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State v. Smith

Superior Court of Delaware

November 20, 2019

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

          Submitted: October 25, 2019

         Upon 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 ADOPTED

          ORDER

          Honorable Mary M. Johnston Judge.

         This 20th day of November 2019, the Court has considered Defendant's Objection to the Commissioner's Report and Recommendation, Commissioner's Report and Recommendation, Defendant's Motions for Postconviction Relief, Appointment of Counsel, and an Evidentiary Hearing, and the relevant proceedings below.

         In May 2007, a Superior Court jury found Defendant Raheem Smith, a/k/a Aleem Abdul-Wahhab guilty of three counts of second degree rape and third degree unlawful sexual contact. In July 2007, this Court sentenced Defendant to seventy-eight years at Level V incarceration, to be suspended after serving thirty-five years, for decreasing levels of probation. Defendant appealed to the Delaware Supreme Court. The Delaware Supreme Court affirmed Defendant's conviction and sentence on August 28, 2008.

         On July 15, 2019, Defendant filed pro se Motions for Postconviction Relief, Appointment of Counsel, and an Evidentiary Hearing. Defendant's motions were referred to a Superior Court Commissioner in accordance with 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed findings of fact and conclusions of law. The Commissioner issued the Report and Recommendation on October 15, 2019. The Commissioner recommended that Defendant's Motion for Postconviction Relief be summarily dismissed, and Defendant's Motions for Appointment of Counsel and an Evidentiary Hearing be denied. On October 25, 2019, Defendant filed an Objection to the Commissioner's Report.

         Postconviction Relief

         Defendant raises three ineffective assistance of counsel claims arising from his 2007 trial. Defendant alleges that defense counsel was ineffective for failing to object to: (1) use of an uncertified translator at trial; (2) improper admission of a recorded interview aided by an uncertified translator; and (3) testimony of an alleged bad act at trial.

         Merits

         It is noted that, regardless of procedural bars, Defendant's ineffective assistance claims are meritless. In order to prevail on an ineffective assistance of counsel claim, a defendant must show that his counsel's representation fell below an objective standard of reasonableness and that the deficiencies in counsel's representation caused the defendant actual prejudice.[1] Mere allegations of ineffectiveness will not suffice. A defendant must make and substantiate concrete allegations of actual prejudice.[2] Great weight and deference are given to tactical decisions by the trial attorney and counsel cannot be deemed ineffective for failing to pursue motions that lack merit.[3]

         First, Defendant raises claims regarding the use of an interpreter for the victim. Defendant points to two instances where an interpreter aided the victim: (1) during trial; and (2) during the victim's Section 3507 statement. The Defendant argues that the interpreter for the trial was not certified, and that both interpreters had a personal relationship to the victim.

         In this case, the victim spoke English. The victim suffers from cerebral palsy. The victim has a severe speech impediment caused by his cerebral palsy. There was, and is, no court-certified interpreter who could "translate" the victim's speech impediment. Both at trial and during the recorded pre-trial statement, the interpreters aided the translation based on a familiarity with the victim's speech. The interpreter in the recording was the victim's mother. The interpreter at trial was an expert in speech pathology who had worked with the victim for six years.

         Additionally, the victim did not have any cognitive disability or hearing impairment that would make the "translation" unreliable. In fact, at several points during his testimony, the victim corrected the interpreter, thus ensuring the accuracy of the record testimony.

         There was no objection to having an interpreter at trial. Defendant now argues that the interpreter should have been certified.[4] The victim in this case required someone familiar with his speech patterns to "interpret" what he was saying so that he could be understood by those unfamiliar with the victim's speech in light of his impediment. The court interpreter was a practicing speech pathologist with such a familiarity. This Court is unaware of any additional certification for familiarity with another individual's particular speech patterns. Thus, defense counsel reasonably permitted this interpreter to aid the victim's testimony.

         On appeal, the Delaware Supreme Court found no error in the use of the interpreter to accommodate the victim's disability under the facts and circumstances presented.[5] Additionally, Defendant fails to indicate how the aid of an interpreter for either the victim's testimony or the Section 3507 statement unfairly prejudiced the Defendant. Thus, these claims are without merit.

         Defendant also asserts that counsel was ineffective for failing to object to, or request a mistrial for allowing testimony of an alleged bad act at trial. During trial, the Court asked counsel if he wanted a curative instruction regarding the improper reference at trial to the alleged bad act.[6] Counsel declined for fear ...


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