             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                            )
                                             )
       v.                                    )       I.D. No. 9507001267
                                             )
VARIS AIZUPITIS,                             )
                                             )
       Defendant.                            )

              Upon Consideration of Defendant’s Motion for Postconviction Relief
                                         DENIED

                              Date Submitted: November 21, 2018
                               Date Decided: February 19, 2019

James V. Apostolico, Esq., and Andrew J. Vella, Esq., Department of Justice, Wilmington,
Delaware. Attorney for the State.

Varis Aizupitis, Pro se.

DAVIS, J.

                                       INTRODUCTION

       This is a criminal case after conviction. The history regarding the post-conviction relief

sought here is unusual and lengthy. Counsel for Defendant Varis R. Aizupitis first filed a motion

for postconviction relief (the “Original Motion”) under Superior Court Criminal Rule 61 (“Rule

61”) on February 16, 1999. As is set forth below, the Court did not act on that first motion.

After a number of hearings, the Court set a deadline for Mr. Aizupitis to file an amended motion

for postconviction relief under Rule 61. Mr. Aizupitis filed his Rule 61 Motion on June 27, 2016

(the “Motion”). The Motion amends and supersedes the Original Motion. The Court will be

considering and deciding only the issues raised in the Motion.

       On July 31, 2018, the State filed its State’s Response to Defendant’s Motion for

Postconviction Relief (the “Response”). Mr. Aizupitis filed his Motion Replying to the State
Rule 61 Answer (the “Reply”) on or about August 27, 2018. In addition to the Motion, the

Response and the Reply, the Court considered affidavits submitted by Mr. Aizupitis’ original

trial counsel (“Trial Counsel”) on June 28, 2018, and April 8, 1999, and the entire record of this

criminal action.

        On November 21, 2018, the Court held a hearing (the “Hearing”) on the Motion. At the

Hearing, the Court heard argument from Mr. Aizupitis and the State. At the conclusion of the

Hearing, the Court took the Motion under advisement. For the reasons set forth below, the Court

will DENY the relief sought in the Motion.

                                               BACKGROUND

        Mr. Aizupitis was arrested on July 4, 1995, for the murder of Elizabeth Henderson.1 Mr.

Aizupitis shot Ms. Henderson once in the right arm and once in the head with a .357 caliber

handgun. After shooting Ms. Henderson, Mr. Aizupitis immediately dialed 911 and implicated

himself in her death, stating “[h]ere I am. I am the one who shot her.”2 Ms. Henderson had been

Mr. Aizupitis’ landlord for approximately one year. Mr. Aizupitis and Ms. Henderson both

resided at 1802 Wawaset Street in Wilmington. According to the record in this criminal action,

for as long as Mr. Aizupitis had resided at 1802 Wawaset Street, he and Ms. Henderson had had

an on-going dispute over approximately $300, which Mr. Aizupitis believed was due to him for

certain repair/renovation work performed at the residence.

        On July 10, 1995, a New Castle County Grand Jury returned an indictment charging Mr.

Aizupitis Murder in the First Degree and with Possession of a Firearm during the Commission of




1
  Some of the factual background is taken from the Court’s decision on Mr. Aizupitis’ motion for a new trial. State
v. Aizupitis, 699 A.2d 1098, 1099-1100 (Del Super. 1996).
2
  State v. Aizupitis, 1995 WL 1918900, at *1 (Del. Super. Nov. 28, 1995). According to Trial Counsel, Mr.
Aizupitis gave a “full confession even stating, in your affiant’s memory, the phrase: ‘I stopped her and dropped
her.’” Oberly 2018 aff. at ¶ 7.

                                                         2
a Felony.

        From the record, Trial Counsel relied upon the affirmative defense of not guilty by reason

of insanity and on the mitigating circumstance of extreme emotional distress. The record

provides that no one disputed the fact that Mr. Aizupitis is a paranoid schizophrenic. Prior to

trial, the parties and the Court were actively engaged in motions practice and pre-trial

conferences regarding, among other things, expert witnesses, jury selection, discovery, jury

instructions and alike.3 The trial began on February 8, 1996. The trial was a battle of experts

with three psychiatrists testifying for the defense and one psychiatrist and one neuroradiologist

testifying for the State.

        The jury was given the case on February 22, 1996. As to the charge of Murder in the first

degree, the jury considered five possible verdicts: (1) guilty as charged; (2) guilty but mentally ill

of Murder in the First Degree; (3) guilty of Manslaughter; (4) not guilty by reason of insanity;

and (5) not guilty. As to the weapons charge, the jury considered four possible verdicts: (1)

guilty as charged; (2) guilty but mentally ill of Possession of a Firearm during the Commission

of a Felony; (3) not guilty by reason of insanity; and (4) not guilty.

        After deliberating, the jury returned verdicts of guilty but mentally ill of Murder in the

First Degree and guilty but mentally ill of the weapons offense. The verdicts were entered, a pre-

sentence investigation was ordered, bail was revoked and sentencing was scheduled for May 3,

1996. Mr. Aizupitis then moved for a new trial. The Court denied the motion for a new trial on

April 18, 1996.4 The Court sentenced Mr. Aizupitis on May 3, 1996. Under the sentencing

order, Mr. Aizupitis was committed into the custody of the Department of Corrections (“DOC”)



3
  See, e.g., Aizupitis, 1995 WL 1918900, at *1 (granting cross motions to compel discovery, including documents
and reports relied upon by experts in formulating their opinions).
4
  See Aizupitis, 699 A.2d at 1008.

                                                        3
and, thereafter, was confined at the Delaware State Hospital (the “Hospital”). The sentencing

order also provided that Mr. Aizupitis was to remain at the Hospital until discharge from

treatment and, upon discharge, remanded back to DOC to serve a life sentence.

           Mr. Aizupitis took a direct appeal of his conviction on June 5, 1996. During the appeal

process, Trial Counsel withdrew and the Court appointed new counsel to represent Mr. Aizupitis.

The Supreme Court affirmed the judgments of the Court on July 22, 1997.5 The Supreme Court

issued its mandate on August 11, 1997.

           On August 14, 1997, the State filed a motion to transfer Mr. Aizupitis from the Hospital

to a DOC facility. The Court then appointed another attorney (“Rule 61 Counsel”) to represent

Mr. Aizupitis. The State withdrew its motion. Subsequently, the Court denied another request to

transfer on September 23, 1998.

           On February 16, 1999, Rule 61 Counsel filed the Original Motion. The State responded

on March 17, 1999. On March 17, 1999 and April 8, 1999, Trial Counsel filed affidavits in

response to the Original Motion. On September 27, 1999, Rule 61 Counsel submitted a letter to

the Court, stating that he had reason to believe Mr. Aizupitis was not “currently” competent to

attend any hearing on the Original Motion. The Court ordered Mr. Aizupitis to undergo a

psychiatric evaluation. After the completion of the evaluation, the Court continued any hearing

on the Original Motion.

           Subsequently, Mr. Aizupitis began contacting the Court for various reasons, including to

inform the Court that he wanted to disclaim any representation by his Rule 61 Counsel. Upon

request of Rule 61 Counsel, the Court appointed an attorney to act as Mr. Aizupitis’ guardian ad

litem (the “Guardian”).



5
    Aizupitis v. State, 699 A.2d 1092, 1098 (Del. 1997)

                                                          4
       On February 27, 2001, the Court noted that the State continued to provide reports that

Mr. Aizupitis should be moved from the Hospital to DOC and that Mr. Aizupitis’ representatives

opposed any transfer. The Court intended to hold a joint competency/placement hearing and, at

that hearing, also decide how to proceed with the Original Motion. On March 31, 2001, the

Guardian informed the Court that Mr. Aizupitis was not willing to proceed on the Original

Motion until his Rule 61 Counsel was dismissed.

       At this time, the original trial judge retired and the case was reassigned. The Court held a

status conference. On September 21, 2001, the Court ordered that Mr. Aizupitis undergo a

psychiatric evaluation by the staff of the Hospital for the purpose of determining whether Mr.

Aizupitis was competent to proceed with the Original Motion.

       On February 26, 2002, the Court issued a letter order regarding the Original Motion. The

Court stayed further proceedings in the criminal action until there was a change in Mr. Aizupitis’

mental condition. The Court further provided that until there is a change in Mr. Aizupitis’ status,

the Court would not take further action.

       On January 21, 2003, the State sought a competency hearing and a transfer of Mr.

Aizupitis from the Hospital to DOC. On January 27, 2003, the Guardian submitted a letter to the

Court, requesting that Mr. Aizupitis not be transferred until issues relating to Mr. Aizupitis’

mental condition were resolved. On January 29, 2003, Rule 61 Counsel also wrote the Court

regarding any transfer of Mr. Aizupitis from the Hospital to DOC. The Court authorized funds

for Mr. Aizupitis to be evaluated by Dr. Raskin. Mr. Aizupitis refused to be evaluated by Dr.

Raskin.

       The Court held a competency hearing on September 29, 2003. The Court took the matter

under advisement. On November 25, 2003, the Court concluded it cannot go forward on the



                                                 5
Original Motion without the independent evaluation by Dr. Raskin. The Court held that, so long

as Mr. Aizupitis refuses to be examined by Dr. Raskin, the Court will hold a decision on the

Original Motion “in abeyance.” The Court further held that “if and when [Mr. Aizupitis] permits

a thorough mental health examination by Dr. Raskin, the Court will conduct a supplemental

hearing prior to rendering a decision [on the Original Motion], it is so Ordered.”

           The Rule 61 Counsel moved to withdraw representation due to a conflict of interest on

May 24, 2005. On June 10, 2005, the Court appointed new counsel (“Second Rule 61 Counsel”)

to represent Mr. Aizupitis in connection with the Original Motion.

           On February 15, 2006, Mr. Aizupitis wrote the Court. Mr. Aizupitis requested a status

update on his case. The Court responded, reminding Mr. Aizupitis that the case was stayed until

he agreed to be examined by Dr. Raskin.

           On March 13, 2007, Mr. Aizupitis filed a petition for a writ of habeas corpus (the

“Petition”) with the Court. The Court denied the Petition on March 15, 2007. Mr. Aizupitis

appealed to the Supreme Court. The Supreme Court affirmed the Court’s decision to deny the

Petition. In its decision, the Supreme Court made it clear it understood the procedural status of

the Original Motion, writing:

           The record reflects that, in 1996, a Superior Court jury found Aizupitis guilty but
           mentally ill of first degree murder and possession of a firearm during the
           commission of a felony. This Court affirmed his convictions on direct appeal. Since
           that time, Aizupitis has been confined at the Delaware Psychiatric Center,
           consistent with 11 Del. C. § 408. In February 1999, Aizupitis filed a motion for
           postconviction relief. Based on a psychiatric evaluation performed in October
           1999, the Superior Court determined that Aizupitis was not competent to proceed
           in the postconviction proceedings. In September 2001, the Superior Court ordered
           a subsequent competency evaluation. The trial court stayed disposition of the
           matter, however, until Aizupitis agreed to be examined by an additional
           psychiatrist. In March 2007, Aizupitis filed a petition for a writ of habeas corpus
           seeking review of the Superior Court’s determination that he was not competent.
           The Superior Court denied the writ, and this appeal followed.6
6
    Aizupitis v. State, 933 A.2d 1249 (Del. 2007)(table)(emphasis added).

                                                           6
       Subsequent to the denial of the Petition, the State regularly filed

psychological/psychiatric reports with the Court. Mr. Aizupitis, however, continued to refuse to

be examined by Dr. Raskin.

       The case was subsequently reassigned on or about December 21, 2012. On June 18,

2014, the Court scheduled a status conference with the State, the Guardian and Second Rule 61

Counsel. At the status conference, the Court noted that it will not order the transfer of Mr.

Aizupitis from the Hospital to DOC until the State makes a formal request under 11 Del. C. §

408 and a hearing is held. The Guardian took the position that (i) Mr. Aizupitis remained not

competent to assist counsel with the Original Motion and (ii) the Guardian’s position was

probably contrary to Mr. Aizupitis’ wishes.

       The State filed a motion, under 11 Del. C. § 408, to transfer Mr. Aizupitis from the

Hospital to DOC, C.A. No. N14M-10-277 EMD (the “Transfer Action”), on November 21, 2014.

Because the Transfer Action involved civil law issues and not just criminal law issues, the Court

appointed additional counsel to represent Mr. Aizupitis in the Transfer Action. Eventually, the

Court entered a stipulated order that transferred Mr. Aizupitis from the Hospital to DOC.

       On April 16, 2015, Second Rule 61 Counsel filed a motion to determine competency of

Mr. Aizupitis to proceed with postconviction relief. The Court granted the motion on June 2,

2015, declaring Mr. Aizupitis competent to pursue the Original Motion.

       After additional procedural practice, the Court eventually allowed Second Rule 61

Counsel to withdraw. The Court also permitted Mr. Aizupitis to proceed pro se on the Original

Motion. Subsequently, Mr. Aizupitis filed the Motion.

                                         THE MOTION

       Mr. Aizupitis makes five categories of contentions for relief in the Motion. Mr. Aizupitis

                                                 7
first contends his constitutional rights to a speedy and public trial and to due process have been

violated due to the length of time it has taken to resolve the Motion (including the Original

Motion). Mr. Aizupitis’ next three contentions all relate to claims of ineffective assistance of

counsel – incompetency at trial, failure of a duty to consult and right to testify. Finally, Mr.

Aizupitis seeks relief under Rule 61 due to prosecutorial misconduct, arguing that the State’s use

of the word “rage” during closing arguments constituted legally objectionable tactics calculated

to arouse the prejudices of the jury.

           The State opposes the Motion. The State first argues that the prosecutorial misconduct

claim is procedurally barred. The State next contends that Mr. Aizupitis has not demonstrated

that Trial Counsel representation fell below an objective standard of reasonableness and there

exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Finally, the State argues that any delay in resolution of

the Motion is directly related to Mr. Aizupitis’ own conduct and, therefore, his rights to due

process have not been violated.

                                              LEGAL STANDARD

           Before addressing the merits of a Rule 61 motion for postconviction relief, the Court

must first determine whether Mr. Aizupitis has satisfied the procedural requirements of Rule 61.7

As of February 16, 1999, Rule 61(i) established four procedural bars to postconviction relief: (1)

a motion for postconviction relief may not be filed more than one year after the judgment of

conviction is final; (2) any ground for relief not asserted in a prior postconviction proceeding is

barred; (3) any ground for relief not asserted in the proceedings leading to the judgment of

conviction is barred; and (4) any ground for relief previously adjudicated in any proceeding is



7
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).

                                                       8
barred.8

        The procedural bars contained in Rule 61(i)(1-4) may be rescinded only if there is a

means by which to do so in the applicable subsection of Rule 61.9 Absent such relief, Rule 61

(i)(5) provides additional reprieve from the procedural bars described in Rule 61 (i)(1-3).10

Under Rule 61 (i)(5), “[t]he bars to relief in paragraphs (1), (2), and (3) of this subdivision shall

not apply to a claim that the court lacked jurisdiction or to 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.”11

        The Court finds that the Mr. Aizupitis contentions regarding ineffective representation by

Trial Counsel are not procedurally barred under Rule 61(i)(1-4). As discussed below, the Court

does find the Motion’s contention regarding prosecutorial to be procedurally barred under Rule

61(i)(3).

                                              DISCUSSION

    A. MR. AIZUPITIS’ CONSTITUTIONAL RIGHTS TO A SPEEDY AND PUBLIC TRIAL AND TO
       DUE PROCESS HAVE NOT BEEN VIOLATED.

        Mr. Aizupitis contends his constitutional rights to a speedy and public trial and to due

process under the Sixth Amendment of the U.S. Constitution (defined by Mr. Aizupitis as the

“Speedy Trial Clause”) have been violated due to the length of time it has taken to resolve the

Motion (including the Original Motion). Mr. Aizupitis, however, relies on a line of cases that

were “abrogated” the United Supreme Court’s decision in Betterman v. Montana.12


8
  Super. Ct. Crim. R. 61(i).
9
  State v. MacDonald, 2007 WL 1378332 *4 (Del. Super., May 9, 2007).
10
   Id.
11
   Super. Ct. Crim. R. 61(i)(5).
12
   136 S. Ct. 1609 (2016).

                                                     9
        In Betterman, the United States Supreme Court held that the Sixth Amendment’s speedy

trial guarantee, i.e., the Speedy Trial Clause, protects the accused from arrest or indictment

through trial, but does not apply once a defendant has been found guilty at trial or has pleaded

guilty to criminal charges. The Betterman decision abrogates those cases, including Burkett v.

Cunningham, that applied the Sixth Amendment’s speedy trial guarantee to postconviction

delays.13 Specifically, the United State Supreme Court stated that the Sixth Amendment’s

speedy trial clause only addresses that aspect of a criminal action that involves the period from

arrest or indictment through conviction but detaches upon conviction.14 This is because the

presumption-of-innocence-protective speedy trial right is no longer implicated after conviction

through a trial or a guilty plea.15

        Mr. Aizupitis mentions “due process” concerns but only as these concerns relate to the

speedy trial guarantee. Due process, under a pliable standard, could be implicated in undue

delay. The Court acknowledges that the time between the filing of the Original Motion and

resolution is twenty (20) years; however, the delay is not attributable to the State or the Court

ignoring procedural safeguards. The record demonstrates that the parties and the Court engaged

in an orderly process to address the Original Motion but, in the end, were stymied by Mr.

Aizupitis’ refusal to undergo an assessment by Dr. Raskin. Moreover, the Court has responded

to and ruled on those matters placed before, e.g., the Petition—which was also addressed by the

Supreme Court with full understanding of the procedural history of the Original Motion.16


13
   Id. at 1613, n.1. The Court has included the reference to Burkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987)
given Mr. Aizupitis’ heavy reliance upon this case for his Speedy Trial/Due Process constitutional claim.
14
   Id. at 1613-14.
15
   Id. at 1617.
16
   Aizupitis, 933 A.2d at 1249 (“In February 1999, Aizupitis filed a motion for postconviction relief. Based on a
psychiatric evaluation performed in October 1999, the Superior Court determined that Aizupitis was not competent
to proceed in the postconviction proceedings. In September 2001, the Superior Court ordered a subsequent
competency evaluation. The trial court stayed disposition of the matter, however, until Aizupitis agreed to be
examined by an additional psychiatrist.”).

                                                        10
        Under the facts present here and the applicable law, the Court holds that Mr. Aizupitis’

constitutional rights under the Sixth Amendment and to due process

     B. MR. AIZUPITIS’ PROSECUTORIAL MISCONDUCT CLAIM IS PROCEDURALLY BARRED.

        Under Rule 61(i)(3), a claim not asserted in the proceedings leading to the judgment of

conviction is procedurally barred. Claims regarding prosecutorial misconduct are the types of

claims that should be raised during the direct appeal process.17 If raised for the first time in a

Rule 61 motion, a defendant must show that: (i) “some external impediment” prevented him

from raising the claim on direct appeal and (ii) he was prejudiced in that the outcome would have

changed had the issue been raised before.18

        Mr. Aizupitis contends that the State committed prosecutorial misconduct in that the

word “rage” was used during closing arguments at trial. Mr. Aizupitis is not 100% clear as to

what impediment prevented the prosecutorial misconduct issue from being raised on direct

appeal. Mr. Aizupitis seems to lay the blame on Trial Counsel and the Court for not addressing

the use of “rage” at trial but does not explain why the matter was not raised on appeal by his

newly appointed appellate counsel. Mr. Aizupitis also contends that the outcome would have

been different because state of mind was critical in the trial.

        The Court does not accept Mr. Aizupitis’ arguments. First, the argument regarding Trial

Counsels’ failure to object does not explain why the issue could not have been raised on appeal.

This is especially true in that Mr. Aizupitis contends that the use of the word “rage” constituted

plain error. Second, the Court cannot agree with Mr. Aizupitis’ contention that the word of

“rage” in a murder trial can be compared to injecting “race” into a trial as done in Weddington v.


17
   See, e.g., State v. Desmond, 2006 WL 2221005, at *2 (Del. Super. Aug. 2, 2006), aff’d 937 A.2d 139 (Del.
2007)(table).
18
   Super. Ct. Crim. Rule 61(i)(3)(A); see also Younger, 580 A.2d at 556; Flamer v. State, 585 A.2d 736, 748 (Del.
1990).

                                                        11
State,19 especially when very little context is provide other than timing and tone. This is

particularly true when the word was used only once and it was used in a case involving the

uncontested fact that Mr. Aizupitis shot an unarmed victim twice—once in the arm/torso and

once in the head—with a handgun.

        Because the prosecutorial misconduct claim is procedurally barred, Mr. Aizupitis must

satisfy the “fundamental fairness” exception contained in Rule 61(i)(5).20 Mr. Aizupitis bears

the burden under Rule 61(i)(5). 21 Rule 61(i)(5) provides a narrow exception that applies in

limited circumstances such as when the right relied upon has been recognized for the first time

after the direct appeal.22 The fundamental fairness exception does not apply to a mistake

committed at trial or on appeal. Instead, the mistake must be a “miscarriage of justice” so

substantial as to call into question whether the defendant is innocent or the conviction was

wrong. The factual and procedural record, despite all the Motion’s hyperbole, does not support a

finding that the use of the word “rage” was so inflammatory that the jury ignored the fact that

Mr. Aizupitis was innocent or that the conviction was wrong.

     C. Mr. Aizupitis’ Ineffective Assistance of Counsel Claims Fail Under the Strickland
        Analysis.

        Mr. Aizupitis asserts a number of ineffective assistance of counsel claims. The standard

used to evaluate a claim of ineffective assistance of counsel is the two-pronged test articulated by

the United States Supreme Court in Strickland v. Washington,23 and adopted by the Delaware

Supreme Court in Albury v. State.24 Under Strickland, the defendant “must establish both (1)


19
   545 A.2d 607 (Del. 1988)(prosecutor injected unsubstantiated issues of race during the cross-examination of the
defendant).
20
   State v. Taylor, 2000 WL 33113935 (Del. Super. Oct. 27, 2000).
21
   Younger, 580 A.2d at 555.
22
   Id.
23
   466 U.S. 668, 687 (1984)
24
   State v. Sykes, 2014 WL 619503 *12 (Del. Super. Jan 21, 2014) (citing Flamer v. State, 585 A.2d 736, 754 (Del.
1990)); State v. Gattis, 1995 WL 790961, at *3 (Del. Super. Dec. 28, 1995).

                                                        12
deficient performance by trial counsel and (2) prejudice suffered as a result of the deficient

performance.”25 Failure to establish either prong of the test will result in a denial of the

defendant’s claim for relief.26

        In order to satisfy the first prong of the Strickland test, the defendant must demonstrate

that counsel’s performance fell below an objective standard of reasonableness.27 There is no

exact standard used to determine reasonably effective assistance of counsel, rather, performance

is measured under prevailing professional norms.28 “Prevailing norms of practice as reflected in

American Bar Association standards and the like . . . are guides to determining what is

reasonable, but they are only guides.”29 In Strickland, the United States Supreme Court

recognized that there is more than one way for counsel to provide effective assistance in any

given case, noting that equally competent attorneys may tactically approach the same case in a

different manner.30 Moreover, the movant must overcome a strong presumption that counsel’s

performance was within the “wide range of reasonable professional assistance.”31

        The second prong of the Strickland test requires that the defendant prove that it is

reasonably probable that, but for the mistakes of counsel, “the fact finder would have had a

reasonable doubt respecting guilt.”32 In Strickland, the United States Supreme Court defined

reasonable probability as “a probability sufficient to undermine confidence in the outcome.”33 In

determining whether the defendant suffered prejudice as a result of ineffective assistance of




25
   Id. (citing Strickland, 466 U.S. at 687).
26
   Id. (citing Strickland, 466 U.S. at 697).
27
   Strickland, 466 U.S. at 688.
28
   Sykes, 2014 WL 619503, at *13 (citing Strickland, 466 U.S. at 688).
29
   Strickland, 466 U.S. at 688.
30
   Id. at 689.
31
   Gattis, 1995 WL 790961, at *4 (citing Strickland, 466 U.S. at 689).
32
   Strickland, 466 U.S. at 695.
33
   Id. at 694.

                                                        13
counsel, the Court must consider the “totality of the evidence before the judge or jury.”34 The

showing of prejudice is essential to a claim of ineffective assistance of counsel, and thus, the

court in Strickland stated “[i]f 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.”35

Furthermore, “[i]f the defendant fails to ‘state with particularity the nature of the prejudice

experienced,’ such failure is ‘fatal to a claim of ineffective assistance of counsel.’”36

         As set forth more fully below, the Court does not find merit to any of Mr. Aizupitis’

ineffective assistance of counsel claims. Even viewed in “hindsight,” Trial Counsel’s

representation of Mr. Aizupitis did not fall below an objective standard or reasonableness.

Moreover, Mr. Aizupitis cannot demonstrate that it is reasonably probable that, but for the

alleged mistakes of Trial Counsel, the jury would have had reasonable doubt as to Mr. Aizupitis’

guilt.

         Incompetency at trial

         Mr. Aizupitis contends that Trial Counsel were ineffective because they failed to obtain a

competency determination prior to trial. Mr. Aizupitis argues that he was not competent to stand

trial, that his conduct was such that his incompetency should have been recognized, and that his

post-trial treatment supports his argument that he was incompetent to stand trial.

         The record indicates otherwise. First, Trial Counsel state in their affidavits that they

closely monitored Mr. Aizupitis with the understanding of the standard of competency under

Delaware law.37 Moreover, Trial Counsel retained the services of Dr. Raskin prior to trial.38 Dr.




34
   Id. at 695.
35
   Id. at 697.
36
   Sykes, 2014 WL 619503, at *13 (citing Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996)).
37
   Oberly 1999 aff. at ¶ 2.; Jennings 1999 aff. at ¶¶ 1.a-g. 2-6.
38
   Oberly 1999 aff. at ¶ 2.

                                                       14
Raskin met with Mr. Aizupitis ten times before trial.39 Dr. Raskin told trial counsel that he

would monitor Mr. Aizupitis’ competency to stand trial and alert counsel if a genuine issue

arose.40 Trial counsel did state that Mr. Aizupitis became less stable through the trial but, again,

counsel appears to have made the decision to continue based on experience, assistance from Dr.

Raskin and a mid-trial colloquy from the trial judge.41 According to Trial Counsel, Dr. Raskin

continued to see Mr. Aizupitis during the trial and provided a verbal report to the Court

regarding competency.42

         It appears from the record that Trial Counsel were aware of his mental condition,

monitored it, obtained professional medical assistance and involved the Court when necessary.

All of this indicates that Trial Counsel’s representation of Mr. Aizupitis was effective and did not

fall below an objective standard of reasonableness as that representation relates to his

competency to stand trial.

         Also relevant to the Court’s conclusion is the record after trial—the appeal and

postconviction representation. The record indicates that, despite the verdict of guilty but

mentally ill, appellate counsel felt that Mr. Aizupitis was able to assist appellate counsel during

the appeal. In fact, the first person to raise Mr. Aizupitis’ competency to stand trial was Rule 61

Counsel—who was first appointed on September 12, 1997. Rule 61 Counsel first raised the

claim in the Original Motion on February 16, 1999. 43 Almost two years after being appointed to

represent Mr. Aizupitis, on September 27, 1999, Rule 61 Counsel submitted a letter to the Court,


39
   Jennings 1999 aff. at ¶ 1.b.
40
   Id.
41
   Id. at ¶ 6B.1 (“When I raised the issue of competency and when the Court raised it as well, Dr. Raskin opined that
Mr. Aizupitis met the basic standards [of competency]”).
42
   Id. at ¶ 1.f (citing to the February 20, 1996 trial transcript at 239-240).
43
   The Original Motion does make the same argument regarding a pre-trial competency evaluation. It is not clear,
however, whether Rule 61 Counsel knew whether Mr. Aizupitis was incompetent or whether Trial Counsel was
obligated to request a competency hearing before trial. Rule 61 Counsel, however, makes conclusory statements
regarding competency during trial without any supporting medical opinion.

                                                         15
stating that he had reason to believe Mr. Aizupitis was not “currently” competent to attend any

hearing on the Original Motion. So, from August 22, 1996 through September 27, 1999, lawyers

for Mr. Aizupitis (other than his trial counsel) interacted with him and none found it necessary to

raise the issue of his competency—with the Court, the Supreme Court or anyone else—to pursue

his appeal or postconviction relief.

         The Court is satisfied that trial counsel provided representation regarding failing to

request a competency hearing before trial did not fall below an objective standard of

reasonableness.44

         Duty to Consult

         Mr. Aizupitis contends that his trial counsel provided ineffective assistance at trial

because they failed to consult with him on issues regarding “strategy at trial,” “release of

confidential materials,” and a “state of mind witness.” Mr. Aizupitis claims that Trial Counsel

did not provide him with information regarding available affirmative defenses, lesser included

offenses or otherwise consult with him on trial strategy.

         Trial Counsel directly addresses the issue of “release of confidential matters.” This was a

case requiring expert witness testimony. As such, Mr. Aizupitis met with psychiatric experts

who examined him to determine whether he suffered “from a mental illness and whether as a

result he met the legal criteria for guilty but mentally ill, not guilty by reason of insanity or



44
   Trial Counsel does candidly recognize the difficulty Mr. Aizupitis’ competency in her 1999 affidavit. Oberly
1999 aff. at 3-4; Jennings 1999 aff. at 7-8. Trial counsel even suggests a remedy used in Harris v. State, 410 A.2d
500 (Del. 1979). The Court has reviewed the ruling in Harris. Harris involves a case where trial counsel and the
Court had no idea that the defendant might have a mental condition that could have made him incompetent to stand
trial. Id. at 501. After trial, Mr. Harris’ counsel reviewed Mr. Harris’ conduct before and during trial and felt that,
after reflection, it was possible that Mr. Harris may not have comprehended the seriousness of the situation. Id.
Here, Mr. Aizupitis’ mental condition was known prior to trial, was monitored throughout trial by a doctor and Mr.
Aizupitis’ counsel felt he did comprehend what was going on during trial—able to provide counsel with pertinent
facts, motivated in his defense, appreciated the charges and was able to relate to his attorneys. Jennings 1999 aff. at
8.

                                                          16
extreme emotional distress.”45 During this process, Mr. Aizupitis provided information to his

experts and the experts formed opinions based on this information. Accordingly, in order to

testify, Mr. Aizupitis’ experts had to turn this information over during discovery.46 In addition,

Trial Counsel felt that this information was relevant and helpful to Mr. Aizupitis’ defense.47

         Mr. Aizupitis seems to believe that Trial Counsel merely turned the information over to

the State without consulting him. The record indicates otherwise. Instead of this being a

unilateral decision by Trial Counsel to turn over confidential information, Trial Counsel turned

over the information relied upon by Mr. Aizupitis’ experts as required when an expert opinion is

rendered and used in trial.48 In fact, the Court ordered such disclosure of materials.49

         Mr. Aizupitis’ complaints that Trial Counsel did not consult with him regarding available

affirmative defenses, lesser included defenses, particular witnesses and alike are refuted by trial

counsels’ affidavits.50 Trial Counsel laid out in detail their approach to trial and their interaction

with Mr. Aizupitis. Trial Counsel and Mr. Aizupitis discussed: (i) the relevant and pertinent

facts; (ii) the charges and range and nature of penalties; (iii) affirmative defenses (including—

given the actual facts—an implausible self-defense strategy);51 (iv) the role of counsel in the trial

process; and (v) the import of witness’ testimony.52

         Mr. Aizupitis spends time discussing the testimony of his grandfather, Warner Gardner.

Mr. Aizupitis contends that in a phone call with Mr. Gardner prior to the shooting he acted in a


45
   Jennings 2018 aff. at ¶¶ 2-4.
46
   Id. at ¶¶ 5-7.
47
   Id. at ¶ 7.
48
   See, e.g., Del. R. Evid. 702. Moreover, the Court required Mr. Aizupitis’ trial counsel to turn over all materials
that the experts used to formulate their opinions.
49
   See State v. Aizupitis, 1995 WL 1918900, at *4 (Del. Super. Nov. 28, 1995).
50
   See, e.g., Oberly 2018 aff. at ¶ 7.
51
   Mr. Aizupitis used deadly force in a factual situation that does not support the defense of justification under
Delaware law. The victim was not armed and nothing indicated that Mr. Aizupitis could not have avoided the use of
deadly force by safely retreating, etc. See 11 Del C. § 464(e)(2).
52
   See Jennings 1999 aff. at ¶ 6.A.2-6 and ¶ 6.B.1-3 and 5.

                                                         17
manner that supported the “not guilty by reason of insanity” defense. Mr. Aizupitis believed that

Mr. Gardner would testify as such at the trial. The Court granted leave to take Mr. Gardner’s

deposition for use at trial. The deposition was played at trial but, now, Mr. Aizupitis contends it

was not what he thought it would be and that trial counsel should have discussed the deposition

more with him prior to its use. To demonstrate ineffective assistance of counsel on tactical

decisions, Mr. Aizupitis must demonstrate what information could have been obtained and how

this information would have changed the result. As presented, the “missing” testimony of Mr.

Gardner may have been helpful as supporting the defense or the expert opinions regarding state

of mind. But Trial Counsel’s representation, as it relates to Mr. Gardner’s potential testimony,

was a tactical decision that does not seem to fall below an objective standard of reasonableness.

Moreover, Mr. Aizupitis has not demonstrated prejudice if that representation was deficient.

         Even if Mr. Gardner had testified in the manner Mr. Aizupitis believes he would have

testified, there is no indication that the outcome would have been different. At trial, the defense

provided evidence as to Mr. Aizupitis’ state of mind. In fact, Trial Counsel thought a strong case

had been presented at trial on Mr. Aizupitis’ behalf.53 The jury did not agree. This result,

however, does not mean that the failure to present Mr. Gardner’s testimony as Mr. Aizupitis

conceptualized it would have provided for a different outcome.

         Mr. Aizupitis’ claims regarding lesser included offenses are, again, belied by the record.

Trial Counsel’s affidavits lay out the tactical considerations on why murder in the second degree

was not requested.54 Moreover, trial counsel engaged the Court regarding lesser included

offenses.55 At trial, the Court instructed the jury as to the indicted charges, the lesser included



53
   See Oberly 1999 aff. at ¶ 7.
54
   See Oberly 2018 aff. at ¶ 7.
55
   Id.

                                                 18
offense of manslaughter and extreme emotional distress.56

         Mr. Aizupitis fails to satisfy the Strickland test on his duty to consult contentions. Mr.

Aizupitis has not demonstrated that Trial Counsel’s performance fell below an objective standard

of reasonableness. There is more than one way for counsel to provide effective assistance in any

given case. Equally competent attorneys may tactically approach the same case in a different

manner. Mr. Aizupitis is arguing that different approaches could have been taken but not that

Trial Counsel’s performance was not within the “wide range of reasonable professional

assistance.”57

         In addition, Mr. Aizupitis has not proven that it is reasonably probable that, but for the

mistakes of counsel, the fact finder would have had a reasonable doubt respecting guilt. In

considering the totality of the evidence that went to the jury in this case, the Court cannot

conclude that the result would have been different even if Trial Counsel had consulted with Mr.

Aizupitis in the manner argued in the Motion.

         Right to Testify

         Mr. Aizupitis claims that his Trial Counsel was ineffective with respect to his right to

testify or not testify at trial. Specifically, Mr. Aizupitis contends that Trial Counsel was

ineffective because they did not let him testify at trial, and that they coerced him into not

testifying. The record indicates otherwise.

         First, Trial Counsel specifically remembers advising Mr. Aizupitis on his right to testify

or not testify at trial.58 Dr. Raskin was also available to counsel Mr. Aizupitis on the issue of

testifying at trial.59 Trial Counsel state that they did not believe that Mr. Aizuputis should testify


56
   Id.
57
   Gattis, 1995 WL 790961, at *4 (citing Strickland, 466 U.S. at 689).
58
   See Oberly 2018 aff. at ¶ 5; Oberly 1999 aff. at ¶ 3-6.
59
   Oberly 1999 aff. at ¶ 3.

                                                         19
in his own defense for a variety of reasons—e.g., that his demeanor would not be well received

by a jury—but also made it clear to Mr. Aizupitis that the final decision to testify was his to

make.60

         Second, the Court addressed Mr. Aizupitis at trial about his right to testify.61 During the

Court’s colloquy, Mr. Aizupitis stated that he understood the issue and that he did not want to

testify.62 After this exchange, the Court made the determination that Mr. Aizupitis’ choice not to

testify was ultimately his choice.63

         Nothing in the record, other than statements made in the Motion, indicate that anyone,

Trial Counsel, the Court, etc., “coerced” Mr. Aizupitis into not testifying.

         The record of this case demonstrates that Mr. Aizupitis, after meeting with Trial Counsel

and Dr. Raskin, informed the Court that he was electing not to testify. On this record, the Court

finds that it is clear that Trial Counsel’s representation with respect to Mr. Aizupitis’ right to

testify does not fall below an objective standard of reasonableness.

                                          CONCLUSION

         Accordingly, for the reasons stated above, Mr. Aizupitis’ Rule 61 Motion is DENIED.

IT IS SO ORDERED.



                                                       /s/ Eric M. Davis
                                                       Eric M. Davis, Judge

cc:      Original to Prothonotary




60
   Id. at ¶ 5.
61
   Oberly 2018 aff. at ¶ 5.
62
   Id.
63
   Id.

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