           IN THE SUPREME COURT OF THE STATE OF DELAWARE


KEVIN RASIN,                           §
                                       §     No. 510, 2017
      Defendant-Below,                 §
      Appellant,                       §     Court Below: Superior Court
                                       §     of the State of Delaware
      v.                               §
                                       §
STATE OF DELAWARE,                     §     File No. N1009014476
                                       §
      Plaintiff-Below,                 §
      Appellee.                        §

                           Submitted: May 9, 2018
                           Decided:   May 23, 2018

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

                                     ORDER

      This 23rd day of May, 2018, having considered the briefs and the record below,

it appears to the Court that:

      (1)    Kevin Rasin appeals the Superior Court’s denial of his motion for

postconviction relief for ineffective assistance of counsel. Rasin claims his counsel

was ineffective for not objecting to what Rasin claims was the State’s improper

vouching for witnesses in its closing arguments. After careful review, we find the

Superior Court did not abuse its discretion by denying the motion for postconviction

relief. We affirm.
       (2)     Rasin and several other individuals were members of a Wilmington

gang known as the TrapStars.1 After escalating violence with another gang, the

police identified Rasin as the gunman who shot and killed a rival gang member on

May 3, 2010. On September 17, 2010, the police arrested Rasin and indicted him

on two counts of first degree murder, three counts of possession of a firearm during

the commission of a felony, three counts of possession of a firearm by a person

prohibited, gang participation, three counts of second degree conspiracy, and two

counts of attempted murder.2

       (3)     The trial began on February 13, 2012, with Rasin and a codefendant

being tried jointly. Six members or associates of the TrapStars pled guilty to related

charges and testified for the State against Rasin.3 In their closing arguments, the co-

defendants’ counsel questioned the credibility of these witnesses. In response, the

State rebutted the defense arguments, explaining “in this case, the State would

sub[mit] for each and every cooperating co-defendant who appeared before you

there is ample corroboration of their statement.”4 Rasin’s counsel did not object to


1
  Taylor v. State, 76 A.3d 791, 795–96 (Del. 2013).
2
  Before trial, the State entered a nolle prosequi on one count of first degree murder, one count of
possession of a firearm during the commission of a felony, and one count of second degree
conspiracy. During trial, the State entered a nolle prosequi on one count of possession of a firearm
by a person prohibited.
3
  The six witnesses were Darnell Flowers, Jeroy Ellis, Robert Valentine, Terry Smith, Kevin
Fayson, and Quincey Thomas. App. to Opening Br. at 33–38 (Trial Tr., State v. Rasin, No.
N1009014476, at 37, 49, 54, 83, 93 (Del. Super. Feb. 20, 2012)).
4
  Id. at 39 (Trial Tr., at 66–69).



                                                 2
the prosecutor’s statements. The jury found Rasin guilty of first degree murder,

possession of a firearm during the commission of a felony, two counts of second

degree conspiracy, two counts of possession of a firearm by a person prohibited,

gang participation, and attempted murder. This Court affirmed his conviction on

September 25, 2013.5

       (4)     On October 18, 2014, Rasin filed a pro se motion for postconviction

relief. Rasin claimed that his counsel was ineffective for not requesting a mistrial

due to the potential bias of a juror whose brother had been murdered; and for failing

to object to the State vouching for witnesses in its closing arguments.6 The Superior

Court denied Rasin’s motion on November 17, 2017.7 First, it found that the record

showed that counsel had acted reasonably in its response to the potential juror bias,

and even if it had not, Rasin failed to show that he suffered prejudice.8 Second, it

found that the State’s statements did not amount to improper witness vouching,

because they were made “for the purpose of responding to Defendant’s counsel’s

attacks on the credibility of the State’s witnesses” and were not just statements of




5
  Taylor, 76 A.3d 791.
6
  Rasin also raised claims of ineffective assistance of counsel in his original motion for failure to
challenge: the court’s admission of plea agreements, the statements of co-conspirators, and the
court’s ruling in regards to the unavailability of a co-defendant. The Superior Court found these
claims mooted by Phillips v. State, 154 A.3d 1130 (Del. 2017) and thus did not consider them.
7
  Order, Rasin, No. 1009014476 (Del. Super. Nov. 14, 2017)).
8
  Id. at 8.



                                                 3
the State’s personal beliefs and opinions.9 Rasin appeals the Superior Court’s

decision as to the witness vouching issue.

       (5)     This Court reviews the denial of a Rule 61 motion for an abuse of

discretion.10 The Court must first “consider the procedural requirements of Rule 61

before addressing any substantive issues.”11 A motion for postconviction relief is

barred by Rule 61(i)(1) if filed more than one year after final conviction; by Rule

61(i)(2) if not asserted in a prior postconviction motion; by Rule 61(i)(3) if

procedurally defaulted; and by Rule 61(i)(4) if formerly adjudicated.12 A claim not

formerly raised or adjudicated may be reconsidered “in the interest of justice.”13 In

addition, Rule 61(i)(5) provides an exception to the first three procedural bars if the

movant shows “a colorable claim that there was a miscarriage of justice because of

a constitutional violation that undermined the fundamental legality, reliability,

integrity or fairness of the proceedings leading to the judgment of conviction.”14

Rasin’s motion does not trigger any of the procedural bars, and thus is not barred by

Rule 61.



9
  Id. at 10.
10
   Neal v. State, 80 A.3d 935, 941 (Del. 2013).
11
   Bradley v. State, 135 A.3d 748, 756–57 (Del. 2016).
12
   Super. Ct. Crim. R. 61(i)(1)–(4). We apply the version of Rule 61 in effect at the time the motion
is filed. Bradley, 135 A.3d at 757. Rasin filed his motion for postconviction relief on October 18,
2014, at which time the June 4, 2014 version of Rule 61 was in effect.
13
   Super. Ct. Crim. R. 61(i)(2), (4).
14
   Id. 61(i)(5).



                                                 4
       (6)     To prevail on a claim of ineffective assistance of counsel, the defendant

must show that counsel’s actions fell below an objective standard of reasonableness

based on prevailing professional norms, and that he suffered prejudice because of

it.15 To establish prejudice, “[t]he defendant 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

       (7)     On appeal, Rasin argues the Superior Court abused its discretion by not

finding his counsel ineffective for failing to object to the State vouching for its

witnesses.17 The Superior Court found that the statements alleged to be vouching

were simply proper responses to the defendants’ attacks on the State’s witnesses’

credibility. Rasin contends that the State’s comments were impermissible because

they “were in no way invited by defense counsel in its closing.”18 According to

Rasin, “the Prosecutor in rebuttal went beyond neutralization and vouched for State

witnesses.”19 In response, the State argues that its comments were based on evidence

presented at trial and were in direct rebuttal to the defense’s statements attacking the

witnesses’ credibility.



15
   Strickland v. Washington, 466 U.S. 668, 687 (1984).
16
   Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
17
   Opening Br. at 6.
18
   Id.
19
   Reply Br. at 4.



                                                5
       (8)     The State may not vouch, positively or negatively, as to the credibility

of another witness and his truthfulness.20 “Improper vouching occurs when the

prosecutor implies some personal superior knowledge, beyond that logically inferred

from the evidence at trial, that the witness testified truthfully.”21 Witness vouching

includes statements that “directly or indirectly provide[] an opinion on the veracity

of a particular witness.”22 Witness vouching is “a special concern because jurors

may easily interpret vouching by the prosecutor as an official endorsement of the

witness,” given their position of authority and implied superior knowledge, “and in

doing so, overlook important aspects of the witness’ credibility.”23 The prosecutor

has the responsibility to “ensure that guilt is decided only on the basis of sufficient

evidence,” without the undue influence of “improper suggestions, insinuations, and

assertions of personal knowledge.” 24

       (9)     The State does have “flexibility in closing arguments that allows

attorneys to move beyond the bounds of merely regurgitating evidence and allows

attorneys to explain all legitimate inferences of innocence or guilt that flow[] from

the evidence presented at trial.”25 The State’s remarks “must ultimately be judged


20
   Green v. State, 147 A.3d 748, 2016 WL 4699156, at *3 (Del. Sept. 7, 2016) (TABLE).
21
   Whittle v. State, 77 A.3d 239, 243 (Del. 2013) (quoting White v. State, 816 A.2d 776, 779 (Del.
2003)).
22
   Baker v. State, 906 A.2d 139, 149 (Del. 2006).
23
   Miller v. State, 750 A.2d 530, 2000 WL 313484, at *5 (Del. Feb. 16, 2000) (TABLE).
24
   Kirkley v. State, 41 A.3d 372, 377 (Del. 2012).
25
   Burroughs v. State, 988 A.2d 445, 449 (Del. 2010).



                                                6
on whether they and other comments, in the whole context of the case, prejudiced

defendants’ right to a fair trial.”26 Here, the prosecutor’s remarks, when read in

context, were based on inferences that were drawn from the evidence at trial and

showed the witnesses’ motivations to testify truthfully. The remarks were not based

on the prosecutors personal beliefs or opinions.

       (10) Rasin argues that “[d]efense [c]ounsel at no time during his closing

argument accuse any of the State witnesses . . . as being less than truthful in their

testimony.”27 He explains that “by constantly implying the witnesses were not

lying” the prosecutor was “imputing her personal belief.”28 This argument, however,

is contradicted by the record. Defense counsel stated:

        “[H]ow trustworthy is somebody that’s been smoking PCP going to
         be . . . ?”29
        “Is [Fayson] a practiced liar?”30
        “How do you know Kevin Fayson is not [a] perjurer . . . and
         everything he told you was a lie?”31
        “[Ortiz] tells you that Fayson, essentially, is a bald-faced liar. He
         makes things up.”32
        “Fellows that are trying to help themselves with the police . . . have
         an agenda.”33


26
   Hooks v. State, 416 A.2d 189, 205 (Del. 1980).
27
   Opening Br. at 4.
28
   Id. at 7.
29
   App. to Opening Br. at 44 (Trial Tr., Rasin, No. N1009014476, at 33 (Del. Super. Mar. 14,
2012)).
30
   Id. at 45 (Trial Tr., at 36).
31
   Id. at 47 (Trial Tr., at 42).
32
   Id. (Trial Tr., at 45).
33
   Id. at 48 (Trial Tr., at 46).



                                             7
        “The State describes alleged confessions, sort of braggadocios,
         made up by Kevin Rasin after the shooting. How credible are those
         things?”34
        “How come two years later [Whye is] coming up with a different
         description?”35
        “[L]ook at these witnesses and decide are they accurate, are they
         dependable, are they reliable, or are they trustworthy?”36
        “I want you to consider your impression and your judgment of these
         people when you evaluate.”37
        “[D]o you think Robert Valentine is so tied to the truth that he’s not
         going to change his testimony in return for that sweet deal?”38
        “[W]ith that motive to tell a different story, can you believe him?
         Can you rely on his testimony? On cross-examination he said,
         ‘ninety-five percent of what I said is true. . . .’ Well, where’s he
         lying?”39

In its rebuttal, the State responded:

        “[F]or each and every cooperating co-defendant who appeared
         before you there is ample corroboration of their statement.”40
        “Why point to the one guy who could point back at you? Because
         that guy’s the one who [] shot Darnell Whye.”41
        “[M]ost people you’ve heard from . . . don’t want to be here. They
         don’t want to talk to the police. They don’t want to call 911. But
         that doesn’t mean they’re lying.”42
        “Why would Robert Valentine tell on his friend? Marc Taylor out
         of that whole crew? Marc Taylor was the one he was close with.”43



34
   Id. (Trial Tr., at 47–48).
35
   App. to Answering Br. at 6 (Trial. Tr., at 66).
36
   Id.
37
   Id.
38
   Id. at 10 (Trial Tr., at 84).
39
   Id. at 11 (Trial Tr., at 86).
40
   App. to Opening Br. at 39 (Trial Tr., at 66–69).
41
   Id. at 51 (Trial Tr., at 108).
42
   Id. (Trial Tr., at 106–07).
43
   Id. at 53 (Trial Tr., at 108).



                                                 8
        “If [JR is] lying, why not lie about one of them? Why point to him,
         his best friend?”44
        “Why would Maria Calva lie? Is she in cahoots with Fayson just
         like everybody else, as they claim? No. There’s no evidence of
         that.”45
        “Kevin Fayson could have just put it all on Rasin. . . . If this is a
         conspiracy to get Kevin Rasin, why not say that? Why not put it all
         on him, starting with [the] attempted murders in Browntown, if
         Fayson is such a liar?”46

       (11) “[T]he prosecution may fairly attempt to neutralize strident defense

arguments in the same manner as they were made.”47 The State’s comments directly

rebut the defendant’s assertions that the witnesses were lying and had an agenda.

The State did not “imply personal knowledge of the truth of a witness’s statement,”48

but rather, made arguments based on inferences that could be drawn from the

evidence presented at trial. Thus, the statements did not amount to witness vouching.

       (12) Rasin relies on Whittle v. State, in which the prosecutor improperly

vouched for the witnesses’ credibility by stating that “they were ‘right’ or ‘correct’

at least 20 times.”49 This Court noted that statements like “she was absolutely right”



44
   Id.
45
   Id. at 55 (Trial Tr., at 119).
46
   Id. at 56 (Trial Tr., at 122); see also Opening Br. at 4–5.
47
   Hooks, 416 A.2d at 205.
48
   State v. St. Louis, 2004 WL 2153645, at *6 (Del. Super. Sept. 22, 2004), aff’d, 869 A.2d 328
(Del. 2005); cf. Saunders v. State, 602 A.2d 623, 624 (Del. 1984), on reargument, 567 A.2d 423
(Del. 1989) (finding improper witness vouching when the prosecutor stated, “[the witness] told
something that was subsequently verified by other people” because it implied personal
knowledge).
49
   77 A.3d at 241.



                                              9
and “what [she] told you is exactly right,” are the sort of impermissible statements

based on personal knowledge and opinion prosecutors cannot share.50 In addition,

Rasin points out that in Whittle, the Court “cautioned against the use of the word

‘lie’ by prosecutors to describe witness testimony,” due to the risk that, much like a

prosecutor asserting an opinion of truth, there is the risk that the jury will be misled

from making inferences drawn on the evidence.51                 The Whittle case is

distinguishable. While the State used the word lie in the instant case, it was in

response to the defense’s assertions that the witnesses were lying. The State merely

asked the jury to consider why would the witnesses would lie in light of the evidence

presented. Unlike Whittle, the State’s comments were not based “entirely on the

impermissible inferences that the prosecutor himself had created,”52 but were based

on inferences logically drawn from the evidence.

      (13)    In a similar case, State v. Black, the defendant challenged statements

made by the State as improper witness vouching.53 The Superior Court rejected the

arguments, explaining that “a prosecutor is permitted to argue any inferences which

could be made from the evidence presented at trial.”54 The court found that the




50
   Id. at 245.
51
   Id. at 246.
52
   Id. at 248.
53
   2010 WL 5313451, at *10 (Del. Super. Nov. 30, 2010).
54
   Id. at *9.



                                             10
prosecutor’s statements could be “logically deduced from testimony by witnesses at

trial,” and “[i]n no way did the prosecutor imply that she possessed knowledge

outside the evidence presented at trial.”55 The prosecutor was allowed to address the

credibility of the witness by “asking the jury to make a logical inference” and

“arguing why the [witness] should be believed.”56 Here, the State did not make any

statements suggesting personal knowledge of the witnesses’ credibility, but simply

provided facts from the record showing why the witnesses should be believed.

          (14) The State did not improperly vouch for its witnesses, and thus there

were no grounds for Rasin’s counsel to object. The Superior Court did not abuse its

discretion by finding that Rasin’s counsel was not ineffective.

          NOW, THEREFORE, it is hereby ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                               BY THE COURT:

                                               /s/ Collins J. Seitz, Jr.
                                                      Justice




55
     Id.
56
     Id. at *10.


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