Submitted: October 25, 2019
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
Honorable Mary M. Johnston Judge.
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
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.
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.
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.
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. Mere allegations of
ineffectiveness will not suffice. A defendant must make and
substantiate concrete allegations of actual
prejudice. 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
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
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.
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.
was no objection to having an interpreter at trial. Defendant
now argues that the interpreter should have been
certified. 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
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. 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.
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
Counsel declined for fear ...