      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

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

                           Submitted: January 24, 2020
                            Decided: March 16, 2020

                Upon Defendant’s Motion for Postconviction Relief
                                  DENIED

                      Upon Motion to Withdraw as Counsel
                                 GRANTED

                          MEMORANDUM OPINION




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

Natalie S. Woloshin, Esquire, Woloshin, Lynch & Associates, P.A., Wilmington,
Delaware.

Amanda J. DiLiberto, Deputy Attorney General, Department of Justice,
Wilmington, Delaware



Rocanelli, J.
      Micah Smith (“Defendant”) has filed a motion for postconviction relief

(“Defendant’s Rule 61 Motion”) with respect to his convictions for various criminal

offenses involving sexual abuse of a child (“Child”). Defendant lived in the home

of Child’s family for approximately 10 years until Child’s mother (“Child’s

Mother”) learned of Child’s allegations of abuse by Defendant. At the time the abuse

allegedly occurred, in addition to Defendant who lived in the basement of the home,

Child lived with Child’s Mother, father, and brothers.

      Defendant was represented at trial by Joe Hurley, Esquire (“Trial Counsel”).1

Following a five-day trial, a Superior Court jury found Defendant Guilty of

Continuous Sexual Abuse of a Child; 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. The Superior Court sentenced

Defendant to 10 years of unsuspended Level V time, suspended an additional 47

years of Level V time, and imposed decreasing levels of supervision. The Delaware

Supreme Court affirmed the Superior Court’s judgment.2

      Defendant timely filed Defendant’s Rule 61 Motion asserting one claim of

ineffective assistance of counsel. Natalie Woloshin, Esquire (“Rule 61 Counsel”)



1
  Defendant was also represented at trial by Kevin Tray, Esquire. Defendant’s
ineffective assistance of counsel claim is not addressed to the representation by Mr.
Tray.
2
  See Smith v. State, 2018 WL 2427594, at *6 (Del. May 29, 2018).
                                           1
was appointed to represent Defendant with respect to Defendant’s Rule 61 Motion.

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

claims and moved to withdraw as counsel. At the Court’s request, Trial Counsel

filed an affidavit addressing Defendant’s claim of ineffective assistance of counsel.

The State filed a response in opposition to Defendant’s Rule 61 Motion. Defendant

filed a response to Rule 61 Counsel’s motion to withdraw and a reply to the State’s

response.

                           PROCEDURAL HISTORY

I.    Trial

      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.

      Defendant elected to present a defense. Several defense witnesses testified,

including Defendant’s mother, who was familiar with Defendant’s living

                                         2
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.3

          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.




3
 Child’s Mother testified that she worked as a marriage and family therapist and had
a degree in clinical psychology. The Court precluded Child’s Mother from testifying
to matters involving Child’s therapy.
                                         3
          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. § 3507.4 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


4
 See 11 Del. C. § 3507(a) (“In a criminal prosecution, the voluntary out-of-court
prior statement of a witness who is present and subject to cross-examination may be
used as affirmative evidence with substantive independent testimonial value.”).
                                          4
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.

II.     Appellate Proceedings

        After Defendant was sentenced and the convictions entered, Trial Counsel

filed a timely notice of appeal to the Delaware Supreme Court on Defendant’s behalf

but later withdrew as counsel and Bernard J. O’Donnell, Esquire entered his

appearance as appellate counsel (“Appellate Counsel”) but concluded that the appeal

was wholly without merit. Accordingly, Appellate Counsel filed a motion to

withdraw as counsel along with a non-merit brief pursuant to Delaware Supreme

Court Rule 26(c).

        The Supreme Court affirmed Defendant’s convictions on May 29, 2018. 5 In

its decision, the Supreme Court addressed seven issues raised by Defendant on


5
    See Smith, 2018 WL 2427594, at *6.
                                           5
appeal, including a portion of Child’s Mother’s testimony that forms the basis for

the Defendant’s Rule 61 Motion. The Supreme Court concluded that Defendant’s

appeal was “wholly without merit and devoid of any arguably appealable issue.”6

              DEFENDANT’S CLAIM FOR POSTCONVICTION RELIEF

         Defendant asserts one claim of ineffective assistance of counsel as the basis

for postconviction relief.      Specifically, Defendant argues that Trial Counsel

mishandled a remark made by Child’s Mother during the State’s direct examination

which referenced Defendant’s time in jail:

         Q.          And specifically that trip to California, do you remember,
                     if you can estimate, when that was?

         A.          Well, I was trying to think whether it was the spring –
                     whether it was the spring of 2016 or if it was the summer
                     of 2016. I’m bad with the dates.

         Q.          Was it 2016?

         A.          I believe it was 2016.

         Q.          And just so the record is clear, you asked [Defendant] to
                     leave in April of 2015?

         A.          Yes. Though, like, honestly, my brain is so bad that it
                     actually could have been, like, the summer of 2015. It
                     wouldn’t have been the spring of 2015 because that would
                     have already passed, but it was relatively shortly after
                     [Defendant] had – no, actually, when we went for the
                     summer – I mean, when we went to visit Debbie,
                     [Defendant] was in jail. So that would have been ’16.


6
    See id.
                                              6
      Q.           Okay. It was in 2016?

      A.           Yeah.

      [State]:     No further questions.7

This testimony is referenced as “Jail Comment.”

      Trial Counsel did not object to the Jail Comment. Rather, Trial Counsel

addressed the Jail Comment at the outset of Trial Counsel’s cross-examination:

      Q.           [Defendant] was in jail because he got arrested because of
                   these charges, not for some other reason?

      A.           Correct.8

Trial Counsel’s cross-examination is referenced as “Jail Cross-Examination.”

I.    Standard of Review

      A.     Procedural Bars

      Superior Court Rule of Criminal Procedure 61 governs Defendant’s Rule 61

Motion. Postconviction relief is a “collateral remedy which provides an avenue for

upsetting judgments that have otherwise become final.”9 To protect the finality of




7
  Tr. Trial 147:20–148:17, May 16, 2017 (emphasis added).
8
  Id. at 148:21–149:1. The filings submitted by the State and Rule 61 Counsel also
addressed a separate statement by Child’s Mother which referenced jail. Defendant
clarified in his reply to the State’s response that this statement does not form the
basis for Defendant’s ineffective assistance of counsel claim. Nevertheless, upon
review, the Court is satisfied that, even if presented, that claim would fail for the
same reasons addressed to the Jail Comment and the Jail Cross-Examination.
9
  Flamer v. State, 585 A.2d 736, 745 (Del. 1990).
                                           7
criminal convictions, the Court must consider the procedural requirements for relief

set forth in Rule 61(i) before addressing the merits of the Rule 61 Motion.10

      Rule 61(i)(1) bars a motion for postconviction relief if it is filed more than

one year from the final judgment of conviction;11 this bar is not applicable as

Defendant’s Rule 61 Motion was timely.12             Rule 61(i)(2) bars successive

postconviction motions;13 this bar is not applicable as this is Defendant’s first

postconviction motion. Rule 61(i)(3) bars relief if the motion includes claims not

asserted in prior proceedings leading to the final judgment, unless the movant shows

cause for relief from the procedural default and prejudice from violation of the

movant’s rights.14 Rule 61(i)(4) bars relief if the motion includes grounds for relief

formerly adjudicated in any proceeding leading to the judgment of conviction, in an

appeal, or in a postconviction proceeding.15 The bars set forth in Rules 61(i)(3) and

61(i)(4) do not apply because Defendant’s claim is for ineffective assistance of

counsel, which could not have been raised in prior proceedings.16


10
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
11
   Super. Ct. Crim. R. 61(i)(1).
12
   Defendant’s Rule 61 Motion was filed on June 4, 2018, within one year after the
Delaware Supreme Court affirmed Defendant’s convictions on May 29, 2018.
13
   Super. Ct. Crim. R. 61(i)(2).
14
   Super. Ct. Crim. R. 61(i)(3).
15
   Super. Ct. Crim. R. 61(i)(4).
16
   See Thelemarque v. State, 2016 WL 556631, at *3 (Del. Feb. 11, 2016) (“[T]his
Court will not review claims of ineffective assistance of counsel for the first time on
direct appeal.”); Watson v. State, 2013 WL 5969065, at *2 (Del. Nov. 6, 2013) (“It
is settled Delaware law that this Court will not consider allegations of ineffective
                                          8
       B.      Standard for Ineffective Assistance of Counsel

       The Sixth Amendment guarantees defendants in criminal trials the right to

counsel.17     To assure that the outcome of a criminal trial is just, defendants

furthermore have “the right to effective assistance of counsel.”18 The standard used

to evaluate claims of ineffective counsel is the two-prong test articulated by the

United States Supreme Court in Strickland v. Washington,19 as adopted in

Delaware.20 The movant must show that (1) counsel’s representation fell below an

objective standard of reasonableness and (2) there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.21   Failure to prove either prong will render the claim insufficient;22

therefore, even if a defendant can show that counsel made a professionally

unreasonable error, the defendant must still show that the error had an effect on the




assistance of counsel made for the first time on direct appeal.”). Moreover, the State
concedes that Defendant’s claims are not procedurally barred.
17
   Gideon v. Wainright, 372 U.S. 335, 342–43 (1963).
18
   McMann v. Richardson, 397 U.S. 759, 771 (1970).
19
   466 U.S. 668 (1984).
20
   See Albury v. State, 551 A.2d 53 (Del. 1988).
21
   Strickland, 466 U.S. at 687.
22
   Id. at 688; see also State v. McLaughlin, 2014 WL 2964945, at *2 (Del. Super.
July 2, 2014), aff’d, 2015 WL 1306916 (Del. Mar. 23, 2015) (“Because a defendant
must show both that an attorney made a professionally unreasonable error and that
the error had an effect on the judgment, failure to prove either is sufficient to defeat
a claim of ineffective assistance.”); Dawson v. State, 673 A.2d 1186, 1196 (Del.
1996).
                                           9
judgment.23 Moreover, the Court shall dismiss entirely conclusory allegations of

ineffective assistance.24

      With respect to the first prong—the “performance prong”—the movant must

overcome the strong presumption that counsel’s conduct was professionally

reasonable.25 To satisfy the performance prong, Defendant must assert specific

allegations to establish that Trial Counsel acted unreasonably.26 The United States

Supreme Court has pointed to “prevailing professional norms” as the standard

against which to judge the reasonableness of counsel’s representation with great

deference given to counsel’s strategic judgments.27 Simply because another strategy

may have produced a better outcome in hindsight is not enough for a court to rule

that a lawyer’s performance was ineffective, given the strong presumption that the

performance was adequate.28

      With respect to the second prong—the “prejudice prong”—the movant must

provide concrete allegations of prejudice, specifying the nature of the prejudice and




23
   Strickland, 466 U.S. at 692.
24
   Younger, 580 A.2d at 555; Jordan v. State, 1994 WL 466142, at *1 (Del. Aug. 25,
1994).
25
   Strickland, 466 U.S. at 687–88.
26
   Id. at 688; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996) (“Mere allegations of
ineffectiveness will not suffice.”).
27
   Strickland, 466 U.S. at 688 (“The proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.”).
28
   See id. at 680, 689, 712.
                                           10
the adverse effects actually suffered.29 The Court must determine whether there is a

reasonable probability that the outcome would have been different had Trial Counsel

not made the alleged errors.30 This standard is lower than a preponderance of the

evidence standard, as it only requires a finding that Trial Counsel’s actions

undermine confidence in the outcome of the proceeding in question.31

II.   Defendant’s Claim for Ineffective Assistance of Counsel Does Not Satisfy
      the Strickland Standard

      Defendant argues that Trial Counsel should have (1) moved to strike the Jail

Comment from the record; (2) requested a curative instruction; and/or (3) moved for

a mistrial. Defendant argues that, by merely addressing the Jail Comment with the

Jail Cross-Examination, Trial Counsel “made a strategic error that caused

[Defendant] actual prejudice under Strickland.”32

      A.     Trial Counsel’s Failure to Object to the Jail Comment and Request
             a Curative Instruction Was Reasonable and Did Not Prejudice
             Defendant

      Trial Counsel’s decision to address the Jail Comment with the Jail Cross-

Examination instead of making an objection and requesting a curative instruction

was a reasonable strategic decision. “In order to eliminate ‘the distorting effects of

hindsight,’ there is a strong presumption that trial counsel’s representation was


29
   Id. at 692; Dawson, 673 A.2d at 1196.
30
   Id. at 694.
31
   Id.
32
   Def.’s Resp. to State’s Resp. to Def.’s Rule 61 Mot. 7.
                                          11
professionally reasonable.”33    Accordingly, Trial Counsel’s strategic decisions

regarding how to address a witness’s testimony are entitled to a strong degree of

deference.34 In his affidavit, Trial Counsel states that he considered his options

before addressing Child’s Mother’s Jail Comment on cross-examination and

determined that an objection and curative instruction, if provided by the Court, likely

would have drawn unnecessary negative attention to the Jail Comment.35 Trial

Counsel states that he instead decided to “defuse the bomb of speculation” by

immediately clarifying with Child’s Mother that Defendant was in jail on the very

same charges presented to the jury in this case and not for other unrelated charges or

convictions. This was a reasonable strategic decision that is entitled to deference.

      Even if Trial Counsel’s failure to object and request a curative instruction was

unreasonable, Defendant cannot establish that he is entitled to relief because

Defendant has not shown prejudice.        First, Trial Counsel cured any potential

prejudice identified by Defendant when Trial Counsel immediately addressed the

reason for Defendant’s incarceration. Specifically, Defendant argues that the Jail

Comment caused prejudice because “the jury could have drawn impermissible

inferences about why [Defendant] was in jail . . . [and] could have speculated that



33
   Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (quoting Gattis v. State, 697 A.2d
1174, 1178 (Del. 1997)).
34
   See id.
35
   See Trial Counsel’s Aff. Resp. to Def.’s Mot. 2–3.
                                         12
[Defendant] had a prior conviction.”36 However, Trial Counsel eliminated any such

negative inference by clarifying that Defendant was in jail because of the charges

for which he was now on trial. Second, Defendant does not identify how a curative

instruction might have changed the outcome of the trial. As the Supreme Court

noted, “As the sole trier of fact responsible for determining witness credibility, the

jury could find the Child’s testimony and out-of-court statements that [Defendant]

intentionally had sexual contact with her multiple times while she was eight years

old credible.”37 There was ample evidence of guilt beyond a reasonable doubt.

      Defendant cannot satisfy either prong of Strickland with respect to Trial

Counsel’s failure to object to the Jail Comment and request a curative instruction.

Accordingly, the claim must be denied.

      B.     Trial Counsel’s Failure to Move for a Mistrial Did Not Prejudice
             Defendant

      Defendant further argues that Trial Counsel provided Defendant with

ineffective assistance by failing to move for a mistrial after Child’s Mother’s Jail

Comment. Defendant cannot establish that a mistrial would have been proper under

the circumstances and therefore cannot satisfy Stickland’s prejudice prong.38 Based


36
   Def.’s Resp. to State’s Resp. to Def.’s Rule 61 Mot. 2.
37
   Smith, 2018 WL 2427594, at *6.
38
   In his reply, Defendant cites four federal circuit court decisions which examined,
on direct appeals from the trial courts’ verdicts, whether a new trial was proper after
a witness referenced the defendant’s incarceration or probation status. Those
decisions are inapposite because (1) they were issued on direct appeals from the trial
                                           13
on the entire record and the decisional law addressing mistrial, even if a mistrial

ruling had been requested, it would have been denied.

      The Jail Comment was not solicited by the State. When deciding whether an

unsolicited response by a witness requires declaring a mistrial, the Court considers

four factors set forth by the Delaware Supreme Court in Pena v. State: “the nature

and frequency of the conduct or comments, the likelihood of resulting prejudice, the

closeness of the case and the sufficiency of the trial judge’s efforts to mitigate any

prejudice in determining whether a witness’s conduct was so prejudicial as to

warrant a mistrial.”39 “A mistrial is mandated only when there are ‘no meaningful

and practical alternatives’ to that remedy.”40 Even if Trial Counsel had requested a

mistrial, the Court would have denied that request under the Pena standard.


courts’ verdicts and (2) the factual circumstances surrounding the witness’
statements and/or the subsequent actions taken by the trial courts are distinct from
the circumstances surrounding Child’s Mother’s Jail Comment in this case. See
United States v. Poston, 430 F.2d 706 (6th Cir. 1970) (finding error where the trial
court denied the defendant’s motions to strike and to declare a mistrial after a witness
referenced the defendant’s probation status and no curative action was taken);
United States v. Smith, 403 F.2d 74 (6th Cir. 1968) (finding a curative instruction to
be insufficient where a witness referenced the defendant’s prior jail sentence); Tallo
v. United States, 344 F.2d 467 (5th Cir. 1965) (finding error where the trial court
denied trial counsel’s motion to strike and motion for a mistrial after a witness
referenced the defendant’s incarceration and no curative action was taken); United
States v. Stromberg, 268 F.2d 256 (2d Cir. 1959) (finding no reversible when a
witness mentioned the defendant’s incarceration and the judge issued an immediate
curative instruction).
39
   Pena v. State, 856 A.2d 548, 550–51 (Del. 2004).
40
   Dawson v. State, 637 A.2d 57, 62 (Del. 1994) (quoting Bailey v. State, 521 A.2d
1069, 1077 (Del. 1987)).
                                         14
           The first Pena factor—the nature and frequency of the statement—weighed

against declaring a mistrial. The Jail Comment appears to have been a temporal

anchor in Child’s Mother’s attempt to recall the year in which the California visit

occurred. Moreover, the remark was a brief, isolated comment during a five-day

trial.41

           The second Pena factor—whether the statement created a likelihood of

prejudice—also weighed against declaring a mistrial. Child’s Mother was not asked

about Defendant’s incarceration.          Moreover, the unsolicited reference to

Defendant’s incarceration by Child’s Mother was not central to the testimony being

offered.42 In addition, the Jail Comment was a vague, fleeting remark.43

           The third Pena factor—the closeness of the case—weighed slightly in

Defendant’s favor. Child’s trial testimony about Defendant’s abuse was generally

consistent with her prior statements to Child’s Mother and the CAC interviewer. In

addition, the Delaware Supreme Court found, based on the evidence presented at


41
   See Burns v. State, 968 A.2d 1012, 1020 (Del. 2009) (finding the first factor
weighed against declaring a mistrial when a witness’s in-court outburst was an
“isolated even that lasted only a few seconds”).
42
   Cf. Ashley v. State, 798 A.2d 1019, 1022–23 (Del. 2002) (finding the content of a
spectator’s outburst was so closely related to evidence that had been excluded that
the prejudice could not be cured)
43
   See Payne v. State, 2015 WL 1469061, at *2 (Del. Mar. 30, 2015) (“Given the
vagueness of [the witness’s] comment, the second factor of Pena weighs against
finding that the trial court abused its discretion.”); Snipes v. State, 2015 WL
1119505, at *3 (Del. Mar. 12, 2015) (noting that a witness’s vague and innocuous
reference to a previous trial did not create sufficient prejudice to warrant a mistrial).
                                           15
trial, that “a rational jury could have found [Defendant] guilty beyond a reasonable

doubt” of the crimes for which Defendant was convicted.44 Nevertheless, “[t]his

case, like many child molestation cases, ultimately rest[ed] on the jury’s evaluation

of the parties’ credibility.”45 Accordingly, the third factor slightly favors Defendant

because this case required a credibility determination as opposed to evaluation of

other forensic evidence.

      The fourth Pena factor— the sufficiency of the trial judge’s efforts to mitigate

any prejudice—weighed against declaring a mistrial where, as here, the Trial Court

deferred to Trial Counsel’s decision not to present a curative instruction. A mistrial

is appropriate where curative action cannot sufficiently mitigate prejudice caused by

the statement.46 Moreover, a party’s strategic decision not to request that the Court

take curative action may be considered when evaluating whether a curative

instruction should have been given.47



44
   Smith, 2018 WL 2427594, at *6.
45
   Burns, 968 A.2d at 1020.
46
   See, e.g., Payne, 2015 WL 1469061, at *4 (“A mistrial must be declared when the
prejudicial effect of the testimony is so great that a curative instruction is not
sufficient to overcome it.”); Ashley, 798 A.2d at 1022–23 (examining whether a
curative instruction could remedy the prejudice suffered as a result of a spectator’s
outburst).
47
   See Snipes, 2015 WL 1119505, at *4 (“[Defendant’s] counsel expressly requested
that the trial court refrain from giving such an instruction. Accordingly, the fourth
Pena factor weighs in favor of the State.”); Alexopoulos v. State, 2016 WL 3267571,
at *5 (Del. Super. Apr. 22, 2016) (“[Defendant’s] decision to decline the Court of
Common Pleas’ offer to give a curative instruction was a tactical decision that
                                           16
       Trial Counsel did not request a curative instruction and the Court did not

provide one.    Nevertheless, Trial Counsel’s prompt response to the statement

accomplished the same goal that a curative instruction would have accomplished—

to clarify that the only reason why Defendant was in jail was because he was detained

on the charges being presented to the jury. Defendant concedes that the prejudicial

effect of the remark was limited to potential “impermissible inferences” that the jury

could have made “about why [Defendant] was in jail.”48 Any such inferences

vanished when Trial Counsel clarified that Defendant “was in jail because he got

arrested because of these charges, not for some other reason.”49 Trial Counsel’s

clarification sufficiently mitigated any prejudice that might have been caused by the

Jail Comment. Accordingly, the fourth Pena factor weighed against declaring a

mistrial.

       The weight of the Pena factors militated against declaring a mistrial. The

Child’s Mother’s unsolicited stray reference to Defendant’s incarceration caused

minimal prejudice which was promptly mediated by Trial Counsel. Importantly, any

prejudice that may have occurred as a result of the Jail Comment was cured by Trial

Counsel’s prompt clarification of the circumstances surrounding Defendant’s



constitutes a waiver of the ability to argue here that the trial judge’s efforts to
mitigate any prejudice were insufficient.”).
48
   Def.’s Resp. to State’s Resp. to Def.’s Rule 61 Mot. 2 (emphasis added).
49
   Tr. Trial 148:21–23, May 16, 2017.
                                          17
incarceration during Jail Cross-Examination. Under these circumstances, a mistrial

was not required; therefore, Trial Counsel’s failure to move for a mistrial did not

prejudice Defendant. Accordingly, Defendant cannot satisfy the prejudice prong of

Strickland because, even if Trial Counsel would have moved for a mistrial, the Trial

Court would have denied that request.50

              RULE 61 COUNSEL’S MOTION TO WITHDRAW

      After reviewing the record to determine if there were any other meritorious

grounds for relief and concluding that there are no such grounds, Rule 61 Counsel

filed a motion to withdraw as counsel pursuant to Superior Court Criminal Rule

61(e)(7). Withdrawal may be appropriate when “counsel considers the movant’s

claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel

is not aware of any other substantial ground for relief available to the movant.”51

The Court must also conduct a review of the record to determine whether the

defendant’s motion contains any reasonable grounds for relief.52




50
   Because the Court finds no prejudice, the Court will not address whether Trial
Counsel’s failure to move for a mistrial was objectively reasonable under the
prevailing professional norms. See Strickland, 466 U.S. at 697 (“The object of an
ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.”).
51
   Super. Ct. Crim. R. 61(e)(7).
52
   State v. West, 2013 WL 6606833, at *3 (Del. Super. Dec. 12, 2013).
                                          18
      Rule 61 Counsel has stated that she undertook a thorough analysis of the

record to evaluate Defendant’s claim and determined that the claim does not have

enough merit to be ethically advocated. Specifically, Rule 61 Counsel has concluded

that Trial Counsel’s strategic decision to address the remark on Jail Cross-

Examination is entitled to deference and that the clarification cured any prejudice

that the Jail Comment created. Rule 61 Counsel also reviewed the record to

determine if any other meritorious grounds for relief exist and found none. Finally,

the Court has reviewed Defendant’s Rule 61 Motion and has found no meritorious

grounds for relief.

                                   CONCLUSION

      Defendant’s claim for postconviction relief is without merit. Defendant has

not established ineffective assistance of counsel under the test set forth in Strickland.

Accordingly, Defendant’s Rule 61 Motion must be denied.

      Rule 61 Counsel was appointed to represent Defendant in the postconviction

proceedings and, after a careful review, concluded that there are no meritorious

grounds for postconviction relief that can be ethically advocated. Accordingly, Rule

61 Counsel shall be permitted to withdraw as counsel.




                                           19
     NOW, THEREFORE, this 16th day of March 2020, Defendant Micah

Smith’s Rule 61 Motion is hereby DENIED and the motion of Natalie S.

Woloshin, Esquire to withdraw as counsel is hereby GRANTED.

     IT IS SO ORDERED.

                                                                                                                          Andrea L. Rocanelli
                                       ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                       The Honorable Andrea L. Rocanelli




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