         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 JERMAINE LASTER,                           §
                                            §     No. 236, 2018
       Defendant Below,                     §
       Appellant,                           §     Court Below: Superior Court of
                                            §     the State of Delaware
       v.                                   §
                                            §     I.D. No. 1307014887 (N)
 STATE OF DELAWARE,                         §
                                            §
       Plaintiff Below,                     §
       Appellee.                            §

                              Submitted: December 12, 2018
                               Decided: February 8, 2019

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                     ORDER

      On this 8th day of February 2019, upon consideration of the parties’ briefs and

the record on appeal, it appears that:

      (1)    Appellant, Jermaine Laster, appeals from a Superior Court order

denying his motion for postconviction relief. He asserts three claims of ineffective

assistance of counsel. His first contention relates to a jury note. He contends that

his trial counsel was ineffective because he failed to ask the trial court to respond to

the note by instructing the jury to follow the jury instructions as originally given.

Second, he contends that his trial counsel was ineffective because he failed to retain

an investigator to aid in impeaching the State’s witnesses and to develop other

potential defense witnesses.      Third, he contends that his trial counsel was
ineffective because he failed to retain a firearms expert to mitigate the testimony of

the State’s firearms expert and to otherwise aid in his defense.

         (2)    On August 6, 2013, Laster was arrested in connection with a shooting

that took place on July 17, 2013. The shooting resulted in a five-year-old girl

sustaining a gunshot wound to her left leg. Laster was indicted for Assault in the

First Degree and related offenses.            He retained private counsel, and the case

proceeded to trial in June 2014.

         (3)    At trial, the State’s case consisted primarily of eyewitness testimony.

There was no direct physical evidence linking Laster to the shooting. According to

the testimony of six eyewitnesses (one of whom was Laster’s wife), the following

occurred on the day of the shooting. On the evening of July 17, 2013, Laster argued

with Jeff Williams, resulting in Williams punching Laster in the face and knocking

him to the ground. Laster then went into his nearby residence to get his gun. His

wife heard him say, “That [guy] snuck me. I’m getting my gun.”1 When he came

back out, he chased after Williams up the street and began shooting towards him,

firing several shots. One of these several shots hit the victim, who was in front of

her nearby residence.         In jail, Laster admitted to Shannon Nisky (one of the

eyewitnesses and a friend of Laster’s) that he shot the victim.




1
    App. to Appellant’s Opening Br. at A90.
                                                2
        (4)   Three of the eyewitnesses, Carlos Hernandez, Nisky, and Williams, had

credibility issues that were brought out during their examinations.             They all

admitted they were addicted to and had used heroin the day of the shooting.

Hernandez and Nisky admitted they were convicted felons, and Williams admitted

he had been convicted of criminal impersonation within the last ten years. It was

shown that all three had made prior inconsistent statements to the police. None of

these prior inconsistent statements, however, called into doubt the fact that Laster

chased Williams up the street while firing several shots. And none suggested that

someone other than Laster fired any shots, let alone the shot that hit the victim. All

of them admitted to making deals with the State in exchange for cooperating in this

case.

        (5)   In addition to eyewitness testimony, the State called Carl Rone, a

firearms expert, to testify about two bullets recovered at the scene and two cartridge

cases that Laster’s wife gave to the police the day after the shooting. Rone testified

that because no firearm was recovered, he conducted a side-by-side comparison of

the bullets, which he labeled Item 1 (a bullet jacket) and Item 2 (a fully intact bullet).

From this comparison he concluded that Item 1 and Item 2 had been fired from the

same weapon—a .44 caliber revolver marketed by Ruger, Sauer and Sohn’s,

Interarms, or Hawes. Rone also compared the two cartridge cases. He concluded

that these cases were fired from the same firearm. Because Rone did not have a


                                            3
firearm to make the required comparisons, however, he explained that he could not

determine whether the bullets were fired from the same firearm as the cartridge

cases.      Rone also noted that the cases could have been fired from any gun

chambered in .44 magnum, including a revolver or a semiautomatic firearm, but

because the cases did not have any extractor or ejector marks, Rone believed they

were fired from a revolver.

         (6)     Laster did not present any evidence in his defense.

         (7)     During its deliberations, the jury submitted a note to the trial court

asking for clarification regarding the intent element in the charge of Assault in the

First Degree. The note began by repeating an element of Assault in the First Degree

set forth in the original instructions: “The defendant recklessly engaged in conduct

that created a substantial risk of death to [the victim].”2 This statement was then

followed by a question: “Is this specific intent to [the victim] alone or any

unjustifiable risk that death to another could result?”3 The court asked the jury to

define what it meant by “specific intent.” 4 The jury then added the following

questions to its note: “Does ‘substantial risk of death’ need to be directed at [the

victim] specifically to be charged with Assault in the First Degree?          In other




2
    Id. at A131; see also id. at A138.
3
    Id. at A138.
4
    Id. at A134.
                                             4
words[,] does intent of risk need to be directed at [the victim] specifically?” 5 The

State, Laster’s trial counsel, and the court conferred regarding the jury note and

agreed to the following response: “The reckless state of mind is an issue, not intent.”6

         (8)       The jury then found Laster guilty of Assault in the First Degree, three

counts of Possession of a Firearm During the Commission of a Felony, and two

counts of Reckless Endangering in the First Degree. Following the jury trial, the

trial judge found Laster guilty of Possession of a Deadly Weapon by a Person

Prohibited and Possession of Ammunition by a Person Prohibited.

         (9)       Laster filed his initial motion for postconviction relief pro se, alleging

violation of spousal communication privilege, prosecutorial misconduct, and

judicial misconduct. Counsel was appointed, and an amended motion was filed in

which Laster asserted the ineffective-assistance claims at issue in this appeal.

         (10) Laster’s trial counsel filed an affidavit responding to the postconviction

relief claims. As to the claims regarding the need for a private investigator and a

firearms expert, Laster’s trial counsel explained that the decision not to seek an

outside investigator or a firearms expert was made after conferring with Laster and

his family and considering trial strategy. As to the claim regarding the jury note,




5
    Id. at A138.
6
    Id. at A136.
                                                5
Laster’s trial counsel explained that his failure to object to the court’s answer to the

jury note was not prejudicial to Laster.

       (11) We review the Superior Court’s denial of a Rule 61 motion for

postconviction relief for abuse of discretion.7 We review legal and constitutional

questions de novo.8

       (12) To prevail on a claim of ineffective assistance of counsel, the defendant

must satisfy the two-prong standard of Strickland v. Washington. 9                           Under

Strickland, the defendant must prove that his trial counsel’s performance was

objectively unreasonable and that his defense was prejudiced as a result. 10

Although judicial scrutiny under the first prong is “highly deferential” and courts

must proceed with a “strong presumption” that counsel’s conduct was reasonable,11

there is no need to analyze whether an attorney performed deficiently if the alleged

deficiency did not prejudice the defendant.12

       (13) Under the second prong, “[i]t is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the proceeding.”13 In



7
   Neal v. State, 80 A.3d 935, 941 (Del. 1994).
8
   Brooks v. State, 40 A.3d 346, 353 (Del. 2012) (en banc).
9
   466 U.S. 668, 687-88 (1984).
10
    Id.
11
    Id. at 689.
12
    Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (en banc); see also Strickland, 466 U.S. at 697 (“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.”).
13
    Strickland, 466 U.S. at 693.
                                                 6
other words, “not every error that conceivably could have influenced the outcome

undermines the reliability of the result of the proceeding.” 14 The movant “must

make specific allegations of actual prejudice and substantiate them.” 15               These

allegations must show “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”16

       (14) Laster’s first claim of ineffective assistance of counsel is that his trial

counsel was ineffective by failing (1) to object to the court’s response to the jury

note and (2) to ask the court to instruct the jury to follow the jury instructions as

originally given. A criminal defendant is entitled to an accurate statement of the

law, but not a particular jury instruction.17 The Superior Court found, and Laster

does not contest, that the court’s response to the jury note was an accurate statement

of the law. As the State points out in its brief, it appeared that “the jury was

confused about whether Laster had to specifically have directed his reckless act at

the five-year-old [the victim] in order to find him guilty of first degree assault.”18

Under the first-degree assault statute, a person must “recklessly engage[] in conduct

which creates a substantial risk of death to another person.”19 The trial court (with



14
   Id.
15
   Outten v. State, 720 A.2d 547, 552 (Del. 1998) (en banc) (quoting Wright v. State, 671 A.2d
1353, 1356 (Del. 1996) (en banc)).
16
   Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 694).
17
   Flamer v. State, 490 A.2d 104, 128 (Del. 1984) (en banc).
18
   Appellee’s Answering Br. at 12.
19
   11 Del. C. § 613(a)(3).
                                              7
input from the prosecution and Laster’s trial counsel) was correct in focusing the

jury back to Laster’s state of mind (whether he was reckless) and away from whether

he specifically intended to injure the victim.

         (15) Despite the fact that the court’s response to the jury note was an

accurate statement of the law, Laster argues that the response prejudiced him. He

argues that the court’s response to the jury note caused the jurors to focus on the

response, rather than the original instruction. Had the jury followed the original

instruction, he argues, it might have found him guilty of the lesser-included offense

of Assault in the Second Degree. In substance, Laster’s argument is that the jurors

must have focused on the court’s response—that is, whether Laster acted

recklessly—and must have disregarded the original instruction for Assault in the

First Degree, which, in addition to requiring them to find that Laster acted recklessly,

required them to find that Laster’s conduct created “a substantial risk of death to [the

victim].”20 Assault in the Second Degree, by contrast, does not require a finding of

a substantial risk of death to another.21

         (16) Laster’s argument of prejudice is pure speculation that does not pass

the Strickland test. The trial court neither told the jury to disregard the prior

instruction nor indicated that it was altering the prior instruction. Moreover, the



20
     App. to Appellant’s Opening Br. at A110.
21
     See 11 Del. C. § 612(a).
                                                8
trial court’s response to the jury note did not indicate to the jurors that they no longer

needed to find that Laster’s conduct created a substantial risk of death to the victim

to convict him of Assault in the First Degree.22 Laster has not shown that there is a

“reasonable probability” that, but for counsel’s alleged unprofessional errors and the

trial court’s response to the jury note, “the result of the proceeding would have been

different.”23

       (17) Laster next contends that his trial counsel was ineffective because he

failed to retain an investigator to aid in impeaching the State’s witnesses and to

develop other potential defense witnesses. He fails, however, to make any specific

allegations of prejudice—let alone substantiate them.                   The Superior Court

explained, “While it is conceivable that an investigator may have found other

witnesses or that they might have been able to find more impeachment evidence

against the State’s witnesses, [Laster] cannot point to any specifics that help his

case.”24 And the Superior Court correctly stated that “[t]he record reflects that trial

counsel on cross-examination effectively elicited testimony from witnesses

regarding drug use on the day in question and prior inconsistent statements made to

police” and that Laster “also failed to identify other potential witnesses or what




22
   See Flamer, 490 A.2d 128 (“In evaluating the propriety of a jury charge, the entire instruction
must be considered with no statement to be viewed in a vacuum.”).
23
   Albury, 551 A.2d at 58.
24
   Appellant’s Opening Br. Ex. A, at 6.
                                                9
testimony they might provide in pursuit of a different outcome.”25 The Superior

Court did not err in denying this ground for relief.

       (18) Finally, Laster contends that his trial counsel was ineffective because

he failed to retain a firearms expert to mitigate the testimony of the State’s expert

and to aid in Laster’s defense. This final claim also fails the second prong of the

Strickland test because Laster has failed to make and substantiate specific allegations

of prejudice. Laster argues that a firearms expert could have testified concerning

two things that, in his opinion, would have helped his case. First, he says that a

firearms expert could have testified that, due to the damage to Items 1 and 2, there

was no way to confirm whether they were discharged from the same firearm. This,

however, is a conclusory statement without support. Laster has not identified any

expert nor indicated what his or her testimony might be.26 Second, Laster argues

that a firearms expert could have “clearly explained” the lack of connection between

the bullets and the casings.27 But the State’s firearms expert explicitly admitted that

he could not say whether the bullets and the casings were fired from the same gun.

As the Superior Court explained, “Offering a second expert to testify that a link




25
   Id.
26
   See Outten, 720 A.2d at 553 (“Because [the defendant] has failed to both identify the witnesses
and indicate what their potential testimony might be, and because this Court will not speculate
concerning that evidence, [the defendant] has failed to show the actual prejudice he allegedly has
suffered by his counsel’s failure to investigate and present these witnesses.”).
27
   Appellant’s Opening Br. at 27.
                                               10
between the bullets and casings could not be established would be cumulative and

unnecessary.”28 The Superior Court did not err in denying this ground for relief.

          NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                      BY THE COURT:


                                      /s/ James T. Vaughn, Jr.
                                      Justice




28
     Id. Ex. A, at 7.
                                        11
