State v. Smith

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) ID No. 1512004476
)
MICAH SMITH, )
)
Defendant. )

Submitted: January 22, 2024
Decided: April 30, 2024

Upon Defendant’s Motion for Postconviction Relief
DENIED

MEMORANDUM OPINION

Micah Smith, pro se, Howard R. Young Correctional Institution, Wilmington,
Delaware.

Jenna Milecki, Deputy Attorney General, Department of Justice, Wilmington,
Delaware

BRENNAN, J.
 Micah Smith (hereinafter “Smith”) filed his second motion for postconviction

relief (“Second Rule 61 Motion”) with respect to his criminal convictions for various

sexual offenses. Following a five-day trial, a Superior Court jury convicted Smith

of one count of Continuous Sexual Abuse of a Child, one count of 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. Smith was

acquitted of one count of Unlawful Sexual Contact in the First Degree. 1 Smith was

sentenced to 10 years of unsuspended Level V time, followed by decreasing levels

of supervision.2 The Delaware Supreme Court affirmed Smith’s convictions.3 The

Superior Court denied Smith’s first motion for postconviction relief;4 that denial was

affirmed by the Delaware Supreme Court.5

I. Facts

The facts of this case as presented at trial have been recited previously by both

the Supreme and Superior Courts in their respective decisions on Smith’s previous

filings. The facts recited below are taken from those decisions.

[]The 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

1
Smith v. State, Crim. I.D. No. 1512004476, Docket Item 105 (hereinafter referred
to as “D.I. __”)
2
D.I. 122, 123.
3
Smith v. State, 2018 WL 2427594 (Del. May 29, 2018).
4
State v. Smith, 2020 WL 1287762 (Del. Super. Mar. 16, 2020).
5
Smith v. State, 2021 WL 567703 (Del. Feb. 15, 2021).
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 private parts.

[]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 Smith's behavior.

[]On 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 his brother.

[]The 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
her. 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.

[]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.

[] A 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 Child.

[] 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.6

The Superior Court summarized the trial testimony in the following:

At trial, the State presented testimony of numerous witnesses, including
a forensic interviewer with the Children’s Advocacy Center of
Delaware (“CAC”) who conducted two interviews with Child regarding
Child’s allegations of Defendant’s abuse of Child; an employee from
the DNA Unit of the Delaware Division of Forensic Sciences who
tested samples taken from the bedroom where the abuse allegedly
occurred; a detective employed with the Evidence Detection Unit of the
New Castle County Police Department who examined the bedroom; a
New Castle County Police Department detective who was assigned to
investigate Defendant’s case; Child; Child’s Mother; Child’s two
brothers; and Child’s father.

6
Smith v. State, 2018 WL 2427594 at *1-2.
Defendant elected to present a defense. Several defense witnesses
testified, including Defendant’s mother, who was familiar with
Defendant’s living arrangements; the detective who investigated
Defendant’s case; and a memory cognition expert who criticized certain
questions asked by the CAC interviewer. Defendant also testified as a
witness.

The evidence at trial showed the following:

• On April 24, 2015, Child, who was nine years old at the
time, disclosed Defendant’s abuse to Child’s Mother who
confronted Defendant and ordered Defendant to leave the
home. The evidence also showed that Child’s Mother had
long been displeased with Defendant’s presence in the
home. Defendant left the household after being confronted
by Child’s Mother. Child’s Mother then called the Division
of Family Services to report Defendant’s alleged abuse of
Child.

• On May 4, 2015, Child was interviewed at CAC for the
first time. During the interview, Child stated that something
had happened involving Defendant but refused to talk about
it. The police investigation into Defendant’s conduct was
closed after the first CAC interview.

• Child’s Mother feared that Defendant would file a civil
lawsuit against Child’s Mother and her husband.

• In October 2015, Child’s Mother contacted the police
officer who had previously investigated Child’s claims about
Defendant. At this time, Child’s Mother reported that Child
disclosed more details about Defendant’s abuse.

• On November 16, 2015, the CAC interviewer conducted a
second interview with Child during which Child disclosed
additional details about abuse of Child by Defendant.

• After Child’s second CAC interview, the police collected
potential evidence from the basement and the bedroom in
 which the abuse allegedly occurred. Testing of a bedspread
located in the bedroom revealed DNA profiles, but Defendant
was excluded as a contributor. However, the basement,
including the bedroom, had been cleaned several times since
Defendant had moved out more than six months previously.

During her testimony at trial, Child described how Defendant sexually
abused her, including the frequency with which the abuse
occurred. Child’s statements during the CAC interviews were also
admitted through video recordings pursuant to 11 Del. C. § 3507. The
younger of Child’s two older brothers testified that he was often in the
basement watching television or playing video games when Child went
into Defendant’s bedroom and recalled Child sometimes saying that she
did not want to go into the bedroom. Child’s oldest brother testified
that he noticed Child spending time with Defendant in the bedroom
when Child was eight years old.

Trial Counsel’s defense strategy was to question the veracity of Child’s
allegations by suggesting that Child’s Mother had manipulated Child
into falsely believing that Defendant had abused Child in order to force
Defendant out of the home. Defendant’s mother testified that, in
January 2014, Child’s Mother stated that she hated Defendant and
wanted him out of the home. Defendant’s mother testified that she
believed Defendant had a healthy relationship with Child. Defendant’s
expert witness criticized certain questions asked of Child during the
second CAC interview, suggesting that poor interview techniques could
have led to false memories.

Defendant testified that he never touched Child in a sexual manner, that
Child would visit his bedroom to play cards, and that he or Child would
occasionally shut the bedroom door when Child’s brothers were
playing loud video games in the basement outside Defendant’s
room. Defendant also testified that he lived in the basement of the
family’s home to pay off student loans and to save money, and had lived
in the basement for 10 years.7

7
State v. Smith, 2020 WL 1287762 at *1-2-3.
 II. Procedural History

Smith was represented by two attorneys, acting as co-counsel, at trial

(hereinafter “Trial Counsel”). Following his unsuccessful direct appeal, Smith filed

his first, timely postconviction motion, having asserted one claim of ineffective

assistance of counsel. Rule 61 Counsel was appointed to represent Smith. Upon

review of the entire record, Rule 61 Counsel did not identify any meritorious claims

and moved to withdraw. After reviewing the Affidavit of Trial Counsel and the

State’s response in opposition, the Court denied Smith’s motion and granted

withdrawal of postconviction counsel. Smith appealed; the Supreme Court

affirmed this Court’s decision on February 15, 2021.8

During the pendency of his postconviction appeal, Smith moved for

modification of his sentence.9 This motion was denied on March 29, 2021.10 He

then filed another motion for modification of sentence on October 7, 2022.11 The

State responded in opposition and a hearing was held on December 22, 2022, at

which time the motion was denied, as Smith posited no basis for modification, but

instead argued ineffective assistance of counsel. It was at this time Defendant first

presented the Court with purported work and travel alibi records upon which his

8
Smith v. State, 2021 WL 567703 (Del.).
9
D.I. 171.
10
D.I. 173.
11
D.I. 174.
most recent motion is centered. Despite Smith’s claims in the instant motion, the

Court did not encourage him to file the instant motion, but simply provided him with

the reason for the denial of his motion for modification of sentence.12

On December 29, 2022, Smith filed the instant Second Rule 61 motion for

postconviction relief.13 In this motion, Smith argues three grounds warrant

postconviction relief: (1) ineffective assistance of trial counsel failing “to submit

exculpatory evidence at trial . . . that showed [Smith] was working in Washington

D.C. during the period” listed on the indictment; (2) ineffective assistance of trial

counsel for inaccurately stating in opening statements that Smith had been working

part-time, when he had been working full-time; and (3) new evidence exists in the

form of his work and travel documentation in Washington D.C., during the time

frame of the offenses.14

The State responded on March 29, 2023,15 to which Smith replied on April

17, 2023.16 Based upon the claims raised, the Court distributed the Trial Activity

Sheet and requested an Affidavit from trial counsel to whom the allegations were

directed.17 Upon receipt of counsel’s Affidavit, the Court requested an Affidavit

12
D.I. 178.
13
D.I. 178, 182.
14
Id. The “new evidence” includes employment verification letters, a usage record
of a DC Smart Trip Card, and an airline confirmation email.
15
D.I. 186.
16
D.I. 187.
17
D.I. 189.
from co-counsel.18 That Affidavit was filed on August 29, 2023.19 Following

receipt, Smith filed two subsequent responses to counsel’s Affidavit.20 The State

filed their supplemental response on November 6, 2023.21 Smith then filed three

more responses to the Affidavits filed; two separate filings on December 1, 2023,

and one on January 22, 2024.22 This is the Court’s decision.

A. Bars to Relief.

Before addressing the merits of a postconviction motion, the Court must apply

the procedural bars of Superior Court Criminal Rule 61(i).23 A motion for

postconviction relief may be procedurally barred as untimely, successive, a finding

of a procedural default, or if a claim or claims have been formerly adjudicated.24 If

any one of those procedural bars exists, the Court may not consider the merits of the

postconviction claim.25

Under Rule 61(i)(1), a motion for postconviction relief cannot be filed more

than one year after the judgment of conviction is final.26 A defendant’s conviction is

final thirty days after this Court imposes its sentence, or when the Delaware Supreme

18
D.I. 192.
19
D.I. 193.
20
D.I. 194, 196.
21
D.I. 197.
22
D.I. 200, 201, 202.
23
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
24
Super. Ct. Crim. R. 61(i)(1)-(4).
25
Id.
26
Super. Ct. Crim. R. 61(i)(1).
Court issues a mandate or order where the conviction was directly appealed.27

Defendant’s conviction became final on June 15, 2018.28 The instant motion was

filed on December 29, 2022. Therefore, Smith’s Second Rule 61 Motion is

untimely.

Second or subsequent postconviction motions must be summarily dismissed

unless the movant was convicted following trial and the motion either:

(i) pleads with particularity that new evidence exists that creates a
strong inference that the movant is actually innocent in fact of the acts
underlying the charges of which he was convicted; or (ii) pleads with
particularity that a claim that a new rule of constitutional law made
retroactive to cases on collateral review by the United States Supreme
Court or the Delaware Supreme Court applies to the movants case and
renders the conviction . . . invalid.29

As stated above, Smith was convicted following trial. He is not claiming a new rule

of constitutional law to excuse his default, but argues new evidence exists which

allows review.

To overcome these procedural bars, Smith must meet the pleading

requirements under Rule 61(d)(2)(i) or (d)(2)(ii). Under these rules, any exceptions

to the bars to relief in a successive petition must be pled with particularity. Smith

contends that he did not raise the arguments stated above in his first motion for

postconviction relief because Trial Counsel informed him that these records would

27
Super. Ct. Crim. R. 61(m)(1)-(2).
28
D.I. 140.
29
Super. Ct. Crim. R. 61(i)(2); Super. Ct. Crim. R. 61(d)(2).
be submitted to the Court.30 Additionally, Smith asserts that his court appointed Rule

61 counsel found “no appealable issues that could be raised on an appeal for

postconviction relief after they did a complete review of [his] trial transcripts and

trial records.”31

In response, the State asserts Smith cannot “overcome the procedural bar

prohibiting successive motions in the present Motion, [because] the Rule requires

that he ‘pleads with particularity that new evidence exists that creates a strong

inference that the movant is actually innocent in fact.’”32 The State also argues Smith

has failed to set forth new evidence to prove his innocence and “continues to argue

that [Trial Counsel’s] strategy in introducing that evidence was ineffective.”33

Smith cannot overcome the bars to relief. As stated, Smith’s second

postconviction motion is not timely. Smith’s instant motion for postconviction is

repetitive and he fails to meet the pleading requirements of Rule 61(d)(2)(i) and (ii).

Smith has not pled with particularity that new evidence exists to overcome these

bars.

Ground One (1) of his motion raises ineffective assistance of counsel for

failing to submit into evidence the work and travel documents. This claim was not

30
D.I. 182.
31
Id.
32
D.I. 186, citing Super. Ct. Crim. R. 61(d)(2).
33
D.I. 186.
raised in his timely, initial motion for postconviction relief. Ground Two (2) of this

motion alleges counsel was ineffective for misstating in opening statements that

Smith worked part-time, when he alleges he was working full time. Again, this issue

was not raised in his initial, timely postconviction motion.

Ground Three (3) of this motion, and his multiple subsequent filings, argues

that time sheets and travel documentation Smith attached to the instant motion show

that he could not have been in Delaware during the timeframe of the crimes and that

it is new evidence of his innocence.34 Defendant’s arguments acknowledge that this

evidence was in existence at the time of the trial and it is not new. For example,

Ground One of his motion argues counsel was ineffective for failing to present this

evidence to the jury, which was available to them at the time of trial.

While it is possible for issues known at the time of trial to be considered “new”

for purposes of this Superior Court Criminal Rule 61,35 it is not the case here. Smith

must show, with particularity 1) that this “new” evidence would probably change the

result should a new trial be granted, 2) could have been discovered prior to with the

exercise of due diligence and 3) is not cumulative or impeaching.36 Smith has not

done any of these requirements. Not only has he failed to sufficiently plead this

exception, but the trial evidence and the Affidavits of counsel show that the exhibited

34
D.I. 182 at ¶ 3, 183, 187, 196, 201, 202
35
Purnell v. State, 254 A.2d 1053, 1100 (Del. 2021).
36
Id.
documents do not provide the alibi defense Smith claims.37 The allegations by the

Child span a wide time frame and given the testimony presented at trial, it is entirely

possible that even if Smith was traveling and working, he had the opportunity to

commit the offenses of which he was convicted. Summary dismissal is appropriate,

as it plainly appears from the Motion, the State’s Responses, the Affidavits of Trial

Counsel, Smith’s Responses and the complete record of the case that Smith is not

entitled to relief.38

B. Smith is otherwise not entitled to postconviction relief.

That said, even affording Smith a liberal reading of his claim that “new

evidence” exists, but without making such a finding, the merits of Grounds One and

Three of Smith’s motion will be reviewed despite the application of the procedural

bar. Ground Two, however, will not be reviewed despite the procedural bar, given

Smith’s complete failure to meet any exceptions as to why this claim was not raised

in his prior motion.

In Ground One, Smith claims trial counsel was ineffective for failing to submit

his work and travel records as evidence before the jury. Ground Three (3) of his

motion, as noted above, alleges that these work and travel records constitute new

37
D.I. 191, 193.
38
Super. Ct. Crim. R. 61(d)(5).
evidence and because they were not presented to the jury, a new trial should be

awarded.

Because these two grounds are so inextricably intertwined, they will be

addressed together. In order to succeed on a claim of ineffective assistance of

counsel, Smith has the burden to show that counsel’s representation at trial fell below

“an objective standard of reasonableness” and that there is a “reasonable probability”

that, but for counsel’s alleged errors, the results of the proceedings would have been

different.39 Trial Counsel both address the decision to not present the work and

travel records to the jury in their respective Affidavits. It is clear from the Affidavits

that counsel were aware of and made the strategic decision not to present this

evidence. Nor did counsel make Smith any promises regarding presenting these

records to the jury.

To quote from trial counsel’s Affidavit:

The documents attached ... to Smith’s motion, if presented to a fact
finder, would effectively undercut his own testimony. The
documentation from one employer indicates that he averaged ’38 hours
per week’ and from another that he worked as few as 18.8 hours in a
week. Furthermore, the transit records reflect a number of days in
which Smith was not working in Washington, D.C. Therefore, not only
did the vagueness of the victim’s testimony make it possible that the
crimes were committed on the dates and times when he was not at work,
but his own records would have undercut his own credibility on the
issue.40

39
Strickland v. Washington, 466 U.S. 668, 687 (1984).
40
D.I. 193.
 The Affidavits are supported by the trial record in this matter. Smith cannot

meet his burden to show either that counsel’s representation fell below an objective

standard of reasonableness or that the results of the trial would have been different,

even assuming that the first prong could be met. Therefore, this claim is denied.

Ground Three (1) is similarly denied. Smith has failed – despite his multiple

submissions to the Court – to plead with particularity just how these records would

have changed the result of the trial. He has not met his burden to show that this

evidence presented is “new evidence” that can show he is actually innocent of the

crimes.41 As stated above and as evidenced by the denial of Ground One, Smith’s

claim fails.

As a result, Smith’s subsequent motion for postconviction relief is DENIED.

________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____

The Honorable Danielle J. Brennan

41
Purnell, 254 A.2d at 1100.