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Smith v. State

Supreme Court of Delaware

May 29, 2018

MICAH J. SMITH, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: March 22, 2018

          Court Below-Superior Court of the State of Delaware Cr. ID No. 1512004476 (N)

          Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.

          ORDER

          Leo E. Strine, Jr. Chief Justice.

         This 29th day of May 2018, upon consideration of the appellant's Supreme Court Rule 26(c) brief, the State's response, and the record below, it appears to the Court that:

         (1) In May 2017, a Superior Court jury found the appellant, Micah J. Smith, guilty of Continuous Sexual Abuse of a Child, Sexual Abuse of a Child by a Person in a Position of Trust, Authority or Supervision in the Second Degree, and three counts of Unlawful Sexual Contact in the First Degree. The jury found Smith not guilty of one count of Unlawful Sexual Contact in the First Degree. The Superior Court sentenced Smith as follows: (i) for Continuous Sexual Abuse of a Child, twenty-five years of Level V incarceration, with credit for 243 days previously served, suspended after six years for decreasing levels of supervision; (ii) for Sexual Abuse of a Child by a Person in a Position of Trust, Authority or Supervision in the Second Degree, eight years of Level V incarceration, suspended after one year for three years of Level III probation; and (iii) for each count of Unlawful Sexual Contact in the First Degree, eight years of Level V incarceration, suspended after one year for three years of Level III probation. This is Smith's direct appeal.

         (2) The evidence at trial showed that Smith, who did contract attorney work in D.C., lived in the basement bedroom of his brother's house for about ten years. Smith often babysat his niece ("the Child") and two nephews. On April 24, 2015, the Child, who was nine years old, and her mother ("the Mother") were searching the Internet for family pictures. After they searched for the Child's name and some pictures of scantily clad women appeared, the Child became upset at the thought that Smith may have posted photographs of her without a shirt. The Child told the Mother that Smith would hold her down, kiss her chest, and touch her private parts.

         (3) After the Child fell asleep, the Mother, who had long been displeased with Smith's presence in the house, confronted Smith. She ordered Smith to leave the house, which he did. The Mother's sons overheard the confrontation. The Mother then called the Division of Family Services to report Smith's behavior.

         (4) On May 4, 2015, a forensic interviewer at the Children's Advocacy Center ("CAC") interviewed the Child. The Child said something bad happened, but refused to talk about it. An ongoing police investigation was closed. The Mother feared that Smith would file a civil lawsuit against her and his brother.

         (5) The Child received counseling. As part of her counseling, the Child was instructed to tell the Mother what happened to her. In October 2015, the Child told the Mother that Smith would ask her if she wanted to play Go Fish, and even if she said no, he would grab her and take her downstairs to his bedroom. The Child said that Smith would hold her down, touch her with his penis, have her touch his penis, and "pee" on her.[1] The Mother contacted the police officer who had previously worked on the case. On November 16, 2015, the Child had a second interview at the CAC. During this interview, the Child described how Smith had touched her. She said he started touching her when she was eight or about to turn eight.

         (6) At trial, the Child testified that Smith would take her to his bedroom and would touch her in places she did not like, including "down there" and her chest.[2]She said sometimes he put her hand on his private and would "pee" on her hand.[3]She would wipe her hand on the carpet or the bedspread. The Child testified that Smith would touch her every few days after she came home from school and before her parents got home. She said this was still happening when she first told the Mother in May 2015. Video recordings of the CAC interviews were played at the trial.

         (7) The younger of the Child's two older brothers testified that he was often in the basement watching television or playing video games when the Child would go into Smith's bedroom to play card games with Smith. Sometimes the bedroom door was closed. He recalled the Child sometimes saying she did not want to go into Smith's bedroom. The Child's oldest brother testified that he noticed the Child spending time with Smith in his bedroom when he was fifteen and the Child was eight.

         (8) After the Child's second CAC interview, the police collected potential evidence from the basement and Smith's bedroom, including a bedspread. Testing of the bedspread revealed DNA profiles, but Smith was excluded as a contributor. No seminal fluid was detected on the carpet. Between Smith moving out and the police collecting evidence from the basement, the family cleaned Smith's room, including the bed linens, the Child's oldest brother had a party in the basement and used Smith's room, and the family did additional clean-up with a shop vacuum and carpet shampoo after a pipe in the basement ceiling leaked.

         (9) A defense expert witness testified about best practices for forensic interviews of children and the risk of poor interview techniques leading to false memories. This witness criticized certain questions in the second CAC interview. The CAC interviewer testified that she followed the interview protocol used at the CAC.

         (10) Smith's mother testified that, in January 2014, the Mother told her that she hated Smith and wanted him out of her house. After Smith's mother suggested the Mother talk to her husband/Smith's brother about that, the Mother said he would not get involved, but she could. According to Smith's mother, the Child would shut the door to Smith's bedroom because her brothers' video games were too loud. Smith's mother also testified that she believed Smith had a good, healthy relationship with the Child.

         (11) Smith testified that he never touched the Child in a sexual manner. He said sometimes the Child would come downstairs to his room and ask to play cards. Sometimes he or the Child would shut the door because his nephews were playing loud video games. He lived in his brother's basement to pay off his student loans and save money.

         (12) On appeal, Smith's trial counsel withdrew and new counsel ("Counsel") entered an appearance. Counsel subsequently filed a brief and a motion to withdraw under Supreme Court Rule 26(c). Counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. Counsel informed Smith of the provisions of Rule 26(c) and provided Smith with a copy of the motion to withdraw and the accompanying brief.

         (13) Counsel also informed Smith of his right to identify any points he wished this Court to consider on appeal. Smith has raised multiple points for this Court's consideration. The State has responded to the Rule 26(c) brief and has moved to affirm the Superior Court's judgment.

         (14) When reviewing a motion to withdraw and an accompanying brief under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; and (ii) conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.[4]

         (15) Smith raises the following issues on appeal: (i) the Superior Court failed to give a required alibi instruction; (ii) the Superior Court failed to cure a witness's improper references to Smith spending time in prison; (iii) the State's failure to produce the Mother's notes of her October 31, 2015 interview of the Child violated Brady v. Maryland;[5] (iv) the Mother had a conflict of interest that precluded her from interviewing the Child because she was a psychologist and disliked Smith; (v) the Mother failed to disclose at trial that she was a licensed therapist who specialized in sexual abuse; (vi) the Superior ...


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