Victim saw each other and stopped in the parking lot with their cars facing in opposite directions about five feet apart. Smith and the Victim got into a verbal altercation over the shooting the previous night at Carvel Gardens. Smith got her gun from under her car seat and walked over to the Victim's car and stated "You want me to shoot you?" Smith then stuck her gun through the Victim's open car window and shot the Victim three times while he was sitting in his car. Smith also shot and injured the Victim's girlfriend. Smith then got back in her car and drove out of the parking lot, nearly running over a worker in the process. The Victim died at the scene. Smith was later captured in Georgia.

         Smith's Version[29]

         Carvel Gardens Cintoria Jacobs and I had rented a room for a week at the Relax Inn in Laurel, Delaware. Santia Jacobs, Cintoria's sister, lived in Carvel Gardens. Cintoria and I were back and forth between the Relax Inn and Carvel Gardens.

         The night of July 26, Cintoria Jacobs, Santia Jacobs, Ambria Smith and I were sitting in my car across from Carvel Gardens in the parking lot of Hollybrook Apartments. We were just sitting in my car drinking alcohol and smoking weed. I got a cell phone call from my sister Tremell's boyfriend, Devon. Devon said that some of our friends had just been in a fight and had just arrived at my sister's house. Devon wanted us to come over, so I drove over to Carvel Gardens, and we were all outside in the parking lot socializing. By the time I got over there they were all drinking alcohol and playing music. There were two cars of people and the Victim was in the group with his car. We were all just hanging out there in the parking lot for about fifteen minutes. Finally, Devon came out of my sister's apartment and I asked him what had happened at the fight. I was sitting in my car, which was a few feet from the Victim's car and the rest of the people. I got out of my car and walked over to where they were. I smoked weed with them and talked awhile. I guess we were all getting pretty loud at that time. A friend of mine, Gary, got my gun out from under the seat of my car and fired one shot in the air. People shooting in the air is a pretty regular thing around there. After Gary fired the shot everyone left the area because they thought the police may be called. The Victim's group went back to Seaford and I drove with Cintoria, Santia and Ambria back to the Hollybrook Apartments parking lot. We stayed there until 12:00 a.m. and then Cintoria and I went back to the Relax Inn where we stayed for the rest of the night. Between Cintoria, Santia and me, we drank a pint of liquor and smoked a couple marijuana blunts that night. I also had taken one Ecstasy pill that night.

         Seaford Meadows

         The next morning, July 27, I got up around 10:00 a.m. Cintoria was still sleeping when I left the Relax Inn. I then drove to the Seaford Roses, where I purchased some clothes. I left Roses and drove to Seaford Meadows. I went there to socialize with others that morning and hang out there. This is what I usually did was hang out there, socialize, and smoke weed with others. I never did know where the Victim lived. It was early and there was no one out around Seaford Meadows yet.

         As I was driving out the other end of the complex, the Victim was driving in. The Victim pulled his car in front of mine, blocking my exit. I stopped and then he pulled up beside me. There was about five feet between our vehicles as we were parked side by side in opposite directions. I at first thought the Victim either wanted to buy crack or sell me some marijuana. But the Victim said, "You pulled a gun out on me last night." I said, "What are you talking about?" The Victim seemed very upset at this point. I reached under my seat, got my gun and sat the gun on my lap. I then said, "What makes you think I would pull a gun out on you?" The Victim kept cussing and calling me a bitch. The Victim had gotten out of his car and was standing just outside the driver's door at this point. He then sat back inside the car, leaving his door open. I then saw his foot go up in the air and he was leaning toward the passenger side of his car. I automatically thought he was going after a gun. I jumped out of my car, standing just outside my door and started shooting at him. I think I fired two or three shots. I had the gun pointed at the Victim, but I didn't know if I had hit him or not.

         I then got back in my car and drove down the road by the Flagship, where I left the car and gun. I called Santia on my cell phone to see if she could come get me. I then hid in a bunch of trees until they came. I had Ambria Smith, Santia Jacobs and Cintoria Jacobs take me to Salisbury, Maryland. They did and dropped me off in a drug area and I paid a crack head to stay at his house for the night. At 2:00 a.m. the next morning I called a cab to take me to the bus station in Salisbury. I then got the bus to Georgia.

         I had never seen the Victim with a gun before and no one knew I had a gun either. It is not something you showcase, but in the environment I lived it is thought that others have guns. My plans were not to go out and kill somebody, especially someone that I hung out daily with. This was not intentional, premeditated, or out of any kind of malice. Basically, I thought the Victim was reaching for a gun and I shot him to protect myself.

         The Murder Weapon

         I purchased the .357 handgun earlier that month, in July, from a guy by the nickname of "Face." I paid him over a hundred dollars for the gun and he also gave me a box of bullets with the gun. I never loaded the gun or shot the gun before that day.[30] I always kept the gun under the seat of my car. Cintoria's baby's father had a gun and he was always threatening me because of the lesbian relationship Cintoria and I had. I also purchased the gun for my protection while selling drugs. Other drug sellers were being robbed of their drugs, so I wanted the gun for protection. I kept the extra ammunition for the gun at Santia's house.

         Smith's Relationship with the Victim

         I was supporting myself by selling crack cocaine. I would buy the crack and re-sell it. I was selling about an ounce a day. The Victim was selling marijuana and he was purchasing his crack from me. I have known the Victim since the beginning of 2007. I knew him through a mutual friend. I considered the Victim to be a friend and I had contact with him almost every day. The Victim and I had never had an argument before and as far as I knew there was no problems in our relationship.

         I knew Jalissa Cannon since we were four or five years old and we were friends. I didn't know Ardelia Thomas-Parker. I have known Angela Blackwell for a couple of years now. I had nothing against any of them. It was just a chance meeting with the Victim that morning.

         The Witnesses at Carvel Gardens

         Ardelia Thomas-Parker, Keosha Gibbs, Darnell Albury, Gerald Harris, Lamar Correa and Chantel Correa all told the police they were at the Carvel Gardens Apartment Complex and saw Smith shoot a gun in the air. Chantel Correa and Darnell Albury told the police that Smith said "I ain't never scared." Gerald Harris told the police that Smith was screaming "You don't want it with me." Ambria Smith told the police that she was sitting in her car at Carvel Gardens and saw Smith being approached by two vehicles full of people. Ambria Smith added that Smith pulled out a gun and fired it into the air, causing the vehicles to stop. The other six witnesses and Smith herself do not mention the vehicles approaching Smith.

         The Shooting Witnesses

         The Victim's Car

         There were four people in the Victim's car at the time of the shooting: the Victim, Jalissa Cannon, Angel Blackwell and Ardelia Thomas-Parker.

         Jalissa Cannon

         Jalissa Cannon was sitting next to the Victim in his car. Jalissa Cannon gives the most detailed description of what happened. Angel Blackwell, the Victim, Ardelia Thomas-Parker, and Jalissa Cannon left the Quality Inn[31] in the Victim's vehicle. The Victim was driving. Jalissa Cannon was in the front passenger seat. Blackwell and Thomas-Parker were in the back seat. They headed towards Seaford Meadows to pick up Darnell Albury and drop off Blackwell and Parker. They had turned into the first entrance to Seaford Meadows (closest entrance to Norman Eskridge Highway). The Victim saw Smith and stopped the car and Smith did the same. The Victim said "there is the bitch that shot at us last night." Cannon asked the Victim why he was stopping the vehicle and he informed her that Smith had pulled a gun out on him the night before. The Victim put the car in park to talk with Smith. The Victim then said to Smith "when you pulled out the gun recently was it meant for me because I don't play that gun stuff." Smith replied to the Victim that "if I pulled it out on you I would have did it." Smith reached underneath her seat and obtained a black handgun and exited her vehicle towards the Victim. Smith pointed the gun at the Victim and asked him "You want me to shoot you?" Both Smith and the Victim had their car doors open while arguing as the Victim attempted to exit the vehicle Smith shot the Victim several times. Jalissa Cannon also said that the Victim tried to get into the back of the vehicle and that Smith kept shooting.

         Angel Blackwell

         Angel Blackwell was asleep in the back of the Victim's car at the time of the shooting. The shots woke Angel Blackwell up. Angel Blackwell saw Smith get into a blue station wagon and drive away "like nothing was going on."

         Ardelia Thomas-Parker

         Ardelia Thomas-Parker was sitting behind the Victim listening to music with her eyes shut. Ardelia Thomas-Parker heard the Victim talking. Ardelia Thomas-Parker heard gunshots, opened her eyes, and saw Smith with her arm in the window shooting. The Victim had his hands on the wheel, his foot on the gas and was trying to leave. The Victim was leaning with his head between his seat and Blackwell's seat. Ardelia Thomas-Parker told Blackwell to get the Victim's foot off the gas pedal, but she could not do so. Ardelia Thomas-Parker took the keys out. Ardelia Thomas-Parker got out of the car and saw that the Victim had been shot in the left side of his back.

         The Witnesses in the Parking Lot at Seaford Meadows

         There were eight other witnesses to the shooting in the parking lot at Seaford Meadows.

         Michael Tuxwood

         Michael Tuxwood was in the doorway of Unit 79 in Seaford Meadows. Michael Tuxwood saw a large maroon car and a station wagon parked in opposite directions. Michael Tuxwood heard yelling and the three "pops." Michael Tuxwood saw a passenger run out of the maroon car screaming. The throttle on the maroon car was wide open. The station wagon sped away and almost hit a guy at the job site. Michael Tuckwood ran up to the maroon car. The guy looked dead and he was "stuck holding the throttle."

         Gerald Finkbiner

         Gerald Finkbiner was unloading a delivery truck when he heard a woman shouting. Gerald Finkbiner stepped around the truck and saw a black girl get out of her car and shoot a guy through the car window three times. The black girl then got back inside her car and left, almost running over Gerald Finkbiner.

         Aaron Conner

         Aaron Conner heard three shots coming from the front section of Seaford Meadows. Aaron Conner walked to the front and saw the "suspect" laying across the driver's seat of a maroon four door sedan.

         Samuel Wilson

         Samuel Wilson heard three shots. Samuel Wilson ran towards a maroon four door sedan and saw a black male slumped over in the driver's seat. Samuel Wilson heard a car "peel out of the development."

         Zackery Nellams Zackery

         Nellams was standing in back of a work truck when he heard a male and female arguing. The female got out of her car and shot at the male three times. The female got back into her vehicle and sped off.

         Richard Laberge, Jr.

         Richard Laberge, Jr., saw a black male laying down in his car after hearing three shots.

         Patrick Gill

         Patrick Gill saw an African American male and female have an altercation with each other. The female was the aggressor in the argument. The female stepped out of her car and fired three shots at the male driver of the other car. The female then got back in her car and drove off.

         Jason Ribolla

         Jason Ribolla heard an argument between a male and female. Jason Ribolla heard three shots and "saw a lady take off very quickly." Jason Ribolla saw the male that got shot release his muscles and then fall over in the car.

         Smith's Argument Regarding the Shooting Witnesses

         Trial Counsel did review the statements that the Shooting Witnesses gave to the police. Smith has not offered any additional information from the Shooting Witnesses. Thus, the only information for me to consider is what Trial Counsel considered.

         The Shooting Witnesses Do Not Support Smith's Self-Defense Claim

         The Shooting Witnesses do not support Smith's self-defense claim. When you boil it all down the evidence shows that 1) the Victim and Smith got into a verbal altercation where one of the Shooting Witnesses said that Smith was the aggressor, 2) Smith got her gun from under the seat of her car, 3) Smith then got out of her car and walked over to the Victim's car and pointed her gun at the Victim and stated "You want me to shoot you?", 4) Smith then stuck her gun through the Victim's open car window and shot the unarmed Victim three times while he had his foot mashed on his car's accelerator trying to get away from her, and 5) Smith then got back in her car and fled so quickly that she nearly ran over a man unloading a truck near the parking lot's exit.

         The Victim Had No Gun

         Smith said she thought the Victim was reaching for a gun. None of the Shooting Witnesses saw the Victim reach for a gun. Smith never said that the Victim actually had a gun and none of the Shooting Witnesses saw the Victim with a gun. The police did not find a gun in the Victim's car. Quite simply, Smith shot an unarmed man.

         The Victim Did Not Threaten Smith with Harm

         None of the Shooting Witnesses said that the Victim threatened Smith with harm. Smith herself does not say that the Victim threatened her with harm.

         Smith's Car was not Blocked In

         Smith said that her car was blocked in by the Victim's car. That was not the case. No Shooting Witness ever said that was the case. The video clearly shows that Smith's car was not blocked in by the Victim's car. Smith could have gone either forwards or backwards if she felt threatened by the Victim. Smith did neither. Instead, Smith got out of her car and walked over to the Victim's car and shot him three times. Smith then drove her car out of the parking lot without any trouble. This alone defeats Smith's self-defense claim because she could have safely left the scene without shooting the Victim.

         Smith's Tattoo and Screams

         Smith had "Thug Angel" tattooed on her body. At the shooting at Carvel Gardens, witnesses heard Smith scream "I ain't never scared" and "You don't want it with me." This is the trifecta of bad things. It is going to be hard for a person who fancies herself as "Thug Angel" and who screams "I ain't never scared" and "You don't want it with me" and then shoots a gun in the air amidst a crowd of people who, according to all of the witnesses except Smith's sister, were not threatening her in any way one night to argue the next day that she was acting in self-defense when she got out of her car and walked over to an unarmed man sitting in his car and shot him three times.[32]

         Smith Shot the Victim in the Back

         Smith shot the Victim three times. One of the shots was in the Victim's back. Jalissa Cannon, the Victim's girlfriend, told the police that the Victim was trying to get into the backseat of his car while Smith was shooting. This would explain how the Victim got shot in the back. It also shows that the Victim was trying to get away from Smith, not get to her. It is hard to argue self-defense when you have shot your alleged aggressor in the back.

         The Victim was Trying to Get Away From Smith

         A number of the Shooting Witnesses described the Victim's car as revving. Some of the other Shooting Witnesses described the Victim as having his foot on the accelerator while the shooting was taking place and afterwards. It is obvious that the Victim was trying to get away from Smith. Unfortunately, the Victim, in the heat of the moment, forgot to put his car in gear.

         Smith Reached Through the Victim's Car Window and Shot Him

         A number of the Shooting Witnesses told the police that Smith got out of her car and walked over to the Victim's car and stuck her gun through his open window and shot the Victim. This shows that Smith was the aggressor and is devastating to her self-defense claim. It also shows that the Victim was not the aggressor.

         Smith Shot a Friend

         Smith and the Victim were friends who never had any problems with each other and saw each other almost daily. Smith never knew the Victim to have a gun and certainly had no cause to fear him. The Victim was a young, skinny man who bought drugs from Smith. This does not support Smith's self-defense claim.

         Video

         The video of the shooting is devastating to Smith's self-defense claim. The video shows the Victim sitting in his car and Smith standing outside the door of the Victim's car. The video further shows Smith then getting back in her car and driving away with nothing blocking her flight.

         Flight

         Smith fled after shooting the Victim. Indeed, Smith fled so quickly that she nearly ran over a worker unloading a truck in the parking lot. Smith then boarded a bus and fled the State. Smith got as far as Georgia before she was caught. Smith places great emphasis on her subjective state of mind, stating that she thought the Victim was going for a gun. Unfortunately for Smith her flight is an objective manifestation of her state of mind. In other words, Smith's flight was evidence of her consciousness of guilt. Had the case gone to trial, Smith would have been confronted with a jury instruction stating that her flight was consciousness of her guilt in shooting the Victim. It is much harder to argue self-defense when you run. Smith, if she really believed she was acting in self-defense, should have stayed at the scene and told the police that she shot the Victim to protect herself from him. Smith's own actions seriously undermined her self-defense claim. The old adage is that actions speak louder than words. Smith's actions suggest that she thought she was guilty.

         In summary, the Shooting Witnesses do not support Smith's self-defense claim. Indeed, the Shooting Witnesses seriously undermine it.

         The Non-Shooting Witnesses

         Smith gave Trial Counsel a list of witnesses that she wanted him to interview because they would have allegedly supported her self-defense claim by providing information about Smith's state of mind at the time of the shooting.[33] Trial Counsel did not interview them. These witnesses would have told Trial Counsel the following:

1. Smith told a number of people that she was acting in self-defense. 2. Smith carried a gun because some men had approached her "for a forceful relationship."
3. Smith was afraid of Tehron West. Tehron West and Cintoria Jacobs have a child together. Cintoria Jacobs and Smith were in a romantic relationship. Tehron West did not like that and kept Smith in fear because of it.
4. Smith was under constant pressure and harassment about her ...

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