Submitted: July 30, 2019
Cohee, Esquire, Deputy Attorney General, Department of
Justice, Dover, Delaware, Attorney for the State.
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
M. Parker Commissioner.
15th day of October 2019, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
FACTS AND PROCEDURAL HISTORY
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.
direct appeal, on August 28, 2008, the Delaware Supreme Court
affirmed Smith's conviction and sentence.
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. 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.
suffers from cerebral palsy. He is confined to his bed and
wheelchair. He has a severe speech impediment and is
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.
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
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
jury convicted Smith on all counts.
September 14, 2015, Smith filed a motion for modification of
sentence that was denied by the Superior Court on September
RULE 61 MOTION
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.
Smith also sought the appointment of counsel and requested an
evidentiary hearing in connection with his Rule 61 motion.
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.
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 ...