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State v. Smith

Superior Court of Delaware

October 15, 2019

STATE OF DELAWARE, Plaintiff,
v.
RAHIM SMITH, a/k/a ALEEM ABDUL-WAHHAB, Defendant.

          Submitted: July 30, 2019

          Stacey Cohee, Esquire, Deputy Attorney General, Department of Justice, Dover, Delaware, Attorney for the State.

          Rahim A. Smith, Sussex Correctional Institution, Georgetown, Delaware, pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED AND MOTION FOR APPOINTMENT OF COUNSEL SHOULD BE DENIED AND MOTION FOR AN EVIDENTIARY HEARING SHOULD BE DENIED

          Lynne M. Parker Commissioner.

         This 15th day of October 2019, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND, FACTS AND PROCEDURAL HISTORY

         1. In May 2007, a Superior Court jury found Defendant Rahim Smith guilty of three counts each of second degree rape and third degree unlawful sexual contact. In July 2007, Smith was sentenced to a total period of seventy-eight years at Level V incarceration, to be suspended after serving thirty-five years, for decreasing levels of probation.

         2. On direct appeal, on August 28, 2008, the Delaware Supreme Court affirmed Smith's conviction and sentence.[1]

         3. The facts, as set forth by the Delaware Supreme Court on Smith's direct appeal, are that in April 2006, Smith, his wife and three children moved in with Lisa Flowers.[2] Smith and Flowers were not related, but Flowers, who had known Smith since he was a teenager, thought of him as a nephew. Flowers' disabled adult son, Ben, also lived with her.[3]

         4. Ben suffers from cerebral palsy. He is confined to his bed and wheelchair. He has a severe speech impediment and is emotionally delayed.[4]

         5. In August 2006, Flowers went to visit her newborn grandson for a week. She could not locate a handicap-accessible van to accommodate Ben, so she left him at home in the care of Smith, as well as her sister, Pat, and her friend, Charlotte, both of whom also lived with her.[5]

         6. Ben, through the aid of an interpreter, testified at trial that while his mother was away Smith sexually assaulted him multiple times. Ben did not immediately tell anyone about the assaults because Smith had threatened to assault him again if he told anyone. Several weeks later, Ben told his mother what happened. Flowers then reported the assaults to the police.[6]

         7. Smith presented an alibi defense at trial. He testified in his own defense and denied the allegations. Smith's mistress also testified at trial and stated that Smith was with her at all times when the assaults were alleged to have occurred.[7]

         8. The jury convicted Smith on all counts.[8]

         9. On September 14, 2015, Smith filed a motion for modification of sentence that was denied by the Superior Court on September 17, 2015.[9]

         SMITH'S RULE 61 MOTION

         10. On July 15, 2019, Smith filed the subject Rule 61 motion. Smith raises three claims all stemming from the 2007 trial. Specifically, Smith claims that:

1) his trial counsel was ineffective for failing to object to the use of an uncertified translator at trial;
2) his trial counsel was ineffective for failing to object to the improper admission of the victim's videotaped Section 3507 statement at trial; and
3) his trial counsel was ineffective for failing to object to, and failing to request a mistrial, for allowing the testimony of an alleged bad act at trial.

         11. Smith also sought the appointment of counsel and requested an evidentiary hearing in connection with his Rule 61 motion.

         12. Smith filed the subject Rule 61 motion in 2019, and it is the Rule 61 in effect at the time of the filing of this motion that is applicable.[10]

         13. Since Smith's motion falls short of the procedural requirements that must be met in order to proceed with the merits of his claims, his motion should be summarily dismissed and the ...


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