MICAH J. SMITH, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: March 22, 2018
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
Strine, Jr. Chief Justice.
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
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.
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
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
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
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
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.
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.She said sometimes
he put her hand on his private and would "pee" on
her hand.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.
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
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.
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.
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
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.
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.
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.
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
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; (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 ...